by Ann Rule
The last step before access to the courtroom itself was granted was to hand over purses and briefcases before passing through another metal detector. Kathi was unfailingly pleasant, but immovable when she had to be.
Courtroom 302 had an octagonal theme that was translated in its windows, wood trim, five hanging lamps, and wainscoting. The high ceiling was golden, molded in bas relief. Majestic as it was, the room’s acoustics were lousy, especially when the nine wooden benches on each side were packed with avid spectators whose whispers and murmurs bounced off the lofty walls. The courtroom was so long and narrow that those in the backseats seemed a football field away from the witnesses.
Each day Kathi Carlozzi would usher the Faheys and Capanos in first, and, two warring families, they were separated by both an invisible boundary and a true one, the center aisle. The Capanos took up several of the forward rows on the left, and the Faheys sat on the right. Neither side acknowledged the other, except at the times the push of the crowd jostled them together in the aisle or doorway. Then, they were civil.
Members of the working press quickly chose their seats, and only then was the public allowed in. Many of them had never been in a courtroom before. They rushed in to find a good seat. The massive courtroom was actually designed to hold only 122 people, although there would be many times in the weeks ahead when spectators would make room for as many bodies as the long benches could possibly hold.
There was an air of expectation when Tom’s trial began, even though nothing much was going to happen until a jury was picked—and that could take a long time. With the proliferation of pretrial publicity, it might not be easy to find prospective jurors who had no opinion about the innocence or guilt of Thomas Capano.
The cast of characters who took the stand would change continually; the prosecution expected to call more than a hundred witnesses, and the defense team hinted that it had almost as many. The constants would be Judge William Swain Lee, who looked more than a little like Robert Redford; Ferris Wharton, Colm Connolly, Bob Donovan, and Eric Alpert, the prosecutors and investigators; and for the defense, lead defense attorney Joe Oteri, Charlie Oberly, Gene Maurer, and Jack O’Donnell.
They were all top criminal defense attorneys, but very different from one another. Oberly was avuncular and quiet spoken, solidly versed in the law and a detail man; “the bookkeeper,” some called him. Gene Maurer was slender and intense, with a Beatleish haircut, and often wore a worried look. Tall with gray curly hair, Jack O’Donnell was an old friend of Tom’s who usually practiced law in Florida. It was O’Donnell who would frequently hug Tom’s daughters or pat Marguerite’s shoulder during breaks. He smiled easily. O’Donnell had bailed Gerry out of trouble years before. And when Joe Oteri signed on to defend Capano, wags called Tom’s four attorneys the “dream team.” And they were a million dollars’—or more—worth of lawyers.
At sixty-seven, Oteri had proved that a poor boy from south Boston could one day be a highly successful attorney. The ex-marine was living on borrowed time, however, and not from scrapes in the Korean War. When he was in his twenties and still handling divorce cases, he encountered a Boston police officer who had just lost a child support case to his estranged wife, whom Oteri, to his regret, represented. The enraged cop shot his wife and then wounded Oteri in the knees, back, and head. Scrambling under a car, he realized dully that the shooter was coming to finish the job. But at that moment the injured wife made a noise and the maddened man turned back to shoot her in the head. Forgetting Oteri, he swallowed his gun and fell dead beside her.
Emerging alive from beneath the car, Oteri decided that being a divorce lawyer was far too risky, and his practice through the years since had become heavily weighted with safer clients—defendants who had drug or murder charges hanging over their heads. He was good at winning acquittals and was not the favorite attorney of the DEA. Handsome in a dangerous way and dapper with his snow white hair, mustache, and beard, and his dark eyes, Oteri had graduated from Boston College and Boston College Law School, just as Tom had. In fact, Tom had attended his lectures, and he selected Oteri from a roster of high-profile criminal defense attorneys.
Joe Oteri had a sense of humor, a lightning-quick intelligence, and didn’t mind the media at all, cheerfully wading through reporters. He was a showman and a scrapper. His failings were his tendency to shout at a jury to emphasize his points and his condescension to witnesses who were obviously a few steps down the social ladder from himself or elderly. These elements of his style were annoying but apparently unconscious on his part.
No one yet knew what Tom Capano’s defense would be. In the summer just past, his attorneys had filed more than two dozen motions asking for the obvious—to disqualify Gerry, Louie, and Debby as witnesses and to ask for a change of venue—or the ridiculous: They wanted Judge Lee to forbid the Fahey family and their friends from sitting in view of the jury or showing emotion in the courtroom. They asked to have Connolly removed as a prosecutor, claiming his federal grand jury investigation was tainted, and they maintained that the evidence seized in the search of Tom’s house was “fruit of the poisoned tree,” obtained with an illegal search warrant.
Judge Lee had denied all their motions, save for granting permission for the Department of Correction to release Tom’s medical records. Were his attorneys considering a not-guilty-by-reason-of-insanity plea? Since Lee would not throw out the possibility of a death penalty verdict, finding Tom criminally insane might well save his life. But it was doubtful that a man of his ego would agree to such a plea.
As had been expected, jury selection took a very long time—almost three weeks. Each side had twenty peremptory challenges and could dismiss that many potential jurors without giving a reason. They could also be dismissed for cause. It was Monday, October 26, before the actual trial began. Twelve jurors and six alternates had finally been seated. It promised to be a prolonged trial, and extra alternates would guarantee there would be at least twelve sitting jurors. None of their names were released to the media.
The litigants sat at three long tables on the left side of the courtroom, one behind the other: the court staff closest to Judge Lee, then the prosecutors, and finally the defense. Whoever addressed the jury would move to a lectern on the right side of the room.
Tom was sandwiched between his attorneys and kept under the watchful eye of court deputies. Those who knew him were surprised to see that he seemed to have shrunk. His skin, like that of all longtime prisoners, displayed the yellow-white pallor of jail and his features were pinched. Even so, he still carried himself with a familiar confidence. He often turned to the gallery to mouth messages to his mother, his daughters, his sister. He virtually ignored his guards, managing somehow to look as though he were a member of the defense team, and not the defendant.
FERRIS WHARTON made the opening statement for the state. He began with Anne Marie’s own voice. Who better could tell the jury of the struggle she had put up to free herself from the man who now sat at the defense table?
“I finally have brought closure to Tom Capano. What a controlling, manipulative, insecure, jealous maniac. . . .”
With a conscientious juxtaposition of facts and time, Wharton told the jury that less than two weeks after that entry in Anne Marie’s diary, Tom had bought a huge cooler. “It wasn’t the kind of cooler you might throw some sodas and some beers in,” he pointed out. “It was a 162-quart cooler. Huge. It was the kind of cooler you might take on a boat when you go fishing. . . . But it was a curious purchase for the defendant because although he could well afford it, he didn’t have a boat and he had no interest in fishing.”
Moving on, Wharton described Tom’s next step. “On May 13, he made another curious purchase, through a woman by the name of Debby MacIntyre,” he said, and told the jury about the little gun store out on Route 13. The gun she had bought had disappeared, but the cooler would end up as “Anne Marie Fahey’s coffin. You see,” he said, “that person—Thomas Capano—had determined that if he
could not manipulate Anne Marie Fahey into being with him, she would be with no one—forever.”
Connolly and Wharton had agreed going in that they would not over-try this case; the facts were there, the witnesses were present who would corroborate the facts. And there were vital pieces of physical evidence waiting. Thus, in a very short time Wharton encapsulated the case against Tom: a jealous man, a woman who resisted, a gun, and a cooler. And now he proposed to introduce to the jury everyone who was involved with the case, beginning with Judge Lee and moving on to the prosecution and the defense teams, a gesture a surprised Joe Oteri did not appreciate. “If Your Honor please,” he objected, “I’ll introduce myself and the group to the jury!”
“Your Honor,” Wharton countered with exaggerated innocence, “I think I’m entitled to do that.”
“You’re entitled to do that,” Judge Lee said with a hint of a smile. “I’m sure you’ll get a second chance, Mr. Oteri.”
Judge Lee set the tone of the trial in a courtroom so filled with emotion that it would be a continual balancing act. His sidebar conferences, out of the jury’s hearing, would keep both sides defused, and his sotto voce comments were often hilarious. Lee had six attorneys (seven if you counted the defendant) with completely different personalities and, of course, different goals. He wanted everything on the record and he demanded order, but he understood that this marathon trial must never be allowed to veer out of control. Lee understood too well that the defendant had within him the capacity to turn the proceedings into a circus.
Ferris Wharton, even with a laid-back style and his easy connection to the jury, had an awesome task in front of him. For twenty-eight months now, federal and state investigators had been uncovering evidence and witnesses to knit hundreds of details into a net that was about to drop over Tom Capano. The jury must be made to understand the evidence and, so very essential, the sequence of events. Information that had become second nature to the investigators had to be explained to twelve jurors who had come to this courtroom with open minds.
To help him track Tom through his alleged preparations for murder and the cover-up, Wharton had a huge chart prepared. The Middle Atlantic Great Lakes Organized Crime Law Enforcement Network, a government-funded organization that provided support and an information-sharing nexus to police and prosecutors and often built demonstration aids for trials, had constructed this chart. There were photographs of the houses and the buildings involved, of the vehicles and boats, and all of the receipts of credit-card transactions. As Wharton spoke, the jurors could follow the deadly time line themselves.
“We went to them with a vertical arrangement,” he recalled, “and they showed us it would be easier to follow if it was spread out horizontally—starting in Gerry Capano’s driveway at 5:45 A.M. on Friday morning, June twenty-eighth.”
Rising to present his opening statement to the jury and using the huge chart to illustrate his remarks, Wharton began to explain what had happened the morning after Anne Marie died. Gerry Capano’s neighbor had seen Tom parked outside Gerry’s house, and then watched as Gerry walked up to the passenger window.
“His brother asks him if he can take a boat ride,” Wharton said. “And that must have sent chills through Gerry Capano’s body because he knew what that meant, because months before that date, his brother had talked to him about the need to use that boat to dispose of a body or bodies.”
Tom had borrowed money and a gun from Gerry back in February 1996—Wharton continued—to set up the story that he might have to kill blackmailers and extortionists who were threatening his children. “Tom Capano played the brother card hard,” Wharton said. When Tom came to his house and asked to use the boat, Gerry knew why. “So they agreed to meet later at Tom Capano’s house, but Gerry had to do some things first. He had to pick up somebody and take him to work before he could leave. Now, they had a routine; Gerry would call as he’s approaching Thomas Pitts’s apartment to make sure he’s out of bed and ready to be picked up. This is a bill from Gerry’s phone which shows the call, 6:35 A.M., to Thomas Pitts. He picks him up and takes him to work.
“Ultimately, he rendezvoused with the defendant, but—before that happens—Tom Capano has some things to do, too. Seven o’clock or so, he goes to his wife’s house. . . . Kay has a Chevy Suburban. It’s a bigger car, more space. He switches cars. . . . And then he goes up to Tower Hill at 7:45 . . . and walks around the track for a while. He’s got some time before Gerry will get back to his house. And he sees Debby MacIntyre—a chance encounter—as she’s going to work at Tatnall School, and they say hello.”
Most mornings, Tom exercised at the track. There was a body waiting for him back at his house that morning but he had still taken pains to maintain his usual schedule.
“Then he goes home,” Wharton said, pointing to a picture, on the chart, of the Grant Avenue house, “and Gerry arrives. . . . Tom has got a cooler in the garage, a large cooler. He’s got chains. He’s got a lock. And Gerry helps him with the cooler to get that in the car.”
But Gerry didn’t want to leave his truck at Tom’s house—so the two brothers drove to the Acme supermarket’s parking lot at Trolley Square. “There’s also a MAC [ATM machine] at Trolley Square. And at 8:41 A.M., the defendant withdraws $200 from the MAC machine.”
What was Tom thinking as he heard all of the details, verifiable details, of what he had been confident was a completely secret day? Receipts, phone bills, minutiae had caught him as accurately as if a candid camera had literally been following him around.
“They head off to Stone Harbor. Nine-twenty-seven A.M., they’re en route,” Wharton continued. “The bill for Tom’s portable phone reflects a call from outside of Delaware. And somewhere around 10:25 A.M., they arrive at Gerry’s house in Stone Harbor.”
The jurors, who had just seen Gerry’s huge house in Wilmington, blinked slightly as Wharton pointed to the photo of another half-million-dollar house, at the shore.
“One of the first things the defendant does when they get to Stone Harbor is get on Gerry’s phone,” Wharton said. “He calls Debby MacIntyre on her line at Tatnall School at 10:31. It’s only a minute conversation. He also calls Kay Capano’s house at virtually the same time.”
Tom and Gerry bought gas at a marina in Stone Harbor from a young woman who recognized Gerry. They paid $138.86 cash. Because it was cash there was no receipt with a time on it, but the next charge on that Friday morning was at 11:33. “So about this time is when Tom and Gerry head out to sea on Gerry’s boat.” Wharton tapped on the picture of a boat, the Summer Wind, which had carried Anne Marie’s body in the cooler. “Gerry Capano follows the sun. And he heads out sixty miles or so and he notices that the depth gauge is about 190 feet. And they throw Anne Marie Fahey in her coffin off the boat. But it doesn’t sink. Even wrapped in chains, it doesn’t sink.
“So to get that cooler to sink, Gerry takes out a shotgun that he keeps on the boat, which he uses for sharks, puts a slug in it—not buckshot, but a slug—and shoots the cooler. It let water come in so that it will sink.
“Still doesn’t sink.”
Anne Marie’s brothers and sister knew what had happened to her, but the retelling was agonizing for them. And the jurors’ faces mirrored—what? Shock? Horror?
“Gerry brings the boat around,” Wharton continued, “to the side of the cooler, and they bring it in to the side. And Gerry’s had enough at this point. This is wrong. This is wrong, and he goes to the front of the boat and looks away as his brother wrestles with the cooler, wrestles with the chains. He gives him an anchor—two anchors—and the defendant wraps the chains and the anchors around the body of Anne Marie Fahey, which is now taken out of the cooler, and Gerry turns around to see a foot, a part of a calf, sinking into the ocean.”
Wharton then told the jury of how the cooler had been disassembled, the lid thrown into the ocean one way and the main portion, marred now with two holes from the slug, another.
The two men were back in Stone Harbor by 3
:30 P.M., when Tom made another call, Wharton told the jury.
Then they returned to the Grant Avenue house, where the two brothers dismantled the couch in the great room, with its “basketball-sized” bloodstain at shoulder height on the right side. Pointing again to his timeline chart, Wharton said, “This location is 105 Foulke Road. There’s a project being conducted there. Louis Capano’s business was renovating some of the buildings there. And they had these large Dumpsters—they’re almost the size of railroad cars. They throw the couch into one of those Dumpsters and Gerry leaves.
“But Tom Capano’s not done yet,” Wharton said. “He still has Kay’s car. A little after six-eleven, he fills it up with gas at Deerhurst Exxon—$54.85 worth. Returns to Kay’s, spends some time with his kids, goes home—goes to Debby MacIntyre’s house and basically crashes at eleven o’clock. But he’s not done yet. He’s not done cleaning up. He’s not done covering up what he had done on June twenty-seventh, because on June twenty-ninth—the next day after the trip to Stone Harbor to dispose of Anne Marie Fahey—he buys a new carpet at Air Base Carpet. And the day after that, he buys stain remover at Happy Harry’s.”
Wharton now had a more difficult task. He had to try to tell the jury who Anne Marie Fahey had been. To sum up a life in half an hour, to explain why a beautiful young woman had fallen in love with a married man seventeen years older, wouldn’t be easy. He could only give the jurors the facts and impressions he had gleaned, to describe her transcendent beauty and her vast capacity for love. If he had been able to bring her back just for a moment to stand before the jury, he would have. But Anne Marie wasn’t in the courtroom, at least not in the sense that anyone could see or hear. She could be portrayed only in words, photographs, and videotape.
Wharton moved on to the last night of Anne Marie’s life. He described the strange evening at the Ristorante Panorama, where Tom and Anne Marie sat through a three-course dinner and barely ate—or even spoke. The timetable was extraordinarily important here. “So they leave the restaurant sometime around nine-twelve,” Wharton explained. “That’s when the receipt is printed. It’s a little unclear what happens next. It depends on who you believe.”
