by Ann Rule
“So you suborned perjury?”
“Whatever that is.”
“You asked him to lie. You are a lawyer. You know what perjury is?”
“Yes.”
“So you suborned perjury?”
“If that’s the name of the crime.”
“So you obstructed a federal investigation when you asked him to lie before a grand jury?”
“Well, I don’t know if that constitutes both crimes.”
“Objection, Your Honor,” Oteri said. “That is not a crime. It’s an attempt to obstruct.”
“So you attempted to obstruct justice?”
“Well,” Tom said with a withering look, “if that’s what it is, that’s what it is. I thought I was asking him to commit perjury. I don’t know much about federal criminal law.”
“You wanted Deborah MacIntyre to testify falsely at your bail hearing?”
“Yes, that’s true.”
“Any other crimes you committed after June twenty-eighth . . . ?”
“None that I know of.”
“Desecration of a corpse?”
“I said what I did on June twenty-eighth—I already mentioned that.”
“So, that’s three crimes?”
“No,” Tom said, and then proceeded to correct Connolly, precisely as he and Wharton had hoped he would do. “I asked my brother to lie before the grand jury. I did want Debby to lie to protect myself and also herself. And I said, generically to the first question, that whatever the crimes are that I committed on June twenty-eighth in the fact of my disposal of Anne Marie’s body or anything related to that, yes, I’m guilty of them too, and I’m sure I will be charged with them.”
“How many lies have you told related to the disappearance of Anne Marie Fahey . . . ?”
“Well,” Tom said, annoyed, “I certainly don’t have a number, but I know I never told anyone the truth. I just said I lied to everyone. I said I took her home at ten o’clock and that’s the last I saw of her.”
Apparently certain he had convinced the jury that Debby had killed Anne Marie, Tom was imperious with Connolly. He had given his version of Anne Marie’s fatal shooting to Oteri. But now, Connolly began to question him about everything, beginning with his appearance in Gerry’s driveway on June 28.
“It’s five forty-five and you’re sitting in this driveway and reading the sports page?”
“Trying to.”
“You’re reading the sports pages seven hours after Anne Marie Fahey died in your great room at Grant Avenue, correct?”
“I was attempting to distract myself,” Tom said stiffly, “since I had already tried very hard to bury my emotions.”
“This is seven hours after Debby MacIntyre, so you say, threatened to kill herself in your great room on Grant Avenue?”
“Yes—which I knew was not going to happen.”
“Oh, you knew when she put that gun to her head she wasn’t going to kill herself?”
“I never said she put the gun to her head,” Tom said. “I said I thought she was going to put the gun to her head, and I also knew that Debby wouldn’t do that.”
“And yet you reached out to stop her?”
“Well, just in case . . . The Debby I knew I did not think [would kill herself] but I wasn’t going to take any chances.”
Tom had begun to differentiate between “the Debby I knew” and a kind of half woman, half she-devil he felt Debby had become under the control of the federal government and her attorney, Tom Bergstrom.
Connolly asked questions about every moment of Friday, June 28, and predictably perhaps, Tom became confused. He could not remember how many times he had seen Kay. But he was sure he had had a “pleasant” conversation with Keith Brady’s secretary when he tried to arrange a golf game with Brady. It was “normal,” he said.
“And this ‘normal’ conversation took place less than ten hours after the woman you deeply loved, as you say, was—”
“No, no, no, no, no, no.” The more agitated and annoyed Tom became, the more “no’s” he strung together.
“—was contemplating suicide?”
Tom had misunderstood the reference. “No, no, no, no, no, no. I’ll play your game,” he sniffed. “I did deeply love Anne Marie Fahey. You never even knew her.”
“This conversation you characterized as normal occurred less than ten hours after Debby MacIntyre, a woman you have testified you deeply loved, was talking about suicide, correct?”
“Yes.”
“This normal conversation is less than nine and a half hours after Anne Marie Fahey, a woman you testified you deeply loved, died in the great room?”
“Yes.”
Connolly asked Tom where he had purchased the chain and lock he’d mentioned. He thought it was at the Brosius-Eliason store, but would not say definitely. Too bad. Ron Poplos had checked and found that Tom hadn’t bought either one at Brosius-Eliason.
The questions hit Tom like so many rubber-tipped darts, cumulatively annoying. But Connolly led him into a minefield when he asked for specifics about the last moments of Anne Marie’s life. How had they been sitting? Were their legs pointed straight out from the love seat when Debby surprised them?
“At one point we were,” Tom said carefully. “I’m trying to get my timing straight. At one point she had pulled her legs up onto the love seat and sort of bent them.”
Tom said neither of them had jumped up when Debby came screaming through the kitchen.
“It was such a surprise that somebody was yelling in another room in your house that you both stayed on the couch?” Connolly asked.
Tom stuck by his story that he and Anne Marie had remained seated until Debby was right next to the love seat.
“How long transpired before she entered the great room and put a gun in her left hand?”
“I can’t answer that,” Tom said. “Seconds seemed like minutes; minutes seemed like hours. I was all just—this whole nightmarish scene just happened so quickly.”
But he was sure that Anne Marie had been angry and started to put on her panty hose because she wanted to leave. “She wants out. She wants to leave. She wants me to take her home.”
Women in the courtroom looked at one another. Panty hose are not easy to put on, particularly on a hot, sticky night. Why would Anne Marie have bothered? She could have left them behind and made a run for it.
“Do you recall testifying that Anne Marie saw the gun and was making fun of it?”
“Making fun of it might not have been the right word. She was just, you know . . . ‘Nonsense.’ ”
Tom was gradually backing down from his direct testimony; he didn’t recall some of the statements he had made. But he insisted that Anne Marie hadn’t been afraid of the wild woman waving a gun.
Connolly began to ask questions about where the gun was when Debby allegedly began to lift it. Its position, its angle? Where was it pointed?
Tom struggled to keep up with Connolly’s questions. “The gun started to move,” he said, “and as I said, my belief was that if the movement had been allowed to continue, it would have gone to her head in this fashion—” He gestured.
“So you reached out with your right arm to stop this?”
“Yes.”
“What did you grab?”
“I grabbed her wrist so that I could keep it from going any further.”
“How high was the gun?”
“Probably hip high, what somebody might call shooting position.”
For every answer Tom gave, Connolly had three or four more questions. Tom said he had pushed the gun down toward the floor.
“So how far away are you from Anne Marie Fahey at this point?”
“Almost touching. I’m at the end of the love seat and Annie is still sitting there. I guess she had finished putting her panty hose on—which is something she absolutely would have done anytime. And at that point, I believe she was putting her shoes on.”
“What color shoes were these?” Connolly asked and unwit
tingly opened up a rambling monologue from Tom about the green shoes he had bought Anne Marie in Philadelphia. But his babble was only diversionary. To those familiar with trajectory, it was unlikely that a gun pointed down at the floor could have been fired diagonally up, fatally wounding Anne Marie in the head and leaving a bloody circle on the top of the love seat.
Perhaps realizing this, Tom hastened to say that Anne Marie had not bent over to put on her shoes. He said she had her feet on the floor and was sliding them into her shoes, using only one finger. But after several more questions, he was not able to recall just how Anne Marie had managed this contortionistic feat.
Connolly tried again. “Could you describe what you saw in terms of her putting her shoes on?”
“I saw her sitting on the love seat,” Tom began. “The shoes were in front of her. You’ve asked me if I remember her bending over. This is not something I thought of before. She certainly was not bent over in a very extreme position.”
“OK,” Connolly said finally. “Can you tell us where her head was positioned as she put her shoes on?”
“Straight up.”
“Straight up above the top of the couch?”
“No. Maybe just the very top of her head was above the head of the love seat.”
Anne Marie was five foot ten inches tall, and yet Tom said her head had been below the back of the love seat.
Tom described once more his recall of the moment Anne Marie died. After the shot sounded, he said, “the first thing I did was look at Debby in a state of complete shock and bewilderment. Debby looked at me the same way. And I know we exchanged a few words and then all of a sudden: shock. I mean, I turned to see because Anne Marie wasn’t saying anything. She wasn’t yelling or screaming—so I turned around and . . . I saw she had been hit.”
“OK,” Connolly said quietly. “Where had she been hit?”
“As I said before, the right side of her head, behind the ear.”
“How close was it to her ear?”
“I can’t tell.”
“How many inches?”
“I don’t know.”
“You can’t give us an estimate of how many inches away from her ear?”
Tom paused for a long time. “I didn’t measure it, Mr. Connolly.”
“How many inches down from the top of her head . . . ?”
“I don’t know.”
“Could you estimate?”
“I’m not allowed to do that.”
“Was it three inches from the top of her head?”
“It may have been.”
Connolly realized full well that this testimony about wounds and blood was painful for Anne Marie’s family, but he also knew they wanted to get at the truth about their sister’s death. More important, he was aware that as a former prosecutor, Tom knew all about bullet wounds.
Tom hedged continually now, refusing to give Connolly any specifics. He would not say how much blood there had been, citing the low light in the room. There had been some blood in Anne Marie’s hair, on the carpet, on the love seat. Not a lot. He couldn’t begin to estimate how much. He said Anne Marie’s eyes had been open and her mouth closed as he began to give her CPR. He had shone a flashlight in her eyes to see if she was dead.
“I could tell the flashlight did not cause her eyes to be dilated,” he said.
“It’s your testimony that during the entire twenty minutes [you worked on her], the rigidity of her body did not change, correct?”
“Didn’t seem so to me,” Tom said. “I was mostly concentrating on trying to get air into her lungs and making sure her airway was not blocked.”
The jurors had already heard Tom’s version of the sequence of events that followed that night, but Connolly went through all of it again, questioning Tom’s answers. Tom seemed more at ease now that he didn’t have to discuss the position of the gun, Debby’s hand, and Anne Marie on the love seat. Now that he didn’t have to speak of wounds and blood.
Tom denied that he had taken the groceries and the box from Talbot’s to Anne Marie’s apartment to make it look as if he had left her at home at ten. It had just been a “ridiculous” thing to do, to go driving wildly through the streets of Wilmington with the gun beneath the seat of his car. Tom admitted to making the *69 phone call from her apartment. He said he had felt relieved to know that he could not be singled out as the last man to call her.
CONNOLLY had a pattern of taking Tom to the edge of an abyss and then deliberately changing direction, only to return later to the same spot with renewed intensity. Tom testified that forensic evidence would have had no importance in explaining Anne Marie’s death. “My statement would be more important—what I was prepared to tell the Wilmington Police” in July 1996.
Wharton and Connolly had pored over the transcript of the complicated murder case Tom himself had prosecuted in the mid-seventies and now Connolly wound Tom’s own words around him. “You knew because of your involvement in the Squeaky Saunders case,” he said, “that forensic evidence is critical to determining the cause of death. Is that right?”
“Actually no, you’re not right,” Tom corrected once again. “That case turned entirely on the testimony of people who said they were with him at the time of the murder.”
“Well, do you recall [your] actually telling the jury in that case how important forensic evidence was because the victim was shot three times?”
“I don’t remember.” Tom watched Connolly as if he really were the snake he had so often called him.
“Shot three times by three different people—do you remember that?”
“Now I do, yes.”
“And it was critical to your argument,” Connolly said, “to establish that Squeaky Saunders fired the first shot, the lethal shot?” Did Tom recall that?
“No, I don’t,” Tom said. “But I take your word for it. You’ve obviously studied it.”
“. . . and do you recall testimony that established the trajectory of bullets critical to deciding who fired the first shot?”
“I don’t remember that.” Tom looked uncomfortable. “It’s 1976. I don’t remember.”
“The victim in that case was shot from behind by Squeaky Saunders?” Connolly pressed.
“I’m not going to talk about it.”
“. . . shot in the head—one lethal shot about five inches from the top of the head? Correct?”
“I’m not talking about it.”
“Did you get the idea to dump the cooler in the ocean from your participation in the Squeaky Saunders case?”
Tom clamped his mouth shut for a long time, then finally said, “I most certainly did not.”
“Do you remember the significance of the sluice gates in the Squeaky Saunders case?”
“Not a clue.” Tom tried to sound bored, but it wasn’t convincing.
“Do you remember that you said to the jury: ‘If you’re going to dump a body into a creek—especially if you’re in the area of Delaware City—that creek leads out to the Delaware River and then into the ocean. Therefore, that body is going to disappear’?”
“No, I don’t remember saying that.”
“And then you said,” Connolly continued, “‘Well, the state suggests that the people involved in dumping that body did not know that the area was controlled by sluice gates, did not expect that body to surface as soon as it did, and would be found as quickly as it was, and I think that’s important.’ ”
Tom said he had no memory at all of that statement.
“Do you remember telling the jury in the closing argument that the gun was broken apart and was disposed of? You said, ‘There’s some disagreement as to who exactly had what parts of the gun . . . but the important point is that the gun was disposed of. We don’t have the gun. If we had the gun, it would be a lot easier case.’ ”
Tom was clearly unnerved that Connolly had come up with a case he’d prosecuted twenty-two years earlier. “Perhaps I can end this nonsense,” he said, fixing the prosecutor in his steely gaze,
“by telling you that I remember next to nothing about this case, and it certainly has no connection whatsoever to this case or to the events of June twenty-seventh.”
That was for the jurors to decide.
Connolly asked Tom about the $8,000 and $9,000 checks he had cashed in February—and then the $8,000 he had borrowed from Gerry to make a total of $25,000. “This was the twenty-five thousand dollars you wanted to give to Anne Marie Fahey?”
“That’s absolutely correct and the truth.”
“You had a hundred fifty-six thousand dollars in your checking account on February 8, 1996, didn’t you?” Connolly asked.
“I find that difficult to believe.”
“Let me show you your bank statement,” Connolly said, moving toward Tom. It was obvious that Tom particularly hated having Connolly come close to him to hand him documents; his loathing was palpable. And it was just as apparent that Connolly deliberately invaded some invisible personal space of Tom’s when he approached him.
“And you said you needed twenty-five thousand to shock Anne Marie?”
“Yes, I was using it for that purpose.”
Tom said he had been distressed when Joe Oteri mentioned the money on direct examination. “I did want it to be confidential,” he said. “I figured showing Anne Marie a check for twenty-five thousand dollars—I just figured the hospital is so many bucks a day, but I thought it would, you know, shock her and let her know how serious it was.”
“So you testified twelve days ago a check would shock her?”
“I misspoke,” Tom said. “A check would not have shocked her—it’s a simple piece of paper. Dumping twenty-five thousand dollars on her kitchen table would at least get her attention, if not her agreement or her gratitude.”
But Tom said that Anne Marie had been angry at his gesture, so he had taken the money back and put it in his bedroom closet. However, the prosecution and those who were following the case closely wondered why Tom had really wanted that much money in cash. Had he offered it to Anne Marie—who made only $30,000 a year—in a grand gesture to coax her to come back to him? Perhaps she had never seen that money at all. Had he stockpiled it to hire someone who would punish or destroy her for rejecting him? Or, as he testified, had he only wanted her to get well and been so unselfishly concerned for her that he was willing to pay $25,000 to a clinic?
