Joey Capano was scheduled to appear next in Tom’s defense. Although he looked as handsome and tanned as ever, Joey confided to reporters that his health was not good; he feared he had inherited Louis Sr.’s heart trouble. In what seemed like one long run-on sentence, he described his heart attacks and his sixteen cardiac surgeries. He said his wife, Joanne, had once inadvertently saved his life as she reached for the phone to call 911 in the middle of the night. “I wasn’t breathing,” he said. “She thought I was dead, but she leaned on my chest when she grabbed the phone and revived me.”
As he took the witness stand, Joey had five weeks to go before yet another surgical procedure on his heart. Marguerite had so many worries about her boys. Unlike Louie, Joey was a very casual dresser, his former-wrestler’s body straining at the seams of his jacket. As he gestured, reporters saw that he had lost a fingertip on one of his hands (he had caught it between two boats).
Joey testified that Tom had come to him in March of 1996 for advice on what to buy Gerry to show how grateful he was because Gerry had been so nice to Tom’s daughters. “I suggested that he purchase something such as a cooler,” he said. “I said Gerry could always use one of those.” There had been nothing at all ominous about that purchase, he insisted.
Joey said that Gerry’s memory was not all it could be because his drinking clouded it. “He tends to get things twisted,” he testified. Oteri nodded. Joey’s testimony boosted Oteri’s contention that Gerry was given to confabulation—to mixing up fact and fiction to fill the “Swiss cheese holes” in his memory. To win an acquittal for Tom, it was absolutely vital that Gerry appear to be demented by drugs and alcohol. The Capano family was split right down the middle; Louie had spoken for Gerry, and now Joey was standing behind Tom.
JOE OTERI had gotten his “Swiss cheese” theory from Dr. Carol Tavani, the psychiatrist who examined Tom just after he was arrested in November 1997. Dr. Tavani testified to the depression that had gripped Tom in March 1998—a period that coincided with Debby’s defection to the state investigators. On direct, Tavani testified to her concern for her patient and how she had tried numerous combinations of antidepression and antianxiety medications to bring him some relief.
On the witness stand, Tavani also diagnosed Gerry Capano for Oteri, and said she had found that he was a “confabulator,” with “Swiss cheese holes” in his memory. She even analyzed many of Anne Marie’s writings and suggested that, in her opinion, they showed she had had a very pleasant and friendly relationship with Tom Capano.
Upon cross-examination, Ferris Wharton queried Tom’s psychiatrist about the best way for physicians who deal with mental health to evaluate patients. Tavani agreed that it was vital to meet the patient and do face-to-face screenings before beginning treatment. There were so many factors to consider: body language, general demeanor, rapidity of response, the state of nourishment, eye contact . . .
“In fact,” Dr. Tavani offered, “most of our communication is nonverbal. Eighty-five percent of our communication—from those who have studied this sort of thing—is actually nonverbal.”
Wharton had deftly led the psychiatrist into a trap; Dr. Tavani had never met either Gerry Capano or Anne Marie Fahey. She had not even watched as Gerry testified. By her own definition, she had no access to the essential 85 percent of nonverbal communication she needed to properly assess a patient. Tavani, who appeared squarely behind Tom, lost much of her credibility the moment she began to diagnose “patients” who were not and never had been under her care. Moreover, she agreed that she and Tom had built up so much rapport that he had refused to speak with any other prison mental health professionals.
More defense witnesses appeared, many to speak of rumor, not fact, and it soon became obvious that the crux of the defense case would be the testimony of Tom Capano himself. As Judge Lee had noted, Tom did, indeed, want to get to the jury. He had been a popular, well-liked man for all of his adult life. Apparently he felt that his most compelling evidence was his own personality and his ability to explain to the jurors the reality of what had happened on the night of June 27, 1996.
DEFENSE attorneys in homicide trials fight to keep their clients off the witness stand. Once the defendant finishes with the friendly questions of his own lawyers, he will face cross-examination. Any legal expert would have warned Tom not to testify, and his four attorneys did just that. Judge Lee certainly went over the pitfalls with him. But those who knew Tom would have bet money that he was going to do it. He had backed off reluctantly from handling his own defense, but a week later, on December 16, 1998, Tom rose from the defense table to take the witness stand. The jury was taken off guard; the mouths of three jurors actually dropped open. The Faheys looked alert and suspicious.
Tom placed his hand on the Bible to be sworn in, but as he sat down, his arm hit it, knocking the Bible from its place. He tried to grab it as it fell to the floor, but failed. It was a jarring moment. Someone far back whispered low enough so only her neighbors could hear, “So much for God’s truth.”
In a navy blue suit and red tie, with his floppy pompadour neatly combed, Tom was ready to explain everything in his own words. He seemed self-contained and happy to have his time in the spotlight. His cheering section was packed with relatives—his mother in her wheelchair with his cousin Loretta, his daughters, his extended family (but not Kay), all of them smiling tensely at him. Anne Marie’s family was there, too, to hear, for the first time, what Tom might say about their sister’s disappearance. There were new faces in the gallery, and some who had been there every day without fail. Emily Hensel and Kurt Zaller were the most constant court watchers—they had been first in line every morning since the first day.
THE court transcripts of Tom Capano talking about himself and blaming others for the crimes he was accused of would fill nine transcript books—books whose type had been reduced so that four pages could be printed on one. In person, he was a natural talker, very competent and in control. He had a wonderful voice, soft and reassuring, a voice that might have belonged to a movie star, a preacher, or a politician. He spoke directly to the jurors, giving them more of his attention than he gave to Joe Oteri, who conducted the direct examination.
Tom gave his life’s history, sparing no good deed he had done and emphasizing that he was not as wealthy as his brothers. In a sidebar, the state objected to an endless recitation of Tom’s benevolence and Oberly said it was only traditional character evidence. Connolly reminded the defense attorneys that if they “wanted to get in all the good stuff, we have to get in all the bad stuff.”
At this point Judge Lee sided with the defense attorneys, but warned them, “At some stage before you canonize him, understand that there will come a time and place when the other side of Tom becomes an issue.”
After he had finished telling about his work with the church, the poor, the elderly, and small children, Tom answered questions about his brother Gerry, pointing out that he was “an overgrown kid” who had been nice to Tom’s daughters. And it was perfectly natural that he had purchased a large cooler to say thank you to Gerry. He had put the cooler in the crawl space under his house, however, waiting for the family Fourth of July party to give it to him.
There was nothing new in Tom’s testimony; he stuck close to the scenario already presented by the defense, although he often wandered off into long, ponderous explanations. When he did that, he asked Oteri, “Am I rambling?” and explained that his medications had not kicked in or, conversely, had kicked in too much.
When Tom spoke of Debby, it was to describe her as a woman who had virtually forced herself on him. “I wasn’t particularly interested in fooling around with somebody who—that if I did—could easily result in the loss of my job.”
He was far from gallant. There was an audible whoosh from the gallery when he said, “Secondly, Debby was by far not the most attractive female of the group. . . . And, third, one of the things you learn playing high school football is there’s a phrase beginning with B F.
[Buddy fucking.] You never do that,” Tom told the jury. “Her husband, Dave, wasn’t a friend of mine, but we worked together—you just never fool around with a friend’s lady.”
But of course, he had.
Tom’s testimony continued day after day, morning to late afternoon. After he had pointed out how duplicitous Debby MacIntyre was and that she was not to be believed, he began on Anne Marie Fahey. Tom made it a point to refer to Anne Marie, her family, and her friends by their first names, as if to show that he was intimately acquainted with all of them. And in a sense, he was; he had insinuated himself into her life, demanding to meet her friends and family, to know everything about them—just as he had made it a point to know everything about Anne Marie.
It was four days before Christmas when Tom half smiled as he told the jury how well he had known Anne Marie and how much she had trusted him. “She told me all the deep dark secrets of the Fahey family. I know them all,” he confided. “Again—assuming she was telling me the truth. And one of my vanities is that I’m pretty good at keeping confidences. I don’t intend to talk about them. I didn’t intend to talk about them then and I don’t intend to talk about them now.”
Almost immediately, Tom set about smearing Anne Marie’s image. “She was absolutely insistent [about telling of her personal background]. She told me she had a very wild period in her life when she was, in her own words, promiscuous. . . . She felt compelled to tell me that she had been so wild that she had been tested for AIDS. I was expecting some deep dark secret.” Tom chuckled.
He continued to expose a dead girl to a list of smirking surmises about her transgressions. She had once dated a man of another race, she had had a “nervous breakdown,” and she had anorexia. Still saying how good he was in keeping confidences, Tom wrinkled his forehead trying to think of more of Anne Marie’s alleged secrets to tell the jury. “There are probably other confidences she shared with me,” he apologized, “but I don’t remember right now.”
To anyone listening, Tom’s testimony about Anne Marie was a brutal exposure of her life as he wanted the world to see it. There was no way of knowing if what he was saying was true. In his recitation, Tom was always the kindly friend who gave her good advice on friends, relatives, and financial matters. He had been unfailingly generous. He had bought most of her clothes and made sure that she had enough to eat. He alone had known what really went on in her heart.
At one point, Tom told the jurors that Anne Marie hadn’t even been a very good Catholic. “Anne Marie was not a devout Catholic just as I’m not a devout Catholic. . . . We were both what are referred to as ‘cafeteria Catholics.’ Those things we liked, we did—and those things we didn’t like, we ignored.”
No one doubted that Tom was directing his own case now. The life seemed to have gone out of Joe Oteri. He would ask a short question and his client took off from there. Tom was a race car out of control, talking about whatever he wanted and apparently convinced that he was making a good impression as he described Anne Marie’s failings and his efforts to look after her.
From time to time, he reminded the jurors: “I’ve tried very hard not to trash people.”
On December 21, Joe Oteri had finally moved through Tom’s tedious asides and comments to the evening of June 27. Tom confirmed that he and Anne Marie had gone to the Ristorante Panorama. They had gone there, he said, to discuss her problem with anorexia—over dinner. “And so we weren’t yucking it up,” Tom explained. “The atmosphere was serious but not any worse than that.”
Then he went on to say that “something serious” had occurred regarding the menu, however. “Panorama has two types of calamari on the menu; one is breaded and deep fried and the other is not—it’s sautéed in a garlic sauce and it’s terrific,” Tom told the jurors. “Well, she brought us the wrong calamari dish. And Anne Marie was quite upset—she had worked so many years in restaurants that she had no patience for people who make mistakes like that. . . . She had the idea most of the day in her head she was going to eat one of her favorite dishes that night and the waitress screws it up . . . so she was very upset about that.”
Otherwise, Tom said, their meal had been pleasant. They had drinks and wine, and they had discussed leaving more than a 20 percent tip even though “the waitress was a klutz.”
They had left Panorama about nine-fifteen. “We talked mostly about the Olympics on the way home.” Tom said he’d told Anne Marie he could get tickets for her, “and she got all animated . . . and said, ‘You lie!’ She was quite excited.”
He thought it had taken them about half an hour to get to Wilmington, driving down I-95 and exiting at 202 southbound. They had gone to Anne Marie’s apartment first. “We had talked about if she was awake enough—[so] we decided to watch ER together . . . at my house because my house was cool and her house was hot as blazes. . . . So she ran upstairs, took the doggie bag from the restaurant with her—I want to mention that. She said she was probably going to change. She was used to me every week giving her her food supply, the things I learned she would eat. And so I think I had a little Acme bag with some soups and grains and things like that that she brought up as well.”
Tom added that the perishables he had for her were in his refrigerator on Grant Avenue. “The apartment was so hot she came right back down again.” ER was about to start, he said, and she kept clothes at his house she could change into; he had T-shirts and small-size men’s gym shorts there.
“Did she turn on the air conditioner in her apartment?” Oteri asked.
“I don’t believe she did.” She hadn’t been up there more than ten minutes, Tom said.
“What time did you arrive back at your house on Grant Avenue?”
“ER had started—but just barely.”
“So that would place it at shortly after ten o’clock?”
“That is correct.”
“Where did you park your car?”
“In the garage—and on that point,” Tom added, “my garage was so narrow that if I pulled in, it was impossible for somebody on the passenger seat to get out, so Anne Marie would get out. . . . I pulled in and she walked in after me.”
Tom recalled that it was very cool in the great room because his air conditioner had been on all day. “We watched ER.”
“Did anyone change their clothing—?” Oteri began to ask.
“Actually, Anne Marie took off her panty hose just for the sake of being more comfortable. . . . She did not bother changing into any other clothes. . . . I just took off my suit coat and tie. We both took off our shoes.”
“Where were you situated while you were watching ER? Who was where?”
The courtroom was hushed, waiting to hear what would come next. Tom’s answers were growing more lengthy and complex, and it took a careful ear to extract the kernel of an answer to the question that Oteri had asked from all the words, words, words.
“I typically would sit in the daddy chair—the recliner. And Annie would stretch out as best she could on the love seat. It was a love seat—it was not a sofa. It was not a sleeper couch as some people have said. It was not—it was big enough for her to lie down on but only with her knees pulled up. . . . Now, during the course of the TV show, at one point I went off and sat on the couch with her and she might lay her head on my shoulder or something like that. And we definitely did do that. It was pretty much how it was going at the end of the show.”
“And you watched the entire show with her?”
“Yes. Although Anne Marie—as Anne Marie always did—well, most of the time did—Anne Marie often falls asleep in front of the television and never sees the end of an eleven o’clock show because she wakes up so early in the morning. At one point Anne Marie fell asleep and I didn’t wake her up. So I saw the entire show and she did not. I did wake her up for the end.”
Tom’s words flew together, but haltingly and repetitiously. It almost seemed as if he was viewing another scene in his head, one he was hesitant to describe.
“Could you move
without waking her up? Could you get up or down without waking her?” Oteri asked.
“Yes. Yes.”
“The show ends at eleven o’clock. After the show ends, what did you do?”
“Well, I heard the phone ringing sometime during the show. I didn’t bother answering. I suspected it was Debby because I had told Debby I would probably see her later that evening. And it was not at all unusual for Debby to come over, say eleven o’clock at night, and spend the night, especially during the summer, when her kids were out of school. I remember how the show ended but at the end of the show, I got up to use the powder room, so I checked my voice mail, and sure enough, there was a message from Debby.”
“Were you concerned she would come over?” Oteri asked.
“No. Because I think—I mean, what I figured was that, you know, Anne Marie and I might, you know, hang out to the end of the news. Then I might take her home. Sometimes we would both fall asleep. There were literally times when she would wake up at one-thirty, two o’clock in the morning, and we were both sound asleep, and she would come over and kick me and say, ‘Come on, Capano, you got to drive me home.’ Sometimes she did spend the night.” Tom blinked at Oteri and asked, “Where was I?”
“Talking about the phone call. You went into—”
“As I suspected, it was a call from Debby, and I did call her back from the study.” Tom seemed back on track now. “And we had a brief and pleasant conversation. She started on her normal Tatnall subject, which was always a red flag before my eyes. And she said, ‘Can I come over now?’ And I said, ‘Not right now, you know. I’ve got company. It will have to be later,’ or something like that. And I just hung up.”