And the Sea Will Tell (83 page)

“The judge is going to explain that reasonable doubt is not proof beyond all doubt, as Mr. Bugliosi noted. You can still have doubts and uncertainties about the case and still convict.

“In his argument, Mr. Bugliosi said, concerning Bill Larson, something like, here’s a person the prosecution never called. He points to this as if this is some sinister thing we did. Well, the prosecution never hid Mr. Larson. You recall that the FBI talked to Mr. Larson. The defense was able to call Mr. Larson. Each side calls its own witnesses. That’s our system.”

Enoki’s next argument addressed Jennifer’s claim that her theft-trial lawyer had advised her to commit perjury, but his logic escaped me entirely.

“Mr. Bugliosi made a remark about how the prosecution failed to call Miss Jenkins’s former lawyer on rebuttal. Well, first of all, there’s no evidence to suggest the prosecution knew of this in advance. Second, there’s no evidence in the record to indicate where the lawyer is or what the lawyer may be doing.”

Was Enoki telling the jury that the FBI was incapable of finding Jennifer’s former lawyer, still a practicing attorney?

“And thirdly, do you really believe that the attorney is going to come in and embarrass himself on that particular question? I don’t think that’s really a fair thing to suggest that the prosecution do.”

Was Enoki saying that the lawyer wouldn’t embarrass himself by telling the truth, the truth being he
had
told Jennifer what she said he did? But if Enoki felt this might be the case, then how was it helping him to even make this argument?

“Mr. Bugliosi started out his argument by saying kind of a funny thing. He said he could argue that maybe there was not a murder here, but then he said he wasn’t going to do that.”

Enoki then went on to spend several minutes arguing why a murder
had
taken place, a point I had already conceded.

“Another thing he mentioned about the log. I’m sorry—about the consciousness of innocence. He said he would have—or she would have had—she would not have made up the story of a Zodiac—of finding the Zodiac up against the beach, because if she was trying to make up a story about drowning, she obviously would have had the Zodiac floating in the lagoon instead. Well, I mean, you have to give some credit to somebody making up a story.

“Mr. Bugliosi argued on in his argument about high high tide, low high tide, high low tide, and low low tide. I don’t think there’s any dispute that there was a high tide between 4:30
P.M.
August 30th and dawn on August 31st. But now he’s saying, well, it wasn’t the
high
high tide, and why didn’t we bring in an expert on tidal conditions? Well, the reason for that is, first of all, that the only evidence in this whole record about
high
high tides and
low
high tides comes actually more from Mr. Bugliosi than from any evidence in the case.

“In a number of things, and a number of points in his closing argument, Mr. Bugliosi relies exclusively on Miss Jenkins’s testimony to prove the facts that he’s alleging are true.

“And what about Joel Peters and his laundry? I must confess I’ve never heard of an argument for acquittal based on the return of laundry.

“Now, in this case Miss Jenkins blamed—or at least Mr. Bugliosi has argued that Mr. Walker committed these murders by himself. Now, if Miss Jenkins—or Mr. Bugliosi is going to claim it was Mr. Walker…”

Twice, Enoki had to catch himself that it was
I
, not Jennifer, who had put the hat on Buck Walker. Not only had Jennifer not pointed the finger at Walker even to me during our trial preparation, but I knew as a matter of strategy that it would be far more effective for me to accuse Buck than for her to do so.

Enoki went on to make the argument—implausible, at least, to me—that Jennifer had a stronger motive to steal the
Sea Wind
with its food supplies than Buck because he was more accustomed to hardship. “It was she who didn’t want to be on Palmyra,” Enoki charged, “not Mr. Walker. Remember when she told Tom Wolfe that she was sick and tired of eating fish and coconuts? And who wrote in the diary that they were drooling and dreaming of their next boat? It was Miss Jenkins.

“Mr. Bugliosi argued that for me to argue that food was a motive is nonsensical. That people don’t kill to get better food. But people get killed in two-dollar robberies and for cutting somebody off on a freeway.

“It’s Miss Jenkins who writes in her diary on September 4th: ‘We all grow fatter and fatter on ham and cheese and pancakes and turkey and chili and all the things we hadn’t had in so long.’ I submit to you that’s plently of motive.

“Mr. Bugliosi also argued that Miss Jenkins would not have aided and abetted Mr. Walker in these murders because she is a peaceful, compassionate person.

“Well, she is simply not a peaceful and compassionate person. Peaceful and compassionate people don’t take up with armed robbers dealing drugs, using guns and booby traps. She knew all of that.

“Compassionate people don’t leave dead people’s relatives no notice. They don’t have an attitude of thinking nothing about using the clothes and the money of people who have just died.”

Enoki seemed to be regaining his equilibrium.

“And, you know, they don’t mug for the camera, as these pictures on the
Sea Wind
headed back to Honolulu attest to, when she is supposedly so distraught over their deaths.” Enoki was holding up for the jury several of the photographs taken during the voyage back to Hawaii. It was Jennifer who was smiling broadly, not Buck.

As to my argument that Jennifer was only being protective of Buck, not participating in his crimes, Enoki asked, “How many people are drawn by others into a life of crime? She certainly wouldn’t be the first person. Maybe it started out with something small. Then it came to full-scale participation.”

Enoki explained that the prosecution hadn’t called their own character witnesses to rebut the testimony of the defense’s character witnesses because our testimony was not strong enough to cause concern.

“Now, about Mr. Walker keeping the gun. Mr. Bugliosi argued that because the bullets could be matched, Mr. Walker kept the gun because it wasn’t used in the murder. Well, I would submit that Mr. Walker, like many other criminals, didn’t think he would be caught. So his keeping the gun would not mean anything. After all, Mr. Walker took the risk of being caught with the
Sea Wind
itself, a much bigger thing to be caught with than a gun certainly.”

I hoped the jury would see the holes in that argument. Of course Walker stayed with the
Sea Wind
. Securing the boat was the very reason for the murders. Furthermore, being in possession of the
Sea Wind
did not take away his contention that the Grahams had died an accidental death.

Enoki next tried to refute my major argument about the dumping of Muff’s body in the lagoon. He was unable, however, to explain away satisfactorily my theory that the body would not have been put there if Jennifer had been involved in the murders. All of his arguments on this point, I was pleased to see, were obvious stretches. Using a buckshot approach, thereby hoping that at least one pellet would strike the jury as making sense, he gamely argued that “criminals make mistakes,” that the lagoon, after all, was “a pretty big place” and hence “a pretty safe place to deposit some containers,” and that since Buck and Jennifer took eleven days to get ready for departing Palmyra, “you just don’t want two bodies, at least one of them partially burned, sitting around in two metal containers, while you get ready to go to sea. It’s not a practical alternative.” Acknowledging that it would have been the “perfect crime” if the bodies had been dumped at sea, he added, “But you have to look at it from the standpoint of what they thought. They certainly didn’t expect anyone to find the containers, or the containers to come up by themselves. For that matter they must have been right. The other one—well, they were partially right. One of them never came up.”

If the prosecutor himself had no adequate rebuttal to my argument on this issue, I felt the chances were good that no juror would either.

Enoki next went down a list of his witnesses, defending them and their testimony.

“I believe that for Mr. Bugliosi to suggest that Curt Shoemaker has some reason to fabricate his testimony in this case is absolute speculation. If he made his story up to help the prosecution in some way, why would he put in that he overhears in the background the women laughing? He certainly wouldn’t have made that up. And his testimony about Mac talking about the truce was supported by Mr. Wolfe, who testified they were not really getting along. Mr. Bugliosi did some mathematics about the number of minutes in a week, and all this stuff, and you come out with something like one in two hundred and fifty.

“Well, you can do a lot of things with statistics. I suppose I could ask what are the odds of two jurors from Scotland being seated next to each other in San Francisco in a trial where a witness from Scotland, Mr. Bryden, testified. And the odds are probably astronomical. But it’s true.

“Now, what is it that Mr. Bugliosi points to as a basis for the Leonards’ lying that Miss Jenkins said she would never leave Palmyra on the
Iola
? He points to the fact that they didn’t tell FBI Agent Kilgore about this and that the Leonards didn’t testify to it in other proceedings. Isn’t it likely that they would recollect things in bits and pieces, like most people do, when they try to remember back? And maybe Mr. Eggers should have asked them more questions at the theft trial. But he didn’t.

“I would like you to contrast the credibility of the Government witnesses with Miss Jenkins. And the first thing you ought to consider is: who has the real motive to lie in this case? No matter what happens in this case, everyone in this courtroom, all the witnesses, they’re going to go their own way. Not Miss Jenkins. She is the one who has the biggest motive to lie in this case. Because it is she who stands to be convicted of murder, not Mr. Leonard, not Mrs. Leonard, and not Mr. Shoemaker.”

The temperate prosecutor, in measured tones, pointed out: “She’s already admitted to lying under oath to a previous jury. And it’s this testimony of an admitted perjurer that Mr. Bugliosi offers to you against the prosecution witnesses.
If she would lie to cover up a theft, she would have all the more motive to lie to cover up a murder
.”

Jennifer Jenkins admitted, at this trial, to telling fourteen lies, said Enoki. “I counted them. We also tried to count what happened in that first forty-five minutes of cross-examination. We counted nineteen times that she said she didn’t know, or she didn’t remember, in answer to questions.

“Miss Jenkins, of course, cried some tears on the stand. But it isn’t only due to remorse that a person is brought to tears. One reason, of course, is it could be a performance, a complete performance.

“Or it could be that after all these years she’s finally faced with the stark reality of the deaths that she caused. Because there are tears of guilt, too.”

After arguing that the reason the prosecution never had any eyewitnesses to the murders was that Buck and Jennifer murdered the only witnesses—Mac and Muff Graham—he went on: “We do have much other evidence of guilt Mr. Bugliosi claims we don’t have. We have all of Miss Jenkins’s lies, the sinking of the
Iola
, the murder itself. Miss Jenkins fleeing from Palmyra with Mr. Walker. Miss Jenkins fleeing from the Coast Guard in the Ala Wai harbor. The repainting, the reregistration. The use of the
Sea Wind
.

“And we also have Mr. Shoemaker placing them both on the
Sea Wind
unexpected, in the dark, bringing a cake over—in the midst of their running out of flour and all the other ingredients that go into a cake—on August 28th. We also have the absence of diary entries on this visit and no memory from Miss Jenkins for August 28th.

“The question is what the evidence
did
show, not what the evidence did
not
show. And by your verdict in this case, ladies and gentlemen, you can prevent Jennifer Jenkins from pulling off this crime.

“I talked to you about her kind of peeling off layers of lies, or taking off one mask after another. She says one thing, and then: ‘No, that’s not true. It’s really this.’

“I ask each of you to take the rest of those layers off, and expose her for what she really is. It’s time, after eleven and a half years, that she accept the responsibility for the murder of Muff Graham. And that’s what your verdict would mean.

“Thank you.”

F
EBRUARY
26, 1986

A
FTER INSTRUCTING THE MARSHAL
to lock the courtroom doors so there would be no interruptions, Judge King did something I had never seen before. Instead of staying on the bench, he stepped down, went to the podium, and stood before the jury like a lawyer in the case. It was time to instruct the jurors on the law they were to follow during their deliberations.

Much of what he told the jurors they had already heard, in the very same words, from me, but now it was backed by the full force of the legal system.

He paused once, slowly sipping from a cup of water. Then, turning another page, he continued on. In all, it took twenty minutes. When the jury filed out the back door and headed for the jury room to deliberate, it was exactly 10:55
A.M.

I glanced into several of the jurors’ faces as they passed before us. There was Linda DeCasper, the forty-four-year-old housewife who enjoyed sightseeing with her family in their motor home. There were the two jurors with Scottish accents, James McGowan and Irene Angeles, both of whom smiled frequently. I had been told that Mrs. Angeles had given Jennifer a few sympathetic looks during the trial, and was therefore perceived possibly to be pro-defense. The oldest member of the jury, Ernest Nelson, the retired Petaluma chicken farmer, had at times seemed impatient with the prosecution. The only one I still feared was the retired engineer Frank Everett—aka the Kansas Rock. I hoped my reasonable doubt argument might help sway him, but as I watched him stride stiffly away, I had no confidence that he would vote anything other than “guilty” on the first ballot.

But there was absolutely nothing more that Len and I could do for Jennifer. Our participation was over. Her fate was now in the jury’s hands.

W
E WERE
told the jury started deliberating right after receiving the case and, following a lunch break, worked the remainder of Wednesday afternoon, not going home until after 5:00
P.M.
So far, Jennifer was doing a lot better with her jury than Buck had with his.

Aside from occasional visits to the courthouse, the next day Len and I mostly waited at our hotel; the clerk was to call us if we were needed. Jennifer and her family stayed at Ted Jenkins’s home forty minutes away. The clerk was to call them, too, when a verdict came in.

That second day of deliberating, members of the prosecution went back and forth, and at one point in midafternoon, Enoki, Schroeder, and Hal Marshall, all in shirt sleeves, chewed the fat together on the bench seats in the empty spectator section of the courtroom, scoffing at Jennifer’s testimony.

For a reporter who stopped by, Marshall, his wit intact, began casting the movie he was sure would someday be done about the case. “Redford will play me,” he said, straight-faced. “The
Karate Kid
instructor will play you, Elliot. Dustin Hoffman for Walt Schroeder. Bugliosi will play himself.”

Marshall hadn’t gotten around to casting Len yet when clerk Kathy Harrell came by to chat. She had been informing all of us lawyers with occasional tidbits. We found out, for instance, that Ernest Nelson had been elected foreman. We also knew when the jury broke for lunch, and when they returned.

At 3:05
P.M.
, Harrell told us the jurors were taking a break from deliberations. Then, at 3:25, she reported that they were adjourning for the day.

“You know,” Harrell whispered to the prosecutors, “I heard arguing in the jury room earlier today.”

The next morning the judge told the clerk to contact all of us and have us in court at 11:00
A.M.
It seemed the jury had a “question.”

We were all there—Len and I with Jennifer, the prosecution team, Ted and Sunny and various Jenkins relatives, and reporters who had covered the trial.

The jury did not appear. What could the question be? we all wondered. It turned out to be far more than just a question.

“I’ve received a note from the jury,” Judge King said, holding a slip of paper in front of him. “The foreman reports, ‘We’ve taken seven votes and we’re six and six. What do we do now?’”

I was stunned. The realization that
six
jurors were voting “guilty” jolted me. I could understand the Kansas Rock, but five others had joined him in thinking Jennifer was guilty of first-degree murder! Obviously, the jurors were struggling hard.
They didn’t want to let Jennifer walk out the door
.

The judge asked us how we felt about his reading the Allen Instruction to the jury. It urges juries to try to reach a verdict by rethinking whichever position they have taken. Len was very opposed, saying the defense bar throughout the country objected to it. Frankly, I couldn’t see how it would hurt us. The Allen Instruction also reminds the jurors, in no uncertain terms, about reasonable doubt.

“I think it might help,” I told Len.

“We’ve got six on our side,” he said, “but our people on the jury are the weakest.”

How did he know
that
?

“People for conviction are always stronger than those for acquittal,” he explained.

“But maybe in this case our six are the strongest,” I offered. Judge King ended up giving the jury the Allen Instruction.

It was much more than Len seeing a cup half empty, while I saw it half full. At least in the context of a criminal trial, we had very different ways of looking at things.

Len was very pleased with the six-six split, while I was greatly depressed by it. Len was a career defense attorney, and in his lexicon a “hung jury” was a quasi-victory. For years, he was used to trying to hold back the flood. But since my main background was prosecutorial, as a deputy DA I had been a part of the flood Len had always tried to hold back.

Unlike him, I did not consider a hung jury to be a victory. At this moment, my confidence was ebbing dramatically. I couldn’t put aside the chilling thought:
Six jurors believed, beyond a reasonable doubt, that Jennifer had helped Buck Walker kill Muff
.

I went to lunch with Ted and Sunny Jenkins, while Jennifer and Len went off together to eat. As we stepped from the courthouse elevator on the ground floor, we noticed two jurors—telephone company employee Francia Rico, and gray-haired Frances McClung, a retired office worker—heading from the building, obviously on their way to lunch, too.

Two other jurors, Irene Angeles and Kathleen Archer, were also walking together out of the building. Archer was married to a former deputy district attorney. Normally, a defense attorney would not want
anyone
associated with a prosecutor to be on a criminal trial jury. But I had liked Mrs. Archer’s thoughtful, fair answers during voir dire and had scribbled “
Good
” under her name.

Since the jury was divided—and keeping in mind the clerk’s comment about loud arguing in the jury room—there was a good chance that the jurors who held the same opinion were lunching together. In fact, Jennifer had mentioned noticing McClung giving her “disapproving looks,” while Archer had joined Irene Angeles in giving her an occasional pleasant look during the trial. Ted, who had also noticed this, now speculated that Angeles and Archer had to be
our
jurors, with Rico and McClung representing the “guilty” faction.

As we nibbled listlessly at our food, I said I just couldn’t believe there were that many jurors against us. “Is there anything I forgot to argue?” I asked Ted and Sunny.

They could only say that it seemed I had covered everything imaginable, and then some.

I shook my head. “A great number of hours went into that summation,” I muttered under my breath. “I simply can’t believe it failed to convince six people of Jennifer’s innocence, or
at least
cause them to have a reasonable doubt.”

I asked: “Should we have kept Jennifer off the stand?” Before either of them could answer, I said firmly, “No, she had to testify. If we get a hung jury, I won’t be on this case again unless Jennifer also testifies at the next trial.”

“Absolutely…she had to testify,” Ted agreed.

“There’s no question,” Sunny chimed in. “If we have to go through this terrible ordeal again, she has to tell her story.”

After lunch, I decided to walk back to the courthouse by myself, waving off a reporter in search of a quote. Alone with my thoughts and oblivious to the jangle of street sounds, I thought of the terrible reality that Jennifer, whom I believed to be innocent, might be convicted of murder. What could be worse?

I also thought about my career before juries in murder trials. Fortunately, I had yet to lose one. Although I had previously tried only two jury murder cases for the defense, I had won both, and I had prevailed in twenty-one consecutive jury murder trials as a prosecutor. But now there appeared to be a fifty-fifty chance I would lose my first jury murder trial. I wasn’t taking it well, although I said to myself that if I lost, it was about time I got my comeuppance. But what about my innocent client?

Where had Len and I gone wrong in this case? What had I failed to argue in my summation? Or was it simply a case of my not being able to see (or my subconsciously averting my eyes from) what was obvious to six of the jurors—that Jennifer was a cold-blooded murderess? Was that really the answer? And did the remaining six jurors also believe Jennifer was involved in Muff’s murder and simply temporarily hung up on the issue of reasonable doubt? But if you can’t rely on your own conscious judgment anymore, I said to myself, then it’s time to cash it all in, and I was still convinced of Jennifer’s innocence.

As I was approaching the top of the courthouse steps, the confidence and optimism I always carry throughout a jury trial washed over me once again, and it was a good feeling. I reminded myself that during my summation I had drawn a considerable number of powerful inferences of innocence and reasonable doubt, and the jury had taken far more notes during my argument than they had during Enoki’s. This almost automatically meant I was making points with them. The connection between feeling you’re making a point in summation and jurors looking down at their pads and writing a note to themselves immediately thereafter is an obvious one. I told myself that when the jurors went back over their notes again, which, being at six-all, they would almost assuredly do, they’d just
have
to go in the direction of not guilty. There just was no way this jury was going to come back with a verdict of guilty, I said to myself.
No way
, I repeated as I pressed the up button for the elevator.

A
T THREE
o’clock that afternoon, there was another note from the jury, scrawled by Ernest Nelson on a piece of paper ripped from a juror’s notebook.

The jury had taken another vote and the judge read it aloud: “The jury is at ten to two. The two are firm.’”

Len whispered to me that he was sure we were on the short end. “Those are our two jurors, Angeles and Archer, holding out for not guilty.”

I told him it might be ten to two in favor of not guilty, but Len would have none of it.

“The prosecution looks too happy,” he groused. “Maybe the marshal leaked word to them.”

Len, without consulting me, stood up with his palms outstretched, beseeching the judge to stop the deliberations now and declare a mistrial. “Your honor,” he said, “this has become a war of attrition.”

I was in no position to quarrel with him because there was just no way to know what the hell the jury was doing. Enoki asked the judge to let the jury keep deliberating, a sign the prosecution thought things were going their way. Judge King elected to bring in the jury and tell them to decide whether it was worth their deliberating any further. If they decided no, he would declare a mistrial.

As the jurors entered and took their seats, Len brought to my attention the fact that both Kathleen Archer and Irene Angeles, the jurors our side had numbered with us, had reddened eyes and seemed to have been crying.
So Len was right!
These were the two jurors holding out against everyone else!
Unfucking-believable
, I said to myself. The jury apparently was going, inexorably, in the direction of convicting Jennifer of first-degree murder!!

The judge patiently told the jury he wanted them to go back and decide for themselves whether it was worth continuing.

Now I was really down. Randomly, I started asking reporters and others the same question: “Can you think of any conceivable scenario where two jurors who are supposedly on our side could have tears in their eyes if the vote were ten to two for
acquittal
?” I kept getting the answer I already knew. No. Why would they be crying if the verdict was going in the direction they wanted? I was groping aimlessly for some possible favorable twist to the events.

We all kept an eye glued to the clock. Thirty minutes…then forty. It was apparent the jury had decided to continue deliberating, trying to persuade the two holdouts to change their vote. Len had become white-faced and grave. If our two teary-eyed women couldn’t hold out, he said, this jury was going to return a guilty verdict.

Jennifer was obviously distraught. Like a lost little girl, she went to her big brother in the spectator section, sat down next to him, and leaned her head on his shoulder.

At 4:00
P.M.
, the judge took the bench. The best we could hope for was a mistrial. To our dismay, the judge said evenly, “
The jury has informed me that they have a verdict
.”

A black gloom came over everyone connected with the defense. Len remained in his chair, too stricken even to try to conceal his disappointment.

I got up and walked over to the gallery, where I leaned down and whispered into Sunny’s ear, “I’m…sorry.” There was a lump in my throat. “I let all of you down. I don’t know what I did wrong, but it must have been something.”