Though I suspect I’ll always be thought of as a prosecutor, I have been a defense attorney since I left the Los Angeles County District Attorney’s Office in 1972. I must take a brief moment to add a degree of qualification concerning my defense work, which will help explain what I was looking for in my first meeting with Jennifer Jenkins.
During my career as a prosecutor, I learned that our criminal justice system has a tried-and-true way of filtering out people unjustly accused of breaking the law. Although most individuals arrested have indeed committed the offense for which they were arrested, a significant number have not. That mistake is often made on the spur of the moment and under pressure by uniformed officers (who are in my view, because of their daily risk of death, the poorest-paid members of our society). Most such mistakes are corrected at the next level, when plainclothes detectives investigate the case and interview the witnesses. Only when the detectives think the right person was arrested do they seek a criminal complaint from the district attorney’s office. But the careful filtering continues. In Los Angeles County, for example, prosecutors reject about half of the cases brought to them. Most refusals to prosecute stem from a lack of sufficient evidence, but in some cases, the deputy DA may believe the wrong person has been arrested. Only when the charges against an individual seem both proper and strong enough to prove beyond a reasonable doubt in a court of law does the prosecutor file the criminal complaint. A preliminary hearing is then held before a municipal court judge, who decides whether the prosecutor has enough evidence to go to trial. As high a proportion as 15 percent of all criminal cases in Los Angeles County are dismissed at this hearing. Even when the judge sets the case for trial, the defense can file a motion requesting still another pretrial judicial review of the evidence, this time by a superior court judge, who determines whether or not there’s sufficient evidence to warrant a trial. (Jennifer, by the way, had been indicted for murder in a federal court, where the filtering-out process is less thorough than in the state court system.)
Once a defendant has gone through all of these levels and the case has reached the trial court, it’s probable that ninety-nine times out of a hundred, the true robber, rapist, or murderer is sitting at the defense table. In other words, most defense attorneys necessarily spend their careers defending guilty people.
“Everyone is entitled to be represented by an attorney” is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while perfectly proper, are clearly not idealistic.
True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, “I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.”
That would be idealism. I, too, would represent a defendant—even one I believed to be guilty of murder—if I were the only lawyer available, because the right to counsel is a sacred right in our society and much more important than any personal predilection I might have. But this type of situation simply does not exist in a city like Los Angeles, where 35,000 lawyers stumble over each other’s feet for cases. So I am free to follow my inclination.
Since nothing in the canons of ethics of the American Bar Association says a lawyer has to represent everyone who comes to his door, I choose not to defend anyone charged with a violent crime unless I believe he is innocent or, if guilty, that there are substantially mitigating circumstances. (By the latter, I don’t mean the question said to be asked about the victim by hard-bitten sheriffs in rural Texas at the start of any homicide investigation: “Did he need killing?”) I investigate my own cases, and if I become satisfied in my own mind that the person is guilty, with no substantial mitigation, I routinely refer the case to other lawyers. I simply have no motivation whatsoever to knock myself out working a hundred hours a week, as I frequently do, trying to figure out a way to get some murderer off. Of course, theoretical purists might say I am prejudging the accused, and that a person cannot be considered guilty of a crime unless brought to trial and found so by a judge or jury. But under that argument, Adolf Hitler never committed any crimes, Jack the Ripper never committed any crimes, and the only crime Al Capone ever committed was income tax evasion.
Obviously, if a person, for instance, robs a bank, he is guilty of having robbed the bank, irrespective of whether or not the prosecution can prove this fact to the satisfaction of the jury. A legal verdict of “not guilty” doesn’t change the reality of what he did.
My position is not a matter of high ethics. It’s just that I would have a difficult time living with myself if I did otherwise. As a prosecutor, I handled some twenty-one first-degree murder cases before a jury. Every one of the defendants was convicted, and eight were on Death Row when, in 1972, the California state supreme court ruled that the death penalty, as then being implemented, was unconstitutional. How could I possibly start defending these same types of people in order to earn a living? If it came to that, I would rather stop practicing law and find another job. I am also not unmindful of the fact that were I to secure a not-guilty verdict for one of these defendants I represented, and he went out and did it again, I could rationalize all I wanted, but I would be partially responsible. If I had not deceived the jury, there would not have been a second murder.
In a nutshell, although I’ve never been a law-and-order fanatic, I do believe that those who have committed serious crimes should be severely punished, and I do not want to be in a position of actively seeking to thwart this natural justice.
One illustration of my dilemma in legal defense work is the case of Dr. Jeffrey MacDonald, the Princeton-educated former U.S. Army Green Beret who was accused of savagely stabbing to death his pregnant wife and two young daughters in their Fort Bragg, North Carolina, home one rainy night in March 1970. He was first charged with the murders that year, but the case against him was dropped. It was sometime in late 1973 or early 1974 that a woman friend of MacDonald’s came to my office and told me that the doctor, who was then working as an emergency-room physician in nearby Long Beach, had learned that he was about to be reindicted. Would I be interested in representing him? We could talk about it, I said, if the doctor was innocent. “Tell him, though, that for starters I want him to take and pass a polygraph test.” I was interested because the MacDonald case could provide the kind of high visibility I needed to start changing my public image from that of prosecutor to defense attorney. While waiting to hear from him, I telephoned the federal prosecutor handling the case in North Carolina and asked what he had against MacDonald. The prosecutor would not say very much, but did mention a few pieces of evidence to me, one of which was that fibers from MacDonald’s blue pajamas were found embedded beneath the fingernails of his two-and-a-half-year-old daughter. That evoked in my mind the horrifying scene of a little girl crying out, “Daddy, Daddy, no,” as she reached out and struggled against her father while he stabbed her to death. That was enough for me. I wanted nothing to do with the case. MacDonald’s lady friend called a week later anyway to say that he did not think it was necessary to take a polygraph as a precondition to my representing him. Convicted of the triple murder in 1979, he was sentenced to three consecutive life terms in prison.*
Now, after reading the series about the Palmyra Island murder case, I was characteristically reluctant to defend Jennifer Jenkins. The way I saw it, if four people were alone on a
n uninhabited island and two were murdered, what was the likelihood that either of the other two people was innocent, particularly when both ended up in Hawaii with the victim’s boat, acting very suspiciously? The Federal Bureau of Investigation, the U.S. Attorney in Hawaii, and a federal grand jury had examined the evidence and concurred that Buck Walker and Jennifer Jenkins had together committed the murders. And two juries had already found Walker and Jenkins guilty of stealing the boat together. Before I agreed to defend her, I had to be confident she was not a killer.
After the preliminary pleasantries, Jennifer told me her family had tried to contact me after the murder indictment in 1981. “My Uncle Harold called your office and left his name and number, but you were out of town.”
I couldn’t remember receiving any such message, but I had been in Chicago in the winter of 1980–81 for a three-month federal jury trial. In any event, Jennifer’s family hired Barry Tarlow, a prominent Los Angeles criminal defense attorney. Soon he was replaced by defense attorneys Brian J. O’Neill and Leonard Weinglass. O’Neill had since withdrawn from the case, but Weinglass would remain as co-counsel if I agreed to represent Jennifer. Though I had never met him, I knew a little about Weinglass, who some feel is the most respected trial lawyer for the political left in America. His most famous case was the Chicago Seven trial, in which he defended the late Abbie Hoffman, Tom Hayden, and two other defendants. He had also been a defense attorney in the historic Pentagon Papers case.
In a major criminal trial, particularly a murder case, it is common for the defendant to be represented by two or even three lawyers. (Buck Walker had already lined up two court-appointed defense attorneys, Earle Partington and Ray Findlay, both from Honolulu.) On the other hand, as a longtime prosecutor, I’d never envisioned the day I would be on the same side of the aisle as the likes of Leonard Weinglass.
I told Jennifer I hoped she’d had nothing to do with the murders of Mac and Muff Graham.
She sighed. “I’m guilty of making some mistakes in my life, but I didn’t kill Mac and Muff.”
I watched her intently for a moment. “Then I assume you’re willing to take a polygraph?”
“Yes,” she answered with no hesitation. “I’ll take whatever test you or the Government want to give me. Lie detector, sodium pentothal, you name it. And the jury can hear the results.”
“Whatever they may be?”
“Yes.”
What Jennifer had just said was extremely important to me. Most guilty people don’t want to take any kind of a truth-discovering test. Even those who are willing have been told by their lawyers that the results cannot be introduced at their trial without their consent, which, if they fail the test, they obviously never give. Here, Jennifer had offered to not only take any test I or her accusers wanted to give her, but to let the jury hear the results, whatever they turned out to be. How could she possibly be willing to do this if she was guilty?
Jennifer had made a significant stride toward convincing me of her innocence.
“Anyway,” she added, “Barry Tarlow had me take a polygraph test last year, right after the indictment. I passed.”
I made a note to confirm that.
Now I wanted to get to the case. “Tell me everything that happened. Start at the beginning, when you met Buck, and take your time.”
When I next looked at my watch, it was nearly 10:00 P.M., and Jennifer was far from finished with her story. I had, of course, slowed her down by asking for clarifications and interjecting questions.
“It’s late,” she said, trying to stifle a yawn.
“Let’s call it a night. Jennifer, I repeat that I will not be able to represent you if it ever appears that you had anything at all to do with these two murders.”
“Since I’m innocent,” she said confidently, “that’s fine with me.”
I handed Jennifer a fresh yellow legal pad. “Whenever you think of anything favorable to your case, I want you to write it down. Make another list of everything you think is unfavorable, along with any explanations you may have. Next time we meet, we’ll go over your notes.”
She seemed reluctant to pick up the pad.
“What’s wrong?”
“I have to concentrate all day at work.”
“Do it when you get home.”
“I like to relax then.” It was that little girl I hadn’t seen for several hours.
“Jennifer, the charge against you couldn’t be more serious. You’ve already been convicted of the theft of the boat. If you’re going to have any chance of getting a not-guilty verdict on the murder charge, you’ve got to work hard, very hard.”
“I know,” she said, but her tone suggested no real concern. She casually reached for the pad as she stood up.
A bit unnerved, I escorted her to the elevator. When I returned alone to the office, I went back into the library and sat down. Everyone had long since departed the suite I shared with two other attorneys. The only sound was the soft tap-tapping of my pencil eraser against the tabletop as I contemplated the exotic story Jennifer Jenkins had begun to tell.
Apart from the mystery of the case (and the fact it seemed almost fictional and was completely different from any of the other murder cases I had ever handled or knew of, most of which fall into routine categories and have familiar settings), I was immediately struck by the terrible irony of Mac Graham, reportedly (per the newspapers) wanting to get away from a big-city life that was becoming increasingly unsafe by going to a peaceful, idyllic South Sea isle, ending up brutally murdered and left at the bottom of a lagoon, a worse end than could have ever happened to him in San Diego.
What unimaginable hell exists right here on earth. Had the woman I just spoke to been responsible, along with her boyfriend, for the horrors that had befallen the Grahams in the summer of 1974?
Although I don’t feel I’m particularly adept at judging people—especially early on—to me, Jennifer had not acted like a guilty person. I have interviewed and/or cross-examined many individuals who were guilty of serious crimes, and not one has ever been as matter-of-fact and detached as she. Guilty minds are normally beset with fears and suspicions that have a way of surfacing. I saw nothing but casualness and openness in Jennifer. On the other hand, neither did she act like an innocent person accused of committing the most heinous crime of all. Such defendants are usually angered by the cruel twist of circumstances that has them “standing in the dock” facing untrue charges, and they can’t wait to prove their innocence to the world. Since Jennifer did not act entirely like either a guilty person or an innocent one, what it came down to on my first meeting with her was a simple visceral feeling that she was not involved in the murders. But obviously I still had my doubts. These would have to be addressed in many other meetings with her before I could make up my mind whether or not I should represent her. I also reminded myself of what an old-timer at the DA’s office told me early in my career about a French adage: Une femme ne révèle pas sa culpabilité aussi facilement qu’un homme.—A woman does not reveal her guilt as easily as a man.
There was something in particular that bothered me. I did not realize what it was until the following morning, when I reviewed my notes over a cup of coffee in our sunny kitchen at home.
Although she had repeatedly expressed sadness at the deaths of Mac and Muff Graham, Jennifer did not talk as if murder had taken place on Palmyra, only two terrible accidental deaths for which no one was responsible. I confronted the issue head-on at our next session as soon as she, the loyal Puffer, and I were once again settled in the law library.
“Jennifer, it’s clear that Muff was murdered. And undoubtedly Mac was, too.”
She raised her dark-brown eyebrows in surprise, gazing at me as if I had offered a novel thesis. “As I said, they went fishing and never came back. We found their overturned dinghy. I’ve always thought they drowned or were attacked by sharks.”
“The bones of drowning victims or people eaten by sharks don’t show up seven years later in a met
al box.”
She shrugged. “Len Weinglass says they don’t know for sure that Muff was ever in the box.”
“Jennifer, please. Obviously, Mac and Muff were murdered, and no bluebird did it. We’re not going to get anywhere shadowboxing with reality. Only four people were on the island. Either Buck and you did it together, or Buck did it alone. The circumstances simply don’t permit any other reasonable conclusion. At this point, I’m willing to assume you weren’t involved. Which makes Buck the lone killer.”
“I just can’t see Buck killing Mac and Muff. They were so nice to us—especially Mac. He was a prince of a man. He was always coming over and giving us fish he’d caught. He kept Buck in cigarettes. We played chess together.” Her arguments seemed to summon up vivid memories. “They were good people, Vince.”
“Yes, they sound like they were.”
“Buck wouldn’t have—” Her voice cracked. It was her first display of emotion.
She rose from her chair and nervously circled the table, running her finger along a row of law books as she passed in front of them.
“Last summer, at a hearing in Honolulu,” she began, “I sat next to Buck in court. I hadn’t seen him in years.” (During our first session, Jennifer told me that she hadn’t even heard from Buck since he’d written her from prison several years earlier. She said she did not answer his letter and assured me she no longer had any emotional attachment to him.) “Before court started, we had a chance to talk. I told him I had never believed anything different had happened to Mac and Muff other than they went fishing and had an accident. Buck said that’s what he always thought had happened, too.”
Finished with her brief tour of the room, she scratched Puffer behind the ear and sat back down. “I asked Buck how he could explain that Muff’s body had apparently been put in a metal box. He said, ‘Maybe Mac did it.’”