And the Sea Will Tell

by Vincent Bugliosi

  *Since both Enoki and Schroeder came from out of town, they were being assisted in the selection of a local jury by Ben Burch, an assistant from the San Francisco U.S. Attorney’s Office.

  *In Scottish criminal procedure, where conviction or acquittal is decided by the majority vote of a jury of fifteen, the jury can return a verdict of “not proven,” a finding designed to cover the situation where there is a suspicion of guilt but one not sufficient to remove all reasonable doubt. Scottish wags refer to the verdict as “not guilty, but don’t do it again.” The principal criticism of the Scottish system has been that a lingering stigma attaches to one whose trial culminates in a “not proven” verdict. I was concerned that if Mrs. Angeles and Mr. McGowan, whom I otherwise wanted on the jury, had deeply ingrained within them the unique Scottish rule and ended up having a suspicion of Jennifer’s guilt but weren’t able to express this suspicion formally (as they would in their homeland) with a “not proven” verdict, they might feel constrained to opt for a guilty verdict. Their complete unfamiliarity with the rule eliminated that problem.

  *The day before, during a recess, Judge King had finally granted my motion that when Jennifer testified, the prosecution could not ask her, on cross-examination, about her theft conviction.

  †Both the prosecution and the defense had been notified by Walker’s lawyer, Earle Partington, that Walker would not testify.

  *Before the judge took the bench the following morning, Schroeder came over to me at the defense table to apologize for creating the wrong impression. I readily accepted his apology. Subsequently, Schroeder played everything straight by the book.

  *Winds are described by the direction from which they are coming. Ocean currents, on the other hand, are described by the direction in which they are going. Hence, an easterly wind is coming from the east and going toward the west, whereas an easterly current is coming from the west and going toward the east.

  *Virtually all human beings, from childhood on, regularly cross-examine those with whom they interact. And the main technique they employ is to ask “why,” or “how come.” Wife to husband: “If your meeting ended at eight o’clock, why did you get home at ten-thirty?” Girl to boy: “You say you like me so much. How come you didn’t ask me to the dance?” Yet ironically, this most natural, instinctive, and practiced of all cross-examination techniques is frowned upon by the very people who need it most: trial lawyers. Books on the art of cross-examination, from Francis L. Wellman’s 1903 classic The Art of Cross-Examination on down, all advocate never asking an adverse witness “why” he did or did not do something the lawyer feels is implausible. Louis Nizer, in his book My Life in Court, says: “One can quickly spot a bad cross-examiner if he asks ‘why.’” The reason given is that the “why” question gives the witness free rein to explain away his conduct, and in so doing, he also frequently incorporates within his explanation to the open-ended question a statement extremely damaging to the questioner’s case.

  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who crumple under the pressure of the first or second good question, are as elusive as all hell. When cornered on the stand, for some strange reason they seem to secrete a type of mental adrenaline that gets their minds working as fast as silicon microchips. But if the lawyer has blocked off all avenues of escape, a witness can’t go somewhere when he has nowhere to go.

  Sometimes, several possible escape routes have to be blocked off. Because of the nature of the testimony of the Government’s witnesses in this case, however, that wasn’t necessary.

  *One matter concerned Leonard’s testimony on direct examination that Jennifer told him she and Buck found the overturned Zodiac “over at” Paradise Island, which is on the opposite side of the lagoon from where she subsequently said she and Buck found the Zodiac. I asked Leonard if it was possible she had told him that the dinghy had capsized near Paradise and that he misunderstood this to mean they had found it there.

  “She said they found it capsized on the beach at Paradise Island,” he answered firmly.

  *Muff’s letters, being inadmissible hearsay, were never introduced at the trial. Moreover, even they did not reflect any ill feelings about Buck and Jennifer on Mac’s part, only Muff’s. Likewise with Mrs. Leonard’s testimony, which only dealt with Muff’s, not Mac’s, fears. And there had not previously been any testimony or indication at all that Buck and Jennifer harbored any resentment toward the Grahams.

  †The Government had already marked as an exhibit (for the jury’s eventual scrutiny once it was received into evidence) the log of the Iola, found by the authorities on the Sea Wind on October 30, 1974. We had requested that any passages relating to drug use be excised, along with coarse sexual excerpts (for example, Jennifer’s July 16, 1974, entry, “R and I smoked some hash and had an exquisite fuck,” and an August 4 entry where she said that she had challenged Buck in a chess match “for a body rub and bj—which much to his chagrin I won. Finest rub of the year and an excellent bj and fuck thrown in”), fearing such references would unjustifiably prejudice some jurors against Jennifer. The Government had consented, on the condition that any mention in the log of Jennifer’s considerable efforts to plant a vegetable garden be similarly expunged. (However, the agreement did not preclude either side, independent of the log, from inquiring of any witness

  *Jennifer’s brother paid for all the legal fees and bills in this case. Not every sister is lucky enough to have a brother like Ted Jenkins.

  *Despite the many court and jury murder trials I’ve handled, I’ve never become inured to violence, or its handiwork. Even the reference to any part of the victim as an “exhibit,” while proper and unavoidable, has always seemed somehow sacrilegious to me.

  *Weinglass said his purpose in interjecting the reference to the Gilbertese was “to create a kind of smoke screen.” He said he had heard or read that the Gilbertese have a ritual of putting human corpses into containers and setting the remains on fire. But Len forgot to mention this ritual in his question to Uberlaker.

  *Jennifer did exhibit a keen interest in one of the trial participants. For some time, I’d known that unattached Jennifer was attracted to Len, who was also single. In fact, her dreamy looks at him had been so obvious that I finally warned her to cool it whenever the jury was present. “If you can be so visibly caught up with one of your lawyers even in a courtroom when you’re on trial for murder,” I cautioned, “the jurors may wonder what you might have been capable of doing on a deserted island with the man you loved. They may draw the inference you would have done anything for Buck.” Jennifer had duly toned down her Len-gazing. Though they usually lunched together during the trial, I’d detected no reciprocal romantic interest on Len’s part. He conducted himself toward Jennifer in a professional manner throughout.

  *Jennifer told me that at some point in time before Pokai Bay (she couldn’t remember when—it could even have been while they were still on Palmyra) Buck removed the name Sea Wind from the stern of the boat and painted the name Iola on. Upon leaving Pokai Bay, Jennifer and Buck had sailed the Sea Wind to Honolulu, where Buck registered the Grahams’ boat under the name Lokahi on October 18, 1974. Under its new name (but with Iola still on its stern) the Sea Wind was in dry dock at the Hawaii Tuna Packers boatyard in Honolulu from October 22 to 28, 1974. There it was hauled out, the patched swordfish hole repaired, and the entire boat repainted, covering up the name Iola.

  *Something that would not come out in court this day: Leilah Burns had told me that Jennifer habitually talked in her sleep. Leilah admitted to listening carefully to Jennifer’s nocturnal comments in the close quarters of the boat, where their bunks were only a few feet apart, wondering whether or not she would talk about Palmyra or the Grahams. She had assumed that a guilty person would, like Lady Macbeth, cry out guilty phrases in the night. Jennifer had not once talked in her sleep about Palmyra or the Grahams, Leilah assured me, and furthermore, Jennifer always seemed restful and at peace in he
r sleep. At first, I told Mrs. Burns we would ask her about this on direct examination, but in the end, I decided we shouldn’t because there was an opposite side to the coin. The prosecution could argue that if Jennifer’s story about two people (whom she supposedly liked) losing their lives just a short while back by drowning or shark attack was actually the truth, then being the gentle, compassionate person the defense claimed she was, why hadn’t she tossed and turned in her sleep even over that fact?

  *I do not mean to imply that Enoki’s waiting so long was calculated misconduct. Enoki is a highly ethical prosecutor, and my guess is that the Benson matter was just an oversight on his part.

  *As is typical for me, for the most part on my direct examination of Jennifer, I stayed at the podium with my yellow pad of several hundred questions, doggedly trying to get into the record—literally force into the record—the facts and evidence upon which my case was based. I wanted the jury to focus their attention almost exclusively on Jennifer and her testimony, relegating my role to mere facilitator. (On cross-examination, however, I am apt to roam every inch of the courtroom floor, and my style is much more forceful and demonstrative, becoming, along with the adverse witness, a part of the drama on center stage.)

  *The jury had previously heard from defense witness Rick Schulze that Walker had once “escaped from custody.” However, custody can result from not only a felony, but a misdemeanor, and of course, one can be in custody without having been convicted of a crime.

  *This preemptive tactic frequently converts an opponent’s left hook into a left jab. If it does not do that, it will usually shave at least a few decibels off his trumpets. It indicates to the jury that the evidence cannot be all that bad if the preempting lawyer matter-of-factly and almost cavalierly brings it out himself on direct examination of his own witness. (In some situations, I have refined this tactic by actually calling an opposition witness as my own.) In this case, having Jennifer admit, on direct examination, to her lies and all the other negative evidence against her was far better than having these things come out for the first time on cross by Enoki asking, “Isn’t it true, Miss Jenkins, that…”

  *A week before Jennifer testified, Len rented a videotape camera and suggested I put Jennifer through her direct-testimony paces, followed by our critique of her “performance.” I was opposed to such a dress rehearsal, and the camera went back unused. This type of thing is becoming fashionable in big cases, and I feared that Enoki, aware of the practice, might ask Jennifer on cross if Len and I had put her through such a filmed rehearsal. Since directing a witness to sit, act, and gesture in a certain way (frankly, I wouldn’t have known what to tell Jennifer anyway—my only advice to her was to be natural) smacks of contrivance and insincerity, I felt that that one question, if asked by Enoki, would do far, far more harm to Jennifer’s credibility in the jury’s eyes than any possible benefit derived from a rehearsal.

  *It is not clear from the chart of Palmyra where Cooper Island ends and Strawn Island begins. Although Jennifer told Shishido she and Buck found the overturned dinghy on Cooper Island, the X she placed on the chart to designate the dinghy’s location is closer to the words “Strawn Island” on the chart than to the words “Cooper Island.” Also, a half mile (the distance she told Shishido, me, and Honolulu Advertiser reporter Bruce Benson the dinghy was from where the Sea Wind was anchored) appears closer to Strawn Island than to Cooper.

  *Enoki had earlier entered into evidence a copy of a later will, the probated will of Mac Graham (San Diego Superior Court) signed by Mac on June 26, 1973.

  *Another purpose is to elicit additional facts that will favor the questioner’s side of the case. Cross-examination is a valuable but dangerous art that is mastered by few, and this is why more cases are lost on cross-examination than won. Nonetheless, it remains, as one legal scholar observed, “the greatest legal engine ever invented for the discovery of the truth,” taking the place in our system of justice which torture occupied in medieval times.

  *Published in Mississippi College Law Review in Jackson, Mississippi, and Criminal Justice Journal, Western State University School of Law in San Diego.

  *E.g., Chief Justice William H. Rehnquist, in Arizona v. Fulminante, 111 S. Ct. 1246 (1991):…“The central purpose of the criminal trial is to decide the factual question of the defendant’s guilt or innocence.” Jackson v. Denno, 378 U.S. 368 (1964):…“there must be a new trial on guilt or innocence.”

  †E.g., Texas Criminal Pattern Jury Charges, section 0.05, “Your sole duty is to determine the guilt or innocence of the defendant.”

  ‡See Perkins on Criminal Law: “Criminal Procedure is the formal machinery established to enforce the criminal law. It includes 1.) accusation of crime, 2.) determination of guilt or innocence and 3.) disposition of those convicted.”

  *This is not the forum to debate whether guilt or innocence should be the issue at a criminal trial. Many philosophical and societal considerations are involved. But since it is not the issue, as long as juries are told (along with the correct instruction) that it is, thousands of defendants throughout the nation will continue to be tried before juries who are misinstructed on the most fundamental issue at a criminal trial.

  *But on re-direct I would not have to put out brushfires like Jennifer’s salvage claim of the Sea Wind or her “stranded” remark, because Enoki had missed both points in his cross-examination. My gamble in not bringing them up on direct had paid off.

  *And an 1893 case: “It is very difficult for a judge to determine, in advance, what limitation should be imposed upon counsel, what period may be necessary to enable counsel to present, in the aspect deemed by them important, the case of their client.”

  *What I have just said may be difficult for the reader to believe, but unfortunately it happens to be true. (There is all the documentary evidence one would need to support this; namely, the trial transcripts.) One could give a great number of examples, but here are a few relatively recent ones. Three different authors comment on three separate summations for the defense. All three cases were sensational, nationally publicized criminal trials, and all three lawyers have not just regional but national reputations.

  1. “He rose from the defense table, grabbing an unruly stack of notes. He spoke for less than forty-five minutes, but as I cringed in my seat, trying to follow his disjointed discourse, it seemed like a lifetime.”

  2. It was “two hours of rambling, sometimes incoherent, and consistently repetitive harangue. He had not begun to cover most of the specific points he had intended to include in his argument.”

  3. “It was generally agreed that his closing argument was remarkable; most remarkable was the fact that no two people who heard it agreed on what was said. The jurors’ faces showed not the slightest indication whether or not they were following his sequence of events.”

  *Throughout the trial, the judge had referred to the prosecution as “the Government.” In fact, the lawsuit was officially United States of America v. Jennifer Jenkins.

  †Not the normally used “until,” which implies it’s just a matter of time.

  *In summation, on key points, I usually cite and read to the jury the exact language of the judge’s instruction covering the point. When the jurors later hear the judge repeat the identical words I have quoted, it can subconsciously give my arguments on each point a degree of credibility, almost as if the judge is following me.

  *It may be too obvious to state, but whether or not Jennifer actually heard gunshots or screams had nothing to do with the issue of guilt. If she didn’t conspire with Buck to murder the Grahams, then of course even if she did hear shots or screams it would be irrelevant. She wouldn’t be guilty. But if the jury felt there must have been such sounds, and that Jennifer would have been capable of hearing them from the Iola, yet she said she didn’t, then her story about being on the Iola and not hearing anything would be viewed as a lie, and if she was lying, this would point to her guilt for the murders.

  * Little could
I possibly know (or even wildly imagine) that just six months later in London, England, in an exact replica of a Dallas federal courtroom, and after nearly five months of preparation as intense as I’ve ever done for any murder case in my career, I would be “prosecuting” Lee Harvey Oswald for the assassination of President John F. Kennedy. The twenty-one-hour British television “docutrial” had no script, no actors, a real United States federal judge and Dallas jury, the actual lay and expert witnesses in the case, and a prominent defense attorney (Gerry Spence) representing Oswald.