And the Sea Will Tell (85 page)

p. 234: Did Mac kill Muff?

Surprisingly, more than a few have speculated that Mac may have murdered his own wife. They point out that if Mac did it, he would have wanted to place suspicion on others, in this case, Buck and Jennifer. Therefore, he would have had to do it while Buck and Jennifer were still on Palmyra. Is it just a coincidence, they argue, that Mac and Muff’s disappearance was on the very last day before Buck and Jennifer were to leave Palmyra? Also, they argue, Mac was much more adventuresome than Muff, and he liked a life on the sea, whereas she was a homebody and didn’t even want to go to Palmyra. Did hostility develop between them? And of course, since Mac’s body has never been found, how can we be sure he’s even dead? Is he living in Tahiti today with a new love, or sailing the seven seas on another boat?

Yes, one can make these theoretical arguments, but to my knowledge, no one intimately associated with the case has ever given a fleeting thought to the possibility that Mac murdered Muff. I know I haven’t. The reasons are multifold. All of Mac’s and Muff’s friends agree that Mac loved Muff dearly, and his doing anything at all to harm her (much less in the exceptionally brutal way Muff met her end) is unthinkable to them. And if there was anyone or anything he loved even close to Muff it was his beloved
Sea Wind
, which, under the circumstances of the case, he would have also had to give up. He also would have thereby been stranded on Palmyra (since we know the
Iola
, the only other boat on the island, was sunk by Buck and Jennifer), with no way to leave except to hitchhike out on a later boat. Not only would this obviously be a highly disagreeable prospect for Mac, but the mysterious disappearance of the Grahams generated considerable publicity throughout the Pacific region, and whoever gave a Caucasian male of Mac’s approximate age and description a lift off Palmyra would almost assuredly have notified the authorities. Mac also apparently would have decided and been willing to assume a new identity and literally be on the run the rest of his life, since as of the date of this book, seventeen years after his disappearance, he has not been heard from. Moreover, in addition to giving up Muff and the
Sea Wind
, he also would have to have been willing to give up his sister, Kit, and his then seventy-five-year-old mother. And since there doesn’t appear to be any way that Mac could have profited financially from killing Muff (there being no evidence of any insurance policy on her life), Mac would also have to have been willing to give up every cent of his net worth, all of which, under the terms of his 1973 will, he left (in the event Muff did not survive him) to Kit. His assets were subsequently distributed to her in 1975, and Elliot Enoki reported to me that prior to that, all of Mac’s accounts had remained untouched, with no activity on them. There is also physical evidence pointing to Mac’s own demise and murder: the missing fourth container.

p. 243: Perjury in self-defense is expected and overlooked.

When a defendant who has denied guilt from the witness stand is convicted, the jury obviously believes he committed perjury when he denied his guilt under oath. Yet of the countless defendants convicted of various crimes every year throughout the United States, I personally have never heard of one being prosecuted for perjury following his conviction.

p. 250: The prosecution seeks life imprisonment.

In the Palmyra murder case, the prosecution sought sentences of life imprisonment, not the death penalty. But not by choice. The section of the U.S. Code under which Walker and Jenkins were being prosecuted, Section 1111, provides for the death penalty as an alternative to life imprisonment for a conviction of first-degree murder. However, in the 1972 case of
Furman
v.
Georgia
, 408 U.S. 238, the United States Supreme Court struck down death-penalty statutes throughout the land, holding that the death penalty was unconstitutional unless the jury was given guidelines by the trial judge to control their discretion in determining whether or not the penalty of death should be imposed. Thereafter, many states enacted new death-penalty legislation to comply with the mandate of
Furman
. But on the federal level, as of the date of the Walker and Jenkins trials, Section 1111 had not been amended to meet that standard, and the Office Manual of the U.S. Attorney’s Office instructed federal prosecutors not to seek the death penalty in murder cases because a verdict of death under Section 1111 would be unenforceable.

p. 269: The DeLorean case.

DeLorean was subsequently acquitted. For a defense attorney, the DeLorean case was a “dream entrapment case,” said San Francisco criminal defense specialist John Keker.

p. 271: Circumstantial evidence of innocence.

Cases are legion in which certain acts and statements of an accused are deemed admissible circumstantial evidence to show guilt, while the opposite of such acts or statements are
not
admissible to show innocence; e.g., although the prosecution can introduce evidence of escape or attempted escape, the defense generally cannot introduce evidence that the defendant had an opportunity to escape but did not. And while a defendant’s incriminating statement comes in under an exception to the hearsay rule, a defendant’s exculpatory statement is inadmissible, since the law virtually presumes a self-serving motivation for the latter. Similarly, a suspect’s silence in response to being accused of committing a crime is admissible as showing a consciousness of guilt. But if he is not silent, and denies the accusation, the denial is not admissible.

p. 276: My motion that the judge order the prosecution to change the charge to premeditated murder.

At the Walker trial, Robert Hollis, a respected veteran reporter for the
Honolulu Advertiser
, approached me to say that Partington blamed me for the premeditated murder count being added against both defendants in the superseding indictment of January 8, 1985. He said Partington thought my written motion a few weeks earlier on December 12, 1984, had put the idea in the prosecutor’s head. I felt this was ridiculous on its face, since Enoki and Schroeder, two experienced federal prosecutors, obviously didn’t need me to tell them about the availability and viability of a premeditated murder count. When I confronted Partington, he passionately denied telling Hollis this, but I had no reason whatsoever to disbelieve the reporter. In any event, I reminded Partington that I was representing Jennifer, not Buck, and therefore had to do what I felt was good for her, not Buck. Besides, the felony-murder count could hurt only Jennifer, since only Jennifer’s theft conviction had been affirmed on appeal. Walker’s conviction had been reversed by an appellate court, so Jennifer alone had to worry about a felony-murder conviction flowing from her theft conviction. Thereafter, Enoki told both Hollis and me that the premeditated murder count was based on Ingman’s and Williams’s testimony before the grand jury, and that he and Schroeder had contemplated filing it
in addition
to the felony-murder count long before I even raised the issue of substituting it
for
the felony-murder count.

p. 276: The inappropriateness of the felony-murder count.

I also argued that, assuming the Government had furnished us everything we were entitled to receive under discovery, both sides already knew, before the trial, that the prosecution had no evidence the killing took place
during
the perpetration or attempted perpetration of the robbery, a necessary element for the felony-murder rule to apply. Realistically, this legal argument could only be made if there was a premeditated murder count in addition to a felony-murder count in the indictment. With only a felony-murder count, if the jury (or even a judge) believed beyond a reasonable doubt that Buck and Jennifer had murdered the Grahams, there’s no way in the world they would return a verdict of not guilty and let Buck and Jennifer walk out of court simply because the Government failed to prove that the murder was “connected” to the robbery. They would automatically (and no doubt correctly) conclude that there was a connection.

p. 278: The duty of a public prosecutor to be fair.

It is often said that the purpose of a criminal trial is to ascertain the truth. But this obviously depends upon the perspective. Certainly the prosecutor, judge, and jury want the truth to come out. Not so with the defense attorney. If his client is guilty, which is usually the case, the very last thing in the world he wants to come out (and that which he attempts to suppress) is the truth. And this verity reflects the very disparate roles of the opposing lawyers in a criminal trial.

The duty of the defense attorney is only to his client, the accused. But the prosecutor has a higher and dual role. He represents “the people” (as in
People of the State of California
v.
Jones
), and in more than a theoretical sense, one of those people is the defendant. So while he can justifiably seek a conviction in cases he believes in, he has the concomitant duty to help insure that the person he is prosecuting receives a fair trial. Saying it another way, the prosecution is the lawyer for the sovereign (state or federal government), and the government’s only interest is to see that all of its citizens receive impartial justice. Therefore, as opposed to a defense attorney, it is as much a prosecutor’s duty to refrain from improper methods to secure a wrongful conviction as it is to use every legitimate measure to bring about a just one.

In all fairness to the prosecutors in this case, they most likely believed, although erroneously, that they at least had a
legal
right to do what they were seeking to do.

p. 282: Why I did not believe that the prosecution, at Jennifer’s murder trial, should be allowed to ask her whether she had been convicted of the theft of the
Sea Wind
.

Under Rule 609(a) of the Federal Rules of Evidence, when a defendant testifies, the prosecution may (for the
ostensibly
limited purpose of impeaching his credibility as a witness) ask him on cross-examination whether he has ever been convicted of a crime if: 1. The crime is a felony, and the probative value of the conviction (that is, the extent to which the fact of the prior conviction tends to indicate guilt in the current case) outweighs the prejudicial effect to the defendant if the jury hears of the conviction. [On the issue of probative value, the thinking goes that an ex-felon is not to be believed in his testimony as much as one who is not an ex-felon. But if a priest or rabbi actually commits a felony, yet pleads not guilty, he is not any more likely to tell the truth on the witness stand than one who has previously been convicted of twenty felonies. If he were going to tell the truth, he would not have pled not guilty.] or 2. Regardless of whether the crime is a felony or a misdemeanor, it involved dishonesty or a false statement.

Among other things, I argued in my brief that the prejudicial effect to Jennifer that would result from the jury’s hearing she had already been convicted of stealing the
Sea Wind
, “would be singularly devastating and completely outweigh any probative value. The built-in bias the jury would have against Defendant Jenkins may prove to be insurmountable. If, in the jury’s eyes, she has already been judged to be guilty of the theft of the Sea Wind, almost as a necessary corollary they would feel she must also be guilty of Mrs. Graham’s murder.”

But had Jennifer’s theft convictions “involved dishonesty,” in which case the above argument could not be considered? In a loose, layman sense, one could say that all thefts involve dishonesty. When I found a split of authority in the cases interpreting the “dishonesty” language in Rule 609(a), I researched the legislative intent behind the language. A Conference Committee Report (H.R. Conf. Rep. No. 93-1597, 93d Congress, 2d Sess. 9) read: “By the phrase ‘dishonesty or false statement’ the Conference means crimes such as perjury, criminal fraud or false pretenses, or any other crime in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”

The legislative intent made it clear, I pointed out to the court, that only those species of theft involving deceit, fraud, or misrepresentation (e.g., obtaining money by false pretenses, larceny by trick) satisfied the dishonesty requirement. The kind of straight theft Jennifer had been convicted of did not. In other words, “dishonesty” required something more than a mere propensity to steal. As expected, Enoki, in his response brief, did not agree.

There had been quite a discussion on the defense team as to whether I should have even made the motion to suppress Jennifer’s felony theft conviction. Jennifer’s brother, Ted, felt we should openly acknowledge the theft because, he said, the jury would never believe that she did not intend to steal the
Sea Wind
. Len Weinglass’s thinking was that it was actually better to let the jury know that Jennifer had been convicted of the theft of the
Sea Wind
. Perhaps, he reasoned, they would not have quite as much motivation to convict her on the murder charge if they knew she had already served hard time for the theft. They could possibly say to themselves that society had already gotten its pound of flesh. I saw some merit in both Ted’s and Len’s positions, but on balance, I felt that it would be better if the jury never heard that Jennifer had been convicted of the theft of the
Sea Wind
.