by Ann Rule
Tom insisted that Gerry could not have seen as much blood on the couch as he had described because the Clorox had turned the maroon upholstery yellow. “I also tried to clean up [the floor]; there were some fairly light bloodstains on the carpet,” he said. “And then I just sat down and tried to think of what I was going to do at this point—what I could possibly do.”
Oteri had seen the effect that Tom’s matter-of-fact explanations were having on the jurors and tried to soften his image. “Now,” he asked, “are you normally an emotional person?”
“Yes,” Tom said.
“You’re not being emotional today,” Oteri offered.
“No—well, first of all, I’m drugged, and secondly, I’m compartmentalizing again.” Tom said that Dr. Tavani had increased his dosage of Xanax (for anxiety) and added another drug whose name he’d forgotten.
“Does that, in your opinion, account for your semi-zombielike state?” Oteri led.
Connolly objected, but was overruled. Judge Lee let Tom testify about the effects of his prescription drugs. If Lee was erring at all during this trial, it was always on the side of fairness to the defendant. He allowed Tom to go even further and explain how his father’s death had made him “put his feelings in the attic.”
Once more, as his testimony continued, Tom drew Debby into his accidental-death scenario, incriminating her even further. Regarding the toll back edit of calls from his phone, he testified that all of them had been placed, but not for the reasons Debby stated. Yes, he had called his office answering system to establish he was home at 12:05 A.M. And he and Debby had called back and forth about what they should do to get rid of Anne Marie’s body. He had to get the cooler and the carpet out of the great room, and she had known he was far too weak to do it alone. He said Debby had volunteered to come back and help him. “She was certainly at my house no later than one,” Tom said.
“When she arrived,” Oteri asked, “what did you do, the two of you?”
Tom said they had carried the cooler down the steep narrow back steps to the laundry area and the garage beyond. “It was something I could never, ever have done myself,” he stressed. “And she helped me. And then we moved furniture around and we rolled up the rug. It was almost wall-to-wall, with rubber padding underneath. Very heavy. It took two people to lay it when it was first brought in.”
According to Tom, Debby stayed with him for a while and he reassured her over and over that Anne Marie’s death had been only a horrible accident. He said he himself would bear the guilt because he had not been honest with her about Anne Marie.
Tom’s avowed concern for others carried over into his testimony about Gerry’s part in disposing of Anne Marie’s body. He told the jury he had tried desperately not to involve his little brother, but Gerry had been adamant about not giving Tom the keys to his boat. As for Gerry’s testimony that Tom had once told him he might have to kill an extortionist, Tom appeared baffled.
All he could think of by way of explanation was that Gerry was a “wiseguy wannabe. He’s the one,” Tom said, “showing off in his drunken state [about] his acquaintances from the strip joint in Philadelphia—the Doll House. [They] once mentioned to him that they might ask him to make use of the boat. Actually, I think he said it in front of Joey, as well. We, of course, thought it meant in connection with a drug transaction.”
Tom was horrified at the suggestion that he would have involved Gerry in any murder plan. “I never, never—I wouldn’t do that to my brother!”
Debby had called him early Friday morning, Tom said, asking him what he was going to do about Anne Marie’s body. “I told her I wasn’t certain,” he testified. “Again, I wanted to shield her from knowledge in the case.” But he had agreed to meet her at the Tower Hill track.
The state’s case against Tom was so confining that, to show he was telling the truth, he would have to wedge into his scenario dozens of times and other details to fit. He couldn’t ignore the evidence of his phone calls, his use of Kay’s Suburban, the picture at the ATM, or many other inflexible elements of the case against him. He said he happened to have a chain around his house left over from the snowy winter of 1996. He had the padlock because his locker at the Wilmington Country Club had been broken into. At one point, he said, he had slipped the Beretta into the cooler and sealed it with the chain. Once again, Tom testified that he was much too weak to lift it—so Gerry had helped him put it in the back of Kay’s Suburban. Their tasks accomplished in Wilmington, Tom said, he and Gerry had headed for Stone Harbor with Tom at the wheel, driving at his customary fast clip.
Throughout his testimony, Tom had chided Joe Oteri for calling him “sir,” and now, in the midst of statements that were chilling even in that stifling hot courtroom, he smiled boyishly at Oteri when asked, “Would you say, sir, that you were disorganized and panicky?”
“If you call me ‘Tom,’ I will.”
“Tom,” Oteri said through gritted teeth, “would you say that you were disorganized and panicky?”
Seeming to luxuriate in his own words, Tom said, “I was disorganized trying to be organized. I’m not sure ‘panicky’ was the right word at that point. I was trying to focus, and as I said, trying to compartmentalize and just concentrate on the immediate task at hand and not let myself think or feel.”
To protect his brother, Tom said, he had refused to tell Gerry anything, despite his “newsy” questions on the hour-and-a-half trip to the Jersey shore. Tom’s testimony regarding the disposal of Anne Marie’s body scarcely differed from Gerry’s, although he said he didn’t believe Gerry could have seen an ankle disappearing into the water. Tom spoke of how seasick he had been. The trip out on the rough sea had been tough on him. But he had persevered throughout the day. And it was a very long day, which included disposing of the couch in a Dumpster at one of Louie’s construction sites. The last thing he’d had to do to cover up Anne Marie’s death was cut up the bloodied carpet, stuff the pieces into garbage bags, and dispose of them in a Dumpster outside the Capanos’ Holiday Inn, just across the bridge in New Jersey. (Later, of course, Tom had had to remind both Louie and the motel manager to have their Dumpsters emptied early.)
With all that accomplished, Tom said, he had gone to Kay’s house to spend the evening with his girls. “I saw them twice every day,” he said fondly. “The kids wanted pizza and to have me watch a video with them.” He couldn’t remember what movie they had seen because he fell asleep.
Whenever Tom spoke of his children, he smiled expansively, and he seemed never to miss an opportunity to explain what a perfect father he was, how much his daughters adored him, and how he cherished them. This was, perhaps, not an act; Tom appeared to see himself as the ideal family man. And yet he felt no compunction—and never had, apparently—about betraying his wife. Tom testified he had left his girls that Friday night to drive the few blocks to Debby’s house. Twenty hours after Anne Marie had died of a bullet wound in her head and he had disposed of her body, he slipped into a dreamless sleep in the bed of the woman he claimed had shot her.
In an aside, Tom testified that he had told both Gerry and Debby he would protect them. “I would assume the burden. Legal protection—emotional, mental protection,” he said, half smiling at the jurors. “I didn’t want them to have to live with the same horrible feelings that I live with.”
Continuing his testimony, Tom said that on Saturday morning, he and Debby had slept late and “made love,” and then he had gone off to Air Base Carpets to buy a new rug for the great room. “I told her I was going to buy a new rug that would not go under the kitchen table so it would [not] get food stains on it.”
Colm Connolly sat at the prosecution table, listening, jotting down notes. He would remember every single word Tom was saying. It seemed odd to him that Tom would say he told Debby a lie about the replacement rug. If, as Tom insisted, Debby had been the one who shot Anne Marie and helped him give CPR to her bloodied corpse, would she not have known why it was necessary to buy a new rug?
Tom testified about the weekend and how annoying it had been to have investigators shadowing him, “hiding outside my children’s home,” searching his house. It had been a terribly busy weekend for him. His girls were with him on Saturday night—and he spoke at length about that. Then on Sunday, June 30, Tom said, he had had to reassure Debby often, speak to Louie and “Kimmie,” and have dinner with Kay. And several jurors blinked slightly when he added that he had also been “due to see a young lady.”
“I told her I was running late,” Tom said, “and then I went to where she was living. She was not in particularly good shape [due to an ankle injury]. I mean, she was barely mobile, a very stubborn type of person: ‘I don’t need help—I can take care of myself.’ And I stayed with her for a couple of hours and, you know, tried to get her something to eat . . . she was on the first floor when I arrived, and I got her upstairs in bed and I left . . .” Tom saw Oteri’s look and trailed off, “. . . and I’ll stop.”
So far the jury and the gallery had heard about Susan Louth, Debby, Anne Marie, and Tom’s estranged wife, Kay, and now he had mentioned a mystery woman. And Connolly and Wharton were still looking for a way to bring in Linda Marandola, yet another woman, to testify. The man was apparently indefatigable.
Tom spoke of his anxiety when he realized the federal government had inserted itself into the investigation. Not only had he been concerned about coming forward at that point with all the force of the feds against him, but he had agonized over discussing Anne Marie’s personal affairs.
“Directing your attention to early February 1996,” Oteri asked, “did you have occasion to acquire cash?” [Oteri had to find a way to explain IRS agent Ron Poplos’s discovery that Tom had withdrawn $25,000 in cash in three segments around Valentine’s Day 1996.]
Tom explained that he had. He had cashed checks on two consecutive days for $8,000 and $9,000. “It just seemed kind of showy,” he said, “to go back a third time—so that’s why I asked Gerry if he could loan me the $8,000 in cash.”
Tom said he needed $25,000 near Valentine’s Day in 1996—to help Anne Marie. He said he’d begged her to let him pay for in-patient care for her in a clinic for eating disorders. He wanted her to see how serious he was about wanting to help her by showing her the actual cash. But she had thrown it back in his face.
THIS would be the last day in court before Christmas. Joe Oteri had a mountain of inflammatory testimony to neutralize before Colm Connolly cross-examined Tom, and he plodded gamely ahead. “In February 1998, you learned that Deborah MacIntyre did something, is that correct?”
“I learned that she had agreed to become a witness for the government.”
“Subsequent to learning that, did you go to anyone and tell them the story you’ve told here?”
“No one who wasn’t privileged.”
“Is there a reason—tell the jury the reason,” Oteri urged, “why you didn’t tell anyone this story prior to trial.”
“Well, I’m kind of a confidential person,” Tom began. “You know, it would just sound like sour grapes at the time. I mean, she—not she, but the slickster from Philadelphia [Tom Bergstrom, Debby’s lawyer], who outwitted us. . . . And I never—to this day—I still can’t believe that Debby would lie so much. I mean, that’s not really Debby who came in here. So—”
“But, sir,” Oteri said, managing to interrupt Tom’s aimless flow of words, “you’ve just been betrayed by a woman you’ve been protecting for two years—”
“A woman I’m in love with,” Tom declared.
“Would you not, at that point,” Oteri persisted, “go on a rooftop and scream, ‘I’m taking the fall for something she did’?”
“. . . I was basically out of my mind for a couple of weeks and not thinking rationally,” Tom explained. “There were issues with changing attorneys and my mental status and condition. That’s when they really had to jack the drugs up. . . . I was just going to be looking to put together a final legal team and follow the advice of the four chiefs.”
“Which was to trust the jury?” Oteri added quickly.
Tom explained that he had gone out of his mind in Gander Hill after he learned that Debby had betrayed him. He had become suicidal. “I was operating on about half my cylinders. I was confused. I was not thinking clearly. Solitary confinement has a significant effect on people. I learned,” he said bleakly, “that the woman I loved and had been protecting had turned on me and stabbed me in the back, betraying me.”
Tom’s expression was pitiful as he said he had never betrayed Debby; he had torn her letters to bits and flushed them down the toilet to protect her. He was “crushed” when he learned of her betrayal, full of various medications, vulnerable, and he had allowed himself to listen to Nick Perillo when he “suggested that I do something to get revenge.
“He brought it up,” Tom told the jury. “He played on the anger phase of it and told me that his profession was burglary and that I should allow him to either burglarize it himself or arrange a burglary of her house. And my brain was like mush then. . . .”
“And what happened after he made this suggestion?”
“It preyed on my mind,” Tom said. “He kept bringing it up. At first, I was totally nonresponsive, and at one point I did succumb to it. I let my anger and frustration and hurt get the best of me and I agreed with him to do it.”
Tom said that Perillo had asked for directions and an outline of the house. He admitted drawing the plans but he said they had taken him no more than twenty minutes to scribble down. Because he was so hurt by Debby’s betrayal, he had added the two very personal requests about the mirror and sex toys in her bedroom.
Tom insisted he had changed his mind a few days later and asked Perillo to give the diagrams back. But he never saw them again—not until they appeared in this courtroom. He said that Perillo had agreed with him when he decided against the burglary. “He said, ‘This is something you should not do,’ ” Tom recalled. “But he never gave them back to me because he told me he had seen someone he thought was an investigator enter my cell and he panicked and tore them up and flushed them down the toilet.”
JUDGE LEE closed court at 4 P.M. on December 23. “Merry Christmas,” he said. “We will be back here next Tuesday.”
AND when court reconvened, the jurors, who had been sitting with inscrutable faces, would have to make at least two major decisions. Was Tom Capano innocent, or guilty, of killing Anne Marie Fahey? And if they should find him guilty, should they recommend to Judge Lee that he receive the death penalty?
Outside the thick stone walls of the old courthouse, there were Christmas lights in the trees of Rodney Square and streaks of snow. But there was no sign of Christmas in Courtroom 302.
Chapter Forty-four
TOM HAD A STUBBLY BEARD on December 29—and not by choice; he explained to Joe Oteri that Gander Hill had run out of razors.
That day, Oteri finished up the last of his direct examination with a question that demanded an explicit answer. “Tom, did you kill Anne Marie Fahey?”
“No!” Tom said dramatically. “A thousand times, no.”
“Thank you,” Oteri said. “Nothing further.”
“I loved Anne Marie Fahey,” Tom called after him.
“Nothing further.”
ALTHOUGH Ferris Wharton would have leapt at the opportunity to cross-examine Tom Capano, there had been no question about who should do it. Wharton willingly stepped aside because it had to be Colm Connolly. Tom had despised the assistant U.S. attorney going into the trial, and Connolly had done nothing to endear himself to the defendant. Each day when he greeted Judge Lee, the jury, and the defense attorneys, Connolly never once acknowledged Tom. It maddened Tom further to be so completely ignored, and Connolly knew it.
Tom had no inkling of how dangerous Connolly might be to him. They had many things in common. Both had gone to Archmere Academy, where they were immensely popular and respected, and they were both attorneys. But there the similarities ended.
Tom had long polished his own image as a clever attorney by surrounding himself with sycophants. His wealth, his charisma, and his connections had landed him a number of prestigious jobs, but the word in Wilmington’s legal community was that he wasn’t nearly as intelligent as he thought he was. On the other hand, Connolly was positively brilliant. He knew Tom’s Achilles’ heel and he was prepared to strike at it again and again to bring him down.
Courtroom 302 was jammed with spectators. Family members from every side were there, and a number of attorneys had come to watch the duel. The thermostat read eighty-five degrees, and it was so hot that Judge Lee dimmed the lights to give at least the illusion of coolness. The water had long since been drained from the air-conditioning system and they couldn’t open the doors. They had already lost a couple of jurors to illness, and one after her arrest for possession of marijuana. As they neared the finish line, Lee didn’t want to have to resort to any more alternates.
Tom’s demeanor was entirely different now. He had obviously attempted to forge a bond with the jurors and had spoken directly to them when Oteri was questioning him. But as he turned toward Connolly, his smile was gone. He no longer looked friendly, and his stare was icy. His pinched expression showed his irritation.
Connolly and Wharton had planned this encounter with exactitude, jubilant when they learned that Tom was going to testify and they would be able to cross-examine him. Connolly’s first questions hit Tom with the force of a boxer who jabbed, jabbed, and jabbed again before his opponent saw his fist coming. It was instantly apparent that Tom’s control of the proceedings was over.
“Since June 28, 1996,” Connolly asked, “how many crimes have you committed?”
Tom repeated the question, buying time. “Whatever I did,” he answered finally, “—I have been charged based on the Perillo testimony, but that’s a false charge. Somebody said something in here about the way I withdrew money from the bank apparently violates a federal law—which was unknown to me [the structuring violation]. I asked my brother Louis to lie before the grand jury.”
