And the Sea Will Tell

by Vincent Bugliosi

  “And we don’t just have one or two missing pieces here, ladies and gentlemen. The prosecution’s entire case is full of missing pieces, loose ends, speculations, assumptions. Their entire case is brimming, it is overflowing, with reasonable doubt. ‘And yet another yet,’ Shakespeare said.”

  I next addressed the issue of Jennifer’s alleged statements to Cal Shishido, as well as certain statements she had made to Bernard Leonard and reporter Bruce Benson.

  Concerning Shishido’s extremely critical testimony that Jennifer told him she and Buck found the dinghy overturned in the waters of the lagoon, I said, “The decided weight of the evidence shows that Cal Shishido is wrong about what he says Jennifer told him. And I think I can demonstrate this.

  “When I asked Jennifer at this trial what she told Shishido, she said she could not remember her exact words, but the dinghy was definitely found on the beach, and if she mentioned the word ‘lagoon’ to him, it would have been to inform him they found the dinghy on the beach in the lagoon, as opposed to the beach outside of the lagoon, which would be the beach facing the ocean.

  “Not only did Jennifer testify at her theft trial, way back in 1975, that the dinghy was found on the beach, but there was a stipulation that if Bruce Benson, a reporter from the Honolulu Advertiser, were called as a witness, he would testify that on October 31, 1974—just two days after Shishido spoke to Jennifer—Jennifer told him the dinghy was found overturned on the beach about a half mile west from where the Sea Wind was moored, exactly as she testified at this trial.

  “In fact, within minutes prior to Jennifer talking to Shishido, when Mr. Leonard was rowing Jennifer to the Coast Guard cutter, we have his testimony that she also told him they found the dinghy overturned on the beach.

  “So, we have Jennifer’s testimony, we have Bruce Benson’s stipulated testimony, and we have Bernard Leonard’s testimony that Jennifer said it was the beach. It appears that Shishido just didn’t understand what Jennifer told him, or he neglected to get down her exact words on this point.

  “We know he did not tape-record their conversation, he has since destroyed his notes, and he concluded that in his brief two-and-a-half-page report of the two-and-a-half-hour interview he condensed thousands of her words into a small number of his. To compound the problem, it had to be obvious to you folks that Mr. Shishido is anything but a precise, meticulous individual. Compounding the problem even further, Jennifer was speaking very quickly to Shishido when she made her statement. Shishido admitted this on the witness stand. Under all these circumstances, how can Mr. Enoki expect you to treat Mr. Shishido’s words that Jennifer told him the water of the lagoon, as opposed to the beach or the beach of the lagoon, as gospel?

  “Let me ask you this: if the rest of your life were hanging in the balance, would you feel you could confidently rely on Calvin Shishido’s very brief summary of what you told him about an involved series of events?

  “I don’t accuse Calvin Shishido of a deliberate distortion of what Jennifer told him. I think Shishido was an honest witness. Things like this just happen. And they happen a lot.

  “It happened with Mr. Leonard, also Jennifer tells him they found the dinghy on the beach, and that she thinks it probably capsized by Paradise Island.” I pointed out that this was corroborated by the stipulated testimony of reporter Bruce Benson. Jennifer told Benson that because of the direction of the wind (from the southeast), she figured that the dinghy had flipped over around Paradise Island. Yet, “twelve years later, Mr. Leonard’s recollection of what Jennifer told him is that they found the dinghy on Paradise Island.

  “Jennifer tells Shishido, Benson, and Leonard the same story, and none of them being human tape recorders, they each recall her words slightly differently. And this is just typical. It’s common knowledge that even if you tell the same, identical story to five people, you’re going to get five slightly different versions of what you said.

  “You know,” I went on, smiling, “I really loved Cal Shishido’s statement, in answer to my question, that he felt it was better for you folks to rely on his recollection of what Jennifer told him than to listen to a tape-recorded conversation of what she told him. You have to like someone who can make a remark like that. Someone who is calculating and duplicitous would not be capable of such a delightful remark.

  “One final footnote to the issue of what Jennifer told Shishido. Mr. Enoki argued that Shishido would never have had the Zodiac motor inspected for salt water unless he was told by Jennifer that the Zodiac was found in the water.

  “But if Jennifer told him the Zodiac was found overturned on the beach, why wouldn’t he likewise want to have the motor inspected? Being overturned, wouldn’t the most reasonable inference be that it had capsized in the water and floated to shore, and of course gotten water in the motor in the process? So wouldn’t Shishido have still wanted to check that out to see if Jennifer was telling him the truth?”

  With respect to Enoki’s argument that after Jennifer heard Ken White’s testimony at her theft trial that the Zodiac motor had no signs of ever having been exposed to salt water, she changed her story about where the dinghy was found, I argued: “But we know that’s not so because long before Ken White testified at her theft trial, she told Mr. Leonard and Bruce Benson that the dinghy was found on the beach.”

  Next, there was Jennifer’s lie to Shishido that the Iola had gone aground on the coral reef in the channel while being towed by the Sea Wind. “This, of course, was not true,” I said. “But I want you to consider closely the observation I have to make about this untruth.”

  I reminded the jury of Buck’s telling Jennifer that if they told the truth that they had sunk the Iola, people would naturally think they had stolen the Sea Wind, and that this reasoning appealed to Jennifer because she felt she hadn’t stolen the boat. “This is not to excuse the lie. It’s only to put it into its proper perspective. I’m not playing word games with you folks, but a lie to cover up the perpetration of a wrong is markedly different from a lie to avoid being accused of something you feel you didn’t do.

  “I can just hear Mr. Enoki now in his rebuttal. ‘Mr. Bugliosi has an explanation for everything Jennifer Jenkins did, and this just isn’t realistic.’ He’ll probably say something like that.” (I knew the jury would be thinking the same precise thing.)

  I turned toward the prosecution’s table.

  “Are you going to say that, Elliot?” I asked playfully. The pleasant-faced prosecutor did not return my smile and, of course, said nothing. “You’re not going to tell me?” I paused, in a brief moment of levity.

  “My response to that allegation is that the reason I have an explanation for everything Jennifer did is that based on the evidence she is innocent. And being innocent, there naturally is a valid, innocent explanation for everything she did. If she were guilty, there would not be.”

  There were a few remaining incriminating statements of Jennifer’s to Shishido that needed explanation: one being her telling him that Buck and she had rationalized Mac’s supposed remark to Buck to “make themselves at home” on the Sea Wind to mean that the Grahams wanted Buck and Jennifer to take possession of the boat if anything happened to them.

  “Of course, on its face, Jennifer’s rationalization, if it had been a serious one on her part, would have been ludicrous beyond words. If she meant what she said, the only defense we could offer in this case would be not guilty by reason of insanity.

  “But what she told Shishido was not a rationalization on her part. It was, of course, nothing but a lie. Jennifer testified that when Shishido asked her why she and Roy Allen were on the boat, she could not tell him the truth—that Buck Walker had elected to take the Sea Wind instead of the Iola in continuing his flight from the law. She said she was trying to answer a question she couldn’t answer truthfully and these words just came out.

  “And I say that the absurd nature of what she told Shishido is illuminating in that it is not the remark of a shrewd and cunning woman, but ra
ther the remark of an innocent and vulnerable young woman who was scared and confused.”

  I now met, head-on, Jennifer’s perjury at her prior trial. “With respect to Jennifer’s lying under oath at her theft trial about the Iola going aground while being towed out of the channel, and being left behind, Mr. Enoki argued that this shows Jennifer cannot be trusted to tell the truth now.

  “In other words, once a liar, always a liar. The only problem with that type of reasoning is that I don’t believe any human being always tells the truth. I’ll wager every penny I have on that proposition. No human being always tells the truth,” I repeated very loudly in the packed but quiet courtroom. My intonation made very clear that I was referring to every single person in the courtroom, including judge and jury, and I was openly challenging the jury to take conscious recognition, for Jennifer’s benefit, of this incontrovertible fact.

  “They may say they always tell the truth, but they don’t. And if we were to accept the notion that once a liar, always a liar, then we could never believe anyone.

  “But I guess the position of the prosecution is that since Jennifer lied once under oath, before another jury, she should never be believed again on that witness stand as long as she lives.

  “Charge her with the assassination of President John F. Kennedy,” I roared. “If she denies it, don’t believe her. Of course she did it. She and Oswald were just like this,” I said, thrusting my crossed right index and middle fingers into the air.*

  In reminding the jury that Jennifer had lied about the Iola’s going aground because one of her lawyers had advised her that if she contradicted the statement she had already given the FBI, the theft trial would go badly for her, I noted: “You know, the prosecution didn’t call, on rebuttal, this former lawyer to deny this.

  “In any event, when a human being is faced with the dilemma of being innocent of the crime they are charged with committing, but if they tell the truth as to a particular matter, chances are they will be wrongfully convicted, so they lie, is that the type of situation where they should never, ever be believed again under oath? Obviously not, ladies and gentlemen.”

  I sipped my honey-and-lemon blend, pausing for several moments. In having first addressed myself to explaining away all the negative evidence against Jennifer, I hoped I had laid a foundation for the jury to be much more receptive to the next part of my argument.

  “LADIES AND GENTLEMEN of the jury, at this time I want to switch gears and discuss with you the many things that point irresistibly to Jennifer’s innocence, always bearing in mind that under the law, because of the presumption of innocence, we had no burden of proof whatsoever to prove innocence.

  “Firstly, of course, we have Jennifer’s testimony. She did not have to testify at all. Many defendants don’t. They don’t want to have their version of what happened cross-examined by the prosecutor.

  “I think it was clear from her demeanor that Jennifer, when she took that stand, had no hesitation about testifying. In effect, she said to the prosecutor: ask me any question you want. And you can phrase your questions in as artful a way as you know how in your effort to make me look bad. I don’t care, because I have nothing to hide. So go ahead and cross-examine me.

  “Cross-examination is the principal weapon known to the law for separating truth from falsehood. If a defendant, or any witness, is lying on that stand, cross-examination is the means provided by the law to expose this fact. I don’t mean by getting the defendant to confess on the witness stand. Only Hollywood, the chief peddler of illusion in our society, portrays that type of thing.

  “I mean by making it obvious to the jury, by things such as major discrepancies in the defendant’s testimony, the defendant’s not having credible answers to many questions, the defendant’s demeanor on the witness stand, et cetera, et cetera, that the defendant is not telling the truth.

  “A perfect example would be to compare Mrs. Leonard on that witness stand with Jennifer. The contrast was dramatic. You were watching Mrs. Leonard, and I think it was pretty apparent she wasn’t always telling the truth.

  “Let’s look at Jennifer. Elliot Enoki is a seasoned and experienced prosecutor and cross-examiner. Mr. Enoki cross-examined Jennifer for almost an entire day. His purpose, of course, was to destroy her credibility. But not once did he demonstrate to you folks by his cross-examination that Jennifer Jenkins was not telling the complete truth on that witness stand.

  “Jennifer’s testimony had the strength of a suit of armor. Why? Because she was telling the truth. And I believe the truth is mighty, and shines by its own light. And that’s why it prevailed.

  “Jennifer Jenkins’s unscathed and undamaged testimony that she had nothing at all to do with the murders of the Grahams is powerful evidence of her innocence. But there was much more evidence at this trial of Jennifer’s innocence.”

  There were the several witnesses testifying to Jennifer’s nonviolent character. “What’s the relevance of character evidence? I think we can look at our own lives for the answer. Do we not conduct our affairs and relate to others on the assumption that people will continue to act as they have in the past? And if they have been of good character in the past, they will continue to be good in the future? That they will not suddenly and without warning act out of character?

  “Likewise, I would think that with exceedingly rare exceptions, if someone commits or participates in a vicious, cold-blooded, premeditated murder, somewhere in his or her past, somewhere, they will have said or done something that gave a hint to those around them that the potential for this type of violence was coursing through their blood. Something on the surface would have betrayed the darkness and ugliness that stirred within the recesses of their mind, their soul. In fact, usually, as is the situation with Buck Walker, you don’t even have to look very hard. Their background is openly pockmarked with aggressive and oftentimes violent behavior.

  “When we look at Jennifer Jenkins, not only isn’t there one molecule of evidence that she was a violent or even potentially violent person, but all of the evidence is one hundred and eighty degrees to the contrary. By all accounts, she is a particularly peaceful, nonviolent person. A kind, loving, and very giving person who respects and values the life of her fellow human beings.”

  Reading from sections of the transcript I had marked and underlined, I reviewed the testimony of our character witnesses: Debbie Noland, Rick Schulze, Leilah Burns, and Lawrence Seltzer.

  “Though perhaps most people are nonviolent, if you were to describe them, you wouldn’t bother to mention this characteristic, because in a civilized society, people are expected to be nonviolent. If someone were to ask you to describe one of your friends, you wouldn’t say: ‘Mary? A nice person. One of my best friends. Very nonviolent.’ You wouldn’t say that. People are expected to be nonviolent.

  “But with Jennifer, her peacefulness and abhorrence to violence were so obvious and pronounced that it was a personality trait of hers.

  “Most people, when they’ve been visited by any type of scandal, discover that their friends seem to vanish. They become social lepers. Not so with Jennifer’s friends. Why? Because these people feel they know Jennifer, and because they feel they know her, they know she couldn’t possibly have been involved in this monstrous act.

  “The prosecutors, during their cross-examination of our character witnesses, implied by their questions that even if Jennifer was an essentially nonviolent person, in late August 1974 she was in a life-endangering situation, and therefore felt compelled to act in a violent way.

  “But there’s no evidence of approaching starvation in this case with respect to Buck and Jennifer in late August 1974. We’ve already discussed that issue ad nauseam. I’ll close this issue with this quote from the transcript. This is a question by Mr. Enoki of his own witness, Mr. Bryden: ‘It’s also true that if one were on Palmyra, and if one was willing to eat what was there, you wouldn’t starve to death on Palmyra?’ That’s Mr. Enoki, the prosecutor, talking. His witn
ess agreed.

  “So just what type of life-endangering situation was Jennifer confronted with on Palmyra that would have changed her character for nonviolence?

  “What does all this character evidence mean?” I asked. “Well, let me put it this way. What would it have meant to you folks if in their rebuttal the prosecution had called witnesses to that stand who testified that Jennifer was a very aggressive person, prone to violence? Wouldn’t that have meant a heck of a lot to you? And if it would have, as I think it surely would, shouldn’t the evidence that she is nonviolent mean just as much to you?

  “In our case here, although the prosecution was entitled, under the law, to rebut the testimony of the character witnesses for the defense, they never called one single witness to do so! And they were placed on notice that we intended to offer a character defense.

  “I suggest that the most reasonable inference why they did not call any rebuttal witnesses is that even with the FBI as their investigators, they couldn’t find any. None existed. Even Houdini couldn’t pull a rabbit out of the hat when there wasn’t any rabbit in the hat.”

  After referring to an instruction on character evidence Judge King would later give, I pressed forward.

  “There are degrees of everything in life, ladies and gentlemen of the jury, including murder. Though the result of all homicides is the same—the person is equally dead—this was a particularly villainous murder. On a scale of one to ten, this was a ten, and I’ve prosecuted a lot of murder cases. We presented credible evidence from that witness stand that Jennifer Jenkins is a particularly peaceful and nonviolent person. So we’re dealing with the outer margins in both the type of crime involved and the type of person accused of committing that crime, making the probability even greater that Jennifer would never commit a crime such as this.

  “The murder of poor Muff Graham was not a typical murder. What must have happened to Mrs. Graham when she was mercilessly put to death is so horrible that it’s difficult for the average mind to contemplate.