“That’s correct.”
I next got Leonard to concede that he had seen Jennifer and Buck gathering such food as land crabs, coconuts, and palm hearts, and that edible mullet and papio were available in the lagoon.
I asked Jennifer to stand up. “The last time you saw Jennifer on Palmyra, did she appear to be about the same weight as she is right now, Mr. Leonard?”
“That’s correct.”
As she stood now before the jury, Jennifer, although not at all heavy, did not look as if she’d missed too many meals. How deprived of food could she have been back then?
I moved on to Leonard’s description of Buck to the FBI. “You described him as being around six feet two inches tall, muscular, medium to long-length hair, wearing dark glasses, having tattoos and some front teeth missing.”
“That sounds like my description.”
“Not the type of person you would like to meet in an alley, much less on a deserted island like Palmyra. Isn’t that correct?”
“I had no fear of Buck Walker. I had no feelings that way,” Leonard said without hesitation.
This was a shrewd answer. Leonard sensed that I was trying to separate Jennifer from Buck and didn’t want me to get away with it. But I had brought out before the jury a physical description that made Buck sound like a very coarse, rough-hewn individual, precisely the image I wanted as I unofficially prosecuted him at Jennifer’s trial.
I asked Leonard if he considered himself a law-abiding citizen who believed in certain principles upon which this country and its Constitution were based.
“Yes.”
“Among those principles is the presumption of innocence. Is that correct?”
“Without having knowledge of the facts, yes,” Leonard said alertly.
“Concerning knowledge of the facts,” I responded, “at the time of the disappearance of Mr. and Mrs. Graham on Palmyra on or about August the 30th, 1974, you were about a thousand miles away. Is that correct, Mr. Leonard?”
“That’s correct.”
I had no further questions.
HAD THE toilet-flushing incident and Jennifer’s conversation with the Leonards about not leaving Palmyra on the Iola, two important, counted-upon pieces of evidence against Jennifer, really taken place? On re-direct, a worried Schroeder made a shaky effort to rehabilitate Leonard’s credibility on these issues.
“Mr. Leonard, on October 29th, the day that Jennifer was apprehended, would it be safe to say that things were pretty hectic around the Ala Wai that day?” Schroeder asked, his voice steeped with concern.
“That’s true.”
“A lot of people were running and scurrying around?”
“That’s true.”
I didn’t feel the need to belabor before the jury on re-cross a point they had already heard: even if the hectic situation somehow caused Leonard not to mention these two incidents on October 29, he had had numerous other opportunities during the following years to do so, and hadn’t.
After four hours on the stand, Bernard Leonard was dismissed, ending his nearly twelve-year campaign to do what he could to see Buck Walker and Jennifer Jenkins tried and convicted of murder on Palmyra.
We were at the end of the day. Judge King had handled the cross-examination like a real pro, and after the jury left the box, I told him so.
The judge gave me a smile, but it was forced.
We were no longer friends, that much was clear.
CHAPTER 34
FEBRUARY 6–7, 1984
BEFORE EVELYN LEONARD TOOK the stand the following morning, there was a lively discussion regarding the Government’s intention to ask about her last conversation with Muff Graham in which Muff allegedly told her that she was in fear of her life and knew she would not leave Palmyra alive. This dramatic testimony was inadmissible hearsay unless, as the prosecution was arguing, the state-of-mind exception applied.
Walt Schroeder recalled Mrs. Leonard’s account of her friend’s fears and her desperate weeping. “We would argue to the jury that obviously a woman in the state of mind Muff Graham was in would never have extended a dinner invitation to Walker and Jenkins on August 30, 1974.”
(The reason the Government would continue to make, throughout the trial, a concentrated effort to prove that no dinner invitation was ever made—and that if Buck told Jennifer it had, she would have had no reason to believe him, as she claimed she did—is that when Jennifer testified about the dinner invitation, they could argue she made the whole story up. And if she was lying about the dinner invitation, she undoubtedly was involved in the murders.)
“We will not offer evidence that there was a dinner invitation,” I responded, “only that Buck told Jennifer there was.” Since both sides agreed there was no invitation, I argued, Mrs. Leonard’s inflammatory testimony should not be allowed. “This exception to the hearsay rule requires that Muff Graham’s state of mind be in issue, but there is no such issue here because we agree there was no invitation.”
The judge went against me, and ruled that the jury could hear about the dramatic conversation.
My last hope was to somehow restrain Mrs. Leonard from volunteering her biased opinions throughout her testimony. I remarked to the judge that I thought she was even more biased than her husband, “if that’s possible.”
Judge King well remembered Evelyn Leonard’s demeanor during her testimony in the three previous trials. “She was emotionally involved as long as she was on the stand,” he said.
When Evelyn Leonard took the stand, it didn’t take long for me to see she was a different woman from the Walker trial. Her words were the same, but her delivery was not nearly so emotional and animated. She spoke with a flat intonation that suggested she’d taken something to calm her nerves. Len whispered to me that her husband’s undoubted report to her of what he had been put through on cross-examination had probably had an effect.
Not that she wasn’t still biased. When Schroeder asked if she’d ever gone aboard the Iola, instead of simply answering no, she said quietly, “Never.”
Although more precise and organized than Enoki, like his fellow prosecutor, Schroeder lacked flair, even more so. He was obviously content to be a competent legal technocrat. Well-prepared for his witness, as usual, he methodically elicited from Mrs. Leonard everything he and Enoki felt the prosecution needed in their effort to convict Jennifer, deftly placing each piece in the mosaic of evidence against her. Some testimony overlapped with what the jury had already heard. Obviously, the Government wished the repetitions to have a cumulative effect by trial’s end.
Once again, the jury heard the very damaging (if believed) testimony that Jennifer had vowed never to leave Palmyra on her leaky craft—“She said, ‘There’s no way I’ll leave on the Iola,’” Mrs. Leonard recited softly. “She was very definite about that.”
To her, Buck was an eerily frightening figure. “I would be scrubbing the decks or doing something topside and he would row past our boat. I would speak to him but he would never acknowledge me. Never speak back. He’d just watch what I was doing, making me uncomfortable.” (In my “prosecution” of Buck, this was testimony I intended to elicit on cross-examination. Why the prosecution elicited it, or felt it was helpful to their case, was never made clear.)
“How many times did this happen?”
“Many times,” she said, with an involuntary shiver. “At least ten times.”
“Was it your original intention to stay on Palmyra for two weeks?”
“No. We had planned on spending the summer there.”
“For some reason you decided to leave early?”
Mrs. Leonard paused pensively, her fingers playing with the string of faux pearls around her neck. “I felt uncomfortable. I felt threatened. I suggested to my husband that we leave.”
Even during the worst weather she had ever observed while at Palmyra, the waters of the lagoon were calm, Mrs. Leonard explained, never more than a one-foot chop.
Now Schroeder wanted to know about her l
ast conversation with Muff.
“I was…I was quite…This is so hard.” Mrs. Leonard swallowed with effort, evidently fighting a strong surge of emotion. “I was fairly anxious about the situation. And I knew Muff was very anxious. I asked her if she couldn’t try to leave…try to persuade Mac to leave Palmyra.”
“Did you tell her why she should leave?”
“Yes. I said this was not a safe place to be. It would be wise if they would leave.”
“Do you recall how she responded when you told her this?”
“She…she was crying. She would have liked to have left, she said. But Mac was not interested in leaving.”
“And did she say anything else?”
“She was afraid for her life. She said she knew she would not leave the island alive.”
Schroeder let this answer reverberate.
Expressions in the jury box varied, from the usual stony face of Frank Everett, whom I had named the “Kansas Rock,” to an elderly woman juror sadly shaking her head. A younger woman juror looked on the verge of tears. A couple of the jurors looked squarely at Jennifer—probing, analyzing.
The prosecutor’s final line of questioning concerned Jennifer’s famously lengthy visit to the rest room. Mrs. Leonard had little to add, testifying that she went in to check on Jennifer, who emerged from a stall, purse in hand.
Although on direct examination of my own witness I normally ask questions in a reasonably predictable chronology, on cross-examination I purposefully skip about from issue to issue, trying to keep the other side’s witness off-balance and distracted from what’s coming next.
I began my cross of Mrs. Leonard by making a guess. If wrong, I had nothing to lose.
“Mrs. Leonard, at the time you left Palmyra, you were running low on provisions, were you not?”
“We had enough provisions for our return to Hawaii.”
“And that was about it?”
“That was about it.” (I had guessed right.)
“Now, if you had stayed the entire summer, since you still had to get back home, how were you going to get by on such low provisions?” I asked.
“All right. We fish. We eat what is available, as we had suggested to Jennifer—coconuts, crabs, and so on.”
“So you had originally intended to live off the land on Palmyra, is that correct?”
“We would supplement our stores with food that we found, yes. Which we did.”
Some yardage had been made. However, unlike Buck and Jennifer on the Iola, the Leonards could have easily motored at any time to Fanning, or Christmas, or some other island for provisions.
Since I suspected that, like her husband, she had developed and nurtured her negative feelings about Jennifer in the twelve years since Palmyra, and after the fate of the Grahams became known, I asked her about the letter Jennifer had given her and her husband to mail to Sunny Jenkins. She acknowledged this.
“And you did in fact mail that letter for her, did you not?”
“I did not.”
Mrs. Leonard explained that for some reason she would “never know,” she had decided to keep the letter “in a drawer in the cabin of our boat.”
Score a point for the prosecution. I had fallen into that one.
(A legal maxim which I reject out of hand is this: “Never ask a witness a question unless you know what the answer is going to be.” While this legal caveat is valid for direct examination of one’s own witness, it clearly is not always valid for cross-examination. Although the ideal situation would be to know, in advance, what the adverse witness’s answers to all of your questions are going to be, the reality is that inasmuch as you frequently have not had an opportunity to interview the witness [as was the case with Mrs. Leonard, whose husband, at Buck Walker’s trial, had requested that I not interview her when she left the stand], of necessity, cross-examination often is a trek through new terrain, and experience, caution, and instinct are one’s only guide. With Mrs. Leonard, my instincts proved faulty. I would accept this antiquated commandment only if it were amended to read: “Never ask a question concerning a matter critical to your case without being reasonably sure what the answer is going to be.”)
On more than one occasion I had asked Jennifer to give me all of the letters she’d sent to her mother from Palmyra. She hadn’t done so, and I’d neglected to keep after her. It turned out that the only letter her mother had not received was the one Jennifer had given the Leonards to mail.
Mrs. Leonard’s surprise answer tended to show that way back in 1974 she had already had uneasy feelings about Jennifer and Buck, and that her ill feelings about the Iola couple were not completely of recent, and hence contrived, origin.
Nonetheless, I was able to elicit from Mrs. Leonard that the Leonards had given Jennifer some oil and flour on Palmyra, and that they and Jennifer had exchanged books. She also confirmed her husband’s testimony that she had had a number of friendly chats with Jennifer. All of this suggested normal, casual, even amiable relations—particularly with Jennifer—in the summer of 1974, not rampant, pervasive ill will.
I was now ready to handle Jennifer’s alleged comment that she would never leave Palmyra on the Iola. “If I sound a little harsh in my questioning of you, Mrs. Leonard, please know that I feel nothing but tremendous sorrow for what happened to the Grahams,” I began. “You realize, Mrs. Leonard, that although Buck Walker and Jennifer Jenkins were together on Palmyra, he and she are two separate and distinct people in the eyes of the laws? You realize that, do you not?”
“Yes.”
I asked if she had considered Jennifer’s comment “a potentially threatening statement or in any way foreboding to the other boat owners on the island.”
“I felt she meant what she said.”
“I repeat. Did you think it was potentially threatening to the other people on the island?”
“Well, it threatened me. It was a threatening remark. I discussed it with Mac and Muff.”
“So, at the very moment Jennifer said it, it sounded a little foreboding to you, frightening. And you felt a potential danger to the other people on the island?”
“Yes, I felt threatened myself.”
“Mrs. Leonard, you were interviewed several times by the FBI agents in this case, were you not?”
“Yes.”
“When you spoke to the FBI, you certainly wanted to help them, did you not?”
“Of course,” she answered somewhat indignantly.
“You wanted to give them information that would aid them in their investigation into the disappearance of the Grahams. Isn’t that correct?”
“We helped them in any way possible.”
“Now, inasmuch as you felt that Jennifer’s statement about never leaving Palmyra on the Iola was a threatening one, can you tell the judge and the jury why you never, at any time, told the FBI about what Jennifer allegedly told you?”
“We answered questions we were asked.”
If she could replay her husband’s testimony, I could repeat my previous line of cross-examination.
“So, if they didn’t ask you the specific question ‘Mrs. Leonard, did Jennifer ever tell you that she would never leave Palmyra on the Iola?’ you would not have told them. You would never have volunteered this information on your own to them, is that correct?”
She was digging in. “I would have answered what they asked me.”
“But, Mrs. Leonard, how could the FBI possibly ask you about this alleged statement that Jennifer made to you? How would they know if you didn’t tell them?”
“I didn’t tell them…I wasn’t asked. If…I don’t understand what you’re trying to get at.”
“Well, how could the FBI ever find out about this threatening remark that Jennifer allegedly made if you didn’t tell them?”
Mrs. Leonard, her face watermelon-red, became flustered. “I had told…Okay. What…what I had told…You don’t understand what I’m trying to say to you. If you’re asked something, you respond, just like I’m trying t
o do with you. If you feel things, it’s very difficult to put that across unless you’re asked. Okay? At the time we left Palmyra, and I was with Muff, this was a very difficult time. Because we were leaving that place, and we…we shouldn’t have left, so…”
Her rambling incoherence was evident to everyone, and having achieved my aim, I helped her out of her tangled syntax by asking another question. “Do you know a lawyer by the name of William Eggers, formerly an Assistant U.S. Attorney?”
“Yes. I met him in the first trial.”
I asked her why she had not mentioned Jennifer’s statement when he interviewed her before calling her as a witness in that trial.
“He didn’t ask,” she responded, eyes narrowing.
“But Mrs. Leonard, again, how could he ask you? He wasn’t there on Palmyra, you were.”
“I just didn’t tell him.”
I stuck to the same theme in questioning her about the toilet-flushing incident, bringing out that the first time she had told anyone about this incident was a year earlier, when Walt Schroeder and the FBI’s Hal Marshall had visited her home in Kauai.
“That would have been ten years after all this supposedly happened. Is that correct?”
“Yes,” she said coldly.
When she finally stepped down from the stand, Evelyn Leonard gave the Government lawyers a friendly if wan smile as she passed by. There would be only two other prosecution witnesses whose credibility I’d try to impeach in the same way I had the Leonards’, but it would be days before I would face Curt Shoemaker and Calvin Shishido.
In the meantime, there were other Government witnesses called to the stand, such as Joseph Stuart, the appliance-store owner who again testified that Buck told him the new sailboat was won in a chess game. The white-haired Stuart said Jennifer was within earshot of this conversation.
“During the afternoon, did Miss Jenkins say anything to you that was contradictory to Mr. Allen’s statement about how they acquired the boat?” Elliot Enoki asked.