And the Sea Will Tell (35 page)

“No, counsel.” The reply was straightforward, but the tone was acrid.

The defense attorney then asked if Dr. Stephens, given the Government’s theory that the bones were once inside the container, expected to see the areas of abrasion on the skull he’d testified to. The witness said he could visualize the abrasions to the skull, which would be held “somewhat in position” by the ligaments on the vertebrae, but would have expected to find areas of abrasion “on many of the other bones” as well.

“Which you did
not
find?”

“I did not find.”

The witness said there had to be “another element in the box that fixed the skull” more firmly, or it would not have worn only on those five specific surfaces. The most likely element “to fix the skull,” Dr. Stephens concluded, was sand.
^*

It was an opening Partington hadn’t expected. “You cannot preclude the possibility that this abrading took place while the skull was embedded in sand amidst coral
outside
the box?” he now asked.

“I cannot preclude that. It only requires that there be movement, a flat surface, and that the skull be against that flat surface, and change its position five times.” With that answer, Partington had created the theoretical possibility that Muff’s body had never been in the container—again, the
key
issue, since Walker’s defense was accidental death.

Obviously, if Muff
had
been placed in the container, accidental death could not be persuasively argued. The mood at the defense table lightened.

The next four witnesses were FBI technicians assigned to the Bureau’s laboratory in Washington, D.C. On the stand, they spoke in carefully phrased, precisely articulated sentences, having long ago polished their skills as scientific witnesses. Their purpose was to put Muff’s body securely back in the container.

A metallurgist, William Tobin, testified that he’d conducted a series of examinations on the container and concluded that there had been intense heat
inside
, evidently produced with the aid of a hydrocarbon accelerant—“something like gasoline, kerosene, or fuel oils.” The factors upon which he based his opinion, he explained, were traces of sulfur and carbon found inside the container. “They are by-products of hydrocarbon-based fires.”

In addition, the expert said that when he cut out a section of the container and examined it under a high-powered microscope, he observed “a very abnormal variation in grain size” between the metal on the inside and outside surfaces of the container. The larger grains on the inside showed that the surface “was subjected to elevated temperatures,” while the outside surface “was not simultaneously exposed to the atmosphere, but rather, to a very severe quenching medium.” That medium, in his best judgment, was water.

Enoki wanted to know if the several corroded holes on the lid and bottom of the container would have prevented it from floating to the surface. No, the witness replied, he had seen “much heavier containers that had human bodies in them, even with chains and weights, and with large triangular holes cut out, rise from the deep ocean and float to the surface.”

Next, chemist Roger Martz recounted a series of tests—solubility studies, infrared analysis, X-rays, gas chromatography and thermotography—he had conducted on the container. On the inside surface, he’d discovered a “waxlike material, which contained fatty acids, and the calcium salts of those fatty acids. The substance, called adipocere, is the product of the natural fats in the body being changed chemically under decomposition. Martz said adipocere forms after death when “the body is taken away from air, such as would occur underwater.”
^*

He went on to explain that calcium salts or fatty acids are not unique to human beings. They could also be formed by animals. If so, he said, cholesterol is detectable. But he found no trace of cholesterol.

During cross-examination, Partington sought to raise the possibility that the calcium salts and fatty acids were residues of plant decay. The chemist doubted that plants have enough fatty tissue to form the kind of deposit he’d found, but admitted that he was no plant expert.

Agent Chester Blythe, the microscopy expert, testified that he’d conducted a microscopic examination of a small piece of “faded, greenish-color, cotton cloth” found stuck to the bottom of the aluminum container. “The fibers exhibited characteristics which are associated with burning,” he concluded.

Agent Roy Tubergen, the serologist, or expert in the study of blood, testified to performing a phenolphthalein screening test on residue from the bottom of the container. The test, he explained, was so sensitive it could detect even a single drop of blood in ten thousand parts of water. “I got a positive result on the box,” he said.

The serologist performed the same test on a swatch of a dark red portion of the cloth found in the container. Result? Again, positive for the presence of blood. But the phenolphthalein test only determines the presence of blood, not whether it’s human or animal. The next test
did
make that determination. Tubergen performed an Ouchterlony test—taking the swatch of the blood-stained cloth and extracting the blood from it using a saline solution, then placing the extracted blood in a gel on a microscopic slide and subjecting it to various reacting agents—and found the unmistakable presence of
human
protein in the blood extracted from the fibers of the cloth.

So much for Partington’s
plant
-in-the-box theory.

The Government team had done their homework. Step by step, the cumulative scientific evidence had made it clear that a human body—obviously that of Muff Graham—had at one time been inside the container. Partington’s accidental-death theory, though dying a slower death than had poor Muff, was well on the way to rigor mortis, it seemed.

But the defense had yet to present its case.

The jury had heard two days’ worth of complex medical and scientific testimony, often delivered in numbing jargon and sewing-machine rhythms. It was a relief for everyone when Enoki returned to calling witnesses who didn’t have a ten-page
vita
.

By the end of the day on June 5, the Government had called its last witness. Enoki was expected to rest his case the following morning.

Before Judge King sent the jurors home, he reminded them, as was his daily custom, not to discuss the case, read newspaper articles about it, or watch the TV news coverage.

After the jurors departed, Partington made a motion for a judgment of acquittal as to Count One of the indictment. This was the felony-murder count I had previously asked the court to remove from the indictment, which Judge King had declined to do.

But now, Judge King, no doubt to Enoki’s surprise, looked at the Government table and asked: “How do you
connect
her death with the robbery?” The judge’s question implied that the Government had not presented evidence that the killing took place “
during
the perpetration” of the robbery, a circumstance that had to be proved before the felony-murder rule would apply.

Enoki: “Well, if in a bank robbery the defendant takes the bank teller along with him and kills her later—I don’t mean three weeks later, I mean in the process of taking her away from the scene—that’s connected to the robbery.”
^*

Judge King was unmoved by the prosecutor’s argument, and granted the defense motion. Of course, if felony-murder had been the only count in the indictment, as it had been originally, and hence dismissing that count would have set Buck Walker free, Partington would have had about as much chance of winning his motion as of persuading Kit Muncey to step up as a character witness for his client.

Before the marshals escorted him from the courtroom, Walker grinned smugly at his attorneys and gave Partington a good-old-boy pat on the back.

Walker might have considered the felony-murder dismissal a major legal triumph, but I thought it more a matter of the Government’s being prevented from pursuing an inappropriate charge.

With the defense set to present its case, the charges against Buck Walker had been whittled down to a single count of premeditated murder.

J
UNE
6, 1985

T
HE FIRST
defense witness was Charles Morton, a criminalist who was the director of the private Institute of Forensic Sciences in Oakland. Morton testified that his examination of the metal container revealed no “direct evidence” indicating there had ever been a body inside. On the other hand, he added, he had found nothing to “exclude that possibility.”

In his never-say-die effort to keep the bones out of the box, Partington wanted to know if the expert had found any evidence suggesting that the abrasion to the bones had taken place inside. The answer: “I looked for areas in the box that would show that. I found only relatively light abrasion to the interior of the container in a couple of areas.”

Obviously, Partington would have preferred the complete absence of discernible abrasions.

On cross, Enoki asked: “If the container were partially filled with sand, wouldn’t the sand provide another surface for possible abrasion of a human bone?”

“Certainly,” the criminalist replied without hesitation.

Enoki next used the defense witness to elicit a critical piece of testimony to bolster the argument that the reason Muff’s remains were found right alongside the container was that they had once been inside. After all, how else could they have gotten there?

“By the way,” the prosecutor now asked, “bones don’t float, is that correct?”

“That’s correct,” the defense criminologist replied.

Next, a serologist from the same institute testified that he had cut out a section of the piece of green cloth found in the container for examination. His tests had not shown evidence of human protein in the blood (ostensibly contradicting the findings of the FBI serologist), meaning that the blood could be either human or animal.

Now, it seemed, Partington wanted to suggest the novel scenario that a bleeding animal—not a human being—might have been inside the container.

Enoki swiftly dealt with this ploy on cross. “There is really no way for you to contradict the finding [of the Government’s serologist] that there was in fact human protein on the cloth in a different section of it, is there?” (The Government’s serologist had already testified that because of the saline solution used in his testing, that sample of the cloth had been “consumed in the examination.”)

“In a different section? In other words, that he could have tested that I didn’t test?”

“Yes.”

The defense expert pursed his lips. “I cannot contradict that possibility,” he conceded.

The expert dental witness for the defense was an intense, studious-looking odontologist experienced in treating burn victims. Dr. Duane Spencer testified that his examination of Muff’s teeth revealed no evidence of burning. He also said that the conclusion of the Government’s odontologist that the fractures to Muff’s teeth had to have been caused by “blunt trauma” erroneously presupposed that the trauma occurred at or near the time of death. “Teeth are the hardest object in the body, harder than bone,” but after death, “teeth dry out and become brittle, and it doesn’t take much force to break them.”

Going beyond his area of expertise, Dr. Spencer offered a possible cause for the abrading on the skull. “When a body is floating in the water, it will usually float on its stomach, arms down, in what is called the ‘dead man’s float.’ If the body ends up that way on the sand or beach or rocks, that face could just rub into the sand or whatever the abrasive material might be. I believe that could be an explanation for the abrading on the face.”

Enoki brought out on cross that Dr. Spencer had never before testified in a court of law as to the cause of injuries to a human body.

Undaunted, Dr. Spencer challenged the prosecution expert’s opinion that if the fracture to the gum line had occurred prior to death, the pain would have been so great that the person would immediately seek dental care. People have different thresholds of pain, he pointed out. Whereupon Enoki countered: “Wouldn’t you say that the overwhelming majority of humans would seek dental treatment if the crown of their tooth was fractured off at the gum line?”

“It would seem so, but there are people walking the streets of San Francisco right now, if you look in their mouths,” Dr. Spencer sniffed, “you would be
appalled
by what you’d see there.”

The defense, further pursuing the accidental-death theory, and in an effort to show that the Grahams’ dinghy might have capsized in the lagoon, next called a U.S. Air Force meteorologist to the stand. The witness spotlighted the extraordinary remoteness of tiny Palmyra when he testified that even though his job was to provide aviation forecast mission support “throughout the entire Pacific region, I had never heard of Palmyra until the events of this case came up.”

Thumbing through satellite weather pictures of the Palmyra area, the weather forecaster said that on August 27, 1974, they showed “very intense” thunderstorm activity that subsided by the 28th. On the 29th and the key day of the 30th, the heavy weather had moved about one hundred miles north of the island. Defining a squall as a “burst of wind,” Major Rodney West of the 20th Weather Squadron stationed at Hawaii’s Hickam Air Force Base said that the thunderstorms north of Palmyra on August 30 could “possibly” have created squalls with a velocity of up to thirty-five miles per hour for several minutes on Palmyra that day.

(The Government’s meteorologist, the chairman of the Department of Meteorology at the University of Hawaii, had earlier testified that August 30 appeared to be a “fine weather” day on Palmyra. He had noted a “heavy shower zone” north of the atoll in late August and early September, but said the likelihood was that it had only generated, if anything, a southeast trade wind “probably somewhere between seven to ten or eleven miles an hour” over Palmyra. He found it “extremely difficult to imagine” any sudden storms or squalls there during this period. Everyone knows how weathermen disagree on future weather. We had now learned they also disagree on the past.)