by Ann Rule
Notified at home, Debby MacIntyre came down to the courthouse, walking through the crowd that parted in surprise to see her. Tom had always told her she couldn’t appear in public without his direction, but she wasn’t afraid anymore. The jury had obviously believed her, and that made up for a lot of anguish and embarrassment. She told reporters that she was happy for the Faheys, and intended to go on with her life, a life in which Tom Capano would have no part.
The whole of downtown Wilmington, usually as quiet on a Sunday as a cemetery, was filled with people. Down at O’Friel’s Irish Pub, Kevin Freel opened the doors early and his patrons, many of whom had known and loved Annie, lifted a beer in her memory and in triumph.
THE penalty phase of Tom’s trial began on January 20, 1999, and it was fraught with pitfalls for him. The prosecutors had not been allowed to present evidence of “prior bad acts” that he might have participated in. But now, in the penalty phase, they were able to call Linda Marandola, the woman Tom had stalked and threatened over the years. His obsession with her was eerily like his fixation on Anne Marie. As they pondered what their recommendation would be—a life sentence or death—the jurors studied the woman on the witness stand. She was in her forties now, and she was no longer beautiful.
Linda Marandola testified about the phone calls, the threats, and Tom’s insistence that he owned the state of Delaware and the city of Wilmington. If he could not have her, then she could not live in his city or his state. The gallery murmured when Marandola recalled that Tom had come after her many times—the last time only four months before Anne Marie Fahey died.
Ferris Wharton commented that if Tom had been chastised by the bar when his harassment of the witness first became known, all of the rest of the awful, vindictive tumbling down might not have happened. But to “the everlasting shame” of the lawyers who chose to look the other way, he had continued to feel that he didn’t have to answer to the laws of ordinary men.
Anne Marie Fahey’s birthday was approaching as the penalty phase neared its close. Had she lived, she would have been thirty-three on January 27. The defense wanted very much not to have that coincide with the jury’s deliberations on Tom’s sentence.
His family pleaded for him; Gerry and Louie, the brothers who he felt had ultimately betrayed him, wept on the witness stand as they begged for Tom’s life. Kay Ryan (no longer Capano), the wife Tom had betrayed, spoke first to the Faheys. “I can’t imagine losing one of my siblings, and I’m sorry. I’m sorry for your loss. And I’m so sorry that Tom was somehow involved in this.”
Kay looked as if she hadn’t slept for days. No longer a part of the close-knit family she had always hoped for, she now had to bring her four daughters to court to plead for their father’s life. And only for their sake, she too was going to try to save him. “Well,” she began what was clearly a distasteful task for her, “I’m not here to stand by my man. I’m here for my daughters. I’ve been as repulsed by his vile actions and behaviors as most of you here in the courtroom have been. I will say—for everything that he’s done—he has been a loving father and there has been a very close relationship he’s maintained with his daughters. . . . I’ve said to the girls when they started learning about all these things that went on in his life that no matter what he’s ever done . . . their father loved them very much.
“I think,” Kay said, “for Tom to receive the death penalty would just have horrific effects on my daughters. In time, they may determine that the relationship with their father might lessen—but they should be the ones to interrupt the relationship, not by lethal injection, not by Gerry, not by the judge, not by the government. . . . If you can’t do it for Tom, do it for the girls. They need him in their life.”
And then Tom’s daughters, tremulous teenagers, slender and lovely in their tiny skirts or tight pants, accentuating their long coltish legs, their long dark hair shining, their beautiful eyes softened by unshed tears, took turns on the stand. Alex, thirteen, Katie, a week away from her seventeenth birthday, Christy, eighteen, and Jenny, fifteen, described a man the court watchers scarcely recognized. He had taught them to drive, gone to their sports events, joked with their friends, and been a counselor to many of them. The girls were wonderful young women; that was apparent. But it was just as apparent that their father had failed them in so many ways.
And now, Tom summoned all of those whom his attorneys had refused to call earlier. His mother, Marguerite, in her wheelchair, pleaded for his life as Joe Oteri gently questioned her. She didn’t understand the rules of law that said his guilt had already been established and that she was allowed only to ask that he live. Judge Lee had to remind her she could not tell the jury that her son was not guilty of murder.
Father Roberto Balducelli, his face a study of compassion and kindness, could barely hear the questions Oteri put to him, but the old priest dutifully recalled all of Tom’s good works for the church.
Tom himself had the right to allocution, the right to speak on his own behalf. He could no longer argue his innocence; if he took the stand, he must stay within strict guidelines and beg for mercy. It was, of course, not in him to beg, but he took out the notes he had prepared.
“I hope you can appreciate,” he began somewhat petulantly, “that it is pretty difficult for me to speak to people who have already rejected me. . . . What’s the use? You’ve made your decision and I’d be less than honest if I didn’t tell you we’re still reeling from it.”
He turned his face away from the jurors, rejecting them. And Tom began a rambling monologue in which he referred to himself in the third person. “The Tom Capano that used to exist was someone people trusted, sometimes with their lives . . . people liked me. A friend of mine who served in Vietnam once said that if Tom Capano is your friend, he’ll take a bullet for you. One of my cousins tells me I’m loyal as a dog.”
Tom quoted the Beatles song “Yesterday,” which summed him up, he said; he was, indeed, “half the man I used to be.” A “hundred-watt lightbulb back, say, in 1995, and what am I today? Twenty-five-watt lightbulb? Maybe a seven-and-a-half-watt night-light.”
Tom blamed his situation on the “duplicity of friends,” of people he had helped who had deserted him. His words were a paean of self-pity. “My proudest accomplishment by far are my four daughters. . . . The argument will be made that I’m somewhat of a monster because I allowed them to communicate with Harry Fusco [the convicted sex offender in jail with Tom]. I’m not allowed to talk about the evidence but I can tell you this. I’m proud of my girls. A lonely, deserted individual, and they were willing to give their time [to Harry]. . . . If you think I’m perverted, I can’t help that.”
Then Tom wandered to the edge of the guidelines for allocution and fell off as he began to harangue the prosecutors. “My kids were harassed. They were lied to and—”
“We’re done.” Judge Lee rose up from the bench, sick to death of Tom’s arrogance. “Please take Mr. Capano out of the courtroom.”
“I take it back,” Tom cried out, and Lee allowed him to stay. Tom then continued to tell the jury and those gathered in the courtroom what a valuable person he was. He would not beg for his life, he said, but asked to be allowed to live for the sake of his mother and daughters. He did not admit that he had killed Anne Marie, and his remarks only reaffirmed that he was a human being whose main concern was himself—his image, his wants, his needs. Despite all the cogent arguments, all the rhetoric, from a half dozen excellent attorneys, it was Tom himself who left that negative picture in the minds of the jurors.
In order to return with a recommendation that Tom Capano be sentenced to death, the jurors would have to agree by a majority vote that the aggravating factors of his crime and his capability for violence outweighed the mitigating factors of his past good works, his family’s need for him, and the possibility that he might be a useful person, even behind bars, in helping others. But whatever they decided, the onus would not be on them but on Judge Lee when it came to the final decision. They
would only recommend a sentence for the convicted man.
Colm Connolly reminded the jury that the state had already proven beyond a reasonable doubt that Anne Marie’s murder was committed as the result of substantial planning and premeditation. These were two powerful aggravating factors. Gerry’s testimony had shown that as early as February 1996 Tom had begun to plan not only a murder but also the disposal of the body of his victim.
“We talked about the defendant’s behavior on June 28,” Connolly reminded the jury. “How calm he was. Think about the presence of mind to hit star six-nine from Anne Marie’s apartment to place her in that apartment. Think about the planning that had to go into hitting the eight-hundred number thirteen minutes later back at the defendant’s home to create a false alibi. And then, think again, the final category I spoke [about] how ludicrous the defendant’s story was—how it defies common sense. . . . There’s no rational explanation to account for all the mounds and pieces of evidence that we gave you except for the idea that the defendant planned and premeditated this crime.”
Connolly remarked that Oteri’s “village idiot” theory didn’t make sense. “The issue he raised was that you’d never commit a murder in your own house. But you would. Because if you take somebody in a car, you run the risk that somebody else might be there. You take them out to the woods, you don’t know who’s going to be around. The only environment Tom Capano controlled absolutely on June 27, 1996, was the environment at 2302 Grant Avenue.”
He reminded the jurors that had it not been for a “pin drop size blood stain,” Tom had come close to getting away with murder. Tom had believed that he had a good plan, Connolly said, and he had believed he controlled local law enforcement. “Remember, Henry Herndon was the managing partner of the defendant’s law firm when that tape that you heard—that tape that had to do with Linda Marandola—was played for Herndon and nothing happened. Now, you heard that tape. How could anybody listen to that tape and not think something horrible was going on?”
Connolly pointed out that the tapes that showed Tom ordering physical injury and harassment of Linda Marandola, a woman he could not have, had been played for Mayor Dan Frawley long before Tom became his right-hand man. “He [Tom] had a track record of getting away with things,” Connolly said. “He thought he could control Wilmington police. He had his contacts. . . .”
Without retrying the case, Connolly reminded the jurors of the crime and the cover-up, of Tom’s absolute self-interest as he used other people to buy the gun, to help him get rid of the body. And the cover-up. How cruel to let the victim’s family suffer. “He could have saved a lot of people from a lot of pain and a lot of suffering,” Connolly said. “He didn’t. Think about the callousness of stuffing Anne Marie Fahey’s body in the cooler. What kind of a person do you have to be to be capable of that? What kind of person do you have to be to be reading the sports pages the next morning while you’re sitting in your brother’s driveway and a person you claim you ‘deeply love’ had been stuffed into a cooler by you less than a half day before? What kind of a person do you have to be to dump the body sixty miles out in the ocean? . . . You need to think about that.”
Tom, Connolly pointed out, had done nothing in prison thus far to suggest he would ever obey the rules, much less help other prisoners learn to read. And his daughters? When, really, had Tom thought about his daughters? “When he says to her [Linda Marandola] ‘I wish you could have been the mother of my first born’?” Connolly continued. “When he went to Gerry . . . about loaning him the boat and the gun? When he bought the cooler? . . . Was he thinking about his daughters on June 27th, 1996? No, he was thinking of himself.”
Perhaps the most devastating example of what Tom, the man who claimed to be a protective father, had done was caught in the letter Connolly now read to the jury. It was written to Tom from Harry Fusco in September 1998. “‘Tom, thank you for letting me talk to the kids. I love them very much as I know they love me very much. They are like me—like my own—and Katie has said I am like “Dad.” . . . The girls sent me a picture of all of them, and to protect them, you, and myself, I tell everyone they are my kids . . .’
“He did know Harry Fusco was in communication with his daughters,” Connolly told the jury. “And if he really loved his daughters, he would not have put them in communication with Harry Fusco. Having your daughters send pictures to a convicted child molester is not loving your daughters.”
Finally, Connolly submitted to the jury that there was no argument at all for keeping Tom Capano alive. He had had every privilege, but he had wasted his heritage and used the people who loved him the most. “Evil is the absence of good,” Connolly said, quoting a Catholic teaching that evil is not an existence in and of itself. “Like a vacuum. That’s what the defendant is; he’s a black hole. He’s a vacuum of evilness, and he sucked in all those different people into the black hole. He’s ruined their lives—from Gerry to Louie, to his daughters, his ex-wife, his mother, the Faheys, Keith Brady, [Debby MacIntyre], Susan Louth . . . Anne Marie Fahey . . .”
Jack O’Donnell, Tom’s longtime friend, rose to address the jurors about the mitigating factors that argued Tom should live. He said that Tom could not have planned to murder Anne Marie. “We already know from the evidence presented,” he said, “that Tom had purchased tickets and planned to take Anne Marie Fahey to a Jackson Browne concert on August 5th.”
O’Donnell said that Tom could not have known that Gerry would be available on Friday, June 28. The cooler? Merely a Fourth of July gift to thank Gerry for being so nice to Tom’s daughters. And Tom’s demeanor, according to witnesses, had been very calm and normal the night of Anne Marie’s death. Could a man planning a murder have been so calm?
Trying to save Tom’s life, O’Donnell argued that he was not an entirely rational man, and had demonstrated he was given to rash and impulsive acts. “I suggest to you that when you consider all that evidence, it suggests a lack of premeditation or substantial plan.”
Linda Marandola? O’Donnell said that Tom had been young, and set up by Joe Riley who had done most of the talking on the tapes to deliberately incriminate him. What had happened to Linda, O’Donnell said, was merely “phone harassment.” And the very fact that she dated Tom again was proof she wasn’t really afraid of him. “The watch he purchased for her in Atlantic City, she kept all those years. . . .”
O’Donnell praised Tom for his good works for the church and for the aged and infirm. “So Tom did some good things,” he said, “I don’t think the government disputes that.” Then he painted the bleak picture of Tom’s world if the jurors chose to sentence him to life in prison. “Probably more onerous punishment for him if you think about it,” he said. “This is a man who could go to lunch at the finest restaurants who will be eating baloney and cheese for the rest of his life. This is a man who could travel the world who will be shuffling in leg irons at best . . . who will be confined to a nine by twelve or less cell . . . who will never hug his daughters again . . . or attend their graduations . . . or weddings . . . or other festive occasions.”
O’Donnell said he felt that once Tom was transferred to a prison facility, he would have the opportunity to help other inmates. Perhaps teach them to read. “But most of all,” O’Donnell concluded in a surprising fashion, “I ask you to consider the effect of your recommendations on his brothers, Louie and Gerry. . . . Gerry is a mess. If you can’t find it in your hearts to recommend life for Tom because of Tom . . . do it for his mother . . . for his daughters . . . for his ex-wife . . . , please find it in your hearts to do it for Louie and especially for Gerry.”
Ferris Wharton gave the last argument of the trial. He decried O’Donnell’s contention that the murder of Anne Marie had been rash and impulsive, or that Linda Marandola had not been afraid of Tom. “The rekindling of Linda Marandola’s relationship,” he said, “is also more of a testament to the defendant’s relentlessness and persistence than anything else. You’ve heard how he can be. You’ve heard
how he was on the phone with Debby MacIntyre. . . . He can be charming. But above all, he was relentless. . . .”
How many mitigating factors were there left in Tom Capano’s makeup? “Perhaps there was good in him,” Wharton acknowledged. “Fifteen years ago. Ten years ago. But there was also evil in him. There was substantial evil in him. . . . Perhaps at one point, there was this duality . . . a battle going on, if you will, for his soul. But that battle has been lost. What you see now is the Tom Capano that you have to recommend a sentence for.”
Wharton doubted that putting Tom in the general population of a prison for the rest of his life would be a wise idea. “There are people there to relate to,” he pointed out. “There are people to control . . . to manipulate. There are people to do things for, do things to. There are the Harry Fuscos in prison. There are the Nick Perillos in prison. There are rules to be broken. There are ways to get over . . . inmates to be influenced.”
Wharton noted that Tom had never once mentioned tutoring prisoners or helping them with their education during his allocution. No, he had thought, as always, of himself. And now the jurors would have to decide if the aggravating factors outweighed the mitigating factors as they looked back over Tom Capano’s life and Anne Marie’s death.
“And when you answer those questions,” Wharton said, “you will have an opportunity to do more than simply confine the evil that Tom Capano has become. Because that type of evil is relentless and will not be confined. You will have the opportunity to end its presence in your lives, ladies and gentlemen, because that type of evil must be ended.”
WHEN the jurors returned for the second time with a decision, the city of Wilmington held its breath. Tom was led into the courtroom to hear his fate, and he seemed as insouciant as always. He looked toward his mother, who sat tearfully in the courtroom, and mouthed, as he often did, “I’ll be OK,” or, less likely, “It’ll be OK.”