Jennifer was tugging at my coat sleeve. “That’s not what happened!” she hissed. This was the first time I had ever seen Jennifer express any emotion about the case. She could sit, apparently blasé, through the erroneous testimony of Jack Wheeler, and in fact remain indifferent throughout the several years of trial preparation, but this polygraph issue had touched some nerve.
“I wanted to take it”—she was still yanking my sleeve—“but after Buck said no, they wouldn’t let me!”
Judge King advised that if he allowed us to tell the jury about Jennifer’s willingness to take the 1974 polygraph, the Government would be permitted to present its own version of why the polygraph agreement imploded.
“I’m not going to pursue it, Jennifer,” I said quietly.
“Why?” She looked stricken.
“There’s too much to lose by getting into a dogfight with the prosecution on this issue. They’ve already told us what they’re going to say. They’re going to have a couple of witnesses from the FBI and U.S. Attorney’s Office take the stand and say you refused to take the test.”
“But that isn’t the way it happened. I want you to fight this.”
“I’m not going to take on the Government on this issue, Jennifer,” I said. “The jury will have just as much or more reason to believe several federal officials than they will to believe you. And if they believe the Government witnesses, this means they’ll believe you are lying, at this trial, when you testify that you never refused to take the test. There’s no way I’m going to create an enormous risk like that, Jennifer. We’ve got enough problems. When you’re already being mauled by a bunch of bears in the forest, you don’t shout out, ‘Bring on more bears.’”
Jennifer looked as if she still wanted to try to convince me otherwise when I told the court that the defense did not wish to present evidence on the polygraph issue.
THE GOVERNMENT next called Bernard Leonard to the stand. It was very clear that Leonard and his wife, together with Shoemaker and Shishido, would be by far the most damaging witnesses against Jennifer. The Leonards had made it their personal crusade to see Buck Walker and Jennifer Jenkins convicted of murder. I had no doubt that they honestly believed that both Buck and Jennifer had committed murder, but I also considered their bias so great that they might not hesitate to do whatever was necessary to ensure the second conviction in the case. Had my pretrial contact with Leonard had any positive effect? I’d soon find out.
“Is the individual who identified herself to you on Palmyra as Jennifer Jenkins in the courtroom today?” Schroeder asked.
“Yes.”
“Could you point her out, please?”
“She’s right there,” Leonard answered quickly, pointing a long finger at Jennifer. Somehow, he made the simple words sound like an identification not just of the person, but of the murderer of Mac and Muff Graham. Obviously, all my pretrial efforts aimed toward keeping Leonard from using this type of accusatory tone had failed.
Leonard testified that the Iola was in “very poor shape and very unseaworthy. It was a carvel-planked boat [a wooden boat built upon ribs] and the planks were fastened to the ribs. As the boat gets old and tired, the planks start to wobble and warp, letting water in.” He then volunteered, as would be his wont throughout: “So this boat had all those problems, and was also fiberglassed. When you fiberglass a carvel-planked boat it’s a last-ditch effort.”
“While on Palmyra, did Jennifer Jenkins say anything to you about their trip on the Iola from Hawaii?” Schroeder asked.
“She said that at times during the trip she was knee-deep in water down below.”
“Did you have occasion to talk to Jennifer Jenkins about how they would manage to leave Palmyra?”
“She said that she wasn’t going to leave the island on that boat.”
This was explosive testimony I had never heard before. At a minimum, Leonard’s last statement flatly contradicted what Jennifer was going to testify to: that after Mac and Muff disappeared, she wanted to leave Palmyra on the Iola and had to be talked into taking the Sea Wind by Buck.
Leonard went on to testify that Jennifer had told him she and her boyfriend were low on food and interested in bartering various boat-equipment items in exchange for supplies. “We did not barter with them,” he said emphatically.
Although Leonard said he personally visited the Sea Wind “close to twenty times” and he and his wife were “quite often” dinner guests of the Grahams, he said he never once saw Jennifer or Buck aboard the Sea Wind, or either of the Grahams on the Iola. In fact, Leonard said, he had never once seen the Grahams even “associating” with Jennifer and Buck.
Leonard testified that Mac Graham always locked the door to the Sea Wind’s cabin whenever he and Muff left their boat.
Asked if the Grahams had ever invited him aboard the Sea Wind at a time they were not going to be present, Leonard said with conviction, “No. I don’t think the Grahams would ever have done that.” Schroeder was like a balloonist watching his craft steadily inflate, just adjusting the lines every now and then.
When asked if he and his wife had decided to leave Palmyra early, Leonard answered that they had, then volunteered, “There was an uncomfortable feeling. The Iola people were not the usual type people that we were used to meeting on cruises.”
Asked about the last visit the Grahams had made to the Journeyer, Leonard didn’t answer directly but started to launch into another narrative, and I objected, adding for the jury’s edification, “He obviously likes to volunteer information.”
The judge sustained the objection, cautioning Leonard to answer only yes or no to questions that called for such responses.
Schroeder: “Who was present during this last meeting?”
“Mac, Muff, Evelyn, and myself,” Leonard said through tightly compressed lips.
“Did you notice if Mrs. Graham was showing any emotion while she was talking to your wife?”
“Yes.”
“And what was she doing?”
“She was crying.”
“After you sailed away from Palmyra, did you learn from your wife why Mrs. Graham had been crying?”
The question called for hearsay, and I objected, at which point Leonard blurted out over my objection, “All these yeses don’t tell the story.”
“You are not on trial for anything,” Judge King snapped at him. “Just answer the questions that are asked.”
Everything Leonard volunteered was prejudicial to Jennifer—and I was glad to have the jury see that the judge had heard enough, too.
As a matter of strategy, I try to make as few objections as possible in a jury trial. Constant interruptions irritate the jurors, who must sit there in weary forbearance. Moreover, if the jury concludes from the lawyer’s objections that he is trying, by technicalities, to keep them from hearing relevant evidence, his credibility in their eyes is hurt. But Leonard was supposed to answer questions, not try the case himself.
Leonard next testified that as he and Jennifer were being towed out in her dinghy to the waiting Coast Guard cutter on the day of her arrest, she told him that she and Buck had found the Zodiac capsized “over at” Paradise Island. Also, that she and Buck had attempted to sail away from Palmyra on the Iola, but got stuck on the reef in the channel. Minutes later aboard the Coast Guard cutter, Leonard said he was appalled when Jennifer changed her story and told the authorities that she and Buck had first attempted to tow the Iola out of the lagoon with the Sea Wind, taking the Grahams’ boat only after theirs got hopelessly hung up on the reef.
The prosecutor’s final line of questioning concerned Jennifer’s request that she be allowed to go to the bathroom after the Coast Guard cutter had tied up at the Ala Wai’s Hawaii Yacht Club. Leonard explained that because he was a club member, he had a key to the rest room, which he unlocked for Jennifer.
“Do you recall if she took her purse in with her?”
“Yes.”
“How long was she in the rest room?”
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“It seemed like a long time. Longer than was necessary,” Leonard again volunteered, continuing his unpaid summation for the Government.
“Did you hear or observe anything while Jennifer was in the rest room?”
“The toilet flushing. It was one of those valve-type toilets that you can repeatedly flush, and it was just constantly flushing.”
Leonard explained that his wife, Evelyn, arrived about then, and he asked her to go in to check on Jennifer.
“And what happened then?” asked the prosecutor.
“She came out with Jennifer.”
“No more questions, your honor.”
The prosecutor’s obvious intent was to suggest strongly that Jennifer had disposed of incriminating evidence of some kind while alone in the rest room.
As I’ve mentioned, my style on cross-examination is more confrontational than the norm. One reason may simply be my assertive personality, but another is the principal technique of cross-examination I employ to destroy credibility: the “why” question. When I feel a witness is lying, I just about know that he would not have acted—in a given circumstance—as a truthful person would have. Frequently, I already have evidence in hand that he did not. To expose his untruthfulness, I first elicit answers on preliminary matters (blocking off escape hatches), answers that, when totaled up, show he would be expected to take a certain course of action. The witness having committed himself, I then ask him what course he in fact took (unnecessary if what the witness did is already in the record), and follow this up with the “why” question, an inherently confrontational and argumentative approach. If time after time a witness is unable to satisfactorily justify conduct of his which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect. Among other techniques, I used this type of cross-examination with Bernard Leonard.*
I began my cross on the topic of the suspicious toilet flushing. “Can we assume, Mr. Leonard, that you felt that Jennifer may have been flushing something down the toilet she should not have been?”
“That entered my mind.”
“That what she was flushing down the toilet may have had some connection with what happened on Palmyra?”
Leonard: “It would naturally follow.”
“There’s been a stipulation from the prosecution that later that same day, Mr. Leonard, the FBI interviewed you and your wife. Can you tell this jury why you never saw fit to tell the FBI agents about the toilet-flushing incident?”
Leonard hesitated. “The agents were there outside the rest room,” he said.
“So, it’s your testimony then that they knew what happened, and therefore you didn’t have to tell them. Is that correct?”
“I suppose.”
“Why, then, did you tell these same agents that Jennifer was seen rowing in a dinghy in the harbor, and was subsequently caught by the Coast Guard? Why would you have had to tell the FBI that information?”
Leonard hesitated again, shifting in his seat. “I don’t remember that I told them that. They were there. Did I tell them that?”
At this point, I strode to the prosecution’s table and placed Leonard’s FBI 302 in front of Schroeder. Pointing to the relevant page, I quietly asked Schroeder if he would stipulate that Leonard, as the 302 showed, had told the agents this information. Probably thinking that he shouldn’t do anything to rattle his own witness, the prosecutor refused. But I was very confident the jury had got the message from what had transpired before their eyes.
Returning to the podium, I asked: “Mr. Leonard, on June 15, 1975, you were interviewed about this case by William Eggers, an Assistant U.S. Attorney, is that correct?”
“I talked to Mr. Eggers many times.”
“Are you prepared to testify now, under oath, that you told Mr. Eggers about this toilet-flushing incident? Are you prepared to testify under oath on that point?” I repeated, facing the jury, and not even looking at the witness.
Leonard paused, as if beginning to realize his misstep. “I don’t remember having told anybody about it,” he finally said.
“In fact,” I bore down, “the first time you’ve told anyone about this toilet-flushing incident is today in court, almost twelve years after it happened. Isn’t that true?”
“If it wasn’t asked, I have a hard time getting out anything of the story,” Leonard responded, without blushing.
I would return to Leonard’s alleged difficulty in getting his point across.
“Mr. Leonard, you testified that Jennifer told you she’d never leave Palmyra on the Iola. Is that correct?”
“That’s correct.”
“I’m interested in your state of mind with respect to this statement she allegedly made to you. You’ve certainly always felt, have you not, that this statement was relevant to the question of what happened to the Grahams on Palmyra, and why Buck and Jennifer ended up with the Sea Wind. Is that correct?”
“That’s right.”
“Again, Mr. Leonard, can you tell the judge and this jury, why then, when you were interviewed by the FBI on October 29, 1974, you never told them about this statement that she reportedly made to you?”
“All I can say is we answered the questions that we were asked. They probably didn’t ask that particular question.”
“Mr. Leonard, how could they have asked you that question? How would they have known if you didn’t tell them?”
“We told the story and they asked particulars that they wanted to know about. If we left that detail out, then I don’t know. I don’t remember.”
“So even though your state of mind was that Jennifer Jenkins’s statement that she’s never going to leave Palmyra on the Iola was relevant to what may have happened to the Grahams, by golly, if they didn’t ask you the magic question, you weren’t about to tell them. Is that correct?” I said, my voice rising in pitch.
“I don’t…know.” Leonard sounded like one of his worst students, quite a transformation.
Even though I knew I would hear from the prosecution or judge with my next question, I wanted the jury to know exactly what I thought of Bernard Leonard’s selective memory. “You’ve come up with a lot of these things just out of whole cloth, haven’t you, Mr. Leonard?”
“Mr. Bugliosi, please,” the judge said patiently. “You’ll get a chance to argue the case later.”
So far, I’d been impressed with the latitude I’d received from Judge King in cross-examining Leonard. Some inexperienced judges don’t realize how aggressive and even antagonistic cross-examination can properly be, and regularly sustain objections that the attorney is being “argumentative.”
I pressed further, slinging verbal darts in the direction of the witness stand. Leonard agreed with me that a witness on the stand in court is only supposed to answer questions.
“But on direct examination today, didn’t you volunteer a lot of information for this jury, Mr. Leonard, without being asked?”
“I tried.”
I paused a moment. I wanted the jury to let his bold admission sink in.
“But out of court, where you can volunteer information,” I went on, “you have to be asked the magic question before you give information, is that correct?”
“Well, that’s pretty argumentative,” Judge King said mildly.
I withdrew the question. Again, the message to the jury was clear.
The two most damaging pieces of his testimony out of the way, I essayed other matters.*
Since final summation has to be based on testimony and evidence at the trial, I proceeded to elicit a series of answers from Leonard that would serve as bases for argument during summation.
Yes, Leonard replied to my seemingly random question, in daylight on Palmyra, if one was on shore, or on one of the boats tied to the dolphins, one could see and identify the operator of a dinghy in the middle of the lagoon; yes, a dinghy is not the type of boat one would operate at sea because it would “swamp” (sink or be filled with water); yes,
he and his wife had been served meat by the Grahams on the Sea Wind, etc.
As we moved quickly through a number of topics, Leonard admitted that he’d never had a conversation with Buck Walker involving more than “three or four words,” but he and his wife had had many “friendly conversations” with Jennifer.
“Your wife discussed recipes with Jennifer, is that correct?”
“That’s correct.”
“And on the day you left Palmyra, your wife took a picture of Jennifer with her dog, Puffer, is that correct?”
“That’s correct.”
“So at least at the time you left Palmyra, you and your wife were not on unfriendly terms with Jennifer. Is that correct?”
Leonard paused so long before answering that even the court reporter made note of it in the transcript.
His answer, when it finally came, was delivered most begrudgingly. “I think that would be correct.”
I wanted the jury to understand that the Leonards’ very negative feelings toward Jennifer started after they learned of the disappearance and probable murder of Mac and Muff.
Since Jennifer intended to testify that she and Buck got along reasonably well with the Grahams, the defense had to start countering the prosecution position that they did not. I asked:
“And do you remember telling the FBI on October 29, 1974, Mr. Leonard, that the Grahams were also friendly with Buck and Jennifer; however, not extremely friendly because of their different life-styles?”
“I imagine I would have said something like that.”
“And is that your present testimony?” I asked.
“That’s my feeling.”
And the Sea Will Tell Page 41