JUST as there are said to be no atheists in foxholes, there are few professionals in law enforcement who will deny that they sometimes receive help from invisible allies, perhaps angels sent to earth to avenge the cruelest crimes. Only a day after Tom Capano was arrested, the Wilmington investigators would receive a piece of physical evidence that no law of probability could have predicted.
“I think we worked awfully hard, yes,” Colm Connolly said, “but there were a lot of lucky things—or maybe divine things—that happened. At some point, you have to wonder . . .”
On November 13, the media was filled with the details of Tom’s arrest and Gerry’s statement. Bob Donovan and Eric Alpert were sitting in Alpert’s office when a secretary told him there was someone calling about a cooler.
“I watched Alpert pick up the phone,” Donovan recalled, “and all of a sudden his face changed, and he was frantically scribbling down notes.”
“There was this guy on the phone,” Alpert elaborated. “I wasn’t too enthused when he said his friend had found a cooler in the ocean more than a year earlier. But then I asked him if there was anything distinctive about it. And he said that it didn’t have a lid when the guy found it. I motioned Donovan over at that point. And then the guy said, ‘Well, it has a bullet hole in it.’ That was all it took—Bob and I were out of the office and on our way.”
If it was the cooler, it would be a miracle. After a year and a half, the cooler they needed for trial should have been in Cuba; given the tides, the wind, and a dozen different variables, there was simply no way that a cooler discarded 60 miles out into the Atlantic Ocean could ever have drifted to within a few miles of the Delaware shore. Alpert and Donovan didn’t really believe that it could be the same cooler. Even so, they nudged the speed limit as they headed south toward Smyrna, where the caller, Ron Smith, lived. Smith told the investigators that he had been reading newspaper coverage of Tom Capano’s arrest when something struck a chord in his memory. He said that a fellow fisherman named Ken Chubb, whom he knew from his summer place down on the Delaware Coast, had found something in the ocean.
“I was working on my boat the day Chubb pulled in,” Smith continued. “He said, ‘Hey, take a look at this!’ and I said, ‘Take a look at what?’ and he shows me this cooler he found.”
Alpert and Donovan held their breaths when Smith said the cooler had no lid. And he and Chubb had agreed about the source of the holes that marred the back. “I said, ‘Yeah, they were bullet holes,’ ” Smith told them. “I hunt deer. I do target practice. I know what bullet holes look like. As a matter of fact, I stuck my finger in one. It was made by a twelve-gauge shotgun.”
“When did this happen?” Alpert asked.
Smith had perfect recall. But more important, he could validate times and dates. He had already called Chubb to ask when he’d found the cooler and learned it was during the Fourth of July weekend of 1996. By checking his own gas receipts, he was able to confirm the date when he’d first seen the cooler. That weekend was seven to ten days from the time Tom Capano had reportedly dumped Anne Marie’s body and the cooler far out at sea. The information about the bullet holes and the missing lid had never been in the newspapers. Smith drew Alpert and Donovan a map to Ken Chubb’s beach house. “The cooler’s there in his shed, behind his trailer. He knows you’re coming.”
Ken Chubb had been fishing off Rehoboth Bay for ten years, and he told Alpert and Donovan he thought he’d made a lucky find a year and a half earlier when his son said, “I see something floating over there, Dad!”
When he eased his boat over the white object, they found it was a cooler—missing a handle and its lid. “It had two bullet holes in it,” Chubb recalled. “And it sort of amazed us all. We were questioning, wondering why anybody would shoot it. Looked like a brand-new cooler.”
“Did you notice anything on the inside of the cooler?” Alpert asked.
“It had a stain on it.”
“What kind of stain?”
“Sort of a pinkish-looking stain on the bottom. It’s not unusual for a fish cooler, you know, because fish bleed.”
Chubb said it was the same size as the battered cooler he had been using. “I thought, well, I can take the top off of mine and the handle, and I’ll convert this one, patch them two holes, and I can make myself a nice cooler.”
And he had done that, using two of the rusted screws from his old cooler and two new ones still in the hinge of the cooler he’d found. He filled the bullet holes with fiberglass. “I’ve used it ever since to hold the fish I catch,” Chubb said, and he’d been surprised when Ron Smith called and told him that the police were looking for the cooler.
Alpert and Donovan carried their unexpected treasure back to the evidence lab. It looked like any large Styrofoam cooler, but it wasn’t. Like almost everything else manufactured, it had marks of identification. When they checked with the Igloo company in Houston, Texas, they learned that it was a somewhat limited production item. In 1997, the company had made 7,797 of them, and a similar number in 1996. All large coolers had a bar code that meant something to the company and the stores that sold them. The number 034223 signified it was an Igloo product. And 08162 showed it was the 162-quart model. Moreover, there was a date code stamped into the bottom of the cooler, a little clock face with arrows pointing to the month and year. This cooler had come off the assembly line in May 1993.
But more important, the bar codes on the coolers identified the stores where they were purchased. When the bar code for this cooler was entered into the computer of the Sports Authority store on the Rocky Run Parkway across from the Concord Mall in Wilmington, it matched the store’s code for a 162-quart Igloo cooler.
The investigators already knew that Tom had purchased an Igloo cooler there on April 20, two months before Anne Marie vanished. Short of saying this was the exact cooler, it was a match. But how that cooler made its way almost to the Delaware shore from far out in the ocean was something no one could explain.
FOR a year and a half, the case against Tom Capano had seemed to go forward with agonizing slowness. Now it accelerated. On November 14, Delaware attorney general Jane Brady assigned Ferris Wharton to prosecute the case. Colm Connolly was cross-designated not only as an assistant U.S. attorney but as co-counsel with Wharton in the Delaware State prosecution. They were nothing at all alike, but they were naturals together. Alpert and Donovan would stay on as investigators.
Of the four of them, three were native-born Wilmingtonians. Only Alpert was an “outsider,” having been raised in Alabama. Wharton had left Delaware long enough to get his degree from the University of Illinois College of Law, and of course, Connolly had traveled half the world before returning.
Wharton had served as a deputy attorney general since 1980; he was the chief prosecutor in New Castle County until 1997 and became a state prosecutor thereafter. He had vast experience with murder cases, and it was somewhat ironic that he had had to be completely shut out of the investigation during the federal grand jury process. During his eighteen years with the Attorney General’s Office, Wharton had been in charge of the Trial Unit, the Drug Unit, and the Rape Response Unit of Delaware’s highest legal office. He was voted the best criminal prosecutor in the state by Delaware Today magazine’s lawyers’ poll in 1996.
Wharton’s roster of murder trials was extraordinary and included the dismemberment murder of a Baltimore city police officer by his wife, herself a former police officer; the murder of Marie Kisner by David Dawson, an escaped prisoner; the double murder of Joseph and Beverly Gibson and the abduction of their infant son by Joyce Lynch; the murder of a north Wilmington couple in their home after they had tried to protect their daughter from Lonnie Williams, who unsuccessfully blamed his crimes on his multiple personality disorder; the rape/murder of an eight-year-old girl by Keith Thompson, who had kidnapped her from her grandmother’s home and abandoned her body at a construction dump site; and the death of four-year-old Bryan Martin, forced by his mother, Carol Alban
ese, to drink the mouthwash that killed him. Of the eighteen people waiting on death row in Delaware, five of them were Wharton’s.
But he had remained outside the investigation of Anne Marie’s disappearance for almost a year and a half. “I only knew what I read in the paper,” he said. “Just what anyone in Delaware might know—until the arrest was made.”
If Tom had two of the best criminal defense attorneys in the region—and he did—the prosecution team was also top flight. There would never be any dissension among them, none of the resentment that often occurs when local, state, and federal branches of the law work the same case. The four men worked together as a smoothly orchestrated team, with one goal in mind.
MOST people never think of what kind of trail they leave behind as they go about their daily lives. Unless we are someplace we should not be or with someone we should not be with, we are unconcerned about who might have seen us at one place or another, what receipts we have signed, or what roads we have driven. Gasoline and restaurant receipts matter only as items to be tossed in our income tax files.
But sometimes it is vitally important not to be seen or remembered, to leave no records behind. Gerry Capano had outlined a grisly round-trip mission that took almost eleven hours, crossed two states, and involved a number of transactions. From the first hour after his arrest, Tom had sneered at Gerry’s version of what happened on June 28. To try to confirm it, the investigators fanned out once more to follow Tom’s trail from Grant Avenue to Emma Court to Stone Harbor to the open sea and back to Grant Avenue. The more backup they could find to substantiate the state’s case, the better.
Jeffrey Stape, who lived next door to Gerry on Emma Court, told the investigators that he had seen Tom Capano’s car in Gerry’s driveway very early in the morning of June 28. “I went out to get my paper at 5:45 A.M.,” Stape said. “My house faces Gerry’s garage. Tom was parked in the driveway with the motor running. He saw me and turned away.”
Stape knew Tom’s car—a black Grand Cherokee. And he knew Tom by sight.
And although the public wasn’t aware of it, FBI agents had already been to Stone Harbor a year earlier—when Tom’s timeline notes were discovered in 1996. They had quietly done a land-and-sea search at the New Jersey shore. They had even asked Gerry’s neighbors if they had seen anything large enough to be a body being carried to or from a boat. But no one had. In retrospect, who was going to look twice at a cooler?
Still, they hoped they might find witnesses as alert as Ron Smith and Ken Chubb. Tom had been either very discreet or very lucky in conducting a series of long-term affairs without being discovered. They suspected his luck might, at last, have run out.
Perhaps not. According to Gerry, he and Tom had driven down to Stone Harbor on the morning of June 28 after Tom got some money from the ATM of the Wilmington Savings Fund Society at Trolley Square. Tom had noted that, too, on his timeline pages. Now, a security officer of the bank pulled the frames from the automatic video camera at the ATM for the FBI. Tom’s face was there at 8:41 A.M., the date and time clearly stamped on the photo.
Assuming that he and Gerry left Wilmington shortly thereafter, they could not have made it to Gerry’s beach house much before 11 A.M. Had they arrived any earlier, a number of people might have seen them. Gerry spent little time at his own lawn care business back in Wilmington and he didn’t like gardening; he employed a local firm to take care of his house in Stone Harbor.
Gary Barber, who was a schoolteacher, worked summers for his family’s lawn care business. Shortly before nine-thirty on the morning of June 28, he went to Gerry’s house to replace an automatic sprinkler head. In order to set the time clock on the revised system, Barber had to enter the house itself. That was no problem because he had a key. However, he was mortified when he heard the burglar alarm sound and realized he didn’t know the code to turn it off.
The alarm had sounded for almost twenty minutes as four calls were automatically dialed into the monitoring service. It was close to 10 A.M. when a Stone Harbor police officer drove up in front. The alarm was turned off, Gerry’s house was secured, and everything was back to normal when Gerry and Tom arrived with the cooler. A half hour or so earlier and they would have driven up and seen a police car parked at the house.
One of Gerry’s Stone Harbor neighbors remembered now that he had seen Kay Capano’s Suburban parked down the street late in June 1996. He had been curious enough to ask Gerry what Tom was doing down at the beach, but couldn’t remember what Gerry said.
ANNE MARIE’S brothers and sister held the almost impossible hope that her remains might still be found so that they could have a funeral and a burial. But she had been gone now for seventeen months, and if her earthly remains sank where Gerry said they did, it was where the two-hundred-feet-deep continental shelf ended abruptly and the waters plunged to a depth of fifteen hundred feet. As strong as her spirit still was in the hearts of those who loved her, her body was where the sharks swam.
Fortunately, Matthew Pleasant, a criminal investigator for the U.S. Coast Guard who was stationed in Cape May, New Jersey, had called the Delaware State Police and offered to help in the search for Anne Marie. Pleasant told the investigators that he had worked in navigating search-and-rescue operations for the coast guard. The nineteen-year veteran had spent a dozen of those years as an electronics and sonar technician. Sonar senses underwater objects and is often used to search beneath the sea after plane crashes. There was a faint chance that it might help locate Anne Marie.
It was worth a try. The cost of a coast guard sonar hunt was estimated at well over $250,000. That would, of course, have been far more than the investigators’ budget, but it was possible that a sonar-equipped submarine might be in the area for other tests.
They found one. First, Pleasant interviewed Gerry Capano and wrote down what he recalled about his journey out to sea on June 28, 1996. Gerry said he had headed for Hereford’s Inlet from Stone Harbor with the sun over the bow of his boat. It had taken him and Tom two to two and a half hours to reach the spot where he cut the motor, and he was certain the water depth had been 198 feet. He wasn’t as sure of his compass headings.
At the time, Gerry had already sold that boat, Summer Wind. On June 23, 1996, he had signed a sales agreement to buy a more powerful one—a twenty-nine-foot Black Fin—for $101,000. When he and Tom left Stone Harbor with their tragic cargo five days later, it had been one of his last ventures in his old boat. At the state’s instruction, Gerry arranged to buy Summer Wind back. Pleasant, Gerry, and Petty Officer Davis headed out to sea in the Hydra-Sport 2,500 cc craft on a day when the weather mimicked that of June 28, 1996. Davis had a GPS receiver with him (a global positioning system that pilots and seamen use to mark their locations anywhere in the world). They had the way points stored in Gerry’s LORAN (a system that indicates a boat’s location), calculations from the coast guard navigator and from Meridian Science (a company that locates lost ships), and an estimated speed of twenty-nine knots. They determined that Gerry was probably telling them the truth as he remembered his course, but that he was not very good with navigational charts and was more a seat-of-the-pants sailor.
Anne Marie’s body could be anywhere along a ten-mile stretch. Nevertheless, the coast guard and the navy carried out a sonar search from the coast guard cutter Hornbeam. They were looking for the two anchors Gerry said he had given Tom to weigh down Anne Marie’s body. The floor of the sea was smooth, except for the rake marks left by commercial fishing vessels. At one point, the searchers thought they had found something, but they discovered it was only some commercial fishing gear, a chained bag used to drag the ocean bottom for scallops.
The crew eventually located eleven objects—all of them oceanic junk.
It was a nearly impossible mission. Currents and storms had changed the sea bottom and buried objects with churning sand. But in June 1998, a last-ditch effort was made to find Anne Marie’s remains on the floor of the Atlantic. Unlike the timing of the search for t
he occupants of John F. Kennedy Jr.’s downed plane—which was begun almost at once after it vanished over Atlantic waters, much closer to the shore—it had now been two years to the day since Anne Marie’s body disappeared in the water sixty miles out to sea. A miniature submarine sidled along the ocean floor near Stone Harbor, feeling for objects with its mechanized claw. The searchers did find a chain and an anchor, but they were the wrong size and in no way matched the description of those that Gerry Capano told the investigators about.
In the end, they had to give Anne Marie up to the sea. There would be no more searches. “Our hope was that they would find Anne Marie’s remains,” Robert Fahey said later, “and we would have some semblance of a burial. Now we were denied that forever.” Anne Marie Fahey was declared legally dead.
In the spring of 1998, New Jersey high school students who were cleaning up the Brigantine beach area—which is some thirty miles north of Stone Harbor on the Atlantic Ocean—had found a four-by-four-inch piece of a human skull. The Atlantic County medical examiner determined it had been in the ocean a year or more. Tests showed it was not Anne Marie’s.
Chapter Thirty-two
IT WAS TWO WEEKS BEFORE THANKSGIVING 1997. After being evaluated in the prison infirmary, Tom would be assigned to a cell, probably in the protective custody unit. He was, after all, a former prosecuting attorney—a species almost more unpopular in prison than ex-cops. And he was infamous; for days, his name and picture had been in every paper not only in Delaware, but also in Maryland, Pennsylvania, New Jersey, and New York.