And the Sea Will Tell (50 page)

“Yes, I have heard that. And I disagree.”

“If it is a gunshot wound, and if that gun were held up against the head that way, and fired, the fact it was held right up against the head would reduce the sound?”

“That’s true. It would reduce the sound.”

“And I believe you told me that if this had happened, that someone standing two hundred yards away, if there were trees rustling and other background noise, they wouldn’t hear the gunshot.”

“They might not. Two hundred yards is two football-field lengths, just to put it into perspective.”

Weinglass shuffled some papers, then asked, as he had with Uberlaker, if the whitening on the skull might have occurred to the bare bone while other areas were protected by, for example, sand on the beach.

“I cannot rule that out.”

“And you also said that for every hypothesis here, there’s a significant amount of argument against the hypothesis.”

“Yes. It almost sounds like Newton’s theory of forensic medicine. For each hypothesis, there’s an equal and opposite.”

After Enoki’s brief re-direct, Judge King asked the witness if he thought the burn marks were from one or two burnings. One, said the medical examiner.

On re-cross, Weinglass emphasized this latest conflict between the Government’s two expert witnesses. “Are you aware that Dr. Uberlaker believes the burn marks indicate two burnings?”

“No, I wasn’t.”

If two distinguished experts in the fields of pathology and anthropology couldn’t agree, one could hardly expect the jury, or anyone else for that matter, to resolve all of the mysteries of the Palmyra Island murder case.

A
S
D
R
. B
OYD
Stephens was concluding his testimony, two women jurors from the Walker murder trial appeared in court. They had come separately, and their arrival within minutes of each other was purely coincidental. They smiled and gave each other half-waves from opposite sides of the gallery. They were there for the same reason.

“We heard so much about Jennifer,” said Dorothy Nelson. “I was…well, curious.”

“I wanted to see her for myself,” explained Robyn Schaffer, who had been so unnerved by Buck Walker’s wrathful stare. “I don’t know if Jennifer did it or not, but I
do
know she had terrible taste in men.”

A
LL FOUR
of the FBI crime lab experts who had taken the stand at the Walker trial came forward to repeat their findings. The microscopy expert testified to his discovering the piece of cotton fabric stuck to the bottom of the container and determining it had been exposed to “extreme heat or burning” the chemist to the series of complex tests he’d conducted which allowed him to identify a “waxlike” substance found inside the box as indicative of fatty acids given off from a human body in a state of decomposition in an anaerobic (airless) environment, such as underwater; the serologist to his performing the screening tests for human protein on the piece of fabric and receiving positive results; and the metallurgist to the aluminum alloy inside of the container having been subjected to an intense fire fueled by an accelerant.

On cross, Weinglass asked the metallurgist: “This container had been on the island of Palmyra, if we accept Mr. Wheeler’s word, for at least seventeen years prior to 1974. Could you tell the court and jury when, during that seventeen-year period, the fire that you claim you detected occurred in this box?”

“Not specifically.”

“The fire might have been anytime from 1957 to 1974 before it was put under water?”

“Yes.”

“And you told me out in the hall before you testified, did you not, that you thought the fire might have been fifteen or twenty minutes in duration?”

“You asked me what kind of time frame I would offer as to requiring the type of effects I saw on the interior of the container [enlargement of the grains of the metal], and I indicated
I wouldn’t expect all the characteristics to exist below fifteen or twenty minutes
, but they could have occurred from a fire that lasted
hours
.”

When Len finished with his cross-examination and returned to the counsel table, I asked him what reason he had had for eliciting this latter testimony. Len had wanted to show the brevity of the fire (the longer the fire, the less likely Jennifer’s story that she saw no smoke on Palmyra on August 30) but had been given a
minimum
of fifteen or twenty minutes—a dangerously long time for our purposes. As they used to say in the courts of southern Louisiana, the prosecution had been given a lagniappe (gratuity).

The Government’s last expert witness was Dr. Oliver Harris, the odontologist from Walker’s trial, who once again testified to his finding the evidence of blunt trauma to an upper left molar in Muff’s skull and a lower right molar in the jawbone. Asked by Enoki for examples of blunt-force trauma, the odontologist answered, “A large round rock, a sledgehammer, but not a fist. A fist could not deliver that much force.”

On cross, Weinglass asked if the expert knew whether the fractures had occurred at the time of death.

“No, I do not know that.”

As expected, the expert testimony had been gruesome as well as technical. Sledgehammer-type blows to the head, leg bones wrenched back and broken, an acetylene torch searing Muff’s head, and her body being set on fire—scarcely conceivable as actions of the pleasant-looking woman seated beside me. But to convict her of murder, the jury would
not
have to picture her swinging the sledgehammer or wielding the torch. It would be sufficient to conclude that she’d been
involved in the decision
to kill the Grahams.

I sat at the counsel table, studying the two rows of jurors, trying to sense somehow their feelings about the case, but their faces were as unrevealing as those at a black-tie poker game. Had they already convicted Jennifer in their minds, and were just going through the motions, as for all intents and purposes another jury had at Buck’s trial?

The answer was days away, but rapidly approaching.

T
HE
A
SSISTANT
U.S. A
TTORNEY
who had successfully prosecuted the boat-theft cases—only to lose Walker’s conviction on appeal—was now in private practice in Honolulu. William Eggers, immaculately dressed in a steel-gray pinstripe suit, came to the stand to testify about the November 1974 search of Palmyra.

Eggers, understandably, had the appearance and mannerisms of someone more comfortable asking questions in a court of law than answering them. The suntanned former prosecutor went on for several minutes—with few interruptions from Enoki—describing in detail the atoll’s terrain, his group’s search, and their failure to find any sign of the Grahams or any indications of foul play.

On cross, Weinglass began, “The beach at Strawn Island—there are parts of it where the land comes close to the water’s edge and other places where the land is set back, creating small bays?”

“Yes.”

“There are parts of that beach that are six and eight feet above the high-water mark?”

“There are parts that are dry, yes.”

Len next had Eggers relate his and Jack Wheeler’s frightful experience with a shark in the Palmyra lagoon.

“Aside from the sharks, did you find the atmosphere on Palmyra to be hostile?” Len now asked.

“I did.”

“In what way?”

“I’ve thought about that,” Eggers said contemplatively. “I’ve been in distant places during my life, and I still haven’t determined whether it was the nature of the case I was helping to investigate, or the island itself. I’m uncertain to this day.”

What was it about this remote, uninhabited island that so many rational people unexplainably found eerie and foreboding?

Eggers stepped down at 3:50
P.M.
on Friday, February 7. The jury was excused until Monday morning.

Throughout the trial, I was increasingly concerned about Jennifer’s continuing lack of proper interest in the case. Except for a very few instances, she sat passively at the counsel table, showing little of the interest or anxiety typical of a defendant charged with murder. It was strange to watch.
^*

Nonetheless, at the end of each day, I still reminded Jennifer to do her homework, much as I had reminded my two children, Wendy and Vince Jr., when they were younger. She was supposed to be going over her copy of my tentative Q and A, now a mound of 143 yellow legal-pad pages. She invariably complained of fatigue or headache, so I knew I couldn’t rely on her own initiative. I urged Ted to keep the pressure on her. More serious-minded and reality-grounded than his sister, he would always assure me he would do what he could. “She can go home with you and have a nice relaxed dinner,” I would say, “and maybe rest for an hour or so, but then you’ve got to get her to work on the Q and A. She’s going to be on the stand soon. She has to work.” I also lobbied her mother to pressure Jennifer.

This weekend—when we were well into the prosecution’s case—was a turning point for Jennifer. For the first time in our entire association, I began getting anxious calls at my hotel from her: “Vince, what about this?” or “I know I said this last time, but after some further thought it’s not quite accurate.” Never before had she taken such an active role in her defense. Finally, I guess, it had hit home that she was about to testify at her own murder trial. On Saturday, she took a room at the hotel and we worked late together the next two nights. So little time remained.

“There’s one juror I don’t like,” Len confided as the three of us took a late-night breather in the twenty-four-hour coffee shop next to the hotel.

I flashed immediately upon the Kansas Rock, whose presence worried me well nigh incessantly. I’d noticed he took notes whenever one of the prosecutors was asking questions, but sat with his arms folded across his chest, a grim Buddha, whenever Len or I stepped to the podium. I had the sinking feeling he had already judged Jennifer guilty and was gathering tidbits from the Government’s case for persuading other jurors during deliberations.

“The Kansas Rock?” I asked.

“No. It’s one of the guys in the back row. He’s always looking at us with such a dour expression. Like he’s disgusted.”

Great
, I thought.
Before they’ve even heard the defense’s case we’ve already got two jurors against us
.

More than once that weekend, Len fretted about the “dour” juror. Aside from the Kansas Rock, I’d not noticed any unusually hostile juror, but then I generally don’t spend much time eyeing the panel. As soon as the jury entered the courtroom Monday morning, I asked Len to point out the worrisome juror. When he indicated juror number fourteen, I cracked up. Number fourteen was an alternate juror, the second alternate at that, and wouldn’t participate in deliberations unless
two
regular jurors fell by the wayside. Short of an outbreak of Legionnaires’ disease on the jury, Joseph Winston, a thirty-four-year-old hospital administrator, would never have a hand in deciding Jennifer’s fate.

“Why are you so concerned about an alternate?” I asked, laughing with relief.

Len, ever the worrywart, said somberly, “Let’s hope no one gets sick.”

T
RUE TO
form, the Kansas Rock had his pen and notebook ready when Curt Shoemaker settled in the witness chair to testify for the Government.

The nautical-looking Shoemaker wore an old blue blazer festooned with gold buttons, over a flamboyantly patterned aloha shirt unbuttoned to mid-chest, wrinkled tan chinos, and scuffed white deck shoes. Now retired from the Hawaiian Bell phone company, he lived only part of the year on the Big Island with his younger wife, Momi, who still worked for the company. The rest of the time he sailed to faraway ports like Fiji and Tahiti on his fifty-seven-foot-yacht, the
Sivada
, which he’d designed and had built to his own specifications.

The Government entered into evidence Shoemaker’s radio log for April through December 1974. In his own handwriting, the notations showed he had reached the Grahams from Hawaii on eight dates in July, and (eventually settling on a regular once-per-week contact) on August 7, 14, 21, and, finally, 28.

I knew Schroeder would elicit basically the same testimony Shoemaker had given at the Walker trial: the conversation between himself and Mac on the 28th, including the suggestive stories of the cake and the truce. Technically, his line of questions would be calling for hearsay.

Even so, I planned to waive all hearsay objections, knowing, as I’ve mentioned, how jurors tend to resent an attorney who wants to suppress relevant information. After all, what Mac allegedly said to Shoemaker on the last occasion he and Muff were heard from
was
extremely relevant, and the jurors would unquestionably want to hear it. I wouldn’t attempt to keep them from doing so.

Shoemaker proceeded to repeat his testimony at the Walker trial, concluding by noting that after signing off with Mac on the evening of August 28, 1974, he had unsuccessfully tried to contact the Grahams three more times between September 4 (the next scheduled call) and September 18.

At least in this trial, the “cake” wouldn’t be improperly coupled with testimony about missing rat poison. Nevertheless, Shoemaker’s testimony caused very serious problems for us. For starters, although the
Iola
’s amateurish log contained references to far less substantive matters, such as “Some rain in a.m.” and “in
P.M.
back to Zane Grey,” it made no mention of any visit to the
Sea Wind
on August 28. The prosecutors and FBI agents in the case believed that Jennifer had omitted the visit from her log for the very good reason that she and Buck had murdered Mac and Muff at that time. If the jury believed Shoemaker’s testimony about the cake and truce, the damage to our side would be immense.

I headed toward the podium to commence my cross-examination of Shoemaker. After explaining to him that for convenience’s sake I intended to refer collectively to his testimony about the cake and truce as the “cake-truce incident,” I asked: “This last contact with Mr. Graham on the evening of August 28th, 1974, you say commenced at 7:10
P.M.
and you signed off at 7:50
P.M.
Is that correct?”

“Yes.”

“And this incident took place right near the end of your radio contact?”

“That’s right.”

“Apart from this cake-truce incident, was the rest of your conversation with Mr. Graham on the evening of August 28th basically just routine conversation?”

“Prior to that, yes.”

“Nothing that stands out in your mind?”

“No,” he said.

“Okay. So, the cake-truce incident is what you remember most about this conversation you had with Mr. Graham on the evening of August 28th, 1974?”

“Yes.”

“It sticks out in your mind above all else, is that correct?”

“Yes.”

“Is the cake-truce incident the type of thing that if you live to be a hundred years old—and I hope you do, sir—and someone asks you to relate what took place during this very last contact that you ever had with Mac Graham, it would be the very first thing that entered your mind?”

Shoemaker emphatically agreed. It was something he’d never forget.

“Mr. Shoemaker, about two months after your last contact with Mac Graham, specifically on October 30th, 1974, do you remember being interviewed by FBI Special Agent Tom Kilgore at the police station in Hilo, Hawaii?”

“Yes, I do.”

“And the express purpose of this interview was to find out what you knew about the Grahams and their disappearance? Is that correct?”

“Yes.”

“And you certainly wanted to be helpful to the FBI agent and tell him whatever information you had which you felt was relevant?”

“Yes.”

“And you told the FBI agent—I’m holding in my hand a report of your interview with Mr. Kilgore—about your radio contacts with the Grahams, did you not?”

“Yes.”

“And you told him your last contact with Mac Graham was on August 28th, 1974, did you not?”

“Yes.”

After next eliciting from Shoemaker that he
had
told Kilgore several insignificant, mundane things Mac had told him during this last contact, I asked:

“Mr. Shoemaker, is there any reason
why
, during this entire interview with Mr. Kilgore, you failed to mention the cake-truce incident that you’ve testified to here today? Any reason at all, sir?”

“No. If I did fail to—I don’t remember. I’m sure I did, though.”

“You’re testifying now
under oath
that you are positive you told Mr. Kilgore about this cake-truce incident? You’re positive about this?”

“Well, I’m not positive, but I’m…I feel that I did at that time. Because I was relating everything I knew to him.”

I nodded, as if agreeing completely.

“Certainly you would want to tell him about that because that’s the thing that sticks out in your mind above everything else. Isn’t that right?” I asked.

“Well, yes. Yes.”

(To impeach—challenge the credibility of—Shoemaker, I could not at this point introduce Agent Kilgore’s report, even though it contained no reference to the cake-truce incident. You can use a witness’s prior written statement to impeach his testimony, but here the prior statement was written by Kilgore, not Shoemaker. And Enoki had refused to stipulate that Shoemaker never told Kilgore this information. Since the jurors saw me holding Kilgore’s report in my hand, however, they might draw the correct conclusion that Shoemaker had not told Kilgore. But if there was any doubt in the jury’s mind about Shoemaker’s not mentioning the cake-truce incident to Kilgore, I felt my next series of questions would remove that doubt.)

“Mr. Shoemaker, on June 25th, 1975, you testified at a theft trial in Honolulu. The clerk will hand you a photostatic copy of your testimony at that proceeding.”

Shoemaker, still seemingly oblivious to what was happening, looked casually at the pages of transcript from Jennifer’s boat-theft trial.

I directed him to read to himself certain numbered lines in the transcript. I then asked: “At that trial, to these questions did you give the following answers?” I proceeded to read aloud the prosecutor’s questions and Shoemaker’s answers.

Question: “What was the nature of that
last radio contact
with Mac Graham on August 28th?” Answer: “Like all the other contacts. He [Mac] related his experiences on the island. What he was doing, what he found. We talked about everything from rain to birds, sharks in the lagoon, and everything. How to fish, and what fish were poisonous. I was trying to help him out as much as I could. Also, there had been other boats on the island, and I was relaying messages from some of these other boats to their parents, and I was handling, in other words, third-party traffic.”

Since Shoemaker seemed to be drifting off into matters that obviously could have taken place during conversations before the one on the date in question, the prosecutor brought him back once again to the last contact. I continued reading to the jury.

Question: “What was the nature of your
last conversation
with Mac Graham? What was the nature of
that
communication with you?” Answer: “Well, he had spoken about this prior to this. I think one of the dogs of the other two people on the island had almost attacked his wife. So there seemed to be a problem. It was a boat that had gone down there that was—according to him he said it was unseaworthy and leaking badly, and the people on the boat were having a hard time, apparently, running out of food, and these were the ones with the dogs. There were several dogs, but I think there was only one that was causing the trouble.” Question: “That conversation was on the
28th of August
?” Answer: “That was on the
28th
, the
last time
I heard from them.” Question: “Did you have another contact with him after that?” Answer: “No. That was the last time I heard from him and he said that the other boat was leaving the next day.”