by Ann Rule
“Just a couple of times.”
“Did you go inside, or—”
“I went inside, yes.”
“Did you have any particular arrangement as far as visitation with your children?”
“We didn’t have anything formalized,” Kay said. “It was essentially that he would see them on the weekend or he would drop by frequently to see them. On the weekends, they would stay at his residence—usually just one night on the weekend.”
“I want to talk to you about some events on June twenty-seventh and June twenty-eighth of 1996,” Wharton continued. “You appreciate the significance of those dates in this case?”
“Yes.”
“Do you know where you were on the evening of the twenty-seventh?”
“I was home on the twenty-seventh.”
“Do you know where your children were on the evening of the twenty-seventh?”
“They were home also. One of my daughters had just returned from camp. That’s how I remember the date . . . They may have gone out at some point during the evening, but they spent the night at the house.”
Kay described for Wharton the two cars she and Tom owned—the large blue Suburban and the smaller black Jeep Cherokee.
“Did you see the defendant on the twenty-seventh of June?”
“No, I did not.”
“Did you see him on the twenty-eighth of June—Friday morning?”
“Friday morning? Yes, I did. It was a little bit after seven o’clock. [I was] outside in the backyard hosing off my dog. I had just jogged.”
“Where did you see him?”
“You know, I don’t remember what direction he came from. I just remember hosing off the dog and he was right there.”
“How long did he spend at your house, approximately?”
“Oh,” Kay said, “ten or fifteen minutes.”
“Do you recall how he was dressed?”
“Casually.” Kay could not describe exactly how Tom was dressed, but he hadn’t worn a suit and tie.
“Did you observe any scratches or marks or injuries to him?”
“No—nothing.”
“What kind of facial hair did he have?”
“He had a beard.”
Since Kay remembered nothing unusual about Tom’s physical appearance, Wharton asked, “Was there anything about his demeanor that struck you as being out of the ordinary?”
Tom’s lawyers objected and Judge Lee overruled them. They needn’t have worried. Kay testified that Tom had been as he always was. But when he left, he took the Suburban, leaving the Jeep for her. She didn’t know why.
“I guess what I’m asking you,” Wharton said, “is did the defendant take your daughters for the weekend on Friday?”
“No, not on Friday.”
Kay said she saw Tom on Saturday between five and six, and the girls spent the night with him. Tom had come to pick them up and had kept the Suburban until Sunday night or Monday morning.
“Now, when he picked the girls up on the twenty-ninth [Saturday], was there any difference in his demeanor—his behavior?”
“He seemed a little agitated.”
Wharton then jumped ahead eighteen months. “Since he has been arrested, have you sent any money orders to people at the Gander Hill correctional facility?”
“Yes, I did. Twenty-five dollars, and there were a couple of fifties.”
“Do you know how many you sent?”
“. . . six or ten . . . I never kept a record of it.”
“Did you send money orders to anyone other than the defendant?”
Kay nodded. “All of them [were] . . . I can remember three different names.”
“What names do you remember?”
“Tito. And Nick Perillo, and then there was someone else, but I don’t remember his name.”
“Fusco?”
“You know, I think I did, but I don’t remember. I know that name.”
Wharton didn’t stress the names to the jury. Who and what they were would come out later in the trial. Kay had simply done what Tom asked. Like the other women in his life, she had long since grown used to his directives.
Wharton had one more question. “In 1995 to 1996, did any of your four daughters have brain surgery?”
Kay looked at him, slightly puzzled. “No.”
It was a quarter of five on a long November afternoon, but Kay had only to face Jack O’Donnell on cross and then she could go home. She knew O’Donnell and didn’t fear him. He had been very good to the girls when they insisted on coming to court, giving them hugs and trying to ease their pain.
“How are you?” O’Donnell asked.
“Swell,” Kay said flatly. It was obvious she would rather have been anywhere but where she was.
“I’ll get you in and out of here soon,” O’Donnell promised. All he wanted to do was emphasize that Tom often took the Suburban when he was driving their daughters, that he was a devoted father at their sports events, and that the Capano house was a magnet for their girls’ friends.
“Tom would stop by frequently,” he asked, “either on the way to work or after work—just to see the girls for a few minutes here and there?”
“Yes.”
“And these would be among the times when he would just stop by unannounced that you were talking about?”
“That’s right.”
There were no fireworks while Kay was on the stand. She seemed only to be a tired, worn woman whose marriage had been a sham for a quarter century, a woman who was trying desperately to protect her daughters from the scandal surrounding the father they idolized. Through it all, she retained her dignity.
Somehow the reporters, who seemed to live at the courthouse, knew everything that was going to happen. If Kay had disappointed them, the word was out that Louie would be testifying very soon. More titillating than that were the rumors in the media underground that Debby MacIntyre would appear soon after. Short of Tom himself explaining their affair, Debby was the witness everyone wanted to hear.
Chapter Thirty-nine
LOUIE CAPANO’S TURN to testify against his brother came on Friday, the thirteenth of November. The witnesses the media sought most avidly entered the courtroom through a side door to avoid the throng of reporters at the top of the stairs, and left the courthouse itself through the back door. Gerry had done that, and now Louie too appeared suddenly at the front of the courtroom. Where Gerry had been anguished, Louie was polished and suave, obviously a man who was not easily flustered. However, he did appear curious about the room in which he found himself. He looked at the gallery and stared up at the high ceiling as if he had never been in a courtroom before. And perhaps he hadn’t; Tom had always taken care of Louie’s legal problems before they reached the courtroom stage. “For a minute there,” reporter Donna Renae commented, “Louie looked around as if he were a child lost in a mall.”
But the richest Capano soon settled comfortably into the witness chair, and Louie answered Ferris Wharton’s questions easily, often flashing a winning smile. Gerry’s face had been a mask of torment; Louie’s was animated as he agreed that he had testified three times before the federal grand jury, lied twice, and had subsequently pleaded guilty to tampering with a witness.
“Is there a sentence which the federal government is going to recommend that you receive as a result of entering that guilty plea?” Wharton asked.
“One year probation.”
“Do you have any obligations yourself under that plea agreement?”
“Just to tell the truth.” Louie said he understood that, should he lie, he could be prosecuted for a number of crimes. He was quite prepared to tell the jurors what Tom had told him on Sunday, June 30, 1996.
“Tom and I went back to the enclosed porch on the back of the house,” Louie said. “And he then told me about his relationship with Anne Marie Fahey.”
“You were aware of his marital status at that time?”
“I knew he was separated from his wife, Kay, but I wasn
’t aware of any extramarital affairs at all.”
Louie said he knew Debby MacIntyre because his son, Louis III, had attended the Tatnall School, but he had no idea that Tom had been having an affair with her for years. It seemed incredible that Tom had been able to keep his liaisons with women secret even from his own brother, but Louie had no reason to lie about that now. He testified that Tom told him he was trying to reconcile with Kay and that they were seeing a psychiatrist together in the hope that they could mend their marriage. That was the reason he had had to remove every trace of Anne Marie Fahey from his house, Tom said. He had assured his brother that Anne Marie was a neurotic mess he had simply been trying to help, but then she’d slit her wrists and bled all over his sofa. He told Louie that he and Gerry had disposed of the ruined couch in the Dumpster outside Louie’s office building and asked him if he would have it taken to the refuse station as soon as possible. Louie had believed Tom, and understood his concerns about Kay’s finding out.
“Now, as of Sunday,” Wharton asked, “Tom told you that the police told him Anne Marie Fahey was missing?”
“Yes,” Louie said. “He told me that he had given her money and she was planning to take Friday off and that he suspected she was just away for the weekend at the beach and that she would show up on Monday.”
Louie said he had forgotten all about having the Dumpsters pulled until Tom called urgently Monday morning to remind him. “I said, ‘Sure,’ ” Louie testified, “and I did. I called Chris Nolan, who works for me, and he called Karen Feeney, and Karen called Shaw Taylor, and Shaw Taylor told Dick Armstrong, and Dick told my son, Louis III.”
Wharton asked Louie if Tom had ever mentioned throwing anything besides the bloody couch in the Dumpsters.
“Well,” Louie said, “when they were searching the dump, he told me that he had thrown a gun in the Dumpster and that he hoped they found it in the dump because it would prove it had never been shot.”
Wharton asked Louie why he had lied—twice—to the grand jury.
“I did that,” Louie said, “because I believed in my brother’s innocence, and anybody who would know my brother, know his reputation, would know that he couldn’t be involved in anything like this. And I love him and try to protect him.”
But there came a time when Louie had had to decide which of his brothers needed the most help. He testified that sometime in November 1996—after his second grand jury appearance—his kid brother, Gerry, seemed to be in terrible shape. “He cried and told me he took Tom out on the boat,” Louie began. “I was pressing Gerry because I just knew something was going on that I didn’t know about. And Gerry began crying and telling me he had been having nightmares and that he took Tom out on a boat.”
That was the day that Louie, wearing his Mickey Mouse jacket, had walked up and down Emma Court with Gerry in front of his house. And Gerry had spilled his guts, sobbing as he told Louie about how Tom had disposed of Anne Marie’s body in the ocean. From that point on, Louie said, Gerry had become more and more desperate, ridden with panic and guilt.
“Did you talk to your brother Thomas,” Wharton asked, “about whether or not you would go in to the police and tell them what you knew . . . or Gerry should?”
“Yes, in the early summer of 1997, at the Imperial Deli in the Fairfax Shopping Center, I told him we should go in and talk to the police . . . It was affecting Gerry tremendously and our entire family.”
“What did he say to you?”
“He told me that we shouldn’t go to the police,” Louie said, staring down at Tom. “He told me that they didn’t have enough evidence. And he didn’t want to ruin his life or his daughters’ lives.”
Louie testified that he had attempted one more time to get Tom to talk to the police. He, Gerry, and Tom had met alone in a conference room in Charlie Oberly’s office. “I told Tom sternly that Gerry and I were going to go to the authorities.”
“Well, did you go to the authorities then?”
“No,” Louie answered, “we did not.”
“Why didn’t you?” Wharton asked.
“Tom convinced us not to,” Louie said, “and told me that if the situation was reversed, that he would do the same for me—that he didn’t want to, that it wasn’t time. And he talked about his children, et cetera, and convinced us not to go in.”
“Did he say anything about what would happen to either you or Gerry if you guys got in trouble withholding this information?”
“He told us that he would protect us,” Louie said, “and tell the authorities everything.”
Tom had also told Gerry to grow up and be a man, intimating that only a cowardly kid would turn in his own brother.
“When did you become aware,” Wharton continued, “that the authorities had executed a search warrant on Gerry’s residence?”
“I was at Rehoboth Beach playing in a golf tournament and apparently they had raided Gerry’s house the night before. Tom called me and asked if I had heard the news.”
“What did he tell you about that raid?”
“He told me he wasn’t going to accept responsibility for Gerry using drugs and for getting raided and busted.”
“Gerry was on his own?”
“Gerry was on his own,” Louie agreed, at least as far as Tom was concerned.
From that point on, whenever Gerry told Tom that he couldn’t stand it any longer and he had to tell the police about what had happened to Anne Marie Fahey, Tom had upbraided him for being immature, urging him again to “be a man.”
LOUIE’S turn on the hot seat of cross-examination was coming. Gene Maurer questioned him unmercifully about the lies he had told to the grand jury, suggesting that no one should believe him now. He submitted that Louie had lied to protect himself just as much as to protect Tom. And then Maurer brought up the dicey subject of Kristi Pepper. Tom was not the only Capano brother whose extramarital affairs became uncomfortable in the last week of June 1996.
Louie admitted that he had entertained Kristi at his house on June 27 and 28 while his wife, Lauri, was playing in a golf tournament at the shore.
“Did you have any fear of her coming home that night?” Maurer asked.
“Yes, I did.”
“About how many times,” Maurer asked, “did you phone down to the shore?”
“Lots,” Louie said. “Lots. Probably a dozen. Maybe more.”
“So you’re calling down to the shore to make sure that she’s still down there so she doesn’t come up and come upon you and Kristi Pepper and her kids hanging out at your mansion in Greenville?”
“That’s correct,” Louie said.
“And you got the other people out of there in time for her to come the next night—June twenty-ninth?”
“That is correct.”
Maurer submitted that Kristi Pepper had taped Louie’s phone calls. If that was true, two women had taped Louie’s calls to keep track of what he was up to. “You were trying to persuade her,” Maurer suggested, “that what she remembered she didn’t really remember?”
“That’s correct.”
Louie admitted that he had been concerned about what Kristi was saying to the government investigators and that he had put pressure on her to change the information she was passing on to them.
“You learned at a later time, did you not,” Maurer asked, “that many of those phone calls that you and she were having, in which the pressure was being imposed, had been taped by her with the consent and understanding of the government? Is that right?”
“That’s correct.”
It was rumored around Wilmington that Louie’s wife, Lauri, had been so enraged when her tapes of Louie’s phone calls turned up conversations with Kristi that she had taken a golf club to his new BMW. Maurer asked Louie if it was true that he had lied to his insurance company about how his car was damaged.
“I wasn’t untruthful . . . I didn’t tell the insurance company anything.”
“Did you later have a conversation with Kristi Pepper about th
at subject matter?”
“Yes.”
“Weren’t you, in fact, upset and angry with Kristi Pepper because Kristi Pepper had told Detective Donovan what you had told her about how the accident occurred?”
“That’s correct . . . [but] I don’t recall exactly what I told Kristi Pepper—”
“There was somebody there that wasn’t told the truth, right?”
“That’s true.”
“Either Kristi Pepper wasn’t told the truth . . . or the insurance company?”
Louie was chafing just a bit under Maurer’s relentless questions, and the jurors looked confused. They had heard the name Kristi Pepper two dozen times and knew that she had been the paramour of the married witness, but no one could figure out what had happened to Louie’s BMW by listening to the obscure questions—or what they had to do with the case against Tom. Louie kept talking about a “different interpretation” of the cause of the accident.
“Well,” Maurer said, “there were two ways the accident could have happened. Right, Louie? It happened because your then wife, Lauri Merton, grabbed the wheel of the car while you’re going over the St. George’s Bridge and the car rammed the guardrail?”
“That is correct.”
“Now, another story gets out there, doesn’t it—where your wife is involved in a one-car accident?”
“It was a one-car accident.”
“Without you in the car, though?”
“I never heard the story that she was by herself.”
The jurors looked even more confused. Louie explained that he and his wife were insured by the same policy, so that it made no difference. Neither he nor Maurer ever explained what had happened to his BMW, but several people in the gallery who thought they knew grinned. Louie’s prize BMW had looked as if it had been through a tornado. Louie was emphatic that he was still married to Lauri Merton despite his friendship with Kristi Pepper.
Louie was on the stand most of the day. Maurer had perhaps succeeded in showing him as something less than a faithful husband or a straitlaced citizen (and even a liar), but Louie had been convincing when he described Tom’s attempts to cover his own tracks at the expense of Gerry—and of Louie himself.
