And the Sea Will Tell (45 page)

An investigator testing the stability of the Zodiac in the lagoon.

Sharon Jordan, at the bone site.

The skull.

The coffin.

In discussing the discovery of the bones by Sharon Jordan, Len said, “No one can tell any of us how the container precisely got to where it was found or how long it had been there. Inside the container there is evidence of charring. But I don’t believe anyone can tell us
when
that fire occurred. That container had been on the island for seventeen years prior to 1981. And the experts will say: ‘I can tell you there was a fire, I can’t tell you when.’

“The skull is white,” Weinglass continued, “indicating intense heat. But it could have occurred while there was flesh on the skull, or years later when the flesh was off, and the skull was in sand, and someone applied heat to that part which might have been sticking out of the sand. Is it conceivable that the skull was burned years later by someone else? This is the mystery within a mystery in this case.”

Len promised that the defense would produce a witness who had boarded the
Iola
at Palmyra and considered it to be seaworthy. “Other people will tell you they didn’t think the
Iola
was seaworthy. But they weren’t on it. The man who was on it, Don Stevens, will tell you the boat was seaworthy.”

I waited for the prosecution to object, but both Enoki and Walt Schroeder remained silent. Although a lawyer is forbidden from arguing the evidence during opening statement, my co-counsel, like the seasoned trial lawyer he is, had done just that (“But they weren’t on it”) and gotten away with it.

“I think the believable evidence in this case will show that there was no threat of starvation on Palmyra. That Buck and Jennifer had a boat they could have gotten to Fanning on, and they were planning such a trip to get food. And that there was no open hostility between Buck and Jennifer and the Grahams.”

Len concluded by saying that after the jury heard all the evidence, he was “convinced” they would conclude she was not guilty.

A
FTER THE
noon recess, Palmyra Island caretaker Jack Wheeler was called to the stand by Walt Schroeder as the Government’s first witness.

As at the Walker trial, it soon became apparent that Schroeder, for the most part, would get the Government’s case into the record, while Enoki would handle the bulk of the cross-examination and argue the case to the jury. At all times, both lawyers showed conventional prosecutorial deportment; somber and brimming with righteous indignation.

“Based on your experience as a sailor and your observations of the
Iola
, what condition was the boat in?” Schroeder asked.

“I would have to say it was run-down,” answered Wheeler, adding irritably that he’d heard a pump on the
Iola
pumping water out of the bilge every single day he was on the island, indicating that even in the protected waters of the lagoon, the
Iola
was constantly leaking.

“Mr. Wheeler, did you ever talk to the defendant in this case, Jennifer Jenkins, about her going to Fanning Island, one hundred and seventy-five miles southeast of Palmyra, to obtain food?”

“I did.”

“Do you recall what you said to her?”

“I told her that sailing against the two-knot current which prevails there, and since it’s also against the wind, would make it impossible.”

“Do you recall what else you told her?”

“Then I suggested, as an alternative, Samoa, which would have been fairly simple, although much further—about fifteen hundred miles away.”

“I believe you had a Drake transceiver on your boat similar to the one aboard the
Sea Wind
?”

“That’s correct.”

“Now, did the defendant, Jennifer Jenkins, ever come aboard your boat and
use
your two-way radio?”

“One time.”

“And did you show Miss Jenkins how to use that radio when she came aboard?”

“No.”

“Did you show her how to operate the push-to-talk switch?”

“No.”

Jennifer had told the FBI’s Calvin Shishido that she did not contact the authorities when the Grahams first disappeared because neither she nor Buck knew how to work the
Sea Wind
’s radio. (The
Iola
, of course, had no ship-to-shore radio.) But the testimony Schroeder had just elicited suggested that Jennifer
did
know how to use the type of two-way radio aboard the Grahams’ boat.

I leaned over to ask Jennifer if she’d ever gone aboard Wheeler’s boat to use his radio.

Quite casually, she replied she hadn’t.

“Didn’t you hear what he just testified to?” I whispered more urgently.

She shrugged. “He’s obviously wrong.”

“How’s the jury going to know that, Jennifer?” I said curtly.

“No further questions,” Schroeder soon announced.

Court adjourned for the day, and I pursued Wheeler into the hallway, where I told him in front of a gathering group of spectators that Jennifer unequivocally said she’d never used his ship-to-shore radio.

“I never said she did,” he answered gruffly.

I was taken aback. “Well, you certainly strongly implied that in your testimony just now, Mr. Wheeler.”

Wheeler shrugged. “I called
for
her.”

At that moment, the prosecutors stepped into the hallway. I called to Schroeder, who frowned and came over.

“Walt, this witness is saying that Jennifer did
not
‘use’ his radio. She ‘used’ it only in the sense that Wheeler operated it for her benefit. You elicited testimony that indicated to the jury that she personally operated it.”

“I told you she never operated the radio,” an annoyed Wheeler said to Schroeder.

Schroeder nodded in agreement.

The Government lawyer, knowing all along that Jennifer had never operated Wheeler’s radio, had posed his questions in such a way as to create the impression that she did.

“Is there any question in your mind now, Walt, as to what the true facts are?” I asked Schroeder.

“No,” the prosecutor said.

“When Mr. Wheeler testifies on redirect tomorrow, I want you to bring this out immediately in front of the jury,” I said with obvious irritation in my voice. The jury had been deliberately misled on a not too insignificant matter.
^*

The first night of the trial was a typical one for me. I worked well into the early-morning hours polishing and modifying the lists of questions I’d be asking on direct and cross-examination.

I also waited up each night for that day’s transcript to be delivered to my hotel by the court reporter as soon as his assistants finished typing up and copying the two-to-three-hundred page document. Sometimes it was as late as two or three in the morning when the front desk clerk would call and say a package had arrived for me. Reading the “dailies” is very helpful in preparing for the next day’s examination of witnesses. Important words that somehow elude you when uttered in court are seen for the first time.

I also worked every night fine-tuning my final argument, and would do so right up until the moment I stood for summation.

Trials require considerable physical stamina on the part of all involved.

With a life in the balance, there was little time now for rest.

W
HEN
J
ACK
W
HEELER WENT
back on the stand the next morning, Len Weinglass began his cross-examination by establishing that the oldster had always found Jennifer to be pleasant.

Asked if it was true that Jennifer had baked several cakes for the Wheelers during the ten days before their departure from Palmyra, the witness said he thought she had baked only one for them. When Len pointed out that at Jennifer’s theft trial Wheeler had testified she had baked “several very good cakes” for his family, the witness allowed that his memory of such culinary events was probably better in 1975.

The old military rescue boat was still sitting in a warehouse when he accompanied the search party to Palmyra in November 1974, Wheeler said.

“Did you check to see if all four containers were still in the holes in the rescue boat?”

“I did not.” Weinglass was planting another seed that maybe, just maybe, the murders had not taken place while Buck and Jennifer were on Palmyra a few months earlier.

Regarding his assessment of the
Iola
’s “run-down” condition, Wheeler admitted he’d never actually set foot on the vessel. As for the daily pumping, he offered that, given the length of the voyage down from Hawaii and the age of the boat, water in the
Iola
’s bilges wouldn’t have been unusual. “It was no big deal,” he shrugged.

It was obvious that Wheeler was not the most credible of witnesses. For instance, he had testified in 1975 that the prevailing winds at Palmyra around the time of the year in question are “easterly,” while under direct examination by Schroeder he described them as “northeasterly” winds. When asked to explain by Weinglass, Wheeler blithely responded, “A knowledgeable person would know that in the northern hemisphere, if I said easterly, we’re talking about northeast.” (Actually, per the Government’s meteorologist, Dr. Ramage, who testified at the Walker trial and would testify at Jennifer’s trial, the prevailing winds around Palmyra in August and September are
southeast
trade winds. Since Fanning lay southeast of Palmyra, sailing from Palmyra to Fanning would therefore be directly against the wind.)
^*

When it came to Len’s challenging Wheeler’s opinion that a Palmyra-Fanning trip would be “impossible,” however, the experienced sailor hung tough.

“When Jennifer mentioned her plans about going to Fanning for supplies, it’s true, is it not, Mr. Wheeler, you told her the trip would be difficult?”

“
Very
difficult.”

“But you didn’t tell her it would be ‘impossible’?”

“I don’t know the exact words,” Wheeler said.

“You can’t tell the court or the jury that you told Jennifer that it would be ‘impossible’ to go to Fanning.”

“I couldn’t say. I think I was trying to tell her that
she couldn’t make it
.”

Len and I had elected not to wait for Walt Schroeder’s correction of Wheeler’s testimony about Jennifer’s presumed operation of his radio.

“Do you recall having a discussion with Mr. Bugliosi after court yesterday?”

“I know I talked to him.”

“Did he ask you if Jennifer Jenkins ever used the radio on your boat?”

“I think I did the talking for her. She just told me what to say, I believe.”

“To your knowledge,” my co-counsel said, “she didn’t even know how to use your radio.”

“That’s correct.”

As Len took his seat, Jennifer was smiling. My own gratification would be short-lived.

On redirect, Schroeder asked Wheeler the subject of the message he’d sent over the radio for Jennifer.

“It was in regard to another boat coming down with food. I don’t know who we were talking to.”

“Do you recall where you were sending the message to?”

“It was to Honolulu.”

Unbelievable
. Overnight, the Government had developed testimony that was even
more
incriminating than what had just been retracted. If Wheeler was right, within just days of the
Iola
’s arrival at Palmyra in late June the food shortage aboard the
Iola
was already so urgent that Jennifer needed to radio for more supplies immediately.

Jennifer scrawled a note and put it in front of me. “Did not send radio message in June. Jack confused.”

Based on our knowledge of the case, Len and I agreed with Jennifer, but after huddling, we decided not to challenge—on recross—Wheeler’s latest testimony. With Wheeler, things could get worse for us before they got better. Instead, we hoped the jury would accept our chronology of events and clarification of the matter through later testimony.

W
HEELER WAS
dismissed, and outside the presence of the jury, Judge King asked both sides where we stood on the latest polygraph issue.

There had been an earlier discussion as to whether the defense could bring out Jennifer’s acceptance of a Government offer made way back in 1974 for her to take a polygraph examination.

Jennifer told me that though both Buck and she had initially agreed to take the test, Buck had later decided against it. She said she had been willing to go ahead, however, but the Government said the offer applied only if both went along.

Enoki had earlier asked the judge for time to research the Government’s position on this issue and had made several phone calls to Hawaii. “From what I gather,” he now reported, “the prosecutor in the theft case agreed to give a polygraph” to both Jenkins and Walker. Indeed, the Government flew in an FBI polygraph operator and, following standard procedure, furnished a list of questions to the couple. “After reviewing the questions, Mr. Walker decided he didn’t want to take the polygraph and refused to do so,” Enoki said. “And after Mr. Walker’s refusal, Miss Jenkins also refused to submit to the test.”

Jennifer was tugging at my coat sleeve. “That’s
not
what happened!” she hissed. This was the first time I had ever seen Jennifer express any emotion about the case. She could sit, apparently blasé, through the erroneous testimony of Jack Wheeler, and in fact remain indifferent throughout the several years of trial preparation, but this polygraph issue had touched some nerve.

“I
wanted
to take it”—she was still yanking my sleeve—“but after Buck said no, they wouldn’t let me!”

Judge King advised that if he allowed us to tell the jury about Jennifer’s willingness to take the 1974 polygraph, the Government would be permitted to present its own version of why the polygraph agreement imploded.

“I’m not going to pursue it, Jennifer,” I said quietly.

“Why?” She looked stricken.

“There’s too much to lose by getting into a dogfight with the prosecution on this issue. They’ve already told us what they’re going to say. They’re going to have a couple of witnesses from the FBI and U.S. Attorney’s Office take the stand and say you refused to take the test.”

“But that isn’t the way it happened. I want you to fight this.”

“I’m not going to take on the Government on this issue, Jennifer,” I said. “The jury will have just as much or more reason to believe several federal officials than they will to believe you. And if they believe the Government witnesses, this means they’ll believe you are lying, at
this
trial, when you testify that you never refused to take the test. There’s no way I’m going to create an enormous risk like that, Jennifer. We’ve got enough problems. When you’re already being mauled by a bunch of bears in the forest, you don’t shout out, ‘Bring on more bears.’”

Jennifer looked as if she still wanted to try to convince me otherwise when I told the court that the defense did not wish to present evidence on the polygraph issue.

T
HE
G
OVERNMENT
next called Bernard Leonard to the stand. It was very clear that Leonard and his wife, together with Shoemaker and Shishido, would be by far the most damaging witnesses against Jennifer. The Leonards had made it their personal crusade to see Buck Walker and Jennifer Jenkins convicted of murder. I had no doubt that they honestly believed that both Buck and Jennifer had committed murder, but I also considered their bias so great that they might not hesitate to do whatever was necessary to ensure the second conviction in the case. Had my pretrial contact with Leonard had any positive effect? I’d soon find out.

“Is the individual who identified herself to you on Palmyra as Jennifer Jenkins in the courtroom today?” Schroeder asked.

“Yes.”

“Could you point her out, please?”

“She’s right there,” Leonard answered quickly, pointing a long finger at Jennifer. Somehow, he made the simple words sound like an identification not just of the person, but of the murderer of Mac and Muff Graham. Obviously, all my pretrial efforts aimed toward keeping Leonard from using this type of accusatory tone had failed.

Leonard testified that the
Iola
was in “very poor shape and very unseaworthy. It was a carvel-planked boat [a wooden boat built upon ribs] and the planks were fastened to the ribs. As the boat gets old and tired, the planks start to wobble and warp, letting water in.” He then volunteered, as would be his wont throughout: “So this boat had all those problems, and was also fiberglassed. When you fiberglass a carvel-planked boat it’s a last-ditch effort.”

“While on Palmyra, did Jennifer Jenkins say anything to you about their trip on the
Iola
from Hawaii?” Schroeder asked.

“She said that at times during the trip she was knee-deep in water down below.”

“Did you have occasion to talk to Jennifer Jenkins about how they would manage to leave Palmyra?”

“She said that she wasn’t going to leave the island on that boat.”

This was explosive testimony I had never heard before. At a minimum, Leonard’s last statement flatly contradicted what Jennifer was going to testify to: that after Mac and Muff disappeared, she wanted to leave Palmyra on the
Iola
and had to be
talked into
taking the
Sea Wind
by Buck.

Leonard went on to testify that Jennifer had told him she and her boyfriend were low on food and interested in bartering various boat-equipment items in exchange for supplies. “We did not barter with
them
,” he said emphatically.

Although Leonard said he personally visited the
Sea Wind
“close to twenty times” and he and his wife were “quite often” dinner guests of the Grahams, he said he never once saw Jennifer or Buck aboard the
Sea Wind
, or either of the Grahams on the
Iola
. In fact, Leonard said, he had never once seen the Grahams even “associating” with Jennifer and Buck.

Leonard testified that Mac Graham always locked the door to the
Sea Wind
’s cabin whenever he and Muff left their boat.

Asked if the Grahams had ever invited him aboard the
Sea Wind
at a time they were not going to be present, Leonard said with conviction, “No. I don’t think the Grahams would ever have done that.” Schroeder was like a balloonist watching his craft steadily inflate, just adjusting the lines every now and then.

When asked if he and his wife had decided to leave Palmyra early, Leonard answered that they had, then volunteered, “There was an uncomfortable feeling. The
Iola
people were not the usual type people that we were used to meeting on cruises.”

Asked about the last visit the Grahams had made to the
Journeyer
, Leonard didn’t answer directly but started to launch into another narrative, and I objected, adding for the jury’s edification, “He obviously likes to volunteer information.”

The judge sustained the objection, cautioning Leonard to answer only yes or no to questions that called for such responses.

Schroeder: “Who was present during this last meeting?”

“Mac, Muff, Evelyn, and myself,” Leonard said through tightly compressed lips.

“Did you notice if Mrs. Graham was showing any emotion while she was talking to your wife?”

“Yes.”

“And what was she doing?”

“She was crying.”

“After you sailed away from Palmyra, did you learn from your wife why Mrs. Graham had been crying?”

The question called for hearsay, and I objected, at which point Leonard blurted out over my objection, “All these yeses don’t tell the story.”

“
You
are not on trial for anything,” Judge King snapped at him. “Just answer the questions that are asked.”

Everything Leonard volunteered was prejudicial to Jennifer—and I was glad to have the jury see that the judge had heard enough, too.

As a matter of strategy, I try to make as few objections as possible in a jury trial. Constant interruptions irritate the jurors, who must sit there in weary forbearance. Moreover, if the jury concludes from the lawyer’s objections that he is trying, by technicalities, to keep them from hearing relevant evidence, his credibility in their eyes is hurt. But Leonard was supposed to answer questions, not try the case himself.

Leonard next testified that as he and Jennifer were being towed out in her dinghy to the waiting Coast Guard cutter on the day of her arrest, she told him that she and Buck had found the Zodiac capsized “over at” Paradise Island. Also, that she and Buck had attempted to sail away from Palmyra on the
Iola
, but got stuck on the reef in the channel. Minutes later aboard the Coast Guard cutter, Leonard said he was appalled when Jennifer changed her story and told the authorities that she and Buck had first attempted to
tow
the
Iola
out of the lagoon with the
Sea Wind
, taking the Grahams’ boat only after theirs got hopelessly hung up on the reef.