by Ann Rule
And thus encouraged, he had written to a teenage boy about his mother in unmistakably suggestive terms and had asked him, in effect, to be a pimp for her, telling his mother to be “extremely nice” to Shopa.
Before Debby stopped writing to him, Tom had asked her for Steve’s telephone number often. And he had been particularly insistent about wanting her daughter, Victoria’s, phone number and address at college. “What if there was an emergency?” he asked Debby. “What if I couldn’t get in touch with you?”
“I never wanted him to have Victoria’s address or phone number,” Debby recalled. “I couldn’t imagine any emergency where he’d need that. Later, I was awfully glad he didn’t have it.”
WHEN his crude ploy to win Debby back with surrogate seduction failed, Tom set out on another scheme. If he could not be sure that she was part of his team, then he would have to make certain that she didn’t play for the opposition.
Tom’s new neighbor in Cell 2 was a cocaine dealer, Wilfredo “Tito” Rosa. Rosa’s operation in the Wilmington area had been extensive, and he was looking at thirty years in prison for his part in a ring that had sold seventy pounds of the addictive white powder in two years.
The month after Tom was jailed, Rosa had been moved into the cell next to Tom’s. Thus, their “friendship” extended further back than Tom’s and Nick Perillo’s. Rosa wrote to Colm Connolly and said that he and Tom had once managed to talk to each other three or four hours a day by using the slots at the bottom of their cell doors or the window-yard technique.
In December of 1997, Rosa told the prosecutors that Tom had been seething over his brother Gerry’s betrayal. They whiled away the hours in the 1-F pod kidding about what Tom could arrange to have done to his enemies. Rosa told Connolly that he was the first on Tom’s hit list. Tom wanted Connolly “‘taken care of.’ I told him no way,” Rosa confided. “No federal prosecutors!
“We were kidding about having Gerry whacked,” Rosa said. “But then it got serious. He wanted me to look into what the cost and what the details were about having Gerry killed.”
Surely, he couldn’t have been serious. A brother was a brother. But according to Tito Rosa, Tom was serious. Through their talks, he learned that Rosa was worried about how he was going to pay off the mortgage on his house down in Townsend while he was in prison in Smyrna, only a few miles away. He had $95,000 owing on it, and his wife and baby wouldn’t have any place to live if he lost it. If Rosa helped him kill Gerry, Tom assured him, he would pay off his mortgage as well as any expenses connected with a hit man.
Rosa told Connolly that he never intended making good on the hit on Gerry, but he planned to take the money. Then he was going to snitch on Tom to the state and hope for a reduced sentence. But Rosa didn’t go down to Smyrna; at the end of December, he was sent instead to the federal penitentiary in Fairton, New Jersey.
Nevertheless, Rosa said he had managed to stay in touch with Tom through his wife, Lilia.* Tom wrote to Lilia and she forwarded his letters to her husband. And it worked in reverse, too. Reportedly, Rosa sent Tom a picture of Lilia and their baby. Rosa said he’d done other errands for Tom; he was only one of many inmates whose phone privileges Tom had taken over. After he was moved out of Gander Hill, Rosa said, he’d called Tom’s relatives to check on him around the time of the bail hearing, and everything seemed fine.
And then he heard that Tom had been denied bail and was still sitting in prison. In March 1998, Rosa was moved back to Gander Hill on another matter and into the 1-F pod. And although he was housed several cells away from Tom, they had managed to communicate fifteen or twenty minutes a day by standing near each other’s windows during yard time.
By March, Tom’s rage at his little brother was no longer uppermost in his mind. Connolly already knew about the burglary plot he’d set up with Nick Perillo—but now Rosa told Connolly that Tom was willing to go further than that to punish Debby. “He was afraid that she was gonna break,” Rosa said, “because the federal government was poking around, asking her questions.”
When Rosa was moved into the cell next to Tom’s, they resumed their hours-long discussions of what could be done to be sure that Debby didn’t cooperate any further with the prosecutors. It galled Tom to think that the woman he had once controlled completely should now be in a position to pose such a threat to him.
There was no solution, really, but to have her killed. When Rosa seemed receptive, Tom slipped him some pictures of Debby and gave him her address on Delaware Avenue. He explained—as he had to Perillo—that her house was almost invisible behind tall hedges and that a fence separated it from the neighbors on either side.
“There was a good possibility,” Rosa told Connolly, “that someone could just walk up to her door like a flower delivery guy and just whack her.”
It seemed not to have occurred to Tom that he was dealing with men who were exceptionally con-wise. He was vastly underrating Colm Connolly and Ferris Wharton; he was barely aware of Bob Donovan and Eric Alpert. And he was certainly unaware that his jailhouse confidants were talking to his prosecutors.
Tom listened with interest when Rosa told him that he believed his brother-in-law Jorge would be willing to murder Debby if the price was right. They decided it would be safer to talk in code. Debby would be referred to as “tuna,” and instead of saying “kill” or “murder,” they would say “black.”
Writing in Spanish, Rosa actually sent a letter to Jorge using the code words. He told his brother-in-law to ask no questions, but simply to rewrite the contents in his own handwriting so Tom wouldn’t recognize the real author, mail it to Lilia to send on to Tom. Then in order to assure Tom that the conspiracy to murder was moving ahead, Jorge was to go take photographs of Debby’s house, which were to be sent to Rosa at Gander Hill.
All in good time, Rosa showed Tom the photos of the house that had been so familiar to him for many years. He was apparently convinced that it was only a matter of time before the hit on Debby was accomplished.
Rosa’s letter to Jorge had mentioned a “blackened tuna,” in Spanish. “Does that mean a dead Deborah MacIntyre?” Connolly asked him.
“Right.” He nodded. “[The lady] being dead.”
The investigators found Jorge, who turned over a copy of the letter that discussed a murder and the photographs of Debby’s house. They told Rosa to limit his conversations with Tom to the discussion of the plot to kill his ex-lover. But Tom wasn’t satisfied with that; he evidently felt the plan was going so smoothly that he told Rosa he wanted to add a hit on Gerry to the contract.
On June 9, 1998, Debby and Tom Bergstrom had a meeting with the prosecution team. Every time she thought she had absorbed the worst pain their revelations brought, she was wrong. But these men whom she had resented deeply because she thought they were persecuting the man she loved had now become friends. The scales had fallen from her eyes, and like it or not, she had long since realized that Tom didn’t love her and had, perhaps, never loved her. But this day brought such ugly revelations that her conscious mind quite literally refused to listen to them.
Just as she and Tom Bergstrom were about to leave the June meeting, Connolly said something to her about a murder plot. “I heard it,” Debby remembered, “but I didn’t hear it. It went over my head. In the middle of the night, his words came back and I started to think about it and thought that couldn’t be what he’d said.”
She called Bergstrom the next day, and when he returned her call, he told her that it was apparently true. Tom had been trying to have her killed.
“Oh, my God,” Debby gasped. The only thing she thought about was her children, Steve and Victoria. Moreover, the press had found out about Tom’s murder plot and it would probably be all over Wilmington soon. She had to get to them and tell them before they read about it in the papers. “I got in the car and went looking for them,” she said. “Victoria was working a block from the federal building and she would have to walk by the reporters. I found them both in time—and
I guess it’s funny now, but they saw the look on my face and each of them blurted, ‘What’s the matter? Did I do something wrong?’ ”
She just hugged them.
ON August 31, 1998, Tom was indicted on three counts of criminal solicitation (for the two murder plots—against Debby and Gerry—and the plot to burglarize Debby’s house). These three charges, if proven in a court of law, could result in a sentence of thirteen years in prison. But you can pour only so much water into a vase, and if Tom was convicted of murder, the charges might be moot.
Tom’s defense team was taking one hit after another. They denied vociferously that there had ever been real murder plots, and hinted that the state had deliberately put prison snitches next to Tom to entice him into wrongdoing. Tom Bergstrom characterized Capano’s plots as those of a man “acting in total desperation and arrogance.”
The Fahey family looked on with weary understanding. It had been so long now, and they resented anyone who tried to slow down Anne Marie’s day in court. They were understandably angry at the defense team. “How can [they] come out and feed this stuff to people and expect us to believe it?” Kevin asked.
“He just seems to be a desperate person who is trying to control MacIntyre the way he controlled Annie,” Kathleen commented.
The women in Tom’s life, from mistresses to daughters, had been offered up to burglars, alleged hit men, and sex offenders. It was not a question of their safety but of his; it was a matter of priority. (It took until June 13, 1998, before Tom conceded that his daughters were not the source of the blood spots found in his house. When he stipulated to that, he saved them from giving blood samples or from having to testify about their menstrual periods.)
Even so, there were those who said privately that Tom was prepared to ask his daughters to lie for him if need be. They clearly adored him. As a last-ditch effort, would he suggest they testify that they had been in his house on June 27 and therefore he could not possibly be the one who killed Anne Marie? One of Tom’s defense attorneys had left the team unexpectedly the first week of April. Joe Hurley resigned without any public explanation, although it was alleged that he was unwilling to go along with Capano’s proposed game plan. Hurley made his exit as splashily as he made his entrance, vowing he would never reveal his reasons in this lifetime.
Headed for trial, Tom still had four attorneys representing him: Charlie Oberly, Gene Maurer, his old friend Jack O’Donnell, and a new member of his team, whose flamboyance made up for the loss of Joe Hurley—Joe Oteri of Boston. Many people said Oteri was the top criminal defense attorney on the East Coast.
The state didn’t have nearly as much weight in terms of sheer numbers—only two prosecutors—but they were arguably the two men whom Tom hated and feared the most: Colm Connolly and Ferris Wharton, the “Nazi/snake/weasel” and “the hangman.” Neither was a showboater; both were workhorses, and although there were witnesses that each would give his right arm to cross-examine, there was no lead prosecutor. They would be co-prosecutors in every sense of the word.
PART FIVE
. . . nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty,
or property, without due process of law. . . .
Fifth Amendment,
Constitution of the United States
Chapter Thirty-six
IT HAD BEEN A LONG TIME COMING, but finally, on October 6, 1998, the trial would begin—first with jury selection, and then in earnest. In retrospect, it was autumn that seemed to have marked critical turning points in Anne Marie Fahey’s life and death. In earlier autumns, she had returned to Wilmington to work for Governor Carper, tried to break up with Tom, and met Mike Scanlan. In the Capano family, Tom, Louie, and Joey all had October birthdays. Debby had divorced her husband in October. In later autumns, Tom had left Kay, proposed to Debby, and been arrested for murder. Thanksgiving had long since ceased to be a time of celebration for all of the principals in this case. But after a long sultry summer, perhaps it was fitting that Tom’s murder trial should begin in the bright coolness of October.
The Daniel J. Herrmann Courthouse hunkered over an entire block of downtown Wilmington, only grudgingly giving up enough space on each front corner for two tall holly trees. Huge, gray stoned, with massive colonnades across the front, the courthouse looked as if it would last a century, although Wilmingtonians were already suggesting it was obsolete. The Wilmington library was kitty-corner across the street, the Hotel du Pont was straight across on the other side of Rodney Square. In October, the trees in the square still had leaves, but they changed color a little more with each chilly night.
This trial above all trials attracted the curious like a magnet. The sidewalk and the wide steps in front of the courthouse drew passersby who all seemed to have an opinion, many speaking conspiratorially to anyone who would listen. “Thomas is a good man—he could not have done what they say.” “Ahh, the old man must be spinning in his grave today. His sons killed him, you know—to get at his money.” “It’s those women—they made him do it.” “That poor mother. To see it all come to this.”
When asked if they actually knew the principals, most of the rumor carriers shook their heads. But they felt qualified to judge—from what they’d read in the papers, or seen on television, or even heard in the neighborhood.
Those who made it into the courtroom were extremely determined, or lucky—or privileged: family members of the victim and defendant, of course; the press; and those willing to rise before the sun and drive through the hazy dawn to wait in a serpentine line. Everyone had to pass through metal detectors before they could even move into the courthouse. The winding marble stairs to the third-floor courtroom, number 302, were smoothed and worn in the center of each step, testimony to the hundreds of thousands who had climbed there. Between the second and third floors, traffic would halt as people up ahead were checked for contraband.
The rotunda at the top of the stairs was high and splendid. Bronze banisters kept the crowd back from the well that channeled upward through the two flights of curving stairs; the floor was marble. Three courtrooms with ornate portals reaching to the ceiling of the rotunda opened off the waiting area. It was a grand, if not economical, use of space.
Kathi Carlozzi, a pretty woman in middle age and a secretary from the Superior Court, had been chosen to make the decisions about who would get in and who would not. The organizing of the press and the gallery in the Capano trial would be meticulous. Court employees had already been through a baptism of fire with the high-profile cases of Amy Grossberg and Brian Peterson. Kathi would also keep track of the forbidden items: cell phones, cameras, recorders, and laptop computers. Regulars pasted their names on the phones and other gear; eventually, when court recesses ended too quickly, even half-empty cans of pop were labeled and left on the battered table in the rotunda area.
The last step before access to the courtroom itself was granted was to hand over purses and briefcases before passing through another metal detector. Kathi was unfailingly pleasant, but immovable when she had to be.
Courtroom 302 had an octagonal theme that was translated in its windows, wood trim, five hanging lamps, and wainscoting. The high ceiling was golden, molded in bas relief. Majestic as it was, the room’s acoustics were lousy, especially when the nine wooden benches on each side were packed with avid spectators whose whispers and murmurs bounced off the lofty walls. The courtroom was so long and narrow that those in the backseats seemed a football field away from the witnesses.
Each day Kathi Carlozzi would usher the Faheys and Capanos in first, and, two warring families, they were separated by both an invisible boundary and a true one, the center aisle. The Capanos took up several of the forward rows on the left, and the Faheys sat on the right. Neither side acknowledged the other, except at the times the push of the cr
owd jostled them together in the aisle or doorway. Then, they were civil.
Members of the working press quickly chose their seats, and only then was the public allowed in. Many of them had never been in a courtroom before. They rushed in to find a good seat. The massive courtroom was actually designed to hold only 122 people, although there would be many times in the weeks ahead when spectators would make room for as many bodies as the long benches could possibly hold.
There was an air of expectation when Tom’s trial began, even though nothing much was going to happen until a jury was picked—and that could take a long time. With the proliferation of pretrial publicity, it might not be easy to find prospective jurors who had no opinion about the innocence or guilt of Thomas Capano.
The cast of characters who took the stand would change continually; the prosecution expected to call more than a hundred witnesses, and the defense team hinted that it had almost as many. The constants would be Judge William Swain Lee, who looked more than a little like Robert Redford; Ferris Wharton, Colm Connolly, Bob Donovan, and Eric Alpert, the prosecutors and investigators; and for the defense, lead defense attorney Joe Oteri, Charlie Oberly, Gene Maurer, and Jack O’Donnell.
They were all top criminal defense attorneys, but very different from one another. Oberly was avuncular and quiet spoken, solidly versed in the law and a detail man; “the bookkeeper,” some called him. Gene Maurer was slender and intense, with a Beatleish haircut, and often wore a worried look. Tall with gray curly hair, Jack O’Donnell was an old friend of Tom’s who usually practiced law in Florida. It was O’Donnell who would frequently hug Tom’s daughters or pat Marguerite’s shoulder during breaks. He smiled easily. O’Donnell had bailed Gerry out of trouble years before. And when Joe Oteri signed on to defend Capano, wags called Tom’s four attorneys the “dream team.” And they were a million dollars’—or more—worth of lawyers.