If the prosecutors called Brady to the stand first, their direct examination would be as sensitive as they could phrase it. They couldn’t just pretend that Tom hadn’t brought Brady to Debby’s house that night, now years in the past. But even as Connolly and Wharton understood that Brady’s career, his marriage, and his place in the community would be in peril, they had no choice but to call him as a witness against Tom Capano.
Keith Brady, who reported directly to Jane Brady, the attorney general of Delaware (no relation), took the stand. He was pale but resolute and his answers came with an economy of words and without emotion. He kept his eyes on Colm Connolly and didn’t glance around the courtroom. He knew that Connolly had no alternative but to question him.
Brady explained that he had once been Tom’s assistant when they both worked for Governor Castle as his legal advisers. When Tom left, Brady had taken his place as chief counsel. Tom had, he said, confided in him about Anne Marie. “He initially had indicated to me that he found her to be a very attractive woman,” Brady testified, “and over a period of time, he eventually told me that they were involved in a relationship.”
“Do you recall,” Connolly asked, “if he said anything about whether or not this relationship needed to be kept confidential?”
“Yes,” Brady answered. “I recall one incident in which he said that, because she worked in the governor’s office and his law firm was doing a significant amount of legal work for the state, that it was important that the relationship be kept confidential.”
Brady said that Tom had told him about his trip to the Homestead with Anne Marie. He wanted to have a long time alone with her and was unhappy when she ended their relationship. Tom had called his office on Friday morning, June 28, to ask him to play golf, but Brady said he was attending a CLE (Continuing Legal Education) seminar that day.
“When did you learn that Anne Marie Fahey was missing?” Connolly asked.
“I was in my office working on Sunday, June thirtieth, and I received a call from Ferris Wharton,” Brady said. Wharton had told him that Tom Capano was the last person known to have been seen with her.
After that, Brady said, he and Tom had played phone tag on Monday and Tuesday, leaving messages. Because Brady was a prosecutor, he took notes of the conversations they finally had. “He said he was blown away by what was happening,” Brady testified, “spooked by the way the cops were treating him.”
Tom told Brady essentially the same things about the night of June 27 that he had told the police, his brother Louie, and Debby. Brady was not only Tom’s old friend; he was also the second-highest-ranking law enforcement official in Delaware. He had turned his notes over to the law enforcement officers who were investigating the case.
He himself had been recused from the case. “That means,” Brady said, “I was not participating in it or informed of any of the events, details, or substance of the investigation.”
And now, Connolly asked Keith Brady if Tom had ever confided in him about Deborah MacIntyre.
“Yes—he first mentioned her when we worked together in the governor’s office in the early nineties,” Brady said. “He told me she was a wonderful person that he cared very much about.”
“Did he tell you what the nature of his relationship with her was?”
“My recollection is that he told me they had a long-term relationship.”
“Did you ever have a sexual encounter yourself with Deborah MacIntyre?”
“Yes.”
An audible gasp rose from the gallery—save for the press rows. The line of questioning had turned on a dime and shocked everyone else in the courtroom. “Who arranged that sexual encounter?” Connolly said, moving ahead swiftly.
“Tom did.”
“Was this while he was having a relationship with her?”
“Yes it was,” Brady answered. “My understanding of his interest in my having a sexual encounter with her was that that would be in the context of his relationship with Deborah MacIntyre.”
“No more questions, Your Honor.”
But Joe Oteri, for the defense, would have many questions. He had been briefed by Tom, who knew Keith Brady’s secrets. But first, Oteri suggested that Brady, five years Tom’s junior, had long been jealous and resentful of his client.
“In other words,” Oteri said, “you really didn’t like the guy?”
“That’s not true.”
“You liked him?”
“Yes.”
And now Oteri had his opening. “And because you liked him, you confided in him and he confided in you. Correct?”
“Yes sir.”
“And you confided in him the fact that you had adulterous relationships. Correct?”
“I confided in him that I had committed adultery.”
“On numerous occasions,” Oteri said, “with three different women at least.”
“No.”
“How many women have you committed adultery with?”
“More than one.”
“More than two?”
“I have committed adultery,” Brady said evenly, “with three women, not including Deborah MacIntyre.”
Oteri labored the area of questioning, asking for the length of Brady’s adulterous incidents, and Connolly objected.
Judge Lee sustained the objection and Oteri moved on to the night at Debby’s house. In answer to his probing questions, Brady testified that he had been unable to achieve an erection when Tom instructed Debby to perform fellatio upon him.
He was a man in pain. Mercifully, Oteri changed the subject, asking about the carpets that Brady had helped Tom carry into the Grant Avenue house when he first moved in.
Then, returning to the subject that fascinated the gallery, Oteri asked, “You had a second encounter with Deborah MacIntyre?”
“I had a drink with her.”
“She propositioned you?”
“That’s not my recollection.”
Before he was finished with Brady, Oteri returned once more to the night in Debby’s house after his golf game with Tom. Although it was true he was trying to save Tom Capano’s life, his questions struck many in the gallery as crude and irrelevant. “Let me ask you a question now, sir. You were thirty-nine, forty years old at the time. You didn’t want to be there. You’re butt naked or half dressed, you got your clothes off, you’re in a bedroom with a guy and a woman who are naked and doing the nasty, and you didn’t want to be there? Somebody holding a gun on you to keep you there?”
“No one was holding a gun to me.”
“Did Debby MacIntyre grab you and say you can’t leave?”
“No, she did not.”
“In other words, you were there because you wanted to be there, because you wanted some action.”
“No.”
“No? Never mind.” Oteri turned away with mock disgust.
“I’m ashamed that I was there.”
“Ashamed of the other relationships you had, too?”
“Yes.”
“I have no further questions.”
IN his pursuit of pleasure and self-gratification, Tom Capano had left a number of victims behind. It was Connolly’s intention to prove that Debby had been one of them. And the man on the witness stand might well have been another. Connolly moved to ask a redirect question. “You’ve testified that you were involved in a sexual encounter with the defendant and Deborah MacIntyre and about your participation in some adulterous affairs. What are the repercussions of your testimony about that?”
Brady gazed at him. “It has been a profoundly agonizing experience for my family. I am dealing with it with God’s help as well as I can. My family is dealing with it. They have been devastated by it, obviously. I am extremely remorseful for the anguish I have caused my wife and my children and my parents.”
TOM barely glanced at the man he had once considered a good friend. Brady was leaving the courtroom—but Tom knew who was going to take the witness stand next. Debby. Not long ago he had told Debby what an a
sset she would be in a trial and how well she would reflect on the side she supported. But now she wouldn’t be testifying for him. She was going to be on the side of “the Nazi” and “the hangman.”
Aware that she no longer even read his letters, Tom had tried a more subtle tack to bring Debby back to his side. He had arranged to have books sent to her. “One was called Marguerite,” Debby would later recall, “some kind of romance and not the sort of book I ever read. The other was about Canadian provincial history. I knew what he was trying to convey. He was saying, ‘Think of my mother—and remember the wonderful time we had in Montreal.’ But it was too late for that.”
Chapter Forty
IT WAS SHORTLY AFTER ELEVEN on the morning of November 18 when Debby MacIntyre entered the side door of the courtroom, took the witness stand, and raised her hand to be sworn. She was familiar to many Wilmingtonians, but those in the gallery who didn’t know her were surprised to see that she looked nothing like a sultry femme fatale. She was petite, her face was clean of makeup as always, and she didn’t look anywhere near her age, which was forty-eight. She wore a powder blue skirt and vest, a tailored white blouse.
Inside, Debby was frightened, and yet there was relief in finally being able to tell her whole story. Even though she had friends who had supported her in the year since Tom’s arrest, there had been so many things she wasn’t allowed to talk about. “There were legalities,” she said, “that I had to keep secret until the trial.”
She looked down now on Wharton, Connolly, Alpert, and Donovan—the men who had once annoyed her and whom she now trusted completely. And she looked Tom in the eye. He was scowling at her, and yet his displeasure no longer had any effect on her. He no longer had any power over her. He was just a man.
Ferris Wharton would conduct Debby’s direct examination. He had warned her she might be on the stand all day—and quite possibly for several days. She had to be prepared to bare her personal life for all the world to see and to have Tom’s attorneys ask impertinent and insulting questions. They would have to—Debby was probably the prosecution witness most dangerous for Tom.
For the first hour of her testimony, Wharton led her through her own life. It was odd; after almost two decades of hiding her affair with Tom, she now told the jurors and the gallery all of the details of their relationship. Asked about buying a gun for Tom, Debby related that he had asked her several times to do him that favor. And finally, when he again asked her on Mother’s Day—May 12, 1996—after they had returned from a romantic trip to Washington, D.C., she told him she would do it. Tom had made it easy by picking her up at Tatnall and driving her to Miller’s gun shop.
“Do you recognize what that is?” Wharton asked her, holding up a form.
“It’s a receipt for the gun and the bullets that I purchased.”
He held up another form. “That is the form,” Debby said, “that I filled out that said it was against the law to transfer firearms.”
“It bears your signature?”
“Yes.”
Debby identified a whole series of forms that she had signed and then immediately violated by turning the little Beretta over to Tom. It had cost her “around $180.”
“Did he ever pay you back for the gun?”
“No.”
For most of the evening and early morning hours of June 27–28, 1996, only Debby and Anne Marie had been in touch with Tom. Now Wharton asked Debby to reconstruct her activities during that vital time period and, in doing so, place Tom in certain locations.
“Let me ask you about the date, June twenty-seventh of 1996,” Wharton said. “Do you recall speaking to the defendant that day?”
“The first time [was] in the morning, about nine-thirty to ten-thirty . . . I was at work.”
“When was the second time?”
“About five . . . He told me he had to go to Philadelphia for a meeting and wouldn’t be too late and would call to say good night when he got home about nine.”
“What were you doing that evening?”
“I was going to a swimming meet at the Arden Swim Club. I was director of the summer program at the time, and Tatnall’s swimming team was swimming against Arden. I often went to the swimming meets as support, [and] both of my children were swimming in the meet.”
Debby explained that her son, Steve, didn’t drive but that Victoria had driven in her own car and joined them at the meet. Afterward, she gave her children money to pick up take-out food at T.G.I. Friday’s. They all ate together in the kitchen at home.
“What did you do for the remainder of the evening?”
“I was sitting in the kitchen reading the paper, finishing a glass of wine—by myself—and my children had gone to other parts of the house.” Debby said she had cleaned the kitchen, locked the doors, checked on her children in their rooms, and then gone to her own room on the second floor, at about ten-thirty.
“Did you make any telephone calls that evening?” Wharton asked.
“. . . at approximately ten-thirty, I called Tom Capano . . . at his house at Grant Avenue.”
“Did you speak to him?”
“No.”
“Did you leave a message?”
“Just saying I was home and, ‘If you don’t get in too late, I’d love to hear from you. If not, I’ll talk to you tomorrow. Good night.’ ”
Debby said she got ready for bed then, and was in bed watching ER. “I was watching it as I left the message and recall seeing a close-up shot of the black doctor on the show—I think his name is Eriq La Salle.”
“ER is on from when to when?”
“Ten to eleven.”
Debby said she had dozed off with the television on when she was awakened by a phone call from Tom. She glanced at the screen and saw David Letterman, who seemed to be in the middle of his opening monologue.
“What was the nature of that call?” Wharton asked. “What happened in that phone conversation?”
“I said, ‘Hello,’ ” Debby replied, “and he said, ‘Don’t you ever leave a message on my voice mail.’ I was puzzled because I had done that many times before. I didn’t understand why I couldn’t leave a message on his machine. . . . He was very irritated.”
“Tell us about the rest of his conversation.”
“I talked about what I had done and the swimming meet, and he asked me if I could help him do something tomorrow morning . . . I told him that I had to go to Tatnall. The next day was payday, and that I had to distribute the paychecks.”
“What was his reaction to that?” Wharton asked.
“He got angry. Tatnall School is kind of a hot button with us. At the time I was working these two jobs that required more than enough of my time, and he felt very clearly that I was being taken advantage of by the school, and so whenever we talked about Tatnall, he would get very agitated.”
Debby testified that the call had ended badly. “I was upset by the tone of the conversation. He wanted to cut the call off and I didn’t want to hang up when I was upset. [The conversation ended] rather abruptly.”
Disturbed, Debby had tried to go to sleep but had only tossed and turned for about forty-five minutes. She called Tom back but the phone rang four times with no answer. She didn’t want to leave a message and make him angrier, so she hung up.
“What happened then?” Wharton asked.
“Very shortly—within a minute—the phone rang back one long ring [the ring of a *69 callback] and I picked up the phone and said, ‘Hello,’ and heard nothing. Then it rang within seconds—a normal ring—and I picked up the phone and said, ‘Hello,’ and he said, ‘Hello.’ He said, ‘I *69’d you. Why did you hang up on me?’ ”
This conversation with Tom was much friendlier than the last. It was past midnight. The longtime lovers chatted easily, and Tom asked Debby again for her help the next day. She said she would go in to Tatnall very early and try to get the paychecks handed out so that she could help him. She had no idea what he wanted her to do.
FERRIS WHART
ON believed that in all likelihood, Tom had just killed Anne Marie, or perhaps was in the process of doing so when Debby left the message on his voice mail at ten-thirty. The shrill ring of the phone would have frightened him. At that point, Tom couldn’t have known that Gerry would help him dispose of her body. Was it possible he expected Debby to do that? Was that why he needed her help?
Debby testified that when she called Tom at 6:45 the next morning, he told her he no longer needed her help. And of course, he didn’t; by that time he had Gerry lined up with his boat.
For Debby, that Friday had been an ordinary day; she had no idea her world was beginning to crash. She saw Tom at the track and he told her he planned to play golf later in the day. Then he called her at work sometime after ten. She didn’t know he was calling from Stone Harbor; he sounded relaxed as he said, “I’m still trying to get a golf game together,” and promised to be with her by nine that evening.
Wharton produced a copy of Debby’s day-planner for June 28, 1996. “What did you have planned that day?” he asked.
“Well,” she said, “I got the paychecks out in the morning.” She had gone in at six, an hour early, because she thought that Tom needed her. “At eleven I had a meeting with the parent of a pre-camper, a little boy three or four years old.”
“What’s at 3:45?”
“I took my son to the dermatologist.”
“Do you recall what else you did that day?”
“I probably took prescriptions from the dermatologist to the drugstore—Happy Harry’s.”
Debby testified she had stayed home that Friday evening, waiting for Tom—but he wasn’t on time and she went to bed.
“Did he arrive?”