And the Sea Will Tell (41 page)

The judge’s obligation in a jury trial is to be totally impartial, the decision on guilt being the exclusive province of the jury. For instance, federal judges take a swearing-in oath to “impartially discharge and perform their duties.” But time and time again a judge makes it very clear to the jury which side he prefers. This is a corruption and bastardization of our system of justice by the very people whom the law entrusts with the responsibility of insuring that it works properly and equitably.

Unfortunately, jurors usually assume that whatever the judge says or does in court is correct and justified. As we’ve seen, Judge King demeaned and humiliated the defense attorneys in the Walker case without justification, and they were very mild-mannered in response. Yet unbelievably, a juror was overheard in the elevator saying, “The defense attorneys have been giving poor Judge King a lot of trouble.” Because Judge King, in contrast, treated the prosecutors with respect, the jurors drew another inference (correct or otherwise), the most serious one to the defense that could possibly be made: that the judge sided with the prosecution. During the trial, Jennifer’s brother remarked to a stranger in the elevator that Judge King seemed to be very biased toward the prosecution. “Well,” the man responded, “he must have done a lot of research into the case and knows what happened.” Ted later noticed, to his shock, that this man was actually a Walker juror! After the trial, a more discerning juror was even more direct. “It was obvious the judge was out to convict Walker,” said Robyn Schaffer.

The problem that confronted me now was obvious but knotty, and potentially perilous. Thus far, Judge King had been very friendly toward me, even abnormally deferential. For example, while the lawyers in the Walker trial were discussing proposed jury instructions with the judge in his chambers, I sat off to the side as an observer. During a lapse in the discussion, Elliot Enoki turned to me and asked if I had ever had one of my murder convictions as a prosecutor reversed on appeal. (The answer is no.) Before I could respond, Judge King interjected, “They [the appellate courts] wouldn’t dare.” Obviously, King was just joking, but his quip nonetheless showed a certain measure of respect for my work.

Yet it was abundantly clear that although Judge King was neither pompous nor, believe it or not, as tyrannical as many other judges in action, he still had a short fuse and was capable of an angry outburst in open court at any lawyer whose conduct displeased him. Whenever this type of thing happens in court, the lawyer nearly always comes out the loser, and his credibility with the jury inevitably suffers.

My demeanor in court is somewhat freewheeling. Add my confrontational manner of cross-examination, and I knew I would have no difficulty irritating King. If so, and if he were to react against me as he had against the defense in the Walker trial, how would I respond? No mystery there. If he waxed intemperate and demeaning in front of the jury, I would be several degrees tougher in my response, right in front of the jury. Maybe I’d be held in contempt, but at least I would retain my stature with the jurors. I’d rather be held in contempt and pay a fine than allow the judge, in the presence of the jury, to demean me and threaten my credibility with the jury. My personal style before a jury is to try to gain their respect. Although I obviously want them to like me also, I not only feel uncomfortable making an effort in this regard, but am too absorbed in the trial anyway. What I try to convey to the jury is sincerity, honesty, substance, and stature. They all add up to credibility, which I want to have with the jury above all else.

Clearly, if I could completely avoid a verbal confrontation with Judge King in open court, I (and my client) would be much better off. My best hope, I had decided, was forthrightly to place the judge on notice, before the trial, that I wasn’t going to accept any maltreatment before the jury, and that if he chose to disregard my admonition, he’d have to pay a price himself before the same audience. I aimed for checkmate before the game began.

A
FTER WE
had discussed the usual mundane legal matters in open court, Judge King seemed a little perplexed when I said there were some other items for discussion that did not lend themselves to the formality of the courtroom. “They’re of a personal nature, your honor,” I explained. Since I was planning to speak bluntly, I wanted to do so in private and not risk embarrassing him in front of any members of the press, who were closely covering these early skirmishes in the Palmyra murder case.

Except for the panoramic view of the bay out the window, the judge’s chambers were unremarkable. We were surrounded on three sides by the traditional dusty law tomes. The judge took off his black robe and hung it on a hook, then sat casually at one end of a small conference table. He wore a white shirt, rolled up at the sleeves, and no necktie. Len and I sat to his right, and the two prosecutors opposite us.

Even on the bench, Sam King was more informal than most of his colleagues, and in his chambers, he was understandably more so. In such a setting, King was even given to cracking his share of jokes. It was on this note that I began.

“Judge, you’re a paradox,” I said. “Your personal demeanor is less formal than most judges, but your courtroom rules are more restrictive. I’m going to raise a few issues with you because you have already demonstrated a certain flexibility. Too many judges, particularly federal judges, have well-deserved reputations of being pompous asses who can’t be talked to.”

The judge started to smile, but quickly thought better of it. His dry expression said,
Thanks a lot for your backhanded compliment
.

“Fortunately for us,” I raced on, knowing the ice could be very thin, “you don’t fall in that category. My first point—do we always have to stand up in court when we address you?”

“No.” He had not hesitated.

“Good,” I said.

“Secondly, I would appreciate it, judge, if we wouldn’t be restricted to the microphone at the podium. A great number of courts in this country don’t have microphones and people get along very well. On cross-examination, I find it more effective to move around.”

“I’ll let you leave the microphone,” King said more amiably, “but don’t get close to the witness.”

“That’s my third point. I know you do not want us to approach the witnesses, and only if we request and are granted permission can we do so. But we’re officers of the court. I don’t think that witnesses should be elevated in importance over the lawyers. This definitely goes in the direction of the lawyers’ losing stature in the jury’s eyes, because from the jury’s own experience in life, it’s completely unnatural to get consent before approaching someone.”

Judge King declined. “Allow me my idiosyncrasies,” he said. This wasn’t pleasing, but it wasn’t a major problem.

“My next point is that both lawyers for each side should be able to object to a question. Permitting this does not impose any new burden or inconvenience on the court, but not permitting it (as was King’s rule) can result in serious detriment to both sides.” Under King’s edict, if a witness of mine was asked an improper question on cross-examination but I didn’t catch it, Len could not make an objection on behalf of the defense. And by the time he could whisper the nature of the impropriety to me so that I could object, the answer would already be on the record. It made no sense to hobble the defense or the prosecution in this way.

“Declined,” King said. “Next point?”

Now I was getting the distinct impression that King was not listening to logic, but was sticking to his rules because they were his rules, period. He was not displaying the flexibility for which I had just praised him.

But I went on.

“Next point. If we have to discuss any matter with you, why can’t we approach the bench?”—something King did not permit. “I had a federal jury trial in Los Angeles a few months ago, and we approached the bench five to ten times a day. To call a recess inconveniences the jury, consumes a lot more time, and sometimes makes the lawyer requesting the recess look bad in front of the jury.”

“Declined.”

Okay. Now it was going to get interesting.

“Judge, on these other matters
you
had all the say. I had no say. I was just offering suggestions. On this next point, I
will
have a say. This goes to the stature and credibility a lawyer has to have in front of the jury. I can’t speak for the other lawyers, but if I do anything that displeases you in the slightest, I expect you to register your displeasure outside the presence of the jury.” Pointing a finger at him, I said, “What I’m saying is that you are
not
to demean me, in any way whatsoever, before the jury.” I had given my voice a rough edge, and Judge King’s face was darkening noticeably, but he said nothing. “If you have anything derogatory to say to me, call a recess.”

“I’m
not
going to take the bench worried about you being overly sensitive, Mr. Bugliosi,” the judge finally shot back. “Just because you’re sensitive doesn’t mean I’m going to be afraid to act as I’ve always acted.”

“I’m not sensitive at all, judge. You can call me a horse’s ass outside the presence of the jury. But before the jury, I will not be demeaned in any way whatsoever,” I said forcefully.

Elliot Enoki, Walt Schroeder, and Len Weinglass had sat quietly, figuratively looking the other way, evidently not wanting to have any part in this discussion. That was fine with me.

“If this were a court trial, no problem,” I said. “But in a jury trial, when the judge does this it unquestionably hurts the client. The court has enormous stature with the jury, and the slightest negative comment carries with it considerable damage. My credibility before that jury is what we’re talking about.”

The judge made no immediate response. He just looked at me, as if studying a creature he could not readily classify. The breezy friendliness that had existed between us had vanished like a breath upon a mirror.

“The thing I’m most concerned about going into this trial, Judge,” I continued, lightening up a bit, “is that Jennifer’s right to a fair trial might be, excuse the phrase,
shipwrecked
by some type of prosecutorial misconduct or by the court’s indicating to the jury a bias in favor of the prosecution. If either of these two things occurs, I’m going to take it to the mat
right in front of the jury
. I have to. I have no choice.”

I rose to my feet. “Judge, I hope you’re not offended. I only say these things because of my grave concern for my client’s right to a fair trial.”

The judge smiled, actually
smiled
, as easily as Eisenhower.

He’s shell-shocked
, I thought. I had a feeling what I had just told him wouldn’t completely sink in for a while.

“I understand,” Judge King said quietly.

He extended his right hand and we shook hands.

After we left the judge’s chambers, Len looked at me with a tight smile. “In all my years of practicing law, Vince, I’ve never heard a lawyer talk to a judge like you just did.”

“What do you think? Did I go too far?”

“It’s hard to say. But you made your point, and I have a feeling it will probably be for the better.”

I was relieved to hear that from my co-counsel. If he was wrong, we’d have hell to pay.

F
EBRUARY
1–2, 1986

T
HE LAST
weekend before trial blurred into long hours of nonstop work, for there was still much to do. I was staying just two floors above Len, so we both went up and down the stairs or the elevator numerous times to consult with each other. Not taking time even to go out to a nice restaurant for a real meal, we lived on the less than adequate bill of fare of a coffee shop adjoining the hotel. Few cities anywhere can cast a spell like San Francisco. But I knew that the upcoming trial could just as well have been in Helena, Montana. I would not have the time nor the inclination for the special charms of the city by the bay.

On Sunday afternoon, a mystery of sorts was solved. But, as was very much in keeping with this case, an even greater mystery was created.

Many months earlier, I had noticed on the Government’s inventory list that the authorities had found a wallet on the
Sea Wind
with a California driver’s license and various credit cards in the name of Dannell Donald Petersen, a dentist who practiced just north of San Diego in suburban Carlsbad. I had asked Jennifer who Petersen was and why his wallet was aboard the Graham’s sailboat, but she said she didn’t know anyone by that name or anything about the wallet.

Earle Partington had left all of his files behind in San Francisco with Len, who had discovered an FBI report of an interview on the Petersen matter that for some reason neither Len nor I had received from the prosecutors along with the other FBI 302s.

On October 31, 1974, at his home in Encinitas, ten miles down the coast highway from his office, Petersen told the agents he had lost a wallet containing two hundred dollars in cash and various credit cards at Maalaea, Maui, in December of 1973. He recalled that he had dined on a little, run-down sailboat with a young couple who had invited him aboard. They had met that evening at a nearby beachfront bar. After he left the boat, he discovered his wallet missing and returned to search for it. He told agents that the couple had refused to allow him to come back aboard, but agreed to check around themselves. They returned topside after a few minutes, claiming it could not be found. Understandably unhappy with this sequence of events, Petersen had gone to the Maui police. Officers went down to the marina and questioned the couple, but the dentist’s wallet was never recovered—that is, not until the
Sea Wind
was impounded and thoroughly searched almost a year later, in October 1974.

In the FBI 302, Petersen described the people he suspected of stealing his wallet. The man was “possibly nicknamed ‘Butch,’ about 35 years old, over 6 feet, 200 pounds, brown collar-length hair, possibly a front tooth missing or broken off.” The woman was “about 30 years old, around 5 foot 3 or 4, brown curly hair, a former cocktail waitress at a sailors’ bar in Wailuku, Maui, and she had a foul mouth.” According to the doctor, the couple had three dogs: a small, furry mutt, and two big, surly hounds that had remained tied up while he was on board.