And the Sea Will Tell (49 page)

“They want the jury to believe that the cake that Buck and Jennifer allegedly brought to Mac and Muff was laced with rat poison. At Buck Walker’s trial, they even called Shoemaker for the cake testimony
immediately after
Wolfe testified to the rat poison. Not a coincidental coupling of witnesses, I am sure. The court has my declaration under penalty of perjury about the enormous prejudice that most likely occurred at Buck Walker’s trial when that testimony came in—spectators in the corridor speculating that the cake was laced with rat poison.

“Their contention that they’re offering the rat-poison testimony to show that the Grahams wouldn’t have invited Buck and Jennifer aboard the
Sea Wind
is just pure buncombe. They don’t need it to prove that point. They have all types of other evidence, including Muff’s apparent deathly fear of Buck, the cultural differences between the two couples, and testimony that the Grahams would never invite someone aboard their boat if they weren’t present. So it should also be excluded as cumulative.”

Telling the court that with respect to the Government’s motivation, “I don’t smell rat poison here. I smell a rat,” I said the defense was “extremely concerned about this issue. I can’t tell you how serious this—”

“You don’t have to,” Judge King said. “Otherwise you wouldn’t argue.”

“But this particular issue is more—”

“Have you finished your argument?” the judge interrupted.

“Yes.”

Looking to the Government lawyers, Judge King asked deadpan: “Any rebuttal?”

Schroeder acknowledged that the defense would be entitled to a cautionary instruction from the court that the rat-poison evidence be considered by the jury only as it related to the state of mind of the Grahams. “But Mr. Enoki is familiar with the forensic evidence on whether or not poison was found in the skeletal remains of Mrs. Graham.”

“Well, there wasn’t any found, was there?” asked the judge.

Enoki now stood next to his co-counsel. “We have no evidence of poison in the bones,” he admitted.

Judge King was ready to make a ruling. “I’m satisfied that the rat-poison testimony should be excluded in this case for the reasons Mr. Bugliosi gave. You already have all the state of mind you need, and also, this particular piece of evidence is more prejudicial than probative on that issue. I will sustain the objection to the evidence about the rat poison. Let’s call the jury back.” It was a crucial victory for the defense.

From my several telephone interviews with Wolfe, on cross-examination I put him in the same “fair and factual” category of Government witness as I did Don Stevens and several others. I knew he would allow me to extract a number of points favorable to Jennifer.

First, I elicited Wolfe’s testimony that he became aware while he was on Palmyra that on occasion Mac Graham would bring some of the fish he caught over to Buck and Jennifer. Next, I established that Wolfe had been in the Graham’s Zodiac dinghy many times. Asking Wolfe to stand up and take a look at the aluminum box found next to Muff’s remains, I asked if the container would fit inside Mac’s Zodiac.

“It would be bulky, but you could get it in.”

Moving along, I asked a series of questions the answers to which would help me make the argument in summation that Buck Walker not only murdered Muff Graham, but he did it alone and without Jennifer’s knowledge:

Was it the witness’s impression, I asked, that Buck slept alone in his tent on the island at night and Jennifer slept aboard the
Iola?
(Jennifer, of course, would herself testify that Buck lived on shore, but independent corroboration was important.)

Wolfe retreated a tad from the positive statement he had made to me during my interviews of him. “That was my impression,” he said, “but I never saw any conclusive evidence of that.”

I next showed the witness Buck Walker’s .22 revolver, which had been found on the
Sea Wind
when it was searched by authorities in the Ala Wai harbor. “This was the revolver you saw Buck Walker remove from his tent before you went fishing?”

“That’s correct.”

In the argument I had already crafted, I needed to show that the revolver Buck had on Palmyra was taken by him aboard the
Sea Wind
back to Honolulu.

I asked Wolfe about the time he and the Grahams had gone exploring and Mac, anticipating a return after dark, had turned on the
Sea Wind
’s masthead light. Wolfe confirmed the incident, noting that it was particularly important at Palmyra to leave lights on in the event of a planned return after sunset because the island was close to the equator. “Once the sun started to go down,” he added, “darkness fell very quickly.”

“It’s true, is it not, that from where your boat and the
Iola
were situated, looking toward shore, you could not see anything at all, except heavy foliage and vegetation?” I asked.

“Well, as I recall, that’s correct, yeah.”

I next elicited that it was no exaggeration to say that “millions of birds” lived on Palmyra and were very noisy.

I now moved on to other matters:

“Where was Mac’s workshop located in relation to the
Sea Wind
?” I asked.

“The workshop was very close to the
Sea Wind
, fifty feet maybe. But you had to walk into the trees to reach it.”

“You saw Mac in the workshop many times without Muff being present?”

“I saw him at the workshop at times when Mrs. Graham was on their boat.”

“You testified yesterday about this conversation you had with Jennifer with respect to the relationship between the Grahams and Buck and Jennifer,” I said. “During this conversation,
Jennifer told you, did she not, that she and Buck were going to Fanning?
”

“That’s correct.”

If there was one piece of unequivocal testimony I wanted out of Wolfe more than anything else, this was it. I had asked the question with fingers figuratively crossed, since Wolfe, though impartial, could be unexpectedly and disconcertingly indefinite in some of his answers.

I next elicited the fact that when Buck Walker’s dog bit Wolfe, Buck never even apologized.

“Mr. Wolfe, would you describe for the jury, who never met the man, your impression of Buck Walker? What type of person was he?”

Schroeder came to his feet. “Your honor,” he said, “we would think that that would be irrelevant.”

If Buck Walker was a nonperson at this trial, that was just fine with the prosecution. But it wasn’t for the defense.

Court: “Overruled.”

“He didn’t talk a lot,” Wolfe finally answered. “It was very, very hard to get any conversation out of him. He was difficult for me to relate to, personally.”

“Did you tell me, in describing him, that ‘he was a scary guy’?”

“Yeah, I remember. And that’s true.”

“You also told me you became afraid of Buck Walker. Is that correct?”

“No, I wasn’t afraid of Buck Walker. I was
wary
of him.”

“What about Jennifer?” I asked. “Were you afraid or wary of her at all?”

“My relations with Jennifer were always friendly, cordial.”

“Did you tell me that you liked Jennifer?”

“I said I sort of liked her.”

Finally, I wanted Wolfe’s help on suggesting to the jury why Buck would have put the bodies in the aluminum boxes and dumped them in the lagoon.

“There’s just a few inches of soil above the coral rock on Palmyra?” I asked. “Is that correct?”

“That is correct.”

“So, one could not dig a deep hole on the island?”

“Not with any conventional tools, no.”

On re-direct, Schroeder asked Wolfe if it would be difficult for a man to climb into the Zodiac after loading aboard
two
boxes the size of the one in the courtroom.

“I think he’d have trouble getting himself into the Zodiac with two boxes aboard.”

“After you were bitten by the dog, did Jennifer apologize or say anything to you?”

“No, she didn’t.”

Jennifer had told me she had.

Schroeder wanted to know what Wolfe thought about a trip to Fanning on a sailboat with no motor.

“It would have been very tough,” Wolfe replied. “Fanning is directly upwind from Palmyra. And there’s big waves and lots of wind and that’s a very rough trip in a small boat.”

“Would you have been willing to go to Fanning Island in the
Iola
?”

“No. No way.”

On re-cross, I came back to the aluminum boxes. “Mr. Wolfe, if one wanted to, one certainly could get on the Zodiac with two of these containers aboard. Is that correct?”

“Probably one could get the two boxes in there and sit on one of them.”

As Tom Wolfe stepped down and walked from the courtroom, I knew he must have been relieved that the Palmyra chapter of his life had just ended. A short visit to an isolated Pacific atoll twelve years earlier had come to require his testimony at
four
criminal trials in Hawaii and California. Curiously, appearing at Jennifer’s murder trial may have been the most difficult, because of an incident only a month earlier at his rented Puget Sound beach home in the Seattle suburb of Magnolia.

One night, a fierce storm with howling winds and driving rain had hit from the south. By morning it had cleared, and Wolfe went out at first light for a walk along the shore. Just forty feet from his house, washed up on some rocks, lay a long tube of what looked to be a rolled-up navigational chart. Wolfe flicked some seaweed away and unrolled his finding. Unbelievably, it was a chart of
Palmyra Island
!

In telling me this strange tale, Wolfe wondered what forces in the universe could have caused the Palmyra chart to wash up literally at his doorstep on the eve of Jennifer’s trial. “Finding that damn chart was eerie, Vince. I’m not the superstitious type, but I’ll admit, it
really
shook me. It was as if Palmyra—the island itself—had reached out and touched me from three thousand miles away.”

T
HE GOVERNMENT’S NEXT TWO
witnesses, Dr. Douglas Uberlaker, the anthropologist, and San Francisco chief medical examiner Dr. Boyd Stephens, would provide, with slight variation, the same scientific and medical evidence they had at the Walker trial. This time, though, their testimony would be helpful to the defense as well.

We needed this evidence because I planned to use much of it to prosecute Buck and exonerate Jennifer. For instance, I had already prepared arguments on why a sledgehammer-type instrument rather than a gun was probably used on Muff, why there were only
localized
burn marks on Muff’s skull, and so forth. In fact, if the Government never presented this evidence, the defense would have had to do so. But this would have involved spending a considerable amount of time and effort working with the various experts, and the cost of their witness fees, plus their transportation, hotel, and meals, would have been exorbitant, if not actually prohibitive. The defense budget for such expenses was not substantial,
^*
and Len and I did everything possible to pare costs without compromising the quality of our defense. So, unwittingly, Enoki was underwriting an important part of our case.

It was now time for Jennifer’s jury to see what was left of Muff Graham—the woman she was accused of murdering—in death.

Asked by Enoki to identify the contents of the cardboard box before him, Uberlaker peered inside, but removed nothing.

“Do those appear to be the same skeletal remains of an adult Caucasian female that you examined in 1981?” asked Enoki.

“Yes, they do.”

“Would you examine the contents of the box and see if the skull you examined is in there?”

Uberlaker reached into the box with his long, thin hands, rustling the collection of plastic bags. He lifted out Muff’s skull, holding it in the casual way a shopper might balance a cantaloupe at the produce stand before deciding to buy it. To the anthropologist, this was nothing more than a scientific specimen to be examined and analyzed. Uberlaker smiled, actually smiled, and said nonchalantly: “This appears to be it.”

“Is there an exhibit number on the side of it?” Enoki asked clinically.

“Government exhibit 24,”
^*
Uberlaker said, reading the tag.

Everyone in the courtroom understood this had once been Muff Graham, and we were all faced with the stark reality that a human being now lay in tagged pieces piled in a supermarket carton. The two openings where Muff’s eyes had been had an uncanny way of catching a shadow from the overhead lights. Whenever Uberlaker moved the skull, the shadows narrowed or widened, rather like shifting eyes watching over the proceedings. Only a few of her top teeth, so white and gleaming in life, remained. They were now badly yellowed and broken. The gold cap on the upper left was perfectly intact, however, as it had been when its bright gleam caught Sharon Jordan’s attention. Muff’s bottom row of teeth, the jury would soon learn, was set in the detached jawbone, which carried another exhibit tag and was still inside the box in a plastic bag.

A pallor had settled over the faces in the jury box. Every juror in a murder case awaits that moment of connecting with the victim for the first time. Almost invariably, it is evoked by a gruesome photograph of the murdered victim. Seldom do grisly remains like a skull and bones come before a jury. The jurors had seen photos of a smiling Muff standing next to her husband aboard the
Sea Wind
. They knew that the disassembled skeleton in the carton was not an anthropologist’s research material, but belonged to the same Eleanor “Muff” Graham, loving wife, devoted daughter, attentive friend. Now: murder victim. For the jurors, their responsibilities had suddenly transcended civic duty. There was now a visceral bond to
their
victim that would not dissipate during the trial. Such a bond, though not necessarily detrimental to the accused, can never be helpful.

After Uberlaker ruled out sunlight and fossilization as the reason for the whitened area on the left side of the skull, Enoki asked if the simple process of decomposition and decay could have caused the whitened area. Uberlaker responded that in examining in excess of ten thousand skulls in his twenty-year career, some of them tens of thousands of years old, he had never seen “natural processes that had an effect like this one.”

The inference was inescapable. Muff had been
burned by human hands
.

After Enoki read a two-sentence stipulation that the remains were those of Mrs. Eleanor Graham, Weinglass began his cross-examination. It was soon clear that Len had receded even further to his original position of challenging the murder. He asked, “You can’t tell the court and jury, based on your examination of the skeletal remains, what the cause of death was?”

“No, I can’t.”

Len then asked, “In your examination of the skeletal remains, you found no signs of foul play?”

“No.”

Judge King registered unhappy surprise. “You found
no
signs of foul play?”

“There’s nothing on the skeleton,” the anthropologist answered evenly, “that I can positively say is an indication of foul play.”

Uberlaker was demonstrating what trial lawyers all know. “Experts” don’t always testify like experts. He had testified on direct examination that “extreme heat” was applied to Muff’s skull “at about the time of death” by nonnatural means. This was certainly an indication of foul play.

Still doggedly pursuing the non-murder theory, Len asked: “Now, you’ve previously stated under oath [at the Walker trial] that you found some black residue areas on the skull indicating a second burning
years after
the flesh was off the skull, isn’t that correct?”

“Yes.”

“When the prosecutors visited you in 1984, did they tell you that Gilbertese natives had visited the island five years after the disappearance of Muff Graham and had left just seven months before the bones were found?”

“No.” Still outwardly dispassionate, the witness nonetheless perked up with scientific curiosity.

“If you had this information, and given your opinion about a second burn on the skull that occurred years after death, would you have inquired as to the ritual practices of the Gilbertese natives?”
^*

“Well, perhaps I would have. Or I might have recommended to the investigative officials that they look into it.”

“But that wasn’t done.”

“It wasn’t done.”

Tinged with exoticism, the “second burning” possibility deepened the mystery of the case.

Weinglass now asked about the hole in the skull. “In your written report did you write, ‘The hole in the left temporal area appears to have been made by erosion, not by trauma or projectile’?”

“That sounds correct.”

Enoki lowered his head. In his opening statement, he had suggested that the hole in the skull was from a gunshot.

Weinglass asked next about the fractures to Muff’s bones. “You can’t tell if those fractures occurred prior to death or during the process of death or years after death, can you?”

“I think I can say, fairly confidently, they did not occur a long period before death because there’s no evidence of a healing process that took place. But,” continued the doctor whose specialty was the detritus of death, “I cannot determine whether or not those fractures occurred at about the time of death or long after death.”

“So, those fractures which you found could have occurred in the bones years later?”

“Theoretically, yes.”

With Len contesting the murder, while I had already announced to Enoki that provisionally I would concede it, I couldn’t help but wonder if the prosecutors were thinking,
What type of fractured defense is this?
But it was a disagreement in tactics that fortunately was not injurious to our cause.

Although Len was handling all the medical and scientific witnesses, I worked closely with him and suggested a question here and there to elicit testimony I needed for my summation. On one occasion, if the jury was listening closely, Len sounded as if he was trying to proceed in two opposite directions at the same time. I had Len (after he had just asked questions designed to show the possibility of
no
foul play in Muff’s death, and that the whitening to the skull could have occurred as a result of a fire on the beach long after Muff’s death) ask Uberlaker two other questions. First, could an acetylene torch (which the jury knew Mac had on Palmyra, and hence was available to Buck) have caused the whitening? Yes, Uberlaker answered. Second, could the whitening have been caused by the application of the torch for as short a time as five minutes? Again, yes.

It was one thing for Uberlaker, the expert witness, to have given clearly inconsistent testimony previously (“extreme heat” being applied to Muff’s skull “at about the time of death” was no sign of foul play), but with Len’s last two questions the jury probably thought the good doctor’s confusion had become contagious and infected my co-counsel.

Uberlaker had no sooner stepped down from the witness stand than portly Dr. Boyd Stephens was already ambling across the courtroom in a sport coat that looked as if it had shrunk. His coat clashed with his slacks, too short by several inches, and his bow tie was crooked. Dr. Stephens evidently had weightier matters on his mind than stylish wardrobe.

Dr. Stephens supported his description of himself as an expert in the “morbid sciences” by estimating he’d examined “many thousands” of dead bodies, including persons who had died by fire, drowning, gunshot, and other assorted calamities. However, the pathologist once again admitted that after examining the remains of Muff Graham, he was unable to determine the cause of death.

Enoki asked Dr. Stephens if he found any evidence of stabbing on the skeletal remains.

“No,” Dr. Stephens replied.

“Any evidence of poisoning?”

“No.”

With the rat-poison testimony excluded, this interchange did not harm the prosecution. But what benefit did Enoki hope to achieve?

“Did you specifically test for poison?”

Why was Enoki continuing to pursue this matter when there was no evidence of poison?

“No, but if a person had been exposed, for instance, to arsenic over a long period of time and it was actually in the bone substance, then I should have picked up on it.
A short exposure I wouldn’t have seen
.”

It seemed Enoki was trying to drop a seed in the jury’s mind that there may have been poison in the cake that Jennifer and Buck had allegedly brought to the Grahams on August 28. But how could I respond without making the possibility even more prominent in the jury’s mind than it might already be in its unstated but implied form?

Enoki next explored the possibility that Muff had been shot to death, and in more depth than he had at the Walker trial. Under his questioning, Dr. Stephens said the hole above the left ear in Muff Graham’s skull had a “very roughened margin” associated with “coning,” which he defined using the example of a BB shot hitting a plate-glass window. The force causes a concentric (circles with a common center) expansion of the hole in the direction of travel; that is, the hole gets larger as the force pushes
inward
. But since the hole in the skull in this case was larger on the outermost surface of the skull, the prosecutor asked for an explanation.

In a “contact gunshot” wound, in which the muzzle of the gun is touching or very close to the body, the gas pressure generated by the burning of gunpowder in the closed confines of the skull would cause
reverse
coning, said Dr. Stephens. “In other words, the coning would be in the opposite direction of travel”—the hole would be largest at the force’s initial point of entry and would get smaller as it proceeded inward.

“If this hole is a gunshot wound, it’s a contact gunshot wound,” Dr. Stephens concluded.

If Muff had been shot, then, it had been at point-blank range, execution-style.

The absence of an exit wound did
not
rule out a gunshot wound, Dr. Stephens said. “We’ve had many examples of contact gunshot wounds where the bullet does not make it to the other side of the skull.”

Enoki asked for permission to approach the witness with Buck’s revolver in his hand.

“I’ll let you take it up there,” Judge King said. In an aside directed to me, the judge said dryly, “There are some exceptions, Mr. Bugliosi. Skulls and guns.”

During a recess several witnesses back, I’d asked the court clerk to ask the judge whether I could approach the witness during my cross. The clerk had returned from Judge King’s chambers with his answer:
No
. Then, five minutes later, she had come back and said the judge had changed his mind. I could approach the witness, but only if I asked for permission to do so
before the jury
. I told the clerk, “Tell the judge I reject his counteroffer.”
Credibility
with the jury. Enoki had approached witnesses with the skull and now the gun, but each time he had been required to ask permission in front of the jury like a schoolchild asking to go to the bathroom.

Dr. Stephens held the gun with the aplomb expected of someone with a working knowledge of the various means of death. “I’ve examined this before,” he said. “It’s a .22-caliber Ruger Bearclaw.”

“Is there anything about this pistol or the caliber of this pistol that would preclude it from being the source of that hole in exhibit 24, the skull?”

“No, there is not. A .22-caliber pistol has all the capabilities necessary to make such a wound, both in penetrating the skull and even producing the reverse coning.”

After a short recess, Weinglass approached the podium with his characteristic smile and friendly greeting. His kindly courtroom style never faltered.

He asked if Dr. Stephens knew that Uberlaker, the Government’s anthropologist, had thought the hole in the skull was caused by erosion.