And the Sea Will Tell (54 page)

I had no questions on re-cross.

During Shishido’s testimony on the witness stand, the defense had clocked some serious mileage.

A
S THE
Government’s case wound down, Sharon Jordan was summoned. Her light summer dress and white sandals suggested an afternoon of croquet upon the lawn of a country manor. She still wore her long raven hair straight down her back and was still a naturally pretty woman who, without a smidgen of makeup or trendy fashion accent, could cause men’s heads to swivel. She smiled at the judge before taking her seat. Judge King beamed back like a raffish uncle.

She had traveled twelve thousand miles from her native South Africa to tell yet another jury about her macabre discovery of Muff’s skeletal remains in 1981. What had first caught her attention as she was walking on the beach of the lagoon, she told a rapt jury, was something “glittering in the sunlight.” She approached the object. It turned out to be a “gold tooth in a skull.”

“A wristwatch and
what
was found in the lid?” an elderly lady whispered to another spectator as Jordan continued her story.

“A bone.”

“A boat?”

“A bone.”

“Oh, my God.”

Schroeder asked if a high tide would come up past the spot where the remains were found. Yes, Jordan said, high tides would reach all the way up to the naupaka bushes, some feet farther in. (In fact, it was almost preternaturally fortuitous that the skeletal remains were not only washed ashore when someone was on the island, but that this someone, Sharon Jordon, just happened to be walking along that precise part of the beach when she was. The very next high tide would probably have pushed the bones into the undergrowth out of sight or dragged them back into the lagoon where they would have sunk and most likely been lost for eternity. The box alone would have meant nothing.)

After describing how she and her husband had raised the old Air Force rescue boat from the bottom of the lagoon, Jordan said there were four storage-hole compartments on the boat “but only two of the compartments had containers in them.” The other two had been missing, she said. The jury knew that one of them was sitting before them right in the courtroom and the other was most likely Mac’s coffin in the lagoon or sea.

There wasn’t much for the defense to ask the young woman, but Len brought out her well-founded opinion that no one could starve on Palmyra. “The food situation was super,” she offered in her pleasantly accented English. “There were coconuts, lots of different types of crabs, the fishing was good, there were eggs, palm hearts. We ate pretty well in the five months we were there.”

T
HE ONLY
white person now living on Christmas Island, John Bryden was a rugged outdoorsman who spoke with a Scots brogue as chewy as haggis. Weary of contemporary life in Scotland, he had moved in 1969 to Christmas Island, part of the Gilbert Islands (which included Fanning, Washington, and numerous other islands), seeking a blend of adventure and peace of mind in a less complicated society. He’d found both in his island kingdom. In 1979, he had been hired to start a coconut plantation on Palmyra, which was three hundred miles to the northwest of Christmas. As general manager, Bryden brought with him sixteen young Gilbertese men as laborers. Along with his men, whose Micronesian dialect he spoke fluently, he spent fourteen months on the atoll before determining that conditions militated strongly against a profitable commercial venture.

Bryden testified that in May 1979, after deciding that the old rescue boat, which they had found in a cluttered shed located a few feet from the water’s edge, was beyond repair, he had his crew drag it down the seaplane ramp into a fairly deep part of the lagoon, where it sank.

From a photo produced by Enoki, Bryden identified the rescue boat found by the Jordans as the same craft his men had unceremoniously scuttled. He could not remember whether any of the containers inside the boat’s four storage-hole compartments were missing at that time.

Bryden confirmed that he was familiar with the lagoon shoreline in the area where Jennifer claimed she and Buck had found the overturned Zodiac (and where Jordan had found Muff’s remains).

“How big is the beach in that area?” Enoki asked, trying to shore up the probability that lagoon waters would have reached the allegedly overturned dinghy, and therefore gotten salt into its motor.

“There really isn’t much beach. At low tide, it’s dry. At high tide, it’s covered by about eighteen inches of water at the most. The sandy area is just a little strip along the water’s edge at high tide. It would be about a foot wide there.”

“After that foot or so, you would hit the brush line?”

“Well, you would hit the jungle even before that in some spots. The bushes grow out into the water in some places there.”

During one of Len’s two trips to Palmyra he had stopped off at Christmas Island and interviewed Bryden in his rustic beachfront cottage home as his young, native wife served coconut milk laced with gin. But there was little to cross-examine Bryden on.

Weinglass: “It’s true, is it not, that you found, in your living on the island of Palmyra for fourteen months, the island to be a foreboding place?”

“There were times when it felt like that,” said Bryden, who didn’t look at all like the kind of person who scared easily. “It sometimes felt a little bit spooky.”

A discussion of the food supply on Palmyra resulted in this exchange.

“Did you bring pigs with you to Palmyra?” Len asked.

“Yes. We had two pigs, but we never got to eat them because we…they were…we lost them.”

Judge King, incredulously: “You
lost
them?”

“Yes,” the Scotsman answered soberly. “They fell in a hole, sir, and they…they drowned.”

I
N AN
obvious attempt to retrieve the damaged credibility of Curt Shoemaker, the Government had flown in FBI Special Agent Tom Kilgore from Honolulu. Involved in the initial stages of the investigation, Kilgore had interviewed Shoemaker on October 30, 1974.

“Agent Kilgore, did Mr. Shoemaker tell you about his last radio contact with the Grahams?” Schroeder asked.

“Yes.”

“Did he tell you about an incident with respect to a cake coming from the other boat?”

“Yes. He mentioned to me that the people from the other boat, who I was led to believe were the Allens, were either there [aboard the
Sea Wind
] or they were to be with them at a later time.”

“And what did he say that they had with them, or were bringing with them?”

“A cake,” the witness answered.

“Now, did you include that cake incident in your 302 report?”

“No. No I did not.” The agent explained that he didn’t imagine, at the time, that the cake had anything to do with the disappearance of the Grahams.

“Was the case classified as a homicide investigation at that time?”

“No, it was not. It was classified as a crime on the high seas.”

“Mr. Kilgore,” I began on cross, “when is the
very first time
anyone ever asked you if you recalled Mr. Shoemaker telling you about a cake?”

“A couple days ago.”

“No one, prior to a couple of days ago, asked you if you recalled Mr. Shoemaker telling you about a cake?”

“That’s correct.”

“Your interview with Mr. Shoemaker took place on October 30, 1974. This is mid-February, 1986, almost twelve years later. Right?”

“Yes.”

“And you’ve investigated hundreds of cases since then, have you not?”

“Yes.”

“At the time Mr. Shoemaker supposedly told you about this cake incident, in your mind, this was just two people bringing a cake to two other people. Right?”

“Yes.”

“It was totally insignificant to you at the time you heard it. Is that correct?”

“Yes.”

“The obvious question: How can you possibly remember, twelve years later, something which, at the time you heard it, you admit was totally insignificant?”

“I recall that particular instance of a cake, simply because…that it was quite difficult for someone to bake a cake on a boat.”

I smiled at Agent Kilgore. “You mean you haven’t heard before about people making cakes on boats?”

“I have never had someone serve me cake on a boat.”

Kilgore had gone from the untenable statement that it is difficult to make a cake on a boat to the irrelevant observation that he had never been served cake on a boat.

“With respect to this last radio contact with Mac Graham, Mr. Shoemaker didn’t tell you anything about a
truce
being mentioned by Mr. Graham, did he?”

“No.”

The last Government witnesses were close friends of the Grahams.

Harry Steward, a very formal man in his seventies, was at one time U.S. Attorney for the Southern District of California in San Diego. A yachtsman himself, Steward explained that he and Mac had hit it off when they first met by chance at a marina. “Mac was the most knowledgeable man about sailing I have ever met.” Steward estimated he’d been aboard the
Sea Wind
a hundred times or more.

“And during that hundred or so occasions,” Schroeder asked, “did the Grahams ever invite you to go aboard at a time when they were
not
going to be personally present?”

“No.”

“Now, in your opinion, would Mac and Muff ever have invited someone they did not know well or did not care for to come aboard the
Sea Wind
at a time when they were not going to be personally present?”

“No, no,” the witness said emphatically.

Karl Kneisel, an Ichabod Crane type with dry, tousled hair and a flaming sunburned long nose, rated Mac “the best sailor I ever ran across” and concurred that the Grahams were fastidious in choosing guests to board their beloved boat. “They were old-fashioned about yachting etiquette.”

“Did Mac have an acetylene torch aboard?” Schroeder asked.

“Yes, he did. He considered it a piece of his cruising gear which was indispensable to do metalwork with.”

After a parade of twenty-seven Government witnesses, the prosecution closed with this final horrific image, one the Walker jury also had: Muff Graham’s corpse searing in the roar of her beloved husband Mac’s own acetylene torch. It was enough to curdle anyone’s stomach.

F
EBRUARY
12, 1986

I
T WAS A COLD AND
drizzly morning in San Francisco, as a late-winter storm approached from far out in the Pacific, where all the bad weather on this coast originates.

Soon to unfold inside the monolithic federal courthouse on Golden Gate Avenue, in the heated comfort of a nineteenth-floor courtroom, was the final act of a long-running murder mystery that had also begun far out on the world’s most turbulent ocean.

The lineup of defense witnesses was considerably shorter than the Government’s. Our star witness would appear last. We had not publicly announced that Jennifer would testify in her defense, but everyone knew she
had
to explain in her own words why, if she was innocent, everything pointed to her guilt.

Before summoning the jurors, the court heard two defense motions. The first was my motion for a judgment of acquittal on the felony-murder count under Rule 29(a) of the Federal Rules of Criminal Procedure. For the same reasons he had dropped the felony-murder count in the Walker trial, Judge King granted my motion forthwith. Next, Len made a lengthy motion under the same rule to dismiss the premeditated murder count. Since this was the only count remaining against Jennifer, he was asking that the entire case be dismissed. This motion, contending that the evidence presented by the prosecution “is insufficient to sustain a conviction,” is made by defense attorneys in virtually every case and almost as invariably denied. Nevertheless, Len made a good argument, and it was apparent that he held Judge King’s full attention.

Weinglass asserted, “There’s no evidence as to how the death occurred. No proof to show what happened on Palmyra. There’s no evidence of any connection of Jennifer Jenkins to a killing. There’s no bloodstain, there’s no murder weapon, there’s no fingerprint, there’s no footprint. There is nothing that would tie her to the act of murder.”

He argued that “participating in the theft of the
Sea Wind
does not automatically mean” that Jennifer had participated in a murder, but that there was a danger here of one crime overlapping the other in the collective mind of the jury. If the case went forward, Len argued persuasively, then when Jennifer testified, “what will come out is the fact that she had made untruthful statements about the
Sea Wind
and about the
Iola
. The Government will seize on those untruthful statements and argue to the jury that she can’t be believed. And the focus of the jury will shift from the failure of the Government to prove their case, to: ‘Can you believe Jennifer Jenkins, who previously made untruthful statements about the
Sea Wind
?’ So the Government will have the benefit of a bootstrapping,” Weinglass said in conclusion.

After hearing from Elliot Enoki, Judge King predictably denied Len’s motion. Obviously, the case
had
to go to the jury. Among other things, as Enoki pointed out, the theft of the
Sea Wind
could not be separated from the murder, since the motive for the murder had been to steal the boat.

I now told the judge I was concerned about how he was going to tell the jury that the felony-murder count had been dropped.

“Well,” Judge King said whimsically, “let me try something on you and see how you like it.”

“Okay.”

“‘Ladies and gentlemen,
I
have removed Count One from your consideration. It’s no longer before you.’” Judge King smiled benignly, no doubt confident that he’d forestalled all objections.

“There’s a little problem with that,” I offered.

“What?” His eyes widened.

“The jury could conceivably draw the inference from your language that you feel there was no merit for the felony-murder count to proceed, but the fact you did
not
dismiss Count Two indicates you feel there
is
some substance and merit to that count. May we help you in the formation of what you tell the jury?”

“Suggest something, and we’ll talk about it. I have no pride of authorship.”

A
FTER THE
midmorning recess, the judge read the jury a statement dashed out by the defense and prosecution working together. It was an improvement over what he had been planning to say. Rather than “I have removed Count One from your consideration,” he explained:

“Count One has been removed from your consideration. It is no longer of concern to you and you should not speculate as to the reason for its removal. The fact that it was removed from your consideration should not influence your verdict with reference to the remaining count, which verdict you must base solely on the evidence.”

With that, the defense case began.

Our first witness was Bill Larson, who had been with Don Stevens on the sailboat
Shearwater
at Palmyra in July 1974. The tall, sandy-haired Larson was now an engineer for the Syndyne Corporation in Vancouver, Washington.

Stevens had been a prosecution witness at both theft trials, as well as at Buck’s murder trial. While poring over Walker’s 1975 theft trial transcript when I first got on the case in 1982, I saw where Stevens had mentioned that his (unnamed) friend aboard the
Shearwater
attended a potluck dinner party at Buck’s tent. Mac and Muff had been present, too. Stevens had remained aboard his boat because of an ear infection. We
had
to have at least one independent witness to help counter the overall impression that there was bad blood between the Grahams and Buck and Jennifer. Otherwise, the jury would likely disbelieve Jennifer’s story that she had found nothing unusual about the Grahams’ supposed dinner invitation. Although I had more than once asked Jennifer if there was
anyone at all
who could be such a witness, she had been unable to think of a soul. Grasping at straws, I telephoned Stevens at his home in Portland, Oregon, for the name and phone number of his former shipmate. When I called Larson at his home in Vancouver and he confirmed being present at the dinner and said that the relationship between the Grahams and Buck and Jennifer at the get-together seemed very cordial, I felt like Moses spotting Aaron in a roomful of Egyptians. With so precious little affirmative evidence for the defense, otherwise routine information becomes exhilarating. When I reported back to Jennifer about Larson, she did not remember him by name. When I explained he was the fellow from the
Shearwater
who had attended the potluck dinner, she said, “Oh, yeah, that guy. Yeah, he could tell about Mac and Muff having a nice evening with us.” Irked, I asked why in hell she hadn’t mentioned Larson before. As usual, I hadn’t really gotten through. She simply laughed her hearty laugh. “I just forgot.”

With Larson, as with almost any witness, there was some scuff on the shine. In the FBI’s 302 report of a telephone interview with him, he characterized Jennifer as “the leader of the two.”
Leader enough to mastermind murder?
I had delved into this issue in my pretrial interviews with Larson. Urged to clarify, he said he hadn’t felt very strongly about Jennifer’s leadership role, basing it mostly on the fact that she was the “talker” of the couple, and had once yelled at Buck, who had said nothing in return. Also, Larson had been impressed that she had acted as navigator on the
Iola
, even though she lacked ocean sailing experience. On balance, I felt it was worth calling Larson for the defense.

Although I had prepared Larson for trial, Len asked me if he could handle Larson on the stand, and I had no objection. Len first brought out that even before the dinner, Larson had accompanied the Grahams and Jennifer on a boating and exploration trip. As testimony arrowed toward the dinner party, seven or eight jurors—but
not
the Kansas Rock—began taking notes.

As to that night, Weinglass asked, “In your view, did it appear to be a friendly relationship between Buck and Mac?”

“Yes, it did.”

“You watched Buck and Mac playing chess?”

“Yes.”

“And when you saw Muff and Jennifer talking, did it appear, from where you were, to be a friendly conversation?”

“Yes, it did.”

“Based on your observations of Jennifer with the Grahams, how would you describe their relationship?”

“It was friendly.”

“Did you detect any animosity or hostility?” Len asked.

“No, I didn’t.”

The next line of questioning was adroitly designed by Len to show that even if Mac and Muff hadn’t liked Buck and Jennifer, Jennifer could not have known it from their behavior.

“Now, did you see or hear any comments or behavior by Muff Graham,
in Jennifer’s presence
, that would lead you to believe that Muff and Jennifer were unfriendly or hostile to each other?”

“No, I did not.”

“Did you see or hear any behavior or comment of Muff Graham,
in Jennifer’s presence
, that would lead you to believe that Muff was unfriendly or hostile toward Buck Walker?”

“No.”

Finally, Larson recalled visiting the
Sea Wind
one afternoon when Muff happened to be alone. She served him ice-cold Kool-Aid, a sybaritic luxury on a deserted island in the tropics. “It was refrigerated. It was something we hadn’t had in almost fourteen months.”

“Did you comment to Muff on your appreciation of the Kool-Aid?” Len asked.

“I thought it was very good and said that we ought to share it with everybody on the island.”

“Did Muff respond to that suggestion?”

“Yes.
She said that she didn’t want the other two to actually be on her boat
.” I tried not to show my inner reaction.

In his brief cross-examination, Enoki asked whether Jennifer or Buck had ever asked the men aboard the
Shearwater
for supplies of any kind.

“Yes,” Larson answered. “Jennifer did a couple of times.”

“What did she ask for?”

“Sugar or flour, I believe. I’m not positive.”

Enoki sat down. The Government had apparently overlooked what Larson had said about Jennifer’s apparent domination of Buck. We were prepared with a response, of course, but not being put on the defensive was a plus for the defense.

I now called FBI Special Agent Tom Kilgore to the witness stand, and first asked, poker-faced, whether he’d ever testified for the defense before.

“Yes, sir.”

We both smiled.

“Not too often, though?”

“No, sir.”

The jury had, of course, already heard his account of an interview with Curt Shoemaker on October 30, 1974. I wanted to cover an interview conducted the
previous
day with the Leonards.

“Did it come to your attention that the Leonards had called the FBI requesting an interview?” I asked.

“Yes.”

Both had denied, during my cross-examinations of them, ever calling the Bureau to solicit an interview.

“In fact, they had called the FBI office several times. Is that correct?”

“That’s my understanding,” the agent said.

“And your purpose in interviewing the Leonards was to secure from them whatever information they had to help you in your investigation of the disappearance of the Grahams?”

“Yes.”

“During your interview of them, did either one of them tell you that while they were on Palmyra, Jennifer Jenkins told them that she would never leave Palmyra on the
Iola
?”

“Not that I can recall.”

“If either one of them had told you this, would it have been the type of information you would have put in your report of the interview?”

“Yes.”

On cross-examination, Schroeder asked Kilgore if it had been “pretty hectic” that day at the Ala Wai when he interviewed the schoolteacher and his wife.

“Yes.”

“How long did you spend interviewing the Leonards?”

“I would say close to thirty minutes, maybe a little more than that.”

“Would you agree that thirty minutes could not be called an in-depth interview?” Schroeder asked.

“Oh, by no means.”

On re-direct, I elicited that Kilgore’s interview notes came to nearly five typewritten pages, including such trivia as the Leonards’ telling him that the Grahams had a dinghy with an outboard motor and Buck cut down coconut trees with a chain saw.

“So you put in quite a few little details in the report, isn’t that true?”

“Yes.”

“Thank you,” I said. “Nothing further.”

T
HAT AFTERNOON
, a disheveled middle-aged man who looked like Willie Nelson’s clone sauntered to the witness stand. Larry Seibert wore his sun-bleached hair long, like an aging hippie, and appeared quite comfortable in faded blue jeans and a military-style jacket. I had spent some time and effort finding Seibert, whose occupation seemed to be “beachcomber.”

Seibert lived on a boat in Oahu’s Keehi Lagoon and used the P.O. box of a Honolulu garment factory as his business address, though he didn’t work regularly there or anywhere else. I had started looking for him in early 1982 but was unsuccessful until February 1983, when I caught him by phone at the Honolulu home of a friend of his. Seibert not only confirmed, as Jennifer had told me, that he had seen a broken-off swordfish bill stuck in the hull of the
Sea Wind
, but also that she had told him privately that Buck had lied about how they came into possession of the boat.

Under Len’s questioning, Seibert now testified that he had first met Jennifer and Buck in the fall of 1973 when they were fixing up the
Iola
at Maalaea Bay boat harbor.

He next saw Jennifer and Buck in October 1974, when Buck called to invite him over to Pokai Bay to visit the couple on their newly acquired ketch. He had learned about the swordfish attack during that social visit.