And the Sea Will Tell (43 page)

Authors: Vincent Bugliosi,Bruce Henderson

“Well, if you were empowered with the authority to change it,” I pressed, “what would you do? Would you lower the burden to make it easier for the prosecution?”

The invisible shades behind her eyes slammed down.

“I don’t know what I would do really.”

Moving on, the jury had been told by Judge King that there could only be, of course, two possible verdicts in the case. Guilty and not guilty. Speaking to two Scottish-born jurors, I said: “You’re aware that in your homeland there are three verdicts?”

Irene Angeles and James McGowan answered no.

“I believe it’s guilty, not guilty, and
not proven
,” I said.
^*“Have you heard of that in Scotland?”

Neither had.

As I do in every case, I proceeded to ask each prospective juror his or her hobby. Prospective jurors are always asked their occupations, but a person’s hobby is far more revealing. Many people don’t particularly enjoy their jobs, but no one dislikes his hobby. Employment as an accountant or salesman doesn’t tell me nearly as much about a person as does a penchant for deer hunting or community volunteer work. The answers of the jurors varied all the way from sailing and fishing to needlepoint and woodwork.

“No one has mentioned watching TV yet,” I said with a smile. “I thought that was popular. I guess it’s not.”

“We don’t admit it,” said a voice from the panel.

Everyone laughed.

Back to business, each side handed the judge a sheet listing its peremptory challenges (“peremptory” because no reason at all has to be given), and prospective jurors were excused. “Please remember,” the judge said kindly, “this is not a reflection on your intelligence, good looks, or patriotism.”

The jury we finally ended up with consisted of seven women and five men ranging in age from thirty-six to seventy-four. Two alternates were also chosen.

Almost immediately, I began worrying about a juror perched right in the middle of the front row.

Frank Everett, who was dressed very conservatively, had a rock-solid jaw and florid complexion, as if the good American red blood coursed close to the surface. This Kansas-born, deep-dyed Republican was a retired engineer, and Len and I were gambling that he and Michael Nevins, an electrical engineer, would be professionally unimpressed by the Government’s lack of hard evidence in the case. Everett had previously served on a criminal jury that had found the defendant guilty, but the case involved child molestation, and Len and I had been inclined to discount it. But now, watching sourpuss Everett as he scowled constantly at the world from front and center, I began to feel we had made a grave mistake. We had decided to excuse him when we first prepared our list, but when we got down to our tenth and last peremptory, we decided instead to challenge someone we disliked more.

As the judge was telling the jurors to return to court promptly the next morning and advising them against discussing the case with anyone, I leaned over to Len, pointed to Everett’s name on the jury list, and whispered, “This guy is just the kind of juror always wanted as a prosecutor.”

Len grimaced.

I shrugged, shaking my head.

It was too late now.

CHAPTER 32

T
HE TRIAL BEGINS

F
EBRUARY 4 DAWNED CRISP
and sunny. Hurrying the few blocks from my hotel to the courthouse, laden with my stuffed briefcase and an extra armful of papers, I fleetingly acknowledged it was going to be one of those bright, zestfully invigorating winter days, a patented San Francisco specialty. Too bad I would miss it.

“One thing, your honor, before you bring in the jury,” I said, rising. “There’s going to be reference at this trial to the transcript of Jennifer’s theft trial. The question is, how should we refer to it?”

My co-counsel interjected that he understood that “witnesses would be instructed by both sides to say they testified at an ‘earlier proceeding,’ without indicating it was a theft trial.”

“Yes,” agreed Judge King. “That’s what I thought we had agreed to.”

We had, but I was suddenly having serious doubts about it. I spelled out my worries. “It’s conceivable, particularly since the jury knows that Buck Walker has been prosecuted and convicted of murder, that they may think the ‘earlier proceeding’ against Jennifer was also a prosecution for murder, the same murder charge she is now facing. That would be very harmful to Miss Jenkins.”

Since she wouldn’t be standing trial again had she been acquitted, I reasoned the jury might conclude that Jennifer had been previously convicted of murder and, as they’d read about so often in the news, the conviction had been reversed on a technicality and sent back for retrial.

“I would rather have them know it was a theft trial,” I said, “as opposed to speculating that it was a murder trial.”

It was finally agreed we would say that the prior transcript came from Jennifer’s theft trial, with no reference, of course, to her conviction.
^*

One familiar spectator in the crowded courtroom was Wally McIntosh, who sat in a front-row seat, just as he and his wife had during the Walker trial. Kit, recovering from another cancer operation, had to remain home this time. But her interest in the Palmyra case had not slacked. Mac’s sister had obtained Wally’s solemn promise to call her each evening and brief her on the day’s events, which he chronicled in a spiral notebook. Several weeks earlier, she had mailed out nearly a hundred copies of a one-page letter addressed to the “Friends and Complement of the Sailing Yacht SEA WIND.” In it, she wrote: “Jennifer Jenkins’ murder trial is scheduled to start on February 4th in San Francisco. It is still our hope to be able to be there, inasmuch as my husband and I still feel strongly about her involvement. Thank you all for your continuing support. This has been a difficult period for everyone involved. We can only hope that justice will finally be served.”

When the jurors entered the courtroom at 9:50
A.M.
, Judge King read them several brief instructions, and advised them that Buck Walker would
not
be “available”
^†to testify for either side in the case, and not to concern themselves with the reason why.

“Mr. Enoki, you have the opening statement for the prosecution?”

“Yes, your honor.”

In the opening statement, a lawyer gives the jury an overview of his case and tells the jury, before the commencement of the evidence, what he intends to prove by that evidence.

Placing a legal pad filled with neat handwritten notes atop the podium, the usually sober-countenanced Enoki allowed the corners of his mouth to curl in a slight smile, said good morning to the jurors, and began the prosecution of Jennifer Jenkins for the murder of Muff Graham.

After giving a brief history of Palmyra, he rolled a portable television in front of the jury and showed a videotape from a flight over the island. Next, he began homing in on the events of 1974, pointing out that it took Jennifer and Buck almost twenty days in their “weathered vessel” to reach Palmyra—twice as long as the trip normally took.

“The
Iola
was battered during this trip, and arrived at Palmyra leaking and without a working engine.”

He went on to assert that the unseaworthiness of the
Iola
effectively marooned Miss Jenkins and Mr. Walker on Palmyra, absent other transportation.”

He continued, “In addition, the
Iola
was not stocked with enough supplies, and Miss Jenkins began bartering for food, and asking others on Palmyra for supplies. By the end of August 1974, food supplies aboard the
Iola
had dwindled to the point that they were even out of staples like flour.”

In contrast, Enoki described the Grahams’ “unique and immaculate”
Sea Wind
and her well-stocked stores.

“The relationship between the two couples had deteriorated by August to the point where they barely associated. Miss Jenkins and Mr. Walker were not seen by others aboard the
Sea Wind
at Palmyra, although other visitors arriving after them were invited aboard the Grahams’ vessel. Muff Graham even said that she did not trust Miss Jenkins or Mr. Walker. In addition, there was a fear of Mr. Walker
and Miss Jenkins
. In fact, Muff Graham—”

I sprang to my feet. “Your honor, before we proceed any further, I think there should be an offer of proof [outside the presence of the jury]. He seems to be getting into hearsay that he’ll be unable to prove.” I knew Muff Graham had been afraid of Buck Walker, but no one had ever reported that Mac or Muff had also been afraid of Jennifer.

Enoki withdrew his remark before the judge even ruled on my objection.

In his low-key delivery, Enoki told the jury they would hear from Curt Shoemaker about his last radio contact with his friends on Palmyra.

As soon as the
Sea Wind
reached Hawaii in October, Enoki continued, it was promptly repainted. “Mr. Walker removed the name
Sea Wind
and reregistered it as the
Lokahi
. Miss Jenkins made no mention of the Grahams or their disappearance to anyone they met. Instead, they told some people the
Sea Wind
had been won in a gambling game.”

In recalling Jennifer’s arrest, Enoki brought out her flight from the authorities in the Ala Wai harbor, and the many inconsistencies in her story.

Enoki concluded by saying that after all the evidence was in he was confident the jury would “find Jennifer Jenkins guilty of murdering Eleanor Graham.”

With that, he took his seat.

Len Weinglass next delivered a solid forty-five-minute opening statement for the defense. His courtroom demeanor was friendly and pleasant; he was rather like a favorite uncle sharing an engrossing tale with family members at the Sunday dinner table. He spent some time talking about why Jennifer had every reason to believe that the Grahams had died in a boating accident. “Based on what she saw—the Zodiac overturned on the beach—she believed there had been some kind of mishap in the lagoon: that the Grahams either fell out of their dinghy, had an episode with the sharks, or the boat rammed an object and turned over.” Weinglass told the jury that on Palmyra, Jennifer “had no reason to suspect Buck Walker of doing anything wrong,
if in fact Buck Walker did
.” My co-counsel was not completely abandoning the theory that Muff Graham might have died an accidental death.