And the Sea Will Tell

by Vincent Bugliosi

  I spent a day and a half at the Los Angeles County law library reading virtually every case on polygraph evidence I could find anywhere in the country, only to discover that not a single one dealt specifically with the tactic I had created for Jennifer.

  Though not precisely in point, I did finally find one, and only one, favorable case, Commonwealth v. A Juvenile (No. 1), 365 Mass. 421 (1974). Like Jennifer, the defendant offered to take a polygraph test and let the results come before the jury. The trial court denied the offer, but the appellate court reversed the defendant’s subsequent conviction, noting that “in view of the possibly damaging consequences” of the defendant’s offer to let the results of a “yet to be taken” test come in, there was sufficient ground for the judge to order the test and admit the results into evidence.

  Of course, Jennifer’s case was different in that I was not seeking, as in the Massachusetts case, to have any actual polygraph results received into evidence; I only wanted the jury to know she had offered to let the results come in. But the Massachusetts court had recognized that where the accused has something to lose this is justification for departing from the basic rule. Inferentially, at least, this ruling went in the direction of supporting my position.

  I filed a motion with Judge King’s court on December 19. In opposition to my motion, Enoki listed no authority to support his position (confirming my research that no court had yet dealt with the issue), simply arguing that the court “should not deviate from the well-accepted rule that offers to take polygraph examinations are as inadmissible as the results of unstipulated polygraph examinations.”

  I knew I was mounting an uphill battle.

  HONOLULU

  JANUARY 8, 1985

  AT 4:00 P.M., a federal grand jury, on the basis of information provided earlier in the afternoon by Buck’s two chums, Williams and Ingman, returned a superseding indictment against Jennifer Jenkins and Buck Walker. In addition to the felony-murder count already filed against them, both were now charged with a second count of premeditated murder.

  The prosecution had welcomed the new information from the two inmates as a major break in the case. It was in their interest to believe that Buck Walker, like many a caged felon, had confessed under the pathetic illusion of prison camaraderie.

  The prosecutors also wanted to believe their tale, particularly Williams’s, that Walker had suggested Jennifer Jenkins participated in the killings. In fact, strong sentiment had developed among law enforcement officials that it was she, not Walker, who had been the brains behind the crime, while he had provided the brawn.

  Would a trial jury believe unsavory types like Williams and Ingman when they took the stand?

  The prosecutors were more than willing to take that chance.*

  CHAPTER 25

  U.S. DISTRICT COURT, SAN FRANCISCO

  JANUARY 11, 1985

  WHEN HE TOOK THE bench to hear oral arguments on the final pretrial motions, Judge King asked which defendant wanted to be heard first. I yielded to Walker’s lead lawyer, Earle Partington.

  With black hair thinning on top and deep lines creasing his face, Partington seemed older than his forty-three years. A confirmed bachelor, teetotaler, and nonsmoker, he was a former assistant federal public defender in San Francisco and state prosecutor in South Rhodesia (now Zimbabwe) and Hawaii. His voice had a whiny edge that, combined with his feisty nature, would grate on judge and jury alike, but the wiry Partington savored his reputation as one of Hawaii’s scrappiest attorneys.

  Partington’s first motion was an attempt to prevent the prosecution from introducing Walker’s prior testimony in his theft trial at his murder trial, a clear signal that Walker might not testify at his trial. The motion was denied.

  The Government, unable to locate its expert on small boats for the upcoming trial, sought to introduce his testimony from the theft trial. Partington’s second motion, to exclude this testimony, was also denied. It was now my turn.

  I started with my polygraph motion, admitting to the judge that this was a “novel issue” and adding that while I understood it would be challenging for the court to chart a new course, “any pioneer effort requires that kind of courage. Your only guide is common sense and the general principles of admissibility of relevant evidence.” I carefully reviewed the points I had made in my written motion, including the Massachusetts juvenile case. “The Government hasn’t come up with one single case to the contrary.”

  Judge King said he liked my argument; however, since the Government had accepted our original offer, but we had reneged and made the counteroffer that they then rejected, the situation had become too complicated and he didn’t want the jury to get tied up on a collateral issue. He denied my motion. But I didn’t give up all thought of getting King to change his mind.

  So far, three defense motions had been presented, and three had been denied. I hoped this clean sweep wasn’t a portent of the future course of the trial.

  My next motion was the most important I would make in the entire case. It was the main reason for my having flown to San Francisco that morning. If the defense lost it, I feared the murder trial could very well be anticlimactic—rather like a tennis player stepping onto the court down one set and 0–5 in the second before the first serve of the match.

  The Government lawyers, not satisfied with their strong case against Jennifer, were attempting to engineer a scenario that would, for all intents and purposes, convict her of murder before they called their first witness. I was resolved not to let them get away with it.

  Let me back up and explain their scheme.

  As indicated, felony-murder had been the first murder count filed following the discovery of Muff Graham’s remains.

  To put it in simplified language, under the felony-murder rule, if a killing takes place during the perpetration or attempted perpetration of an inherently dangerous felony, such as robbery (the felony alleged against Jennifer), burglary, rape, arson, etc., it is automatically first-degree murder, even if the killing was accidental.* The justification for a law that makes a killing first-degree murder in the absence of a premeditated intent to kill, or even any intent to kill, is to offer an additional deterrent to committing crimes that, by their very nature, create an increased probability of death.

  When the Government was fighting Len in one legal battle after another to prevent the felony-murder indictment from being dismissed on the ground of double jeopardy, it puzzled me very much that they didn’t simply circumvent the whole problem by filing a premeditated murder count instead. I finally came to believe that their only reason for sticking with felony-murder was the hope they might somehow get before the jury that Jennifer had already been convicted of the theft of the Sea Wind. (There are many ways such things can surface at a trial, including the jury’s learning it through the media.) And as lay people, the jury might very well get confused between the theft of the Sea Wind (what Jennifer had already been convicted of) and a robbery of the Sea Wind (what she was now on trial for). This confusion could only redound to her detriment, and make her conviction under the felony-murder theory even easier than it would be under that of premeditation.

  On December 12, I had filed a written motion setting forth my concerns and asking Judge King to take the most unusual step of ordering the Government to amend its original indictment to allege premeditated murder rather than felony-murder. (Although there is no specific provision in the law allowing a judge to do this, I cited to the court some general legal authority for the trial judge’s responsibility to ensure that the accused receive a fair trial.) I don’t imagine too many defense attorneys have ever strenuously urged that their client be charged with premeditated murder, but I felt this strategy necessary in order to get the felony-murder count dropped from the indictment.

  I contended that premeditated murder was the proper charge in this case because of the “irresistible conclusion that whoever murdered Mrs. Graham premeditated her murder. The felony-murder rule is an inappropriate and rather
unconventional theory to proceed under given the facts of this case. It is traditionally invoked where the facts are for the most part not in dispute, as in the killing of a liquor store proprietor during the perpetration of a robbery. Only the identity of the perpetrator is in issue. In the instant case, absent a confession by the perpetrator of the murder of Mrs. Graham, it can be assumed that the facts will never be known.”

  Judge King had denied my motion, but in the Government’s January 7 response to it, Enoki had finally revealed his true intention in charging felony-murder…and it was a lot worse than I’d suspected. Enoki’s position was that the prosecution should be able to introduce Jennifer’s theft conviction at her murder trial “to establish an essential element of the felony-murder charge.” In other words, he wanted to introduce Jennifer’s prior conviction for theft of the Sea Wind in his “case in chief” (the presentation of his evidence at the trial) as conclusive and irrebuttable proof of key elements of the robbery in the felony-murder charge!

  Both my co-counsel, Len Weinglass, and Buck Walker’s defense attorney, Earle Partington, thought the law allowed Enoki to do just that. I was equally convinced it did not.

  The Government’s strategy of trying to convict Jennifer of felony-murder by presenting proof of her theft conviction was momentous in scope. To be sure, several steps were necessary to achieve the Government’s objective, but each step was simple, flowing quite credibly and naturally into the next. If the jury at Jennifer’s murder trial believed someone committed a robbery of the Sea Wind (obviously, they would), and if they believed the robber also killed Muff Graham (again, they obviously would), and if the judge instructed the jury that Jennifer’s theft of the Sea Wind was an integral part of that robbery, the jurors would surely reason thusly: since Jennifer committed some of the elements of the robbery—the theft elements of (1) taking the Sea Wind and (2) having the intent to steal—she must also be guilty along with Buck (who else was there?) of committing the remaining elements—i.e., (3) the taking of the Sea Wind by means of “force or fear” (of course), and (4) from the “immediate presence” of Muff Graham (liberally interpreted to include any place within sight or hearing). And since it’s obvious the killing almost assuredly took place during the perpetration of the robbery, she’d be guilty of first-degree murder under the felony-murder rule.

  Stated another way, if I had to concede that my client did commit some of the elements of the robbery that eventuated in Muff Graham’s death, how could I argue she was innocent of the others? Any sensible juror would assume that either she alone committed the remaining elements, or aided and abetted Buck Walker in doing so. In my opinion, the prosecutors were not merely trying to deprive Jennifer of a fair trial, they were also determined to keep her from having any kind of murder trial, period. They wanted to have a trial only for robbery. If they could prove Jennifer committed that crime, her guilt in the murder would be assumed.

  I told the judge how strongly I condemned the prosecution’s scheme. “As a former prosecutor, I have to say I am very disappointed. I would never have attempted to do what they’re trying to do here. Although I was a tough prosecutor, I was always fair.* You can’t tell the jury going in [to a trial] that half the crime charged against the defendant has already been proved,” I argued.

  I turned to face the prosecutors. “That’s what you’re seeking to do, is that correct, Mr. Enoki?”

  Enoki, evidently fascinated by a worn spot on the counsel table, didn’t respond.

  “By seeking,” I said, “to have the theft conviction introduced to prove some of the elements of the robbery alleged in the present case—”

  “Right,” Judge King interjected. “Some of them. Not all.”

  “By definition,” I went on, “that’s telling the jury that the theft was a part of, and took place at the same precise time as, the robbery.”

  “If a person has been convicted of a criminal charge,” the judge said unresponsively, “then if it’s relevant, that can be used in a subsequent trial.”

  I sensed that Judge King didn’t see what the Government was trying to do. Although you cannot commit a robbery without thereby also committing a theft, it’s too obvious to even state that a theft committed at a different time than a given robbery would not be a part of that robbery.

  Now that the judge appeared to be agreeing to go along with his plan, Enoki leaped in with both feet. The theory of his argument was the doctrine of “collateral estoppel,” the prosecutor explained. “If a defendant was tried previously and legally convicted, any facts that were necessarily determined in that conviction the defense is barred [estopped] from relitigating in a subsequent trial.” He added that to prove robbery, as required of him in the present felony-murder count, he had to prove four elements: (1) the taking of the Sea Wind (2) from the immediate presence of Mrs. Graham, (3) by means of force or fear, (4) and with intent to steal. The prosecutor said the first and fourth elements had already been established in Jennifer’s theft trial.

  “You can get those elements in by my instructions to the jury,” the judge chimed in. “You don’t have to prove them.”

  “That’s correct,” Enoki said. “Two of the elements of the theft conviction are necessary parts of my proof in this case.”

  Judge King looked squarely at me and asked incredulously, “You still say he can’t do that?”

  My answer was that the prosecution definitely could not do that because it would be “tantamount to telling the jury that the theft for which Miss Jenkins was convicted was a part of, and took place at the same precise time as, the robbery. We can’t tell the jury that,” I persisted, “because we do not know that. Even assuming Miss Jenkins is guilty of the theft of the boat, that theft could obviously have been completely unrelated to the robbery and the murder in this case. Let me give you two very reasonable possibilities, and there are more.

  “If Buck Walker, without Miss Jenkins’s knowledge or assistance, killed the Grahams during the perpetration of the robbery, and thereafter, Miss Jenkins, finding out about the robbery and the murder, steals the Sea Wind, she is guilty of the theft. But obviously, she had nothing to do with the robbery or the murder. The theft she committed was a different theft. Or in another scenario, if Mr. Walker killed the Grahams without Miss Jenkins’s knowledge or assistance, and Miss Jenkins believed that the Grahams had died an accidental death, and thereafter she steals the Sea Wind, she again is guilty of the theft, but not guilty of the robbery or murder. Because these possibilities exist, your honor, the jury cannot be told that as a matter of law they do not exist.

  “The prosecution is seeking to take elements of one crime, the theft, and transpose them over to another crime, the robbery. You can’t do this. And I don’t know why they would even want to because I think it’s automatic reversible error.

  “I have to question whether they’re acting in good faith. The problem is that I can’t give them credit for good faith without thereby convicting them of a lack of knowledge of fundamental criminal law.”

  Enoki took this thrust impassively.

  Judge King was listening to every word. “The Government argues collateral estoppel,” I continued, intent on keeping my one-man audience. “The requirements for collateral estoppel are simple enough. The issue to be decided must be the same as that involved in the prior action. In the prior action, the issue must have been raised, litigated, and actually adjudicated. In the case before you, the indictment alleges robbery. In the prior action, the 1975 theft case, the jury did not have the robbery issue before it. The robbery issue was not raised, nor was it litigated, nor was there any adjudication of it. So the jury that convicted Miss Jenkins of theft did not, by their theft conviction, say that the theft took place as a part of the robbery of the Sea Wind. How can we now say that it was?”

  I pressed on, telling the court that to tell the jury the theft was a part of the very robbery for which Jennifer was on trial was to take away from the jury’s consideration “virtually the so
le issue at this trial.”

  The judge replied that even if the theory of collateral estoppel were not applicable, Jennifer’s prior conviction could still come in during the prosecution’s case in chief.

  If collateral estoppel did not apply, I asked Judge King, then under what theory could Jennifer’s prior conviction come in. The “willy-nilly” theory? “Please give me a theory I can address myself to,” I said.

  Judge King, showing signs of beginning to lose his patience, asked if I actually intended to argue at the murder trial that my client didn’t even steal the Sea Wind.

  “Of course we’re going to argue that.”

  Court: “She did not steal it?”

  “Yes, of course.”

  Court: “What do you mean?”

  “Judge, why would I get up and tell the jury that what this other jury did is automatically right, that juries are never wrong?”

  Court: “That’s what we are arguing about right now. That you can’t relitigate something that has already been decided.”

  “So in other words, I am precluded from asking her on the witness stand what her state of mind was when she departed with Mr. Walker from Palmyra on the Sea Wind. She is literally prohibited from saying, ‘I didn’t intend to steal the Sea Wind,’ because as a matter of law, she did steal the Sea Wind.”

  Court: “I suppose she can say anything she wants to.”

  “How can she if the court is going to tell the jury that as a matter of law she did steal the Sea Wind, and therefore to disregard her testimony in that respect?”

  Court: “Right.”

  “And that she is committing perjury when she testifies that she never intended to steal the Sea Wind.”

  Court: “I don’t know about perjury. Defendants have elastic memories.”

  “I am not going to stipulate that she is a thief in front of the jury. And if the court wants to tell the jury that she is—”