And the Sea Will Tell (79 page)

“Most people, when they’ve been visited by any type of scandal, discover that their friends seem to vanish. They become social lepers. Not so with Jennifer’s friends. Why? Because these people feel they know Jennifer, and because they feel they know her, they know she couldn’t possibly have been involved in this monstrous act.

“The prosecutors, during their cross-examination of our character witnesses, implied by their questions that even if Jennifer was an essentially nonviolent person, in late August 1974 she was in a life-endangering situation, and therefore felt compelled to act in a violent way.

“But there’s no evidence of approaching starvation in this case with respect to Buck and Jennifer in late August 1974. We’ve already discussed that issue
ad nauseam
. I’ll close this issue with this quote from the transcript. This is a question by Mr. Enoki of his
own
witness, Mr. Bryden: ‘It’s also true that if one were on Palmyra, and if one was willing to eat what was there, you wouldn’t starve to death on Palmyra?’
That’s Mr. Enoki, the prosecutor, talking
. His witness agreed.

“So just what type of life-endangering situation was Jennifer confronted with on Palmyra that would have changed her character for nonviolence?

“What does all this character evidence mean?” I asked. “Well, let me put it this way. What would it have meant to you folks if in their rebuttal the prosecution had called witnesses to that stand who testified that Jennifer was a very aggressive person, prone to violence? Wouldn’t that have meant a heck of a lot to you? And if it would have, as I think it surely would, shouldn’t the evidence that she is nonviolent mean just as much to you?

“In our case here, although the prosecution was entitled, under the law, to rebut the testimony of the character witnesses for the defense,
they never called one single witness to do so
! And they were placed on notice that we intended to offer a character defense.

“I suggest that the most reasonable inference why they did not call any rebuttal witnesses is that even with the FBI as their investigators, they couldn’t find any. None existed. Even Houdini couldn’t pull a rabbit out of the hat when there wasn’t any rabbit in the hat.”

After referring to an instruction on character evidence Judge King would later give, I pressed forward.

“There are degrees of everything in life, ladies and gentlemen of the jury, including murder. Though the result of all homicides is the same—the person is equally dead—this was a
particularly villainous
murder. On a scale of one to ten, this was a ten, and I’ve prosecuted a lot of murder cases. We presented credible evidence from that witness stand that Jennifer Jenkins is a
particularly peaceful
and nonviolent person. So we’re dealing with the outer margins in both the type of crime involved and the type of person accused of committing that crime, making the probability even greater that Jennifer would never commit a crime such as this.

“The murder of poor Muff Graham was not a typical murder. What must have happened to Mrs. Graham when she was mercilessly put to death is so horrible that it’s difficult for the average mind to contemplate.

“And as if that ultimate horror were not enough, since the container is really a little too small for a human body—I know this is horrible, but we’re talking about murder now, and there’s a lot at stake here—maybe a chain saw or the like was used on Mrs. Graham. And then the fire, the attempted incineration of the body.

“What took place is chilling testimony to the capacity for absolute evil in some human beings. Whoever committed this incredibly horrendous murder—and I say Buck Walker and Buck Walker alone did it—had to have been rotten to the core. Rotten and bad and vicious right down to the soles of his feet.

“You’ve all heard the expression that a tree is known by its fruits. The thorn and the thistle do not bear delicious cherries. And I say that a life of compassion and peacefulness like Jennifer’s does not suddenly produce a harvest of unspeakable horror. I submit to you that the strong evidence we offered of Jennifer’s character for nonviolence is very meaningful evidence of her innocence.

“I guess one could say at this juncture in my argument, ‘If the prosecution’s case is as weak as you say it is, Mr. Bugliosi, aren’t you belaboring your point? Why continue to argue additional points?’

“That might be a valid conclusion if the rest of Jennifer Jenkins’s life were not hanging in the balance, and if there were not two other people in this equation. They sit stoically at the counsel table, taking notes. And when I get through, one of them, Mr. Enoki, is going to get up and tell you why he still feels you should convict Miss Jenkins. They’re not about to fold their tent and say, ‘Let’s go home. We agree with Mr. Bugliosi.’ They still intend to go on. And that’s why I must.

“In addition to, number one, the unscathed testimony of Jennifer, and number two, the uncontroverted testimony of the character witnesses, there are various pieces of evidence in this case that point to a consciousness of innocence on Jennifer’s part. And I want to enumerate them for you.

“Just as guilt leaves the psychological mark which we call consciousness of guilt, innocence leaves a mark we can call consciousness of innocence.”

I was about to attempt to turn the tables on the prosecution, using an argument that they (and Len Weinglass) didn’t think could possibly be made in this case—that beneath the topsoil indications of guilt in all Jennifer said and did, much of her conduct and many of her statements actually pointed, upon closer scrutiny, in the direction of innocence.

“When a person is guilty of a crime,” I began, “he acts the way we would expect a guilty person to act. Guilty. But now and then, even though the person is guilty, there may be one act of his that inexplicably and strangely enough appears to be the act of an innocent person. I’m not referring to a guilty person feigning innocence. That happens all the time. I’m referring to a genuine act that appears to be an act that only an innocent person would do. It’s not frequent that you will find this phenomenon, but now and then you might find one such act, and in rare situations, possibly even two or three such acts.

“But ladies and gentlemen, when time and time again, as I will shortly point out to you, a person acts in an innocent way, doesn’t it stand to reason that they
are
innocent?

“In our case here, although Jennifer did several regrettable things that were induced by the circumstances in which she found herself, on occasion after occasion she acted in a way that only an innocent person would have acted. Guilty people simply don’t do that. If they did, they wouldn’t be guilty.

“Some of the points I’m going to mention are not the kind that hit you over the head, as it were, with their obvious nature. However, though they are more subtle,
they nevertheless furnish us with snapshot glimpses of an innocent mind
.

“First, there’s Jennifer’s diary. If one committed a crime and made entries in their diary, I would think it would be for one of two purposes. Number one, to write to themselves; that is, for their own eyes only. If this were their purpose, chances are they would want to tell the truth. You can’t fool your own self.

“Obviously, there’s nothing in Jennifer’s diary stating or even remotely implying that she was involved in the murder of the Grahams.

“The second purpose would be to write the diary not for your own eyes, but for other people’s eyes; that is, to deceive, or to cover up, as Mr. Enoki says. And I say that if Jennifer were involved in these murders and made the entries in her diary for other people’s eyes, she obviously would have written them in such a manner as to try to eliminate all suspicion and cast herself in a good light. With that state of mind, if you know, for instance, that you’ve written whole paragraphs in your diary on common, everyday events, such as baking a cake, or a pie, or reading a book, as Jennifer did in her diary, you’re certainly not going to write
less
about the loss of human life!

“Jennifer wrote just one word, ‘Tragedy,’ about the apparent death of the Grahams. There’s simply no attempt by her to deceive, and thereby cover up. Why? Because she had nothing to cover up.

“Another point on this same issue. If Jennifer were involved in these murders and her diary entries were meant for other people’s eyes, wouldn’t she have dramatized her anguish over the death of the Grahams? Instead, there’s no attempt to dramatize in that diary.”

I now attempted to explain and possibly even turn to our advantage Jennifer’s September 4 entry (“We all grow fatter and fatter on ham and cheese and pancakes and turkey and chili and all the things we hadn’t had in so long”). Len felt the entry, just a few days after Mac and Muff’s death, was “dreadful. It contradicts everything Jennifer has said. It makes her look terrible.”

“The other characteristic we could expect her diary entries to have if she were involved in these murders and these entries were meant for other people’s eyes would be a tone of considerable sensitivity.
She never in a million years would have depicted herself as somewhat insensitive, as her entry about eating the Grahams’ food arguably comes across as being. Never in a million years
.”

But even given the surface insensitivity of Jennifer’s September 4 diary entry, I asked the jury to ponder for a moment.

“What was Jennifer supposed to do? Not eat the Grahams’ food? Let it rot, and try to live off the fish in the ocean?”

Although, if I had had my druthers, I would have preferred not resorting to it, there was one somewhat indelicate way to force the jury to personalize what Jennifer had done, a reality I felt virtually every juror had experienced.

“If you still feel it was insensitive, what about the rather common phenomenon of even close relatives of one who has just been buried eating the finest foods at family gatherings just an hour, if that, after the funeral? Is that a fact, or is that not a fact? Think about it. This is not to suggest that there is no deep and profound grief. But the eating of fine foods at this seemingly inappropriate time is a fact.

“Looking from a different aspect at that September 4 diary entry about enjoying the Grahams’ food, if Mr. Enoki argues that it shows no grief on her part over what happened to the Grahams, then what about the August 30 entry, written by the same person, Jennifer, that says, ‘Tragedy’?

“If he argues that the September 4 entry really reflects the essence of Jennifer, the way she felt, then why shouldn’t the August 30th entry also really reflect the way she is and the way she viewed the death of the Grahams? And if she viewed their deaths as a ‘tragedy,’ she wouldn’t be likely to be the murderer, would she? In other words, Mr. Enoki cannot pick and choose.

“I say that when we apply common sense and simple logic to our analysis of the diary entries, the very nature of those entries is circumstantial evidence of innocence. If Jennifer Jenkins were guilty, those entries would not read the way they do.”

Another point indicating a consciousness of innocence, I observed, was that if Jennifer had been involved in the murders and had fabricated her story about believing that the Grahams had met an accidental death when their Zodiac
capsized in the water
of the lagoon, “even a child would know it would be much more consistent with her fabricated story if she had said they found the capsized dinghy somewhere in the
water
of the lagoon. But Jennifer, from the very beginning, has said that no part of the dinghy was in the water. The fact that she did not say they found the Zodiac in the water shows an unmistakable consciousness of innocence.

“She told you she found the Zodiac on the beach, with no part of it in the water, because that’s exactly where she found it. And Jennifer’s testimony is corroborated by the prosecution’s own witness, boat expert Ken White, who testified that there was no salt in the Zodiac’s motor. It was completely clean. The reason for this, of course, is that the dinghy never overturned in the water of the lagoon.

“The most reasonable inference is that Buck Walker overturned the dinghy himself on the shore, after dropping the bodies in the lagoon.”

To be extra convincing to Jennifer, why, I asked, didn’t Walker overturn the dinghy in the water of the lagoon? “If he had, how was
he
supposed to get to shore? By hitching a ride from a passing shark? Remember, people feared the sharks in that lagoon.”

There was further consciousness of innocence, I argued, regarding the Lorraine Wollen incident: “If one had been involved in the murder of the owners of a boat, would one be likely to invite a casual acquaintance—someone you obviously could not expect to protect you from the authorities—on board that boat, as Jennifer did with Mrs. Wollen? Particularly when the pictures of the murder victims are still on the wall, and it’s at least possible that the visitor will ask, as Mrs. Wollen did, who they are? I don’t think so.

“Also, Jennifer wanting to keep pictures of the Grahams on the boat, and otherwise keep the interior of the boat as they left it, is evidence of how she felt about them. That obviously is not the state of mind a killer would have toward his victims. All of this reflects a consciousness of innocence.

“Some of you might say, ‘Well, Buck was also on the boat when Lorraine Wollen came over. We know Buck is guilty, yet he also apparently went along with those pictures of the Grahams being on the wall. Doesn’t that dilute the argument?’

“Well, number one, Jennifer, not Buck, invited Lorraine Wollen over. Secondly, Buck had a real problem. As much as he could afford to, he had to appear innocent to Jennifer. He had to maintain the myth that the Grahams had died an accidental death. I think we can assume that if Jennifer had been involved in these murders with Buck, those pictures would have come off that wall.

“Going on, there is more evidence showing a consciousness of innocence on her part. And remember, I believe that other than a guilty person feigning innocence, guilty people don’t act innocent. They act the way they are—guilty.