And the Sea Will Tell

by Vincent Bugliosi

  Question: “What was the nature of that last radio contact with Mac Graham on August 28th?” Answer: “Like all the other contacts. He [Mac] related his experiences on the island. What he was doing, what he found. We talked about everything from rain to birds, sharks in the lagoon, and everything. How to fish, and what fish were poisonous. I was trying to help him out as much as I could. Also, there had been other boats on the island, and I was relaying messages from some of these other boats to their parents, and I was handling, in other words, third-party traffic.”

  Since Shoemaker seemed to be drifting off into matters that obviously could have taken place during conversations before the one on the date in question, the prosecutor brought him back once again to the last contact. I continued reading to the jury.

  Question: “What was the nature of your last conversation with Mac Graham? What was the nature of that communication with you?” Answer: “Well, he had spoken about this prior to this. I think one of the dogs of the other two people on the island had almost attacked his wife. So there seemed to be a problem. It was a boat that had gone down there that was—according to him he said it was unseaworthy and leaking badly, and the people on the boat were having a hard time, apparently, running out of food, and these were the ones with the dogs. There were several dogs, but I think there was only one that was causing the trouble.” Question: “That conversation was on the 28th of August?” Answer: “That was on the 28th, the last time I heard from them.” Question: “Did you have another contact with him after that?” Answer: “No. That was the last time I heard from him and he said that the other boat was leaving the next day.”

  I now looked up from the transcript. “Did I read the questions and answers correctly, sir?”

  “It sounds…yes.”

  “Mr. Shoemaker, I’ve counted seven, seven references in the transcript I just read to the fact that this was the last contact you ever had with Mac Graham. So there was no confusion as to which conversation this was. You’ve testified earlier how this cake-truce incident stood out in your mind above everything else. Something you would never forget as long as you live. If it actually happened, as you claim it did, can you tell this jury and Judge King why, when you were specifically asked to relate what was said and what took place during this very last contact that you ever had with Mac Graham, that you never felt the cake-truce incident was memorable enough or important enough to mention?”

  “Mention to who?”

  The whole room felt a gear disengage, I thought.

  “To the lawyer who asked you to relate what took place during that conversation.”

  “What lawyer?”

  “The person that was asking you the questions, sir, that I just read to you.”

  Shoemaker paled. “Well,” he stammered, his lips visibly quivering. “I was only…answering the questions that were asked.”

  I had no further questions.

  On re-direct, Schroeder tried his best to repair the obvious damage. “Do you recall whether you mentioned the cake-truce incident to FBI Agent Hal Marshall?”

  “Yes, at my home,” Shoemaker said quickly, grabbing for the life preserver. “That was last year. I discussed it with him then.”

  “And you specifically mentioned that incident at that time?”

  “Yes.”

  But this was some eleven years after it supposedly occurred. Shoemaker’s involvement in the notorious Palmyra Island murder case had undoubtedly been a dramatic peak in his life. He could be likened, I thought, to the fisherman who lets a big one get away, and the fish keeps getting bigger and bigger with each retelling. Nonetheless, although Shoemaker had fared badly on cross-examination, he didn’t come across at all like the devious, lying type; he looked more like the sort of guy who goes on stage when the magician asks for volunteers. In terms of believability with the jury, that was a plus for him.

  ROBERT MEHAFFY, the Sacramento college teacher, testified to the Sea Wind’s entering Kauai’s Nawiliwili Harbor on the evening of October 12, 1974, and setting anchor next to his boat. The next day, “it was just after dinner when we heard a knock on our hull. We opened the hatch, and this couple was next to us in a dinghy. They had a bottle of wine. They introduced themselves as Roy Allen and Jennifer Jenkins. We invited them aboard, and they stayed about three hours.”

  Jennifer did most of the talking, though her boyfriend did talk some, Mehaffy said. The couple mentioned a recent trip to Palmyra, but gave no details. The woman told a story about being shadowed by a large swordfish while they were becalmed at one point during their return to Hawaii. “She said this fish kept circling the boat. They heard a thump, but didn’t think anything about it until later, when they went below and found the boat taking on water. They pumped out the water, and she said they found the bill of the swordfish sticking through the hull into the bilge area. They said they put an outside patch on the hole.”

  “Now, from your experience as a sailboat skipper,” Schroeder asked, almost purring, “did you find the story to be plausible or credible?”

  “Well, I told Roy at the time that it seemed to me kind of unlikely that a swordfish would have a bill strong enough to go through the oak hull of their boat.”

  “Did you ever ask Jennifer or Roy to show you the evidence of this swordfish attack?”

  “When we were talking about it, I just simply said, ‘I would like to see that. I’d like to see a hole a fish could put through a boat.’”

  “Did Jennifer or Roy ever offer to show you this…swordfish hole?”

  “No. They mentioned they had to leave the next day because the boat was still taking water, and they wanted to go someplace where they could haul it out to effect more permanent repairs.”

  Prior to trial, I had asked Enoki to stipulate to the following entry in an Encyclopedia Americana article: “The excellence of the swordfish’s bill as a weapon and the power of its attack is attested by their frequent piercing of boats and even of large wooden ships, through which the sword has been deeply thrust before breaking off.” Enoki had refused, telling me I’d have to call my own expert witness on this point. I surmised that the Government intended to argue that the hole was probably caused by a bullet. Why else would they be resisting the swordfish-hole theory?

  Mehaffy testified that two weeks after meeting the couple, his boat was moored at the Hawaii Yacht Club in the Ala Wai harbor when their ketch entered the harbor and anchored a hundred feet or so away. The date was October 28. “As they dropped anchor,” he continued, “there was a man helping me tie up another boat and he looked across the channel and said, ‘That’s the Grahams’ boat.’ I said, ‘No, that’s Roy and Jennifer.’ He said, ‘Oh, my God,’ and hurriedly left.”

  “Do you know who that man was?” asked Schroeder.

  “Bernard Leonard,” said the witness.

  Based upon my pretrial interviews with Mehaffy, I had intended to bring out some things I felt would be very helpful to Jennifer. But Schroeder did my job when he asked if Mehaffy had observed Jennifer and Roy at any time the following morning.

  “Yes, when they left the Sea Wind in their dinghy to row ashore.”

  “Do you recall which one of them was rowing?”

  “As I remember, it was Jennifer.”

  “Did you see either of them later?”

  “Well, just a few minutes later, Jennifer rowed back to the boat. She was there for just a very few minutes. She was rowing back toward shore the next time I noticed. It was then that the Coast Guard patrol boat came into the harbor and speedily headed toward her.”

  The prosecutor had just unwittingly provided corroboration for Jennifer’s story about returning Joel’s laundry.

  Cross-examination is limited to those matters covered by the direct examination, but I asked Judge King to permit me to take Mehaffy as my own witness on direct, which he allowed me to do.

  I began by establishing Mehaffy as an expert sailor who had taught sailing classes and written articles about the sport. “M
r. Mehaffy, if a boat doesn’t have an engine, can it sail—by way of what is called tacking—against the wind?”

  “You can never sail directly into the wind. But by attacking first one side of the wind source and then the other—what we call tacking—it can go towards the direction that the wind is coming from.”

  Tacking was never discussed at Buck Walker’s trial, although the Government urged the proposition that a sailboat without an engine could not sail against the wind from Palmyra to Fanning. Knowing nothing about boats and the sea, I had never heard of tacking before, but it made no sense to me that sailboats, plying the Mediterranean in ancient days long before any thought of combustion engines, could proceed at sea only with the wind at their back, or against it with oarsmen. Knowing that Fanning was against the wind, I had asked Jennifer about this and she was the one who first told me about tacking, explaining this was the way Buck and she had intended to sail to the island.

  “Can you explain to the jury in a little more detail what’s involved in this technique called tacking?” I asked Mehaffy.

  “What you have to do is to get the sail to curve, and then as the wind comes by the sail, instead of pushing the boat, it sucks the boat ahead. When the wind comes around the side of the sail, it creates turbulence in the back that draws the boat ahead.”

  “Is this aerodynamic principle roughly analogous to the wind on top of an airplane wing forming a suction which holds the airplane up?”

  “Yes, sir.”

  “So by tacking, then, even though the wind is against you, you can actually advance and proceed forward.”

  “That’s correct.”

  “Does the bow of the boat, when you’re tacking, have to be slanted in excess of any angle from the wind line?” I asked.

  “Yes, about forty-five degrees from the wind source.”

  “If the angle is less than forty-five degrees, you can’t tack forward.”

  “Yes, you’re not going to go forward.”

  “Let’s assume that not only the wind is against you, but also the current. If the wind velocity is greater than that of the current, can one tack forward against the wind and the current?”

  “Yes.”

  When Schroeder took my place at the podium, he was obviously concerned over the testimony just elicited. “Mr. Mehaffy, would it be safe to say that you cannot tack everywhere? That there are conditions when you would, for example, be proceeding directly into the wind and the current where it would be extremely difficult to tack?”

  “Well, in really light winds, say less than five miles an hour, and you’re trying to tack into that with the current against you, you’re not going to go very far, very fast.”

  Incredibly, up to a point, the greater the winds against you, the easier to make forward progress in a sailboat. In hoping to make the trip sound impossible, the Government had already stressed how strong the winds would have been between Fanning and Palmyra.

  “Would it be safe to say,” Schroeder went on, “that there are certain directions and points on the globe where it’s commonly known to sailors that sailing from one point to another is extremely difficult or almost impossible?”

  “Yes,” Mehaffy answered. “An example being from Honolulu to San Francisco. It’s very difficult without going due north out of Honolulu for eight hundred miles before you turn east.”

  “And would not another variable involved in sailing a difficult course, and trying to tack, be the condition of your boat?”

  “Yes. Definitely.”

  “If your boat was unseaworthy, it would be extremely difficult, would it not?”

  “Not so much difficult as dangerous. Because when you’re tacking, that puts more strain on your boat. So if your boat were not seaworthy, it could tear apart.”

  Schroeder had done a good job in bringing up the seaworthiness of the Iola as a factor. But on defense, we’d strongly made our point that Jennifer had reason to believe that she and Buck could have made it to Fanning by tacking.

  THE NEXT two prosecution witnesses, James Wollen and his wife, Lorraine, had testified at Jennifer’s theft trial. Originally from Tacoma, Washington, they’d spent 1974 through 1976 living aboard their twenty-seven-foot sailboat, the Juno, at Pokai Bay in the town of Waianae on Oahu’s western shore.

  James Wollen testified to meeting Jennifer and Roy Allen in mid-October 1974 and visiting them aboard a blue-and-white ketch they claimed was theirs. He had noticed the name Iola painted on the back of the boat.* Wollen was certain of this point for a good reason: he’d been born and raised in a small Kansas town named Iola.

  Wollen identified a photograph of the Sea Wind as “the Iola from Pokai Bay.”

  Mrs. Wollen once again testified to her picking up the snapshots for Jennifer—the pictures that showed the Iola and Sea Wind sailing alongside each other in the open sea.

  She had visited “the Allens” once aboard their boat, Mrs. Wollen explained. “It was very, very nice. I remember seeing things like china and crystal. It was quite plush.” She repeated Jennifer’s telling her how she and her boyfriend had come into possession of the beautiful yacht—they’d purchased the boat from a man who had had it some fourteen years and had become tired of the maintenance.

  “Did she ever mention the names Mac or Muff or the Grahams?” Enoki asked.

  “No.”

  “Did she ever mention anyone disappearing or having any accidents on an island named Palmyra?”

  “No.”

  There was but one point I wanted to bring out on cross-examination—that there was a picture of the previous owners on the cabin wall of the boat.

  “I don’t remember that, no,” Mrs. Wollen said.

  I flipped to a page of Jennifer’s theft-trial transcript and read a brief portion of her testimony in which she recalled noticing a picture on the cabin wall and asking Jennifer if those were the previous owners and being told yes.

  “Do you recall testifying to that on a previous occasion?” I now asked.

  “Yes, I do. I guess I don’t remember the picture now, and that’s throwing me.”

  KEN WHITE, the Government’s boat expert, testified to his detailed examination of the nine-and-a-half-horsepower Evinrude engine from the Sea Wind’s Zodiac not revealing any evidence of salt water inside the motor. White had found no evidence of corrosion, either. “Corrosion from salt water is immense,” he explained.

  With his testimony, the Government proved beyond a shadow of a doubt that the Zodiac had not capsized in the Palmyra lagoon.

  White went on to describe the complicated procedure for starting an engine after it has been immersed in salt water—taking the spark plugs out, drying them off, using the primer bulb to force gas through the carburetor system while extracting all the water, and finally, using a flywheel puller to clean out the magneto. (Jennifer was going to testify that Buck did none of the above, and yet the engine roared to life after he pulled the cord several times.)

  White added that there was no sign that a flywheel puller had been used. “You find some scarring tissue on the side of an engine when a flywheel puller has been used. I didn’t find such scarring on the Evinrude…. It was a very clean engine.”

  “Did you find any markings on the cowling [the housing] of the Evinrude that could have been left by coral?” asked Enoki.

  “No, I didn’t.”

  The prosecutor knew Jennifer would testify that the dinghy lay on the lagoon beach, described by several witnesses as mostly coral.

  On cross-examination, Weinglass tried to soften White’s last finding. “You weren’t asked to look at the cowling at the time of your examination. You were looking to see if there was salt inside the engine. Isn’t that right?”

  “No. We also were asked to see if there was any abrasive areas on the Zodiac. And we did check out the engine cowling also.”

  At such times, it’s best to move on. Rapidly.

  But I was not greatly worried. Buck could have turned over the Zodiac and left it
on the beach in such a manner that the cowling would not scrape against coral. After all, the Zodiac was going to be all his in the near future.

  I HAD LONG believed that the next witness, retired FBI Special Agent Calvin Shishido (who was now working for a Honolulu law firm as a private eye), was among the most critically important witnesses against Jennifer. In light of Ken White’s testimony, if the jury believed that Jennifer had told Shishido, as he claimed, that she and Buck found the Zodiac overturned in the water of the lagoon, this could devastate her credibility with the jury and very strongly indicate her guilt.

  Shishido unbuttoned his beige suit jacket and made himself comfortable on the witness stand as he waited patiently for the first question. Obviously, he had been here many times before.

  Enoki had Shishido relate what Jennifer had told him when he first interviewed her on the Coast Guard cutter.

  “…she said they found the Zodiac dinghy with the outboard motor overturned in the water the following morning. The gas tank was detached and floating nearby…. They continued their search for the Grahams until about September 11th, I think she said, at which time they made sail for Honolulu aboard the Sea Wind.”

  “Do you specifically remember her mentioning that the Zodiac was found overturned in the water?” Enoki asked, wanting to nail the point down.

  “Yes.”

  Enoki asked Shishido what Jennifer had told him nearly twelve years earlier about the fate of the Iola. “She said she boarded the Iola and Roy Allen boarded the Sea Wind and they used a tow rope of approximately fifty feet in length to tow the Iola with the Sea Wind. But the Iola got hung up on some rocks, and they were unable to dislodge it. So, they left the boat there, and sailed away on the Sea Wind.”

  “Did she say anything further about why they were using the Sea Wind?”

  “She stated that since the Grahams had invited them to dinner and said to ‘make yourselves at home,’ she rationalized that to mean that if anything should happen to the Grahams, she and Roy could take possession of the Sea Wind.” Shishido smiled slightly.