And the Sea Will Tell

by Vincent Bugliosi

  These photos proved at her theft trial that her story was a lie, the prosecutor said. “So she knows that story wouldn’t fly here. So she tells you that the Iola really didn’t hang up on the reef after all. And that Walker and her attorney told her that these were the lies that she should tell to the theft jury.”

  Enoki’s next point could alone, if believed, convince the jury Jennifer was probably involved in the murders. “Here’s another example of the same changing of the story,” he said. “She told Shishido the Zodiac was found overturned in the water, and the gas tank was floating nearby. Now, she disputes meaning that the Zodiac was in the water. But it’s clearly what Agent Shishido remembers from that interview, and what he understood her statement to mean. And there’s certainly no misunderstanding about something floating. You can’t float if you’re on the beach. Agent Shishido had no misunderstanding about where she said the Zodiac was, because what did he do? He took the Zodiac motor to Ken White to see if that motor had ever been underwater. He would never have done that unless his understanding was that she meant it was in the water. Then when she hears Mr. White’s testimony at her theft trial that the motor couldn’t possibly have been underwater, her testimony became, after that, that it was not found overturned in the water, but on the beach.

  “She testified that when they found the Zodiac it was one to two feet from the water. And that it was not high tide at the time they found it.

  “Well, you’ll recall Mr. Bryden testifying that there were two highs and two lows in tides every day at Palmyra. And supposedly Mr. Walker, according to Miss Jenkins’s version of what happened, left the Zodiac out there sometime between 4:00 and 5:00 P.M. because that’s when she heard the motor going away.

  “And it’s there overnight, supposedly, and into the next morning when they find it. Now, it would have to have gone through at least one high tide at that point. And I would submit to you that being one or two feet from the water, and not being high tide, would mean that at high tide that motor must have been in the water for some period of time. But there’s no evidence of this in Mr. White’s examination.”

  Enoki went on. “I would also like to point out to you that she wrote a letter to Mac Graham’s sister, but only after she was arrested. She did not inform the sister, or any relative, or anyone else, about the disappearance until after her arrest.

  “Even in her letter to Mrs. Muncey, she lies about Mr. Walker’s letter that’s enclosed, saying it was written much earlier when, in fact, it was written in jail.

  “You can see the pattern that Miss Jenkins has illustrated, in that she doesn’t admit something until either she’s caught in a lie on it, or she knows that it’s not going to benefit her to keep up this particular story.

  “But she can’t escape the one thing that is really obvious about this situation. If someone winds up dead, and the only motive for the murder is stealing their property, then when you show up with their property, you are it.

  “The motive of the killing is a theft of the Sea Wind and its supplies. There’s no other motive. And Miss Jenkins has the same motive as Mr. Walker. She even thought nothing of using the clothing of Muff Graham and taking the four hundred dollars that was on board.”

  Enoki reminded the jury that at her theft trial, Jennifer testified that she intended to return the Sea Wind to Mac’s sister and, therefore, wasn’t really stealing. “But she denied at this trial that this was in defense to the theft charge. What do you think the defense was, if it wasn’t that? I mean, she was on trial for theft, and she was found sitting on the boat, so she told the jury: ‘I was going to return the boat.’ Of course it was for the purpose of defending against that charge.”

  “This isn’t a theft trial, so now she can admit to you that she lied about planning to return the Sea Wind to Mrs. Muncey directly from the Ala Wai. So, she does admit it. But that doesn’t make her testimony truthful in this trial either. It’s kind of like, if you would, peeling off layers of a story—it’s like taking one mask off and finding another one underneath. And you can take that one off and there’s another one there.

  “Remember that she sat in the very same place—the witness chair—took the same oath eleven years ago, and told people just like yourselves all those lies that she is now admitting. And she certainly didn’t tell them that those were lies. And all she’s doing in this trial, ladies and gentlemen, is covering up a murder instead of a theft. She can now admit the lies that went to the theft because she’s not on trial for that here. I would ask you not to fall for this series of lies that she’s been making since 1974.”

  Characterizing Jennifer’s version of what happened on August 30, 1974, and her diary entry for that date as unworthy of belief, Enoki concluded: “What remains is the August 28th arrival of Miss Jenkins and Mr. Walker, in the darkness, at the Grahams’ boat with both of the Grahams there, bearing a most unlikely gift of food. An event that is not mentioned at all in that diary. The fact remains that Muff Graham was murdered, and the last persons that were there were both Miss Jenkins and Mr. Walker. They both had the means, the motive, and the opportunity to commit murder. And Miss Jenkins, the only one that’s on trial here, certainly has not provided a believable explanation of the evidence and events that occurred there.

  “One can only conclude that the cake she made in the depth of their food shortage was for the purpose of setting up the boarding of the Sea Wind, and the eventual murder of Eleanor Graham.

  “We’re talking not about the nonviolent woman that she claims she was, but one who showed no hesitation to assist Mr. Walker in whatever he did. And she immediately went on to another man who shot and killed someone else in California.

  “The evidence shows in this case that Mr. Walker and Miss Jenkins found themselves in a position where killing was necessary to get off that island with the security they wanted. There is no evidence to suggest that Miss Jenkins would hesitate to help Mr. Walker in that endeavor.”

  During Enoki’s summation, Jennifer alternated from locking her eyes on him to staring grimly at the tabletop, as she was doing at this moment. Not once during his argument had she looked into the faces of the men and women who would decide her fate.

  “It is time, after eleven and a half years,” Enoki now concluded with unmistakable conviction, “that you find Jennifer Jenkins guilty of murder.

  “Thank you.”

  Enoki had given a good opening argument, and his obvious sincerity and belief in his case were definite pluses. If there was a weakness in the prosecutor’s argument, it was that he failed to draw any new or otherwise arresting inferences from the evidence. Though he effectively reminded the jury of all the points which made his case strong, I doubted he had further strengthened the prosecution’s case against Jennifer by causing the jury to reflect, “That’s a very good point. I never thought of that!”

  I could only hope the jury wasn’t thinking that there was no need for any “new thoughts” about Jennifer’s guilt—that, like the Walker jury, they already had more than enough.

  CHAPTER 42

  IT WAS NOW TIME for the defense’s summation. To me, summation is the most important part of the trial for the lawyer, the climax of the case. As the Roman historian, Tacitus, said: “The breastplate and the sword are not a stronger defense on the battlefield than eloquence is to a man amid the perils of prosecution.”

  Usually, the very first thing I think about when I get on a case and begin to learn the facts is: what am I going to argue, and how can I best make the argument to obtain a favorable verdict? In other words, I work backward from my summation. Virtually all of my questions at the trial, and most of my tactics and techniques, are aimed at enabling me to make arguments I’ve already determined I want to make.

  In fact, before the first witness at a trial has even been called, I’ve usually prepared most of my summation to the jury. As soon as I learn the strengths and weaknesses of my case, I begin to work on how I’m going to argue these strengths, and what I’m goi
ng to say in response to the opposition’s attacks on the weaknesses. Getting an early start on my summation, and continuing to expand and modify it during the trial, gives me ample time to develop arguments and articulations.

  A great number of trial lawyers do not feel that final summation is the most important part of the trial. And I have never really understood why.

  In life, if one wants someone else to come over to his viewpoint, isn’t it all-important what one says and how one says it? Is a trial any different? Isn’t the lawyer trying to convince someone, in this case, the jury, of the rightness of his cause? Therefore, shouldn’t most of his preparation and efforts be directed toward this final appeal to the jury?

  Not so, say many experts. As Louis Heller, a former justice of the New York supreme court and before that a prominent trial lawyer, writes in his book Do You Solemnly Swear, “An address to the jury should be extemporaneous and reflect spontaneity.”

  In my opinion, a summation must either be written out or set down in a comprehensive outline. The problem with even an outline is that although all the points the lawyer wants to make are there, he does not have the all-important articulations; that is, he does not have his points expressed in the most effective way. It’s simply not possible to powerfully articulate a great number of points, one immediately following another, extemporaneously. There is a best way to make a point, and to find it takes time and sweat on the yellow pad. But whether one should write out one’s summation or put it into an outline, it has been my experience that the majority of trial lawyers—even many high-priced ones in major, nationally publicized criminal trials—do neither, addressing the jury after scandalously little preparation. Far too often this results in their delivering arguments which are disjointed and sterile in articulation, and which, most injurious of all to their clients, omit a number of salient facts and inferences.*

  In a complex trial involving many witnesses and thousands of pages of transcript, to discuss the highlights and nuances of the case, draw the necessary inferences, and in the most telling sequence, always seeking simplicity and clarity of expression, requires an enormous amount of written preparation.

  The one advantage in arguing extemporaneously is to be able to talk with the jury eye to eye, with the candor of spontaneity. But if a trial lawyer is willing to put in the hours, he can have such a grasp of his written or outlined argument that, like an actor on stage whose lines flow naturally, he can deliver it to the jury giving the appearance of spontaneity. (Mark Twain knew whereof he spoke when he said that “it takes three weeks to prepare a good ad lib argument.”) If I’ve had adequate time to prepare, I only have to glance at my notes sparingly. I can look at one word on a page, and the whole page is vivid in my mind.

  Final argument is nothing more than a speech, and I know of no generally accepted great speech in history that was not carefully prepared before it was delivered. Lincoln’s Gettysburg Address consisted of only ten sentences. Of his 271 words, 202 of them were just one syllable. But these historic words went through five drafts and were the result of two weeks’ thought and preparation, handwritten on two pages that were in front of him as he spoke.

  The conventional wisdom is that a summation should be succinct, focusing only on the main points in the case. Not only can’t a lawyer keep a jury’s attention for more than an hour or so, it is said, but discussing the smaller points only clutters and dilutes the thrust of the main arguments. I may be wrong, but my personal opinion is that this couldn’t possibly be a more serious mistake—in many cases, perhaps a fatal one. Juries, unaccountably, often base their verdict on (or are heavily influenced by) the most tangential, seemingly insignificant points. Just as in surveying the ocean bed “no rock or prominence can be left unnoted with safety to the mariner,” a lawyer should want to be heard on virtually every point in the case. Likewise with inferences. Though I don’t exactly put a bib on the jury and spoon-feed them, I also don’t assume they’re going to see everything I want them to see without my help. So often in life, things are only obvious once they are pointed out.

  Moreover, I do not agree that it is difficult to hold a jury’s attention for more than an hour or so. In fact, it is not difficult to keep their attention for an entire day or two if the lawyer can deliver a powerful, exciting summation that is sprinkled with example, metaphor, and humor; and particularly when he makes it obvious to them that he has a lot of important observations to make about the case, and they can only fulfill the oath they took to reach a proper verdict if they listen to him closely—that is, if he convinces them that they need him.

  I had put in a considerable number of hours writing, polishing, and going over the summation I was about to give. Curiously, I had formulated the broad conceptual structure of my argument while strolling through Boston Common one sunny Sunday afternoon shortly after I got on the case.

  I was ready, and feeling, as usual, very confident. My confidence would manifest itself most clearly to the jury in the words I used, and the way I uttered them. No matter how weak my case is, if I believe in it, as I did here, my selection of words and intonation will suggest that it is the strongest case imaginable. And I mean every word I say. When delivering a summation, a trial lawyer has to be confident before a jury, or at least appear so. It is one of the most essential ingredients of a successful trial lawyer. If he is not confident, the jury will pick it up immediately—from the way he talks, the way he walks, the expression on his face; most of all, from the words he uses. And a lawyer cannot expect a jury to buy his cause if they detect that he does not believe in it completely himself. When a lawyer communicates clearly his passionate and sincere conviction in the merits of his client’s case, in a subliminal way he becomes, to the jury, an important witness in the case.

  My style before the jury in summation is expansive. Leaving my notes at the podium (but not turning the page until I have covered every point), I move freely about the courtroom, raising my voice when in full rhetorical flight, and, some say, on occasion intoning like an itinerant evangelist preacher. And although I try to keep my grammar within shouting distance of Cambridge, I gesture with the energy of a bocce ball player in a Naples piazza.

  The following—quoted and paraphrased—is a substantial portion of my final summation in the Jennifer Jenkins murder trial.

  “JUDGE KING, Mr. Enoki, Mr. Schroeder, Mr. Weinglass, ladies and gentlemen of the jury.

  “This case, of course, has dealt with many issues—among other things, the sea and boats. I don’t know about you folks, but I’ve never had any meaningful, personal experience with either one of them, so I don’t know too much about the sea and boats. But I do know a little about the criminal law, having been a prosecutor in the Los Angeles County District Attorney’s Office for several years, and more recently, a defense attorney.

  “And based on the evidence that came from that witness stand,” I said, pointing to the seat where so many witnesses had testified, “I have formed some rather strong opinions about this case and I’m going to share those with you.

  “Before I do, however, I want to make a few brief comments about the jury system in America. I view it as perhaps the most priceless legacy we inherited from our legal ancestors, the British. When you stop to think about it, in America only a jury can cause a fellow human being to end up behind prison bars. For instance, unless a defendant in a criminal case gives up his constitutional right to a jury trial, no judge can find him guilty and place him behind bars. Even the President of the United States cannot put someone behind bars. Law enforcement—the police, the FBI, et cetera—they can put you in the poky, but if you’re not convicted in a court of law, they can’t keep you there. Only a jury made up of folks like you can cause someone to end up behind prison bars.

  “So in a very real sense, the American jury is all that stands between the accused and his loss of liberty. And the realization of this is at once awesome and yet supremely reassuring. I think you can see at a glance the very high and delica
te ground you occupy.”

  I knew the five-inch stack of yellow sheets of paper on the table to the right of the podium might be daunting, if not appalling, to the jury—they might be thinking negatively: Could there possibly be that much to say? And how long will it take?

  “I know you are all eager to resume your normal daily life, and I don’t want to trespass unduly upon your time. However, in the interest of my client, and in the interest of justice, there are a considerable number of points I must go over with you in my effort to help you reach a fair and a just verdict.

  “These yellow sheets here constitute my final argument to you. Now that looks like quite a bit,” I admitted, waving my hand at the stack, “but this is a murder trial, not a drunk-driving case; the lives of two precious human beings have been brutally snuffed out; the first legal proceeding in this case was instituted over eleven years ago; and based on the evidence that came from that witness stand, my client, Jennifer Jenkins, is innocent, yet the rest of her life is hanging in the balance. When you look at it from that perspective, one could almost say: ‘Is this all you have to say, Mr. Bugliosi? Is this all you have to say?’