And the Sea Will Tell

by Vincent Bugliosi

  Outside the presence of the jury, the judge continued ranting about Findlay’s effort to circumvent his ruling. Sitting there, I began to get a sinking feeling in the pit of my stomach. Was this a preview of Jennifer’s trial? If standard courtroom practice pushed this judge to the verge of meltdown, what would happen when I attempted an unconventional defense, as I was planning, and in my aggressive style?

  IN ALL, the prosecution would call six eyewitnesses to the midsummer 1974 events at Palmyra Island: Briggs, Jack Wheeler, Bernard and Evelyn Leonard, Donald Stevens, and Thomas Wolfe. A common thread ran through their testimony: Buck and Jennifer were running out of food; their boat was unseaworthy; and, since none had ever seen Buck and Jennifer on the Sea Wind—although they themselves had visited there—or otherwise associating with Mac and Muff in any way, hostility between the two couples was assumed.

  Following up on an FBI 302 report that referred to letters the Grahams sent to Mac’s sister, I had requested copies of the letters and had recently received them from Enoki. The correspondence, although inadmissible hearsay, made clear to me that the two couples had associated on Palmyra and were, in fact, at least outwardly civil to each other, even though each had hoped to find themselves alone there.

  Concluding an innocuous cross-examination of Wheeler, Findlay said, “Your honor, I have no further questions.”

  Unbelievably, Judge King scolded Findlay before the jury: “Before you ever say ‘no further questions,’ you always consult Mr. Partington.”

  “I don’t think…” Findlay stammered in amazement.

  The judge continued the stern lecture. “Always just say to me, ‘Could I have a second?’ and then turn around and look at Mr. Partington.”

  What King was instructing Findlay on like a child was a matter of courtroom coordination to be determined only by the attorneys, not the judge. King’s conduct was outrageous.

  Two of the prosecution witnesses I feared most followed Wheeler to the stand. Bernard and Evelyn Leonard were charter members of a club I had facetiously dubbed “the Hawaiian Connection.” This group, which included Curt Shoemaker, agreed with those law enforcement officials who believed that Jennifer had been the real brains behind the Palmyra murders.

  The judge’s behavior during the defense’s cross-examination of Bernard Leonard was a repeat of what had happened to Findlay during his cross of Briggs, though this time Partington was the target, again right before the eyes of the jury. Findlay had been handling the cross of Leonard, asking for details about the geography of Palmyra, when Partington stood and made a reasonable request.

  “May I have a moment with Mr. Findlay, your honor?” Partington asked. “He hasn’t been to Palmyra. I have.”

  “He seems to be doing all right. If he wants any help, he will turn around and ask you,” Judge King said sharply.

  Partington looked hurt. “I wanted to explain something—”

  “Make it fast! Let’s not spend five minutes.”

  The two attorneys for the defense had every right to consult with each other at this point—as they finally did—but not before the judge had once again signaled to the jury that the defense team did not deserve even a modicum of respect. (Outside the presence of the jury, King continued his choleric abuse of defense counsel. Among his demeaning remarks were: “Get off that!” “Finish your objection!” “Have you tried any criminal cases before?” “I’ve heard your arguments.”)

  After only a few days of this treatment, Partington had a full-fledged case of shingles. The painful skin ailment inspired the courthouse crowd to produce a wave of pointed jokes about his succumbing to a nervous disorder during the biggest trial of his career. “Isn’t shingles what lawyers are supposed to hang out once they pass the bar?” teased his own investigator.

  When I approached Bernard Leonard in the hallway after his testimony, he acted coolly toward me, as I had anticipated he would. To be frank, he braced as if I had slithered out from under a rock.

  It’s been said that former CBS anchorman Walter Cronkite could influence millions of Americans just by raising an eyebrow while delivering the news. I feared that Leonard could have the same type of influence on the jury. It was now close to twelve years after the events that occurred on Palmyra, and we were in San Francisco, far from the uninhabited atoll. Many things can change in a dozen years, including one’s appearance and demeanor (Buck Walker was a perfect example). I knew the jury would necessarily place considerable weight on the testimony of people who had been on Palmyra that summer of 1974. These people had seen Jennifer as she was then, and had observed, firsthand, what took place between Buck and Jennifer and the Grahams. On the stand at Jennifer’s trial, Leonard and his wife, by body language and tone of voice, could shrewdly reveal to a jury drinking in their every word and gesture how strongly they believed her to be guilty, thereby influencing the jurors against Jennifer. I knew I probably could not shake Leonard’s personal belief in Jennifer’s guilt, but I hoped I might be able to soften him to the extent that he would testify without undue bias in his every word and gesture.

  From a March 12, 1982, telephone interview Len Weinglass had with the man, I knew this task was going to be difficult, if not impossible. Leonard had characterized Jennifer as “capable of doing whatever she puts her mind to,” including passing polygraph tests. Buck was clearly “a crook,” he had told Len, but Jennifer was “clever, aggressive, and cunning.” She was the “instigator,” the schoolteacher claimed, and “she got Buck to do it. He did it. Jennifer planned it.” Leonard also told Weinglass that he had no desire to talk at greater length with the defense because “anything I tell you is going to help you and I don’t want to help Jennifer.”

  On January 3, 1984, I had made my own attempt to open communications with Bernard Leonard, writing him a letter.

  I told him up front that the tone of my letter could perhaps be characterized by him as bold, but because of the position he had taken, and in view of the fact that Jennifer’s liberty was at stake, I hoped he’d countenance the language I used. I tried to appeal to his reasoning. Since he was a teacher, I thought he himself would find the inflexible position he had taken in this case—the seemingly irrevocable prejudgment he had made without having access to all the facts—to be incompatible with his training and orientation. I went so far as to remind him of the profound lament of Socrates, one of history’s greatest teachers, that the only thing he knew for sure was that he did not know anything.

  I next sought to appeal to his sense of fair play, asking him if he thought he was being fair-minded when he personally judged Jennifer guilty even though he had not examined any of the evidence.

  I told Leonard that after spending countless hours studying and examining all of the documents, transcripts, and available evidence in the case, as well as interviewing Miss Jenkins in depth, “I am personally convinced she is completely innocent of the murder charge pending against her.”

  I closed with this appeal: “If you would be kind enough to afford me the opportunity of meeting with you at any time and place designated by you, I am confident I will be able to furnish you with compelling justification for the conclusion I have reached. If I fail to do so, you certainly will not have surrendered anything other than an hour or so of your time. I believe you will find we both want justice in the death of your friends, Malcolm and Eleanor Graham. It has been said that truth, oftentimes admittedly an elusive fugitive, is the mother of justice. Only if we are open-minded in our inquiry, Mr. Leonard, can we help insure it does not suffer a miscarriage in this case.”

  I told Leonard that I eagerly awaited his reply to my letter.

  But Leonard sent no reply.

  After introducing myself to him now, I quickly reminded him that I wouldn’t be representing Jennifer if I thought she was guilty of murder. He stood with slightly stooped shoulders, his long, grim visage radiating all the warmth of a clerk in the Department of Motor Vehicles.

  “Lawyers don’t care whether their cli
ents are guilty or innocent,” he all but sniffed.

  “I assure you I do.”

  For the briefest of moments, he seemed to consider that possibility. “I’ve had eleven years to think about this thing,” he said. “Believe me when I say Jennifer is an expert at convincing people of her innocence. She has the ability to convince anyone of anything. She’s a pathological liar.”

  We were walking as he talked, and I led the way to the entrance of an unoccupied room nearby that I was using to interview the witnesses.

  “There is no way in the world Mac and Muff would have invited Buck and Jennifer to dinner on the Sea Wind, or told them they could make themselves at home until they returned,” Leonard concluded.

  I immediately agreed that both the dinner invitation and the “make yourself at home” remark were complete fabrications.

  Leonard seriously pondered my admission. Obviously surprised and intrigued, he followed me into the room.

  “The dinner invitation is Buck’s story,” I explained as we sat down, “not Jennifer’s. Buck told her that they had been invited to the Sea Wind for dinner. Jennifer has never said she heard it directly from Mac of Muff. In fact, she says she never saw the Grahams at all on August 30th.”

  “The day of her arrest at Ala Wai,” Leonard said defiantly, “Jennifer told me, and I quote, ‘Mac and Muff invited us over for dinner.’”

  “As a teacher, Mr. Leonard, I’m sure you’re more than familiar with colloquial English. ‘Us’ was just shorthand. It doesn’t mean that Mac of Muff told her this personally. As she understood it from Buck, they had been invited over for dinner.”

  “Yes. Okay.” Meaning: point taken, get on with it.

  We went on to discuss how the Sea Wind was not locked when Jennifer and Buck boarded her on the evening of August 30. “Mac always locked his boat,” Leonard insisted, “even when he left it for a short time.”

  “Do you think Jennifer had any way of knowing that?”

  Leonard paused. “Probably not.”

  As we parted, I felt that possibly I had tempered Bernard Leonard’s harsh judgment of Jennifer or at least reawakened his sense of fair play. Not until his appearance at her trial would I find out what effect, if any, my letter and my conversation with him would have.

  Back in the courtroom, Evelyn Leonard, a woman in her late fifties with high cheekbones, a slim build, and feather-cut auburn hair, had followed her husband to the witness stand.

  Describing the last time she saw Muff, she said, “Muff was crying very hard and she said she would never leave the island alive.”

  TOM WOLFE, who visited Palmyra aboard the Toloa, testified next to his being attacked and bitten by Walker’s dog, Buck’s ineptitude in catching game fish, the dwindling food supply aboard the Iola, and the building tension between the couples on the Sea Wind and the Iola.

  Concluding Wolfe’s testimony, the prosecutor brought up the missing rat poison. The witness, eager to reply, recalled that he had noticed the boxes of poison missing the day before his departure and warned Mac.

  The next witness was Curt Shoemaker, whose ruddy complexion, sun-bleached hair, and rolling gait lent credence to his boast that he had logged ninety thousand miles of blue-water sailing in his lifetime.

  Walt Schroeder, who continued handling the Government’s witnesses, elicited testimony from Shoemaker about his schedule of radio communications with the Grahams. Then came a specific recollection of their last contact that hit the courtroom like a bombshell, particularly in view of the rat-poison testimony the jury had just heard.

  “Do you recall if the subject of your last conversation with Mac Graham on August 28th ever turned to something that was then taking place?” Schroeder asked.

  “Well, toward the end of this contact, I could hear a voice in the distance. Then Mac said, ‘Wait a minute. Something is going on.’ So he went up topside and he came back and said, ‘There is a dinghy coming over to the boat.’ And his comment was, ‘I guess they’ve made a truce,’ or something like that. Then he told me to hang on while he went topside again.”

  “Did he return to the radio?”

  “Yes, he did,” Shoemaker said. “He came back in maybe ten or fifteen seconds and said something about their bringing a cake over. And he said, ‘I better find out what’s happening.’ Mac signed off at that point.”

  “Did you hear anything in the background while Mac was telling you about these events?”

  “Yes. I heard a woman’s voice, and there was laughter, and I believe Muff was talking, too. It sounded like two females’ voices.”

  From my review of the transcripts of the two theft trials, I knew that Shoemaker, with every opportunity to do so, had never mentioned anything about a cake or a truce in his earlier testimony. Incredibly, Findlay, in his brief cross-examination, did not bring out this critical contradiction. Had Walker’s defense lawyers not read the theft-trial transcripts? Our copy had ended up in a warehouse; perhaps theirs had, too.

  When the court recessed for the day shortly after Shoemaker’s testimony, I stepped into the hallway and overheard a group of spectators discussing the sailor’s story. “So now we know how they did it,” one said. “Yeah,” agreed another, “they laced the cake with rat poison. Man, what a way to go!”

  The flippant analysis was devastating to Jennifer. What was the likelihood that Buck alone would have baked a cake and used his culinary skill to lace it with rat poison? It was Jennifer who kept the oven hot with her various concoctions. If the gallery assumed the Grahams were poisoned to death, why wouldn’t the jurors, also? I knew little about the effects of rat poison on humans, but if it could actually cause death, I suspected the end would not come quickly. The Grahams would undoubtedly take sick, but have plenty of time to radio Shoemaker or someone else for help. The fact they didn’t seemed to negate death by poisoning. (Tom Wolfe had also told me that one explanation he had considered for the rat poison’s disappearance was that Mac had taken it with the intention “of wasting Buck’s pit bull.”) But, of course, I couldn’t be confident the jury would feel the same as I.

  I went immediately to the U.S. Attorney’s Office on the sixteenth floor and confronted Schroeder.

  “The rat-poison testimony couldn’t possibly be more prejudicial, and it has no probative value,” I argued. “What you’re trying to do, Walt, is impregnate the jury’s mind with the possibility that Buck and Jennifer poisoned the Grahams, even though you have no evidence of any kind to support such a thesis.” My main concern, of course, was that the prosecution would attempt to use Shoemaker’s rat-poison testimony at Jennifer’s trial.

  Schroeder dismissed my inference. “Vince, we just wanted to show that the Grahams knew about the missing poison, and because of it, this increased the suspicious feelings the Grahams had about Buck and Jennifer, making it all the more unlikely they would invite them to dinner.”

  Despite Schroeder’s protestations, I was unconvinced.*

  I knew I would have to come down hard on Shoemaker during my cross at Jennifer’s trial when he repeated, as I obviously knew he would, his testimony about Buck and Jennifer’s allegedly bringing cake to the Grahams on the evening of August 28.

  As for the testimony by Tom Wolfe concerning the rat poison itself, I was determined to keep it from ever being heard at Jennifer’s trial. Whatever the effects of the poison, the mere mention of it would be toxic.

  ONE MESMERIZED spectator seated in the gallery was Patricia McKay, a large-boned, hefty woman in her mid-fifties with long graying hair. Buck’s ex-wife had sculptured features, and the set of her jaw, though softened by years and a few extra pounds, suggested she’d been a real looker in her day.

  Her presence had caught Buck by surprise, because they hadn’t been in contact for years. Although they exchanged greetings by notes passed to Partington, Patricia was careful not to let people know who she was. She was here not to lend Buck support, but rather, as she would later explain, “to see for myself the case against him. I
needed to know.” She intended to fill in details of the evidence for Noel—her and Buck’s nineteen-year-old daughter, who was sure her father was being framed.

  Patricia had never had such feelings. Buck had been a crook when they met and fell in love in 1961, she insisted, and she was convinced he’d stayed a crook after their 1972 divorce. Of course, there had been a time, at the beginning, when Patricia believed in Buck, too. And when things were good, there was a lot of passion and love between them. When things were bad, it was horrible. Patricia had often feared for her safety, even after the divorce. “I always felt that if Buck killed anybody, it would be me. Our relationship was that volatile.”

  Sailing around the world on his own beautiful yacht had long been Buck’s dream, Patricia recalled, and during their early years, he’d sit hunched over the kitchen table for hours drawing elaborate yacht designs. Once he sent away for a kit of sailboat plans, thinking he’d build one himself.

  When she first saw a picture in the newspaper of the Sea Wind, a chill had gone through her. The Grahams’ ketch looked very much like Buck’s dream boat.

  TRIALS NEVER proceed swiftly, except in novels or the movies, and during the ensuing days, a long line of additional prosecution witnesses dutifully took the stand.

  The defense’s cross-examination of these witnesses was consistently uninspiring, failing, for the most part, to make any dent in the witnesses’ version of events. The mediocre performance of the defense attorneys was hardly enhanced by King’s continuing assault upon their competence in open court. Remarks like “You are wasting a lot of time,” “Stop this nonsense and go on to another question,” and “Now, move on” found their way into his splenetic repertoire.

  During a recess, one of the newspaper reporters covering the trial approached Findlay in the hallway.