“No, sir,” Stuart answered. “There were no contradictions made.”
Since I viewed Stuart’s testimony as being actually helpful to Jennifer’s defense, I asked no questions on cross-examination. It was Buck who had told the lie, not Jennifer, and she could hardly be expected to contradict him in front of Stuart and the other guests.
The next witness was Joel Peters, whom I’d been so delighted to find in attendance at the Walker trial.
Peters repeated his tale of having met Jennifer and Buck on the Big Island in 1973 and then seeing them again in early 1974 on Maui, where they were preparing their thirty-foot sailboat for a Pacific cruise. When he ran into the couple at the Ala Wai in October 1974, Peters said, “they” pointed out their boat, a different boat, at anchor in the harbor.
When Peters asked how their cruise had gone, they had talked some about Palmyra Island.
“Was there any discussion of any accident or disappearances or mishaps on that island?” asked Enoki.
“No.”
I had talked to Peters at considerable length in the past few months, and I was now prepared to try to turn him into a witness far more valuable to the defense than he’d proved to be for the Government.
I first got him to clarify that only Buck, not Jennifer, pointed to the Sea Wind, and that Buck had said, “That’s my boat.”
“Mr. Peters, you were still moored in the Ala Wai yacht harbor on the morning of October 29, 1974. Is that correct?”
“That’s correct.”
“On the previous evening—October 28th—did Buck and Jennifer come by your boat to pick up a bundle of dirty clothing of yours to take to shore with them and wash along with their clothing?”
“Yes.”
Peters stated that he was asleep aboard his boat on October 29 when he was awakened about 2:00 A.M. by Coast Guard personnel asking questions about Jennifer and Buck.
“You’re aware that around nine or ten o’clock in the morning on that same day, October 29th, Jennifer was placed under arrest?”
“Correct.”
“Before she was arrested that morning, you saw Jennifer alone in her dinghy near her boat and told her that the authorities had been by earlier looking for her and Buck. Is that correct?”
“That’s correct.”
“Shortly after you had told her that the authorities were looking for her, do you recall Jennifer coming to your boat to bring back your laundry?”
“I don’t clearly recall at this time,” Peters said, backing down on a very critical point.
“I’ve spoken to you several times in Los Angeles. Is that correct?”
“Correct.”
“Do you recall telling me, every time I have spoken to you, that after you told Jennifer that the authorities were looking for her and Buck, she came by your boat alone—not with Buck Walker—to return your clothing to you? Do you remember telling me that?”
“Yes.”
“And is that correct?”
“I believe it’s correct.”
“In any event, she did return your laundry. You got that laundry back that morning?”
“I believe so, yes.”
“And to the best of your recollection now, this happened after you informed her that the authorities were looking for her and Buck?”
“To the best of my recollection, yes.”
“Is it a fact that shortly after she returned your laundry to you, you became aware of Jennifer being placed under arrest in the harbor?”
“That’s correct.”
On re-direct, Enoki wanted to know if the laundry Jennifer had returned to Peters was dirty or clean.
“At this point,” Peters said, “I don’t remember whether it was dirty or clean.”
“Do you recall telling me previously that you thought it was dirty?”
“No, not clearly.”
The prosecutor apparently wanted to indict Jennifer for not having done Joel’s laundry as promised. The point was that Jennifer had taken the time to return the clothing even though she knew that the authorities were in hot pursuit. I would have a lot to say about this in my summation.
As Peters stepped down from the stand and passed in front of the defense table, Jennifer smiled at him and whispered, “It was clean, Joel.”
He nodded and grinned.
The Government next called Donald Stevens. The square-jawed Stevens, wearing a navy-blue sweater, looked like the quintessential man of the sea. In a husky voice, the naval architecture graduate from the University of Michigan said he designed ships for a living in Portland, Oregon. He’d logged some twenty thousand miles of ocean sailing, including a visit to Palmyra in July 1974 aboard his sailboat, the Shearwater, with his friend Bill Larson.
Asked by Schroeder to describe the condition of the Iola, Stevens responded that she was an “older-looking boat, slightly run-down.” He also noticed cracks in the fiberglass “between the wood planks,” indicating water leakage.
Stevens said he and Larson spent most of their time working on the Shearwater and exploring Palmyra. In between, they visited with the other folks on the island. Jennifer told him the Iola had leaked during the trip down from Hawaii, necessitating constant pumping. He also learned that her provisions were low. “We gave them a bag of corn flour and several tins of corned beef,” he said.
Schroeder brought out that the Grahams had on one occasion come aboard the Shearwater and that Stevens had visited the Sea Wind three times. But not once had he seen Jennifer Jenkins or Roy Allen aboard the Grahams’ boat.
Stevens said he went out on the Zodiac with Mac more than once. “He handled the dinghy very aptly. He was a competent and experienced sailor.”
The witness recalled the time he and Larson were invited by the Grahams to explore on the opposite side of the lagoon, and he and his friend had invited Jennifer. When Muff found out Jennifer had been invited, she was displeased, telling Stevens and his friend they shouldn’t have invited her.
Although the naval architect’s testimony on direct was not helpful to the defense, it was refreshing after that of the Leonards. Clearly, he was not out to “get” Jennifer. Stevens replied in a careful, thoughtful way, never offering more than he was asked. At the start of cross-examination, Len underscored this not-so-subtle difference.
“You don’t feel like you belong to either side in this case,” Weinglass said. “You’re just here to tell the truth.”
“That’s right.”
Len wanted to know if in the nine days that Stevens was on Palmyra, he had come to know Jennifer well.
“Yes.”
“Did you find her to be friendly?”
“Yes.”
Stevens, who testified he had actually boarded the Iola, repeated his testimony at Buck’s trial that although he would never have purchased the Iola, he felt the boat was “seaworthy.”
Next, Stevens refuted Jack Wheeler’s testimony that sailing from Palmyra to Fanning would have been impossible because of the prevailing winds and current. When the Shearwater departed Palmyra under sail, Stevens explained, they headed east to a point just north of Fanning, at which point they turned north toward Hawaii.
“You could have just dropped down into Fanning while under sail?”
“Yes, we could have.”
“So, in your opinion it would be possible to sail from Palmyra to Fanning?”
“Yes.”
If the Government had not called Stevens to the stand, we certainly would have had reason to do so.
In pursuance of the accidental-death possibility, Len next brought out that Stevens had been in the Zodiac when Mac was racing so fast that the nose of the craft “planed” out of the water as high as twenty-five degrees before settling down to a fifteen-degree angle. And yes, Stevens agreed, there were plenty of aggressive sharks at Palmyra.
On re-direct, Schroeder wanted to know if returning to Hawaii from Palmyra would be a more difficult sail than coming down.
“Yes, because it’s against the
wind and current.”
“Would it not be a somewhat frightening experience to be sailing a thousand miles against the wind and current on a boat that was leaking?”
Stevens didn’t answer directly, only saying that “if it was leaking, it would tend to leak more going against the wind.”
Tom Wolfe, now sporting a full beard, but wearing a conservative dark-blue suit befitting his occupation as a consulting engineer, next came to the stand.
Wolfe, who had logged “pushing forty or fifty thousand miles” at sea under sail, testified he “would not have taken a long voyage in the Iola,” that the boat “did not appear to be seaworthy to me.”
Wolfe was a critically important witness, since he and his crew mate had been the last persons to observe the relationship between the Grahams and Buck and Jennifer, just two weeks before the murders.
“Did you ever have occasion to talk to Miss Jenkins about how she and Roy got along with the Grahams?” Schroeder asked.
“Yes, she indicated to me, well, the best way to express it,” Wolfe said, “would be that both couples had come down to Palmyra expecting to live on a deserted island as the only couple, and there were other people there, and it had been an irritation to both of them. Both couples felt that the other had invaded their privacy.” Wolfe said it was his impression from talking to Jennifer that the two couples were no longer speaking to each other.
Thus far, this was the strongest* and most damaging testimony at either Jennifer’s or Buck’s trial that there was friction between the two couples, since this allegedly came from Jennifer’s own lips.
“Did Jennifer ever talk to you about the state of their food provisions?” Schroeder asked.
“Yes, she did.”
“And what did she say about that?”
“She said they were out of nearly everything. No sugar. No flour. No meat.”
“Did she mention what they had been eating?”
“Coconuts and fish.”
“And did she say anything about that?”
“She said she was sick and tired of eating coconuts and fish.”
Wolfe went on to say that Jennifer characterized her efforts to grow a vegetable garden as unsuccessful.† He said he gave Jennifer flour and sugar out of pity, and that she subsequently baked and delivered a loaf of bread to the Toloa.
Like Stevens and the Leonards, Wolfe said he’d visited the Sea Wind a number of times and had had the Grahams over to his boat, but not once had he observed such reciprocal visits between the Grahams and Jennifer and her boyfriend.
“What did you observe regarding the Sea Wind’s food supplies?” Schroeder asked.
“The Sea Wind’s food supplies made my mouth water. They had canned hams and big, whole frozen turkeys and chickens. All sorts of fancy foods, canned and otherwise. Large bags of flour and rice.”
Court now recessed, and the jury filed from the room. A few minutes earlier, during a lull in the questioning, I had gone over to Schroeder and reminded him that before he attempted to introduce Wolfe’s testimony concerning the missing rat poison, he should ask for the recess.
It was now time for the judge to resolve an issue I had raised in a written motion on the eve of trial as to whether the Government should be allowed to introduce testimony that was so prejudicial at Buck Walker’s murder trial.
“What are you going to ask the witness, Mr. Schroeder?” Judge King asked once the door to his right closed behind the last juror.
“Your honor, Mr. Wolfe had observed a fairly good supply of rat poison in a shed on the island. On the day before he left the island, he observed that the rat poison was gone. He got very concerned and he told the Grahams about this.”
Schroeder said it was important in establishing the state of mind of the Grahams. The jury might infer, he continued, that if the Grahams were aware that this rat poison had been taken from the shed, they would have been far less apt to invite Jennifer and Buck aboard the Sea Wind for dinner on August 30.
Obviously, that was not the real reason the prosecution wanted to slip in the rat-poison testimony.
“Let me hear from Mr. Bugliosi.”
“Your honor,” I said, “there’s a very cogent reason why the rat-poison testimony should not come in.” I referred to Rule 403 of the Federal Rules of Evidence, which provides that evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
“The Government realizes that the danger of unfair prejudice is great if the rat poison comes in,” I continued, “and that’s why, in their brief, they never even attempted to respond to my Rule 403 objection, even though it was the centerpiece of my brief. There is only one reason why the Government is offering the rat-poison testimony: to imply to the jury that the Grahams were poisoned to death. They want to do this by way of a free ride without producing one speck of evidence that Muff Graham was poisoned to death, and they don’t have the candor to admit that to this court.
“They want the jury to believe that the cake that Buck and Jennifer allegedly brought to Mac and Muff was laced with rat poison. At Buck Walker’s trial, they even called Shoemaker for the cake testimony immediately after Wolfe testified to the rat poison. Not a coincidental coupling of witnesses, I am sure. The court has my declaration under penalty of perjury about the enormous prejudice that most likely occurred at Buck Walker’s trial when that testimony came in—spectators in the corridor speculating that the cake was laced with rat poison.
“Their contention that they’re offering the rat-poison testimony to show that the Grahams wouldn’t have invited Buck and Jennifer aboard the Sea Wind is just pure buncombe. They don’t need it to prove that point. They have all types of other evidence, including Muff’s apparent deathly fear of Buck, the cultural differences between the two couples, and testimony that the Grahams would never invite someone aboard their boat if they weren’t present. So it should also be excluded as cumulative.”
Telling the court that with respect to the Government’s motivation, “I don’t smell rat poison here. I smell a rat,” I said the defense was “extremely concerned about this issue. I can’t tell you how serious this—”
“You don’t have to,” Judge King said. “Otherwise you wouldn’t argue.”
“But this particular issue is more—”
“Have you finished your argument?” the judge interrupted.
“Yes.”
Looking to the Government lawyers, Judge King asked deadpan: “Any rebuttal?”
Schroeder acknowledged that the defense would be entitled to a cautionary instruction from the court that the rat-poison evidence be considered by the jury only as it related to the state of mind of the Grahams. “But Mr. Enoki is familiar with the forensic evidence on whether or not poison was found in the skeletal remains of Mrs. Graham.”
“Well, there wasn’t any found, was there?” asked the judge.
Enoki now stood next to his co-counsel. “We have no evidence of poison in the bones,” he admitted.
Judge King was ready to make a ruling. “I’m satisfied that the rat-poison testimony should be excluded in this case for the reasons Mr. Bugliosi gave. You already have all the state of mind you need, and also, this particular piece of evidence is more prejudicial than probative on that issue. I will sustain the objection to the evidence about the rat poison. Let’s call the jury back.” It was a crucial victory for the defense.
From my several telephone interviews with Wolfe, on cross-examination I put him in the same “fair and factual” category of Government witness as I did Don Stevens and several others. I knew he would allow me to extract a number of points favorable to Jennifer.
First, I elicited Wolfe’s testimony that he became aware while he was on Palmyra that on occasion Mac Graham would bring some of the fish he caught over to Buck and Jennifer. Next, I established that Wolfe had been in the Graham’s Zodiac dinghy many times. Asking Wolfe to stand up and take a look at the aluminum box found next to Muff’s
remains, I asked if the container would fit inside Mac’s Zodiac.
“It would be bulky, but you could get it in.”
Moving along, I asked a series of questions the answers to which would help me make the argument in summation that Buck Walker not only murdered Muff Graham, but he did it alone and without Jennifer’s knowledge:
Was it the witness’s impression, I asked, that Buck slept alone in his tent on the island at night and Jennifer slept aboard the Iola? (Jennifer, of course, would herself testify that Buck lived on shore, but independent corroboration was important.)
Wolfe retreated a tad from the positive statement he had made to me during my interviews of him. “That was my impression,” he said, “but I never saw any conclusive evidence of that.”
I next showed the witness Buck Walker’s .22 revolver, which had been found on the Sea Wind when it was searched by authorities in the Ala Wai harbor. “This was the revolver you saw Buck Walker remove from his tent before you went fishing?”
“That’s correct.”
In the argument I had already crafted, I needed to show that the revolver Buck had on Palmyra was taken by him aboard the Sea Wind back to Honolulu.
I asked Wolfe about the time he and the Grahams had gone exploring and Mac, anticipating a return after dark, had turned on the Sea Wind’s masthead light. Wolfe confirmed the incident, noting that it was particularly important at Palmyra to leave lights on in the event of a planned return after sunset because the island was close to the equator. “Once the sun started to go down,” he added, “darkness fell very quickly.”
“It’s true, is it not, that from where your boat and the Iola were situated, looking toward shore, you could not see anything at all, except heavy foliage and vegetation?” I asked.
“Well, as I recall, that’s correct, yeah.”
I next elicited that it was no exaggeration to say that “millions of birds” lived on Palmyra and were very noisy.
I now moved on to other matters:
“Where was Mac’s workshop located in relation to the Sea Wind?” I asked.
“The workshop was very close to the Sea Wind, fifty feet maybe. But you had to walk into the trees to reach it.”