But had Jennifer’s theft convictions “involved dishonesty,” in which case the above argument could not be considered? In a loose, layman sense, one could say that all thefts involve dishonesty. When I found a split of authority in the cases interpreting the “dishonesty” language in Rule 609(a), I researched the legislative intent behind the language. A Conference Committee Report (H.R. Conf. Rep. No. 93-1597, 93d Congress, 2d Sess. 9) read: “By the phrase ‘dishonesty or false statement’ the Conference means crimes such as perjury, criminal fraud or false pretenses, or any other crime in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”
The legislative intent made it clear, I pointed out to the court, that only those species of theft involving deceit, fraud, or misrepresentation (e.g., obtaining money by false pretenses, larceny by trick) satisfied the dishonesty requirement. The kind of straight theft Jennifer had been convicted of did not. In other words, “dishonesty” required something more than a mere propensity to steal. As expected, Enoki, in his response brief, did not agree.
There had been quite a discussion on the defense team as to whether I should have even made the motion to suppress Jennifer’s felony theft conviction. Jennifer’s brother, Ted, felt we should openly acknowledge the theft because, he said, the jury would never believe that she did not intend to steal the Sea Wind. Len Weinglass’s thinking was that it was actually better to let the jury know that Jennifer had been convicted of the theft of the Sea Wind. Perhaps, he reasoned, they would not have quite as much motivation to convict her on the murder charge if they knew she had already served hard time for the theft. They could possibly say to themselves that society had already gotten its pound of flesh. I saw some merit in both Ted’s and Len’s positions, but on balance, I felt that it would be better if the jury never heard that Jennifer had been convicted of the theft of the Sea Wind.
p. 289: Interviewing opposing witnesses.
Interviewing the opposition witnesses is essential to proper preparation for cross-examination, though, unaccountably, many lawyers neglect this basic spadework. (For instance, in the Palmyra case, the prosecutors made no effort to interview our witnesses.) When a lawyer attempts to interview the opposition witnesses, there is really no way he can lose. If they give him a statement, he can use it as a basis for impeachment at the trial if it differs from their trial testimony or from any other statement they may have made. Even if they are unwilling to talk to him, as is frequently the case, their refusal can be brought out at the trial to show their bias. I had interviewed some of the Government’s witnesses four or five times before Jennifer’s trial began.
p. 305: Why J.W. Williams did not testify at the Walker trial.
While Enoki has declined to say why he didn’t call Williams to testify, Earle Partington is not reticent about speculating why. He claims that when the FBI first visited Williams in prison on September 27, 1984, the agents showed him Ingman’s FBI 302 report that outlined Ingman’s version of Walker’s prison confession, and asked Williams if he could corroborate it. Says Partington: “Williams told them he’d have to think about it. He subsequently wrote to Walker in prison and told him about the FBI’s visit. Unbeknownst to me, Walker and Williams then concocted a scheme whereby Williams agreed to fabricate a story for the FBI similar to Ingman’s, get himself called as a Government witness, and, on the stand, refute what he’d told the FBI, saying he’d gone along with the FBI because they had offered him such a good deal. Williams would then testify that Walker had made no statements about the Grahams or what had happened to them. Walker and Williams thought this would discredit Ingman’s testimony, making it look as if Ingman, too, was most likely going along with what the FBI wanted him too say. Williams, in fact, did tell the FBI a fabricated story on October 9, 1984, but Enoki, I think, suspected an ambush and decided against calling Williams. Ray Findlay and I briefly discussed calling Williams as a defense witness, but decided against it. With Williams telling two different stories—one to the grand jury and FBI, and another to the trial jury—we couldn’t count on which story the jury would end up believing.”
Plausible, except for the inconvenience of fact. The FBI interviewed Ingman on October 5, 1984, but the 302 report of that interview wasn’t transcribed by an agency clerk until October 17, three weeks after the FBI’s first interview with Williams and even eight days after the FBI’s second interview with Williams on October 9, 1984, during which he recounted Walker’s “walk the plank” story. Therefore, contrary to Partington’s assertion, Williams could not have been shown Ingman’s report by the FBI at either of their two sessions with him, and therefore could not have based his story on the report. Williams may indeed have decided at a later date to refute his story on the stand, but it seems apparent that his crony Walker did tell the sadistic tale; true or not, to both Ingman and Williams at McNeil Island prison.
p. 315: “The average body…will float in about ten days.”
Mobster Johnny Roselli, involved in the CIA-Mafia plot to assassinate Cuban premier Fidel Castro, was murdered in 1976, stuffed into a fifty-five-gallon oil drum weighted down with heavy chains, and dumped into Miami’s Biscayne Bay. Fishermen discovered the drum when decomposition gases produced enough buoyancy to float it to the surface just ten days later. Yet the container holding Muff’s bones remained submerged for almost seven years. No witness at Walker’s trial was asked why it took so long for Muff’s container to surface, but a few of the experts involved shared their theories with Enoki, though there was no consensus. “Obviously, it doesn’t take seven years for a body to decompose,” Enoki would say later, “so whatever it was that caused the container to rise to the surface, it was something other than decomposition gases.” He said a small hole or crack in the container might have caused the gases to dissipate, thereby not allowing them to build up to sufficient pressure to float the box to the surface in a timely fashion. (Enoki elicited expert testimony at the Walker trial that the corrosion holes in the container would not have prevented the box from eventually floating to the surface.) The longer the container remained on the bottom of the lagoon, Enoki suggested, the more it might have become covered with bottom-growing vegetation.
So what forces caused the box to surface in 1981? One theory advanced is that the Jordans’ successful effort (three weeks before Sharon found the box) to raise the submerged rescue boat might have created enough disturbance on the lagoon’s bottom to cause the container to break loose and head for the surface. Also, Enoki points to Jordan’s mention of a bad storm hitting the island the night before her macabre discovery. Possibly the increased current and wave action had helped free the box. But in the end, Enoki feels, no one will ever know why Government exhibit 28 surfaced precisely when it did, nor why the box that must still hold Mac’s remains has apparently never surfaced. “This is just another mystery in the case,” Enoki says. Also puzzling is how the heavy wire, which wrapped the lid of Muff’s water coffin shut, came loose.
p. 316: Evidence of intense heat inside Muff’s aluminum coffin while submerged in water.
Enoki told me, “I could see Walker putting the body in the container, then trying to burn at least the face, possibly to obliterate its features. When he dumped the box in the water, the fire inside must still have been hot and smoldering, which caused the abnormal variation in grain size found by the metallurgist. But whether the fire was started when the box was sitting in the water, or whether the box was still hot from the fire when it hit the water, the FBI expert couldn’t tell me. I didn’t pursue this forensic evidence as it was just another one of the endless speculative asides to the case.”
p. 323: The Walker defense team’s search of Palmyra for the second missing container.
Ironically, the defense’s search for the missing box was far more complete than the authorities had attempted. Len Weinglass told me that before the second Palmyra trip, Partingto
n had asked Walker if he was sure he wanted them to look for the second container. After all, if they found it, and if the body of Mac Graham was inside, the Government would proceed with a second murder charge against Walker. Walker reportedly said: “Go ahead with your search. You’ll never find him.” Although Len claimed he had heard this story directly from Partington, the latter would subsequently deny telling Len anything like this, asserting that his client had said nothing of the kind.
p. 343: Len Weinglass’s conversation with Dr. Boyd Stephens.
In a telephone conversation with Dr. Stephens after the trial, he said he did not believe he told Weinglass that the ants would have crawled into the bone marrow only while the body still had flesh on it.
pp. 355–356: The jury would not receive evidence of the times of the high tides on Palmyra on August 30–31, 1974.
In addition to not learning of the times of the high (and low) tides, the Jenkins murder trial jury never learned the height of the tides. The high tide at 4:26 P.M. on August 30 had a height of 2.6 feet above the reference line of “mean lower low”—the average of the lowest low-water height of each tidal day observed over the National Tidal Datum Epoch (nineteen years). The high low tide at 11:08 P.M. on August 30 was 0.1 feet above the reference line. The low high tide at 5:35 A.M. on August 31, was 1.8 feet above the reference line. (It should be noted, of course, that high tides reach—and retreat from—their optimum point gradually.)
Actually, the extremely relevant point of how far up the shore various heights would take the tide was impossible to determine, since it is always influenced by such variables as the direction and velocity of the wind, atmospheric pressure, opposing currents, and the slope at the particular point on the shore. (Here, we never knew the precise point where Jennifer said she and Buck found the overturned dinghy, only the general area.) Also, because of the lack of ocean surge in the lagoon, tides would not carry the water up the lagoon shore nearly as far as they would on the island’s shores that fronted the sea.
p. 362: Even Chief Justices of the U.S. Supreme Court are creatures of politics.
Earl Warren was the chairman and keynote speaker at the Republican National Convention in 1944 and the Vice Presidential nominee on the Republican national ticket in 1948. Warren Burger in 1948 was the floor manager for Minnesota Governor Harold Stassen’s home-state candidacy at the Republican National Convention, and in 1952 he pledged the Minnesota delegation to Dwight Eisenhower’s Presidential bid at the convention. (With no previous judicial experience at all, in 1956 Burger was appointed by Eisenhower to the U.S. Court of Appeals.) Talk about the political vineyards, the nevertheless qualified William Rehnquist (an active political supporter of Barry Goldwater’s 1964 bid for the Presidency) provided on-site legal advice in 1962 to Republicans assigned the task of challenging voters’ credentials at a Phoenix polling location. The charge by witnesses that he had intimidated black and Hispanic voters on the ground of their inability to read was denied by Rehnquist.
p. 363: “The judge is killing me in court.”
No lawyer is exempt. For example, only a very few lawyers in the history of the legal profession have practiced law in as grand a fashion or sown more new legal ground (particularly in the area of tort law) than the celebrated San Francisco lawyer Melvin Belli. Yet, despite his considerable legal stature and characteristically gentlemanly behavior in court, he was treated with so much disrespect by a small-town judge in a recent case that he mournfully observed, “The judge is riding me so hard in front of the jury I’ve got spur marks on my back.” Predictably, the judge was a political animal, having run for the office a few years earlier. The judge’s campaign theme was to “end the reign of arrogance” of the incumbent judge. Another legal giant, F. Lee Bailey, has from time to time not been treated with the considerable respect he has earned with his sterling courtroom victories.
p. 363: Failure of judges to be impartial.
The prosecution, of course, is not immune; judges can also show preference for the defense. An example was my prosecution of Charles “Tex” Watson for the seven Tate-LaBianca murders. As excerpted from Helter Skelter (W. W. Norton, 1974, pp. 465–66): “Judge Alexander not only repeatedly favored the defense in his rulings, he went far beyond that. During voir dire he remarked: ‘Many of us are opposed to the death penalty.’ When prosecution witnesses were testifying, he gave them incredulous, unbelieving looks; when defense witnesses took the stand, he industriously took notes. All this was done right in front of the jury. He also frequently cross-examined the prosecution witnesses. Finally, I’d had it. Asking to approach the bench, I reminded Alexander that this was a jury trial, not a court trial, and that I was immensely concerned that by cross-examining the prosecution witnesses he was giving the jury the impression that he didn’t believe the witnesses, and since a judge has substantial stature in the eyes of a jury, this could be extremely harmful to the People. I suggested that if he wanted to have certain questions asked, he write them out and give them to the defense attorneys to ask.
“Thereafter, Alexander cut down on his cross-examination of the prosecution witnesses. However, he still continued to amaze me. When the jury went out to deliberate, he didn’t even have the exhibits sent back to the jury room—a virtually automatic act—until after I had demanded that he do so. And once, in chambers and off the record, he referred to the defendant as ‘poor Tex.’
“Also off the record was a remark I made to him toward the end of the trial: ‘You’re the biggest single obstacle to my obtaining a conviction of first-degree murder in this case.’
“Despite the problems presented by Judge Alexander, on October 12, 1971, the jury found Watson guilty of seven counts of first-degree murder and one count of conspiracy to commit murder. And on October 21, after remaining out only six hours, they returned with a verdict of death.
“Judge Alexander remarked, on the day he sentenced Watson, ‘If I had tried this case without a jury, I possibly would have arrived at a different verdict.’”
p. 364: Credibility with the jury.
An example of the dynamics involved on this point occurred near the beginning of a major murder trial I prosecuted for the Los Angeles DA’s Office. I raised an objection while sitting down. The judge ordered me to stand up when making an objection. I did, after which he told me to sit down. I immediately asked to approach the bench. I was boiling. I told the judge (outside earshot of the jury), “I represent the People of the State of California, twenty million people, and when I stand up in front of the jury in my final summation, I have to have stature and credibility with them. If you tell me to stand up and sit down like a yo-yo, I’m not going to have it. From now on, I’ll stand up and sit down in this courtroom when I want to, not when you want me to,” whereupon I stalked back to my seat. Thereafter, the judge never again ordered me to stand up or sit down.
pp. 370–371: Reducing everything to writing prior to trial.
I have found that many ideas, thoughts, and concepts do not lend themselves to easy articulation. But they can be mastered if one invests the necessary time. There is a more obvious danger of not reducing virtually everything to a yellow pad. Almost invariably during cross-examination or final summation in a complex case, since a lawyer has virtually no time in court to pause and cogitate, he is simply going to omit many points, some of which may very well have been crucial to his client’s cause. How many lawyers walk out of court every day muttering, “Gee, I forgot to ask this question, I forgot to argue that point”? When every point a lawyer wants to make is on his yellow pad, this will not happen, of course.
In my opinion, for whatever it’s worth, the majority of lawyers trying cases today have grossly inadequate notes, and therefore are not adequately prepared. There are hundreds of pieces of information in their heads, but because they are human beings, not computers, of necessity the information is disorganized and undigested, and a dangerously high percentage of it is ineffectively presented when it leaves the lawyer’s lip
s in court. The sequence should not be from the lawyer’s mind to the jury. It should be from his mind to the yellow pad—for organization, digestion, polishing, and review—and only then to the jury.
p. 382: Effect of an opening statement.
There are distinct advantages to giving an opening statement, perhaps the most important of which is that it gives the lawyer an extra opportunity to sell his case to the jury and predispose them to his side at the beginning of the case. But an opening statement should not automatically always be given, for there are some drawbacks, particularly if one is a defense attorney in a criminal trial, where the prosecution’s right to pretrial discovery is very limited. First, the lawyer is divulging to the opposition, right at the start of a case—one that might last weeks or even months—the heart of his case, sometimes even the intricacies of it. And this, of course, gives the opposing lawyer so much more time than he would normally have to work up an effective response. Secondly, when your key witnesses testify to important points, you want their testimony to have maximum dramatic impact. And if the jury has already heard the gist of the story from the lawyer, that impact might be diminished.
In recent years, the opening statement has taken on, in my opinion, inordinate importance in the eyes of trial lawyers, some claiming it’s the most important part of the trial. The rationale is that first impressions are usually lasting impressions. Indeed, at least one survey has shown that 70 percent of jurors who formed an opinion in favor of one side at the end of the opening statement voted for that side at the end of the trial. However, no one apparently bothered to consider that maybe the reason was that side simply had the better case, as was apparent even during opening statement.