And the Sea Will Tell

by Vincent Bugliosi

  “Yes.”

  “And is that where you saw what you thought they had left out for you?”

  “Yes.”

  “Are you able to recall specifically what was left out for you?”

  “There was a bottle of apricot brandy and a bottle of vodka, and some cookies…and a couple of other things.”

  I had made the right decision about the apricot brandy. I’d now be able to explore the matter on re-direct.

  Enoki asked a series of questions about Walker’s “explosive personality” and criminal past. By the fourth or fifth query, Jennifer was teary-eyed and looked downcast.

  “You knew that he had a prior conviction for armed robbery?”

  “Yes,” she whispered.

  Enoki was now ready to spring his big surprise.

  If someone had suggested there probably was something important in Jennifer’s personal background that I didn’t know about and could be used against her at this trial, I would have scoffed at the suggestion. But I was wrong.

  The prosecutor placed a hand on each edge of the podium, bracing himself for his final fusillade. “You’ve heard testimony from witnesses that you were a nonviolent person?” he said with an intonation that portended danger.

  “Yes.”

  “Is it also your testimony that you wouldn’t associate with violent people?”

  “I would not associate with anybody that was doing any violent acts.”

  “Do you consider shooting people to be violent?”

  “Yes. Shooting people is violent.”

  It was obvious that Enoki had something, and I listened uneasily, fearing the worst.

  “Now, in 1975, or 1976, you were residing in the Puako area of the Big Island. Is that correct?”

  “Yes.”

  “During the time that you lived in Puako in 1975 or 1976, did you come to have a boyfriend named Joe Buffalo?”

  “Yes.”

  Joe Buffalo? I thought a moment. Yes, that was the “friend” of Jennifer’s who’d told her the FBI had contacted him about her. When she received the letter from Buffalo, Jennifer told me Buffalo had told her he had nothing to tell the authorities about her. Because of this, coupled with the fact that he wasn’t on the list of prosecution witnesses Enoki had furnished us before the trial, I therefore assumed he was no one to worry about. I was correct in assuming Buffalo had nothing incriminating to say about Jennifer, and hence would not be a witness against her. It was what the authorities had to say about Buffalo that was the problem. For some inexcusable reason on my part, I neglected to explore with Jennifer just who Buffalo was (not that my knowing this would have changed anything, but at least I would have been better prepared to handle the issue). And during my first interviews with Jennifer, when I had her account, in chronological order, for all of her movements and activities during her several-year Hawaii period, somehow Jennifer’s brief affair with a man named Joe Buffalo had slipped through the cracks.

  Enoki now asked: “And you became aware while you were going with Mr. Buffalo that he had shot and killed a man in California. Isn’t that correct?”

  “Yes.”

  I didn’t quite freeze like a deer in headlights, but I remained expressionless, not wanting the jury to sense my surprise and alarm.

  “You also knew that he was wanted by authorities in connection with that shooting incident?”

  “No, I didn’t know that then. When…when the authorities came and arrested him, that was the first time I found out that he was…still wanted.”

  “You did know that he was trying to keep a low profile in that area?”

  “Right. I…I…he had been officially released from prison. And a low profile was something that in retrospect…I know he was keeping. But I didn’t know that he was being looked for, or wanted, or anything like that.”

  “You thought that the reason he was trying to keep a low profile was because he was trying to conceal his prison background, is that it?” asked Enoki.

  “No. He was just wanting to keep a low profile, just generally. I don’t know.”

  “You testified that you were aware that Mr. Buffalo had been released from prison before he came to Puako. Correct?”

  “Yes.”

  “You were aware that his release was inadvertent, correct? That he was mistakenly released?”

  “Not at that point, not until after he was rearrested.”

  I knew the prosecution would now argue that the Buffalo affair showed that Jennifer’s relationship with the homicidal Buck Walker was not just situational but a way of life with her. One could reasonably conclude that she willingly associated with these birds because of her own feathers. Being involved with not just one but two murderers within a period of only two years seemed far too much for coincidence. It was a pattern.

  Enoki was gathering his notes, like a news anchor after sign-off. Only he’d ended, not begun, with the day’s top story.

  “Thank you,” he said. “Nothing further, your honor.” Enoki proceeded to request, and was granted, a fifteen-minute recess. Because of Joe Buffalo, I needed it more than he did.*

  After grilling Jennifer about Buffalo during the break, I began my re-direct examination of Jennifer where Enoki had left off.

  “With respect to this fellow, Joe Buffalo, when did you live with him in Hawaii?”

  “1975, the latter part.”

  “Did he tell you that he had killed someone in self-defense?”

  “Yes.”

  “And you believed him?”

  “Yes.”

  “Did he ever do anything violent while you were with him?”

  “No, never.”

  “To your knowledge, was he leading a law-abiding life throughout the period of time that you were with him?”

  “Yes, he was.”

  “What was your attitude about Joe Buffalo’s past?”

  “I knew he had a rough background and I thought I could help him. He was generally…he seemed generally interested in putting his past behind him and living within the rules of society.”

  “At the time you had this relationship with Mr. Buffalo, you had not yet suspected that the Grahams may have been murdered?”

  “Correct.”

  Because of the importance of the issue, I wanted to underline this fact in the jury’s mind by repetition: “So, when you were living with Mr. Buffalo, it was your state of mind that Mr. and Mrs. Graham had died an accidental death?”

  “Yes.”

  “The Buffalo association, then, was long before you began to suspect that maybe the Grahams were murdered.”

  “Yes.”

  I hoped this had reduced the pattern down to a coincidence in the jury’s eyes, lessening, at least somewhat, their speculation that she had knowingly lived with two killers. Knowingly, she had been involved with only one person who had taken the life of a fellow human being (in self-defense at that, she believed). And that person was Joe Buffalo, not Buck Walker.

  SINCE ENOKI had tried to impeach Jennifer’s testimony that she and Buck had found both the Zodiac and the gas tank on the beach (using an allegedly inconsistent statement she had made to FBI Agent Shishido), I was now entitled, under the rules of evidence, to introduce any statement she’d made consistent with her present testimony, but only if made before the alleged inconsistent statement. Although her theft-trial testimony was given after her statement to Shishido, I nonetheless now asked Jennifer (without provoking the objection Enoki should have made): “At your theft trial, did you testify that you found the Zodiac dinghy overturned on the beach about a half mile or so to the west of the Sea Wind?”

  “Yes.”

  “Did you also testify you found the gas tank of the Zodiac on the beach?”

  “Yes.”

  “Jennifer, are you familiar with the fact that there are two high tides and two low tides approximately every twenty-four hours?”

  “Yes.”

  The crucial significance of my next question wouldn’t be apparent unt
il my summation: “Are you also aware that of the two high tides, one is a high high tide where the water goes the farthest up on the beach, and one is a low high tide where the water does not go quite as far up?”

  “Yes.”

  And now, finally, I could ask Jennifer about the apricot brandy.

  “You testified that when you and Buck arrived at the Sea Wind on the evening of August 30, 1974, among other things, apricot brandy and vodka were set out. Is that correct?”

  “Yes.”

  “Was vodka one of Buck’s favorite drinks?”

  “Yes.”

  “Was apricot brandy one of your favorite drinks?”

  “Yes.”

  “You had had drinks on the Sea Wind prior to the 30th of August with Mac and Muff?”

  “Yes.”

  “Had you ever had apricot brandy with them?”

  “No.”

  “Had you ever communicated to them, as far as you can recall, that apricot brandy was one of your favorite drinks?”

  “No,” she said, “I don’t recall ever mentioning that to them.”

  “When you found apricot brandy set out there in the cabin, and also vodka, did it occur to you at that time that it may have been Buck as opposed to the Grahams who set those alcoholic beverages out there for you?”

  “No.”

  “Has it occurred to you since?”

  Enoki jumped to his feet. “I will object to that as irrelevant, your honor.”

  Court: “Overruled.”

  “Yes,” Jennifer answered sadly.

  “When did it occur to you?” I asked.

  Enoki objected again and was again overruled.

  “When you were interviewing me and brought it to my attention,” Jennifer answered.

  Court: “How long ago?”

  “Oh, God,” Jennifer shrugged. “I don’t know.”

  Court: “A year ago?”

  “A few years ago.”

  Court: “Two years ago?”

  “Two or three years ago,” she said.

  Court: “When Mr. Bugliosi was first interviewing you?”

  “Yes.”

  “You did not volunteer to me when I was interviewing you that apricot brandy happened to be one of your favorite drinks?” I asked.

  “No.”

  “I asked you whether it was. Is that correct?”

  “Yes.”

  “Jennifer, going on, there has been some testimony about your attorneys, during the 1975 theft trial, giving you certain advice. Has either Mr. Weinglass or I told you or implied to you in any way that you should not tell the truth at this trial?”

  “No, not at all. Both you and Mr. Weinglass have always indicated that you wanted me to tell the whole truth.”

  “Absent our telling you this, Jennifer, what was your state of mind with respect to testifying truthfully at this trial?”

  “I was always determined to tell the truth at this trial.”

  “No further questions,” I said.

  Judge King cleared his throat noisily. “I have a few,” he said.

  I wasn’t happy at that prospect. When a judge starts asking questions of a defendant, the jury might infer that he doesn’t believe the defendant.

  “You didn’t find any log on the Sea Wind?” the judge asked.

  “I don’t remember at this point either finding one or not finding one,” Jennifer said. “I could have come across a log of the Sea Wind, and it probably wouldn’t have meant much to me.”

  Court: “You don’t recall?”

  “Right.”

  Court: “Somebody said you came over to the Sea Wind with a cake on August 28th. Did that happen or didn’t it happen?”

  “It could have easily happened and I didn’t put it in my diary. Mac had loaned me the Fanning chart and I could have easily baked him a cake as a thank-you for that and taken it over. It’s not in my diary and I don’t remember.”

  Court: “Your diary mentions the Fanning chart?”

  “It does mention the Fanning chart.”

  Court: “What day does it mention it?”

  “I think it was the 26th. It says [reading], ‘Mac brought by the Fanning chart’ on August 26th.”

  Disturbingly, Judge King returned once again to August 28: “You have no clear memory of going over there on the 28th?”

  I didn’t like the obvious hint of disbelief in the judge’s voice.

  Jennifer shook her head. “I really tried to remember.”

  Judge King had no further questions. Finally, Jennifer’s ordeal was over. Altogether, she had been on the witness stand for just short of three days.

  Judge King waited until virtually the end of the evidence in the case to finally rule in my favor on my motion to introduce into the record Buck Walker prior testimony (at his theft trial) concerning August 30, 1974. This ruling would enable me to draw a telling inference in my summation. After I read to the jury that part of Buck’s testimony (set forth infra), the Government called one familiar face in rebuttal. When FBI Agent Shishido took the stand, Walt Schroeder asked him to describe the defendant’s demeanor during his interview of her on October 29, 1974.

  “I would say she was very confident and somewhat matter-of-fact in relating the story as to what happened at Palmyra Island.”

  “And during that interview did she, at any time, cry when talking about the Grahams’ disappearance?”

  “No, sir.”

  “Did she cry during any other part of the interview?”

  “No, sir.”

  “Did she, at any time, demonstrate any sorrow, sadness, or any similar emotion when talking about the Grahams?”

  “No, sir.”

  “Did she show any emotion whatsoever during any part of the interview?”

  “No, sir.”

  “Nothing further,” said Schroeder.

  “Mr. Shishido,” I asked on cross-examination, “do you think the observations you have just made on the witness stand are in any way relevant?”

  “Do I think they are relevant? Yes.”

  “Did you therefore put any of these observations you say you had about Jennifer Jenkins into your report, your 302 report?”

  Cal Shishido set his mouth in a tight line.

  “No, sir.”

  When Shishido was dismissed, Enoki asked for a moment. He and Schroeder had a quick whispered conference.

  “The prosecution rests,” Enoki said.

  “The defense rests,” I echoed.

  CHAPTER 41

  THE JURORS DEPARTED FOR the weekend, and the lawyers gathered in chambers for the final round in a battle I’d begun with Judge King early on.

  Judges customarily put a time limit on lawyers in summation, often as short as one or two hours. They give no valid reason for this limitation. None exists. When pressed, they’ll generally contend that whatever has to be said can be said in the time allotted and add that a long-winded lawyer bores the jury and ends up hurting his case. Too many lawyers routinely accept these limitations. But since I consider summation decisively important and invest a great amount of time and effort in its preparation, I normally need considerably more time than most judges initially offer.

  Just before Jennifer’s trial began, Judge King had agreed to allow me as much time as I wanted in summation, although he had previously indicated that two hours for each side seemed appropriate. But a few days before summation was to begin, he told me in chambers that my limit would be five hours. When I reminded him of his previous commitment, he ignored me, saying crisply, “Five hours.” I told him I needed at least six, maybe seven hours, adding that I thought the case was going to be won or lost on final summation and that I didn’t want to shortchange my client. I pointed out that since there were so very few known facts in the case, it would all finally come down to argument, to drawing subtle inferences. “It’s going to be very difficult to persuade the jury to let Jennifer walk out of court,” I argued. “There are just too many things against her. A considerable number o
f arguments and inferences are going to have to be made, and to make all of them, and in the right way, I need extra time. We already know what one weak argument got her. She was convicted of the theft.” But Judge King didn’t budge.

  “Judge,” I persisted, “if I determine, as Jennifer’s lawyer, that I need extra time to make some important arguments and you refuse to give me that time, that’s denying Jennifer her right to a fair trial.”

  “So take it up on appeal,” he snapped.

  “I’m not interested in having the courts upstairs reverse a conviction. I’m only interested in a verdict of not guilty.”

  “And I’m only interested in moving this trial along. Five hours is more than enough time,” the judge said firmly.

  I was thoroughly disgusted. All we were talking about was an extra hour or so in a very important murder case that had already been around for eleven years. Moreover, if I decided that the extra time was necessary to adequately represent my client’s cause, what right did the judge have to question my judgment? I responded testily, “If I make the assumption that your appointment as a judge was merited, why don’t you make the assumption that if I decide I need extra time, I know what I’m talking about?”

  “Mr. Bugliosi…” Judge King said, bristling, but he did not continue his thought.

  I had more to say, of course. I quoted cases from around the turn of the century, when long summations were common (short time limitations are so accepted today I couldn’t find any modern appellate cases dealing with the issue in a substantive way). A 1905 case: “How can the court know, in hours and minutes, how long the argument ought to be? As argument progresses, he may interdict idle repetition, but while counsel speaks to the point, how can the court forbear to be patient, and hear what is said?”*

  But Judge King again repeated the five-hour limitation. I had only one card left, one I felt forced to use, though it was embarrassing to me. In an effort to convince Judge King that my long arguments weren’t two hours of substance and the rest just adornment, I handed him an issue of Courtwatchers’ Newsletter, a paper for Chicago trial buffs. The editor, commenting upon an eight-hour summation of mine to the jury (the judge had originally set a two-hour limit), said, “Mr. Bugliosi’s performance today was the finest I have ever seen, and I have been a court watcher in Chicago for twenty-one years.”