by Ann Rule
THANKSGIVING was only two days away when Nicholas Perillo took the witness stand. Handsome and glib, he was an instant hit with the women in the gallery. Perillo told the jurors of Tom’s plans to have Debby’s house burglarized and how Tom had ordered that special attention be given to the destruction of items that would remind her of their love affair. Perillo spoke with easy familiarity about Kay Capano and Christy, Katie, Jenny, and Alex, Tom’s daughters. Apparently, Tom hadn’t been at all concerned about having his fellow prisoners contact them. Of course, Perillo was a prime target for the defense, but he cheerfully admitted his failings in his deep, tough-guy voice.
Jack O’Donnell suggested that Perillo had deliberately ingratiated himself with Tom. Yes, Perillo agreed, he had asked his brother, the ER actor, to send Tom’s daughters an autographed picture.
“You were earning Tom’s trust, weren’t you?”
“I was making a fifteen-year-old tickled to death that she had a picture of some actor—I thought it would be a nice thing to do, given the situation the poor kids were in.”
“You had no ulterior motives?”
“Absolutely not.”
“It never occurred to you, if you set Tom Capano up, you might have Christmas dinner outside of the institution this year?”
“That’s absolutely ridiculous!” Perillo’s face was a study of imperious outrage.
“Well, you’re going to have Christmas dinner outside the institution, aren’t you?” O’Donnell pressed.
“That has absolutely nothing to do with my participation in his case,” Perillo said. “I’m here to tell the truth to this jury, this courtroom, and it has absolutely nothing to do with why I’m in prison—absolutely nothing.”
“You’re here to tell the truth as a law-abiding citizen for what—the first time in your life?”
“Got to start somewhere.”
“. . . You’ve agreed you are a liar, haven’t you?”
“Sure.”
“You’ve lied, stolen, and cheated nearly your entire adult life? Agreed?”
“Agreed.”
There was something refreshing about Nick Perillo. But most compelling, more than anything he said, were the scrupulously drawn floor plans of Debby’s house that he had delivered to Ferris Wharton. No one but Tom could have drawn them. No one but Tom knew Debby’s security code or where she hid her jewelry, her valuables, and her secret things. And he had given those drawings to the man on the witness stand, apparently in the belief that he was ordering a burglary of the home of the woman who loved and trusted him.
Such an action was not that far removed from betraying another woman who had loved and trusted him; only, in Anne Marie’s case, the state believed he had carefully planned to murder her. That was why Jack O’Donnell fought hard to destroy Nick Perillo’s credibility. He succeeded in showing Perillo as a prison snitch, a devout con artist, and a sometime liar, but few in the gallery perceived him as a man comfortable about blatant cruelty to women.
THANKSGIVING was over and suddenly it was winter. The trial was heading into December like a juggernaut. The state presented a number of witnesses who had talked with Debby throughout the day on Friday, June 28—at the Tatnall School and at the bank where she cashed a petty cash check. They all described her as having been completely normal in demeanor. Furthermore, their testimony proved she could not have been with Tom and Gerry in Stone Harbor that day. But the tiny tracks Tom had left behind were beginning to entrap him. By now the jurors had seen his false timeline, the notes designed to hide his real activities on June 28.
There was more in that packet of paper that Special Agent Kevin Shannon had found hidden in Tom’s law partner’s bookcase on November 6, 1996. Ten pages of notes described Tom’s recall of his contacts with Anne Marie in the last two months of her life—or more likely, they described the way he intended to characterize their relationship to the authorities if that should become necessary. He seemed a man obsessed with keeping notes as if he might lose control of himself if he didn’t have something to stabilize him.
I was in Stone Harbor Easter Weekend! . . . Thursday, 5/23/ came to deliver book re: anorexia, retrieved from Robert previous evening . . . [She] cried in my arms. Shoulders so thin.
. . . High maintenance? Materialistic? Showed me freckle on belly needing attention. Pulled up jumper. No modesty. Described trip to Cape to visit Jen, and spend weekend alone on Vineyard. Wanted time to think.
Day by day, Tom had written notes about Anne Marie, right up until the last day of her life. As Kevin Shannon read them aloud, there was the sense of a massively smothering presence. “Same weekend as trip to Wildwood with Kathleen. Gave her a ‘care package’ and videos. Didn’t want to watch videos with Kathleen because she wouldn’t ‘get it.’ Disappointed that sister had detailed agenda because wanted no plans because of aversion to rigid schedule.”
What must it have been like for Anne Marie to have this man monitoring virtually every breath she took, every thought she had, and then recording them? He was, indeed, a man obsessed.
“6/27.” It was the last day of her life, and Tom had written, of that day, “Reservation for 7:00. Call at 6:25 from office to advise on way. Very depressed.”
Was he speaking about Anne Marie—or about himself?
BOB DONOVAN, who gave testimony often in this seemingly endless trial, took the stand once more to say that a call had initiated from Tom’s cell phone near Miller’s gun shop on the day Debby bought the Beretta. Tom’s assertion that he had been nowhere near the gun shop was another lie revealed. Just as he hadn’t bought cigarettes the night Anne Marie died—Donovan had found that Getty’s wasn’t even open at that time. Tom’s little lies were like bits of string wound into a ball that became larger and larger until it threatened to roll over him.
NOW another of the women Tom had counted on to do his bidding shocked him. Susan Louth, whom Jack O’Donnell described as “a great-looking blonde,” told the jurors that Tom had written her from Gander Hill and asked her to lie about his physical strength. And so she had written the letter confirming his contention that she had had to help him move the dining room table he lent her.
“Is that true?” Connolly asked.
“No.”
“So, why did you write this?”
“Because I knew that’s what he wanted to hear and I didn’t have the heart to say ‘You know, I see what you’re trying to get me to do here.’ I didn’t want to go that way because I still really cared about him. And I wanted to be able to write and stay close to him.”
The woman Tom called “slutty little girl” read the letters that had passed between them. Here too, his manipulation dominated the words. Susan’s assignment had been to spread rumors about Debby MacIntyre.
Of all of Tom’s women who had testified thus far, Susan Louth, the paralegal who had moved from Delaware to the Virgin Islands, seemed the least damaged; even though she admitted she had fallen in love with him, she had viewed their affair as a temporary fling.
The FBI evidence gatherers, the criminalists, and the scientists testified next. Painstakingly, Wharton and Connolly elicited the explanations about how the flecks of blood found in Tom’s great room had been matched to Anne Marie Fahey’s plasma. How carpet fibers found in Kay’s Suburban matched the carpet Tom had removed from the great room. The cooler . . .
THERE had been a large white Styrofoam cooler near the prosecution table for the entire trial. It wasn’t the cooler. Connolly and Wharton had planned all along to end the state’s case with the introduction of the cooler during Ken Chubb’s testimony. On December 2, the actual cooler that had been found floating so close to the Delaware coast sat, finally, under the evidence table. Connolly asked questions of Ron Smith, the man who had called Eric Alpert to tell him about the cooler his friend had found over the Fourth of July weekend. Smith was a perfect witness and things were going well.
Next, Wharton questioned an FBI firearms and tool-mark expert, Michael Ennis, about t
he two holes that were blasted in the Igloo cooler. Although the holes had been filled with an epoxy material, Ennis said he had been able to detect the presence of lead particles. “Anytime you have the bullet fired from a firearm, you also get any debris that might be in the barrel. . . . The chemical test [on the cooler] was positive for lead behind the hole number 1 on the back side of the piece of plastic and also on the piece of insulation between hole numbers 1 and 2 and hole numbers 3 and 4.”
Connolly, sitting at the prosecution table, heard whispering from the defense attorneys. He followed their eyes and saw they were looking at the Igloo cooler—the real cooler. They were planning to find a way to bring the cooler out on cross-examination so they could lower its impact on the jury.
When Wharton finished his questioning of Ennis, he turned back, as always, to Connolly, asking the judge, “May I have a moment?” It was the way all the attorneys made sure they hadn’t missed something before they dismissed a witness. “I told him what I’d heard,” Connolly recalled. “We had no choice—we had to introduce the cooler with the witness on the stand. Ennis wasn’t expecting it but he could deal with the surprise.”
In one of the most dramatic moments of the trial, albeit previously unplanned, Connolly and Wharton reached under the evidence table and picked up the cooler that had borne Anne Marie to her ocean grave. The courtroom was silent as they carried it—like pallbearers—to a spot in front of the jury box. As they set it down, the wooden handles snapped and vibrated, raising goose pimples on the arms of the watchers in the gallery.
As big as it was, everyone wondered how in God’s name Tom Capano could have forced Anne Marie’s five-foot ten-inch body into its confines. Someone whispered in a voice that carried down the row, “He must have broken her feet to put her in there.”
“Mr. Ennis,” Wharton asked his startled witness, “state’s exhibit 235—is that the Q79 cooler which you examined?”
“Yes sir, it is.”
“The one in which you found the lead in the holes?”
“That’s correct.”
After Kenneth Chubb testified that he and his son had found the cooler with blood still inside, the state rested its case. Charlie Oberly rose to assert that the state had failed to prove how Anne Marie Fahey had died and asked Judge Lee for a directed verdict of acquittal.
Lee refused, saying that was for the jury to decide. Court adjourned at 2:40 P.M. on Wednesday, December 2. The defense would present its case beginning Monday, December 7.
In his opening statement, Joe Oteri had claimed that Anne Marie died as the result of a horrible accident and hinted broadly that he would produce a surprise witness. Perhaps on Monday he would say what that accident was and explain why Tom had not called for help from the police and paramedics instead of attempting to cover up all traces of Anne Marie’s death.
AS the courtroom emptied of spectators, Anne Marie’s brothers and sister stepped quietly to the area beyond the rail and stood near the cooler. For all its fragile, eggshell-like construction, it had been their sister’s coffin, the last place she was known to have been. Understanding how important it was for them, Connolly and Wharton turned away to allow the Faheys their moment of prayer and meditation.
It might well be that that battered cooler was the piece of evidence that would convict Anne Marie’s killer.
Chapter Forty-two
THINGS WERE NOT GOOD in the defense camp. As Tom’s dream team of attorneys prepared to begin their case, he notified them on Thursday, December 3, that he felt they were not responsive to his strategies. He had always opted for the “chain saw approach” to his defense—believing it was prudent to present everything that might possibly be of help to his case. Nothing would be too much, he felt, because you could never tell which witness or bit of information would swing the jury in his direction. His attorneys blanched at the idea.
Tom was furious that Oteri, Maurer, O’Donnell, and Oberly seemed to be ignoring his advice, the questions he wanted them to ask and his game plan. He said he intended to fire them. They thought he might change his mind when he considered what it would mean to do that at this delicate point in his trial, but he was resolute. He gave them strict orders not to notify Judge Lee of his decision, but they felt they had to tell him what Tom was about to do. On Monday, December 7, Tom was prepared to make a motion to dismiss his legal staff and proceed pro se—to speak for himself.
Judge Lee, Tom’s four attorneys, and Connolly and Wharton discussed the implications of having the defendant serve as his own attorney in what might turn out to be a death penalty case. A psychiatrist had examined Tom and found that his competency was not an issue.
“He wants to get to that jury,” Judge Lee said. “I have no doubt about that. He’s always felt he could create a bond with that jury.”
OUT of the presence of the jury, but with Tom in the courtroom, Joe Oteri rose. “If Your Honor please, at this time we would move to be allowed to withdraw as counsel, collectively—myself, Mr. Maurer, Mr. O’Donnell, and Mr. Oberly. . . . We have a serious strategic difference with the defendant as to how the case is to be tried. . . . The defendant is committed to a course of conduct, as far as the presentation of evidence and the rest of it goes.”
Tom rose to explain his decision to Judge Lee. “If I were a soldier in a foxhole and I had ten grenades available, I’d use all ten of them if I was surrounded by the enemy. . . . My counsel collectively believes that—in Joe’s words—he prefers to proceed with a ‘scalpel.’ His approach is that ‘less is more.’ I do not want to sit in jail three years from now for something I didn’t do and be saying to myself, If only they had known this or if only they had known that.”
Tom told Judge Lee that Jack, Gene, and Charlie were friends of over twenty years. And even though he had known Joe only since May, he was “almost like a father to him. But I’ve got to face myself and I owe it to my kids.”
Letting his attorneys go was yet another thing that caused Tom to say, “It breaks my heart.”
But finally he submitted a compromise, a “hybrid. . . . Let them present the defenses they think are needed . . . and allow me to present those I think are necessary.”
Judge Lee asked Tom if he realized how his plan might sit with the jury and that it might “be consistent with the position the state is trying to present in this case.”
Interestingly, Tom spoke of the state as one man—Colm Connolly. “I absolutely know how he’s going to try and twist it,” he said. “I’ll just have to deal with that as best I can. Everything has been twisted already.” Tom clearly hated Connolly.
His own attorneys could not agree with his hybrid concept of defense. And Judge Lee reminded Tom that, were he hiring an attorney, he would not hire someone who had tried his last criminal case twenty-two years ago (which Tom had), and of the best-known adage in law: that a lawyer who represents himself has a fool for a client. Tom’s four lawyers feared for him; they knew he wanted to call witnesses who would surely do him damage: another woman in his life, for instance. And Tom was shocked to learn that, should he proceed alone, he would not be allowed to explain to the jury why he no longer had attorneys with him.
In the end, Judge Lee gave Tom another day to decide if he really wanted to represent himself. And after almost twenty-four hours of discussion, he decided that he would stick with his original attorneys. Whether they would have chosen to represent him in the first place had they known what a minefield they were entering was a moot question. In the days ahead, they would often be reduced to the status of paralegals, running errands for Tom. And despite the fact that they had been invited to stay on his team, court watchers could not help but notice the body language at the defense table. Joe Oteri kept widening the gap between himself and Tom, and often turned his back on his client. Tom’s notes were passed to his lawyers in a flurry of white. They barely glanced at them before they shook their heads slightly.
The defense witnesses were weak—character witnesses, some of whom aff
irmed that Anne Marie had often called Tom at his office, one who had seen him out at dinner once with a woman “who had a very full head of hair,” some who apparently had been called to dispute the depth of Anne Marie’s affection for Mike Scanlan. The E-mail was trotted out again, full of banter, trivia, and menus. Bob Donovan was called for an exhaustive examination that might ferret out conflicting statements made to him by Debby MacIntyre.
In a case that had become more and more convoluted, the defense called an unlikely ally: Squeaky Saunders—the man whom Tom had prosecuted in the days when he was a young criminal attorney. When Ferris Wharton pulled the Saunders case file to prepare for cross-examination, he was fascinated to read that Squeaky, who was still incarcerated, had been convicted of shooting his victim in the head and attempting to dispose of the body in the Delaware River, where it was soon discovered. Judging from the placement of the blood on the missing sofa from Tom’s great room, it was likely that Anne Marie had also been shot in the head. It was almost as if Tom had refined the MO of the Saunders case, correcting, he thought, Squeaky’s mistake by disposing of Anne Marie’s body far out in the ocean.
Squeaky’s testimony, however, dealt not with murder but with his assessment of Nick Perillo as an untruthful prison snitch who was not to be believed. In a trial rife with interesting headgear, Squeaky held his own; he wore a towering turban.
In his cross-examination, Wharton suggested that Squeaky was testifying for Tom because he hoped his murder conviction might be overturned if he could prove prosecutorial misconduct—something he had been claiming for two decades. If he helped Tom now, Wharton suggested, it was possible that Tom might admit errors in the 1975 trial in which he had been one of the prosecutors.
Joe Oteri was furious and jumped to his feet to object. “That’s totally unethical of Mr. Wharton!”
Wharton, usually slow to anger, responded, “If he’s going to accuse me of something unethical, I demand an apology in open court.”
It was a frustrating trial, made more so by the rising heat in the courtroom and the spectators packed into every spare corner of space. Judge Lee knew that tempers were bound to flare and he watched the combatants carefully. Usually he was able to defuse situations with his wry humor before the court and in sidebar conferences. But ever since Tom had attempted to fire his attorneys en masse, morale was low. Joe Oteri told a reporter that some mornings he felt like pulling the covers over his head instead of going to court.