However, I wasn’t about to give up yet. If the defense could disassociate itself from the NOS report, the problem of contrivance would most likely vanish. I decided that just maybe I could get the best of both worlds by showing the report to Enoki and getting him to introduce it at the trial.
“What the heck is this?” he said when I laid out the tidal tables before him.
I passed along some of my newly acquired education about tidal activity, admitting to him my problem, and suggesting the evidence could hurt either the Government or the defense as much as help us. But in the interest of justice, I went on, to reach a fair verdict the jury should have all available information on this issue. I wasn’t being completely candid. As stated, I had concluded there was a possibility (if the jury smelled a fabrication) that the defense could be hurt by the report more than the report could help us.
Enoki thought it over, but declined. Later, I made a motion to Judge King for him to take “judicial notice”* of the entries made in the certified NOS report (which again would dissociate the defense from the report), but King denied my motion.
As a result, Jennifer’s jury would not receive any evidence about the times of the high tides on Palmyra on the days of August 30 and August 31, 1974.
For emotional and personal reasons, however, I was pleased I’d taken the time to get to the bottom of the tides issue. I was also confident that at the trial I would be able to make use of the information I had learned about the two types of high tide. In the end, I felt more confident than ever that I was representing a truthful client caught up in a most unusual set of incriminating circumstances, and one who was innocent of murder.
CHAPTER 30
LOS ANGELES
JANUARY 29, 1986
LEN PHONED THE WEEK before the trial was scheduled to start. He had checked into a San Francisco hotel a few blocks from the federal courthouse and was going over his files in preparation for trial. My wife and I planned to head north the following morning and stay at the same hotel.
“Vince, after reviewing all the evidence,” Len said ominously, “I’m convinced the only chance we have is to keep Jennifer off the witness stand. I think she’s the weakest part of our case.”
I was greatly surprised. “Len, not only isn’t Jennifer the weakest part of our case,” I responded sharply, “she’s our entire case. We have nothing else. This isn’t the type of case where other witnesses can give testimony pointing to her innocence. All we have is Jennifer. Without her, I’d have to throw eighty percent of my final argument out the window.”
“But she doesn’t have to testify for you to argue reasonable doubt.”
“Obviously, I’m going to argue reasonable doubt. But I need to argue her innocence, too.”
“Other than her word, there’s no evidence of innocence even if we do put her on the stand,” he countered. “If you argue innocence to the jury, you’ll lose points with them. Stick with reasonable doubt. We won’t be saying she’s guilty, of course. You’ll be arguing there’s a reasonable doubt here and a reasonable doubt there.”
Len wasn’t just playing devil’s advocate the way co-counsel sometimes do with each other to identify soft spots in a case. He sincerely felt she would look so bad on cross-examination she would do much more harm than good. But I had spent a great number of hours preparing Jennifer, and I was confident she’d hold up well on cross. Len was not so convinced.
“The reason she has to testify,” I told Len, “is that her conduct and lies, without any explanation from her, make her look very guilty. But Jennifer has an explanation for everything she did, and obviously, only she can give these explanations. They have to come from her lips.”
Len suggested that crucial explanations of her actions could be “inferred” from the evidence.
“Len, I don’t have to tell you that final argument has to be based on evidence that comes from that witness stand. Without Jennifer’s testimony, there is no evidence as to precisely why she said or did any of these very incriminating things. I could only speculate about her motivations. I respect your judgment and I know this is a professional call on your part, but either she testifies or you’re going to have to try this case alone.”
“Maybe you’re right,” he said tentatively. By the end of our conversation, Len sounded agreeable to—though none too enthusiastic about—Jennifer’s taking the stand.
As I began preparing for the trip to San Francisco, I considered the matter of Jennifer’s testifying to be settled once and for all. As it turned out, I was wrong, twice over.
SAN FRANCISCO
FRIDAY, JANUARY 31, 1986
I HAD JUST finished shaving when the phone rang in my hotel room around nine in the morning. It was Jennifer, calling from her brother Ted’s place in Lafayette, a suburb across the bay. During the trial, she and Sunny would be staying with him and his family at their sprawling custom-built house. Sunny and Ted, supportive as ever, planned to attend the trial every single day. (Jennifer’s father had died the year before.)
I had arrived in the Bay Area late the previous afternoon and spent the evening at the hotel poring over last-minute details with Len. Neither of us had mentioned our telephone conversation of two days earlier.
“How was your trip?” Jennifer asked cheerily.
“Good.”
“You play your tapes?”
“Yeah, most of the way.”
(Other than tennis, my main hobby for years has been to record on my own tapes the best records of recording artists throughout the world when they were at their peak. The tape I mostly played on the way to San Francisco was my favorite, the best recordings, from the early 1940s to the present, I could find of the most beautiful Latin American standards, such as—“Perfidia,” “La Paloma,” “Yours,” “Siboney,” “You Are Always in My Heart,” “Cien Años,” etc. Artists like Mario Lanza, Placido Domingo, Julio Iglesias, and, to me, the finest Latin American singer ever, the great Chilean, Lucho Gatica, are on the tape.)
“Did Len talk to you about my not testifying?”
“Yes,” I said. “I assume you told him it would take a team of wild horses to keep you from the witness stand?”
There was a disturbing pause on the line.
“Jennifer, I don’t like your silence.”
“Well…I think it’s something we should at least talk about.”
As surprised as I had been at Len’s recommendation, I was utterly dumbfounded now. My mind reeled. I had explained to Jennifer, more than once, why her testimony was so vital. “All the jurors sitting in the box know that if they were in your shoes, and if they were being charged with a murder they did not commit, no one could keep them from shouting that fact from the highest mountain.” I had told her that there’s no sound in any courtroom as loud as the defendant’s silence when witness after witness has given testimony pointing to the defendant’s guilt and the defendant doesn’t take those few steps to the witness stand to proclaim his innocence.
“There’s nothing to talk about, Jennifer,” I now fumed. “It’s a closed issue. Either you take the witness stand or I’m going back to L.A.” Images of all too many frustrating interviews with her came crowding in.
She paused again, this time not nearly as long.
“Okay, okay. I’ll testify,” she said, once again as if doing me a favor.
But I was too angry to let it drop. “I have to say I’m very disappointed, Jennifer. I’m much more upset with you than I am with Len. He’s thinking about your not testifying purely from a professional standpoint. But what’s your explanation? You should be dying to testify and proclaim your innocence. You know that nearly everything you said and did in this case reeks with guilt. You appear as guilty as sin to everyone.”
“Not to my friends,” she interjected, driving me further up the wall.
“I’m not talking about your friends, dammit. I’m talking about the kind of people who are going to be on the jury.” Once again, as I hung up, we seemed back on course.
Before heading for court for some pretrial matters that afternoon, the four of us, at Ted Jenkins’s suggestion, met at a coffeehouse across the street from the courthouse. With its freshly squeezed orange juice, rich dark coffee, and homemade pastry, this unpretentious and cozy refuge would become a frequent stop for all of us throughout the trial, particularly on those mornings when we hadn’t had time for a regular breakfast where we were staying.
Jennifer was wearing one of the new outfits she’d purchased during a shopping trip with Len. He’d wisely counseled her to keep her attire simple and tasteful, “nothing outlandish,” and to choose lighter hues than she usually wore. Len’s theory was that lighter colors give one a softer look. This day, she wore a tan jacket and skirt with a white silk blouse. It would have been difficult for anyone to guess that this well-dressed businesswoman was about to be tried for murder.
We were still passing the cream and sugar when Ted threw an unexpected curve. “I want to hear Len’s views on whether or not Jennifer should testify. Then I’d like to hear from Vince.” Jennifer’s brother had a rapid staccato manner of speaking that bordered on brusqueness. Clearly, he was used to being listened to.
“I can’t believe this,” I bristled. “You mean this issue still hasn’t been resolved?
“Vince, I’d like to hear both sides,” Ted said.
Len reiterated the same points he had pursued with me on the phone two days earlier, though with much less vigor. For the third time, I outlined my position, concluding that this case offered no options.
“Jennifer has to testify.”
My last words were spoken directly to Jennifer. I had noticed that she hardly glanced at either Len or me as we took turns speaking. She kept busy folding and refolding her paper napkin into new and apparently engrossing shapes. She acted like an uninterested bystander to something that had nothing to do with her.
“Vince has made a persuasive case,” Len admitted.
Ted nodded.
I wondered if his sister had been tempted not to testify out of sheer laziness. That would fit her m.o. Facing the jury and the prosecution would be a difficult, draining ordeal, and Jennifer had yet to show any willingness to work hard on her case. The notebook I had given her at our first meeting so long ago was still as empty as a bird’s nest in winter. At times, I felt like grabbing her by the shoulders and shaking some sense into her. “Jennifer, for Christ’s sake, wake the hell up! You’re on trial for murder!”
In fact, despite the many hours I had spent with her during more than three years of preparing the case, Jennifer Jenkins remained an enigma to me.
All feeling the strain from this tense encounter, we walked across the street and up the flight of steps to the courthouse. After passing through the security checkpoint, where our briefcases were X-rayed as we stepped through a metal detector, we took an elevator to the nineteenth floor. Visiting Judge Samuel P. King had been assigned a courtroom at the far end of the long hallway.
As I thought about what I was about to say to Judge King, I remembered my last chat with Earle Partington after the Walker trial. “It was the worst experience I’ve ever had in a courtroom with a trial judge,” he said. “It was terrible. He browbeat us in front of the jury and showed his bias for the prosecution. The tension and pressure were so great that after the trial, I took a week off and went to Cabo San Lucas in Baja, just to recover.”
Unfortunately, behavior as outrageous as Judge King’s is not uncommon in courtrooms throughout the land.
A WORD ABOUT judges.
The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer,* people would have a markedly low opinion of them. But on the contrary, the mere investiture of a twenty-five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. As an example, judges have, for the most part, remained off-limits to the creators of popular entertainment, being depicted on screens large and small as learned men and women of stature and solemnity who are as impartial as sunlight. This depiction ignores reality.
As to the political aspect of judges, the appointment† of judge-ships by governors (or the President in federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97 percent of President Reagan’s appointees to the federal bench were Republicans. Thus, in the overwhelming majority of cases there is an umbilical cord between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards (as we have seen was the case with Judge King), or he is a favored friend of one who has, oftentimes a generous financial supporter of the party in power. As Roy Mersky, professor at the University of Texas Law School, says, “To be appointed a judge, to a great extent is a result of one’s political activity.” Consequently, lawyers entering courtrooms are frequently confronted with the specter of a new judge they’ve never heard of and know absolutely nothing about. The judge may never have distinguished himself in the legal profession, but a cursory investigation almost invariably reveals a political connection. (Of course, just because there is a political connection does not mean that the judge is not otherwise competent and qualified to sit on the bench. Many times he is.) Incredibly, and unfortunately, the political connection holds true all the way up to the U.S. Supreme Court, where, for instance, the last three Chief Justices—Earl Warren, Warren E. Burger, and, to a lesser extent, William Rehnquist—like so many of their predecessors in history, have all been creatures of politics.
Although there are many exceptions, by and large the bench boasts undistinguished lawyers whose principal qualification for the most important position in our legal system is the all-important political connection. Rarely, for instance, will a governor seek out a renowned but apolitical legal scholar, such as a highly regarded law school professor, and proffer a judgeship.
It has been my experience and, I daresay, the experience of most veteran trial lawyers that the typical judge either has no or very scant trial experience as a lawyer, or is pompous* and dictatorial on the bench, or worst of all, is clearly partial to one side or the other in the lawsuit. Sometimes the judge displays all three infirmities.
It’s always a great relief and pleasure to walk into court and find a judge who has had trial experience, knows the law, is completely impartial, and hasn’t let his judgeship swell his head. There are, of course, many such admirable judges in this country, but regrettably they are in the decided minority.
For whatever reasons (undoubtedly the threat of being held in contempt of court ranks high), the great run of lawyers are intimidated by judges and continue to be outwardly respectful even when publicly humiliated by them. The lawyers’ complaints are made in private to each other and to their families. Commonly heard at any watering hole for the courthouse crowd is one lawyer crying to another over his first drink of the evening. “The judge is killing me in court.”
The judge’s obligation in a jury trial is to be totally impartial, the decision on guilt being the exclusive province of the jury. For instance, federal judges take a swearing-in oath to “impartially discharge and perform their duties.” But time and time again a judge makes it very clear to the jury which side he prefers. This is a corruption and bastardization of our system of justice by the very people whom the law entrusts with the responsibility of insuring that it works properly and equitably.
Unfortunately, jurors usually assume that whatever the judge says or does in court is correct and justified. As we’ve seen, Judge King demeaned and humiliated the defense attorneys in the Walker case without justification, and they were very mild-mannered in response. Yet unbelievably, a juror was overheard in the elevator saying, “The defense attorneys have been giving poor Judg
e King a lot of trouble.” Because Judge King, in contrast, treated the prosecutors with respect, the jurors drew another inference (correct or otherwise), the most serious one to the defense that could possibly be made: that the judge sided with the prosecution. During the trial, Jennifer’s brother remarked to a stranger in the elevator that Judge King seemed to be very biased toward the prosecution. “Well,” the man responded, “he must have done a lot of research into the case and knows what happened.” Ted later noticed, to his shock, that this man was actually a Walker juror! After the trial, a more discerning juror was even more direct. “It was obvious the judge was out to convict Walker,” said Robyn Schaffer.
The problem that confronted me now was obvious but knotty, and potentially perilous. Thus far, Judge King had been very friendly toward me, even abnormally deferential. For example, while the lawyers in the Walker trial were discussing proposed jury instructions with the judge in his chambers, I sat off to the side as an observer. During a lapse in the discussion, Elliot Enoki turned to me and asked if I had ever had one of my murder convictions as a prosecutor reversed on appeal. (The answer is no.) Before I could respond, Judge King interjected, “They [the appellate courts] wouldn’t dare.” Obviously, King was just joking, but his quip nonetheless showed a certain measure of respect for my work.
Yet it was abundantly clear that although Judge King was neither pompous nor, believe it or not, as tyrannical as many other judges in action, he still had a short fuse and was capable of an angry outburst in open court at any lawyer whose conduct displeased him. Whenever this type of thing happens in court, the lawyer nearly always comes out the loser, and his credibility with the jury inevitably suffers.
And the Sea Will Tell Page 37