And the Sea Will Tell (46 page)

The prosecutor’s final line of questioning concerned Jennifer’s request that she be allowed to go to the bathroom after the Coast Guard cutter had tied up at the Ala Wai’s Hawaii Yacht Club. Leonard explained that because he was a club member, he had a key to the rest room, which he unlocked for Jennifer.

“Do you recall if she took her purse in with her?”

“Yes.”

“How long was she in the rest room?”

“It seemed like a long time.
Longer than was necessary
,” Leonard again volunteered, continuing his unpaid summation for the Government.

“Did you hear or observe anything while Jennifer was in the rest room?”

“The toilet flushing. It was one of those valve-type toilets that you can repeatedly flush, and it was just constantly flushing.”

Leonard explained that his wife, Evelyn, arrived about then, and he asked her to go in to check on Jennifer.

“And what happened then?” asked the prosecutor.

“She came out with Jennifer.”

“No more questions, your honor.”

The prosecutor’s obvious intent was to suggest strongly that Jennifer had disposed of incriminating evidence of some kind while alone in the rest room.

As I’ve mentioned, my style on cross-examination is more confrontational than the norm. One reason may simply be my assertive personality, but another is the principal technique of cross-examination I employ to destroy credibility: the “why” question. When I feel a witness is lying, I just about know that he would not have acted—in a given circumstance—as a truthful person would have. Frequently, I already have evidence in hand that he did not. To expose his untruthfulness, I first elicit answers on preliminary matters (blocking off escape hatches), answers that, when totaled up, show he would be expected to take a certain course of action. The witness having committed himself, I then ask him what course he in fact took (unnecessary if what the witness did is already in the record), and follow this up with the “why” question, an inherently confrontational and argumentative approach. If time after time a witness is unable to satisfactorily justify conduct of his which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect. Among other techniques, I used this type of cross-examination with Bernard Leonard.
^*

I began my cross on the topic of the suspicious toilet flushing. “Can we assume, Mr. Leonard, that you felt that Jennifer may have been flushing something down the toilet she should not have been?”

“That entered my mind.”

“That what she was flushing down the toilet may have had some connection with what happened on Palmyra?”

Leonard: “It would naturally follow.”

“There’s been a stipulation from the prosecution that later that same day, Mr. Leonard, the FBI interviewed you and your wife. Can you tell this jury
why
you never saw fit to tell the FBI agents about the toilet-flushing incident?”

Leonard hesitated. “The agents were there outside the rest room,” he said.

“So, it’s your testimony then that they
knew
what happened, and therefore you didn’t have to tell them. Is that correct?”

“I suppose.”

“
Why
, then, did you tell these same agents that Jennifer was seen rowing in a dinghy in the harbor, and was subsequently caught by the Coast Guard?
Why
would you have had to tell the FBI
that
information?”

Leonard hesitated again, shifting in his seat. “I don’t remember that I told them that. They were there. Did I tell them that?”

At this point, I strode to the prosecution’s table and placed Leonard’s FBI 302 in front of Schroeder. Pointing to the relevant page, I quietly asked Schroeder if he would stipulate that Leonard, as the 302 showed,
had
told the agents this information. Probably thinking that he shouldn’t do anything to rattle his own witness, the prosecutor refused. But I was very confident the jury had got the message from what had transpired before their eyes.

Returning to the podium, I asked: “Mr. Leonard, on June 15, 1975, you were interviewed about this case by William Eggers, an Assistant U.S. Attorney, is that correct?”

“I talked to Mr. Eggers many times.”

“Are you prepared to testify now,
under oath
, that you told Mr. Eggers about this toilet-flushing incident? Are you prepared to testify
under oath
on that point?” I repeated, facing the jury, and not even looking at the witness.

Leonard paused, as if beginning to realize his misstep. “I don’t remember having told anybody about it,” he finally said.

“In fact,” I bore down, “the first time you’ve told anyone about this toilet-flushing incident is today in court, almost twelve years after it happened. Isn’t that true?”

“If it wasn’t asked, I have a hard time getting out anything of the story,” Leonard responded, without blushing.

I would return to Leonard’s alleged difficulty in getting his point across.

“Mr. Leonard, you testified that Jennifer told you she’d never leave Palmyra on the
Iola
. Is that correct?”

“That’s correct.”

“I’m interested in your state of mind with respect to this statement she allegedly made to you. You’ve certainly always felt, have you not, that this statement was relevant to the question of what happened to the Grahams on Palmyra, and why Buck and Jennifer ended up with the
Sea Wind
. Is that correct?”

“That’s right.”

“Again, Mr. Leonard, can you tell the judge and this jury,
why
then, when you were interviewed by the FBI on October 29, 1974, you never told them about this statement that she reportedly made to you?”

“All I can say is we answered the questions that we were asked. They probably didn’t ask that
particular
question.”

“Mr. Leonard, how
could
they have asked you that question? How would they have known if you didn’t tell them?”

“We told the story and they asked particulars that they wanted to know about. If we left that detail out, then I don’t know. I don’t remember.”

“So even though your state of mind was that Jennifer Jenkins’s statement that she’s never going to leave Palmyra on the
Iola
was relevant to what may have happened to the Grahams,
by golly, if they didn’t ask you the magic question, you weren’t about to tell them. Is that correct?
” I said, my voice rising in pitch.

“I don’t…know.” Leonard sounded like one of his worst students, quite a transformation.

Even though I knew I would hear from the prosecution or judge with my next question, I wanted the jury to know exactly what I thought of Bernard Leonard’s selective memory. “You’ve come up with a lot of these things just out of whole cloth, haven’t you, Mr. Leonard?”

“Mr. Bugliosi, please,” the judge said patiently. “You’ll get a chance to argue the case later.”

So far, I’d been impressed with the latitude I’d received from Judge King in cross-examining Leonard. Some inexperienced judges don’t realize how aggressive and even antagonistic cross-examination can properly be, and regularly sustain objections that the attorney is being “argumentative.”

I pressed further, slinging verbal darts in the direction of the witness stand. Leonard agreed with me that a witness on the stand
in court
is only supposed to answer questions.

“But on direct examination today, didn’t you volunteer a lot of information for this jury, Mr. Leonard, without being asked?”

“I tried.”

I paused a moment. I wanted the jury to let his bold admission sink in.

“But
out of court
, where you
can
volunteer information,” I went on, “you have to be asked the magic question before you give information, is that correct?”

“Well, that’s pretty argumentative,” Judge King said mildly.

I withdrew the question. Again, the message to the jury was clear.

The two most damaging pieces of his testimony out of the way, I essayed other matters.
^*

Since final summation has to be based on testimony and evidence at the trial, I proceeded to elicit a series of answers from Leonard that would serve as bases for argument during summation.

Yes, Leonard replied to my seemingly random question, in daylight on Palmyra, if one was on shore, or on one of the boats tied to the dolphins, one could see and identify the operator of a dinghy in the middle of the lagoon; yes, a dinghy is not the type of boat one would operate at sea because it would “swamp” (sink or be filled with water); yes, he and his wife had been served meat by the Grahams on the
Sea Wind
, etc.

As we moved quickly through a number of topics, Leonard admitted that he’d never had a conversation with Buck Walker involving more than “three or four words,” but he and his wife had had many “friendly conversations” with Jennifer.

“Your wife discussed recipes with Jennifer, is that correct?”

“That’s correct.”

“And on the day you left Palmyra, your wife took a picture of Jennifer with her dog, Puffer, is that correct?”

“That’s correct.”

“So at least at the time you left Palmyra, you and your wife were not on unfriendly terms with Jennifer. Is that correct?”

Leonard paused so long before answering that even the court reporter made note of it in the transcript.

His answer, when it finally came, was delivered most begrudgingly. “I think that would be correct.”

I wanted the jury to understand that the Leonards’ very negative feelings toward Jennifer started
after
they learned of the disappearance and probable murder of Mac and Muff.

Since Jennifer intended to testify that she and Buck got along reasonably well with the Grahams, the defense had to start countering the prosecution position that they did not. I asked:

“And do you remember telling the FBI on October 29, 1974, Mr. Leonard, that the Grahams were also friendly with Buck and Jennifer; however, not extremely friendly because of their different life-styles?”

“I imagine I would have said something like that.”

“And is that your present testimony?” I asked.

“That’s my feeling.”

“You were aware on Palmyra, were you not, that on several occasions the Grahams went fishing and gave part of their catch to Jennifer and Buck?”

“That’s correct.”

I next got Leonard to concede that he had seen Jennifer and Buck gathering such food as land crabs, coconuts, and palm hearts, and that edible mullet and papio were available in the lagoon.

I asked Jennifer to stand up. “The last time you saw Jennifer on Palmyra, did she appear to be about the same weight as she is right now, Mr. Leonard?”

“That’s correct.”

As she stood now before the jury, Jennifer, although not at all heavy, did not look as if she’d missed too many meals. How deprived of food could she have been back then?

I moved on to Leonard’s description of Buck to the FBI. “You described him as being around six feet two inches tall, muscular, medium to long-length hair, wearing dark glasses, having tattoos and some front teeth missing.”

“That sounds like my description.”

“Not the type of person you would like to meet in an alley, much less on a deserted island like Palmyra. Isn’t that correct?”

“I had no fear of Buck Walker. I had no feelings that way,” Leonard said without hesitation.

This was a shrewd answer. Leonard sensed that I was trying to separate Jennifer from Buck and didn’t want me to get away with it. But I had brought out before the jury a physical description that made Buck sound like a very coarse, rough-hewn individual, precisely the image I wanted as I unofficially prosecuted him at Jennifer’s trial.

I asked Leonard if he considered himself a law-abiding citizen who believed in certain principles upon which this country and its Constitution were based.

“Yes.”

“Among those principles is the presumption of innocence. Is that correct?”

“
Without having knowledge of the facts
, yes,” Leonard said alertly.

“
Concerning knowledge of the facts
,” I responded, “at the time of the disappearance of Mr. and Mrs. Graham on Palmyra on or about August the 30th, 1974, you were about a thousand miles away. Is that correct, Mr. Leonard?”

“That’s correct.”

I had no further questions.

H
AD THE
toilet-flushing incident and Jennifer’s conversation with the Leonards about not leaving Palmyra on the
Iola
, two important, counted-upon pieces of evidence against Jennifer, really taken place? On re-direct, a worried Schroeder made a shaky effort to rehabilitate Leonard’s credibility on these issues.

“Mr. Leonard, on October 29th, the day that Jennifer was apprehended, would it be safe to say that things were pretty hectic around the Ala Wai that day?” Schroeder asked, his voice steeped with concern.

“That’s true.”

“A lot of people were running and scurrying around?”

“That’s true.”

I didn’t feel the need to belabor before the jury on re-cross a point they had already heard: even if the hectic situation somehow caused Leonard not to mention these two incidents on October 29, he had had numerous other opportunities during the following years to do so, and hadn’t.

After four hours on the stand, Bernard Leonard was dismissed, ending his nearly twelve-year campaign to do what he could to see Buck Walker and Jennifer Jenkins tried and convicted of murder on Palmyra.

We were at the end of the day. Judge King had handled the cross-examination like a real pro, and after the jury left the box, I told him so.