And the Sea Will Tell (52 page)

“Did you find any markings on the cowling [the housing] of the Evinrude that could have been left by coral?” asked Enoki.

“No, I didn’t.”

The prosecutor knew Jennifer would testify that the dinghy lay on the lagoon beach, described by several witnesses as mostly coral.

On cross-examination, Weinglass tried to soften White’s last finding. “You weren’t asked to look at the cowling at the time of your examination. You were looking to see if there was salt inside the engine. Isn’t that right?”

“No. We also were asked to see if there was any abrasive areas on the Zodiac. And we did check out the engine cowling also.”

At such times, it’s best to move on. Rapidly.

But I was not greatly worried. Buck could have turned over the Zodiac and left it on the beach in such a manner that the cowling would not scrape against coral. After all, the Zodiac was going to be all his in the near future.

I
HAD LONG
believed that the next witness, retired FBI Special Agent Calvin Shishido (who was now working for a Honolulu law firm as a private eye), was among the most critically important witnesses against Jennifer. In light of Ken White’s testimony, if the jury believed that Jennifer had told Shishido, as he claimed, that she and Buck found the Zodiac overturned
in
the water of the lagoon, this could devastate her credibility with the jury and very strongly indicate her guilt.

Shishido unbuttoned his beige suit jacket and made himself comfortable on the witness stand as he waited patiently for the first question. Obviously, he had been here many times before.

Enoki had Shishido relate what Jennifer had told him when he first interviewed her on the Coast Guard cutter.

“…she said they found the Zodiac dinghy with the outboard motor
overturned in the water
the following morning. The gas tank was detached and floating nearby…. They continued their search for the Grahams until about September 11th, I think she said, at which time they made sail for Honolulu aboard the
Sea Wind
.”

“Do you specifically remember her mentioning that the Zodiac was found overturned
in
the water?” Enoki asked, wanting to nail the point down.

“Yes.”

Enoki asked Shishido what Jennifer had told him nearly twelve years earlier about the fate of the
Iola
. “She said she boarded the
Iola
and Roy Allen boarded the
Sea Wind
and they used a tow rope of approximately fifty feet in length to tow the
Iola
with the
Sea Wind
. But the
Iola
got hung up on some rocks, and they were unable to dislodge it. So, they left the boat there, and sailed away on the
Sea Wind
.”

“Did she say anything further about why they were using the
Sea Wind
?”

“She stated that since the Grahams had invited them to dinner and said to ‘make yourselves at home,’ she rationalized that to mean that if anything should happen to the Grahams, she and Roy could take possession of the
Sea Wind
.” Shishido smiled slightly.

“That’s what Miss Jenkins said?” Enoki asked, just this side of open sarcasm.

“Yes.”

Enoki wanted to know if Jennifer had mentioned why she and Roy Allen had not reported the disappearance of the Grahams to the authorities when they reached Hawaii.

“She said she did not want to report the disappearance of the Grahams because she was afraid the authorities would take the boat away from her.”

Shishido testified to his inspecting the
Sea Wind
after Jennifer’s arrest to look for evidence. He noticed that on the stern of the boat, “underneath the new paint you could see the name
Iola
,” which had been painted over. Among other things he found Buck’s .22-caliber Ruger Bearcat pistol and the
Iola
’s log, but no log pertaining to the
Sea Wind
, nor any diary written by Mac or Muff Graham.

Shishido told about the November 1974 search of Palmyra and its lack of results. When he returned to Palmyra in February 1981 to recover the bones found by Sharon Jordan, he also recovered the aluminum container, its lid, and a length of wire found next to the bones. “I slipped the wire around the container and lid to see if it would fit,” the ex-agent said. “It did. It fit snugly.”

Enoki handed Shishido several photos, which the former case agent identified as showing Sharon Jordan pointing to the general area where the bones were found, “right in front of a line of bushes on shore.” At the prosecutor’s direction, Shishido stood and went to a map on a tripod beside the witness stand and marked the spot.

He described it as a “coral shelf that extends from the land into the lagoon,” occasionally submerged completely. “When it gets to the deep-water area, it makes a sheer drop. The shore is made up of rocks, coral, and little bits of sand.”

Enoki showed the jury an aerial videotape of the area, then sat down.

The judge looked my way. “Are you ready for cross, Mr. Bugliosi?”

My awareness of the importance of this witness must have been obvious to the jury by the reams of documents and transcripts I lugged to the podium with me.

“Yes, your honor.”

I had no doubt in my mind that the witness I was about to cross-examine was a completely honest one. I also felt, however, that he was not the most reliable one, at least insofar as this case was concerned. I first established for the jury’s edification that
all
FBI agents are called “special agents” (hence the witness before them was not part of an elite group of “special” agents within the FBI) and that he, Shishido, was the
only
witness who had testified before the grand jury that indicted Jennifer.

“On the morning of Miss Jenkins’s arrest,” I continued on with Shishido, “you received word, by way of a radio communication from the Coast Guard personnel surveilling the
Sea Wind
, that Jennifer and Roy Allen were observed leaving the
Sea Wind
and boarding a dinghy. Is that correct?”

“Yes, that’s correct.”

“Sometime thereafter,” I now asked in my prosecution of Walker (since Harry Conklin, the Coast Guardsman who had testified at Buck Walker’s trial to having observed Walker dive into the water, did not testify at Jennifer’s trial), “you learned that the man whom you believed to be Roy Allen had gone ashore, stripped his clothing off, dived into the water, and disappeared. Is that correct?”

“That’s correct.”

“With respect, Mr. Shishido, to your interview of Jennifer on the Coast Guard cutter on October 29, 1974, she was very, very eager, was she not, to tell you what happened on Palmyra?”

“Yes, sir, she was.”

“In fact, she was so eager that while you were advising her of her constitutional rights, she kept interrupting you because she wanted to tell you what happened?”

“Yes, that’s true.”

“And you had to actually stop her so you could read to her all of her rights. Isn’t that correct?”

“That’s right.”

“Did you tell her that she had a right to consult with an attorney before you spoke to her?”

“Yes.”

“And she told you she didn’t want a lawyer?”

“That’s true.”

“In fact, right off the top, she said, ‘The boat doesn’t belong to me. It belongs to the Grahams.’ Isn’t that correct?”

“Yes.”

To increase the likelihood that Shishido’s recollection of his interview with Jennifer was unreliable (most important, her alleged statement that she and Buck found the dinghy overturned
in
the water), I first sought to weaken his credibility as a witness.

“Did you tape-record your interview of Jennifer?” I asked.

“No, sir, I did not.”

“Is there a reason for that?”

“Well, we’ve found that when we do that, we rely too heavily on the tape recorder and don’t pay attention to what’s being said. And later, when we go to make the transcription, oftentimes we can’t transcribe the recording itself because the words get slurred or there is some other outside noise.”

“So you feel that now, almost twelve years later, it’s better for the jury to rely on your recollection of what Jennifer told you as opposed to listening to a tape-recorded conversation?” I asked incredulously.

His answer was fairly stunning. “I would answer yes,” he said evenly. “On some tape recordings, you can’t make out parts of the question. You can misconstrue an answer if you don’t fully understand the question.”

“But if someone wanted to verify whether your recollection of what she told you is accurate, there would be no way in the world to do so, isn’t that true, Mr. Shishido?”

“Well, I guess scientifically, no.”

“Her words are lost forever, is that correct?”

“Well, they’re in the memorandum that I prepared shortly after the interview.”

I asked if he had taken written notes for preparing that memorandum, and he answered that he had.

“Do you have those notes with you?”

“No, sir, I don’t.”

“Do you know what happened to them?”

“They were destroyed after I prepared my memorandum of the interview. That was the practice back then.”

“It’s not the practice now?”

“No, sir, it’s not.”

“You’ve been cross-examined many times in court by defense attorneys, have you not?”

“Yes.”

“And almost invariably, the defense attorney wants to see your notes of any interview you’ve had with their client, isn’t that correct?”

“No, sir.”

“They don’t ask you for your notes?”

“Well, on some occasions, yes, they have.”

“Knowing that they sometimes ask for your notes, is there any reason why you would destroy the notes?”

“It was just…actually, if they ask me for my notes, I can say they’re in typewritten form because I dictate
from
my notes.”

“I imagine there would have been an FBI case file on Jennifer?”

“Yes.”

“And rather than put your original notes in that case file, you just tore them up and threw them in the wastepaper basket?” I stopped and looked scoldingly at Shishido, treating the jury to a disbelieving glare.

When he answered, Shishido’s voice was barely audible: “At that time, yes.”

I paused for several beats.

“Approximately how long did you interview Jennifer on the cutter?” I continued.

“I think it took a total of about an hour, maybe forty-five minutes, somewhere in that area. At the FBI office, where we took her later, I believe it ran about an hour and a half.”

“So, we’re talking about, what? Two and a half hours total?”

“Roughly, yes.”

“Would you characterize your memory, Mr. Shishido, as being average, below average, or what?”

“I would say it’s average. On occasion, it’s above average.”

He conceded that Jennifer did most of the talking during the two interviews that day and concurred with my description of her words as “gushing out,” particularly at the beginning.

“And you condensed what she told you during this two-and-a-half-hour period into a brief two-and-a-half-page report?”

“Well, that’s true.”

“I take it that of necessity, the great bulk of the words in the report are
your
words, not hers. By that, I mean you couldn’t put everything she told you in two and a half pages, so you had to summarize, in
your
words, what you recall she told you. Is that correct?”

“That’s true.”

“If a disinterested party were to look at your report, would there be any way for them to know what words are yours and what words are hers?”

“Well, I guess they would have to listen to my side. They would have to listen to hers.”

That was not possible, of course, without a tape recording of the conversation. We were being asked to take Shishido’s word for exactly what Jennifer said in the interview.

“But your report doesn’t indicate which words are your words and which are her words.”

“Well, I said she furnished the following information. When I do that, this is what she’s telling me.”

“But she would tell you something and then you would put down what she told you in
your
words?”

“Yes, unless I used a quotation.”

“Do you find any quotation marks there in that two-and-a-half-page report?”

Shishido slowly perused the copy of his report he had taken to the stand. “No. No. I don’t see any, not in
this
one,” he finally answered.

“Do you think it’s important, in serious matters like this, to indicate in your report which words are yours and which words are those of the person to whom you are talking?”

“Yes, I think it is,” he said tonelessly.

I was deriving no pleasure out of embarrassing Calvin Shishido in open court. There’s probably no finer, cleaner, more competent investigative agency in the world than the FBI, and Shishido was a salt-of-the-earth agent who had just done his job pretty much by the book. To be honest, I felt a little sorry for the witness. On the other hand, his testimony was threatening my client’s life and liberty.

“Did you prepare your report in this case the day after you interviewed Jennifer, or later on the same day?”

“The very next day,” he said.

“Did you formulate that report from your memory of what she told you or from the notes you had taken?”

“From both memory and the notes.”

I quickly flipped to the appropriate page in my portable library. “In 1975, at a hearing in this matter, you testified: ‘I made a note of as much as I could
remember
in the memorandum I wrote.’ It sounds like the following day, you based your report not on notes you took the previous day, but on what you could remember.”