And Never Let Her Go (73 page)

“Not from me, they hadn't,” Tom agreed.

“And unless Gerry told the authorities what happened to Anne Marie Fahey, the Fahey family
still
would not know?”

“Oh no, oh no, oh no,” Tom disagreed. “If Robert had called me back, if Robert had responded to me when I asked for Bud Freel, when I asked for Kim Horstman, if Kim had come to my mother's home in Stone Harbor when I asked her, it would have made a world of difference.”

Tom complained because the Faheys were suing his family for “some thirty million dollars or whatever the hell the number they're throwing around is.”

“Well,” Connolly said,
“you've
actually talked about a book or a movie deal for this case, haven't you?”

Tom shrugged. “In jest,” he said. “I have no intention of writing a book.”

Connolly held out a letter Tom had written to Debby on January 29, 1998, a year earlier. “On page nine of this letter, twelve lines down, the sentence begins with ‘Tonight—' ”

“Yes.”

“You write, ‘I will focus on the book and movie stuff after the hearing next week,' right?”

“That's what it says.”

“No further questions, Your Honor.”

Later, on re-cross, Connolly asked Tom about why he had been so insistent that Anne Marie's best friend, Kim Horstman, join him at the shore and about why he had lied to her.

“By getting her to meet with me in person,” Tom explained, “or trying to get Robert to meet with me in person, we could begin to undo everything . . . and by the way, what is the lie?”

“Well,” Connolly explained, “you told her to come to Stone Harbor so you could put your heads together so you could figure out where Anne Marie might be.”

“Yeah, that part,” Tom said, still failing to see a lie.

“You knew where Anne Marie was.”

“That part, yes,” Tom admitted. “But I figured that was the
only way I could get her to attend in order to, again, move against the greater evil.”

“The greater evil being?”

“What had happened to Anne Marie.”

T
HE
jury had now seen two sides of Tom Capano. Either he was the weak and vulnerable—but charming—gentleman the defense wanted them to see, or he was the self-absorbed, conscienceless sociopath the state had described, a complete and utter narcissist.

Morale was low in the defense camp. Gene Maurer was away from the courtroom doing paralegal work much of the time. Tom and his attorneys had little connection to one another; their disagreements were reflected in the way they rarely conferred anymore. He still wanted them to pull out all the stops and use his “chain-saw” approach, and they continued to try to dissuade him, even though it was like shouting into the wind.

There was a flurry of interest when the defense called a surprise witness. Kim Johnson was an attorney's wife who lived with her family across the street from Debby. In the past week, she had contacted the defense attorneys to say she had information about the case. On the stand, she testified that she had seen Debby MacIntyre drive into her driveway late in the evening sometime in June 1996. “I heard her kind of issue a terrible kind of an anguished sob as she kind of fell out of the car, and then she quickly ran to the side door of her house.”

Johnson said she had mentioned what she had seen and heard to her husband. She could not be sure of the date, however, but tried on the witness stand to reconstruct it by remembering when her children had left for summer camp, almost three years earlier. She thought it had been close to July 4, and after the eleven o'clock news, on a weekday. Johnson admitted that she had never told the authorities about hearing Debby sob.

Ferris Wharton cross-examined her. He asked Johnson about pear trees that had been trimmed in the interim, and taller trees whose leafy branches had hung over Debby's driveway in June 1996, which would have obscured much of her view. She testified that she had been able to see and hear someone 205 feet away—a distance more than the length of three courtrooms. More important, Wharton asked the witness about what kind of light fixture there had been over Debby's garage door. Johnson told him the fixture had two bright bulbs in it, allowing her to see quite well. And she
spoke of seeing a “flash of blond hair” as the sobbing woman passed beneath them.

Wharton knew that on the night Anne Marie died the light fixture on Debby's garage had not been the double-bulb motion-detector setup it was at present; until January 1997, it had been an old-fashioned porcelain socket with a single low-watt bulb. Moreover, Johnson admitted that, only the night before her testimony, she had refused to let the four investigators look out her window to determine what they could see from that viewpoint.

“I said I would really prefer that you not do that because my sons are in the next room,” she said.

“Your husband suggested that maybe only one person go up?”

“Um-hmm.”

“And you still declined?”

“I believe I did because I was concerned for my sons, who knew nothing of this.”

Johnson's testimony was rendered virtually useless. No one would ever know what she might have been able to see or hear from her window, far from Debby's driveway. Both Debby and her daughter, Victoria, had blond hair, and Kim Johnson said she hadn't seen a face. She had no good reason for not coming forward sooner. Her husband listened in the back of the courtroom while she testified that he didn't remember her telling him about any incident that involved Debby MacIntyre sobbing in the night.

T
OM
'
S
sister, Marian, and brother-in-law, Lee Ramunno, testified next, principally to undermine Gerry's credibility. Ramunno was garrulous and Marian obviously torn as she denigrated one brother in her efforts to save another.

Tom had been insistent that his attorneys call his mother to the witness stand to further vilify her youngest son, but they would not. Beyond compassionate regard for a woman whose heart condition made her health tenuous, Joe Oteri told Judge Lee, “We're not going to call her, for reasons of strategy permitted to all of us, not permitted to Mr. Capano. I want the record to indicate we're not calling her. It's something the four of us are in total agreement on, and Mr. Capano can do what he wants later.”

The last defense witness was Angel Payne, a physical education teacher at Ursuline Academy. She testified that Katie Capano had, indeed, “fainted or fallen down” during a basketball game in the spring of 1996, when she was in the eighth grade.

“Do you recall whether Mr. Capano responded to the school when it happened,” Gene Maurer asked, “and what his reaction was?”

“Not specifically,” Payne said, offering a vague answer. “I know that I've talked to him about his daughters, and anything that would happen, I would call him.”

“And his reaction would be?”

“He would be very upset and probably start to panic as most parents would.”

Ferris Wharton had no questions to ask of the young teacher.

Wharton and Connolly then called a number of rebuttal witnesses to answer questions raised during the defense's case, among them Tom Bergstrom, Debby's attorney. Since Tom had described Bergstrom repeatedly as “the Malvern misanthrope,” “the slickster,” and “loathsome pond scum,” the prosecutors thought the jurors might like to see the real man. Bergstrom came across as what he was: a kind man who was concerned about and involved in the case solely to protect his client. (Although he didn't advertise it, Bergstrom had not billed Debby for all the hours he spent on her case.)

Kim Horstman came back on rebuttal to testify that Tom had, indeed, told her in late May 1996 that his daughter Katie had undergone surgery to remove a brain tumor a few months earlier.

“And did he indicate anything about her recovery from surgery?” Connolly asked.

“Yes,” Kim answered, “he said that she was doing much better and was going to be able to go to Europe with her uncle Lou that summer.”

Now IRS agent Ron Poplos testified. Poplos had helped the investigators as they traced Tom's expenditures, deposits, and withdrawals, but he had also volunteered for a lot of the tiresome legwork. He said he had talked to the managers of a number of hardware stores, looking for the origin of the chain and padlock used on the cooler, and had never been able to trace them—particularly not to Brosius-Eliason. And it was Poplos who had spoken, however briefly, to Tom's mother, Marguerite. Since Tom had shouted at the jurors telling them to check on how badly his aging mother had been treated, Connolly asked Poplos about that.

“Did you serve a subpoena in August of 1997 on Marguerite Capano?”

“Yes, I did—It was on August twelfth,” Poplos said. He had gone to her beach house in Stone Harbor.

“What were you wearing?”

“Blue jeans and a sweatshirt.”

“And did you see Mrs. Capano?”

“Yes, I did,” Poplos said. “I went around to the back of the house. I didn't see a door at the front—you know how beach houses are; they face the beach side. There was a glass-enclosed area open—a glass sliding door. And I knocked on the door. And she came to the door and I asked if she was Mrs. Capano. She said, ‘Yes.' ”

Poplos handed her the subpoena, she looked at it and shook her head, and then she closed the door. Poplos said he had been polite to her and that he had never even shown her his badge. And that was the extent of the harassment of Marguerite Capano by the federal investigators.

I
N
the thirteen weeks of this seemingly endless trial, the state had presented more than a hundred witnesses and was nearing the end of its long list when Bud Freel recalled for the jury the day in July when he had driven to Stone Harbor to see his friend of twenty years, Tom Capano. Bud and Kathleen had dated for six years, the Faheys were like family, and Tom was an old friend. It had seemed possible at the time that Freel could help them all by persuading Tom to talk with the police. But despite his promises, Tom never had. Thereafter, Bud had had nothing to do with him. When he left the witness stand, he walked past the defense table, never glancing at Tom.

Tall and dignified, Robert Fahey, Anne Marie's big brother, was the last witness in the prosecution's rebuttal. He read the letter he and Brian had composed and hand-delivered to Tom on July 24, 1996. They had begged him to give them the consideration that he would want if one of his own daughters was missing.

When Joe Oteri asked him if a person should always do what his lawyer told him, Robert said, “No.”

“You think a person should hire a lawyer, pay him money, and then not
listen?”
Oteri asked, perplexed.

“I believe that happens,” Robert said. Smothered laughter rippled in the courtroom; of late, Oteri's client had scarcely been listening to him.

Oteri suggested that Tom had only been protecting someone else. “The only thing you wanted was what
you
wanted,” he said to Robert Fahey, returning to the subject of his letter to Tom, “and not what he might be doing to help someone else?”

“The only thing I wanted was my sister back, sir.”

O
N
Wednesday, January 13, 1999, Colm Connolly would speak to the jurors for the last time before they retired to debate the guilt or innocence of Tom Capano. Final arguments reflect the attorney who makes them. Some are emotional and some are cerebral. Connolly was—at least in court—the latter. Although he had empathized as much as he could with the agony of Anne Marie's family, he felt that the best way to bring her justice was to present the facts, the inconsistencies, the obvious lies, the sad truths about her death, to this jury of six men and six women, and to ask them to use their own common sense as they made their decision.

All the details of this case were in his head, although he occasionally glanced at a thick binder that he and Wharton had prepared so he could make reference to certain letters and E-mail printouts. Connolly had lived and breathed the investigation for more than two and a half years, not from a desk in the U.S. Attorney's office but in the field, alongside Bob Donovan, Eric Alpert, and Ron Poplos. Two of his children had been born during that time, and the son who was a baby when he started was a boy now. Sometimes, for all of them, it seemed as if their lives
were
the investigation. As Alpert had said once, Christmases came and went and they had scarcely noticed.

There was deep emotion in Connolly's heart as he began to talk. Despite his studied indifference to Tom's histrionics and rages, Connolly knew his subject well. He viewed the defendant as a cruel and dangerous man. He reviewed all of the evidence that pointed to Tom's guilt. And out of the thousands of details, he asked the jurors to concentrate on five vital categories. “The most important piece of evidence is Gerry's testimony,” he said. “The second area of evidence concerns the cooler, the lock and chain. The third area concerns Deborah MacIntyre's testimony about purchasing the gun. The fourth area, I suggest to you, is the defendant's demeanor on June twenty-eighth” (the day after the murder).

“The final area of evidence,” Connolly submitted, “is the defendant's testimony itself. It is not credible. His demeanor on the stand is consistent with the person Anne Marie Fahey described to her psychologist and friends. It is consistent with the person who wanted to control every aspect of Debby MacIntyre, and it is consistent with the person who would not lie still as Anne Marie Fahey embraced Michael Scanlan.”

For three hours and forty-seven minutes, Connolly presented to the jurors every stitch of the net that he and the other investigators had woven to drop, finally, over Tom Capano. And the cumulative
facts and Connolly's ability to link those facts together brilliantly produced the devastating profile of a man for whom the truth was only relative as it suited him. Connolly reminded the jurors that Tom himself had admitted that he had told more lies than even he could count. He was a man who was quite probably a complete narcissist—and a murderer.