by Ann Rule
Chapter Forty-five
ON MONDAY, JANUARY 4, 1999, Tom was back on the witness stand, still under cross-examination. He made no attempt at all to hide the hatred in his eyes whenever he looked at Connolly.
Tom admitted that he had learned on March 17, 1998, that Debby knew about the burglary plan and had seen the maps he had drawn of her house. “At which time,” Connolly said, “you wrote her a letter. You explained your version of the Perillo incident, correct?”
“I attempted to, yes.”
“OK, and here again you hit on the theme of your adoration for Debby. You write: ‘I wept then and I’m weeping now and trying to do it silently. Oh, God, Debby, how could you leave me like this and hurt me so? . . . Oh God, why can’t I stop loving you?’ That’s your writing?”
“Absolutely,” Tom said.
“OK,” Connolly said. “Now, let’s look at the letter you wrote to Susan Louth on the same day, March seventeenth: ‘Dear Slutty Little Girl, My oldest cousin on my mom’s side has been writing me. . . . She told me she believes I’m guilty of only two things—extreme stupidity and taking my pants down too often. . . . She also told me . . . she thinks Debby looks like a shrew and a backstabber. Pretty perceptive. Do you think I should tell her that she swallows and loves it?’
“So on the same day you’re writing how much you totally love Debby MacIntyre, you’re describing to Susan Louth she’s a shrew and backstabber, she swallows and she loves it. Right?”
“I was a mess during the entire month of March and my emotions went the whole gamut,” Tom said. “I mean, I was depressed, I was sad, I was angry, I was vindictive. I was funny.”
It was Tom’s fallback position. Whenever he was faced with his dichotomous ploys, he explained that his brain had turned to “mush.” And yet, he seemed completely in control of his faculties now. He fenced with Connolly, bristling whenever his daughters were mentioned. He was enraged that the police had involved them by coming to their house on Greenhill Avenue.
“Children were involved? Did they stop your children?” Connolly asked.
“No, they were obviously waiting right outside. . . . They can interview me, but they can do it in a proper manner—how did they know I wasn’t coming out of the garage with a car full of kids?”
Tom’s daughters had often been in the courtroom, listening to the testimony, hearing the most intimate details of their father’s other life. Kay hated to have them go to court, but Tom encouraged them to be there, cheering him on.
Connolly submitted that Tom had lied to his own attorney Charlie Oberly and provided him with an anchor—one that he knew was a red herring. “You knew that Mr. Oberly spoke with members of the press, went on national TV in May of 1997—and showed the anchor to make people believe that Gerry’s boat was not missing an anchor?”
“Yes, I did.”
“You hadn’t even told your attorneys that Debby MacIntyre was involved in the death of Anne Marie Fahey?”
“I’m not answering that.”
“You hadn’t told your attorneys as of January 4, 1997, that Anne Marie Fahey had been killed?”
“I’m not going to break the attorney-client privilege.”
Connolly suggested that there were even more people Tom had used to protect himself: his sister, Marian, his mother, Kim Horstman. And then he marched again into the inflammatory subject of Tom’s daughters, although he could not have estimated how hot his rage might burn. “Now, notwithstanding what you’ve told us about your deep love for your daughters, you used your daughters in this investigation, did you not?”
“Do you really want to get into this?” Tom’s eyes warned the prosecutor not to go further.
“Did you use your daughters to impede the investigation?” Connolly persisted.
“You tormented my daughters,” Tom said. “You tormented my mother.”
“All right. Let’s talk about your daughters.”
“No,” Tom said. “No, we’re not.”
“You were given an opportunity to make it so that your daughters would not have to be interviewed by the government,” Connolly said. “All you had to do was agree to submit to an interview yourself. You didn’t do that, did you?”
“That’s not a choice.”
“You had a choice.”
“No, no, and you, as this unethical—”
The attorneys headed toward Judge Lee even as Tom started to rave at Connolly. Joe Oteri asked for a mistrial. Connolly reminded Judge Lee that the state had offered not to talk to Tom’s two younger daughters. If he had signed an affidavit that he would not call them as alibi witnesses, Tom himself wouldn’t even have had to talk to the investigators. But he wouldn’t do that. For all of his posturing about being the perfect father, the state believed Tom’s daughters were his ace in the hole and he was not above asking them to lie for him. For a long time, Tom, of course, had blocked even the taking of blood samples from his daughters to eliminate them as sources of the blood specks in the great room.
Judge Lee denied the motion for mistrial and allowed Connolly to continue questioning Tom about his daughters.
“Now,” Connolly began again, “you had the opportunity to prevent your daughters from undergoing any trauma associated with an interview, correct?”
Tom rose up in his chair in such towering rage that everyone in the courtroom felt his fury. Robert Fahey and David Weiss watched the transformation from their bench with horror. Neither had ever seen a human being so angry. Capano had “steam from his ears, snakes from his eyes,” Robert recalled. “His eyes were bulging. He had bulging veins in his face where people don’t even have veins. At that moment, he was pure evil.”
“Absolutely INCORRECT!” Tom roared at Connolly. “You heartless, gutless, soulless disgrace for a human being!”
Connolly paused, his arms folded across his chest, watching a man completely out of control. Even he hadn’t expected an explosion like this.
The jury stared at Tom Capano with shocked fascination. Whenever they were confused by something in the courtroom, they had looked to Judge Lee for guidance, and they looked at him now, obviously wondering what they should do. Lee took a long deep breath. He was angry, too—but at the defendant.
Connolly started to resume his line of questioning. “You not only had the opportunity by agreeing—”
“Why don’t you explain what you did to my mother?” Tom shouted, smacking the microphone in front of him.
“OK, Your Honor,” Connolly said, “we did nothing to his mother—”
“You did nothing to my mother?” Tom screamed. “That’s a lie right there in front of the Court!”
Judge Lee turned to the guards. “Please take Mr. Capano out of the courtroom.”
As Tom was wrestled out of the courtroom, he pulled away from his guards and turned to the jury. “He’s a liar!”
Robert Fahey wished he’d had a camera to record the moment as the man he felt was the real Tom Capano emerged from behind his charismatic shell, but then he felt a chill. “That was probably what my sister saw just before she died,” he said. “The last face Annie saw.”
THE trial was not over, nor was the cross-examination, but for all intents and purposes they had come to a stopping point. A somewhat chastened defendant took the witness stand the next morning, January 5, but no one who had seen his awesome temper would ever forget it. Judge Lee made sure that it would not happen again in his courtroom, adding his instructions to the advice Tom’s own legal team had given him.
“There will be no apologies to the Court and the jury for yesterday’s outburst,” Lee warned. “You are simply to answer the questions directed to you by Mr. Connolly. He will be permitted to ask questions on cross-examination subject only to your attorneys’ right to object. You will answer all questions put by Mr. Connolly. Failure to do so will result in appropriate admonitions. . . . If you refuse to accept the responsibilities of responding to cross-examination, there are Draconian sanctions which can be imposed and the
y will be considered.”
Lee evinced such a stern presence that even a man as mercurial as Tom saw he meant business. But he still answered Connolly’s questions sullenly. Finally, near the end of his cross-examination, Connolly asked Tom, “Until the first day of trial, they [the Faheys] had not heard one iota of explanation from you or anybody representing you to account for the whereabouts of their sister, correct?”
“Not from me, they hadn’t,” Tom agreed.
“And unless Gerry told the authorities what happened to Anne Marie Fahey, the Fahey family still would not know?”
“Oh no, oh no, oh no,” Tom disagreed. “If Robert had called me back, if Robert had responded to me when I asked for Bud Freel, when I asked for Kim Horstman, if Kim had come to my mother’s home in Stone Harbor when I asked her, it would have made a world of difference.”
Tom complained because the Faheys were suing his family for “some thirty million dollars or whatever the hell the number they’re throwing around is.”
“Well,” Connolly said, “you’ve actually talked about a book or a movie deal for this case, haven’t you?”
Tom shrugged. “In jest,” he said. “I have no intention of writing a book.”
Connolly held out a letter Tom had written to Debby on January 29, 1998, a year earlier. “On page nine of this letter, twelve lines down, the sentence begins with ‘Tonight—’ ”
“Yes.”
“You write, ‘I will focus on the book and movie stuff after the hearing next week,’ right?”
“That’s what it says.”
“No further questions, Your Honor.”
Later, on re-cross, Connolly asked Tom about why he had been so insistent that Anne Marie’s best friend, Kim Horstman, join him at the shore and about why he had lied to her.
“By getting her to meet with me in person,” Tom explained, “or trying to get Robert to meet with me in person, we could begin to undo everything . . . and by the way, what is the lie?”
“Well,” Connolly explained, “you told her to come to Stone Harbor so you could put your heads together so you could figure out where Anne Marie might be.”
“Yeah, that part,” Tom said, still failing to see a lie.
“You knew where Anne Marie was.”
“That part, yes,” Tom admitted. “But I figured that was the only way I could get her to attend in order to, again, move against the greater evil.”
“The greater evil being?”
“What had happened to Anne Marie.”
THE jury had now seen two sides of Tom Capano. Either he was the weak and vulnerable—but charming—gentleman the defense wanted them to see, or he was the self-absorbed, conscienceless sociopath the state had described, a complete and utter narcissist.
Morale was low in the defense camp. Gene Maurer was away from the courtroom doing paralegal work much of the time. Tom and his attorneys had little connection to one another; their disagreements were reflected in the way they rarely conferred anymore. He still wanted them to pull out all the stops and use his “chain-saw” approach, and they continued to try to dissuade him, even though it was like shouting into the wind.
There was a flurry of interest when the defense called a surprise witness. Kim Johnson was an attorney’s wife who lived with her family across the street from Debby. In the past week, she had contacted the defense attorneys to say she had information about the case. On the stand, she testified that she had seen Debby MacIntyre drive into her driveway late in the evening sometime in June 1996. “I heard her kind of issue a terrible kind of an anguished sob as she kind of fell out of the car, and then she quickly ran to the side door of her house.”
Johnson said she had mentioned what she had seen and heard to her husband. She could not be sure of the date, however, but tried on the witness stand to reconstruct it by remembering when her children had left for summer camp, almost three years earlier. She thought it had been close to July 4, and after the eleven o’clock news, on a weekday. Johnson admitted that she had never told the authorities about hearing Debby sob.
Ferris Wharton cross-examined her. He asked Johnson about pear trees that had been trimmed in the interim, and taller trees whose leafy branches had hung over Debby’s driveway in June 1996, which would have obscured much of her view. She testified that she had been able to see and hear someone 205 feet away—a distance more than the length of three courtrooms. More important, Wharton asked the witness about what kind of light fixture there had been over Debby’s garage door. Johnson told him the fixture had two bright bulbs in it, allowing her to see quite well. And she spoke of seeing a “flash of blond hair” as the sobbing woman passed beneath them.
Wharton knew that on the night Anne Marie died the light fixture on Debby’s garage had not been the double-bulb motion-detector setup it was at present; until January 1997, it had been an old-fashioned porcelain socket with a single low-watt bulb. Moreover, Johnson admitted that, only the night before her testimony, she had refused to let the four investigators look out her window to determine what they could see from that viewpoint.
“I said I would really prefer that you not do that because my sons are in the next room,” she said.
“Your husband suggested that maybe only one person go up?”
“Um-hmm.”
“And you still declined?”
“I believe I did because I was concerned for my sons, who knew nothing of this.”
Johnson’s testimony was rendered virtually useless. No one would ever know what she might have been able to see or hear from her window, far from Debby’s driveway. Both Debby and her daughter, Victoria, had blond hair, and Kim Johnson said she hadn’t seen a face. She had no good reason for not coming forward sooner. Her husband listened in the back of the courtroom while she testified that he didn’t remember her telling him about any incident that involved Debby MacIntyre sobbing in the night.
TOM’S sister, Marian, and brother-in-law, Lee Ramunno, testified next, principally to undermine Gerry’s credibility. Ramunno was garrulous and Marian obviously torn as she denigrated one brother in her efforts to save another.
Tom had been insistent that his attorneys call his mother to the witness stand to further vilify her youngest son, but they would not. Beyond compassionate regard for a woman whose heart condition made her health tenuous, Joe Oteri told Judge Lee, “We’re not going to call her, for reasons of strategy permitted to all of us, not permitted to Mr. Capano. I want the record to indicate we’re not calling her. It’s something the four of us are in total agreement on, and Mr. Capano can do what he wants later.”
The last defense witness was Angel Payne, a physical education teacher at Ursuline Academy. She testified that Katie Capano had, indeed, “fainted or fallen down” during a basketball game in the spring of 1996, when she was in the eighth grade.
“Do you recall whether Mr. Capano responded to the school when it happened,” Gene Maurer asked, “and what his reaction was?”
“Not specifically,” Payne said, offering a vague answer. “I know that I’ve talked to him about his daughters, and anything that would happen, I would call him.”
“And his reaction would be?”
“He would be very upset and probably start to panic as most parents would.”
Ferris Wharton had no questions to ask of the young teacher.
Wharton and Connolly then called a number of rebuttal witnesses to answer questions raised during the defense’s case, among them Tom Bergstrom, Debby’s attorney. Since Tom had described Bergstrom repeatedly as “the Malvern misanthrope,” “the slickster,” and “loathsome pond scum,” the prosecutors thought the jurors might like to see the real man. Bergstrom came across as what he was: a kind man who was concerned about and involved in the case solely to protect his client. (Although he didn’t advertise it, Bergstrom had not billed Debby for all the hours he spent on her case.)
Kim Horstman came back on rebuttal to testify that Tom had, indeed, told her in late May 1996 th
at his daughter Katie had undergone surgery to remove a brain tumor a few months earlier.
“And did he indicate anything about her recovery from surgery?” Connolly asked.
“Yes,” Kim answered, “he said that she was doing much better and was going to be able to go to Europe with her uncle Lou that summer.”
Now IRS agent Ron Poplos testified. Poplos had helped the investigators as they traced Tom’s expenditures, deposits, and withdrawals, but he had also volunteered for a lot of the tiresome legwork. He said he had talked to the managers of a number of hardware stores, looking for the origin of the chain and padlock used on the cooler, and had never been able to trace them—particularly not to Brosius-Eliason. And it was Poplos who had spoken, however briefly, to Tom’s mother, Marguerite. Since Tom had shouted at the jurors telling them to check on how badly his aging mother had been treated, Connolly asked Poplos about that.
“Did you serve a subpoena in August of 1997 on Marguerite Capano?”
“Yes, I did—It was on August twelfth,” Poplos said. He had gone to her beach house in Stone Harbor.
“What were you wearing?”
“Blue jeans and a sweatshirt.”
“And did you see Mrs. Capano?”
“Yes, I did,” Poplos said. “I went around to the back of the house. I didn’t see a door at the front—you know how beach houses are; they face the beach side. There was a glass-enclosed area open—a glass sliding door. And I knocked on the door. And she came to the door and I asked if she was Mrs. Capano. She said, ‘Yes.’ ”
Poplos handed her the subpoena, she looked at it and shook her head, and then she closed the door. Poplos said he had been polite to her and that he had never even shown her his badge. And that was the extent of the harassment of Marguerite Capano by the federal investigators.