“Because of the potential for this visceral inclination towards the prosecution, I want to provide you with evidence that if this inclination exists, it is unwarranted. That although the prosecution in this case wants a verdict of guilty, which is perfectly proper on their part, the United States government only wants justice, be it a guilty or a not guilty verdict.
“The United States Attorney’s Office, which is prosecuting this case, is under the U.S. Department of Justice, and the head of the Department of Justice is the Attorney General of the United States. On the fifth floor of the Department of Justice building in Washington, D.C., in the Attorney General’s rotunda, there is this inscription: “The United States wins its case whenever one of its citizens receives justice in the courts.’ The inscription does not say: ‘The United States wins only when a defendant is found guilty.’
“Talking about justice and our system of law, in our country, as opposed to most totalitarian nations, under the law a defendant is presumed to be innocent unless† the contrary has been proven beyond a reasonable doubt. Now these aren’t just fancy, theoretical words. This is a rule of law which has no exceptions to it, a legal jewel that has been cut and polished by the hard experience of centuries, and which has come down through the ages right here into this courtroom.
“And if any judge, or any jury, in any case throughout this land, ignores this strict rule of law, it would be a very serious violation of their respective oaths.”
After telling the jury that because of the presumption of innocence the prosecution has the burden of proving guilt, a defendant no burden to prove his innocence, I told the jurors that Judge King would instruct them before they commenced their deliberations that this burden of proof remains with the prosecution throughout the entire trial; that it never shifts to the defendant. “These are key words,” I said. “The burden of proof never shifts to the defendant.
“But a very strange—and I say ominous—thing has occurred during this trial. Without directly stating it—they can’t state it directly because they know it’s contrary to the law—hasn’t the prosecution, in a very subtle, clever way, tried to eliminate the presumption of innocence by shifting the burden of proof to Jennifer Jenkins? When all the dust has settled, hasn’t the entire thrust of the prosecution’s case been—in effect: ‘We don’t have to prove, Miss Jenkins, that you murdered Muff Graham. We’ve put you on the island of Palmyra at the time of the murder, and we’ve put you on the Sea Wind after the murder. Now, you prove that you did not commit the murder.”
“I say that the prosecution has been forced to try to shift the burden of proof to Miss Jenkins because their case is so devoid of substance that it is the only way they feel they can convince you to convict this woman.
“And I tell them that this is America,” I said in a loud voice, pumping my right forefinger into the air, “that the presumption of innocence is a very sacred right in our society, that it is still alive and well and kicking, and you’re not going to let them get by with it.
“The prosecution in this case did not meet their burden of proof. They didn’t even begin to overcome the legal presumption of innocence. In no way did they prove guilt beyond a reasonable doubt. Where is there any evidence, ladies and gentlemen of the jury, either direct or circumstantial, that Jennifer Jenkins participated in any fashion whatsoever in the murder of Mrs. Graham? Where, ladies and gentlemen of the jury? Where?”
I told the jury that before I got into the heart of my argument, I wanted to discuss a number of preliminary matters with them which did not fit comfortably into any of the main areas of my summation.
I urged them to take notes, quoting an old Chinese proverb I always give juries that “the palest ink is better than the best memory.”
THE FIRST preliminary matter was the nature of a grand jury indictment. I knew that the jury, being lay people, could very well assume that since a “grand jury” had indicted Jennifer, this previous group of people, carefully considering all the evidence, had already decided she was guilty. And wasn’t the grand jury “some super investigative body” with access to all types of information a trial jury did not get?
“Actually, just the opposite is true,” I explained, reinforcing and elaborating on what I had told the jury during voir dire. “You folks get considerably more evidence than a grand jury. In this case, not only didn’t Miss Jenkins nor any other defense witness testify at the grand jury, but the only prosecution witness at this trial who also testified before the grand jury—the only witness—was Calvin Shishido.
“I’m not demeaning the grand jury,” I said. “I’m simply placing it in its proper perspective for you.
“Next, I want to discuss what arguably could be an extremely important issue; that is, if I wanted to engage in intellectual sophistry with you, which I of course will not do. And that is the issue of whether Muff Graham was murdered, or whether she met an accidental death.
“Mr. Enoki has argued with conviction that Muff Graham was murdered. To which I reply, ‘Of course she was.’ As Sherlock Holmes used to say to his sidekick, ‘That’s elementary, my dear Watson.’”
I went on to say, however, that the peculiar facts of this case were such that a defense attorney could at least make the argument, however anemic, that the prosecution had not proved beyond a reasonable doubt that a murder had taken place. “In virtually every murder case, you know a murder took place because the autopsy shows the cause of death. In this case, we don’t have that. In fact, the prosecution concedes they do not know the cause of death of Muff Graham.
“I’m sure I could come up with several scenarios that point to an accidental death. But I don’t think any of them would be sound, logical arguments rich in common sense.
“The evidence, I believe, is very clear that Muff Graham was murdered. That she did not die an accidental death. And I will not argue to the contrary.
“And that leads me to my next point. In my argument, many times I intend to use the plural ‘murders,’ as opposed to the singular ‘murder.’ The prosecution only sought an indictment against Miss Jenkins for the murder of Muff Graham, I suppose because Mr. Graham’s body has never been found, although there’s no requirement under the law that the body be found as a condition precedent to a prosecution for murder.
“In any event, it makes no sense to me that Buck Walker, whom I accuse of being the sole murderer in this case, murdered Mrs. Graham, but spared Mr. Graham. It would stretch credulity to believe that Malcolm Graham did not meet the same horrible fate that befell his wife.
“Another preliminary point, and this is something almost too obvious to mention. We’re dealing with certain elementary facts in this case. As you can see, Jennifer is a rather small woman, both in height and weight. And we know from the medical testimony that Muff Graham received several fractures in the region of her head as a result of sledgehammer-type blows.
“Even setting aside the greater problem of Jennifer’s dealing with the bigger and heavier Mac Graham, the physical implausibility of Jennifer sledgehammering Muff Graham to death, then somehow managing to carry Muff’s heavy dead weight inside the container, or separately, to the dinghy for disposal into the lagoon, all while Buck Walker, the hardened ex-con, is in his tent knitting—the physical implausibility of all this is readily apparent. The very nature of these murders required the physical hand of a strong killer. Buck Walker.
“The only question is whether Jennifer aided and abetted, that is, assisted Buck Walker in these murders.” I went on to tell the jury, however, that “even if Jennifer had knowledge of what Buck Walker was doing, even if she were present at the time of these murders—and, of course, our position is that none of these things occurred—under the law, they would not be enough, by themselves, to make her guilty.
“Judge King will give you the following instruction at the conclusion of this case: ‘Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish that the defend
ant aided and abetted the crime.’”*
Another preliminary matter was the issue of whether or not the Grahams had kept a diary on Palmyra; also, what happened to the log of the Sea Wind. If the jury believed there had been a diary, and if either the diary or log disappeared because of some action of Jennifer’s, it would go in the direction of her having destroyed important evidence, a strong suggestion of guilt. The evidence did not allow me to be on the best footing here, but some response was better than none at all.
“As to a diary, a friend of the Grahams, Herbert Daniels, testified that one time aboard the Sea Wind Muff referred to some document to ‘recall the name of either a port or a person.’ From this, the prosecution infers the document was a diary.”
I pointed out that Muff’s words could just as well have referred to the Sea Wind’s log. ‘Moreover, even if it were a diary, Mr. Daniels didn’t say when this incident took place. The fact she kept a diary at one time does not mean she was doing so on Palmyra. The prosecution did not clearly establish through any witness that either of the Grahams kept a diary on Palmyra.
“As to the Sea Wind’s log, item number 26 on the inventory list reads: ‘Navigational logs contained in a five-by-eight-inch plastic folder.’
“Since we know that item number 26 was not the log of the Iola—item number 1 was—it stands to reason that this was probably the log of the Sea Wind.”
The inference was clear: if the log of the Sea Wind disappeared, it had to have been lost or misplaced after my client left the Sea Wind; that is, while in the hands of the authorities in this case.
“One final point I want to discuss in some depth before I get into the heart of my argument concerns witnesses,” I said. “Ideally, witnesses at a trial should be completely impartial. But the reality is that they frequently favor one side or the other in a lawsuit. That’s normal and to be expected. However, whatever side they favor, they are only supposed to testify to the facts. They obviously are not supposed to slant their testimony, or take liberties with the truth. And I’m afraid we had that with at least two of the prosecution witnesses. I’m referring to the Leonards.
“When the Leonards learned that their friends, the Grahams, were murdered, I think we can infer they naturally were convinced that Buck Walker committed these murders. And since Jennifer was with him on the island, they assumed she was somehow involved. And I think, further, that because of this they either deliberately or unconsciously slanted certain parts of their testimony against Jennifer. In some instances, I think they flat out invented incidents to coincide with prejudgments they had made.
“But before I get into what appears to be the fabricated testimony of the Leonards, I want to discuss another witness who may or may not be guilty of the same thing. I’m talking about Curt Shoemaker. I have to say I detected none of the deceit and bias in Mr. Shoemaker that was literally bursting out of the pores of the Leonards. However, I am not willing to concede he is telling the truth about the cake-truce incident.
“One thing is very clear, and I think you will agree with me on this. If the incident happened, it would be the type of thing Mr. Shoemaker would never forget, the very first thing that would enter his mind whenever he thought about his last contact with the Grahams. Shoemaker himself, on the witness stand, said this. Therefore, if he never told anyone about it for many years, we can almost automatically assume it never happened.”
And the only evidence we had, I told the jury, that he ever told anyone anything about either a “cake” or a “truce” was the word of FBI Agent Tom Kilgore, Kilgore testifying that when he interviewed Shoemaker on October 30, 1974, Shoemaker mentioned a cake to him, but not a truce.
“Now doesn’t it stand to reason that if Shoemaker had told Kilgore about the cake-truce incident he testified to at this trial, Kilgore would have put that in his report?”
I argued that Kilgore’s word even as to the cake was suspect because in addition to there being no reference to it in his report, he admitted that when Shoemaker allegedly told him this it had no significance to him.
“When I asked him why, almost twelve years later, he would remember something which was so insignificant to him when he first heard it that he didn’t bother putting it in his report, old Tom showed that at the FBI school in Quantico, Virginia, he didn’t only learn how to assemble and disassemble a gun, he learned how to tap-dance. He said that the reason he remembered it was that he didn’t know you could bake a cake on a boat. I guess Tom felt that things like stoves or ovens, or whatever you bake cakes in, are outlawed on sailboats.
“Since we have to put a substantial query after Tom Kilgore’s testimony, we obviously cannot know for sure whether Mr. Shoemaker told the agent about any cake.
“However, we do know—because we have a transcript—that when Mr. Shoemaker was specifically asked at Jennifer’s theft trial what was said during his last radio contact with Mac Graham, Curt Shoemaker never uttered one syllable about any cake-truce incident.”
I picked up the transcript of Jennifer’s theft trial and read to the jury, word for word, Shoemaker’s testimony on this issue, thereby reminding them, once again, of Shoemaker’s being asked several times what took place during his last contact with the Grahams, and his failure to mention the cake-truce incident even once.
“How do you explain something like that?” I asked rhetorically.
I told the jury there seemed to be three possibilities with respect to Shoemaker. (I was not trying to win outright on the cake-truce incident, knowing I couldn’t do it. I was only trying to establish a reasonable doubt on the issue.) The first possibility was that Shoemaker might be telling the truth. The second possibility: “He’s mulled this case over so much in his mind, and discussed so many scenarios with people like the Leonards, that by a trick of the mind he’s actually come to believe this incident happened, when in point of fact, it did not. And the third possibility is that Mr. Shoemaker is Mr. Storymaker. For years this case was the great mystery of the Pacific. And perhaps Curt Shoemaker, the ham radio operator and retired phone company employee, decided he was going to be the one to solve this mystery for everyone.
“I must say that Shoemaker’s timing is quite convenient, to say the least. He testified that in the month of August he called Mac Graham on the 7th, 14th, 21st, and the 28th. That’s only once a week. On the 28th he spoke to Mac for forty minutes. So that’s forty minutes out of the entire week. I computed this. There are ten thousand and eighty minutes every week. You divide forty into ten thousand and eighty and you get two hundred and fifty-two.
“That means that if the cake-truce incident took place between the Grahams and Buck and Jennifer, the mathematical probability that it would have taken place while Curt Shoemaker was talking to the Grahams would be one out of two hundred and fifty-two, not the best odds. One out of two hundred and fifty-two.
“Andy Warhol said something to the effect that everyone at one time or another during his life will be famous for fifteen minutes. And this case may have been—I’m not accusing Mr. Shoemaker of lying. I’m saying there are three possibilities. I’m trying to be fair, although it’s pretty hard to ignore this transcript here—this trial may have been Curt Shoemaker’s fifteen minutes.
“Mr. Enoki, in so many words—Elliot usually doesn’t say things directly, he’s a master of ellipsis—has strongly suggested that the murders took place on August 28th, right after Shoemaker spoke to Mac. But to believe that, you first have to accept as fact that the cake-truce incident did take place. And as we’ve seen, there’s a very substantial question as to that. And even if we accept, for the sake of argument, that it did take place, what evidence does this constitute that a murder took place at that time?
“Well, Mr. Enoki says, they were never heard from again. That would be a valid argument if Shoemaker, after he signed off with Mac at 7:50 P.M. on the evening of August 28, 1974, had called back a half hour later and all he got was silence. But he didn’t call back until September 4th, seven days
later. Seven days later. So, the fact that August 28th is the last time Shoemaker spoke to Mac is no evidence at all that the murders occurred at that time.
“Mr. Enoki then argues that Jennifer never made any entry in her diary on August 28th that she and Buck had brought a cake over to the Grahams, and he said this was very suspicious. But again, again, this presupposes that Buck and Jennifer did bring a cake over to the Grahams. And we do not know that they did. Jennifer cannot remember one way or the other.”
I recalled for the jury Jennifer’s acknowledging that bringing a cake to the Grahams was the type of thing she might have done in appreciation for Mac’s having loaned her the Fanning chart, and her explanation for not referring to the incident in her diary: lighting on the Iola was poor, and by the time she and Buck would have gotten back, it would have been pitch-dark on Palmyra. “Obviously,” I acknowledged, “she could have made the entry the next day. There’s no question about that. But she may have neglected to do so because she was so busy getting ready for the trip to Fanning.”
I mentioned that the one thing that sounded phony to Jennifer about the incident was Mac’s supposedly saying there was a truce, since she said there was no feud to settle. “So, Jennifer just doesn’t know,” I said.
“The point I want to italicize and underline in your mind is that even if the cake-truce incident took place, all it would show was that on the evening of August 28th, the Grahams and Buck and Jennifer were in each other’s presence. Since we already know there was considerable social interaction between the Grahams and Buck and Jennifer, how can this presence possibly constitute any evidence of murder?”