And the Sea Will Tell (27 page)

Why was there always yet another layer of truth to be revealed? Another shadow in this hall of mirrors? After one particularly frustrating session with Jennifer, I admitted to my wife over a late-night snack that perhaps I was having so much trouble because I was “trying to fit a square peg into a round hole.”

Gail’s frank response was alarming. “I’m not sure I trust her.”

“Why not?”

“When I met her, she didn’t look me in the eye.”
^*

“That doesn’t make her a murderer, honey.”

“I know. But it’s more than that. I keep wondering how anyone could have been on that tiny island while Buck Walker was killing those people and not know anything about it. Where was she?”

“On the
Iola
.”

“Doing what, Vince? Baking bread?”

“As a matter of fact”—I was almost too embarrassed to say it—“she was, among other things, baking bread on the day Mac and Muff disappeared.”

Gail said nothing more. She didn’t have to. Her expression of utter disbelief said it all.

When my own wife, who is as level-headed as anyone I’ve ever known, suspected my client, I knew I had problems.

Gail was hardly alone in questioning Jennifer’s innocence. A July 1981 public opinion survey in Hawaii commissioned by the Honolulu law firm of Hart and Wolff, which Leonard Weinglass hired to handle matters in the islands, showed how strongly the public there felt about the Palmyra case. In the survey, 205 adults were selected at random from lists of registered voters and questioned by telephone. Ninety-one percent of those surveyed said they had read or heard about the case of a sailing couple disappearing on Palmyra Island. Clearly, the Palmyra murder case had become Hawaii’s most sensational crime story since the Massie murder case in 1931 (Clarence Darrow’s last big case, and the basis for the novel and television film
Blood and Orchids
). To the key question, whether “the couple charged with the Palmyra murder” was guilty or innocent, the tally was a landslide. A staggering 95.8 percent believed
both
Buck and Jennifer were guilty of murder.

Not only did the unusual circumstances point irresistibly to the guilt of both Buck and Jennifer, but the media coverage only exacerbated the problem. Hitler didn’t get much worse press in London than they got in Honolulu.

Obviously, there was an early defense motion for a change of venue to the mainland, where, away from the inundation of publicity, the chances of a fair trial would be increased. At a critical three-day July 1981 hearing in Honolulu before U.S. District Court Judge Ernest M. Heen, Dr. Jay Schulman of Columbia University, a recognized authority on public opinion, was called to the stand by Len Weinglass. Schulman founded the National Jury Project, an organization devoted to research and consultation on all facets of the American jury system, and for many years has been one of the nation’s leading consultants to defense attorneys, prosecutors, the U.S. Justice Department, and Congressional subcommittees examining our judicial system.

Schulman testified that the 95.8 percent prejudgment of guilt was by far the highest he had ever heard of in a criminal case. It was “astronomically high,” he said, even compared to other high-visibility cases. He cited the Patty Hearst case; polls preceding her trial had indicated only a 15 percent prejudgment of guilt. (And Patty Hearst, of course, was found
guilty
.) Schulman speculated that the reason for the low 15 percent in the Hearst case was the possibility of an alternative explanation for her conduct (i.e., that she had been brainwashed), which was lacking in this case. Schulman believed the unique facts of the case were such that the prosecution wouldn’t have to prove guilt, as they are required by law to do.

“I think she [Jennifer] would have to prove her innocence before a jury could acquit her,” Schulman told Judge Heen.

Testifying that he had examined hundreds of articles published in Hawaii’s newspapers and reviewed transcripts of dozens of TV and radio news stories about the case, Schulman concluded: “My opinion is that the publicity in this case has reached almost every eligible juror in Hawaii…. It is a macabre story, a bizarre story. It has all the ingredients of a fantastically interesting soap opera.”

Noting that people frequently don’t read articles to the end, and often forget what they do read, Schulman said this case was different. “It so much captured people’s imagination that they read it through and they assimilated a great deal of the total circumstances reported.” The story “excites and courts the imagination. It offers the imagination the chance to wonder, to infer, to develop some closure of its own as to what happened.” Coupled with “the paradisiacal romantic image of this remote island where all of this took place,” Schulman said he could understand why his survey showed that people had “the highest recall of details of any case I have ever encountered.”

On cross-examination, Assistant U.S. Attorney Elliot Enoki, opposing the change of venue for Jennifer’s case, asked if it wasn’t true that the “majority” of publicity had to do with Buck Walker—“his prior convictions for drugs and other things, his escape and being a fugitive?”

“No,” Schulman answered. “Buck Walker and Jennifer Jenkins are always paired.
There is an inescapable conclusion that both of them were involved
.
^*
Because of this twinning phenomenon, in every piece of publicity on this case, Jenkins and Walker are twins: Jenkins is Walker’s girlfriend; they had an association before they sailed to Palmyra; their association was obviously close on Palmyra; and they sailed the
Sea Wind
back to Honolulu together. The publicity has linked Jenkins and Walker constantly.” Schulman’s expert opinion was firm: it would be impossible for Jennifer to receive a fair trial in Hawaii.

Judge Heen disagreed. On August 12, 1981, Heen, a former U.S. Attorney for Honolulu, orally denied the change of venue motion.

On March 12, 1982, U.S. District Court Judge James M. Burns, Heen’s successor, issued a written order again denying a change of venue for the Palmyra murder case.

But at the same March 12 session—four days after I first interviewed Jennifer and before I joined the defense as co-counsel—Judge Burns (as Judge King had done for the theft trials in 1975) granted Leonard Weinglass’s motion to sever her case from Buck’s. There would be separate trials for Buck and Jennifer.

A
YEAR-LONG ROUND OF LEGAL
delays began September 7, 1982, when Judge Burns denied Leonard Weinglass’s double-jeopardy motion to dismiss, which was first presented to the court before I entered the case. I agreed the decision should be appealed, though I held little hope for success.

Len’s major contention was that Jennifer had already been prosecuted in 1975 for the theft of the
Sea Wind
. He argued that since theft is a necessary element of the crime of robbery, prosecuting her now for a robbery-murder would constitute a
second
prosecution of the theft. Such a prosecution was barred, Len argued, by the double-jeopardy clause of the Fifth Amendment to the U.S. Constitution.

In opposition, prosecutor Elliot Enoki argued that an exception to double jeopardy exists where evidence of the main felony (murder) was not available at the time of the earlier prosecution. He noted that although authorities had long
suspected
that Jenkins and Walker were somehow responsible for the disappearance of the Grahams, the discovery of Muff’s remains—powerful evidence that a murder had occurred—happened seven years
after
Jennifer’s boat-theft prosecution. Therefore, Enoki claimed, the murder charge was in fact a new charge based upon that new evidence and did not constitute double jeopardy.

On May 31, 1983, the Ninth Circuit Court of Appeals denied Len’s appeal, and six months later, the U.S. Supreme Court “denied certiorari” (refused to hear the matter), effectively putting to rest the double-jeopardy issue.

Several trial dates had been pushed forward while we awaited the outcome of the double-jeopardy appeal. On January 19, 1984, U.S. Magistrate Bert Tokairin convened a hearing in Honolulu to set new trial dates. I did not attend the session, but all three lawyers who did asked for continuances: prosecutor Enoki said he needed another six months to prepare for trial; Partington, Walker’s attorney, had a five-month Army Reserve active-duty obligation beginning in May; and Len was involved in a criminal proceeding back East. (Kathy Boudin, a Weather Underground radical he represented, was charged with robbery and murder in the $1.6 million 1981 holdup of a Brinks armored truck in Rockland County, New York, that left two policemen and a Brinks guard dead.)
^*

After both defendants, through their attorneys, waived their right to a speedy trial, Tokairin set January 15, 1985, as the date for the Walker trial to begin, with Jennifer’s trial to start immediately afterward. We were advised that the prosecution would seek sentences of life imprisonment for both defendants.

Meanwhile, Len continued his effort—parallel to that of Walker’s attorneys—to win a change of venue. The people of Hawaii had already tried and convicted both defendants.

M
OST PEOPLE
on bail for the worst crime of all, murder, would have trouble getting a job shining shoes at a bus terminal. But Jennifer, despite the murder rap hanging over her head, had done remarkably well for herself. Recently promoted to branch manager of a Los Angeles telecommunications firm, she supervised six employees.

For her theft conviction, she had spent seven months (April to November 1977) at Terminal Island Correctional Institution off Long Beach, California, followed by ninety days in a Santa Barbara halfway house. At this low-security facility, she had been allowed to work outside as a sales clerk during the day. She also enrolled at the University of California at Santa Barbara, and in January 1978, as part of a work-study program, began a part-time job at the Center for the Study of Democratic Institutions, a well-known, left-leaning intellectual think tank. In February, when she was released from the halfway house, she quit school and took a full-time job as a secretary at the center. That job ended in January of 1979, but she immediately began working as an executive recruiter for the firm of John Lawrence and Associates in Van Nuys. (An uncle was part owner.) In October 1980, Jennifer had purchased a comfortable two-story tract home for $100,000 in the scenic chaparral country of Simi Valley, a middle-class bedroom community northwest of Los Angeles with the highest per capita population of police officers in L.A. County. Interested in a job with greater opportunities for advancement, Jennifer joined the telecommunications firm in September 1982, selling expensive business telephone systems. She had a mortgage payment, a new car, and a good-paying job. I considered using the following argument to the jury: Would she have been as likely to devote the physical, mental, and emotional energy necessary to achieve such career success if she knew she was guilty of murder and would, in all likelihood, be convicted one day and spend perhaps the rest of her life behind bars? But I had no sooner contemplated using that argument than I realized that another interpretation was possible.

The prosecution could well argue in rebuttal that Jennifer might have been able to put the two murders behind her and go about making her way in the business world because she was extremely cold-blooded, perhaps even a sociopath who didn’t think she’d done anything wrong and therefore had no feelings of guilt. (It is widely recognized that sociopaths guilty of crime are frequently able to pass polygraph examinations.) This entire point, I decided, might at best end up being a wash, and at worst suggest the possibility of some lethal quirkiness in Jennifer’s personality rather than innocence.

During the double-jeopardy appeal and subsequent delays, I had continued working to prepare Jennifer for trial, developing a routine that varied little. Because she was now working quite a distance from my office, I would drive once or twice a month to her office after business hours—arriving after the worst of the rush-hour traffic and bringing with me a bag of the nut-and-raisin mix favored by many hikers. We nibbled on this trail mix—which we called “trial mix”—rather than take the time to go out to dinner. Further fortified by less healthful cups of coffee, we always worked well into the evening.

The dates we actually met, however, were never arrived at routinely. As often as not, she would call my office on the very afternoon of an agreed-upon evening session and cancel. One such call to my secretary, who came to expect them, inspired this note: “The princess slept on a pea last night. Has to cancel.” Cancellation often led to conversations like the following: “What about Monday night then, Jenny?” “Sorry, Vince.
Monday Night Football
is on.” Watching sports on TV, particularly her beloved Rams and Raiders, was a passion. “Tuesday night?” “I’m going over to my mother’s for dinner.” “Jennifer, the trial date is approaching, and we still have a lot of work to do. You act like you only have a drunk-driving case facing you in Honolulu.” “Well, okay, what about the
next
Friday night?”

I sometimes got the feeling that Jennifer was agreeing to meet and prepare her defense more as a favor to me, even though it was she who faced the prospect of life imprisonment. Was the reality too terrible to confront directly on the conscious level? Or had she at some level, particularly in view of her previous conviction, actually given up hope?

Whatever continuances were being sought and granted, Jennifer was invariably in favor of them. “Vince,” she explained once, “my career is going well and I’m enjoying life now. I can think of a lot better things to do than go to Honolulu to be tried for murder.” How, I asked myself, was it possible for someone facing a charge of first-degree murder to “enjoy life” and put what she faced in the back of her mind? I had gained the distinct impression from Jennifer that with all the granting of trial delays, she felt the case might somehow die of old age.

“Jennifer, this is a
murder
case,” I cautioned her. “It’s not going to fade away. There’s going to be a judgment day soon. That’s when you take the witness stand. And we’ve got to be ready.”

My stack of yellow legal pages with questions and answers for Jennifer kept growing. But she had yet to write a word on the pad I’d given her the night we met. Whenever I pointed this out, she would shrug, laugh, and say something like “Haven’t had the time. I’ve been so busy,” or “Other than when we meet, I try to put it out of my mind.” Her casualness continued to amaze me.

An attorney benefits from his client’s own helpful ideas and thoughtful insights. Jennifer had produced neither. Not once in nearly two years had she ever said, “Vince, I want you to check this out,” or “I was thinking about what we were talking about last time, and I remembered something else I should tell you.”

Yet despite the frustrations of preparing Jennifer for trial, on a personal level I still found her very likable, with an outgoing personality and ready sense of humor, and we invariably got along well together.

In fact, nothing in our encounters alerted me to the trouble I would have with her down the line.

O
NE OF
my main problems with Jennifer was her vague recollection of certain events, which caused her to vacillate and, more dangerously, introduced damaging inconsistencies that would certainly be exploited on cross-examination. Some inconsistencies were so subtle they only emerged clearly when I would discover that the lines of questioning I was preparing for her direct examination were taking me in conflicting directions.

There were several areas, however, in which Jennifer was consistent, and a few where she remained particularly resolute throughout the period of our trial preparation. For example, there was the question of Buck’s influence after the Grahams disappeared.

“Buck gave me three options,” she told me again and again. “I could sail away with him on the
Sea Wind
. I could go it alone on the
Iola
. Or I could stay on Palmyra by myself.”

She felt Buck left her no option other than to leave with him on a sailboat they didn’t own. “I didn’t want to stay on that island alone,” she explained, “and I was afraid to go by myself on the
Iola
.”

From my first talk with Jennifer back in early 1982, I knew there was a central issue I’d have to thread my way through. It had been apparent to me that Buck was the dominant party in their relationship. Not only didn’t this trouble me, I preferred
^*
this circumstance, so long as she hadn’t been completely under his thumb, which she assured me she was not.

If we couldn’t make it convincing to the jury that Jennifer could and would stand up to Buck, the jury might readily conclude that she had been influenced to go along with the murders, even against her natural impulses not to. I stressed to her how absolutely critical it was that we show the jury she had drawn lines in the sand with Buck.

I asked for examples. “Anything,” I said. “Even little things.”

She thought for a moment. “Well, one time when we were living in the cabin on the Big Island,” she said, “we got in an argument and he threw a plate of spaghetti at me and stormed out of the house. When he came back a few hours later, the spaghetti was still all over the wall and floor. I hadn’t touched it. He ordered me to clean it up, but I told him he would have to clean up his own mess. He did. Buck knew his limits with me.”

It wasn’t much, but we were headed in the right direction.

I
N EARLY
February 1984, Len Weinglass and I met to discuss trial tactics.

There is no other profession with as many members who have managed to fashion for themselves out of thin air such a mighty and jumbo-sized image as that of the trial lawyer branch of the legal profession. Almost humorously, hundreds of trial lawyers in various sections of the country are known as “brilliant,” “great,” “high-powered,” “silver-tongued,” and so on. One reason why this high regard is so very easy to come by is the strong myth that
successful
trial lawyers are
supposed
to be these things, when in reality, so much less is required to achieve success.
^*
(Many trial lawyers have these adjectives routinely applied to them who aren’t even successful, merely having been associated, if even in a losing way, with one or more high-visibility cases.) In fact, if the average prominent trial lawyer met his reputation out on the street, they wouldn’t recognize each other. Unfortunately, many clients have to learn about, and pay for this, the hard way.

When we finally got to trial, I was pleased to find that Len Weinglass approximated his reputation; I found him to be a very competent, professional, and experienced trial lawyer, and it was a real pleasure working with him.

But, pleasure aside, it immediately became clear at our first meeting on tactics that we had a major disagreement.

“I don’t think we should concede there was a murder,” Len said.

A chasm suddenly yawned between us.

“If we deny there was a murder, Len, we’ll lose credibility with the jury. Credibility is essential when I give my final summation. The jurors will know, as everyone else does, that Muff was murdered.”

Len’s position was not outlandish. It went against every fiber of this veteran defense attorney to concede commission of the crime in a situation where at least an argument could be made, albeit weak, that the prosecution hadn’t proved it beyond a reasonable doubt. In fact, standard defense attorney dogma is that you should always put the prosecution to the test on every major issue. From a tactical standpoint, however, I felt we should tell the world that a gruesome murder had unquestionably been committed on Palmyra, then go about proving that our client had nothing to do with it.

Although Len and I were co-counsel, with an equal say, it developed that whenever we had a divergence of opinion Len usually deferred to me. Not because he had to, but more likely because he’s more agreeable than I. Out of the courtroom, I’m relatively easy to get along with. But when I’m on a case, the trial is open warfare to me. And in my battle to prevail I am frequently at odds not only with the opposing counsel (which is normal), but also with the judge, my co-counsel (if there is one), and sometimes even my own client. This may not be the prettiest of profiles, but it’s an honest one.