And Never Let Her Go

by Ann Rule

  “Do you recall whether Mr. Capano responded to the school when it happened,” Gene Maurer asked, “and what his reaction was?”

  “Not specifically,” Payne said, offering a vague answer. “I know that I’ve talked to him about his daughters, and anything that would happen, I would call him.”

  “And his reaction would be?”

  “He would be very upset and probably start to panic as most parents would.”

  Ferris Wharton had no questions to ask of the young teacher.

  Wharton and Connolly then called a number of rebuttal witnesses to answer questions raised during the defense’s case, among them Tom Bergstrom, Debby’s attorney. Since Tom had described Bergstrom repeatedly as “the Malvern misanthrope,” “the slickster,” and “loathsome pond scum,” the prosecutors thought the jurors might like to see the real man. Bergstrom came across as what he was: a kind man who was concerned about and involved in the case solely to protect his client. (Although he didn’t advertise it, Bergstrom had not billed Debby for all the hours he spent on her case.)

  Kim Horstman came back on rebuttal to testify that Tom had, indeed, told her in late May 1996 that his daughter Katie had undergone surgery to remove a brain tumor a few months earlier.

  “And did he indicate anything about her recovery from surgery?” Connolly asked.

  “Yes,” Kim answered, “he said that she was doing much better and was going to be able to go to Europe with her uncle Lou that summer.”

  Now IRS agent Ron Poplos testified. Poplos had helped the investigators as they traced Tom’s expenditures, deposits, and withdrawals, but he had also volunteered for a lot of the tiresome legwork. He said he had talked to the managers of a number of hardware stores, looking for the origin of the chain and padlock used on the cooler, and had never been able to trace them—particularly not to Brosius-Eliason. And it was Poplos who had spoken, however briefly, to Tom’s mother, Marguerite. Since Tom had shouted at the jurors telling them to check on how badly his aging mother had been treated, Connolly asked Poplos about that.

  “Did you serve a subpoena in August of 1997 on Marguerite Capano?”

  “Yes, I did—It was on August twelfth,” Poplos said. He had gone to her beach house in Stone Harbor.

  “What were you wearing?”

  “Blue jeans and a sweatshirt.”

  “And did you see Mrs. Capano?”

  “Yes, I did,” Poplos said. “I went around to the back of the house. I didn’t see a door at the front—you know how beach houses are; they face the beach side. There was a glass-enclosed area open—a glass sliding door. And I knocked on the door. And she came to the door and I asked if she was Mrs. Capano. She said, ‘Yes.’ ”

  Poplos handed her the subpoena, she looked at it and shook her head, and then she closed the door. Poplos said he had been polite to her and that he had never even shown her his badge. And that was the extent of the harassment of Marguerite Capano by the federal investigators.

  IN the thirteen weeks of this seemingly endless trial, the state had presented more than a hundred witnesses and was nearing the end of its long list when Bud Freel recalled for the jury the day in July when he had driven to Stone Harbor to see his friend of twenty years, Tom Capano. Bud and Kathleen had dated for six years, the Faheys were like family, and Tom was an old friend. It had seemed possible at the time that Freel could help them all by persuading Tom to talk with the police. But despite his promises, Tom never had. Thereafter, Bud had had nothing to do with him. When he left the witness stand, he walked past the defense table, never glancing at Tom.

  Tall and dignified, Robert Fahey, Anne Marie’s big brother, was the last witness in the prosecution’s rebuttal. He read the letter he and Brian had composed and hand-delivered to Tom on July 24, 1996. They had begged him to give them the consideration that he would want if one of his own daughters was missing.

  When Joe Oteri asked him if a person should always do what his lawyer told him, Robert said, “No.”

  “You think a person should hire a lawyer, pay him money, and then not listen?” Oteri asked, perplexed.

  “I believe that happens,” Robert said. Smothered laughter rippled in the courtroom; of late, Oteri’s client had scarcely been listening to him.

  Oteri suggested that Tom had only been protecting someone else. “The only thing you wanted was what you wanted,” he said to Robert Fahey, returning to the subject of his letter to Tom, “and not what he might be doing to help someone else?”

  “The only thing I wanted was my sister back, sir.”

  ON Wednesday, January 13, 1999, Colm Connolly would speak to the jurors for the last time before they retired to debate the guilt or innocence of Tom Capano. Final arguments reflect the attorney who makes them. Some are emotional and some are cerebral. Connolly was—at least in court—the latter. Although he had empathized as much as he could with the agony of Anne Marie’s family, he felt that the best way to bring her justice was to present the facts, the inconsistencies, the obvious lies, the sad truths about her death, to this jury of six men and six women, and to ask them to use their own common sense as they made their decision.

  All the details of this case were in his head, although he occasionally glanced at a thick binder that he and Wharton had prepared so he could make reference to certain letters and E-mail printouts. Connolly had lived and breathed the investigation for more than two and a half years, not from a desk in the U.S. Attorney’s office but in the field, alongside Bob Donovan, Eric Alpert, and Ron Poplos. Two of his children had been born during that time, and the son who was a baby when he started was a boy now. Sometimes, for all of them, it seemed as if their lives were the investigation. As Alpert had said once, Christmases came and went and they had scarcely noticed.

  There was deep emotion in Connolly’s heart as he began to talk. Despite his studied indifference to Tom’s histrionics and rages, Connolly knew his subject well. He viewed the defendant as a cruel and dangerous man. He reviewed all of the evidence that pointed to Tom’s guilt. And out of the thousands of details, he asked the jurors to concentrate on five vital categories. “The most important piece of evidence is Gerry’s testimony,” he said. “The second area of evidence concerns the cooler, the lock and chain. The third area concerns Deborah MacIntyre’s testimony about purchasing the gun. The fourth area, I suggest to you, is the defendant’s demeanor on June twenty-eighth” (the day after the murder).

  “The final area of evidence,” Connolly submitted, “is the defendant’s testimony itself. It is not credible. His demeanor on the stand is consistent with the person Anne Marie Fahey described to her psychologist and friends. It is consistent with the person who wanted to control every aspect of Debby MacIntyre, and it is consistent with the person who would not lie still as Anne Marie Fahey embraced Michael Scanlan.”

  For three hours and forty-seven minutes, Connolly presented to the jurors every stitch of the net that he and the other investigators had woven to drop, finally, over Tom Capano. And the cumulative facts and Connolly’s ability to link those facts together brilliantly produced the devastating profile of a man for whom the truth was only relative as it suited him. Connolly reminded the jurors that Tom himself had admitted that he had told more lies than even he could count. He was a man who was quite probably a complete narcissist—and a murderer.

  Connolly played for the jury tapes of Tom’s degrading and scathing phone calls to Debby after she had told the truth about the gun. She was no longer submissive to him, and hate dripped from Tom’s words on these tapes. He had been frustrated in his attempts to use her. He would use anyone—even his precious daughters—to further his own interests.

  “The defendant wanted Anne Marie Fahey to play by his rules,” Connolly said as he concluded. “He is a man who does not believe he should be subjected to the same rules as everybody else. . . . He refuses to answer questions; he refuses to abide by the rules of the court. . . . He is extremely resentful when the police want to interview him.
. . .

  “Well, there are rules we all have to play by. Those are rules of law. Mr. Capano has received due process of law at this trial, and now it is time for you to do justice. And justice demands that you return a verdict that is consistent with all the evidence that we have presented. And the only verdict consistent with the evidence is a verdict of guilty. . . . Thank you.”

  EVEN in the dead of winter, it was suffocatingly hot in the courtroom. Jack O’Donnell had a strep throat, and Joe Oteri had a pounding headache when he rose to make his final arguments for the defense. Oteri was a street fighter, an attorney whose style was to raise his voice along with his arguments. Still trying to run the show, Tom had disapproved of his lawyer’s footwear, annoyed when Oteri showed up that day in his lucky cowboy boots. He had warned Oteri that Wilmington was much too conservative for cowboy boots. Oteri wore them anyway.

  And it was questionable whether Tom was happy with Oteri’s line of argument; he suggested that Tom’s actions after Anne Marie died had been too stupid to be part of any plan. No, it had all been the same grotesque accident that he had told the jurors about in his opening statement.

  Oteri allowed that this trial had all the ingredients of a fictional television courtroom drama: the “kinky sex,” dumping the body, lying to the victim’s family and the police. “But my client is not charged with those things,” he shouted. “You can’t vote guilty because you don’t like Tom Capano or what he did.”

  Tom was not, Oteri insisted, “some kind of evil genius,” plotting the perfect murder. “But this is the gang that couldn’t shoot straight.” He described Tom as an incompetent bumbler who should have known he wasn’t strong enough to carry a body down the basement stairs and that a Styrofoam cooler wouldn’t sink. Likening Tom to the “village idiot,” Oteri asked the jury, “What kind of moron would kill her in his own house?”

  And then, Oteri said, Tom had compounded his clumsiness in a way that didn’t match his intelligence. He had driven eighty miles an hour to Stone Harbor with a body in the car. “If Tom Capano wanted to plan and do this crime,” Oteri said, “do you believe for one minute he couldn’t have pulled it off in a less stupid way? It’s a horror show—Tom was in a panic, running around like a maniac, hysterical.”

  There was no clever Tom Capano orchestrating a murder. No, Tom had been devastated by the sudden death of a woman he truly cared about, according to Oteri. It had all come about because of a jealous woman. He pointed out that Deborah MacIntyre was the shooter—the person who had fired, however accidentally, the bullet that killed Anne Marie Fahey. Oteri asked the jury to hold the gun and prove to themselves what happens when someone tries to knock the gun hand down. “See if they don’t instinctively pull the trigger.”

  But even given the fact that the fatal shooting of Anne Marie Fahey had been accidental, Oteri was scathing in his denunciation of Debby MacIntyre. “She is a devil of deceit, that woman is,” he shouted.

  At a break, Oteri asked reporter Donna Renae for aspirin and she produced some from the bottom of her purse. “For a moment,” she remembered, “I felt guilty. I didn’t want to do anything to help him convince the jury that Tom Capano was innocent.”

  All told, Oteri spoke for three hours and forty-one minutes, questioning repeatedly why anyone could possibly believe the “false witnesses” that, he said, the state had based its case on: Gerry, Louie, and Debby. He reminded the jurors that they had all made deals with the prosecutors. In conclusion, he told the jurors that whatever their verdict was, the United States always won because liberty was preserved whether an innocent man was set free or a guilty man was convicted.

  When Oteri returned to the defense table, Tom jumped up suddenly and held out his hand, spooking his guards, who were understandably a little jumpy now about his sudden movements. The two men, defendant and attorney, embraced awkwardly and unconvincingly.

  In his closing argument, Connolly had pointed out hundreds of aspects of the defense that made no sense at all in the light of reason. In his close, Oteri had been pure emotion, reinforced with a number of epithets. The jurors had listened attentively to them both. And the media had begun to lay odds.

  When Ferris Wharton began to address the jury, it was late on Wednesday afternoon and Courtroom 302 was still stifling. But no one moved. “Something happens when you crank up the volume,” Wharton began, referring to Oteri’s top-of-the-lungs delivery. “You get distortion.” He suggested to the jury that arguments delivered in a shout didn’t become any more logical. “Thomas Capano’s actions speak louder than Mr. Oteri’s words.”

  With his easy sense of humor, Wharton said he would not repeat Oteri’s reading of the entire E-mail correspondence between Anne Marie and Tom. “I won’t read them,” he said, “not because they’re not important but because you might come out of the jury box and come at me.”

  And well they might have; this was one of the first trials in America in which E-mail was a major evidentiary factor—but by now the jurors must surely have memorized much of the correspondence between the victim and the defendant. They already knew about Anne Marie’s sad attempts to keep Tom at bay by responding to his torrent of E-mail.

  For Tom Capano, Wharton pointed out, gifts meant guilt; it was his way of keeping Anne Marie in his debt, and so he had continually urged her to accept presents from him. He was a man who gave only because he wanted to get, however. “Sometimes,” Wharton said, “you hug your wife because you love her—not because you expect something.”

  The dinner hour had come and gone, but Judge Lee had decided they would continue. This would be the last day of trial. And to help moderate the ninety-degree temperature, when the rest of the courthouse offices closed, Judge Lee had the doors to the courtroom propped open.

  Anne Marie herself had written the words that best captured Tom Capano—at least in the state’s estimation. Wharton read from the Easter 1996 entry in her diary: “controlling . . . manipulative . . . insecure . . . jealous . . . maniac.” He looked at the jurors. “Which one of those terms doesn’t fit Thomas Capano?”

  After an hour and a half, Wharton stepped away from the lectern. It was over now, save for Judge Lee’s instructions to the jury. This is usually the driest part of any trial, but no one left the gallery as Lee spoke. He explained they had only one decision to make—guilty or not guilty of first-degree murder. At one point, Lee showed his own exhaustion—and humor—as he glanced at a page and then tossed it over his shoulder, saying, “I think we’ve covered that.”

  At 9:50 P.M. on Wednesday, January 13, 1999, it was time for the jurors to retire to begin their deliberations—although surely they would get a good night’s sleep first. They were taken to the Hilton in Christiana, but no one would know where they were until it was all over. It was a young jury—average age thirty-eight—and they had come from all walks of life. Tom Capano’s fate was in their hands.

  THE icy air outside the courthouse was a shock to both the participants and the onlookers. They had been in another world for days, weeks—months. It seemed impossible that the trial was finally over. If Tom Capano should be acquitted of Anne Marie Fahey’s murder, this trial would truly be over. But before he could walk away from Gander Hill, Tom would have to post bail on the charges that he had contracted to have his brother Gerry and Deborah MacIntyre killed. And there was no question that he could come up with the money.

  But if he should be found guilty, there would be another kind of trial. The jury would have to agree on a recommendation to Judge Lee about Tom’s sentence: life in prison—or death by lethal injection.

  Nobody expected a swift verdict; the jurors had mountains of evidence to go through, statements, tapes, letters. The cooler held a peculiar fascination. A reporter had bought an identical cooler and found that he could fit into it by lying in a fetal position. Reportedly, one of the thinner jurors accomplished the same thing, although both of them were unable to tuck their feet completely in. In order to close the lid on the Styrofoam coffin,
Tom had almost certainly broken Anne Marie’s legs and feet. It was a disturbing thought.

  The rule of thumb with jurors is that the longer they deliberate, the more likely they are to acquit. Thursday passed. And Friday. By Saturday, the crowds on the wide courthouse steps and across the street in Rodney Square had grown bigger. Wilmingtonians were edgy, aware that many hours had passed without a verdict. Television vans lined the curb and reporters stood ready. Feelings were running so high that a phalanx of uniformed Wilmington Police officers was ready to line the path into the courthouse.

  It didn’t matter anymore if those who waited—either in person or in front of their televisions—had actually known Anne Marie Fahey. She had become so familiar to Delawareans that she seemed a part of their families. The wave of public sentiment seemed to be overwhelmingly against Tom Capano.

  But that was the public. The vast majority of people who took an interest in the case had never been in the courtroom and knew only what the media had told them about the evidence against Tom. And for some, the thirty-one months that had elapsed since Anne Marie Fahey disappeared had softened the reality of her tragedy. The case seemed more like a soap opera now than something that had happened to a real person. But everyone had an opinion.

  It was Saturday night when the word came. The jury had reached a verdict. However, it would take until Sunday morning for everyone involved to reassemble on the third floor of the Daniel J. Herrmann Courthouse. All that night, the principals waited to hear Tom Capano’s fate. There would be fourteen hours between the jurors’ unanimous decision and the moment they could announce what it was.

  ALTHOUGH the crowd had gathered earlier, the people they wanted to see began arriving at the courthouse at 9 A.M.—Judge Lee, coatless but with a tartan scarf around his neck, Ferris Wharton, the Fahey family. Although the onlookers, unsure of the proper protocol, clapped for Lee, they were hushed as Anne Marie’s siblings walked by. A relative pushed Marguerite in her wheelchair; her remarks to reporters were angry. As if she already knew what the verdict would be, she announced that her son was innocent, and was scathing about the woman—surely Debby MacIntyre—who was ruining his life. Colm Connolly and Bob Donovan were the last to jog briskly up the steps and disappear beyond the double doors.