And the Sea Will Tell (71 page)

“This isn’t a theft trial, so now she can admit to you that she lied about planning to return the
Sea Wind
to Mrs. Muncey directly from the Ala Wai. So, she does admit it. But that doesn’t make her testimony truthful in this trial either. It’s kind of like, if you would, peeling off layers of a story—it’s like taking one mask off and finding another one underneath. And you can take that one off and there’s another one there.

“Remember that she sat in the very same place—the witness chair—took the same oath eleven years ago, and told people just like yourselves all those lies that she is now admitting. And she certainly didn’t tell them that those were lies. And all she’s doing in this trial, ladies and gentlemen, is covering up a murder instead of a theft. She can now admit the lies that went to the theft because she’s not on trial for that here. I would ask you not to fall for this series of lies that she’s been making since 1974.”

Characterizing Jennifer’s version of what happened on August 30, 1974, and her diary entry for that date as unworthy of belief, Enoki concluded: “What remains is the August 28th arrival of Miss Jenkins and Mr. Walker, in the darkness, at the Grahams’ boat with both of the Grahams there, bearing a most unlikely gift of food. An event that is not mentioned at all in that diary. The fact remains that Muff Graham was murdered, and the last persons that were there were both Miss Jenkins and Mr. Walker. They both had the means, the motive, and the opportunity to commit murder. And Miss Jenkins, the only one that’s on trial here, certainly has not provided a believable explanation of the evidence and events that occurred there.

“One can only conclude that the cake she made in the depth of their food shortage was for the purpose of setting up the boarding of the
Sea Wind
, and the eventual murder of Eleanor Graham.

“We’re talking not about the nonviolent woman that she claims she was, but one who showed no hesitation to assist Mr. Walker in whatever he did. And she immediately went on to another man who shot and killed someone else in California.

“The evidence shows in this case that Mr. Walker and Miss Jenkins found themselves in a position where killing was necessary to get off that island with the security they wanted.
There is no evidence to suggest that Miss Jenkins would hesitate to help Mr. Walker in that endeavor
.”

During Enoki’s summation, Jennifer alternated from locking her eyes on him to staring grimly at the tabletop, as she was doing at this moment. Not once during his argument had she looked into the faces of the men and women who would decide her fate.

“It is time, after eleven and a half years,” Enoki now concluded with unmistakable conviction, “that you find Jennifer Jenkins guilty of murder.

“Thank you.”

Enoki had given a good opening argument, and his obvious sincerity and belief in his case were definite pluses. If there was a weakness in the prosecutor’s argument, it was that he failed to draw any new or otherwise arresting inferences from the evidence. Though he effectively reminded the jury of all the points which made his case strong, I doubted he had further strengthened the prosecution’s case against Jennifer by causing the jury to reflect, “That’s a very good point. I never thought of that!”

I could only hope the jury wasn’t thinking that there was no need for any “new thoughts” about Jennifer’s guilt—that, like the Walker jury, they already had more than enough.

I
T WAS NOW TIME
for the defense’s summation. To me, summation is the most important part of the trial for the lawyer, the climax of the case. As the Roman historian, Tacitus, said: “The breastplate and the sword are not a stronger defense on the battlefield than eloquence is to a man amid the perils of prosecution.”

Usually, the very first thing I think about when I get on a case and begin to learn the facts is:
what
am I going to argue, and
how
can I best make the argument to obtain a favorable verdict? In other words, I work backward from my summation. Virtually all of my questions at the trial, and most of my tactics and techniques, are aimed at enabling me to make arguments I’ve already determined I want to make.

In fact, before the first witness at a trial has even been called, I’ve usually prepared most of my summation to the jury. As soon as I learn the strengths and weaknesses of my case, I begin to work on how I’m going to argue these strengths, and what I’m going to say in response to the opposition’s attacks on the weaknesses. Getting an early start on my summation, and continuing to expand and modify it during the trial, gives me ample time to develop arguments and articulations.

A great number of trial lawyers do not feel that final summation is the most important part of the trial. And I have never really understood why.

In life, if one wants someone else to come over to his viewpoint, isn’t it all-important
what
one says and
how
one says it? Is a trial any different? Isn’t the lawyer trying to convince someone, in this case, the jury, of the rightness of his cause? Therefore, shouldn’t most of his preparation and efforts be directed toward this final appeal to the jury?

Not so, say many experts. As Louis Heller, a former justice of the New York supreme court and before that a prominent trial lawyer, writes in his book
Do You Solemnly Swear
, “An address to the jury should be
extemporaneous
and reflect spontaneity.”

In my opinion, a summation must either be written out or set down in a comprehensive outline. The problem with even an outline is that although all the points the lawyer wants to make are there, he does
not
have the all-important articulations; that is, he does not have his points expressed in the most effective way. It’s simply not possible to powerfully articulate a great number of points, one immediately following another, extemporaneously. There
is
a best way to make a point, and to find it takes time and sweat on the yellow pad. But whether one should write out one’s summation or put it into an outline, it has been my experience that the majority of trial lawyers—even many high-priced ones in major, nationally publicized criminal trials—do neither, addressing the jury after scandalously little preparation. Far too often this results in their delivering arguments which are disjointed and sterile in articulation, and which, most injurious of all to their clients, omit a number of salient facts and inferences.
^*

In a complex trial involving many witnesses and thousands of pages of transcript, to discuss the highlights and nuances of the case, draw the necessary inferences, and in the most telling sequence, always seeking simplicity and clarity of expression, requires an enormous amount of written preparation.

The one advantage in arguing extemporaneously is to be able to talk with the jury eye to eye, with the candor of spontaneity. But if a trial lawyer is willing to put in the hours, he can have such a grasp of his written or outlined argument that, like an actor on stage whose lines flow naturally, he can deliver it to the jury giving the appearance of spontaneity. (Mark Twain knew whereof he spoke when he said that “it takes three weeks to prepare a good ad lib argument.”) If I’ve had adequate time to prepare, I only have to glance at my notes sparingly. I can look at one word on a page, and the whole page is vivid in my mind.

Final argument is nothing more than a speech, and I know of no generally accepted great speech in history that was not carefully prepared before it was delivered. Lincoln’s Gettysburg Address consisted of only ten sentences. Of his 271 words, 202 of them were just one syllable. But these historic words went through five drafts and were the result of two weeks’ thought and preparation, handwritten on two pages that were in front of him as he spoke.

The conventional wisdom is that a summation should be succinct, focusing only on the main points in the case. Not only can’t a lawyer keep a jury’s attention for more than an hour or so, it is said, but discussing the smaller points only clutters and dilutes the thrust of the main arguments. I may be wrong, but my personal opinion is that this couldn’t possibly be a more serious mistake—in many cases, perhaps a fatal one. Juries, unaccountably, often base their verdict on (or are heavily influenced by) the most tangential, seemingly insignificant points. Just as in surveying the ocean bed “no rock or prominence can be left unnoted with safety to the mariner,” a lawyer should want to be heard on virtually every point in the case. Likewise with inferences. Though I don’t exactly put a bib on the jury and spoon-feed them, I also don’t assume they’re going to see everything I want them to see without my help. So often in life, things are only obvious once they are pointed out.

Moreover, I do not agree that it is difficult to hold a jury’s attention for more than an hour or so. In fact, it is not difficult to keep their attention for an entire day or two if the lawyer can deliver a powerful, exciting summation that is sprinkled with example, metaphor, and humor; and particularly when he makes it obvious to them that he has a lot of important observations to make about the case, and they can only fulfill the oath they took to reach a proper verdict if they listen to him closely—that is,
if he convinces them that they need him
.

I had put in a considerable number of hours writing, polishing, and going over the summation I was about to give. Curiously, I had formulated the broad conceptual structure of my argument while strolling through Boston Common one sunny Sunday afternoon shortly after I got on the case.

I was ready, and feeling, as usual, very confident. My confidence would manifest itself most clearly to the jury in the words I used, and the way I uttered them. No matter how weak my case is,
if I believe in it
, as I did here, my selection of words and intonation will suggest that it is the strongest case imaginable. And I mean every word I say. When delivering a summation, a trial lawyer has to be confident before a jury, or at least appear so. It is one of the most essential ingredients of a successful trial lawyer. If he is not confident, the jury will pick it up immediately—from the way he talks, the way he walks, the expression on his face; most of all, from the words he uses. And a lawyer cannot expect a jury to buy his cause if they detect that he does not believe in it completely himself. When a lawyer communicates clearly his passionate and sincere conviction in the merits of his client’s case, in a subliminal way he becomes, to the jury, an important
witness
in the case.

My style before the jury in summation is expansive. Leaving my notes at the podium (but not turning the page until I have covered every point), I move freely about the courtroom, raising my voice when in full rhetorical flight, and, some say, on occasion intoning like an itinerant evangelist preacher. And although I try to keep my grammar within shouting distance of Cambridge, I gesture with the energy of a bocce ball player in a Naples piazza.

The following—quoted and paraphrased—is a substantial portion of my final summation in the Jennifer Jenkins murder trial.

“J
UDGE
K
ING
, Mr. Enoki, Mr. Schroeder, Mr. Weinglass, ladies and gentlemen of the jury.

“This case, of course, has dealt with many issues—among other things, the sea and boats. I don’t know about you folks, but I’ve never had any meaningful, personal experience with either one of them, so I don’t know too much about the sea and boats. But I do know a little about the criminal law, having been a prosecutor in the Los Angeles County District Attorney’s Office for several years, and more recently, a defense attorney.

“And based on the evidence that came from that witness stand,” I said, pointing to the seat where so many witnesses had testified, “I have formed some rather strong opinions about this case and I’m going to share those with you.

“Before I do, however, I want to make a few brief comments about the jury system in America. I view it as perhaps the most priceless legacy we inherited from our legal ancestors, the British. When you stop to think about it, in America only a jury can cause a fellow human being to end up behind prison bars. For instance, unless a defendant in a criminal case gives up his constitutional right to a jury trial, no judge can find him guilty and place him behind bars. Even the President of the United States cannot put someone behind bars. Law enforcement—the police, the FBI, et cetera—they can put you in the poky, but if you’re not convicted in a court of law, they can’t keep you there. Only a jury made up of folks like you can cause someone to end up behind prison bars.

“So in a very real sense, the American jury is all that stands between the accused and his loss of liberty. And the realization of this is at once awesome and yet supremely reassuring. I think you can see at a glance the very high and delicate ground you occupy.”

I knew the five-inch stack of yellow sheets of paper on the table to the right of the podium might be daunting, if not appalling, to the jury—they might be thinking negatively:
Could there possibly be that much to say? And how long will it take?

“I know you are all eager to resume your normal daily life, and I don’t want to trespass unduly upon your time. However, in the interest of my client, and in the interest of justice, there are a considerable number of points I must go over with you in my effort to help you reach a fair and a just verdict.

“These yellow sheets here constitute my final argument to you. Now that looks like quite a bit,” I admitted, waving my hand at the stack, “but this is a
murder
trial, not a drunk-driving case; the lives of two precious human beings have been brutally snuffed out; the first legal proceeding in this case was instituted over eleven years ago; and based on the evidence that came from that witness stand, my client, Jennifer Jenkins, is innocent, yet the rest of her life is hanging in the balance. When you look at it from that perspective, one could almost say: ‘Is this all you have to say, Mr. Bugliosi? Is this all you have to say?’

“With respect to a just verdict, justice is the objective of our system of law. In this regard, I want to make what I perceive to be an important observation. I’m going to refer to the opposing side in this case as the prosecution, not the Government.
^*
The very word ‘Government’ implies that the United States government is out to get Jennifer Jenkins, and it’s not going to be satisfied unless she’s found guilty. Since we’re all citizens of this country, psychologically that puts a certain pressure on you, because you’re law-abiding people, and you don’t want to do anything that’s against your government.

“Because of the potential for this visceral inclination towards the prosecution, I want to provide you with evidence that if this inclination exists, it is unwarranted. That although the prosecution in this case wants a verdict of guilty, which is perfectly proper on their part, the United States government only wants justice, be it a guilty or a not guilty verdict.

“The United States Attorney’s Office, which is prosecuting this case, is under the U.S. Department of Justice, and the head of the Department of Justice is the Attorney General of the United States. On the fifth floor of the Department of Justice building in Washington, D.C., in the Attorney General’s rotunda, there is this inscription: “The United States wins its case whenever one of its citizens receives justice in the courts.’ The inscription does not say: ‘The United States wins only when a defendant is found guilty.’

“Talking about justice and our system of law, in our country, as opposed to most totalitarian nations, under the law a defendant is presumed to be innocent
unless
^†
the contrary has been proven beyond a reasonable doubt. Now these aren’t just fancy, theoretical words. This is a rule of law which has no exceptions to it, a legal jewel that has been cut and polished by the hard experience of centuries, and which has come down through the ages right here into this courtroom.

“And if any judge, or any jury, in any case throughout this land, ignores this strict rule of law, it would be a very serious violation of their respective oaths.”

After telling the jury that because of the presumption of innocence the prosecution has the burden of proving guilt, a defendant no burden to prove his innocence, I told the jurors that Judge King would instruct them before they commenced their deliberations that this burden of proof remains with the prosecution throughout the entire trial; that it never shifts to the defendant. “These are key words,” I said. “
The burden of proof never shifts to the defendant
.

“But a very strange—and I say ominous—thing has occurred during this trial. Without directly stating it—they can’t state it directly because they know it’s contrary to the law—hasn’t the prosecution, in a very subtle, clever way, tried to eliminate the presumption of innocence by shifting the burden of proof to Jennifer Jenkins? When all the dust has settled, hasn’t the entire thrust of the prosecution’s case been—in effect: ‘We don’t have to prove, Miss Jenkins, that you murdered Muff Graham. We’ve put you on the island of Palmyra at the time of the murder, and we’ve put you on the
Sea Wind
after the murder. Now,
you prove that you did not commit the murder
.”