I let this argument sink in.
Then went on: “I’ve been discussing here the many examples of Jennifer’s conduct which show a consciousness of innocence, and the fact that guilty people don’t act innocent.
“What about the reverse argument Mr. Enoki might make that if Jennifer were innocent, she would not have acted in some instances the way she did? In other words, innocent people don’t act guilty.
“Well, ladies and gentlemen of the jury, the reverse argument cannot be fairly or comfortably applied to Jennifer’s conduct in this case for the simple reason that, in a real sense, Jennifer did have a guilty state of mind, but not as to the murder in this case. Rather, it was due to her helping a fugitive from justice escape, her not having reported the disappearance of the Grahams, and the realization that she was on a boat that did not belong to her.
“I say that Jennifer Jenkins’s manifestation of a consciousness of innocence has continued right up to the present time in this courtroom. For her to have been guilty of these two hellish murders and testify the way she did on that witness stand for over two days would require the performance and acting virtuosity of a Sarah Bernhardt.
“Jennifer Jenkins is not such an actress. She is a rather vulnerable, decent young woman whose misfortune it was to have gotten mixed up with the wrong man. As we travel this winding and uphill road of life, things like this happen.
“Perhaps Sartre, the French existentialist, might not agree, but I submit to you that Jennifer got caught up in a set of circumstances beyond her control. These circumstances, in a few instances, caused her to act in a manner not compatible with her true nature—acts which, in retrospect, she is not supremely proud of. But again, you know as well as I that things like this happen in life. When you enter that jury room to commence your deliberations, you don’t have to leave your human experiences at the portals to that room. You can take them with you, as I know you will.
“Put succinctly, Jennifer Jenkins fell in love with the wrong man, a man on the run. I hate to resort to clichés, but this case is a classic, textbook example of a good, decent person being the victim of circumstances.”
“WHAT I WANT to discuss now are three mistakes that Buck Walker made which, because of their nature, point towards Jennifer’s innocence. And because there were only four people on Palmyra, and two are dead, since these mistakes point towards Jennifer’s innocence, they necessarily point exclusively to the guilt of Buck Walker, inasmuch as he is the only one who remains.
“In other words, if the prosecution can play their game of four minus two leaves two, this is a variation thereof: four minus three leaves one.
“One mistake was probably instinctive in nature; the other two, because he committed these murders alone, he was literally forced to make.”
I explained that Walker’s instinctive mistake (which I said was merely “something for you to consider”) was his invariably referring to himself alone with respect to the Sea Wind. “He told Larry Seibert and Seibert’s boss, Joseph Stuart, ‘I won the boat in a chess game,’ and he told Joel Peters not once but twice, ‘That’s my boat.’ Not ‘That’s our boat,’ but ‘That’s my boat.’ Why did Walker find it so natural to say ‘I’ and ‘my’ and so unnatural to say ‘we’ and ‘our’? Because he, and he alone, committed the murders in this case. And I think it’s a reasonable inference that knowing this he instinctively said ‘I,’ not ‘we.’”
Concerning the second mistake, I told the jury that Enoki wanted them to believe that the burning of the skull and the fire in the container were evidence of the murder of Muff Graham. “Just as war sometimes makes strange bedfellows, trials sometimes do also,” I said, explaining that I also wanted them to accept that conclusion, but for different reasons.
“Let’s look at that evidence,” I said. “On the skull of Muff Graham there is a whitened area—which Dr. Uberlaker called calcinations—over the left eye and extending back about the size of my hand. Uberlaker said this calcination was a localized burning resulting from ‘extreme heat being applied to the bone.’ Dr. Stephens, the coroner, called it a ‘localized burn of high intensity.’ Both doctors stated that an acetylene torch could have been the burning agent.”
I reminded the jurors that Mac’s workshop had an acetylene torch.
“Then there was the testimony of William Tobin, the FBI metallurgist who conducted several tests on the container and concluded there had been a fire inside the container fueled by a hydrocarbon accelerant, such as gasoline or kerosene.
“I think we can safely assume that Buck Walker would not have had any reason to start that fire inside the container if Muff Graham’s body was not in the container at the time of the fire.
“Now, what’s the significance of all this? Winston Churchill once said that at the bottom of every problem, no matter how complex, is common sense.
“This problem isn’t even complex. What conceivable reason under the moon would Buck Walker have had to use an acetylene torch and to set an already dead body on fire if it was not to prevent the identification of that body in the event the authorities found it prior to total decomposition? Without the identification of the body, the chances of a prosecution would be considerably diminished. Hopefully, the fire would burn all the flesh, thereby eliminating Muff Graham’s fingerprints and other identifying characteristics such as scars and moles, and also consume all the teeth, another mode of identification. Yet we know that this did not happen in this case.”
I read the portion of Dr. Uberlaker’s testimony in which he stated that other than the burning over the left eye socket and “possible slight evidence of burning” on the right side of the lower jawbone, he found no signs of burning on any of the other bones.
I then read Dr. Stephens’s testimony that he would have expected to find evidence of burning on other bones had someone poured gasoline on the entire body and set it afire, as Buck obviously did—but he too had found only the two small areas of localized burning on part of the skull.
“Now, if Buck Walker had kept that fire going long enough, there unquestionably would have been evidence of burning throughout the skeletal remains of Muff Graham.
“We don’t know how long Muff Graham’s body was on fire. But one thing we do know. Buck Walker obviously decided not to complete the burning. We have absolute, conclusive evidence of this. He appears to have started the fire, saw that it was taking too long, so he discontinued his effort.*
“Now I ask you. If Buck Walker had decided to burn the body, why did he, as the physical evidence shows, abort his effort?
“There’s only one logical reason that comes to mind. He must have been rushed for time. And that begs the question. Why in the world would Buck Walker have any need to feel rushed for time on a deserted Pacific island where there’s only one other person on the island with him? I repeat: why would he feel rushed for time? Because this other person on the island, Jennifer Jenkins, was not a party to what he was doing.”
I pointed out that in addition to the increased likelihood of Jennifer’s smelling and seeing smoke the longer the fire continued, “Buck had to do everything outside of her presence, and he never had unlimited time with which he could justifiably remain outside of her presence. I say that the strong evidence of rushing, which Buck Walker was forced to do, is itself persuasive circumstantial evidence that Buck Walker acted alone in committing the murders in this case.
“The third mistake of Walker’s is an extremely strong and powerful piece of circumstantial evidence that points to the innocence of Jennifer Jenkins. It is so strong that even if there were nothing else pointing towards her innocence, this alone, I feel, would be enough to prove her innocence. Let’s take it step by step.”
My buildup, I could see, had piqued the interest of the jury. I had promised them an explosive inference, and I had better deliver.
“Buck Walker put Mrs. Graham’s body in that container,” I said, pointing to the aluminum box that had remained in the courtroom, “and sank it
to the bottom of the lagoon for one obvious reason, and another not so obvious reason.
“The obvious reason, of course, is that he wanted to do whatever he could to hide the body from the authorities. Without a body, Buck Walker had to know that the case against him would be much weaker; in his mind, perhaps nonexistent.
“But was the bottom of the lagoon the best place to conceal Muff’s body? The answer is unquestionably no. Why? Because Buck Walker had to know that as soon as the Grahams’ disappearance became known, the authorities would search for them, as we know they did. And the very first place they would search would be the island and the lagoon, which is again exactly what they did. In fact, he would have to know that the island and lagoon would be the only places they would search, since you can’t search the ocean.
“Moreover, Buck Walker also had to know that the authorities might find the container, and even if they didn’t, he had to know there was always the chance the container and its grisly cargo might someday surface on its own, as it did. So, clearly, the lagoon would not be the best place to bury it.
“Where would the best place be? Just as clearly, far out at sea, where the body—like thousands of other bodies throughout the ages—would be lost forever. An unprotected body in the ocean would normally be consumed by sea life. For eternal secrecy, the sea is the ultimate graveyard. It couldn’t possibly be more obvious. Even someone with not too much furniture upstairs would know this.
“What I’m saying, ladies and gentlemen, is that even a simple-minded murderer would know this. All the more so Buck Walker, an exceedingly adept murderer who almost pulled off two perfect murders, leaving very little incriminating evidence behind.
“If Buck Walker committed these murders with Jennifer Jenkins, if they participated together in these murders, doesn’t common sense dictate, doesn’t common sense tell you, that disposing of the Grahams’ bodies far out at sea is the obvious thing they would have done? It would have been so easy for them to have transported the bodies on the Sea Wind until they were hundreds of miles out at sea and then thrown the bodies overboard. That way they could have been virtually one hundred percent sure the bodies would never be found.
“But this wasn’t done because the perpetrator of these murders was not a ‘they,’ it was a ‘he.’ Buck Walker alone committed these murders.”
What I said next was an indispensable part of the chain of logic, and therefore had to be stated, but it was so self-evident I confessed to the jury it was embarrassing even to utter the words. I explained that Walker obviously couldn’t take the murdered bodies out to sea when he and Jennifer left Palmyra on the Sea Wind because Jennifer would then know Buck had killed them.
“Buck Walker had no choice but to dispose of Mac and Muff on Palmyra, outside Jennifer’s presence, and without her knowledge.”
I walked slowly over to the aluminum container. “I say that this container, being found on Palmyra, speaks out loudly, though it is voiceless. It speaks out against Buck Walker as the one who alone shed the blood of Eleanor Graham.
“You know, it’s not as if Buck Walker buried the bodies in the lagoon because he wasn’t even bothering to think about taking steps to avoid being caught. His setting of Muff Graham’s body on fire conclusively refutes that notion. The fact that Muff Graham was able to be identified by dental records from San Diego does not negate Buck Walker’s obvious intent, as demonstrated by the fire, to prevent the identification of her body.
“So by the fire, we know that Buck Walker was acutely aware of taking all possible available steps to insulate himself from criminal prosecution. Yet he doesn’t take the most important and most obvious step of all, disposing of the bodies far out at sea, because without Jennifer’s involvement in these murders he could not do this. He was forced, instead, to go through all the trouble of finding a container, putting the body in the container, attempting to incinerate the body, securing the container, and then sinking it in the lagoon.
“When Buck did this, ladies and gentlemen of the jury, he wasn’t just hiding the bodies from the authorities. More importantly, and certainly more immediately for him, he was hiding the bodies from Jennifer. In the process, he couldn’t have made it more obvious that he, and he alone, committed these two nightmarish murders.
“So often, the means a criminal employs to conceal his identity are the precise means that reveal his culpability.
“Can Mr. Enoki make the argument in his rebuttal that if what I say is true about the sea being the best place to hide the bodies, Buck could have himself gone out to sea and disposed of the bodies, and the fact that he obviously didn’t disproves my argument?
“That argument by the prosecution would not be valid because with the time constraints he was faced with in always appearing to Jennifer that he was on the island, how could he go miles out to sea? Moreover, Bernard Leonard testified that the Zodiac was not the type of boat you would operate out at sea because it would swamp.
“But there was an even better reason why Buck could not bury the bodes out at sea.”
I moved to the chart of Palmyra.
“As you can see from this chart, from the dolphins here where the Iola was moored, Jennifer had a clear view of the channel, and she could therefore see any boat leaving or entering the lagoon.
“It’s true that Jennifer was in the cabin of the Iola at the time she heard the dinghy, but Buck would have had no way of knowing this. Furthermore, as Jennifer testified, even from the Iola’s cabin she could look out the windows or the cabin hatch, both of which faced the channel.
“Buck Walker knew that if Jennifer saw him, by himself, operating the Grahams’ Zodiac dinghy and leaving the lagoon, she would know immediately that something was very, very wrong. He’d already told Jennifer, remember, that Mac and Muff went fishing in the Zodiac for the bon voyage dinner.
“And incidentally, as Jennifer testified, there would be no way for her to confuse Buck with Mac. It was daylight when she heard the Zodiac being operated in the lagoon, the lagoon was small, and there was testimony from Jennifer and Mr. Leonard that if someone were operating a dinghy in it during the day, from the dolphins it was easy to identify the person.
“Note that Buck told Jennifer that Mac and Muff had gone fishing, so even if Buck could have been confused as looking like Mac, he certainly couldn’t have been confused for two people, Mac and Muff.
“In fact, even if Jennifer couldn’t identify who was in the Zodiac at all, she certainly would know that it was the Zodiac heading out of the channel into the ocean, and Jennifer would know that Mac and Muff would not be fishing in the ocean. We had testimony that no one did.
“I said earlier that if Jennifer had been involved in these murders with Buck, they would have buried the bodies far out at sea. But even in the sea just outside the channel would have been much, much better than burying the bodies in the lagoon.
“But because of the reasons I’ve stated, Buck couldn’t even bring the Grahams right outside the channel. In fact, because of Jennifer, Buck Walker couldn’t even dispose of the Grahams’ bodies in ninety percent of the lagoon.”
I directed the jury’s attention once again to the Palmyra chart. I pointed out how only a narrow portion of the lagoon—about a tenth of it—was blocked from Jennifer’s line of vision at the dolphins because of the obstruction on the south end of Cooper Island that jutted out into the lagoon.
“I say it’s no coincidence that Sharon Jordan found the remains of Muff Graham inside this ten percent strip of area, and Jennifer found the Zodiac overturned in the same general area—this narrow strip that is not visible from the area of the dolphins. This is the same area in which Jennifer testified she heard the sound of the Zodiac being operated about 4:30 P.M. on August 30th.
“Buck could not afford to operate the dinghy or dispose of the bodies outside this ten percent area,” I said, sweeping over the remaining nine-tenths of the lagoon with my hand, “because of the likelihood that Jennifer, from the Iola, would spot
him.
“So we see that Buck Walker was not only forced to bury the bodies in the lagoon, but even in the lagoon itself he had no choice but to put them in that small area where the Zodiac was found overturned, and Muff’s remains were found.”
I LET THE jury know I was coming to the close of my summation. “But I still have a few more matters to discuss: circumstantial evidence, suspicion, reasonable doubt, then a few closing observations.”
I knew I would finish by lunchtime. I had argued about three hours the previous afternoon, and taking time out for this morning’s recess, I would end up having argued a little more than two hours today. I was hitting the judge’s five-hour limit almost on the button.
“First, circumstantial evidence. To demonstrate the distinction between direct and circumstantial evidence, if the question were whether it’s raining outside, and you actually saw the rain falling, that would be direct evidence. Circumstantial evidence of the rain falling would be seeing someone coming into your home with wet clothing. Of course, their clothing could have gotten wet by walking past your neighbor’s sprinkler. Or it may have been raining earlier, but it had stopped, and their clothing was still wet. And so on. That’s the problem with circumstantial evidence.
“This case is one of circumstantial evidence. Circumstantial evidence is not invalid evidence. It can be good evidence. However, Judge King will give you the following instruction: ‘If the jury views the evidence in this case as reasonably permitting either of two conclusions, one of innocence and the other of guilt, the jury should of course adopt the conclusion of innocence.’
“Note that this instruction does not say that the conclusion of innocence has to be more reasonable than, or even as reasonable as, the conclusion of guilt. It simply says that if the evidence reasonably permits a conclusion of innocence, you should reject the conclusion of guilt. That’s the law.”
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