And the Sea Will Tell (88 page)

I was unable to get in only two very small matters against Buck, and they were only questionably incriminating. In both situations, among other cases, I cited (unavailingly) the case of
Chambers
v.
Mississippi
, 410 U.S. 284 (1972), for some reason a greatly overlooked case which, in its implications, is one of the very most important
substantive
cases for the defense ever handed down by the U.S. Supreme Court.
Chambers
held that no constitutional right is more important than the right of an accused to present evidence and witnesses in his defense and hence, where “constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule [and therefore, arguably, it would seem, every other established rule excluding evidence] may not be applied mechanistically to defeat the ends of justice.”

p. 506: Jennifer had used her real name…

Fortunately, Jennifer chose to use her real name on this important occasion. She had used two aliases in her early Hawaiian years, one of which, Susan Mallett, she got a driver’s license under when she had too many driving citations. Mallett was the name of the man she was living with at the time.

p. 506: Introducing negative, depreciating evidence on direct examination.

Several years ago, in a celebrated murder case tried in Amarillo, the multimillionaire defendant did not testify or in fact present much of a defense at all. The defense strategy was devoted to making his wife, the star witness for the prosecution, look like the cheapest, most tawdry Jezebel ever to slink down the pike. The defense allegations, though essentially irrelevant legally, were for the most part true, and the uptight Bible Belt jury, aghast at the revelations of immorality on the part of the defendant’s wife, in effect convicted her and, almost as an incidental by-product thereof, found her husband not guilty. The defense attorney was later quoted as saying he knew he had won the case “the moment the last redneck was seated on the jury.” I cannot help but wonder what the result would have been in this case if the prosecutor had matter-of-factly presented all of this negative, depreciating evidence on direct examination. Maybe, just maybe, they at least would have had a murder trial in Amarillo.

pp. 520–521: Jennifer’s recollection of number of times and times of day she saw Buck on August 30, 1974.

Assuming Jennifer’s story of what happened on August 30, 1974, is true, as I believe, it’s not entirely implausible that Buck had already murdered Mac and Muff by 9:00
A.M.
(If so, he most likely hadn’t disposed of the bodies at this point; a more time-consuming and laborious task, actually, than killing two human beings. Also, Jennifer said she heard the Zodiac being operated in the lagoon later in the day around 4:30
P.M.
) Given Mac’s proclivity for getting up and getting out early in the morning, and Muff’s for sleeping in, Buck might have killed Mac first, catching him unaware in his workshop or elsewhere, and then gone to the
Sea Wind
to find Muff, who may have still been asleep. Walker could have murdered Muff there or forcibly removed her from the boat before doing so. It should also be borne in mind that if Jennifer had the dinghy throughout the day on August 30 (a point which was never resolved), the safest time for Buck to have murdered Mac and Muff without having to worry about Jennifer coming ashore
would
have been early in the morning.

p. 563: Jennifer thought it was
before
her theft trial that she had drinks with Gordon.

If, in fact, it was
before
her theft trial that Jennifer had drinks with Gordon and if, in fact, she told him what he said she did, by Buck “spilling his guts,” Jennifer could have simply been talking about the lies she and Buck had told concerning the
Iola
’s getting hung up on the reef in the Palmyra channel. However, although she didn’t learn that the Government had the photographs showing the
Iola
and
Sea Wind
alongside each other on the open sea until later at her theft trial, she did know the authorities left for Palmyra on October 31, 1974, which was just two days after her arrest at Ala Wai harbor. Therefore, she would have known at that time (which was while she was still in custody and hence
before
her conversation with Gordon) that the authorities, not seeing the
Iola
hung up on the reef, would know she had lied. Therefore, it could be argued that she would not have been referring to the reef lie when she spoke to Gordon. On the other hand, since she knew of the authorities’ visit to Palmyra, why did she persist in the reef lie at her trial? Is it possible that for some unknown reason, prior to her theft trial it did not register in her mind that the authorities knew of the reef story lie? Or could she have thought that even though the authorities didn’t see the
Iola
on the reef, this wouldn’t necessarily prove she was lying—that the
Iola
could have sunk before they reached Palmyra, or could have been taken away from Palmyra by visitors to Palmyra after she and Buck left the island on September 11, 1974?

p. 570: “…one all-important principle is implicit…that a jury does not have to believe in a defendant’s innocence in order to return a verdict of not guilty.”

Why is it implicit? I make this effort: if the jury were instructed that to convict, they had to be “convinced of the defendant’s guilt,” the issue for the jury to resolve would seem to be guilt
as opposed to what
? The inference is innocence; i.e., the opposite of guilt. So the issue to be decided would be that of
guilt or innocence
. But this truncated instruction is not given. To the words “convinced of the defendant’s guilt” are appended the words “beyond a reasonable doubt.” It would seem we have now jettisoned the previously inferential “innocence,” at least to the extent that it is no longer a
sine qua non
in the legal equation necessary for a verdict of not guilty. Now the issue seems to be guilt
as opposed to what?
Guilt beyond a reasonable doubt. In other words, when jurors are instructed that to convict, they have to be convinced
not only
of guilt, but of guilt beyond a reasonable doubt, they are clearly being told that
a mere belief in guilt is not enough to convict
. And if a mere belief in guilt is not enough, and has to result in a not-guilty verdict, all the more so
a belief in innocence is not necessary
for there to be a not-guilty verdict.

p. 571: the
ultimate legal
issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt.

For those who would say that,
as used in court
, there really is no confusion because
guilt or innocence
is understood by everyone to mean whether or not the prosecution proved guilt beyond a reasonable doubt, not “did he do it or did he not do it,” see, for example, the 1981 United States Supreme Court case of
Bullington
v.
Missouri:
“Underlying the question of
guilt or innocence
is an objective truth:
the defendant did or did not commit the crime
. From the time an accused is first suspected to the time the
decision on guilt or innocence
is made, our system is designed to enable the trier of fact to discover
that truth
.”

It is pure folly to expect a lay jury to be less confused than the U.S. Supreme Court.

See also Felix Frankfurter,
The Case of Sacco and Vanzetti: A Critical Analysis
(1927): “At the trial,
the only issue was—were Sacco and Vanzetti two of the assailants of Parmenter and Berardelli, or were they not? This was the beginning and the end of the inquiry at the trial
, and the end of any judgment now on the
guilt or innocence
of these men. Every other issue is relevant only as it helps to answer
that central question
.”

The above is not to suggest that the highest court in the land and legal scholars do not have
any
grasp of the distinction between “proving guilt beyond a reasonable doubt” and “determining guilt or innocence.” What it does suggest is that this grasp is fuzzy, unarticulated, visceral, and not sufficiently conceptualized in their minds to enable or compel them to speak or write correctly on the subject.

p. 580: My failure to explore Jennifer’s relationship with Joe Buffalo.

Jennifer
had
told me that after her conviction for the theft of the
Sea Wind
in June of 1975 (and while she was on bail pending her appeal) she lived for a few months communally in a large old house in Puako on the Big Island with one Mama Lee (a singer at the Sandbox Bar), Uncle Albert (a seventy-year-old man Mama Lee looked after), a man named Joey who she said had a “criminal background” (“Joey” turned out to be Joe Buffalo, the “friend” she told me she received the letter from before her murder trial), and “others.”

p. 612: “[If Shoemaker] never told anyone about it for many years, we can almost…assume it never happened.”

It seems that Shoemaker
did
tell someone (though it is not known whom) about the cake-truce incident as far back as 1981; still, however, seven years after it allegedly happened. An article on the Palmyra murder case in the
New York Times
on July 13, 1981, titled “Mystery on Pacific Atoll Leads to Murder Charge,” stated that Shoemaker testified before the grand jury that indicted Buck and Jennifer that Mac told him, “I guess they’re going to declare a truce. They’re bringing over a cake tonight.” Although Shoemaker did not testify before the grand jury, nor, prior to the Walker trial, in any legal proceeding about the cake-truce incident, the reporter, now retired, obviously got this information from someone, although he no longer recalls who told him.

p. 655: First explaining away the negative evidence.

If a lawyer starts his argument on the positive part of his case without having first attempted to eliminate the negative, at the very moment he is making these arguments the jury is thinking,
But what about this and that?
and the force of his argument will be substantially diluted. Moreover, to end his argument thereafter on the defensive, trying to mitigate or explain away the negative evidence, is very poor strategy. One should always end on an affirmative note.

p. 677: “under that [circumstantial evidence] instruction Judge King will give you, Jennifer is entitled to a not-guilty verdict.”

I had pointed out to the jury that even if, in a particular case, the evidence did not reasonably permit
any
conclusion of innocence, and the only reasonable conclusion was that of guilt, by itself even that would not be enough for a guilty verdict. The conclusion of guilt would still have to
also
be beyond a reasonable doubt.

p. 684: “[Enoki] seemed a little confused in what was now the last inning of an important ball game.”

I had seen other prosecutors make the same mistake—hastily scratching out their rebuttal while defense counsel is arguing, instead of preparing it well beforehand. Since the prosecutor knows all the weaknesses in his case, he should anticipate every conceivable defense argument attacking those weaknesses and prepare his response long before the defense attorney rises for summation. In fact, the prosecutor’s rebuttal should be the most powerful argument he makes in the case.

V
INCENT
B
UGLIOSI
received his degree from the UCLA Law School, where he was president of his class. Of 106 felony jury trials, he lost only one case. His most famous trial as a prosecutor for the Los Angeles District Attorney’s office was the Charles Manson case, which became the basis of his bestselling book
Helter Skelter
. Both
Helter Skelter
and
Till Death Us Do Part
won Edgar Allan Poe Awards for best true crime book of the year. Mr. Bugliosi lives with his wife, Gail, in Los Angeles, where he is in private practice. He is currently working on a book about the assassination of President John F. Kennedy.

B
RUCE
B. H
ENDERSON
, who has taught at the USC School of Journalism, is the author and coauthor of many works of nonfiction, including
Empire of Deceit
and his latest,
True North
. Mr. Henderson lives in Sebastopol, California.