by Ann Rule
“No—people are always firing guns out there trying to kill sharks, catch a big shark,” Gerry said. “You have to kill it before you can bring it in the boat.”
It was clearly a different world sixty-five miles out in the Atlantic Ocean, a world where Anne Marie Fahey never belonged. In the early afternoon of Friday, June 28, 1996, at the hour when Tom Capano was weighting her body down and lowering it into the choppy sea, she had planned to be sitting in the cool green of Valley Garden Park reading a book.
As gruesome as it was, Gerry’s testimony was not really a surprise. Joe Oteri had already conceded that Tom had dumped Anne Marie’s body in the ocean, but no one knew what had happened late on the night she died. There had been no further mention of the “accident” that killed her.
GERRY CAPANO had just begun his ordeal on the witness stand.
“Who drove home [to Wilmington]?” Connolly asked him.
“Tommy did.”
“And on the way, did he ask you anything?”
“He told me what to say if I was ever questioned.”
“What did he tell you to say?” Connolly pressed.
“That he had met me in the morning at my house to talk about a property my mother was giving him and myself, and that I left and went to the beach. And then that he left and went over to my brother Louie’s house to talk to Louis about the property, and then he met me down to the beach later and we had lunch down at the beach. And then I think it was—we went and walked a new piece of property that I was buying down there—or had already bought—and he either said he was going over to my sister’s in Stone Harbor or my mother’s in Stone Harbor. But, you know, I left first.”
In fact, the two men returned to Wilmington, and in response to Connolly’s questions, Gerry described to the jury how he had helped Tom get rid of the bloodstained couch. “It had a stain on it,” Gerry recalled. “On the right, if you were sitting on it, on the right side about shoulder height. It was about the size of a basketball.”
“What did you do with the couch?”
“We carried it out the double doors of that room and down the steps, which would be in the front of the house, and around to the garage. And at that point, I cut the stained piece out of it and tried to break the couch up so it looked like it was just an old broken couch, and we threw it in the Dumpster.”
Gerry testified that he couldn’t see the color of the stain on the maroon upholstery, but when he cut into the couch with his pocketknife, he saw “something red” on the foam underneath.
WHEN it became apparent that Tom was under suspicion in Anne Marie’s disappearance, Gerry had met with Dan Lyons, an attorney that Tom had recommended. It was two months after Anne Marie vanished. Gerry testified that Tom had instructed him to tell Lyons the “same thing we talked about in the car coming home.”
“Did you make a record of what he told you?” Connolly asked.
“I did.”
“What did you write it on?”
“A yellow postee [Post-it].”
“What did you do with the yellow Post-it?”
“Stuck it in my checkbook and it stayed there.”
“Now, Mr. Capano,” Connolly asked, “would you read what you wrote down in your note as a result of the conversation with your brother, please?”
“We were at my house at 5:45. Wanted to talk about Capano investments. I went to work. Then met you at your house about seven-thirty, eight. We talked. I left for the beach. Did my thing, saw you around elevenish. We talked again because you saw Louie. Then I left. You stayed. I met you at your house around five to help move a love seat. It looked old. That’s all. Helped you throw it in the Dumpster. Then I left. That’s what I’m telling Dan Lyons on Friday.”
Gerry said he’d lied to his own attorney at first and only later told him the truth.
“When did you tell him the last part of the story—about your brother asking you, if he hurt somebody, could he use the boat?”
“Before I went and took the lie detector test—”
Gerry realized instantly that he had said the one thing he had been warned not to say. Neither side wanted him to mention the polygraph test. His face crumpled and he buried it in his hands, muttering, “I’m sorry—I’m sorry.”
Oteri turned white and Tom clenched his jaw.
Case law in Delaware Superior Court provides that testimony about polygraphs must not be referred to without a proper foundation. Gerry had been warned and he had forgotten.
Oteri asked to approach the bench. Maurer requested a mistrial and Oteri backed him up.
They had been in trial for almost five weeks. And now they might have to start all over.
Chapter Thirty-eight
MOST OF THE GALLERY and the jury had no warning that the trial might be over, and they ate their lunches unaware of any problems. When they returned at two-thirty that Monday afternoon, Judge Lee had decided that the trial would proceed. He instructed the jurors to disregard Gerry’s last answer.
Colm Connolly was almost finished with Gerry, and Joe Oteri waited for his turn. Connolly asked Gerry about his boats and the replacement anchor that his brother Joey had found for him.
“Why did that become necessary?”
“Because of the newspaper articles that said I sold the boat without an anchor.” Gerry testified that he had given the anchor to Joe Hurley, who was then one of Tom’s attorneys. He had no idea why Hurley wanted it.
After Connolly played the tape of the statement Gerry had given a year earlier to the grand jury, Gerry agreed that he had signed a plea agreement at that time, “so that I didn’t go to jail.”
“What did you plead guilty to?” Connolly asked.
“Misprision of a felony,” Gerry said, “which means that somebody did wrong and [I] didn’t tell [the authorities].”
Gerry had asked for immunity from prosecution for more than himself. He wanted Joey protected and Marian, too—just in case—and he asked that his best friend not be prosecuted for being a felon who owned guns. He knew that Louie was making his own plea bargain. From the tortured look on Gerry’s face, it was obvious that if it were possible, he would have begged for Tom’s freedom, too.
Now Connolly elicited the information that Gerry was a longtime substance abuser, who had consumed a gram or two of cocaine a week before June 28, 1996. After that ghastly day out in the Atlantic Ocean, he had doubled the grams.
“Do you know whether you were high on cocaine or any other substance on June 28, 1996?” Connolly asked.
“When? When I went on the boat ride?”
“Yes.”
“No sir,” he said convincingly. “I was not.”
Gerry had been unable to keep Tom’s secret to himself. It hadn’t been long before he realized that it was Anne Marie Fahey’s foot he saw sinking in the ocean. He had told Louie what happened sometime during the holiday season of 1996, and later, of course, he had confided in his attorney Dan Lyons.
“The conversation you had with your brother Louie—you can’t recall when it occurred?” Connolly asked.
“No—not the exact date. We were walking up and down Emma Court.”
“Do you have any recollection of what Louie was wearing?”
“Yes.” Gerry shut his eyes, concentrating. “He was wearing a red Mickey Mouse jacket with black leather sleeves.”
JOE OTERI got to cross-examine Gerry late that same afternoon. The crisp shirt Gerry had begun the day with was rumpled and soaked with sweat. He eyed Oteri warily.
Oteri began with a patronizing approach. “My name is Joe Oteri. I come from Boston, I tend to speak a little fast, and I have an accent. If you have any problem understanding me, please—time-out—and I’ll stop. OK? May I call you Gerry?”
“OK.”
“Call me Joe. OK? Now, Gerry, do you remember the first time you used cocaine?
“No sir.”
“Any idea when it was?”
“Years and years ago.”
Oteri, of
course, wanted the jury to believe that Gerry was so steeped in alcohol and illicit drugs that it was a wonder he remembered his own name, much less any boat ride on the Atlantic Ocean two and a half years ago. He led Gerry skillfully into a discussion of the merits of so many drugs that Judge Lee blinked from time to time: cocaine, marijuana, crank (speed), psilocybin mushrooms, crack, barbiturates (which Gerry said he had no experience with), Valium, Xanax, Placidyl, quaaludes, Percodan, LSD, mescaline, ecstasy.
Gerry made no attempt to downplay his addictions. The question was whether Oteri had convinced the jury that his brain had long since been reduced to mush.
But he wasn’t finished with Tom’s little brother. Gerry had another day on the witness stand and Oteri figuratively mopped up the floor with him. It wasn’t difficult; Gerry had no sterling qualities or past good deeds to balance his admissions that he had spent most of his life playing with bigger and bigger toys. He liked to hang out with “tough guys,” many of whom had police records. He liked to shoot at living creatures and he rarely worked. He was at times a surly drunk, and was now being ostracized by many members of his own family.
Oteri drove the shaft home as he quoted from phone calls that Gerry, in his cups, had made to his mother. As Tom’s lead attorney read the contents of the calls aloud, Marguerite Capano, white haired and frail, sat there in the courtroom in a wheelchair, fussed over by solicitous relatives. Her eyes were full of tears.
“Now, Gerry,” Oteri asked, “do you remember making a phone call and leaving this message on February 9, 1998, to your mother? ‘Mom, this is your son Gerry. I called you but Katie hung up on me. Then I called again and her little asshole boyfriend hung up on me. You have ten minutes to call me back. If you don’t, you can go fuck yourself.’ ”
“I was drinking that day,” Gerry said. “And I remember apologizing afterwards. . . . It’s not nice to talk to your mother like that. I was drinking and very upset.”
“How about the second call, Gerry?” Oteri asked. “Do you remember saying this? ‘Mom, this is your son Gerry. You better fucking call me. I’m tired of being the bad guy. If you don’t fucking call me, you’ll never fucking see me or my wife or my kids again. What? Are you pissed because I told the truth? Because Joe fucking Hurley couldn’t break me down? As far as I’m concerned, you have three sons. One is a murderer in jail for fucking life, one you hate—and that’s Louie—and Joey. Like I said, you can go fuck yourself. Did you really think that I would go to jail for twelve fucking years? If you thought I was bad on the stand [the proof positive hearing], God fucking help you if this goes to trial. I’ll think up even more shit to keep my ass out of fucking jail. And I’ll make up fucking shit as I go along to keep Tommy in there for fucking life. I hate him. You got ten fucking minutes to call me back or you’ll never see my kids again. I’m not threatening you, but if you don’t call me back in ten minutes, you can go fuck yourself . . .’ ”
Gerry was clearly not a prosecutor’s dream witness. And he was no gentleman. It was obvious his rage had been torched by his mother’s blind devotion to “her Tommy,” but had he been lying to protect himself and get even with his brother? The state believed that Gerry was telling the truth about June 28, 1996; every bit of their investigation validated his memory of the day Anne Marie was thrown away in the sea. And, though Oteri hinted that he had a tape of Gerry’s messages, there was no tape. And the jurors remembered that omission.
THIS was not a good day in court. When Judge Lee called for the noon break, Tom attempted to move toward his mother, and his guards wrestled him into the hall. He was consistently imperious with them and they resented it. Judge Lee stepped into the hallway as the scuffle continued. This was what he had feared. Sitting in the courtroom as if he was, indeed, a member of the dream team for the defense, Tom was apparently convinced that he was in charge.
Lee called the attorneys to a sidebar. Ferris Wharton said Tom had threatened to hit one of the guards “upside the head. That was what occasioned Lieutenant Meadwell to get him out of the courtroom. It appears to be a test of wills here.”
“I don’t really know what I’m going to be able to do about this,” Judge Lee began. “I certainly don’t want him mistreated. I certainly don’t want him to leave the courtroom. On the other hand . . . he continues to act like a practicing member of the bar here, chatting. . . . He’s never taken seriously the admonitions that he can’t talk with members of the gallery, members of the family, and with the paralegals, with whom he is continuing to conduct business.”
Even Tom’s own attorneys were at a loss about how to control him. He had peppered them with notes telling them what questions to ask, and to keen observers, they appeared to be growing disenchanted with his suggestions. Charlie Oberly asked Judge Lee to warn Tom that his behavior was out of line.
Lee sighed. “I’ve had dialogues with him in the past and I realize the frustration he feels. I realize there’s a certain therapeutic value to him to be able to chew out the judge, but I’m really past that stage of the proceeding.”
Hesitantly, Oteri repeated a request that Tom had made. “Your Honor allegedly shows facial motion to indicate displeasure, disbelief, or some things at certain parts of the testimony . . . the interpretation is that you are showing disbelief or incredulity . . . at my questions. This is the complaint.”
“Of who?” Lee asked in surprise.
“Of my client.”
“I hope that’s not the case,” Lee said. “But I’m not someone who’s inanimate.”
No one but Tom felt that Judge Lee was making faces. He was not at all happy with the way his trial was going.
COLM CONNOLLY made no heroic attempts to rehabilitate his witness when he asked questions of Gerry in redirect. He let Gerry explain that Marguerite had turned her back on him, and Kay had asked him to stay away from her and Tom’s daughters. The moment he went to the federal prosecutors and told them what Tom had done, Gerry was treated like a leper by much of his family.
Had Gerry told the truth? He was a broken man on the witness stand, and it was apparent how much he had lost by talking to the investigators. If it wasn’t the truth, why would he have turned on the brother he idolized?
TOM’S estranged wife was in the process of reassuming her maiden name, but she was still Kay Capano when she took the stand. The gallery was curious; Kay had managed to stay out of the strobe lights that followed Tom. She still worked at the pediatric clinic and made a home for her four daughters. She was very thin and the circles beneath her eyes were darker than ever. But she held her head up.
When Ferris Wharton asked her about her marriage to Tom, she told him that officially they had been married twenty-six years, although they had been separated for more than three.
“Do you have any children?” he asked, if only for the jury’s sake. Almost everyone else in the courtroom knew about their four girls.
“Christine is eighteen,” Kay said. “Katie is sixteen, Jenny will be fifteen next week, and Alex is thirteen.” She explained that Christine was in her freshman year in college in New York.
Wharton moved quickly over their separation and Tom’s stay at Louie’s estate before he found the North Grant Avenue house.
“Have you been to the house on Grant Avenue?”
“Just a couple of times.”
“Did you go inside, or—”
“I went inside, yes.”
“Did you have any particular arrangement as far as visitation with your children?”
“We didn’t have anything formalized,” Kay said. “It was essentially that he would see them on the weekend or he would drop by frequently to see them. On the weekends, they would stay at his residence—usually just one night on the weekend.”
“I want to talk to you about some events on June twenty-seventh and June twenty-eighth of 1996,” Wharton continued. “You appreciate the significance of those dates in this case?”
“Yes.”
“Do you know where you were on the eveni
ng of the twenty-seventh?”
“I was home on the twenty-seventh.”
“Do you know where your children were on the evening of the twenty-seventh?”
“They were home also. One of my daughters had just returned from camp. That’s how I remember the date . . . They may have gone out at some point during the evening, but they spent the night at the house.”
Kay described for Wharton the two cars she and Tom owned—the large blue Suburban and the smaller black Jeep Cherokee.
“Did you see the defendant on the twenty-seventh of June?”
“No, I did not.”
“Did you see him on the twenty-eighth of June—Friday morning?”
“Friday morning? Yes, I did. It was a little bit after seven o’clock. [I was] outside in the backyard hosing off my dog. I had just jogged.”
“Where did you see him?”
“You know, I don’t remember what direction he came from. I just remember hosing off the dog and he was right there.”
“How long did he spend at your house, approximately?”
“Oh,” Kay said, “ten or fifteen minutes.”
“Do you recall how he was dressed?”
“Casually.” Kay could not describe exactly how Tom was dressed, but he hadn’t worn a suit and tie.
“Did you observe any scratches or marks or injuries to him?”
“No—nothing.”
“What kind of facial hair did he have?”
“He had a beard.”
Since Kay remembered nothing unusual about Tom’s physical appearance, Wharton asked, “Was there anything about his demeanor that struck you as being out of the ordinary?”
Tom’s lawyers objected and Judge Lee overruled them. They needn’t have worried. Kay testified that Tom had been as he always was. But when he left, he took the Suburban, leaving the Jeep for her. She didn’t know why.
“I guess what I’m asking you,” Wharton said, “is did the defendant take your daughters for the weekend on Friday?”
“No, not on Friday.”
Kay said she saw Tom on Saturday between five and six, and the girls spent the night with him. Tom had come to pick them up and had kept the Suburban until Sunday night or Monday morning.