“Mr. Enoki, you have the opening statement for the prosecution?”
“Yes, your honor.”
In the opening statement, a lawyer gives the jury an overview of his case and tells the jury, before the commencement of the evidence, what he intends to prove by that evidence.
Placing a legal pad filled with neat handwritten notes atop the podium, the usually sober-countenanced Enoki allowed the corners of his mouth to curl in a slight smile, said good morning to the jurors, and began the prosecution of Jennifer Jenkins for the murder of Muff Graham.
After giving a brief history of Palmyra, he rolled a portable television in front of the jury and showed a videotape from a flight over the island. Next, he began homing in on the events of 1974, pointing out that it took Jennifer and Buck almost twenty days in their “weathered vessel” to reach Palmyra—twice as long as the trip normally took.
“The Iola was battered during this trip, and arrived at Palmyra leaking and without a working engine.”
He went on to assert that the unseaworthiness of the Iola effectively marooned Miss Jenkins and Mr. Walker on Palmyra, absent other transportation.”
He continued, “In addition, the Iola was not stocked with enough supplies, and Miss Jenkins began bartering for food, and asking others on Palmyra for supplies. By the end of August 1974, food supplies aboard the Iola had dwindled to the point that they were even out of staples like flour.”
In contrast, Enoki described the Grahams’ “unique and immaculate” Sea Wind and her well-stocked stores.
“The relationship between the two couples had deteriorated by August to the point where they barely associated. Miss Jenkins and Mr. Walker were not seen by others aboard the Sea Wind at Palmyra, although other visitors arriving after them were invited aboard the Grahams’ vessel. Muff Graham even said that she did not trust Miss Jenkins or Mr. Walker. In addition, there was a fear of Mr. Walker and Miss Jenkins. In fact, Muff Graham—”
I sprang to my feet. “Your honor, before we proceed any further, I think there should be an offer of proof [outside the presence of the jury]. He seems to be getting into hearsay that he’ll be unable to prove.” I knew Muff Graham had been afraid of Buck Walker, but no one had ever reported that Mac or Muff had also been afraid of Jennifer.
Enoki withdrew his remark before the judge even ruled on my objection.
In his low-key delivery, Enoki told the jury they would hear from Curt Shoemaker about his last radio contact with his friends on Palmyra.
As soon as the Sea Wind reached Hawaii in October, Enoki continued, it was promptly repainted. “Mr. Walker removed the name Sea Wind and reregistered it as the Lokahi. Miss Jenkins made no mention of the Grahams or their disappearance to anyone they met. Instead, they told some people the Sea Wind had been won in a gambling game.”
In recalling Jennifer’s arrest, Enoki brought out her flight from the authorities in the Ala Wai harbor, and the many inconsistencies in her story.
Enoki concluded by saying that after all the evidence was in he was confident the jury would “find Jennifer Jenkins guilty of murdering Eleanor Graham.”
With that, he took his seat.
Len Weinglass next delivered a solid forty-five-minute opening statement for the defense. His courtroom demeanor was friendly and pleasant; he was rather like a favorite uncle sharing an engrossing tale with family members at the Sunday dinner table. He spent some time talking about why Jennifer had every reason to believe that the Grahams had died in a boating accident. “Based on what she saw—the Zodiac overturned on the beach—she believed there had been some kind of mishap in the lagoon: that the Grahams either fell out of their dinghy, had an episode with the sharks, or the boat rammed an object and turned over.” Weinglass told the jury that on Palmyra, Jennifer “had no reason to suspect Buck Walker of doing anything wrong, if in fact Buck Walker did.” My co-counsel was not completely abandoning the theory that Muff Graham might have died an accidental death.
The Sea Wind under sail, San Diego. From the collection of Kit Garham McIntosh.
Muff Graham in Tahiti, 1962. From the collection of Kit Graham McIntosh.
Mac and Muff Graham aboard the Sea Wind in Aden, 1964. From the collection of Kit Graham McIntosh.
Buck Walker making repairs to the Iola.
The faces of Buck Walker. Credit: David Shapiro
Birds over the airstrip at Palmyra.
Aerial view of the lagoon at Palmyra Island, showing airstrip, top right, and channel, bottom left.
The coastline of Palmyra.
Mooring site of the Sea Wind at Palmyra, looking southeast.
Hermit crabs on a dead fish.
The “dolphins” (in the distance) in the lagoon where the Iola was moored.
The Sea Wind at Palmyra, with Muff on deck and Mac in the Zodiac.
Jennifer Jenkins with Puffer, aboard the Iola. Defense exhibit.
Buck’s tent.
Strawn Island, where the bones were found.
An investigator testing the stability of the Zodiac in the lagoon.
Sharon Jordan, at the bone site.
The skull.
The coffin.
In discussing the discovery of the bones by Sharon Jordan, Len said, “No one can tell any of us how the container precisely got to where it was found or how long it had been there. Inside the container there is evidence of charring. But I don’t believe anyone can tell us when that fire occurred. That container had been on the island for seventeen years prior to 1981. And the experts will say: ‘I can tell you there was a fire, I can’t tell you when.’
“The skull is white,” Weinglass continued, “indicating intense heat. But it could have occurred while there was flesh on the skull, or years later when the flesh was off, and the skull was in sand, and someone applied heat to that part which might have been sticking out of the sand. Is it conceivable that the skull was burned years later by someone else? This is the mystery within a mystery in this case.”
Len promised that the defense would produce a witness who had boarded the Iola at Palmyra and considered it to be seaworthy. “Other people will tell you they didn’t think the Iola was seaworthy. But they weren’t on it. The man who was on it, Don Stevens, will tell you the boat was seaworthy.”
I waited for the prosecution to object, but both Enoki and Walt Schroeder remained silent. Although a lawyer is forbidden from arguing the evidence during opening statement, my co-counsel, like the seasoned trial lawyer he is, had done just that (“But they weren’t on it”) and gotten away with it.
“I think the believable evidence in this case will show that there was no threat of starvation on Palmyra. That Buck and Jennifer had a boat they could have gotten to Fanning on, and they were planning such a trip to get food. And that there was no open hostility between Buck and Jennifer and the Grahams.”
Len concluded by saying that after the jury heard all the evidence, he was “convinced” they would conclude she was not guilty.
AFTER THE noon recess, Palmyra Island caretaker Jack Wheeler was called to the stand by Walt Schroeder as the Government’s first witness.
As at the Walker trial, it soon became apparent that Schroeder, for the most part, would get the Government’s case into the record, while Enoki would handle the bulk of the cross-examination and argue the case to the jury. At all times, both lawyers showed conventional prosecutorial deportment; somber and brimming with righteous indignation.
“Based on your experience as a sailor and your observations of the Iola, what condition was the boat in?” Schroeder asked.
“I would have to say it was run-down,” answered Wheeler, adding irritably that he’d heard a pump on the Iola pumping water out of the bilge every single day he was on the island, indicating that even in the protected waters of the lagoon, the Iola was constantly leaking.
“Mr. Wheeler, did you ever talk to the defendant in this case, Jennifer Jenkins, about her going to Fanning Island, one hundred and seventy-five miles sout
heast of Palmyra, to obtain food?”
“I did.”
“Do you recall what you said to her?”
“I told her that sailing against the two-knot current which prevails there, and since it’s also against the wind, would make it impossible.”
“Do you recall what else you told her?”
“Then I suggested, as an alternative, Samoa, which would have been fairly simple, although much further—about fifteen hundred miles away.”
“I believe you had a Drake transceiver on your boat similar to the one aboard the Sea Wind?”
“That’s correct.”
“Now, did the defendant, Jennifer Jenkins, ever come aboard your boat and use your two-way radio?”
“One time.”
“And did you show Miss Jenkins how to use that radio when she came aboard?”
“No.”
“Did you show her how to operate the push-to-talk switch?”
“No.”
Jennifer had told the FBI’s Calvin Shishido that she did not contact the authorities when the Grahams first disappeared because neither she nor Buck knew how to work the Sea Wind’s radio. (The Iola, of course, had no ship-to-shore radio.) But the testimony Schroeder had just elicited suggested that Jennifer did know how to use the type of two-way radio aboard the Grahams’ boat.
I leaned over to ask Jennifer if she’d ever gone aboard Wheeler’s boat to use his radio.
Quite casually, she replied she hadn’t.
“Didn’t you hear what he just testified to?” I whispered more urgently.
She shrugged. “He’s obviously wrong.”
“How’s the jury going to know that, Jennifer?” I said curtly.
“No further questions,” Schroeder soon announced.
Court adjourned for the day, and I pursued Wheeler into the hallway, where I told him in front of a gathering group of spectators that Jennifer unequivocally said she’d never used his ship-to-shore radio.
“I never said she did,” he answered gruffly.
I was taken aback. “Well, you certainly strongly implied that in your testimony just now, Mr. Wheeler.”
Wheeler shrugged. “I called for her.”
At that moment, the prosecutors stepped into the hallway. I called to Schroeder, who frowned and came over.
“Walt, this witness is saying that Jennifer did not ‘use’ his radio. She ‘used’ it only in the sense that Wheeler operated it for her benefit. You elicited testimony that indicated to the jury that she personally operated it.”
“I told you she never operated the radio,” an annoyed Wheeler said to Schroeder.
Schroeder nodded in agreement.
The Government lawyer, knowing all along that Jennifer had never operated Wheeler’s radio, had posed his questions in such a way as to create the impression that she did.
“Is there any question in your mind now, Walt, as to what the true facts are?” I asked Schroeder.
“No,” the prosecutor said.
“When Mr. Wheeler testifies on redirect tomorrow, I want you to bring this out immediately in front of the jury,” I said with obvious irritation in my voice. The jury had been deliberately misled on a not too insignificant matter.*
The first night of the trial was a typical one for me. I worked well into the early-morning hours polishing and modifying the lists of questions I’d be asking on direct and cross-examination.
I also waited up each night for that day’s transcript to be delivered to my hotel by the court reporter as soon as his assistants finished typing up and copying the two-to-three-hundred page document. Sometimes it was as late as two or three in the morning when the front desk clerk would call and say a package had arrived for me. Reading the “dailies” is very helpful in preparing for the next day’s examination of witnesses. Important words that somehow elude you when uttered in court are seen for the first time.
I also worked every night fine-tuning my final argument, and would do so right up until the moment I stood for summation.
Trials require considerable physical stamina on the part of all involved.
With a life in the balance, there was little time now for rest.
CHAPTER 33
WHEN JACK WHEELER WENT back on the stand the next morning, Len Weinglass began his cross-examination by establishing that the oldster had always found Jennifer to be pleasant.
Asked if it was true that Jennifer had baked several cakes for the Wheelers during the ten days before their departure from Palmyra, the witness said he thought she had baked only one for them. When Len pointed out that at Jennifer’s theft trial Wheeler had testified she had baked “several very good cakes” for his family, the witness allowed that his memory of such culinary events was probably better in 1975.
The old military rescue boat was still sitting in a warehouse when he accompanied the search party to Palmyra in November 1974, Wheeler said.
“Did you check to see if all four containers were still in the holes in the rescue boat?”
“I did not.” Weinglass was planting another seed that maybe, just maybe, the murders had not taken place while Buck and Jennifer were on Palmyra a few months earlier.
Regarding his assessment of the Iola’s “run-down” condition, Wheeler admitted he’d never actually set foot on the vessel. As for the daily pumping, he offered that, given the length of the voyage down from Hawaii and the age of the boat, water in the Iola’s bilges wouldn’t have been unusual. “It was no big deal,” he shrugged.
It was obvious that Wheeler was not the most credible of witnesses. For instance, he had testified in 1975 that the prevailing winds at Palmyra around the time of the year in question are “easterly,” while under direct examination by Schroeder he described them as “northeasterly” winds. When asked to explain by Weinglass, Wheeler blithely responded, “A knowledgeable person would know that in the northern hemisphere, if I said easterly, we’re talking about northeast.” (Actually, per the Government’s meteorologist, Dr. Ramage, who testified at the Walker trial and would testify at Jennifer’s trial, the prevailing winds around Palmyra in August and September are southeast trade winds. Since Fanning lay southeast of Palmyra, sailing from Palmyra to Fanning would therefore be directly against the wind.)*
When it came to Len’s challenging Wheeler’s opinion that a Palmyra-Fanning trip would be “impossible,” however, the experienced sailor hung tough.
“When Jennifer mentioned her plans about going to Fanning for supplies, it’s true, is it not, Mr. Wheeler, you told her the trip would be difficult?”
“Very difficult.”
“But you didn’t tell her it would be ‘impossible’?”
“I don’t know the exact words,” Wheeler said.
“You can’t tell the court or the jury that you told Jennifer that it would be ‘impossible’ to go to Fanning.”
“I couldn’t say. I think I was trying to tell her that she couldn’t make it.”
Len and I had elected not to wait for Walt Schroeder’s correction of Wheeler’s testimony about Jennifer’s presumed operation of his radio.
“Do you recall having a discussion with Mr. Bugliosi after court yesterday?”
“I know I talked to him.”
“Did he ask you if Jennifer Jenkins ever used the radio on your boat?”
“I think I did the talking for her. She just told me what to say, I believe.”
“To your knowledge,” my co-counsel said, “she didn’t even know how to use your radio.”
“That’s correct.”
As Len took his seat, Jennifer was smiling. My own gratification would be short-lived.
On redirect, Schroeder asked Wheeler the subject of the message he’d sent over the radio for Jennifer.
“It was in regard to another boat coming down with food. I don’t know who we were talking to.”
“Do you recall where you were sending the message to?”
“It was to Honolulu.”
Unbelievable. Overnight, t
he Government had developed testimony that was even more incriminating than what had just been retracted. If Wheeler was right, within just days of the Iola’s arrival at Palmyra in late June the food shortage aboard the Iola was already so urgent that Jennifer needed to radio for more supplies immediately.
Jennifer scrawled a note and put it in front of me. “Did not send radio message in June. Jack confused.”
Based on our knowledge of the case, Len and I agreed with Jennifer, but after huddling, we decided not to challenge—on recross—Wheeler’s latest testimony. With Wheeler, things could get worse for us before they got better. Instead, we hoped the jury would accept our chronology of events and clarification of the matter through later testimony.
WHEELER WAS dismissed, and outside the presence of the jury, Judge King asked both sides where we stood on the latest polygraph issue.
There had been an earlier discussion as to whether the defense could bring out Jennifer’s acceptance of a Government offer made way back in 1974 for her to take a polygraph examination.
Jennifer told me that though both Buck and she had initially agreed to take the test, Buck had later decided against it. She said she had been willing to go ahead, however, but the Government said the offer applied only if both went along.
Enoki had earlier asked the judge for time to research the Government’s position on this issue and had made several phone calls to Hawaii. “From what I gather,” he now reported, “the prosecutor in the theft case agreed to give a polygraph” to both Jenkins and Walker. Indeed, the Government flew in an FBI polygraph operator and, following standard procedure, furnished a list of questions to the couple. “After reviewing the questions, Mr. Walker decided he didn’t want to take the polygraph and refused to do so,” Enoki said. “And after Mr. Walker’s refusal, Miss Jenkins also refused to submit to the test.”