And the Sea Will Tell (48 page)

“That would have been ten years after all this supposedly happened. Is that correct?”

“Yes,” she said coldly.

When she finally stepped down from the stand, Evelyn Leonard gave the Government lawyers a friendly if wan smile as she passed by. There would be only two other prosecution witnesses whose credibility I’d try to impeach in the same way I had the Leonards’, but it would be days before I would face Curt Shoemaker and Calvin Shishido.

In the meantime, there were other Government witnesses called to the stand, such as Joseph Stuart, the appliance-store owner who again testified that Buck told him the new sailboat was won in a chess game. The white-haired Stuart said Jennifer was within earshot of this conversation.

“During the afternoon, did Miss Jenkins say anything to you that was contradictory to Mr. Allen’s statement about how they acquired the boat?” Elliot Enoki asked.

“No, sir,” Stuart answered. “There were no contradictions made.”

Since I viewed Stuart’s testimony as being actually helpful to Jennifer’s defense, I asked no questions on cross-examination. It was Buck who had told the lie, not Jennifer, and she could hardly be expected to contradict him in front of Stuart and the other guests.

The next witness was Joel Peters, whom I’d been so delighted to find in attendance at the Walker trial.

Peters repeated his tale of having met Jennifer and Buck on the Big Island in 1973 and then seeing them again in early 1974 on Maui, where they were preparing their thirty-foot sailboat for a Pacific cruise. When he ran into the couple at the Ala Wai in October 1974, Peters said, “they” pointed out their boat, a different boat, at anchor in the harbor.

When Peters asked how their cruise had gone, they had talked some about Palmyra Island.

“Was there any discussion of any accident or disappearances or mishaps on that island?” asked Enoki.

“No.”

I had talked to Peters at considerable length in the past few months, and I was now prepared to try to turn him into a witness far more valuable to the defense than he’d proved to be for the Government.

I first got him to clarify that only Buck, not Jennifer, pointed to the
Sea Wind
, and that Buck had said, “That’s
my
boat.”

“Mr. Peters, you were still moored in the Ala Wai yacht harbor on the morning of October 29, 1974. Is that correct?”

“That’s correct.”

“On the previous evening—October 28th—did Buck and Jennifer come by your boat to pick up a bundle of dirty clothing of yours to take to shore with them and wash along with their clothing?”

“Yes.”

Peters stated that he was asleep aboard his boat on October 29 when he was awakened about 2:00
A.M.
by Coast Guard personnel asking questions about Jennifer and Buck.

“You’re aware that around nine or ten o’clock in the morning on that same day, October 29th, Jennifer was placed under arrest?”

“Correct.”

“
Before
she was arrested that morning, you saw Jennifer alone in her dinghy near her boat and told her that the authorities had been by earlier looking for her and Buck. Is that correct?”

“That’s correct.”

“
Shortly after
you had told her that the authorities were looking for her, do you recall Jennifer coming to your boat to bring back your laundry?”

“I don’t clearly recall at this time,” Peters said, backing down on a very critical point.

“I’ve spoken to you several times in Los Angeles. Is that correct?”

“Correct.”

“Do you recall telling me, every time I have spoken to you, that
after
you told Jennifer that the authorities were looking for her and Buck, she came by your boat alone—not with Buck Walker—to return your clothing to you? Do you remember telling me that?”

“Yes.”

“And is that correct?”

“I believe it’s correct.”

“In any event, she
did
return your laundry. You got that laundry back that morning?”

“I believe so, yes.”

“And to the best of your recollection now, this happened
after
you informed her that the authorities were looking for her and Buck?”

“To the best of my recollection, yes.”

“Is it a fact that shortly after she returned your laundry to you, you became aware of Jennifer being placed under arrest in the harbor?”

“That’s correct.”

On re-direct, Enoki wanted to know if the laundry Jennifer had returned to Peters was dirty or clean.

“At this point,” Peters said, “I don’t remember whether it was dirty or clean.”

“Do you recall telling me previously that you thought it was dirty?”

“No, not clearly.”

The prosecutor apparently wanted to indict Jennifer for not having done Joel’s laundry as promised. The point was that Jennifer had taken the time to return the clothing even though she knew that the authorities were in hot pursuit. I would have a lot to say about this in my summation.

As Peters stepped down from the stand and passed in front of the defense table, Jennifer smiled at him and whispered, “It was clean, Joel.”

He nodded and grinned.

The Government next called Donald Stevens. The square-jawed Stevens, wearing a navy-blue sweater, looked like the quintessential man of the sea. In a husky voice, the naval architecture graduate from the University of Michigan said he designed ships for a living in Portland, Oregon. He’d logged some twenty thousand miles of ocean sailing, including a visit to Palmyra in July 1974 aboard his sailboat, the
Shearwater
, with his friend Bill Larson.

Asked by Schroeder to describe the condition of the
Iola
, Stevens responded that she was an “older-looking boat, slightly run-down.” He also noticed cracks in the fiberglass “between the wood planks,” indicating water leakage.

Stevens said he and Larson spent most of their time working on the
Shearwater
and exploring Palmyra. In between, they visited with the other folks on the island. Jennifer told him the
Iola
had leaked during the trip down from Hawaii, necessitating constant pumping. He also learned that her provisions were low. “We gave them a bag of corn flour and several tins of corned beef,” he said.

Schroeder brought out that the Grahams had on one occasion come aboard the
Shearwater
and that Stevens had visited the
Sea Wind
three times. But not once had he seen Jennifer Jenkins or Roy Allen aboard the Grahams’ boat.

Stevens said he went out on the Zodiac with Mac more than once. “He handled the dinghy very aptly. He was a competent and experienced sailor.”

The witness recalled the time he and Larson were invited by the Grahams to explore on the opposite side of the lagoon, and he and his friend had invited Jennifer. When Muff found out Jennifer had been invited, she was displeased, telling Stevens and his friend they shouldn’t have invited her.

Although the naval architect’s testimony on direct was not helpful to the defense, it was refreshing after that of the Leonards. Clearly, he was not out to “get” Jennifer. Stevens replied in a careful, thoughtful way, never offering more than he was asked. At the start of cross-examination, Len underscored this not-so-subtle difference.

“You don’t feel like you belong to either side in this case,” Weinglass said. “You’re just here to tell the truth.”

“That’s right.”

Len wanted to know if in the nine days that Stevens was on Palmyra, he had come to know Jennifer well.

“Yes.”

“Did you find her to be friendly?”

“Yes.”

Stevens, who testified he had actually boarded the
Iola
, repeated his testimony at Buck’s trial that although he would never have purchased the
Iola
, he felt the boat was “seaworthy.”

Next, Stevens refuted Jack Wheeler’s testimony that sailing from Palmyra to Fanning would have been impossible because of the prevailing winds and current. When the
Shearwater
departed Palmyra under sail, Stevens explained, they headed east to a point just north of Fanning, at which point they turned north toward Hawaii.

“You could have just dropped down into Fanning while under sail?”

“Yes, we could have.”

“So, in your opinion it would be possible to sail from Palmyra to Fanning?”

“Yes.”

If the Government had not called Stevens to the stand, we certainly would have had reason to do so.

In pursuance of the accidental-death possibility, Len next brought out that Stevens had been in the Zodiac when Mac was racing so fast that the nose of the craft “planed” out of the water as high as twenty-five degrees before settling down to a fifteen-degree angle. And yes, Stevens agreed, there were plenty of aggressive sharks at Palmyra.

On re-direct, Schroeder wanted to know if returning to Hawaii from Palmyra would be a more difficult sail than coming down.

“Yes, because it’s against the wind
and
current.”

“Would it not be a somewhat frightening experience to be sailing a thousand miles against the wind and current on a boat that was leaking?”

Stevens didn’t answer directly, only saying that “if it was leaking, it would tend to leak more going against the wind.”

Tom Wolfe, now sporting a full beard, but wearing a conservative dark-blue suit befitting his occupation as a consulting engineer, next came to the stand.

Wolfe, who had logged “pushing forty or fifty thousand miles” at sea under sail, testified he “would not have taken a long voyage in the
Iola
,” that the boat “did not appear to be seaworthy to me.”

Wolfe was a critically important witness, since he and his crew mate had been the last persons to observe the relationship between the Grahams and Buck and Jennifer, just two weeks before the murders.

“Did you ever have occasion to talk to Miss Jenkins about how she and Roy got along with the Grahams?” Schroeder asked.

“Yes, she indicated to me, well, the best way to express it,” Wolfe said, “would be that both couples had come down to Palmyra expecting to live on a deserted island as the only couple, and there were other people there, and it had been an irritation to both of them. Both couples felt that the other had invaded their privacy.” Wolfe said it was his impression from talking to Jennifer that the two couples were no longer speaking to each other.

Thus far, this was the strongest
^*
and most damaging testimony at either Jennifer’s or Buck’s trial that there was friction between the two couples, since this allegedly came from Jennifer’s own lips.

“Did Jennifer ever talk to you about the state of their food provisions?” Schroeder asked.

“Yes, she did.”

“And what did she say about that?”

“She said they were out of nearly everything. No sugar. No flour. No meat.”

“Did she mention what they had been eating?”

“Coconuts and fish.”

“And did she say anything about that?”

“She said she was sick and tired of eating coconuts and fish.”

Wolfe went on to say that Jennifer characterized her efforts to grow a vegetable garden as unsuccessful.
^†
He said he gave Jennifer flour and sugar out of pity, and that she subsequently baked and delivered a loaf of bread to the
Toloa
.

Like Stevens and the Leonards, Wolfe said he’d visited the
Sea Wind
a number of times and had had the Grahams over to his boat, but not once had he observed such reciprocal visits between the Grahams and Jennifer and her boyfriend.

“What did you observe regarding the
Sea Wind
’s food supplies?” Schroeder asked.

“The
Sea Wind
’s food supplies made my mouth water. They had canned hams and big, whole frozen turkeys and chickens. All sorts of fancy foods, canned and otherwise. Large bags of flour and rice.”

Court now recessed, and the jury filed from the room. A few minutes earlier, during a lull in the questioning, I had gone over to Schroeder and reminded him that before he attempted to introduce Wolfe’s testimony concerning the missing rat poison, he should ask for the recess.

It was now time for the judge to resolve an issue I had raised in a written motion on the eve of trial as to whether the Government should be allowed to introduce testimony that was so prejudicial at Buck Walker’s murder trial.

“What are you going to ask the witness, Mr. Schroeder?” Judge King asked once the door to his right closed behind the last juror.

“Your honor, Mr. Wolfe had observed a fairly good supply of rat poison in a shed on the island. On the day before he left the island, he observed that the rat poison was gone. He got very concerned and he told the Grahams about this.”

Schroeder said it was important in establishing the state of mind of the Grahams. The jury might infer, he continued, that if the Grahams were aware that this rat poison had been taken from the shed, they would have been far less apt to invite Jennifer and Buck aboard the
Sea Wind
for dinner on August 30.

Obviously, that was not the real reason the prosecution wanted to slip in the rat-poison testimony.

“Let me hear from Mr. Bugliosi.”

“Your honor,” I said, “there’s a very cogent reason why the rat-poison testimony should not come in.” I referred to Rule 403 of the Federal Rules of Evidence, which provides that evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

“The Government realizes that the danger of unfair prejudice is great if the rat poison comes in,” I continued, “and that’s why, in their brief, they never even attempted to respond to my Rule 403 objection, even though it was the centerpiece of my brief. There is only one reason why the Government is offering the rat-poison testimony: to imply to the jury that the Grahams were poisoned to death. They want to do this by way of a free ride without producing one speck of evidence that Muff Graham was poisoned to death, and they don’t have the candor to admit that to this court.