And the Sea Will Tell

by Vincent Bugliosi

  “For your reading pleasure,” I told the judge with tongue in cheek, referring to the very dry subject matter.

  “I’m sure,” he muttered.

  The article dealt with the critical distinction between the terms “not guilty” and “innocent.” (It is nothing short of incredible that with legal treatises having been written on virtually every point of law imaginable, apparently none had ever been previously published on the subject in America. At least, none is listed in the Index to Legal Periodicals, or the Criminal Justice Periodical Index.) The genesis of the distinction is in the requirement that guilt must be proved “beyond a reasonable doubt.” But what does that hallowed phrase actually mean?

  The doctrine of reasonable doubt is, as Sir Winston Churchill once said of Soviet Russia, “a riddle wrapped in a mystery inside an enigma.” “This elusive and undefinable state of mind,” said J. Wigmore, the foremost authority on the law of evidence. “It is coming to be recognized that all attempts to define reasonable doubt tend to obfuscate rather than clarify the concept,” said E. Morgan, another authority. However, one all-important principle is implicit in the term—namely, that a jury does not have to believe in a defendant’s innocence in order to return a verdict of not guilty. Even their belief in his guilt, if only a moderately held one, should result in a not-guilty verdict. To convict, their belief in guilt must be beyond a reasonable doubt.

  In federal courts throughout the country, the judge properly instructs the jury that to convict, guilt must be proved beyond a reasonable doubt. Inconsistently, however, in the very same instruction (#11.06 of Federal Criminal Jury Instructions by Devitt and Blackmar), the judge tells the jury: “You are here to determine the guilt or innocence of the accused.” Under existing law, this added instruction should not be given since it is not the central purpose of a criminal trial to decide the factual question of the defendant’s guilt or innocence.” Yet even the U.S. Supreme Court in case after case* continues to define loosely and erroneously the jury’s function in a criminal trial. Needless to say, far less insightful state,† county, and municipal courts throughout the land, as well as authorities on the criminal law,‡ make the same mistake.

  To a lay juror—in fact, to anyone—“guilt” means that a person did whatever he is charged with doing, “innocence” that he did not do it. The completely reasonable assumption I wanted to erase from the jury’s mind was that their ultimate duty was to determine whether Jennifer did or did not participate in the Palmyra murders.

  While a defendant’s guilt or innocence obviously is the most important moral issue at every criminal trial, the ultimate legal issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt. If the jury does not fully understand this critical distinction, its ability to fulfill its function as the trier of fact will almost necessarily be impaired.

  In American criminal jurisprudence, a not-guilty verdict can result from one of two states of mind on the part of the jury: that they believe the defendant is innocent and did not commit the crime; or, although they do not believe he is innocent and tend to believe that he did commit the crime, the prosecution’s case was not sufficiently strong to convince them of his guilt beyond a reasonable doubt.

  Instead of the correct term “guilty or not guilty,” the incorrect “guilt or innocence” has insidiously crept into the American language and consciousness. Although the precise date and locus of its misconceived birth are not known, it has led a very robust life, shows no signs of aging, and, as we have seen, has been invested with the imprimatur of the highest court in the land.

  When jurors are deliberating, the media report that they are deciding the “guilt or innocence” of the accused. And a defendant found “not guilty” is usually reported by the press to have been found “innocent.” So, too, in novels, theater, movies and television. With this constant inundation, jurors naturally believe that their purpose at a criminal trial is to determine whether or not the defendant committed the crime. Even in the absence of such a deluge, they would almost automatically make this assumption. After all, though the prosecutor and defense attorney get caught up in the adversary process—with its attendant unblushing effort to maximize advantages and minimize disadvantages—jurors have a much more pristine view of justice. To them, justice is finding out the truth and then giving a person his due. And the question “Did the defendant commit the crime or not?” is much more compatible with their concept of justice than what they view as the gamelike “Did the prosecution prove it beyond a reasonable doubt or not?”*

  Instead of clearly and unequivocally disabusing jurors of their misconception, courts throughout the land repeat the incorrect notion. Along with judges, the great bulk of prosecutors use the term “guilt or innocence.” (In the Walker trial, Enoki told the jury: “We are determining Buck Walker’s, not Jennifer Jenkins’s, guilt or innocence in this particular case.”) And defense lawyers everywhere can be heard arguing to juries that the prosecution has not proved guilt beyond a reasonable doubt, and in the next breath stating, “Now, in determining the guilt or innocence of my client, take into consideration…” In fact, the textbook of the Association of Trial Lawyers of America states that “the determination of guilt or innocence is the sole province of the jury, and is the essence of our system.”

  What it all comes down to in an actual courtroom situation is this: if the question that is uppermost in the jurors’ mind when they retire to deliberate is “Did he do it or did he not do it?” as opposed to “Did the prosecution meet its burden of proof or did it not?” then even though the evidence against the defendant is only moderately strong (as opposed to the requisite very strong) the jury will probably be psychologically attuned to a conviction.

  For this reason, I asked Judge King to delete all of the many references to “guilt or innocence” from his instructions, particularly the charge to the jury that it was its duty to determine the guilt or innocence of the accused. The judge said he had read my article, and although he had never thought of the matter before, had to agree with my conclusions. But he hastened to add, “Look, I’ve been giving the guilt or innocence instructions for years. How do you expect me not to give basic instructions that are in Devitt and Blackmar, that are a part of the standard instructions of the federal courts given everywhere? In all my years, I’ve never been asked not to give these instructions.”

  I had saved my ace in the hole. “What if I furnished you with evidence that the coauthor of your book of instructions doesn’t use the term ‘guilt or innocence’ in his own court?”

  “What do you have?” the judge said.

  I showed him a long piece about my article in The National Law Journal of March 1, 1982. A staffer had contacted Judge Edward J. Devitt (Chief Judge, United States District Court for the District of Minnesota), the horse’s mouth, for his comment on my article. After reading it, Devitt remarkably told the Journal he didn’t use the phrase “guilt or innocence” in his own courtroom. (The judge uses the phrase in no fewer than ten instructions in his own book, which is cheerfully parroted by federal judges throughout the country.)

  “Okay,” Judge King said, after reading the article. He agreed to delete all uses of the phrase “guilt or innocence” in instructions to Jennifer’s jury.

  While not a pivotal victory, it perhaps could, in company with others, help me persuade the jury to return a verdict of not guilty. Of course, I still intended to argue Jennifer’s innocence to the jury, but not in the context that her “guilt or innocence” was the ultimate issue for them to decide.

  WHEN COURT went back into session, Enoki resumed his cross-examination. “When you found the Zodiac, Miss Jenkins, do you recall whether the tide at that time was high or low?”

  It wasn’t the first time he’d phrased a question in a way that indicated—grammatically, at least—that he was accepting Jennifer’s version of events. Of course, Enoki did not believe her and was trying his best to
destroy her credibility on the witness stand. It was simple carelessness on his part not to qualify his questions with “allegedly” or “you claim” or some other terminology to signal to the jurors his disbelief.

  “I don’t have a specific recollection, but I know that it wasn’t high tide, I mean, I don’t know where in between low and high it was.”

  “Okay. Would it be fair to assume that at high tide, the Zodiac, from where you found it, would have been partially in the water?”

  “I…I don’t know that.”

  “Okay. It was one and a half feet from the water when you found it. Correct?”

  “Yes, it was about one and a half to two feet from the water when I found it.”

  “And the gas tank was approximately the same distance from the water?”

  “Yes.”

  “You remember Agent Shishido testifying that you told him you found the Zodiac overturned in the lagoon and the gas tank was floating nearby?”

  “Yes.”

  “And you deny telling him this?”

  “I told him that I thought the dinghy had overturned in the lagoon, and that both the gas tank and dinghy had floated ashore.”

  Enoki asked Jennifer about her testimony regarding the various obstructions in the lagoon. Wasn’t it true, he asked, that the lagoon was shallow enough in the area where the steel poles stuck up out of the water for the Grahams to walk to shore if their Zodiac had struck one and tipped over? Jennifer agreed it was shallow enough, but went on to describe again the occasion when she and Buck were rowing their own dinghy across a shallow stretch of the lagoon.

  “He got out of the dinghy, and the sharks came after him immediately. So, I felt that even if Mac and Muff had their boating accident in shallow water and had been thrown out, that—you know, that was the image that was in my mind of what might have happened.”

  “Then you were not thinking of a drowning?”

  “I just…all I knew was that I found the dinghy upside down. And in searching for Mac and Muff, I found them nowhere. It was evident to me that something terrible had happened.”

  When Enoki asked if Jennifer was—by August 30, 1974—tired of living on Palmyra, there was a long pause.

  “I don’t know how to answer that question,” she finally stated. “If I had my choice of someplace to go, I would not choose Palmyra. I felt that way then. Palmyra was not my favorite place to be.”

  “Did you want to leave Palmyra for reasons other than going to Fanning and getting resupplied?”

  “No, my preference would have been to wait for Richard Taylor and his brother to come down.”

  “You do admit that you were eating virtually nothing but coconuts in the last week in August?”

  “Well, and fish. And we did have stores. But I was touching the stores as infrequently as possible.”

  Enoki read the August 25 entry from Jennifer’s diary: “‘For the first time in three days we’ll have something other than coconuts for dinner—beans.’ So that would mean that on at least August 22nd, 23rd, and 24th, you didn’t have anything except coconuts for dinner.”

  “Yes, sir.”

  “Do you recall telling Tom Wolfe that you were sick and tired of eating coconuts and fish?”

  “I could have easily said that.”

  “I gather you were eating the food on the Sea Wind from the time of August 30th onward?” Enoki asked.

  “Yes.”

  The next subject on Enoki’s list was the cake-truce incident the jury had heard so much about. “The 28th of August is the date on which the cake-truce incident, as Mr. Bugliosi refers to it, supposedly occurred,” the prosecutor said. “Now, as I understand your testimony, you don’t remember whether you took a cake over to the Sea Wind on the 28th?”

  “That’s correct.”

  “Now, you were running out of food supplies at that time, were you not?”

  “Yes.”

  “Wouldn’t a gift of food from you have been an important event for you at that time?”

  The scenario being advanced by Enoki was obvious: the murders occurred on August 28 after Jennifer and Buck had gone to the Sea Wind with a cake, and she did not mention the visit in her diary because the Grahams were murdered that night.

  “I brought things over to Mac and Muff periodically, things that I had made for them,” Jennifer said. “Without having it in the diary to refresh my memory, I would not remember it at this point.”

  “Well, you did put in the diary for the 28th that you husked coconuts, and charged batteries, and a few other things that you did that day. Correct?”

  “Yes.”

  “But there is no entry for going to the Sea Wind, or taking a cake to anyone that day.”

  “Yes. That’s correct.”

  “Now, I believe your testimony also was that Mr. Shoemaker relating that Mac Graham had said something about a truce on that day must be incorrect?”

  “Yes.”

  “Because there was no need for a truce in your view of what was going on?”

  “Yes.”

  Enoki stared at Jennifer for a few moments. “If you were getting along at that time, was there any reason for you to tell Mr. Wolfe that you weren’t getting along with the Grahams?” he finally asked.

  “I don’t believe that I ever indicated to Mr. Wolfe that we weren’t getting along.”

  Enoki now began to take Jennifer over the events of August 30. “You said that Mr. Walker first mentioned this dinner invitation at approximately 9:00 A.M. Is that correct?”

  “Yes.”

  “Between eleven o’clock and very late in the afternoon—when you were on the Iola—you had the Iola’s dinghy. Isn’t that correct?”

  “I believe that’s correct.”

  “Because otherwise you would be on the Iola with no way of getting ashore. Correct?”

  “Yes.” When Jennifer hedged by adding that it was “possible” that Buck had the dinghy since she “didn’t need it” during the day, Enoki quickly firmed up her original position.

  “A few days earlier you had gotten into an argument with Mr. Walker about him taking the dinghy and leaving you stranded on the Iola. Correct?” Enoki asked.

  “Is that in my diary?”

  “If you want to look at it…I believe it’s August 19th.”

  “Yes, I see it.”

  “It says there: ‘R came by to bake cakes and cookies which once again infuriated me…then sunshine. But I was stranded as he took the dinghy to shore. Slight confrontation, and to our separate corners for the night.’ Correct?”

  “Yes.”

  “Now…do you recall testifying in your theft trial that you had the dinghy on August 30th?”

  “I don’t specifically recall, but I generally had the dinghy on the boat. So I could have easily testified to that, yes.”

  “So, you did always have the dinghy that day, as far as you can remember?”

  “As far as I can remember, yes.”

  This, of course, was a critical issue I had discussed in detail with Jennifer long before the trial, and she had told me that Buck had the dinghy that day. Her current version, the same as her theft-trial testimony, could be taken to imply that Buck had not worried that she might come ashore without warning. Enoki could now argue that Buck’s lack of concern showed that she had been involved in the murders.

  Enoki next queried her about hearing the sound of the Zodiac’s engine at some point that afternoon. “I believe you indicated on the chart that the motor sounded to you like it was going away from you, along the shore of Cooper and Strawn islands. Is that correct?”

  “Yes, the sound was getting further away.”

  “By ‘further away,” you mean further away from where you were on the Iola?”

  “Yes.”

  “So, the sound could equally have been going in a direction from the Sea Wind into the middle of the lagoon as well. Is that correct?”

  “Yes.”

  “Now, after you heard the Zodiac motor, did
you actually hear it shut off, or did it just sort of disappear into the background?”

  Again, a question worded in a way that, if taken literally, actually accepted Jennifer’s version of events.

  “I just…I know that at some point I either ceased to hear it, or ceased to listen to it. One or the other.”

  “I gather during all these times that you saw Mr. Walker during that day, you didn’t see any bloodstains on him?”

  “No.”

  “You didn’t see any scratches, or any indications that he was injured?”

  “No.”

  “What was he wearing that day? Do you remember?”

  “He was wearing a pair of shorts.”

  “That was his customary attire?”

  “Yes.”

  “Was he wet at all during any time of the day?”

  “He perspired a lot, so he was always kind of—”

  “Well, I mean, wet to the point where it was obvious he had been in the water. Were his shorts wet, or was his hair wet?”

  “I don’t…I don’t remember anything like that.”

  “Do you recall any peculiar smells about him, such as smoke or gasoline or kerosene?”

  “No.”

  “You found no bloodstains or signs of a struggle when you went on board the Sea Wind that night?”

  “No, nothing like that.”

  “Nothing unusual?”

  “Nothing unusual,” she repeated.

  “Was the door to the cabin of the Sea Wind already open, or was it not open?”

  “It was open, as I recall.”

  “Do you remember if there was any sign of someone having broken into that area?”

  “No, I didn’t notice anything like that.”

  “After awhile on the Sea Wind, you went below deck, correct?”