My demeanor in court is somewhat freewheeling. Add my confrontational manner of cross-examination, and I knew I would have no difficulty irritating King. If so, and if he were to react against me as he had against the defense in the Walker trial, how would I respond? No mystery there. If he waxed intemperate and demeaning in front of the jury, I would be several degrees tougher in my response, right in front of the jury. Maybe I’d be held in contempt, but at least I would retain my stature with the jurors. I’d rather be held in contempt and pay a fine than allow the judge, in the presence of the jury, to demean me and threaten my credibility with the jury. My personal style before a jury is to try to gain their respect. Although I obviously want them to like me also, I not only feel uncomfortable making an effort in this regard, but am too absorbed in the trial anyway. What I try to convey to the jury is sincerity, honesty, substance, and stature. They all add up to credibility, which I want to have with the jury above all else.
Clearly, if I could completely avoid a verbal confrontation with Judge King in open court, I (and my client) would be much better off. My best hope, I had decided, was forthrightly to place the judge on notice, before the trial, that I wasn’t going to accept any maltreatment before the jury, and that if he chose to disregard my admonition, he’d have to pay a price himself before the same audience. I aimed for checkmate before the game began.
AFTER WE had discussed the usual mundane legal matters in open court, Judge King seemed a little perplexed when I said there were some other items for discussion that did not lend themselves to the formality of the courtroom. “They’re of a personal nature, your honor,” I explained. Since I was planning to speak bluntly, I wanted to do so in private and not risk embarrassing him in front of any members of the press, who were closely covering these early skirmishes in the Palmyra murder case.
Except for the panoramic view of the bay out the window, the judge’s chambers were unremarkable. We were surrounded on three sides by the traditional dusty law tomes. The judge took off his black robe and hung it on a hook, then sat casually at one end of a small conference table. He wore a white shirt, rolled up at the sleeves, and no necktie. Len and I sat to his right, and the two prosecutors opposite us.
Even on the bench, Sam King was more informal than most of his colleagues, and in his chambers, he was understandably more so. In such a setting, King was even given to cracking his share of jokes. It was on this note that I began.
“Judge, you’re a paradox,” I said. “Your personal demeanor is less formal than most judges, but your courtroom rules are more restrictive. I’m going to raise a few issues with you because you have already demonstrated a certain flexibility. Too many judges, particularly federal judges, have well-deserved reputations of being pompous asses who can’t be talked to.”
The judge started to smile, but quickly thought better of it. His dry expression said, Thanks a lot for your backhanded compliment.
“Fortunately for us,” I raced on, knowing the ice could be very thin, “you don’t fall in that category. My first point—do we always have to stand up in court when we address you?”
“No.” He had not hesitated.
“Good,” I said.
“Secondly, I would appreciate it, judge, if we wouldn’t be restricted to the microphone at the podium. A great number of courts in this country don’t have microphones and people get along very well. On cross-examination, I find it more effective to move around.”
“I’ll let you leave the microphone,” King said more amiably, “but don’t get close to the witness.”
“That’s my third point. I know you do not want us to approach the witnesses, and only if we request and are granted permission can we do so. But we’re officers of the court. I don’t think that witnesses should be elevated in importance over the lawyers. This definitely goes in the direction of the lawyers’ losing stature in the jury’s eyes, because from the jury’s own experience in life, it’s completely unnatural to get consent before approaching someone.”
Judge King declined. “Allow me my idiosyncrasies,” he said. This wasn’t pleasing, but it wasn’t a major problem.
“My next point is that both lawyers for each side should be able to object to a question. Permitting this does not impose any new burden or inconvenience on the court, but not permitting it (as was King’s rule) can result in serious detriment to both sides.” Under King’s edict, if a witness of mine was asked an improper question on cross-examination but I didn’t catch it, Len could not make an objection on behalf of the defense. And by the time he could whisper the nature of the impropriety to me so that I could object, the answer would already be on the record. It made no sense to hobble the defense or the prosecution in this way.
“Declined,” King said. “Next point?”
Now I was getting the distinct impression that King was not listening to logic, but was sticking to his rules because they were his rules, period. He was not displaying the flexibility for which I had just praised him.
But I went on.
“Next point. If we have to discuss any matter with you, why can’t we approach the bench?”—something King did not permit. “I had a federal jury trial in Los Angeles a few months ago, and we approached the bench five to ten times a day. To call a recess inconveniences the jury, consumes a lot more time, and sometimes makes the lawyer requesting the recess look bad in front of the jury.”
“Declined.”
Okay. Now it was going to get interesting.
“Judge, on these other matters you had all the say. I had no say. I was just offering suggestions. On this next point, I will have a say. This goes to the stature and credibility a lawyer has to have in front of the jury. I can’t speak for the other lawyers, but if I do anything that displeases you in the slightest, I expect you to register your displeasure outside the presence of the jury.” Pointing a finger at him, I said, “What I’m saying is that you are not to demean me, in any way whatsoever, before the jury.” I had given my voice a rough edge, and Judge King’s face was darkening noticeably, but he said nothing. “If you have anything derogatory to say to me, call a recess.”
“I’m not going to take the bench worried about you being overly sensitive, Mr. Bugliosi,” the judge finally shot back. “Just because you’re sensitive doesn’t mean I’m going to be afraid to act as I’ve always acted.”
“I’m not sensitive at all, judge. You can call me a horse’s ass outside the presence of the jury. But before the jury, I will not be demeaned in any way whatsoever,” I said forcefully.
Elliot Enoki, Walt Schroeder, and Len Weinglass had sat quietly, figuratively looking the other way, evidently not wanting to have any part in this discussion. That was fine with me.
“If this were a court trial, no problem,” I said. “But in a jury trial, when the judge does this it unquestionably hurts the client. The court has enormous stature with the jury, and the slightest negative comment carries with it considerable damage. My credibility before that jury is what we’re talking about.”
The judge made no immediate response. He just looked at me, as if studying a creature he could not readily classify. The breezy friendliness that had existed between us had vanished like a breath upon a mirror.
“The thing I’m most concerned about going into this trial, Judge,” I continued, lightening up a bit, “is that Jennifer’s right to a fair trial might be, excuse the phrase, shipwrecked by some type of prosecutorial misconduct or by the court’s indicating to the jury a bias in favor of the prosecution. If either of these two things occurs, I’m going to take it to the mat right in front of the jury. I have to. I have no choice.”
I rose to my feet. “Judge, I hope you’re not offended. I only say these things because of my grave concern for my client’s right to a fair trial.”
The judge smiled, actually smiled, as easily as Eisenhower.
He’s shell-shocked, I thought. I had a feeling what I had just told him wouldn’t completely sink in for a while.
/> “I understand,” Judge King said quietly.
He extended his right hand and we shook hands.
After we left the judge’s chambers, Len looked at me with a tight smile. “In all my years of practicing law, Vince, I’ve never heard a lawyer talk to a judge like you just did.”
“What do you think? Did I go too far?”
“It’s hard to say. But you made your point, and I have a feeling it will probably be for the better.”
I was relieved to hear that from my co-counsel. If he was wrong, we’d have hell to pay.
FEBRUARY 1–2, 1986
THE LAST weekend before trial blurred into long hours of nonstop work, for there was still much to do. I was staying just two floors above Len, so we both went up and down the stairs or the elevator numerous times to consult with each other. Not taking time even to go out to a nice restaurant for a real meal, we lived on the less than adequate bill of fare of a coffee shop adjoining the hotel. Few cities anywhere can cast a spell like San Francisco. But I knew that the upcoming trial could just as well have been in Helena, Montana. I would not have the time nor the inclination for the special charms of the city by the bay.
On Sunday afternoon, a mystery of sorts was solved. But, as was very much in keeping with this case, an even greater mystery was created.
Many months earlier, I had noticed on the Government’s inventory list that the authorities had found a wallet on the Sea Wind with a California driver’s license and various credit cards in the name of Dannell Donald Petersen, a dentist who practiced just north of San Diego in suburban Carlsbad. I had asked Jennifer who Petersen was and why his wallet was aboard the Graham’s sailboat, but she said she didn’t know anyone by that name or anything about the wallet.
Earle Partington had left all of his files behind in San Francisco with Len, who had discovered an FBI report of an interview on the Petersen matter that for some reason neither Len nor I had received from the prosecutors along with the other FBI 302s.
On October 31, 1974, at his home in Encinitas, ten miles down the coast highway from his office, Petersen told the agents he had lost a wallet containing two hundred dollars in cash and various credit cards at Maalaea, Maui, in December of 1973. He recalled that he had dined on a little, run-down sailboat with a young couple who had invited him aboard. They had met that evening at a nearby beachfront bar. After he left the boat, he discovered his wallet missing and returned to search for it. He told agents that the couple had refused to allow him to come back aboard, but agreed to check around themselves. They returned topside after a few minutes, claiming it could not be found. Understandably unhappy with this sequence of events, Petersen had gone to the Maui police. Officers went down to the marina and questioned the couple, but the dentist’s wallet was never recovered—that is, not until the Sea Wind was impounded and thoroughly searched almost a year later, in October 1974.
In the FBI 302, Petersen described the people he suspected of stealing his wallet. The man was “possibly nicknamed ‘Butch,’ about 35 years old, over 6 feet, 200 pounds, brown collar-length hair, possibly a front tooth missing or broken off.” The woman was “about 30 years old, around 5 foot 3 or 4, brown curly hair, a former cocktail waitress at a sailors’ bar in Wailuku, Maui, and she had a foul mouth.” According to the doctor, the couple had three dogs: a small, furry mutt, and two big, surly hounds that had remained tied up while he was on board.
The agents showed up at Petersen’s Carlsbad office on November 14,1974, to show him mug shots that might identify the couple. He unhesitatingly picked Jennifer Jenkins from among five women and Buck Walker out of five men.
Len told me he had already spoken to Jennifer about the Petersen incident but she had been unable to recall it. I immediately phoned her from Len’s hotel room, and she still drew a blank.
“Jennifer, the police came down to the Iola and questioned you and Buck about the wallet. How is it possible you can’t remember this?”
“What can I say? I just don’t,” she insisted.
After this conversation, Len and I pondered what could have happened.
“Maybe Buck stole the wallet,” Len offered, “and she didn’t know anything about it.”
“But even if that were the case, wouldn’t she have at least remembered the police coming down to the boat and questioning them about a missing wallet?” I said.
We also thought that perhaps Jennifer had drunk too much that night and simply couldn’t recall any of the events. She rarely, in those days, hit the pillow without significant amounts of some mood alterer in her system.
With the rush of other last-minute matters we had to attend to, Len and I put the wallet incident in the back of our minds. Neither of us could imagine any legal theory the prosecution could devise to introduce the matter before the jury.
We both were troubled, however, by the disturbing possibility that Jennifer, at some time prior to Palmyra, had engaged with Buck Walker in any kind of unlawful activity. But, of course, that did not make her a murderer.
WITH THE trial scheduled to start in the morning, my yellow-pad sheets of paper, covering every aspect of the trial (even case law authority to overcome anticipated objections, and optional lines of follow-up questions dependent on how a witness on cross-examination answered a particular question), rose to a height of almost a foot. Although the clear trend in the legal profession is toward fewer and fewer notes on direct examination, cross-examination, and final summation (so recommend instructors at many law schools and trial lawyer seminars), I do the opposite, almost to an obsessive, perhaps even unnecessary extreme. But I believe in the adage that the war is won before the first battle is fought, and thus far in my career I’ve been able to orchestrate most of the trial on paper before ever entering the courtroom. Arguments, counterarguments, questions, objections—the whole gamut takes place on my yellow pad before the trial even starts. My objective, of course, is for the trial to be merely the acting out of the scenario or script I’ve already written. Granted, unusual things happen at a trial, but if I’ve done my homework, even many of these occurrences can be anticipated and prepared for. In my unremitting quest to be completely ready for trial, I find that in effect I try the case against myself.
Reducing what’s in one’s mind to writing is very tedious and time-consuming, of course. In fact, working on my yellow pad is the hardest part of trying a case for me. But in my opinion, it is the only way to try a complex lawsuit, and the only way to make a superior presentation of my case, as opposed to a good or merely adequate one.
For instance, in preparing my cross-examination, I might know, in my mind, what point I want to make, but it might take me a half hour of sweat on my yellow pad to work out the very best way of establishing this one point on cross. Before I ask my key question, I might decide I have to ask ten preliminary questions, and in a particular sequence. Some of these preliminary questions I may rewrite three or four times because when I examine them closely I may see that the witness might be able to discern the direction in which I am taking him.
Likewise, in preparing my final summation, I might know what point I want to make, but when I try to articulate it on my yellow pad, oftentimes my pencil comes to a stop. It’s at this moment that I realize I didn’t quite understand my point as well as I thought I did, or even if I did, I certainly realize I was unable to extemporaneously articulate the point with the clarity and power I want.
The standard explanation of lawyers who religiously avoid the pain and agony of the yellow pad is that if a lawyer does all that preparation and has everything written down, he can’t be flexible, and can’t think on his feet when something not covered by his notes occurs. If that’s not a classic non sequitur, I don’t know what is. Is instant improvisation and flexibility the domain only of those who are unprepared?
As with all my trials, I was ready for this one. There was only one difference. As opposed to every other jury murder case I had ever tried, I didn’t feel I had a “handle” on this one
. There were too many things I didn’t know. It wasn’t enough to jar my confidence, but there was a certain sense, albeit slight, of a lack of equilibrium.
CHAPTER 31
FEBRUARY 3, 1986
AT 9:30 A.M. SHARP, court clerk Kathy Harrell, who was a graduate of the University of San Francisco law school and a member of the state bar, cleared her throat and announced, “Calling criminal action 84-0546-02, The United States of America versus Jennifer Jenkins.”
“Mr. Enoki, are you ready?” Judge King asked.
“Yes, your honor. Elliot Enoki and Walter Schroeder for the United States.”*
“Mr. Bugliosi?” the judge queried.
“Ready, your honor,” I said. “Vincent Bugliosi and Leonard Weinglass for the defendant Jennifer Jenkins.”
More than eleven years had passed since the disappearance of Mac and Muff Graham…eleven long years of extensive official investigations, court proceedings, legal delays, rumor and innuendo, sensationalistic press coverage, and exhaustive prosecution and defense preparation. But finally, the murder case against Jennifer Jenkins was going to be tried.
From the defense table, I scanned the faces among the panel of sixty prospective jurors. Some looked sleepy, others mildly curious, a few resentful at being summoned from their homes or jobs for this inconvenient civic duty. Among them were the dozen men and women who would decide Jennifer’s fate.
All were seated in the gallery on polished benches lined in rows like church pews. A wide aisle dividing the rows of benches ran from the two sets of double doors at the courtroom entrance to a low wooden barrier and swinging saloon-style gate. Beyond the gate were the long tables for the prosecution, on the left, and the defense, on the right, where Jennifer sat between Leonard Weinglass and myself. Above it all rose the judge’s tall mahogany bench, beneath which the court clerk’s table squatted.
The judge read from a prepared statement. “Jennifer Jenkins has been charged with murder in the first degree in an indictment returned by a grand jury in the United States District Court for the District of Hawaii.” He read the felony-murder count first, followed by Count Two, which alleged “that at some time during the period from about August 28, 1974, to about September 4, 1974, at Palmyra Island, Buck Walker and Jennifer Jenkins, with a premeditation and malice aforethought did willfully, deliberately and maliciously murder Mrs. Eleanor Graham, in violation of Title 18, United States Code, Section 1111(a).”