And the Sea Will Tell (31 page)

I pressed on, telling the court that to tell the jury the theft was a part of the very robbery for which Jennifer was on trial was to take away from the jury’s consideration “virtually the sole issue at this trial.”

The judge replied that even if the theory of collateral estoppel were not applicable, Jennifer’s prior conviction could still come in during the prosecution’s case in chief.

If collateral estoppel did not apply, I asked Judge King, then under what theory
could
Jennifer’s prior conviction come in. The “willy-nilly” theory? “Please give me a theory I can address myself to,” I said.

Judge King, showing signs of beginning to lose his patience, asked if I actually intended to argue at the murder trial that my client
didn’t even steal
the
Sea Wind
.

“Of course we’re going to argue that.”

Court: “She did
not
steal it?”

“Yes, of course.”

Court: “What do you mean?”

“Judge, why would I get up and tell the jury that what this other jury did is automatically right, that juries are never wrong?”

Court: “That’s what we are arguing about right now. That you can’t relitigate something that has already been decided.”

“So in other words, I am precluded from asking her on the witness stand what her state of mind was when she departed with Mr. Walker from Palmyra on the
Sea Wind
. She is literally prohibited from saying, ‘I didn’t intend to steal the
Sea Wind
,’ because as a matter of law, she
did
steal the
Sea Wind
.”

Court: “I suppose she can say anything she wants to.”

“How can she if the court is going to tell the jury that as a matter of law she
did
steal the
Sea Wind
, and therefore to disregard her testimony in that respect?”

Court: “Right.”

“And that she is committing perjury when she testifies that she never intended to steal the
Sea Wind
.”

Court: “I don’t know about perjury. Defendants have elastic memories.”

“I am not going to stipulate that she is a thief in front of the jury. And if the court wants to tell the jury that she is—”

Court: “I don’t want to do a damn thing! I am sitting here with the Government telling me they want me to say that, and I am listening to you as to why I shouldn’t.”

We had slipped off the road to a related issue, and I returned to the central issue: whether or not Jennifer’s theft conviction could be introduced by the Government as a part of the robbery being charged.

“If the court can give me a theory that allows them to do this, then I can respond to it. The
only
theory that’s been propounded by the prosecution is collateral estoppel, but it simply does not apply here.”

Court: “I understand your argument.” He hadn’t said he agreed. Merely that he had finally understood.

At that point, Judge King called a short recess.

As I walked out into the hallway in search of a drinking fountain, I wasn’t confident that the judge—even if he actually had understood my argument—would go along with my motion and prevent the prosecution from pulling off one of the smoothest, sneakiest tricks I’d ever seen attempted in a court of law. In light of the judge’s vacillating comments, I was deeply worried.

When we went back into session, Judge King addressed Enoki. “Mr. Bugliosi has a point, you know. You
are
trying to argue that the two elements of the precise robbery for which she is on trial have already been proved by the prior theft conviction when, as a matter of fact, it could be that you are talking about a
different
theft. I will grant Mr. Bugliosi’s motion with respect to the inadmissibility of the theft conviction in the Government’s case in chief.”

Judge King
had
understood.

At the defense table, Len leaned over and whispered, “Congratulations. You turned the judge around.”

Partington was shaking his head in bewilderment as we all left the courtroom. “Good work, Vince, but I still think that under the law the Government unfortunately has the right to do it,” he said.

There was one more battle to be fought concerning Jennifer’s theft conviction. On cross-examination of her at the murder trial, could the Government ask her whether she had been convicted of stealing the
Sea Wind
(along with money found aboard)? Typically, they could. In this case, I felt they could not, and had filed a ten-page motion setting forth my arguments.

Judge King said he would decide this second issue at the trial. If we lost, bad as that would be, it wouldn’t come close in its consequences to losing the ruling we had just won.

It had been a trying morning, and I was glad to accompany the other attorneys to a restaurant across the street and unwind over lunch.

“Buck looks like an accountant,” Len offered midway through the meal when the discussion got around to how Buck and Jennifer had changed in appearance since 1974.

Partington smiled, obviously pleased with Len’s assessment.

“But then again,” my co-counsel added with a wink and devilish grin, “would anyone here want to take a sailboat ride with him?”

L
OS
A
NGELES

M
Y PRETRIAL
interviews with Jennifer continued, as did my frustration with her refusal to believe that Buck Walker had murdered Mac and Muff Graham. She maintained her skepticism in the face of my efforts to lay out evidence which pointed toward his guilt.

Take, for example, the
Sea Wind
’s masthead light, a single, beacon-type light mounted at the very top of the front mast. In reading Jennifer’s theft-trial transcript, I noted that Tom Wolfe had testified about accompanying the Grahams on a Palmyra exploring expedition from which they expected to return after dark. In anticipation of this, Wolfe explained, Mac had turned on the masthead light before leaving the
Sea Wind
so that they wouldn’t have to locate her and climb back aboard in total darkness. Remembering to flip on the light in the middle of the afternoon was the act of a careful and prepared boatman, a description everyone agreed fit Mac Graham.

But Jennifer had testified that on August 30, when she and Buck went to the
Sea Wind
around 6:30
P.M.
for their bon voyage dinner, Mac and Muff were not there, the masthead light was not on, and she and Buck thereafter turned it on to help Mac and Muff find their way back in the dark.

Pointing out Wolfe’s testimony to her, I asked Jennifer, “Didn’t it strike you as odd that Mac hadn’t switched the masthead light on before he and Muff left, inasmuch as he supposedly told Buck they might be late?”

“Not at the time,” she answered.

“What about now?”

“I guess so,” she said. Her expression, as impassive as a cigarstore Indian’s, remained unchanged.

And then there was the apricot brandy. I asked Jennifer to repeat in detail what she and Buck had done aboard the
Sea Wind
that night as they waited for the Grahams. She said that when they went below they had found “certain things” set out on the table.

“What things?” I asked. “Be specific.”

“Apricot brandy and vodka. Dry-roasted peanuts. Olives. Oh, and a box of cookies. Buck said Mac told him they’d lay food out for us in case they weren’t there when we arrived.”

“And what did you do then?”

“I poured myself a glass of apricot brandy, Buck poured some vodka for himself. Buck took the box of cookies and we went up on deck.”

After our session that night, I sat in a chair in my den until almost two in the morning, with my ever-present yellow legal pad in my lap. Comparing my interview notes with Jennifer’s theft-trial testimony, I reran over and over the scene of Jennifer and Buck aboard the
Sea Wind
on the all-important evening of August 30. If Buck had been aboard earlier in the day, as I suspected, either while killing the Grahams or afterward, it was conceivable that there was something visible on the boat that could have given this away. Even the brightest, most cautious crook can make a mistake. Among my scrawled notes before finally going off to bed was this one: “Ask Jenny what her favorite drink is.”

At our next meeting, she answered without hesitation: “Apricot brandy.”

“Did Mac and Muff know that?”

She paused to consider. “No,” she said. Although she’d had cocktails aboard the
Sea Wind
once or twice before, the Grahams had never served apricot brandy. “So it never came up.”

“Buck knew apricot brandy was your favorite drink?”

“Sure,” she said, shrugging, apparently not aware where I was headed.

“Doesn’t it appear to you that Buck had to be the one who put out the bottle of apricot brandy?”

She looked at me searchingly, but said nothing for several moments. I let her work it out for herself.

“I see your point,” she finally said almost inaudibly. Her face fell.

The masthead light and apricot brandy were two pieces of evidence I presented to her which, for the first time, seemed to shake Jennifer’s conviction that Buck Walker was innocent. But she wavered only briefly. Right up to her trial, the bottom line for her remained unchanged. Jennifer simply couldn’t accept that Buck had killed the Grahams.

PIRACY IN PARADISE:
’74
VOYAGE ENDING IN MURDER TRIAL

—San Francisco
Chronicle

 

S.F. TESTIMONY BEGINS IN PIRACY-MURDER TRIAL

—San Jose
Mercury News

 

S
AN
F
RANCISCO
M
AY
28, 1985

I
T WAS A BRIGHT, WINDY
morning in this picturesque city by the bay. The air was naturally fresh, electric. Cable cars chugged up and down steep hills past quietly elegant hotels and world-class restaurants. Tens of thousands of commuter cars roared over the spiderwork bridges that feed into elevated highways curving around and into the towering business district. Glimpsed through the tall buildings in a myriad of shapes and designs, the sky was a vast cyclorama of blue, a backdrop dwarfing the melodrama promised by the press.

At the Civic Center, Old Glory snapped in the breeze atop the flagpole outside the twenty-story federal courthouse on Golden Gate Avenue.

A two-block stroll from the courthouse is the dome-topped San Francisco City Hall, where on the morning of November 27, 1978, the youthful-looking Dan White murdered Mayor George Moscone and Supervisor Harvey Milk, adding his bloody page to a city’s history.

A
FTER AN
early jailhouse breakfast, Buck Walker was loaded into an unmarked U.S. Marshal’s van with barred windows and accompanied by armed guards on the drive across town from his temporary lockup at the county jail to the courthouse’s basement parking lot, which was guarded by shotgun-toting marshals. It was the kind of scene that in a Sam Peckinpah film would jump-cut to a massacre.

At 9:30
A.M.
, Judge Samuel King entered the courtroom. At a long counsel table perpendicular to the bench and to the judge’s right were Elliot Enoki and Walter Schroeder, both looking somber in their dark-blue three-piece suits. At an identical table opposite the prosecutors were lead defense counsel Earle Partington, nattily dressed in a gray wool suit with a rose-colored shirt and maroon tie, and co-counsel Ray Findlay, a younger man with a full head of salt-and-pepper hair, his eyes hidden behind tinted glasses. It was Findlay’s courtroom style to blend into the woodwork, not grab for the limelight—rather the opposite tack from his co-counsel’s. Between the two defense lawyers sat the big, quiet, inscrutable-looking man accused of murdering Muff Graham.

Walker, now forty-seven, had aged considerably in the eleven years since Palmyra. His neatly combed hair was receding, and with the thirty extra pounds and a double chin he looked as soft as Pillsbury dough. It would be difficult for the jury to picture him as the swaggering, powerful, ruggedly handsome man of the photos taken in 1974. His eyes stared coldly out of black horn-rimmed bifocals that he frequently pushed up the bridge of his nose with his right index finger. He was wearing a flower-splotched Hawaiian shirt, a Western-cut corduroy coat with elbow patches, and cola-brown polyester slacks—what he would wear to court every day of his trial. There was a chalkiness to his complexion that was to be expected, considering he had spent the last three years and nine months since his arrest in Yuma behind bars. Whenever he spoke to his attorneys, he whispered behind a cupped hand, never making the slightest disturbance in court. But lurking beneath his stolid CPA demeanor was an unmistakable malevolence that most people who came near him sensed in their very bones.

Judge King introduced himself to the pool of sixty prospective jurors at the commencement of jury selection. (“I’m sixty-nine and I’ve been married forty years to the same woman,” he said with a smile. “I have four and three-quarters grandchildren.”) He asked each juror a few preliminary questions, then turned the questioning over to Enoki and Partington.

Shortly before noon, the prosecution and defense agreed to accept the jury, along with two alternates, and the jury was sworn.

That afternoon, Enoki delivered the Government’s opening statement. “I don’t think you will have any problem giving this case your undivided attention because it is truly a case involving a very unique setting,” he began, then summarized the charges against the defendant, told the jurors about Mac and Muff Graham and their
Sea Wind
, described Palmyra, and explained how the Grahams had ended up alone on the island with Buck Walker and Jennifer Jenkins eleven summers earlier. The Government lawyer went on to give the jury a preview of the evidence the prosecution intended to present at the trial. As the motive for the murder, he suggested that Walker and his girlfriend were stranded on the island and virtually without food.

Sitting in the front row of public seats, a fragile but intense-looking woman in her fifties clutched a wadded tissue in one hand while keeping her blank gaze leveled on the prosecutor. In the preceding ten years, Kit Graham McIntosh had undergone several major surgeries, including one for a benign brain tumor. Next to her, holding her hand, sat her second husband,
^*
Wally McIntosh, a tall, sweet-mannered retired engineer. Married since 1977, they had flown down from their home in Seattle, and neither would miss a moment of the trial. “I like being able to see what’s going on,” Kit said, smiling pleasantly to a reporter in the hallway during a recess. “Mac was my only brother and I loved him dearly.” Her smile disappeared and her eyes clouded. “I want everyone to know that Mac and Muff were real. I’m going to sit here and remind them.”

As she took her seat next to her husband, Kit recalled how grateful she’d been that her mother, who died a year earlier, did not have to endure this public presentation of the evidence. Muff’s mother had not even lived to hear of the hideous discovery on Palmyra. She had gone downhill fast after Muff’s disappearance, passing away not quite two years later. The cause of death, according to one family friend: a “broken heart.”

After Enoki sat down, Ray Findlay stood to deliver the defense’s opening statement. He buttoned his drab, rumpled suit and looked almost apologetically at the jury.

In a singsong voice, he went over the geographic layout of the island, emphasizing the abundance of coconut palms and edible fish and crabs. “No one was going to be starving to death on this island,” he said. “No one was going to be desperate from hunger. They had food, and they were bartering for food.”

At this point, Judge King interrupted testily. “You get to argue the case later,” he barked. His jowls had turned beet-red with startling speed, and his words had a bite that, by the end of the trial, would be all too familiar to the defense.

“Yes, your honor,” Findlay said respectfully.

Throughout the trial, Judge King, in the presence of the jury, would make his lack of respect for defense counsel clear not only in what he said but also in his tone of voice and theatrical gestures. Fist-pounding would accent his words when he was upset with them, as would tapping his pencil on the base of the microphone mounted in front of him. This tic would cause an amplified
tap-tap-tap
to echo throughout the courtroom, signaling to all and sundry that the defense was once again pushing him toward an explosion.

Findlay continued his opening statement. Twice more he would be interrupted by the judge’s harsh admonitions. “There is no fight or argument that Mr. Walker is a boat thief,” the defense attorney said, rocking nervously on the balls of his feet. “He stole the
Sea Wind
, yes.” But, Findlay claimed, this theft occurred only after the Grahams had disappeared.

Findlay ended his remarks on the theme that would prove to be Walker’s principal line of defense—that murder did not occur on Palmyra, only accidental death. “The Grahams went out fishing in their small inflatable dinghy. We don’t know if that Zodiac hit something in the water, or flipped because of a gale.

“I believe the evidence will show one thing: nobody knows how or when Muff Graham died, and nobody can point to any evidence which proves beyond a reasonable doubt that the defendant, Buck Walker, committed
the murder
.”

In loose language that no one would hold him to, the defense attorney had just contradicted himself unwittingly, conceding the fact there
had
been a murder—perhaps the main point at issue in the Walker trial.

L
EN
W
EINGLASS
and I attended Walker’s trial, as did Ted Jenkins. We all listened carefully to the testimony of each witness, knowing that most would be giving almost the same testimony against Jennifer. When someone left the stand, Len would remain seated in order to monitor the start of the next witness’s testimony while I rushed out to the hallway to intercept and interview the witness who had just stepped down.

The Government’s first witness, Larry Briggs, took the stand shortly after court convened on the morning of May 29. Under questioning by Walt Schroeder, the charter boat captain for the
Caroline
told how he had helped tow the
Iola
into the lagoon on June 27. “By my standards,” he testified, “the
Iola
did not appear to be a seaworthy boat. It was very run-down.” He averred that Hawaii to Palmyra is “what’s known as an easy sail.” What about the reverse? “It would be much more difficult because you would be going against the wind and the sea. You would have a rough trip in
any
boat.”

Would you have attempted such a trip in a boat like the
Iola
? Schroeder asked.

“No, I wouldn’t. Unless I had no choice.”

The message was clear: the
Iola
couldn’t make it back to Hawaii, but Buck and Jennifer had a choice. The
Sea Wind
.

On cross-examination by Findlay, Briggs confirmed that sharks were plentiful in the lagoon. Then, in an effort to show that not everyone on the island feared Buck Walker, Findlay attempted to ask the witness if it was true that one of the amateur radio operators aboard the
Caroline
had gotten along well with the defendant.

Court: “I will sustain the objection.”

But no objection had been made.

Taking his cue from the judge, Schroeder shot out of his seat and objected to the question.

“Objection is sustained,” ruled Judge King.

Findlay seemed stunned. “But, your honor, the relationship—”

“
Sustained
,” the judge bellowed.

“The witness can observe—”

“Overruled! Overruled!” Judge King yelled. “The question is objectionable!”

The defense attorney, trying to recover from the sting of the judge’s outburst, took a moment to collect himself. Finally, he asked the witness whether he had ever seen the ham radio operator in question in the company of the defendant.

“If I did,” Briggs answered, “I have no recollection of it at this time.”

“Do you recall making a statement to the Federal Bureau of Investigation—”

King half rose from the bench, his face flushed. “You are going to get into real trouble
soon
,” he roared, “if you try to get around my ruling.”

“Judge…” Findlay offered weakly.

The judge directed the jury to leave the courtroom. By then, of course, the damage had already been done. The jurors had seen the judge demean the defense counsel, surely diminishing in their eyes the attorney’s stature and credibility. What the jurors didn’t know—and had no way of knowing—was that the judge had been wrong on the law to boot. Findlay properly wanted to ask Briggs about what social intercourse he had observed between the defendant and others on Palmyra. He technically had not laid an adequate foundation for his question (this was not the basis for King’s ruling), but he was properly attempting to use an earlier statement Briggs had made to the FBI to jog the witness’s memory.

Outside the presence of the jury, the judge continued ranting about Findlay’s effort to circumvent his ruling. Sitting there, I began to get a sinking feeling in the pit of my stomach. Was this a preview of Jennifer’s trial? If standard courtroom practice pushed this judge to the verge of meltdown, what would happen when I attempted an unconventional defense, as I was planning, and in my aggressive style?

I
N ALL
, the prosecution would call six eyewitnesses to the midsummer 1974 events at Palmyra Island: Briggs, Jack Wheeler, Bernard and Evelyn Leonard, Donald Stevens, and Thomas Wolfe. A common thread ran through their testimony: Buck and Jennifer were running out of food; their boat was unseaworthy; and, since none had ever seen Buck and Jennifer on the
Sea Wind—
although they themselves had visited there—or otherwise associating with Mac and Muff in any way, hostility between the two couples was assumed.

Following up on an FBI 302 report that referred to letters the Grahams sent to Mac’s sister, I had requested copies of the letters and had recently received them from Enoki. The correspondence, although inadmissible hearsay, made clear to me that the two couples
had
associated on Palmyra and were, in fact, at least outwardly civil to each other, even though each had hoped to find themselves alone there.

Concluding an innocuous cross-examination of Wheeler, Findlay said, “Your honor, I have no further questions.”

Unbelievably, Judge King scolded Findlay before the jury: “Before you
ever
say ‘no further questions,’ you always consult Mr. Partington.”

“I don’t think…” Findlay stammered in amazement.

The judge continued the stern lecture. “Always just say to me, ‘Could I have a second?’ and then turn around and look at Mr. Partington.”

What King was instructing Findlay on like a child was a matter of courtroom coordination to be determined only by the attorneys, not the judge. King’s conduct was outrageous.

Two of the prosecution witnesses I feared most followed Wheeler to the stand. Bernard and Evelyn Leonard were charter members of a club I had facetiously dubbed “the Hawaiian Connection.” This group, which included Curt Shoemaker, agreed with those law enforcement officials who believed that Jennifer had been the real brains behind the Palmyra murders.