“Yes.”
“And that was a lie. Correct?”
“Ultimately, I did want to get the boat to Mary Muncey,” she said firmly.
“Was it because it would possibly have been a defense to the theft charge that you told that jury that you were returning the boat to Mrs. Muncey?”
Enoki was zinging Jennifer now. My having brought out the matter on direct examination could take out only some of the sting, not all.
“No. It was because that’s what I knew should be done. And that’s what I would have done if it was my choice to make.”
“Okay. So you deny that you were setting up the defense of ‘return of property’ by saying to that jury that you were returning the boat to Mrs. Muncey.”
“I deny that, yes.”
The prosecutor asked Jennifer if she had ever considered the possibility before leaving Palmyra that by some remote chance the Grahams had got lost and were perhaps injured and alive somewhere on the atoll.
“I would never have left Palmyra if I thought there was any chance that Mac and Muff were there.”
“So you were—as of the time you left Palmyra Island—you were absolutely positive in your own mind that they had both died.”
“Yes.”
With that, court adjourned for the day. Jennifer had tasted only forty-five minutes of a cross-examination that would resume first thing in the morning.
Adjournment at this point in the proceedings was a break for the Government. Enoki had the rest of that afternoon and all night to prepare for his final assault on Jennifer’s credibility.
9:37 A.M., THURSDAY,
FEBRUARY 20, 1986
ENOKI ADVISED the court outside the presence of the jury that the Government intended to call a rebuttal witness at the end of the defense’s case and wanted to be able to cross-examine Jennifer now on the witness. He added that he assumed the defense would object to the testimony of the witness.
Indeed, we did object. When Enoki handed over an FBI 302 report just the previous afternoon—while I was still questioning Jennifer—Len and I had seen immediately what the Government was up to, and we both knew that the law did not permit it. But since we didn’t have the legal citations to the cases on this point, Len went to the library that night for supporting authority prohibiting the prosecution from pulling this witness out of the hat at the eleventh hour.
Enoki told Judge King he wanted to call to the stand one George Gordon, a resident of Hawaii who claimed he met Jennifer Jenkins in a bar on the Big Island in 1975, shortly after her boat-theft conviction. In his interview with FBI Agent Hal Marshall, Gordon claimed that he and Jennifer had been drinking together, and during the course of the evening she had made several remarks about the Palmyra case.
Enoki said the witness would rebut Jennifer’s testimony on several points.
Weinglass broke in. “Your honor, yesterday the prosecution handed us a statement that they have a witness who they found back in December 1985.”
“Oh,” Judge King said, raising his eyebrows, “they didn’t tell you about him?”
“They purposefully withheld the existence of this witness from the defense,” Len charged, “although they took his statement on January 6, 1986, one month before this trial began.” Len pointed out that under all the cases, including People v. Carter, a California supreme court case, witnesses like Gordon are precluded from testifying in rebuttal so as to avoid, as the Carter court ruled, “any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of the trial with an additional piece of crucial evidence.”
Judge King looked at Enoki. It was his turn.
Enoki simply said he didn’t think he was required, under the law, to inform us of the existence of the witness, and went on to set forth the six points Gordon would testify to. “First, that Jennifer was scared, insecure, and not comfortable on Palmyra. Second, that she wanted to leave the island. Third, that she was afraid the Iola wouldn’t make it away from Palmyra and that the craft would sink. Fourth, she had wanted to obtain some passage with the Grahams, but that was either denied or refused for the reason that the Grahams didn’t want to take her or weren’t leaving or some other reason he’s not sure of. Fifth, that the two couples didn’t get along very well.”
Enoki’s next and final point was the one I feared most. He said Jennifer had told Gordon that “if Buck Walker told his story, she would be in some trouble.” (The FBI report quoted George Gordon as saying: “Jennifer told me if Buck Walker spilled his guts, she would be in a lot of trouble.”)
When I now asked Jennifer about George Gordon, she said he was a “beach guy” who worked on cars. She said she had never been intimate with Gordon, but had had drinks with him once or twice, and said she could not recall having any such conversation with him. Gordon’s statement, especially the “spilling the guts” part, did sound unrealistic to me. Even if Jennifer were guilty, it seems highly unlikely she would make such a clearly incriminating remark, particularly to a casual acquaintance. But on the other hand, why would Gordon lie?
Obviously, the purported “spill the guts” statement was a hundred times more serious than any of the others. If true, and if believed by the jury, the statement came close to being an outright confession to the murders. As Enoki pointed out to the court, “would be in a lot of trouble” couldn’t refer to the theft, since at the time of this alleged statement she had “already been convicted of the theft charge.” However, Jennifer told me she thought it was before her theft trial that she had drinks with Gordon.
Len told the court that Enoki told him that “the witness was drinking at the time he allegedly heard this statement.”
“Who is George Gordon?” Judge King asked, bemused.
“Mr. Gordon is a former, well, he was an auto mechanic at the time these statements were made at a bar in the Puako area of the Big Island,” Enoki said. “And he is now a charter fishing boat captain in Maui. I want to correct something Mr. Weinglass said. I told him Mr. Gordon would testify that Jennifer Jenkins, not Mr. Gordon, was intoxicated at the time the statements were made. I would assume that he had something to drink. But he will deny he was in any way intoxicated or under the influence of alcohol.”
The judge predictably sustained the defense objection to George Gordon’s testimony; the jury would never hear from the former auto mechanic. But the Gordon statement was quoted in the following morning’s San Francisco Chronicle, where any member of the jury could read it.
The FBI had become aware of Gordon while looking for witnesses with knowledge of Jennifer’s relationship with another man after her return from Palmyra. This lover had, like Buck Walker, spent time behind bars and had a history of violent activity. That relationship the jury would hear about later, and the implications were almost as serious as those of the Gordon matter.
Resuming his cross-examination when the jury was back in place, Enoki asked if Jennifer knew that by helping Walker flee, she herself was breaking the law.
“I wasn’t sure whether my going with Buck was wrong legally or not. But I thought that it might be. I didn’t know.”
“And you knew if you turned him in,” Enoki continued, “it was your understanding that he faced a lengthy prison term. Isn’t that right?”
“Yes.”
I scribbled on my pad, “How is this helpful to prosecution?” A few seconds later, I added: “It can’t be.”
Enoki changed the subject to the condition of the Iola, asking Jennifer specifically about the frequency of pumping out the bilge while the boat had been moored at Palmyra.
“Twice a week, probably.”
“How deep was the water in the bilge when you pumped it out?”
“Oh, maybe a couple of inches.”
“Did you ever state to Mr. or Mrs. Leonard that you never wanted to leave Palmyra on the Iola?” he asked.
“Absolutely not.”
“While you were on Palmyra, did you ever thi
nk that the Iola would not get you off the island safely?”
“My major concern with getting off of Palmyra was in our ability to navigate, without a motor, out the narrow channel, because of the problem we had coming in. I spoke to Mac about that, and he said that I shouldn’t worry about it, that if the winds were bad, that he could push us out with the Zodiac dinghy.”
“Other than that, did you ever have any doubts about the Iola getting you off of Palmyra to somewhere else, wherever that may be, with safety?”
“No, I didn’t. No.”
The prosecutor’s cross-examination was typical—not really very cross. This is the style one sees day in and day out throughout the nation’s courts, not the aggressive demeanor portrayed in fiction. Perhaps in this one area lawyers could learn from dramatists. When one is trying to destroy credibility, the primary purpose of cross-examination,* although the questioner does not necessarily have to be continuously aggressive, and although some of his questions may be velvety in nature and tone, it’s my belief that most of his questions should have a cutting edge to them. Either Enoki didn’t agree with this, or such an approach simply wasn’t in his nature. In fact, as is the conventional practice, Enoki never once asked Jennifer a “why” question during his entire cross-examination of her.
Enoki next asked if Jennifer recalled having asked the Taylor brothers to bring seagoing epoxy, which is used to repair leaks below the waterline, down to Palmyra. She answered that this was Buck’s realm, and she did not “know anything about that.”
A crucial area of examination for the Government involved Jennifer’s insistence that she and Buck had planned to travel to Fanning for new supplies.
She denied that Jack Wheeler had used the word “impossible” to describe a trip from Palmyra to Fanning. “He indicated it would be difficult.”
“You did know that the trip would have been against the wind?”
“Yes.”
“Mr. Wheeler told you there would also be an approximately two-knot current that was against you on the trip to Fanning. Correct?”
Jennifer considered that a moment.
“I don’t recall him saying that, but he may well have…I knew it was going to be a difficult sail.”
Enoki persisted on the issue of the current between Palmyra and Fanning, wanting to know if it would be necessary to know its speed in order to navigate.
“The way I navigated was I took sights. I saw where I was, and knew where I was going, and I took a compass heading that would take me in that direction.”
“So, you’re saying it didn’t matter to your method of navigation…the speed of the current?”
“That’s correct.”
“Doesn’t there ever come a point,” Enoki probed, “where the current might become so strong that you are simply unable to make progress tacking?”
“I never experienced that,” Jennifer said.
“Would the speed of the current have been relevant to determining how long it would take you to get from Palmyra to Fanning?”
“Yes.”
“And the state of your provisions would be affected by how long it would take you to get from Palmyra to Fanning, would it not?”
“Yes, but it was, I mean, Fanning should be like a two-day trip. So, by me planning for the possibility of it taking five, six, seven days—I was saving a seven-day supply—that would cover, as far as I was concerned, any situation of being becalmed and having it take longer than it should.”
Asked how she and Buck were planning to get back into the Palmyra lagoon upon their return from Fanning, Jennifer said they had discussed two possible ways. “One would be to wait for an advantageous wind that would be coming from behind us to sail up into the lagoon, and the other way would be if we were having trouble doing it, I’m sure Mac would have come out and helped us.”
“You were expecting the Grahams to be there upon your return?” Enoki asked.
“Yes. They were going to be staying for a long time.”
Enoki veered to yet another subject I had covered on direct. Couldn’t she and Buck have left the Sea Wind at Palmyra, sailed elsewhere, and alerted the authorities anonymously? Though I had asked Jennifer this precise question during our trial preparation, I had elected to omit the “anonymous” part of it on my direct examination of her.
“That’s what I wanted to do.”
“And you say that Buck convinced you not to do that?”
“Right. Buck was absolutely adamant.”
“If you had left the Sea Wind on Palmyra, and you had gone to another port in the Iola, did you feel that Mr. Walker would have physically prevented you from making a phone call or any other kind of report to the authorities?”
Jennifer paused. “I don’t know the answer to that question.”
“You were aware, prior to leaving Palmyra, that Mac Graham had regularly scheduled radio communications with Curt Shoemaker. Is that right?”
“Yes.”
“And you were aware that, obviously, those radio communications would no longer be met by the Grahams?”
“Yes.”
“Neither you nor Mr. Walker used the Sea Wind’s radio at all. Is that correct?”
“That’s correct.”
“Did either of you try to use the radio?”
“No.” (Jennifer had testified on direct that she didn’t know how to operate the Sea Wind’s radio, and didn’t believe Buck did either. The radio on the Iola, she explained, “was different. It was just a receiver, not one you talked out from.”)
Gaining speed, Enoki now asked Jennifer, “You will agree that contained in your diary are many details about what you did on Palmyra?”
“Uh-huh.”
“You wrote down things like going fishing?”
“Yes.”
“You wrote down where you went on certain days?”
“Yes.”
“You wrote down who you saw and what you did?”
“Yes.”
“You even wrote down arguments you had with Mr. Walker. Is that right?”
“Yes.”
“But there is nothing in this diary about you and Mr. Walker arguing about whether you were going to leave Palmyra on the Sea Wind. Is there?”
“That’s correct.”
Enoki’s intended implication was clear. No argument had ever taken place.
“I believe you stated on direct examination that the latter part of your diary entry on August 30th where it says ‘And then tragedy’ was not written August 30th?”
“Yes, that’s correct.”
“There are other entries in that diary where you did write about the day’s events after the completion of the day, are there not?”
“There are a number of them, yes.”
“But you didn’t do this on this particular day, August 30th, correct?”
“That’s correct.”
Next was the inevitable attack I had tried to soften: Jennifer’s prior perjury.
“Now, you do admit—you testified about telling a previous jury, at your…at a theft trial where you were the defendant—that the Iola ran aground in the channel. Is that correct?”
“Yes.”
“And you said it while you were on the witness stand like you are today, correct?”
“Yes.”
“And that means you took the oath before you testified?”
“Yes.”
“So, when you told the jury that while towing the Iola out of the channel it had hung up on the rocks, you knew you were lying and committing perjury?”
“Yes.”
“Now, as I understand your testimony, the reason you did this was because Mr. Walker told you on Palmyra not to tell the truth. Is that correct?”
“Yes, he said I should say the Iola had gone aground, and that that’s why we had to go back and get the Sea Wind.”
“Yet, when you got to Hawaii, Mr. Walker told people that he had won the Sea Wind in a chess game. Isn’t that right?”
“Yes.�
�
“Isn’t that totally inconsistent with even the rehearsed version of what happened?” Enoki asked, illustrating the maxim that falsehoods not only disagree with truths, but usually quarrel among themselves.
“No,” Jennifer said coolly. “He was only talking about if the authorities asked us.”
With respect to Jennifer’s testimony on direct that she was cautioned about the inadvisability of changing her story at her theft trial, Enoki asked: “You’re not suggesting that one of your attorneys in that case told you that, are you?”
“I wouldn’t want to say that they told me to lie, but I was advised by one of my attorneys that if I testified inconsistently with statements that I made to the FBI, the trial would probably go poorly against me.”
“Just so the record is clear, neither Mr. Bugliosi nor Mr. Weinglass were involved in that case?”
Jennifer raised her voice.
“Absolutely not.”
“Did your attorneys at the theft trial know that the true fact was that the Iola had not run aground and you had not left it there?”
“Yes.”
Enoki next elicited from Jennifer that at her theft trial she denied taking the photographs of the Iola and the Sea Wind in the open sea off Palmyra.
“That was a lie, too?” he asked.
“Yes, it was.”
“Do you recall Bernard Leonard testifying that you also told him that you attempted to sail out of the lagoon on the Iola, and it wound up on the reef and that’s when you went back to get the Sea Wind?”
“I think I do, yes.”
“I gather you deny saying that to Mr. Leonard?”
“No. With all that was happening that day, I could have easily told Mr. Leonard that story, but then when I was speaking to Mr. Shishido, it got to where I spoke more close to the truth.”
“Isn’t it true the reason that your story changed between Leonard and Shishido was because Mr. Leonard told you that you would have never left on the Iola if the Sea Wind was sitting there?”
“No, it didn’t change for that reason.”
Noon recess.
BEFORE THE afternoon session resumed, Judge King asked each side, since we were nearing the conclusion of the trial, to submit instructions to the jury we wanted him to add to his standard instructions. There was one instruction I wanted him not to give, and because my request was so unusual, I had alerted Judge King before the trial began so that he would have time to mull it over at length. I handed him an article I wrote in 1981 titled “Not Guilty and Innocent—the Problem Children of Reasonable Doubt.”*
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