“No, ladies and gentlemen of the jury, they don’t come from any of these places. They all come from the evidence in this case that came from that witness stand under oath.
“With the exception of discussing matters of common knowledge, everything I am saying to you is based on the evidence in this case. The evidence is the foundation, the anchor, if you will, upon which everything I am saying to you is based.
“Going on, even if Buck did use a gun, and even if the muzzle of the gun were not close to Muff’s head, the report of a distant gunshot may not have been audible to Jennifer. There was a cacophony of sounds on Palmyra that in the amalgam would have silenced, or at least considerably muted, the report of a gun.
“As we know from the testimony of several witnesses, there were literally a million birds squawking during the day, and they were loud. And there was the timeless sound of the ocean.”
I further reminded the jury that there was a stipulation between the prosecution and the defense that on this particular day at twelve noon, a ship four hundred miles east of Palmyra reported winds of sixteen knots—about eighteen miles an hour. This did not mean, of course, that there were winds of eighteen miles an hour on Palmyra, but it meant “there was a likelihood of some wind, and obviously, this would cause a rustling in the trees that would help to mute sounds.
“And of course, perhaps most of all, the very dense, junglelike foliage on Palmyra muted sound.
“What about screams?” I asked. “Again, we don’t know if there were any screams. Buck Walker certainly would have had every reason to try to catch Mac and Muff unawares, such as by striking Mac from behind at his workshop. Mac, having spent a lot of time in Buck’s presence, could easily have turned his back on Buck. So chances are there would not be any screams, the first blow to the head from behind rendering Mac unconscious.”
There was one additional small point to be made. I noted for the jury that the sixteen-knot wind stipulation included the fact that the winds were coming from the south-southeast, meaning they were going toward the northwest. Since from the Iola the location of those places where the murders were likely to have taken place, such as Mac’s workshop and the vicinity of the Sea Wind, were to the northwest, the wind that day would be carrying any sound farther away from where Jennifer was on the Iola, an additional factor muting any loud sound.
“A further question presents itself. If Jennifer would have been unable to hear the gunshots or screams, how could she have heard the sound of the Zodiac?” I had to anticipate, and try to answer, every question that might occur to the jurors during their deliberations.
“Well, number one, we know from the testimony of several witnesses—including Agent Shishido—that the Zodiac had a powerful motor and made a very loud sound when it was operating. Secondly, as opposed to sounds emanating from shore, which would be muffled by the very dense foliage, sounds coming from the lagoon could travel unimpeded by any obstructions. Moreover, it’s a known fact that sounds travel faster and retain their decibel level longer over water than on land, even unobstructed land. Therefore, it would not be unlikely that Jennifer would hear the sound of the Zodiac’s engine as the dinghy roared away from the vicinity of the Sea Wind.”
I then reminded the jury that as far as what Jennifer could see from the Iola, there was the testimony of Tom Wolfe as well as Jennifer that one couldn’t see anything (Sea Wind, Mac’s workshop, etc.) on the island.
I picked up the chronology of Jennifer’s testimony, from her and Buck’s first evening on the Sea Wind, through their searching for the Grahams in the morning and spotting the Zodiac upside down on the beach.
“We can reasonably infer,” I said, “that Buck overturned the dinghy to convince Jennifer that the Grahams had died an accidental death.
“With respect to what took place on Palmyra on the critical day in question, August 30th, Mr. Enoki argued that all I have is the word of Jennifer Jenkins. To which I respond: ‘Not quite.’
“We also have the incriminating testimony of Buck Walker at his theft trial back in 1975 that only he, not Jennifer, had contact with the Grahams that day. And I believe I have also drawn some commonsense inferences as to what took place on August 30th. And we don’t even have any burden of proof. They do. Judge King will tell you that the burden of proof never shifts to the defense,” I repeated yet again to the jury.
I went on to point out, on the other hand, that the only arguably commonsense inference the prosecution had as to what happened on August 30 was the old four-minus-two-leaves-two scenario. “I guess it’s inconceivable to the prosecution that of the two people left on the island, one could be a vicious, cold-blooded murderer, without the other one also being a murderer.”
I realized, I said to the jury, how natural it would be to accept the four-minus-two-leaves-two argument. “This conclusion is simplistic and visceral in origin. Upon contemplation and examination, however, it does not hold any water. It only takes one person, not two people, to kill another. And the fact that these two persons are on a deserted Pacific island does not change that fact.”
I told the jury that if, for example, at the time of a robbery, X was seen in the company of the robber, the inference would be that X “was involved in that robbery, because of the millions of other places he could have been at the time of the robbery, he just happened to be with the robber. The argument that it was a coincidence just doesn’t wash.”
“It’s like the fellow who comes home early from work one day and finds his wife in a negligee and a man hiding in the closet. When he asks the man what he is doing there, the man says: ‘Well, everyone has to be somewhere.’ Likewise, it doesn’t wash.
“But here, if Buck Walker murdered the Grahams on Palmyra, as the circumstantial evidence in this case surely shows, Jennifer Jenkins could not have been somewhere else. She was living on Palmyra at the time of the murders, not Nome, Alaska, so her presence on Palmyra at the time of these murders means absolutely nothing. Nothing at all.
“Could one ask: ‘Shouldn’t Jennifer have at least suspected that Buck murdered the Grahams?’ Well, why? To Jennifer’s knowledge, what had Buck done that would have caused her to be suspicious? What had he really done?
“All she knew is that she and Buck, together, had discovered the Grahams’ dinghy overturned, and an accidental death seemed apparent to her.
“Let me ask you this. If you were on the island with your loved one—and remember, Jennifer loved Buck—and you and your loved one found the dinghy overturned, would you have suspected your loved one of murder?”
I checked the clock on the wall—it was 4:30 P.M.—and told the judge this was a good stopping place for the day.
After excusing the jury until the following morning, Judge King looked at me and said pleasantly, “You’re doing fine, Mr. Bugliosi.”
CHAPTER 43
9:30 A.M., TUESDAY, FEBRUARY 25, 1986
I BEGAN THE FINAL DAY of my summation by telling the jury I would discuss each piece of evidence the prosecutor claimed pointed to Jennifer’s guilt.
Jennifer had lied about finding the Zodiac overturned on the beach, Enoki had argued. It was one of the most critical evidentiary issues of the whole trial, and my position was not nearly as strong as I wanted it to be.
“As you know,” I began, “there are two high tides and two low tides every day. However, of the two high tides, one is a high high tide, and the other is a low high tide. Likewise, there’s a high low tide and a low low tide. There is only one high high tide every twenty-four hours.
“What evidence did Mr. Enoki offer that between 4:30 P.M. on August 30th, when Jennifer heard the Zodiac, and shortly after dawn, when she found it overturned, that there was a high high tide? If tides were going to be an issue at this trial, as he is making them, why didn’t he secure tidal data for this region of the Pacific and present it to you? Doesn’t the prosecution have the burden of proof?
“John Bryden testified that at high tide there would not be any beach i
n the area where Jennifer testified she found the dinghy. But there was no attempt to distinguish between a high high tide and a low high tide, where the water would not go up on the beach as far.”
I pointed out that another prosecution witness, Sharon Jordan, testified that “the coastline was irregular” in the area involved, and there were “parts of the coastline that were close to the water and other parts that were back in, like coves.” I produced defense exhibit 25, a color photograph of the area in question, pointing out it “clearly shows the irregularity of the beach in this area.”
I next cited the testimony of our strongest witness on this issue, former Assistant U.S. Attorney William Eggers: “Mr. Eggers was on Palmyra within months of the Grahams’ disappearance, and therefore was in a much better position than Bryden to observe the effect of tides on the area of beach in question on August 30 and 31, 1974.” (Bryden was on Palmyra between 1979 and 1980, more than five years after the time in question. “By his own admission,” I argued, “the sand shifts on the beach. And if the sand shifts, the configuration and the dimensions of the beach change.”) I reminded the jury that Eggers had flatly contradicted Bryden, testifying there were parts of the beach that were dry some six to eight feet above the high-water line—leaving room for the beached Zodiac to have remained out of the water between 4:30 P.M. on August 30 and dawn on August 31.
Concluding my argument on this critical point, I said, “With the beach in the area in question as irregular as it is, and without knowing precisely where on this area of the beach Jennifer saw the dinghy, and without even knowing whether there was a high high or a low high tide during the hours in question, we’re into a never-never land of speculation and conjecture. Nothing more, nothing less.”
Consulting my notes, I went on.
The circumstances under which Jennifer left Palmyra with Buck aboard the Sea Wind, their failure to notify authorities, Jennifer’s lies, and so forth, were all offered by the prosecution as proof of Jennifer’s guilt. I had to counter each one.
After reminding the jury of Jennifer’s testimony that she had wanted to notify the authorities of the Grahams’ disappearance (and was overruled by Buck), and that she did not want to take the Sea Wind off Palmyra, only yielding to Buck when he told her she could either come with him on the Sea Wind, sail off by herself on the Iola, or stay alone on Palmyra, I argued:
“Now, perhaps your straitlaced Puritans would pontificate how ‘the moral thing’ for Jennifer to have done would have been to not go with Buck on the Sea Wind because the boat did not belong to them. Ah, Puritans. God invested them with so much morality, although the iconoclast H. L. Mencken once observed that a Puritan is not against bullfighting because of the pain it gives the bull, but because of the pleasure it gives the spectators.
“We’re not talking here, ladies and gentlemen of the jury, about rigid, theoretical morality. Nor, as I indicated earlier, are we talking about first-grade arithmetic. The necessity of the situation dictated that Jennifer accompany Buck on the Sea Wind back to Hawaii. Wouldn’t most people in Jennifer’s shoes have done the same, identical thing? You might ask yourself that question back in the jury room.
“I’m not saying that anyone is going to accuse Jennifer Jenkins of being Mother Teresa, but if Mother Teresa had been in Jennifer’s shoes, would she have elected to sail off alone on the Iola, or stay on Palmyra by herself?”
Jennifer testified that she knew it was very wrong to take the Sea Wind from Palmyra, I said. “However, the will of Mac Graham gave her some solace.”
I pointed out that even though Jennifer knew the round-the-world trip referred to in the will was an earlier trip Mac had taken with Muff, not the one that brought them to Palmyra, and although she readily acknowledged that Mac, in the “other document” referred to in the will, would never have designated her and Buck to be the ones he would authorize to continue the circumnavigation of the globe with the Sea Wind, she nonetheless felt this language at least gave her a glimpse into Mac’s desires and feelings concerning the boat. It told her that if anything happened to him, he actually had wanted some other person to complete the circumnavigation as long as the Sea Wind was brought back to the mainland within two years. “Clearly, a highly unusual clause,” I said, “but nonetheless, these were Mac Graham’s words!” (I reminded the jury that the prosecution, by their stipulation, was not questioning the authenticity of the will.)
“What we have here, ladies and gentlemen of the jury, was a young woman who found herself in a highly unusual situation not of her own making, where there were no easy answers, no clear-cut road signs posted, no one to categorically and authoritatively spell out for her the one correct course to follow that would not only be morally beyond reproach, but at the same time protective of the man she loved.
“If any of us feel there were moral lapses on Jennifer’s part, strained reasoning and leaps of logic of which Aristotle would not have approved, remember: none of us were in this young woman’s shoes on the uninhabited atoll of Palmyra in the deep summer of 1974. And I say that under the circumstances, perhaps we should not be too judgmental. I suggest that only someone who is adept at walking between raindrops could have gone through Jennifer’s incredible odyssey and ordeal unblemished and unsullied.”
As to Jennifer’s lying to Lorraine Wollen about how she and Buck had come into possession of the Sea Wind, I argued that it was very clear this did not show a consciousness of guilt on Jennifer’s part. As she testified, she obviously could not tell Mrs. Wollen the truth and still protect Buck Walker’s identity.
What about Jennifer’s flight in the Ala Wai harbor? Didn’t that clearly point to her guilt? “While it is true,” I argued, “that flight can show a consciousness of guilt, the question you have to ask yourself is: guilt as to what? If someone had just committed, for instance, a robbery of a liquor store, and when confronted by the police runs away, his flight is pretty obviously tied to that robbery.
“But in this case here, Jennifer had reasons to flee that had nothing to do with being involved in the murders of the Grahams. Number one, her having aided and abetted a fugitive from justice. As she testified, as far as she knew, this made her a criminal, too. Secondly, because of Buck’s fugitive status, they hadn’t notified the authorities what happened to the Grahams, and she knew this was very wrong. And thirdly, she and Buck were on a boat that did not belong to them.
“We know from the evidence that these three things were uppermost in Jennifer’s mind, any one of which by itself could cause her—on the spur of the moment and without calm reflection—to flee. When we put all three of these facts together, it is perfectly understandable that Jennifer’s first impulse when that Coast Guard cutter was bearing down on her was to get away.
“The law, which is based on the experience of man, has taken cognizance of the fact that one’s flight may be completely unrelated to the charges in the case, and Judge King will give you this instruction: ‘In your consideration of the evidence of flight you should consider that there may be reasons for this which are fully consistent with innocence.’
“When we remove these reasons for fleeing in the harbor from Jennifer’s mind, we have conclusive proof how she reacted, and it is not by flight. When she learned of her indictment in this case, did she make any effort to flee? No. She called her lawyer and turned herself in.
“Everything I’ve discussed about why Jennifer fled can be distilled into one fact, and I quote Jennifer’s testimony on the witness stand. ‘What you have to understand is that Buck’s state of mind became my state of mind. Buck was a fugitive on the run, and I was running with him.’ ‘So his reality became your reality?’ I asked. And she answered, ‘Right.’
“Can anyone be heard to say that that explanation of why Jennifer fled in the harbor is not eminently reasonable?”
Every prosecutor has a pet argument or example he likes to trot out for the jury to prove his point in a circumstantial-evidence case. I wanted to preempt Enoki by pres
enting at least two of the popular ones, the second of which I discovered from my research in reading summations he had given in two previous circumstantial-evidence jury trials. This thievery may not be gentlemanly, but a murder trial is not a Sunday-afternoon tea party. Briefly interrupting my response to each item of evidence which Enoki cited as pointing to Jennifer’s guilt, I said, “Mr. Enoki will probably argue to you in his rebuttal that I am taking each piece of evidence and examining it alone. He’ll probably say that in a case of circumstantial evidence you have to look at all the pieces of evidence together, the entire landscape of the evidence, as opposed to looking at each piece individually.
“This would be a sound argument on his part if each one of these pieces of evidence was clear and unequivocal in the direction it pointed. But each and every one of them is suffering from incurable schizophrenia. Just as any number multiplied by zero still equals zero, the pieces of evidence in this case—each ambiguous and blurry in its own right—do not feed off each other and become clear, robust proof of guilt simply by their marriage to each other.
“Or Mr. Enoki may try to invoke an old prosecutorial argument”—this was Enoki’s pet argument—“that went out with high-button shoes—but he might resurrect it—that we’re dealing with a jigsaw puzzle here, and although certain pieces of the puzzle are missing, you reach a point where there are enough pieces of the puzzle for you to know the complete picture. And he will claim that that picture is one of guilt. Again, the jigsaw-puzzle metaphor would only be applicable if, despite the missing pieces of the puzzle, there were still a considerable number of other pieces clearly and unequivocally showing guilt. But as we’ve seen, the pieces of the puzzle which the prosecution is relying on to show guilt are susceptible to interpretations other than guilt.