And the Sea Will Tell (65 page)

Jennifer testified that although she couldn’t contact the authorities, it was her intent to contact Mary Muncey just before she and Buck left Hawaii, and inform her of Mac and Muff’s disappearance.

“Did you know where to get in touch with her?” I asked.

Jennifer cleared her throat. “Yes. There were papers on board that gave her address.”

“At the previously referred-to theft proceeding in 1975, did you testify that it was your intention upon leaving Hawaii to take the
Sea Wind
back to Mary Muncey?”

“Yes.”

“I take it that was not the complete truth?”

“No, it wasn’t the complete truth. I planned to
ultimately
get the boat back to her. But we weren’t going to be taking it directly from Oahu to her.”

Asked why she and Buck had pulled into Honolulu’s Ala Wai harbor, where someone might recognize the boat, Jennifer said they needed diesel fuel, which was not available at Tuna Packers.

She testified that around eight o’clock on the morning of October 29, 1974, she climbed into the
Sea Wind
’s wooden dinghy and began rowing toward shore to use the rest-room facilities, explaining that one is “not supposed to use a bathroom in a boat when you’re in harbor.”

“You may continue,” I said when she hesitated.

“So, I was rowing over to the public bathrooms, which took me in pretty close proximity to Joel Peters’s boat. The previous day I had offered to do Joel’s laundry with ours, and he’d given it to me. Anyway, he was on deck and he told me that the authorities had been there the night before and were looking for the two of us.”

“What did you do at that point?”

“I went back and woke Buck up and told him what Joel had said.”

“At this point, you did not know whether they were looking for Buck Walker on the MDA matter, and you for assisting him in his escape, or for Roy Allen and you for being on a boat that did not belong to you?”

“That’s correct.”

“What was the thing that was uppermost in your mind, if you recall?”

“Buck’s fugitive status on the MDA matter was uppermost in my mind.”

“After you told Buck what Joel had told you, what’s the next thing that happened?”

“Buck said that we had to get off the boat right away. So we went and got into the dinghy, and were on our way to shore. And Buck’s dogs were on top, topside, and they were both barking. I told Buck that I wanted to go back to the boat and put them below. And I just then remembered Joel’s laundry. I told him I wanted to get Joel’s laundry back to him.”

“What did Buck say to that suggestion?”

“He said that I was crazy. He said he was going to get off at the dock first.”

After dropping Buck off, Jennifer said she went back to the boat, put the two dogs down in the cabin, grabbed Joel Peter’s laundry, and took it back to him. As she was rowing toward the bathroom, where she and Buck had agreed to meet, she saw “this big Coast Guard cutter pull into the channel” and come at her “really fast.”

“What was your state of mind at the point where they were barreling down at high speed directly toward your boat?”

“I was scared. I rowed really fast.”

“Was it also your state of mind to get away from them because you felt you had done something wrong?”

“Yes.”

“And what did you feel you had done wrong?”

“Well…I was with Buck, and Buck was on the run. And as far as I knew, me being with Buck made me a criminal, too.”

Then she added these crucially important words: “What you have to understand is that Buck’s state of mind became my state of mind. Buck was a fugitive on the run, and I was running with him.”

“So his reality became your reality?”

“Right.”

(It must have been on the fourth or fifth time that Jennifer and I were going over why she had said and done so many incriminating things that she uttered these words for the first time: “What you have to realize is that
Buck’s reality became my reality
. He was a fugitive on the run and I was running with him. That was the state of my consciousness.” Sometimes, a spontaneous remark perfectly distills the essence of a situation. This one went to the very heart of Jennifer’s incriminating actions, and I felt it would help the jury to see how an innocent person who is traveling with, and emotionally bound to, a guilty person may talk and act toward others the same way the guilty person does. I wrote the words down verbatim and told Jennifer I wanted her to use them on the witness stand. Alongside the remark, on her copy of our tentative Q and A, I had jotted a reminder: “Extremely important. Remember verbatim.” She had come close enough.)

“Is there anything else that you thought you had done wrong that caused you to try to get away from the Coast Guard cutter?” I asked.

“Yes. I…I knew that…we should have reported what had happened to Mac and Muff to the authorities. And also we were on a boat that wasn’t ours.”

Jennifer gave details of being found by the Coast Guard officer and Bernard Leonard in the lobby of the Ilikai Marina Hotel.

“Mr. Leonard testified that while you and he were on the dinghy going back to the Coast Guard cutter you told him you had found the Graham’s dinghy on the beach on Paradise Island. Did you tell him that?”

“No. He misunderstood if he thought I said I found the dinghy on Paradise Island. That was just where I thought it had flipped over, by Paradise Island.”

“Jennifer, did you tell Mr. Shishido the same thing you’ve testified to here in court about the circumstances surrounding the disappearance of Mac and Muff?”

“Yes. I told him the truth about what I thought happened to Mac and Muff.”

“Did you tell Mr. Shishido that the reason you never notified the authorities about the Grahams’ disappearance was that you were afraid they would take the boat away from you?”

“I probably said something like that.”

“Was this the truth?”

“No.”

“Why did you tell him this then?”

“Well, he asked me why I was on the boat, and why I hadn’t turned the boat in. And I couldn’t tell him the truth. I couldn’t tell him that it was because of Buck’s fugitive status. So I guess…that was just what popped out of my mouth.”

I moved quickly to emphasize this important point.

“You didn’t feel you could tell him the real reason, is that correct?”

“Right.”

“That you were trying to protect Buck?”

“Yes.”

In answer to my question, Jennifer testified that during the FBI interrogation, she found out for the first time whom they were looking for. They kept talking about Roy Allen.

“And you never told them that Roy Allen was Buck Walker?”

“No.”

Since Jennifer’s effort to protect Buck was so central to my summation, I presented further evidence of her effort.

“Jennifer, Mr. Shishido testified that you told him you first joined Roy Allen on the
Iola
in late April of 1974 while the
Iola
was moored in the Keehi Lagoon on the island of Oahu. You testified earlier, however, that you and Buck moved to the island of Maui in October of 1973, and Buck bought the
Iola
there that same month. And the boat, which you and Buck lived on, was moored in the Maalaea Harbor in Maui. Do you recall that?”

“Yes.”

“Why did you change the date and location to Mr. Shishido?”

“I was afraid that otherwise they would find out that Roy Allen was really Buck Walker.”

“You felt the authorities would be able to check and ascertain that you were really with a Buck Walker at the correct time and place?” I prompted.

“Yes,” she said.

“Did you tell Mr. Shishido that you and Buck rationalized Mac’s statement—Mac’s
alleged
statement—to Buck to ‘make yourselves at home’ to mean that the Grahams would have wanted you and Buck to take possession of the boat if anything happened to them? Did you tell Mr. Shishido that?”

“I’m sure I said something to that effect.”

“Was this a truthful statement on your part?”

“No.”

“Why did you tell him this?”

“Again, he was questioning me as to why we hadn’t turned the boat in. And I couldn’t tell him the real reason, so…I don’t know why I chose those words, except that was…as I knew it, the last words that Mac had told to Buck. And they just came out.”

“The last words that Buck
told you
that Mac had said?”

“Yes.”

With respect to the toilet-flushing incident at the yacht club, Jennifer said she didn’t flush anything out of her purse. “I was in the rest room for a long time, longer than usual. My stomach was really upset,” she told the jury.

“How long after you had originally set out to go to the bathroom were you permitted to do so?” I asked.

“It seemed like forever. Probably at least a couple of hours.”

Actually, there was
another
toilet-flushing incident, the details of which I decided to have Jennifer volunteer to the jury. “While you were at the FBI office in Honolulu, did you flush anything down the toilet from your purse that you did not want the authorities to see?”

“Yes.”

“And what was this?”

“When I was taking the things out of my purse—I think they were cataloguing everything—I found a piece of paper that had the name Buck Walker on it. So, I crunched it up, and when I went to the bathroom, I flushed it down the toilet.”

“Had you emptied out the contents of your purse earlier that day?” I asked.

Jennifer had told me that at the beginning of her interview on the Coast Guard cutter they had inspected the contents of her purse. (Later, at the FBI office, they had catalogued everything.) But after listening to me and Shishido go around and around on this issue, she now retreated, but just a bit. “It seems to me that when I went on board the Coast Guard cutter someone took my purse, but I really don’t remember what happened.”

Jennifer testified that when she visited Buck in jail after she was released on bail he gave her a letter to mail to Mac’s sister, Kit Muncey, and she did so.

“Did he ask you to write a cover letter for him to her?”

“Yes. He said he wanted me to say that the letter he wrote was written while we had the boat in dry dock. When it wasn’t.”

“And that something had happened to the letter to delay its mailing?”

“Yes, he told me to tell her that the letter had gotten misplaced, and that I had come upon it and I knew that Buck would want her to have it.”

“Actually, to your knowledge, his letter to her was written later while he was in jail. Is that correct?”

“Yes.”

“And did you in fact write the cover letter that Buck requested of you?”

“Yes, I did.”

I asked her why she had been willing to misrepresent to Kit when and where the letter was written.

“I did it for Buck. And I thought it was a beautifully written letter, and all the events that were in it about what happened to Mac and Muff were true. There were some other things in it that weren’t true. But I thought that the main thing was that it talked about our relationship with Mac and Muff, and the accident, and what had happened on Palmyra.”

“So, the contents of the letter referring to Mac and Muff’s disappearance, the heart of the letter, you felt that that was true.”

“Yes.”

“And that was the main thing you were concerned about?”

“Yes.”

I next explored further Jennifer’s relationship with Buck, by far the longest intimate relationship she’d had in her entire life. Yes, they had discussed getting married and had even gone so far as to take a blood test, she told the jury. She considered herself Buck’s common-law wife.

“So in your mind your relationship with Buck was something akin to marriage?”

“Yes.”

“Do you have any further emotional attachment to Buck?”

“No.”

I paused a few moments.

“Jennifer, as this jury here, and this judge, are your witnesses, as God above is your witness, did you have anything at all to do with the deaths of Mac and Muff Graham?”

“No, I didn’t.” She looked to the ceiling for a moment, composing herself. “I never doubted that Mac and Muff had died in a boating accident.”

“You may take the witness,” I told Enoki.

O
N THE WITNESS STAND
, Jennifer waited, unsmiling, but evidently quite comfortable. All the work getting her ready for this moment had given her—and me—confidence that she was prepared for the pitfalls of cross-examination.

Elliot Enoki approached the podium with no apparent enthusiasm. After putting his papers down, he made sure his coat was buttoned, then lingered, head down, looking as lifeless as a rag doll.

Professionally, I could almost feel sorry for my counterpart. He was like someone about to give a speech identical to the one just delivered by the previous speaker.

With two calculated exceptions, I felt assured I had conducted the major points of Enoki’s cross-examination for him. I had raised every negative, incriminating thing Jennifer had ever said or done in connection with the case, and had given her ample opportunity to give plausible reasons for each and every action.

My two calculated exceptions covered pieces of evidence that, if the two prosecutors were to overlook anything, seemed the most likely candidates to me.

The first was Jennifer’s filing of a salvage claim on the
Sea Wind
on May 22, 1975, just two months before her theft trial. She told me this had been her lawyer’s idea. If she didn’t, he said, everyone would believe she and Buck had stolen the vessel. He reasoned that a thief wouldn’t have the audacity to file a salvage claim. Jennifer said she argued that it made no sense to do so because the
Sea Wind
belonged to Mac’s heirs, but he persisted in his urging and she acquiesced. She told me that the salvage claim never came to court, and she didn’t know what had happened to it.

I viewed the salvage claim as particularly damaging to Jennifer, because if the jury did not believe that her lawyer was the instigator, it was completely inconsistent with her testimony that she intended to return the
Sea Wind
to Kit Muncey after two years. Even if the jury
did
believe that her lawyer had influenced her, it was just one more example of someone getting Jennifer to do something she didn’t want to do. His getting her to commit perjury was bad enough. I thought this salvage claim might slip by both Enoki and Schroeder, since they weren’t on the case at the time of the theft trials, and the only reference to it I’d found was one short article amid the sea of newspaper clippings.

The second item I’d skirted was Jennifer’s testimony at a motion-to-suppress hearing in Honolulu on January 24, 1975, that the only alternative open to Buck and her on Palmyra was to take the
Sea Wind
because they “were stranded” on Palmyra. When I asked Jennifer about this devastating testimony, she said this did not, as it appeared, refer to a belief in the unseaworthiness of the
Iola
. Rather, it was a lie to go along with the other lie that the
Iola
had run aground in the channel.

I had first seen a reference to the motion-to-suppress hearing in one of the documents furnished to the defense by the Government, but there was no copy of the transcript in our files. I asked Enoki for a copy and found the “stranded” remark in it. This appeared to be a highly damaging piece of evidence that confirmed exactly what the prosecution was saying, and I was greatly relieved when Jennifer had a satisfactory explanation. I didn’t, however, want her to have to give it before the jury. Since Enoki had up to then furnished the defense with every transcript of a court proceeding in the case, it crossed my mind that the prosecutor might not have had this transcript in his own files, had ordered a copy for me, and, in the rush of things, not taken the time to read it himself.

“M
ISS
J
ENKINS
,” Enoki finally began, straightening up and tucking one hand in his coat pocket, JFK-style, “as I understand it, you deny stealing the
Sea Wind
after the disappearance of the Grahams?”

“I never planned to steal the boat,” she answered evenly, “and I had no intention of keeping her.”

“Okay. At the prior theft proceedings that Mr. Bugliosi asked you about, you steadfastly denied to that jury stealing the
Sea Wind
. Is that correct?”

“Yes.”

Enoki was already struggling with a subject I had covered matter-of-factly during my questioning.

“Yesterday, you admitted, did you not, that you had no legal right to the boat?”

“Yes.”

“You knew that you were doing wrong. You admitted that yesterday, didn’t you?”

“Yes.”

“Concerning the letter Mr. Walker wrote to Mary Muncey, you did review it before you sent it off?”

“I read it, yes.”

“I think you testified that not everything in there was true. Isn’t that right?”

“Yes.”

“In fact, that letter contains the statement that the
Iola
wound up on the reef as you were leaving Palmyra. Correct?”

“Yes.”

“So, you knew Mr. Walker was lying to Mrs. Muncey about that?”

“Yes.”

At the podium, Enoki paused.

“You indicated in your testimony that you were not trying to disguise the
Sea Wind
at all by repainting it. Is that right?” he asked.

“I did not believe that changing the color of that boat would in any way disguise her.”

“And did you tell Mr. Walker that?”

“I did.”

“And what was his response?”

“He just said he wanted to change the color. He said we were either going to paint her yellow or I could pick a color I liked better. Yellow is one of my least favorite colors, so I chose lavender.”

“Didn’t Mr. Walker’s comments cause you some concern that he might be repainting the boat to disguise it because he was never going to return it?”

“He had made a promise to me when I showed him Mac’s will. Buck promised me that we would get the boat back to the mainland of the United States within that two-year period specified in the will.”

With respect to the swordfish incident, all the maneuvers Enoki had made to question the hole in the boat turned into smoke. Although he examined Jennifer in depth about the incident, none of his questions could in any way be considered challenging. They were more in the nature of simply finding out what had happened. Such as: “Now, did I hear you correctly that you discovered you were struck by the swordfish sometime later that evening? Is that correct?”

Enoki asked if the gold figurehead of a woman was in place on the bowsprit of the
Sea Wind
when Jennifer and Buck took possession of the boat at Palmyra.

“Yes,” Jennifer said. “At some point, the figurehead ceased to be on the boat, but…I don’t know when that was.”

“I gather by your answer that you did not remove the figurehead yourself?”

“That’s correct. I don’t remember seeing it after we left Palmyra.”

“Do you recall whether the name
Sea Wind
was on the running boards of the vessel when you took possession of it on Palmyra?”

“I don’t remember, but it probably was.”

“Do you remember if it was there when you got to Hawaii?”

“I don’t remember. It probably wasn’t. I think Buck had removed all the names. Mr. Wollen testified that the name
Iola
was on the boat. So…at some point in time, Buck must have removed all the
Sea Wind
names, and put the name
Iola
on. But I don’t remember where and when that happened exactly.”

Enoki was making good headway in one important area: Jennifer was beginning to say she didn’t remember or recall certain things. Her memory, the prosecutor could later argue, had conveniently been much sharper on direct than on cross-examination. I hoped the jury would see that most of the things she couldn’t remember were more trivial than the matters we had covered on direct.

Enoki touched on the subject of whether or not there had been a diary or log written by the Grahams aboard the
Sea Wind
. Jennifer said she “didn’t specifically recall” finding anything that resembled a diary or log book.

“How about Mrs. Graham’s clothing? Did you look through what she had?”

“I saw that she had clothing there. I didn’t go through it, per se.” There was a peevish tone in her reply I would have preferred she didn’t have.

“Did you wear any of her clothing?”

“I don’t recall wearing any of her clothing. I’m not sure.”

“Do you recall the outfit in which you were arrested?”

“No.”

Enoki asked the clerk to hand the witness two mug shots taken on the day of her arrest.

“Does that refresh your recollection in any way as to what you were wearing at the time you were arrested?”

“Yes. But I don’t know whether that was…Muff’s blouse I was wearing. I mean, I’ve…I had a blouse just like that, too.”

“You took four hundred dollars in cash that you found on board the vessel?” Enoki asked, repeating a point I had already elicited on direct examination. “Is that correct?”

“Yes,” she said.

“You told Agent Shishido that you thought the Grahams would have wanted you to have the
Sea Wind
, is that correct?”

“The problem with that conversation was he was asking me questions that I could not answer honestly without placing Buck in jeopardy, so I came out with certain responses. Did I think that Mac wanted me to have that boat? No, I knew Mac wanted his sister to have the boat.”

“I understand that. But at some point in that conversation, you do admit telling Agent Shishido that you rationalized the Grahams would have wanted you to have that boat. Whether that statement was true or not, you did make that statement to Agent Shishido.”

Jennifer grimaced slightly.

“Yes.”

“And you didn’t mention to Agent Shishido the will that you had discovered on the boat. Isn’t that right?”

“I probably didn’t. I don’t recall mentioning it.”

“Telling Agent Shishido about your discovery of the will would not have impaired Mr. Walker’s ability to escape, would it?” the prosecutor asked, leaning forward.

It was a good question, but Jennifer was prepared.

“No,” she said. “But I knew that the will didn’t give me any legal right to that boat. So why would I tell him about it?”

“On direct examination, I believe you indicated that it made your mind feel a little bit easier that you had found the will,
^*
and seen in the will that Mac at one time wanted someone to have his boat in certain circumstances.”

“But I didn’t feel that the will was any justification for us keeping the boat, not legally. Not morally.”

“You testified on direct examination that you weren’t sure where you were going after you left the Ala Wai yacht harbor.”

“Yes.”

“Do you recall Mrs. Wollen saying that she had asked you where you were going, and you told her the South Seas?”

“I could have easily told her that,” Jennifer answered. “I don’t recall.”

“When you testified in your theft trial, you indicated to that jury that you were going from the Ala Wai to the mainland to return the boat to Mrs. Muncey.”

“Yes.”

“And that was a lie. Correct?”

“Ultimately, I did want to get the boat to Mary Muncey,” she said firmly.

“Was it because it would possibly have been a defense to the theft charge that you told that jury that you were returning the boat to Mrs. Muncey?”

Enoki was zinging Jennifer now. My having brought out the matter on direct examination could take out only some of the sting, not all.

“No. It was because that’s what I knew should be done. And that’s what I would have done if it was my choice to make.”

“Okay. So you deny that you were setting up the defense of ‘return of property’ by saying to that jury that you were returning the boat to Mrs. Muncey.”

“I deny that, yes.”

The prosecutor asked Jennifer if she had ever considered the possibility before leaving Palmyra that by some remote chance the Grahams had got lost and were perhaps injured and alive somewhere on the atoll.

“I would never have left Palmyra if I thought there was any chance that Mac and Muff were there.”

“So you were—as of the time you left Palmyra Island—you were absolutely positive in your own mind that they had both died.”

“Yes.”

With that, court adjourned for the day. Jennifer had tasted only forty-five minutes of a cross-examination that would resume first thing in the morning.

Adjournment at this point in the proceedings was a break for the Government. Enoki had the rest of that afternoon and all night to prepare for his final assault on Jennifer’s credibility.

9:37
A.M.
, T
HURSDAY
,
F
EBRUARY
20, 1986

E
NOKI ADVISED
the court outside the presence of the jury that the Government intended to call a rebuttal witness at the end of the defense’s case and wanted to be able to cross-examine Jennifer now on the witness. He added that he assumed the defense would object to the testimony of the witness.

Indeed, we
did
object. When Enoki handed over an FBI 302 report just the previous afternoon—while I was still questioning Jennifer—Len and I had seen immediately what the Government was up to, and we both knew that the law did not permit it. But since we didn’t have the legal citations to the cases on this point, Len went to the library that night for supporting authority prohibiting the prosecution from pulling this witness out of the hat at the eleventh hour.

Enoki told Judge King he wanted to call to the stand one George Gordon, a resident of Hawaii who claimed he met Jennifer Jenkins in a bar on the Big Island in 1975, shortly after her boat-theft conviction. In his interview with FBI Agent Hal Marshall, Gordon claimed that he and Jennifer had been drinking together, and during the course of the evening she had made several remarks about the Palmyra case.