And the Sea Will Tell

by Vincent Bugliosi

  The judge read from a prepared statement. “Jennifer Jenkins has been charged with murder in the first degree in an indictment returned by a grand jury in the United States District Court for the District of Hawaii.” He read the felony-murder count first, followed by Count Two, which alleged “that at some time during the period from about August 28, 1974, to about September 4, 1974, at Palmyra Island, Buck Walker and Jennifer Jenkins, with a premeditation and malice aforethought did willfully, deliberately and maliciously murder Mrs. Eleanor Graham, in violation of Title 18, United States Code, Section 1111(a).”

  Voir dire, the questioning of the prospective jurors, was about to begin.

  In my opinion, the greatly restricted scope of permissible questions on voir dire reduces jury selection to at best one-third art and skill and two-thirds guesswork. Many experienced trial lawyers concede that after a lengthy and vigorous voir dire, the twelve jurors they end up with are frequently no better than the twelve originally seated in the box by lot. Why? Because the juror one side wants is nearly always one the other side does not. As each side excuses jurors who look good for the opposition, very little progress is normally made.

  Nonetheless, a surprising number of lawyers consider voir dire the most important part of a trial. Obviously, it would be if a lawyer had the uncanny insight and ability to select jurors who would end up voting for his cause, regardless of the evidence. But since no lawyer has ever been found who can do this, or even come close, the reality, in my opinion, is that voir dire is far from being the most important part of the trial. Lawyers have a significant amount of control over every other area of the trial, and assiduous preparation pays enormous dividends. During voir dire, a lawyer operates mostly by fallible instinct. If even after years and years of marriage many husbands and wives don’t really know each other, how can there be any reliable way of evaluating prospective jurors by means of a few rounds of questions and answers? Because of this, voir dire has always been the one part of a trial I’ve never felt confident about.

  Trial lawyers joke that prosecutors typically look for conservative, crew-cut Nordic types during voir dire, while defense attorneys look for long-haired fellows in well-worn cords and tweeds.

  More specifically, it’s generally supposed that artists, sculptors, writers, musicians, and others in the arts, including the liberal arts, tend to be more sympathetic toward defendants in criminal trials. The same assumption is applied to people in the “helping professions,” like nurses and social workers, as well as to Italians, Hispanics, Jews, and blacks. Single people who are not deeply rooted in the community, clerks, factory workers, and anyone who prefers reading a book to watching television are all considered defense-oriented personalities. On the other hand, defense attorneys obviously challenge anyone who works in law enforcement, and are similarly wary of secretaries, who, according to a national jury survey, are the most prosecution-oriented of all occupational groups. The only inference I’ve been able to draw from this statistic is that secretaries have to go along with the boss, and in the courtroom, symbolically, the boss is the government. Engineers, scientists, accountants, and bookkeepers are generally considered pro-prosecution jurors as well, perhaps because they are trained to be objective and reach conclusions based solely on facts, not emotions.

  But all of this vague conjecture ignores the reality that, not uncommonly, the juror in the characteristically defense-oriented profession turns out to be a staunch member of the John Birch Society, and the juror in the prosecution-oriented profession belongs to the ACLU.

  In our discussions, Len and I agreed that someone from a so-called pro-prosecution discipline like engineering might actually be good for us in this particular case, where the prosecution did not have hard, demonstrable proof. Len also felt (and not having a strong feeling one way or the other, I went along) that women jurors close to Jennifer’s age might be unfavorable. Though he felt they might have some instinctive partiality toward her going in, on balance, he feared they’d be against her, thinking, “I never would have gotten involved with someone like Buck Walker and done the things she did.”

  With the help of friends in the San Francisco Federal Public Defender’s Office, Len found a local researcher who, for a nominal fee, ran background checks on the entire jury panel—getting details that could not come out on voir dire, such as political party affiliation. It was nice having someone of Len Weinglass’s savvy and contacts in the legal profession as co-counsel.

  As names were called at random by the court clerk, the first twelve jurors came forward, passed through the swinging doors, and took seats in the jury box.

  The judge informed the jurors they’d be “hearing a lot about an island in the Pacific, near the equator.” He asked how many were “yacht people,” and four people raised their hands.

  From the judge’s preliminary questioning, we soon had thumbnail profiles of everyone in the box.

  “I’m sixty-one years old,” began juror Clarence Lessa when the judge’s focus of attention reached him. “My wife works with me in my business in Fremont. It’s Orange Julius. It’s okay if I get a plug in, your honor?”

  “Sure,” said a genial Judge King.

  Soon it was the prosecution’s turn to ask the questions. Although it is not the sanctioned purpose of voir dire, lawyers use it to begin the process of educating and indoctrinating the jury to their side.

  “Ladies and gentlemen,” Enoki began, “if the judge instructs you that circumstantial evidence is as valid as direct evidence, would any of you have any beliefs that would make it difficult for you to accept that premise of law?”

  No juror spoke up or raised his or her hand.

  “Would any of you require the Government, in order to prove a point, to actually have a person come into court and say, ‘I saw this happen,’ as opposed to establishing through some other means that a certain fact or event occurred?”

  Again, no response.

  “Is there anyone here who cannot accept the law of accomplice liability? Meaning that somebody can be guilty for something someone else did?”

  Again, the answer was a silent, unanimous no.

  With this last question, Enoki confirmed what Len and I already suspected. The prosecution’s theory was that Buck Walker actually committed the murders, but with Jennifer’s knowledge and assistance.

  When our turn came, Len led off.

  “As you sit here now,” he said to the jurors, “you have to have the state of mind, under our law, that requires you to presume that Jennifer Jenkins is innocent. Does anyone have trouble with that?”

  No juror did.

  To a specific juror, Len asked: “In your experience, do you find sometimes that experts can be wrong?”

  “Oh, of course,” the juror answered.

  Len asked if anyone had ever had a woman friend in her twenties who became involved with a man whose activities put her in jeopardy.

  “Yes,” one of the jurors said. “I have a friend who had a boyfriend who abused her, and she wouldn’t let him go.” (All other things being equal, we wanted a juror with this background, and the prosecution did not. They eventually excused her.)

  Alluding to the jury that Buck Walker had been convicted of murdering Muff Graham, Len asked: “Can you all accept the proposition that under our system of justice each person is to be judged separately, apart from anyone else, on the merits of the case that’s involved in their particular situation?”

  No negative replies.

  Len proceeded to turn the questioning over to me. My opening goal was to indoctrinate.

  “Judge King has already told you that the indictment in this case is no evidence of guilt against Miss Jenkins. To elaborate further, an indictment can be analogized to a theater ticket,” I said to the jury. “It only enables the prosecution to get into this courtroom with their case, and once they’re here, like a ticket to the theater, it has no value or significance whatsoever.” I asked if anyone had any quarrel with this reality, and the
answer was no.

  Pursuing the grand jury indictment further, I said, “Normally, only the prosecution presents its case at the grand jury. And that’s what happened in this case. No defense was presented, and Ms. Jenkins did not testify, nor was she invited to testify.”

  Before I could ask the jury if they understood that what happened in this case was typical, Enoki was on his feet, predictably objecting to my line of questioning, and Judge King sustained the objection.

  Although this wasn’t conventional voir dire on my part, I didn’t want the jury to start the trial thinking that another group of jurors (“grand” jurors, no less) had already evaluated both sides of the case and concluded that Jennifer was guilty.

  I continued to indoctrinate the jurors under the thin guise of a question: “In this case, ladies and gentlemen of the jury, we intend to prove, and we are confident we will prove, that Miss Jenkins is completely innocent of the charges against her. However, do you all realize that we have absolutely no legal burden to do so? That under the law, the prosecution always has the burden of proof?” The jurors indicated they understood this.

  So far, for the most part, the questions from all of us only required the jury to answer yes or no. This type of voir dire is just fine with the jurors. Since the courtroom is an unfamiliar and somewhat intimidating setting for them, they are very reticent about speaking up. But to get any insight into their minds, I needed to hear their voices, their intonations, their choices of words. And this can only be done if the question is framed in such a way that they are forced to give more than a yes-or-no answer. This is what I now did.

  “As Judge King told you, the prosecution must prove guilt beyond a reasonable doubt. That’s a very high burden of proof. I want to ask each of you at this time how you personally feel about this rule. For instance, do you feel it’s fair? That it should be as high and difficult a burden as it is because a person’s life and liberty are at stake? Or do you perhaps feel it’s unfair, unrealistically high, and therefore the burden should be lower? Or perhaps you may feel that our judicial system should reexamine this entire rule, to determine whether we should keep it or modify it in some other way. Whatever your state of mind might be, I want to hear from you, and I want you to try to be as expressive as possible.”

  Some of the responses: Juror Clay Gillette: “I feel it’s a very fair rule. I don’t think anything should be changed.”

  Carol M. Steagall: “If someone accused someone of something, then they should have the burden of proof. You can’t just arbitrarily go out and say somebody did something without saying, ‘This is why,’ or support it.”

  Joseph F. Lockary: “I don’t have an alternative. I’m sure that sometimes people who do commit crimes go free. But there are also people who have been proven guilty, who are innocent. It’s not foolproof. I…basically agree with it.”

  The jurors were now talking. A lot.

  Clarence Lessa: “I feel a lot of people get away with a lot of things in our society. I really feel that we’re a little too easy, and we forget our victims. That’s the part that bothers me.” He certainly sounded like a prosecution juror.

  “Well,” I inquired further, “the situation being what it is today in America—we’re losing the war on crime and drugs—do you therefore think the burden of proof should be lowered to make it easier for the prosecution to secure a conviction?”

  Lessa: “Well, I think that the problem is something deeper than that. I think it’s something beyond what we can do maybe. I think our court system is as good as it’s going to be. I think that it’s fair. And I think that there’s other areas that need to be attacked.”

  After his first response, I was inclined to excuse Clarence Lessa. But his answer to my follow-up question revealed that he was not unthinkingly law-and-order, that his objections were sensible. Also, he fit Clarence Darrow’s main criterion for a defense-minded juror; he smiled a lot. We decided to take a chance on Lessa.

  I felt quite the opposite about Joanne M. Murphy, a forty-five-year-old Catholic schoolteacher. Her stern response: “It’s here, so I’ll follow it.”

  “Well, if you were empowered with the authority to change it,” I pressed, “what would you do? Would you lower the burden to make it easier for the prosecution?”

  The invisible shades behind her eyes slammed down.

  “I don’t know what I would do really.”

  Moving on, the jury had been told by Judge King that there could only be, of course, two possible verdicts in the case. Guilty and not guilty. Speaking to two Scottish-born jurors, I said: “You’re aware that in your homeland there are three verdicts?”

  Irene Angeles and James McGowan answered no.

  “I believe it’s guilty, not guilty, and not proven,” I said.* “Have you heard of that in Scotland?”

  Neither had.

  As I do in every case, I proceeded to ask each prospective juror his or her hobby. Prospective jurors are always asked their occupations, but a person’s hobby is far more revealing. Many people don’t particularly enjoy their jobs, but no one dislikes his hobby. Employment as an accountant or salesman doesn’t tell me nearly as much about a person as does a penchant for deer hunting or community volunteer work. The answers of the jurors varied all the way from sailing and fishing to needlepoint and woodwork.

  “No one has mentioned watching TV yet,” I said with a smile. “I thought that was popular. I guess it’s not.”

  “We don’t admit it,” said a voice from the panel.

  Everyone laughed.

  Back to business, each side handed the judge a sheet listing its peremptory challenges (“peremptory” because no reason at all has to be given), and prospective jurors were excused. “Please remember,” the judge said kindly, “this is not a reflection on your intelligence, good looks, or patriotism.”

  The jury we finally ended up with consisted of seven women and five men ranging in age from thirty-six to seventy-four. Two alternates were also chosen.

  Almost immediately, I began worrying about a juror perched right in the middle of the front row.

  Frank Everett, who was dressed very conservatively, had a rock-solid jaw and florid complexion, as if the good American red blood coursed close to the surface. This Kansas-born, deep-dyed Republican was a retired engineer, and Len and I were gambling that he and Michael Nevins, an electrical engineer, would be professionally unimpressed by the Government’s lack of hard evidence in the case. Everett had previously served on a criminal jury that had found the defendant guilty, but the case involved child molestation, and Len and I had been inclined to discount it. But now, watching sourpuss Everett as he scowled constantly at the world from front and center, I began to feel we had made a grave mistake. We had decided to excuse him when we first prepared our list, but when we got down to our tenth and last peremptory, we decided instead to challenge someone we disliked more.

  As the judge was telling the jurors to return to court promptly the next morning and advising them against discussing the case with anyone, I leaned over to Len, pointed to Everett’s name on the jury list, and whispered, “This guy is just the kind of juror always wanted as a prosecutor.”

  Len grimaced.

  I shrugged, shaking my head.

  It was too late now.

  CHAPTER 32

  THE TRIAL BEGINS

  FEBRUARY 4 DAWNED CRISP and sunny. Hurrying the few blocks from my hotel to the courthouse, laden with my stuffed briefcase and an extra armful of papers, I fleetingly acknowledged it was going to be one of those bright, zestfully invigorating winter days, a patented San Francisco specialty. Too bad I would miss it.

  “One thing, your honor, before you bring in the jury,” I said, rising. “There’s going to be reference at this trial to the transcript of Jennifer’s theft trial. The question is, how should we refer to it?”

  My co-counsel interjected that he understood that “witnesses would be instructed by both sides to say they testified at an ‘earlier proceedin
g,’ without indicating it was a theft trial.”

  “Yes,” agreed Judge King. “That’s what I thought we had agreed to.”

  We had, but I was suddenly having serious doubts about it. I spelled out my worries. “It’s conceivable, particularly since the jury knows that Buck Walker has been prosecuted and convicted of murder, that they may think the ‘earlier proceeding’ against Jennifer was also a prosecution for murder, the same murder charge she is now facing. That would be very harmful to Miss Jenkins.”

  Since she wouldn’t be standing trial again had she been acquitted, I reasoned the jury might conclude that Jennifer had been previously convicted of murder and, as they’d read about so often in the news, the conviction had been reversed on a technicality and sent back for retrial.

  “I would rather have them know it was a theft trial,” I said, “as opposed to speculating that it was a murder trial.”

  It was finally agreed we would say that the prior transcript came from Jennifer’s theft trial, with no reference, of course, to her conviction.*

  One familiar spectator in the crowded courtroom was Wally McIntosh, who sat in a front-row seat, just as he and his wife had during the Walker trial. Kit, recovering from another cancer operation, had to remain home this time. But her interest in the Palmyra case had not slacked. Mac’s sister had obtained Wally’s solemn promise to call her each evening and brief her on the day’s events, which he chronicled in a spiral notebook. Several weeks earlier, she had mailed out nearly a hundred copies of a one-page letter addressed to the “Friends and Complement of the Sailing Yacht SEA WIND.” In it, she wrote: “Jennifer Jenkins’ murder trial is scheduled to start on February 4th in San Francisco. It is still our hope to be able to be there, inasmuch as my husband and I still feel strongly about her involvement. Thank you all for your continuing support. This has been a difficult period for everyone involved. We can only hope that justice will finally be served.”

  When the jurors entered the courtroom at 9:50 A.M., Judge King read them several brief instructions, and advised them that Buck Walker would not be “available”† to testify for either side in the case, and not to concern themselves with the reason why.