And the Sea Will Tell (42 page)

The agents showed up at Petersen’s Carlsbad office on November 14,1974, to show him mug shots that might identify the couple. He unhesitatingly picked Jennifer Jenkins from among five women and Buck Walker out of five men.

Len told me he had already spoken to Jennifer about the Petersen incident but she had been unable to recall it. I immediately phoned her from Len’s hotel room, and she still drew a blank.

“Jennifer, the police came down to the
Iola
and questioned you and Buck about the wallet. How is it possible you can’t remember this?”

“What can I say? I just don’t,” she insisted.

After this conversation, Len and I pondered what could have happened.

“Maybe Buck stole the wallet,” Len offered, “and she didn’t know anything about it.”

“But even if that were the case, wouldn’t she have at least remembered the police coming down to the boat and questioning them about a missing wallet?” I said.

We also thought that perhaps Jennifer had drunk too much that night and simply couldn’t recall any of the events. She rarely, in those days, hit the pillow without significant amounts of some mood alterer in her system.

With the rush of other last-minute matters we had to attend to, Len and I put the wallet incident in the back of our minds. Neither of us could imagine any legal theory the prosecution could devise to introduce the matter before the jury.

We both were troubled, however, by the disturbing possibility that Jennifer, at some time prior to Palmyra, had engaged with Buck Walker in any kind of unlawful activity. But, of course, that did not make her a murderer.

W
ITH THE
trial scheduled to start in the morning, my yellow-pad sheets of paper, covering every aspect of the trial (even case law authority to overcome anticipated objections, and optional lines of follow-up questions dependent on how a witness on cross-examination answered a particular question), rose to a height of almost a foot. Although the clear trend in the legal profession is toward fewer and fewer notes on direct examination, cross-examination, and final summation (so recommend instructors at many law schools and trial lawyer seminars), I do the opposite, almost to an obsessive, perhaps even unnecessary extreme. But I believe in the adage that the war is won before the first battle is fought, and thus far in my career I’ve been able to orchestrate most of the trial
on paper
before ever entering the courtroom. Arguments, counterarguments, questions, objections—the whole gamut takes place on my yellow pad before the trial even starts. My objective, of course, is for the trial to be merely the acting out of the scenario or script I’ve already written. Granted, unusual things happen at a trial, but if I’ve done my homework, even many of these occurrences can be anticipated and prepared for. In my unremitting quest to be completely ready for trial, I find that in effect
I try the case against myself
.

Reducing what’s in one’s mind to writing is very tedious and time-consuming, of course. In fact, working on my yellow pad is the hardest part of trying a case for me. But in my opinion, it is the only way to try a
complex
lawsuit, and the only way to make a superior presentation of my case, as opposed to a good or merely adequate one.

For instance, in preparing my cross-examination, I might know, in my mind, what point I want to make, but it might take me a half hour of sweat on my yellow pad to work out the very best way of establishing this one point on cross. Before I ask my key question, I might decide I have to ask ten preliminary questions, and in a particular sequence. Some of these preliminary questions I may rewrite three or four times because when I examine them closely I may see that the witness might be able to discern the direction in which I am taking him.

Likewise, in preparing my final summation, I might know what point I want to make, but when I try to articulate it on my yellow pad, oftentimes my pencil comes to a stop. It’s at this moment that I realize I didn’t quite understand my point as well as I thought I did, or even if I did, I certainly realize I was unable to extemporaneously articulate the point with the clarity and power I want.

The standard explanation of lawyers who religiously avoid the pain and agony of the yellow pad is that if a lawyer does all that preparation and has everything written down, he can’t be flexible, and can’t think on his feet when something not covered by his notes occurs. If that’s not a classic
non sequitur
, I don’t know what is. Is instant improvisation and flexibility the domain only of those who are unprepared?

As with all my trials, I was ready for this one. There was only one difference. As opposed to every other jury murder case I had ever tried, I didn’t feel I had a “handle” on this one. There were too many things I didn’t know. It wasn’t enough to jar my confidence, but there was a certain sense, albeit slight, of a lack of equilibrium.

F
EBRUARY
3, 1986

A
T 9:30 A.M. SHARP
, court clerk Kathy Harrell, who was a graduate of the University of San Francisco law school and a member of the state bar, cleared her throat and announced, “Calling criminal action 84-0546-02,
The United States of America
versus
Jennifer Jenkins
.”

“Mr. Enoki, are you ready?” Judge King asked.

“Yes, your honor. Elliot Enoki and Walter Schroeder for the United States.”
^*

“Mr. Bugliosi?” the judge queried.

“Ready, your honor,” I said. “Vincent Bugliosi and Leonard Weinglass for the defendant Jennifer Jenkins.”

More than eleven years had passed since the disappearance of Mac and Muff Graham…eleven long years of extensive official investigations, court proceedings, legal delays, rumor and innuendo, sensationalistic press coverage, and exhaustive prosecution and defense preparation. But finally, the murder case against Jennifer Jenkins was going to be tried.

From the defense table, I scanned the faces among the panel of sixty prospective jurors. Some looked sleepy, others mildly curious, a few resentful at being summoned from their homes or jobs for this inconvenient civic duty. Among them were the dozen men and women who would decide Jennifer’s fate.

All were seated in the gallery on polished benches lined in rows like church pews. A wide aisle dividing the rows of benches ran from the two sets of double doors at the courtroom entrance to a low wooden barrier and swinging saloon-style gate. Beyond the gate were the long tables for the prosecution, on the left, and the defense, on the right, where Jennifer sat between Leonard Weinglass and myself. Above it all rose the judge’s tall mahogany bench, beneath which the court clerk’s table squatted.

The judge read from a prepared statement. “Jennifer Jenkins has been charged with murder in the first degree in an indictment returned by a grand jury in the United States District Court for the District of Hawaii.” He read the felony-murder count first, followed by Count Two, which alleged “that at some time during the period from about August 28, 1974, to about September 4, 1974, at Palmyra Island, Buck Walker and Jennifer Jenkins, with a premeditation and malice aforethought did willfully, deliberately and maliciously murder Mrs. Eleanor Graham, in violation of Title 18, United States Code, Section 1111(a).”

Voir dire, the questioning of the prospective jurors, was about to begin.

In my opinion, the greatly restricted scope of permissible questions on voir dire reduces jury selection to at best one-third art and skill and two-thirds guesswork. Many experienced trial lawyers concede that after a lengthy and vigorous voir dire, the twelve jurors they end up with are frequently no better than the twelve originally seated in the box by lot. Why? Because the juror one side wants is nearly always one the other side does not. As each side excuses jurors who look good for the opposition, very little progress is normally made.

Nonetheless, a surprising number of lawyers consider voir dire the most important part of a trial. Obviously, it would be if a lawyer had the uncanny insight and ability to select jurors who would end up voting for his cause, regardless of the evidence. But since no lawyer has ever been found who can do this, or even come close, the reality, in my opinion, is that voir dire is far from being the most important part of the trial. Lawyers have a significant amount of control over every other area of the trial, and assiduous preparation pays enormous dividends. During voir dire, a lawyer operates mostly by fallible instinct. If even after years and years of marriage many husbands and wives don’t really know each other, how can there be any reliable way of evaluating prospective jurors by means of a few rounds of questions and answers? Because of this, voir dire has always been the one part of a trial I’ve never felt confident about.

Trial lawyers joke that prosecutors typically look for conservative, crew-cut Nordic types during voir dire, while defense attorneys look for long-haired fellows in well-worn cords and tweeds.

More specifically, it’s generally supposed that artists, sculptors, writers, musicians, and others in the arts, including the liberal arts, tend to be more sympathetic toward defendants in criminal trials. The same assumption is applied to people in the “helping professions,” like nurses and social workers, as well as to Italians, Hispanics, Jews, and blacks. Single people who are not deeply rooted in the community, clerks, factory workers, and anyone who prefers reading a book to watching television are all considered defense-oriented personalities. On the other hand, defense attorneys obviously challenge anyone who works in law enforcement, and are similarly wary of secretaries, who, according to a national jury survey, are the most prosecution-oriented of all occupational groups. The only inference I’ve been able to draw from this statistic is that secretaries have to go along with the boss, and in the courtroom, symbolically, the boss is the government. Engineers, scientists, accountants, and bookkeepers are generally considered pro-prosecution jurors as well, perhaps because they are trained to be objective and reach conclusions based solely on facts, not emotions.

But all of this vague conjecture ignores the reality that, not uncommonly, the juror in the characteristically defense-oriented profession turns out to be a staunch member of the John Birch Society, and the juror in the prosecution-oriented profession belongs to the ACLU.

In our discussions, Len and I agreed that someone from a so-called pro-prosecution discipline like engineering might actually be good for us in this particular case, where the prosecution did not have hard, demonstrable proof. Len also felt (and not having a strong feeling one way or the other, I went along) that women jurors close to Jennifer’s age might be unfavorable. Though he felt they might have some instinctive partiality toward her going in, on balance, he feared they’d be against her, thinking, “I never would have gotten involved with someone like Buck Walker and done the things she did.”

With the help of friends in the San Francisco Federal Public Defender’s Office, Len found a local researcher who, for a nominal fee, ran background checks on the entire jury panel—getting details that could not come out on voir dire, such as political party affiliation. It was nice having someone of Len Weinglass’s savvy and contacts in the legal profession as co-counsel.

As names were called at random by the court clerk, the first twelve jurors came forward, passed through the swinging doors, and took seats in the jury box.

The judge informed the jurors they’d be “hearing a lot about an island in the Pacific, near the equator.” He asked how many were “yacht people,” and four people raised their hands.

From the judge’s preliminary questioning, we soon had thumbnail profiles of everyone in the box.

“I’m sixty-one years old,” began juror Clarence Lessa when the judge’s focus of attention reached him. “My wife works with me in my business in Fremont. It’s Orange Julius. It’s okay if I get a plug in, your honor?”

“Sure,” said a genial Judge King.

Soon it was the prosecution’s turn to ask the questions. Although it is not the sanctioned purpose of voir dire, lawyers use it to begin the process of educating and indoctrinating the jury to their side.

“Ladies and gentlemen,” Enoki began, “if the judge instructs you that circumstantial evidence is as valid as direct evidence, would any of you have any beliefs that would make it difficult for you to accept that premise of law?”

No juror spoke up or raised his or her hand.

“Would any of you require the Government, in order to prove a point, to actually have a person come into court and say, ‘I saw this happen,’ as opposed to establishing through some other means that a certain fact or event occurred?”

Again, no response.

“Is there anyone here who cannot accept the law of accomplice liability? Meaning that somebody can be guilty for something someone else did?”

Again, the answer was a silent, unanimous no.

With this last question, Enoki confirmed what Len and I already suspected. The prosecution’s theory was that Buck Walker actually committed the murders, but with Jennifer’s knowledge and assistance.

When our turn came, Len led off.

“As you sit here now,” he said to the jurors, “you have to have the state of mind, under our law, that requires you to presume that Jennifer Jenkins is innocent. Does anyone have trouble with that?”

No juror did.

To a specific juror, Len asked: “In your experience, do you find sometimes that experts can be wrong?”

“Oh, of course,” the juror answered.

Len asked if anyone had ever had a woman friend in her twenties who became involved with a man whose activities put her in jeopardy.

“Yes,” one of the jurors said. “I have a friend who had a boyfriend who abused her, and she wouldn’t let him go.” (All other things being equal, we wanted a juror with this background, and the prosecution did not. They eventually excused her.)

Alluding to the jury that Buck Walker had been convicted of murdering Muff Graham, Len asked: “Can you all accept the proposition that under our system of justice each person is to be judged separately, apart from anyone else, on the merits of the case that’s involved in their particular situation?”

No negative replies.

Len proceeded to turn the questioning over to me. My opening goal was to indoctrinate.

“Judge King has already told you that the indictment in this case is no evidence of guilt against Miss Jenkins. To elaborate further, an indictment can be analogized to a theater ticket,” I said to the jury. “It only enables the prosecution to get into this courtroom with their case, and once they’re here, like a ticket to the theater, it has no value or significance whatsoever.” I asked if anyone had any quarrel with this reality, and the answer was no.

Pursuing the grand jury indictment further, I said, “Normally, only the prosecution presents its case at the grand jury. And that’s what happened in this case. No defense was presented, and Ms. Jenkins did not testify, nor was she invited to testify.”

Before I could ask the jury if they understood that what happened in this case was typical, Enoki was on his feet, predictably objecting to my line of questioning, and Judge King sustained the objection.

Although this wasn’t conventional voir dire on my part, I didn’t want the jury to start the trial thinking that another group of jurors (“grand” jurors, no less) had already evaluated
both
sides of the case and concluded that Jennifer was guilty.

I continued to indoctrinate the jurors under the thin guise of a question: “In this case, ladies and gentlemen of the jury, we intend to prove, and we are confident we will prove, that Miss Jenkins is completely innocent of the charges against her. However, do you all realize that we have absolutely no legal burden to do so? That under the law, the prosecution
always
has the burden of proof?” The jurors indicated they understood this.

So far, for the most part, the questions from all of us only required the jury to answer yes or no. This type of voir dire is just fine with the jurors. Since the courtroom is an unfamiliar and somewhat intimidating setting for them, they are very reticent about speaking up. But to get any insight into their minds, I needed to hear their voices, their intonations, their choices of words. And this can only be done if the question is framed in such a way that they are forced to give more than a yes-or-no answer. This is what I now did.

“As Judge King told you, the prosecution must prove guilt beyond a reasonable doubt. That’s a very high burden of proof. I want to ask each of you at this time how you personally feel about this rule. For instance, do you feel it’s fair? That it should be as high and difficult a burden as it is because a person’s life and liberty are at stake? Or do you perhaps feel it’s unfair, unrealistically high, and therefore the burden should be lower? Or perhaps you may feel that our judicial system should reexamine this entire rule, to determine whether we should keep it or modify it in some other way. Whatever your state of mind might be, I want to hear from you, and I want you to try to be as expressive as possible.”

Some of the responses: Juror Clay Gillette: “I feel it’s a
very fair
rule. I don’t think anything should be changed.”

Carol M. Steagall: “If someone accused someone of something, then they should have the burden of proof. You can’t just arbitrarily go out and say somebody did something without saying, ‘This is why,’ or support it.”

Joseph F. Lockary: “I don’t have an alternative. I’m sure that sometimes people who do commit crimes go free. But there are also people who have been proven guilty, who are innocent. It’s not foolproof. I…basically agree with it.”

The jurors were now talking. A lot.

Clarence Lessa: “I feel a lot of people get away with a lot of things in our society. I really feel that we’re a little too easy, and we forget our victims. That’s the part that bothers me.” He certainly sounded like a prosecution juror.

“Well,” I inquired further, “the situation being what it is today in America—we’re losing the war on crime and drugs—do you therefore think the burden of proof should be lowered to make it easier for the prosecution to secure a conviction?”

Lessa: “Well, I think that the problem is something deeper than that. I think it’s something beyond what we can do maybe. I think our court system is as good as it’s going to be. I think that it’s fair. And I think that there’s other areas that need to be attacked.”

After his first response, I was inclined to excuse Clarence Lessa. But his answer to my follow-up question revealed that he was not unthinkingly law-and-order, that his objections were sensible. Also, he fit Clarence Darrow’s main criterion for a defense-minded juror; he smiled a lot. We decided to take a chance on Lessa.

I felt quite the opposite about Joanne M. Murphy, a forty-five-year-old Catholic schoolteacher. Her stern response: “It’s here, so I’ll follow it.”