And the Sea Will Tell (53 page)

“Well, that’s not what I meant,” he answered weakly.

Having laid a foundation that Shishido’s credibility as a witness in this case was suspect, I proceeded to the key issue of whether or not Jennifer, during the interview, had told Shishido that she and Buck found the Zodiac overturned in the water of the lagoon. First, I elicited that although Shishido testified on direct examination that Jennifer told him the Zodiac was found
three-quarters of a mile
west of the
Sea Wind
, his report gave no indication where (other than in the water) Jennifer said she found the dinghy.

Then I brought out the inconsistency that at a hearing on November 8, 1974, he had testified that Jennifer had told him the Zodiac had been found a
half mile away
from the
Sea Wind
.

“I would say that if the earlier testimony said half a mile, that was more correct than what I said today,” Shishido conceded.

A small point, to be sure. But every fleck of evidence that undermined Shishido’s reliability as a witness was valuable.

“With respect to your testimony today that Jennifer told you they found the Zodiac overturned in the water of the lagoon, at the hearing in this case on November 8, 1974, at page thirteen of the transcript, you testified as follows: ‘She told me they searched the next morning for the Grahams. During the search they found the Zodiac dinghy that was used by the Grahams the night before. The dinghy was overturned. It had an outboard motor which was also overturned. They also found a gas tank that belonged to the dinghy floating nearby in the lagoon.’”

I put the transcript down and locked gaze with the witness. “Mr. Shishido, when you say ‘they found the dinghy overturned’ and then say they found the gas tank ‘floating nearby in the lagoon,’ doesn’t it sound from the context as if you recalled her telling you they found the dinghy
on shore
, and the gas can floating
in the water
nearby?”

“No, sir, it does not. When you’re on the stand testifying, you just go into the general details oftentimes. And I may have done that in that instance. But at the time of the investigation, my recollection is that she said the dinghy was found overturned in the lagoon. But if the motor had overturned
in
the lagoon, how could they have turned it upright, attached a gas can, started the motor, and continued the search? Because the motor I doubt would have run.”

“That would have been a good question. Did you ask her it at the time?” I wanted to know, getting the ball back over the net.

“I may have.”

“What did she say?”

“I don’t remember the answer.”

“And there’s no tape—”

“
My guess
is she said, ‘Well, I don’t know, we did it, you know.’”

“We just have your memory of this, is that correct?”

“Yes.”

I walked as close to Shishido as I thought I could without asking Judge King for permission to approach the witness. Looking deeply into his eyes, I summed up his testimony. “Actually, Calvin,” I said, lowering my voice and speaking almost conversationally, “you really don’t have the best recollection
of what she told you
at all. Isn’t that true?”

The former FBI agent, his confidence and composure on the stand having gradually faded, said quietly, “I don’t have perfect recollection. That’s right.”

It was a dramatic courtroom admission, but Shishido’s credibility had been so damaged in the last half-hour that he had little choice. His principal testimony—that Jennifer had told him they found the Zodiac overturned in the water, as opposed to on the beach—was now at least open to question.

It was still an issue, however, and I knew I had to travel some additional miles with other witnesses to convince the jury that Jennifer had told Shishido the dinghy was found on shore, and that his critical entry to the contrary in his report was in error.

As we moved on, Shishido acknowledged that Jennifer had gone to the rest room at the yacht club after she had boarded the Coast Guard cutter. The next critical question was whether he had required her to empty out her purse in his presence on the cutter beforehand, or later at the FBI office. But before posing it, I wanted to get him to commit himself to a position that would paint him in a corner. In other words, if Shishido had considered Jennifer a suspect while on the cutter, the great likelihood was that he would have had her empty out her purse
before
going to the rest room, as Jennifer claimed. I needed this testimony to knock out the Leonards’ implication that Jennifer had flushed incriminating evidence down the toilet. I expected Shishido would readily concede that Jennifer was considered a suspect while on the cutter. But I was wrong. It was about as easy as getting the Pope to say he wasn’t Catholic.

“At the very moment that you brought her on the Coast Guard cutter, she was a suspect, is that correct?” I began.

“Well, I wouldn’t say immediately when she was brought to the cutter she was a suspect. I didn’t think of her so much as a suspect, but as a witness.”

I was going to have to dig. “You had instructed the Coast Guard to keep the
Sea Wind
under surveillance, had you not?”

“Yes.”

And Shishido conceded, of course, that he had joined in pursuing Jennifer in the harbor.

“And yet, in your mind, she was just some
witness
you wanted to talk to?”

“Well, that’s true, because at this point, I felt that we had no real jurisdiction but to assist the Coast Guard in trying to determine to whom that boat belonged. Now, when it came to the point where the Grahams were not there, that the Allens were in possession of the boat, then, of course, my concern came for the safety of the Grahams, and that possibly there could have been some foul play.”

“So you did suspect foul play
before
you even spoke to her.”

“Well, not really, because at that point, I really didn’t know if the Grahams were just left stranded on Palmyra. But foul play in the sense of illegal possession of the boat, yes.” Shishido had become as elusive as mercury.

“So, you were very suspicious.”

“Not really. Just because we didn’t see the Grahams on the boat at the time, didn’t mean that…maybe they had gone shopping and their guests, the Allens, were still on the boat. Those were questions I had. At the time, you know, there were a lot of possibilities.”

I pressed on, feeling almost like someone enticing a wary bird with crumbs. “Mr. Shishido, you’ve already testified that at the very beginning of your interrogation of Jennifer you advised her of her constitutional rights. Is that correct?”

“Yes.”

“If you only viewed her as a witness when she first came aboard the cutter, why at the very beginning did you advise her of her constitutional rights?”

“Because, like I told you, there were several options open in my mind. There could possibly not have been a crime, but then there also was the possibility that there was a crime. Say of murder.”

“But you do not advise a simple witness of their constitutional rights, do you?”

“Well, sometimes I do. It depends on whether I feel that the witness may have some complicity in a particular crime.”

Shishido was trying to justify the unjustifiable. Like any witness, he was not eager to admit that his actions didn’t make sense. Since I had started bearing down, Shishido appeared increasingly less comfortable on the stand. He no longer rested his hands on the railing, but nervously folded and unfolded them in his lap. At times, he seemed bewildered by my questions. Occasionally, he looked toward the prosecution’s table like a Little League pitcher, with bases loaded, seeking cues from his dad in the bleachers.

“If Jennifer had given you a good explanation for what happened to the Grahams, and why she was on the boat, you would not have considered her a suspect, is that correct?” I sensed that we were finally near the crux.

“That’s true.”

“But in point of fact, in your mind she did not give you a good explanation.”

“That’s right.”

“So,
right near the beginning of your interrogation
of her, she
did
become a suspect in your mind. Is that correct?”

The veteran agent frowned. “That’s correct,” he at last said.

“In fact, at that point, if she had said to you, hypothetically, that she had an appointment at the beauty parlor and she didn’t want to stay on the cutter any longer and she wanted to leave, you would not have let her go.”

“I would have detained her at that point.”

Finally
: “Now, isn’t it standard routine procedure in the FBI, Mr. Shishido, to have a suspect at that point empty their purse, or bag, or what-have-you, to protect the agent from any hidden weapons?”

Shishido looked distinctly troubled. “That’s true.”

“Another reason why this is done is that many times incriminating evidence is found in the purse or bag, is that correct?”

“That’s true,” he acknowledged again.

“And in this case here, you
did
have Miss Jenkins empty the contents of her purse in your presence aboard the Coast Guard cutter. Isn’t that true?” He had to agree, I thought.

“That’s true…well…on the Coast Guard cutter, I don’t remember that I asked her to empty the contents of her purse. I thought it was later, at the FBI office, that I did that.”

“So, you’re telling this jury, then, that even though she was a suspect in a case possibly involving murder, you let her leave your presence on the cutter and go into a rest room with a purse that you hadn’t looked into? Is that what you’re telling us?”

“That’s right. Now,
you
may say she’s a suspect—”

“We’re talking about what
you
considered her situation to be, not what
I’m
saying. You’ve already testified you thought she was a suspect.”

“Right. But a suspect in the theft of a boat.”

“We’re also talking about
murder
, Mr. Shishido,” I said loudly.

“Well, it’s just…well, I really don’t know about the murder yet, at this point.”

I shook my head solemnly for the jury and laid the issue to rest at that point, going on to a series of miscellaneous matters characteristic of my method of establishing bases for summation:

I had Shishido confirm that he had seen and heard the Grahams’ Zodiac being operated and the motor “made a very loud noise” that at the time he interviewed Jennifer, he thought the man she was with was named Roy Allen, and Jennifer had never informed him that Roy Allen was Buck Walker; that when Lieutenant Wallisch of the Coast Guard tried to take Puffer away from Jennifer so an animal regulation official could impound her, Jennifer had refused (although Shishido could not remember Jennifer’s having cried) and eventually she had been permitted to turn the dog over to Joel Peters, etc.

I next handed the witness Government exhibit 16, the inventory of items from the
Sea Wind
that had been turned over to FBI custody.

“Item number 26 reads: ‘Navigational logs contained in a five-by-eight plastic folder.’ Could that have been the log of the
Sea Wind
?”

“Well, I really don’t know.”

“You testified on direct examination that there was no log of the
Sea Wind
found aboard the boat. Are you willing to amend your testimony now to state that the navigational logs, inventory item number 26, may have been the log of the
Sea Wind
?”

“Well, no, I wouldn’t change my testimony because I still don’t remember seeing any logbook for the
Sea Wind
.”

“Yet these ‘navigational logs’ certainly were not the log of the
Iola
. You agree on that?”

“Yes. Because we have the log of the
Iola
.”

“So, item number 26 is some other log, and you don’t know what it is.”

“That’s right,” Shishido said. “I really don’t know what that is.”

“And you don’t know where item number 26 is at the present time?”

“No, sir, I don’t.”

I switched topics.

“Jennifer told you in 1974, to the best of your memory now, that they found the overturned dinghy about three-quarters of a mile west of where the
Sea Wind
was moored. Is that correct?”

“Yes.”

“And, as it turns out, the skeletal remains of Muff Graham were found in 1981 in the same general area in which Jennifer said the dinghy was found overturned.”

“That’s true.”

Shishido had testified that during the November 1974 search, the Coast Guard’s frogmen had dived only in and around the areas where the
Sea Wind
and the
Iola
were known to have been moored.

“The reason for the limited search was that the lagoon was lousy with sharks, is that correct?”

“Yes,” he answered. “And the sharks were coming in, getting too close to them. And we feared for their safety.”

“So the entire lagoon was never dredged at the bottom to try to find Mr. Graham’s body or the second container?”

“That is correct.”

Finished with the witness, I returned to the defense table, interested now in seeing where Enoki would try to plug the holes. Surprisingly, he started off in a direction I thought would prove helpful to the defense.

“Now, Mr. Bugliosi asked you about Miss Jenkins’s eagerness to answer your questions,” Enoki began. “Did she also refuse to answer some of your questions?”

Shishido regained some of his self-contained, confident manner. “She did. She refused to answer some questions.”

“Do you know the subject area of the questions that she refused to answer?”

“Well, my recollection is—I believe it was based around the identity of Roy Allen.”