And the Sea Will Tell

by Vincent Bugliosi

  I told the jury that at least one reasonable conclusion from the evidence was that Jennifer was innocent, that she was not involved in any way in the murder of Mrs. Graham; and that if they agreed, “under that instruction Judge King will give you, Jennifer is entitled to a not-guilty verdict.

  “There’s something I want to talk to you about now in a little more depth, because it goes right to the heart of this case. It’s the notion of suspicion.

  “The prosecution in this case has not offered one single speck of proof that Jennifer Jenkins murdered the Grahams, or aided and abetted Buck Walker in any way in doing so. When we subject the prosecution’s case to even the weakest of microscopes, one fact is unmistakably clear. Their whole case, their entire case against her, is based on suspicion. Suspicious circumstances. And Judge King will instruct you thusly: ‘The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.’

  “Oftentimes in life, as you know, the less we know the more we suspect. And suspicion is a kind of intellectual dye that colors every thought that comes into contact with it. Applied to this case here, as I said earlier, just on the face of it, if four people are on an island, two end up dead, and the other two end up with their boat, making false statements as to how they came into possession of it, we naturally are suspicious because we know virtually none of the facts.

  “This trial has focused a penetrating spotlight on a great number of the facts surrounding these murders, and with it, the shadow of suspicion against Jennifer Jenkins has vanished like dew in the morning sun. The more we learned of the facts, the less our suspicion became.

  “The prosecution may call this case one of guilt beyond a reasonable doubt. But that does not and cannot change the very nature of this case. It’s a case of pure, unadulterated suspicion.

  “Abraham Lincoln once asked a man how many legs a dog has, and the man said four, whereupon Lincoln said, ‘Well, what if we call his tail a leg? How many legs will the dog have then?’ ‘Five,’ was the reply. ‘No,’ said Lincoln, ‘the dog still has four legs, no matter what we call his tail,’ thus illustrating that changing the name of something does not change its nature.

  “Mr. Enoki will argue to you, of course, that there is more than mere suspicion in this case; that there is evidence. Of course there is evidence. All testimony coming from the witness stand, good or bad, truthful or false, is evidence. But it isn’t necessarily proof.

  “The prosecution has the burden of proof, not the burden of evidence. The kind of evidence presented by the prosecution in this case was the kind which, even when viewed in its very best light, only creates a suspicion, not proves guilt beyond a reasonable doubt.

  “When Mr. Enoki, in his rebuttal, starts making assertions about Jennifer’s guilt, ask him quietly to yourself: ‘Where is the proof, Mr. Enoki? Where is your proof?’”

  I walked toward the empty witness stand, moving within a couple feet of the perch where so many prosecution and defense witnesses, one by one, had taken the oath and provided additional small pieces of the puzzle. Some of the pieces fit nicely, I thought, while others clearly had not.

  “Isn’t it a beautiful system of justice we have in this country that no one—not just Jennifer Jenkins, but you and I and every other American citizen—no one can be deprived of their life or liberty without strong, clear proof coming from this witness stand under oath, and subject to cross-examination? Let’s hope and pray to God this never changes. Because, among other things, that’s what makes this a great country and distinguishes us from totalitarian nations.

  “If we only have, at the very best, a case of suspicious circumstances,” I continued, “to suggest that Jennifer Jenkins has been proved guilty beyond a reasonable doubt is laughable.

  “Beyond a reasonable doubt, ladies and gentlemen. By far the most important doctrine in American criminal jurisprudence.”

  I returned to the podium and paused.

  “I’m going to tell you folks something now that’s probably going to sound shocking to you, but I assure you, it is the law. The ultimate issue for you to decide at this trial is not: was Jennifer Jenkins involved in the murder of Mrs. Graham, or was she not involved? That is, is she guilty or is she innocent?” A perplexed look swept over the jury, like “What have we been sitting here for, then?” A few jurors looked in the direction of the judge. “Even if that were the ultimate issue,” I continued on, “we’ve presented very, very substantial evidence that she is innocent, that her hands and soul are clean of any involvement in the murder of Mrs. Graham. But that’s not the ultimate issue. Under the law, a jury does not have to believe a defendant is innocent in order to return a verdict of not guilty.

  “The ultimate issue for you to decide is: did the prosecution meet their burden of proving guilt beyond all reasonable doubt, or did they not meet their burden?” I sensed the jury relaxing. Yes, they had heard about reasonable doubt before. “That’s the issue,” I said. “And under that test, even if a jury believes a defendant is guilty, if they don’t believe it beyond a reasonable doubt, they simply have no choice or discretion. They must, they have a legal duty, to return a verdict of not guilty.

  “Is there any person in this entire courtroom,” I said, speaking loudly and disdainfully, “who has heard the incredibly weak evidence presented by the prosecution in this case who can say in good conscience that they have absolutely no reasonable doubt?”

  I then preempted Enoki by making an argument that virtually all prosecutors use: “Mr. Enoki will undoubtedly argue to you that the prosecution only has the burden of proving guilt beyond a reasonable doubt, not beyond all doubt. And he will be right. If proof had to be beyond all doubt, even the most fanciful, whimsical doubt, then the prosecution would hardly ever get a conviction in any case. But don’t let Mr. Enoki fool you with that type of argument. Proof beyond a reasonable doubt is not proof beyond all doubt, but it’s about as close to absolute proof as you can get.

  “The language is ‘beyond a reasonable doubt.’ Those are very strong words, and they have been the bedrock of English and American criminal jurisprudence for centuries. Whatever else has changed throughout the years, this rule of law has stood its ground, unmoved and unassailed.”

  After reading the jurors the instruction Judge King would give on reasonable doubt, I gave them a hypothetical example to make a conceptual connection between the instruction and the evidence in the case.

  I then tried to reach the jury at a more elemental level, the level at which I believed many of them might be thinking, or saying, or feeling in their belly, during their deliberations.

  “Perhaps the doctrine of reasonable doubt can be illustrated this way. If the state of mind of a juror in a criminal case is ‘I kind of believe that the defendant is guilty’ or ‘If I were forced to bet, I’d bet he is guilty,’ that is not enough. Not enough. Even if the juror’s state of mind is ‘I believe he is probably guilty’ or ‘I believe he is most likely guilty,’ again, that is not enough. Not enough. To convict, a jury’s belief in guilt has to be greater than this—beyond a reasonable doubt,” I said firmly.

  “The presumption of innocence cannot be overcome by conjecture, by speculation, by vagrant and disjointed circumstances that are suspicious from one vantage point, but innocent from another. It can only be overcome by evidence as clear and powerful as the noonday sun: strong, unequivocal evidence that comes from the witness stand under oath.”

  Here, I argued, the prosecution clearly had not done that.

  I went on to reiterate that although the defense had no burden of proof, “we did present very powerful evidence of Jennifer’s innocence: her comprehensive testimony on that witness stand had the unmistakable ring of truth to it; the persuasive and un-rebutted testimony from several witnesses that Jennifer is a peaceful, compassionate person who abhors violence; the many instances where Jennifer’s conduct was completely compatible with innocence, not guilt; and finally, the illuminating pieces of evidence that p
oint solely and exclusively to the guilt of Buck Walker, and in the process, exonerate Jennifer, such as Mrs. Graham’s body being buried in that lagoon as opposed to out at sea.

  “If all of that isn’t enough to create a reasonable doubt of guilt, then we should abolish the doctrine of reasonable doubt, because it is just an empty, hollow phrase.

  “I ask you, ladies and gentlemen of the jury: if this isn’t a reasonable doubt case, what in the world would be?”

  I realized, for the first time, that my voice was starting to sound a shade raspy. The honey-lemon mixture had helped, but I was coming to the close of my argument just in time.

  “In summary, when you’re back in that jury room, consider that there are three separate, independent grounds that justify a verdict of not guilty in this case, each one of which, all by itself, justifies such a verdict.

  “First, the decided weight of the evidence points towards Jennifer’s innocence—that she had nothing to do with the murder of the Grahams.

  “Second, the judge’s instruction that if there are two reasonable conclusions from the evidence—one of innocence and one of guilt—you should adopt the conclusion of innocence. Certainly, at an absolute minimum, at least one reasonable conclusion from the evidence is that Jennifer is innocent.

  “And finally, we return, as we must always return, to the doctrine of reasonable doubt. The prosecution unquestionably did not meet their burden of proof. In no way did they prove guilt beyond a reasonable doubt. One could almost say that it is a blasphemy and a sacrilege on the doctrine of reasonable doubt, and all that that doctrine means to our system of justice, to even suggest that they have.”

  I took out a handkerchief and mopped my brow. I had come to the closing words of my summation.

  I lowered my tone a notch. “I think it should be observed, in respectfully anticipating your verdict of not guilty, that even with such a verdict, Jennifer Jenkins has been deeply and irreparably harmed for the rest of her life. The fact that she has been charged with the ultimate crime, murder, will cast a dark shadow over her life for as long as she lives, a grave injustice.”

  If any jurors still felt Jennifer was guilty, but had a reasonable doubt, I hoped that observation might make it easier for them to vote not guilty.

  “As some of you probably know, Clarence Darrow, the great criminal defense attorney of many years ago, used to light up courtrooms with the radiance of his oratory. Darrow was a man of such towering stature that when he represented a defendant in a criminal trial, he always raised his eyesight beyond the perimeters of the particular courtroom in which he found himself. Darrow was known to tell jurors that he was more concerned about the effect of their verdict on the people of this country and the cause he was representing than what the verdict would do to his client.

  “Darrow was much more than a trial lawyer. Clarence Darrow was a philosopher, a courageous spokesman for unpopular causes, an unwavering defender of the weak and the oppressed. I view Darrow as one of the moral and intellectual giants of the twentieth century.

  “However, Darrow was also a cynic, as intellectuals are prone to be. Oftentimes, his cynicism was warranted by the facts. But Darrow, in an interview with the New York Times in 1936, the autumn of his life, said something that I don’t really think he meant deep down. It may have been a cold, dank winter day, the old warrior’s bones may have been aching. And he said: ‘There’s no such thing as justice, in or out of a courtroom.’

  “Now, if Clarence Darrow really meant that—and I don’t think he did—but if he really meant that, this would be something to which I would take exception. I told you much earlier that I believe in the jury system, and I believe that, by and large, juries do bring about justice.

  “Justice has been described as the ligament which holds civilized beings and civilized societies together.

  “There’s only one verdict, ladies and gentlemen, only one verdict that would not only be compatible with justice, but would also be in keeping with the evidence in this case, and that, of course, is a verdict of not guilty. Not guilty. The facts and the law of this case literally cry out for a verdict of not guilty. The defense has every confidence that you will not let us down, nor will you let down the system of justice you are sworn to uphold.

  “My colleague, Mr. Weinglass, and I, and our client, Jennifer Jenkins, want to thank you, each one of you, very, very much for all of the patience and attention you’ve given us throughout this entire trial.

  “Thank you, ladies and gentlemen.”

  When the judge called a recess, Len and Ted Jenkins came forward. They both were very excited about the summation, and told me so.

  Jennifer’s mother was close behind.

  Sunny, tears filling her eyes, hugged me. “Thank you, Vince. I feel we have a chance now.”

  It wasn’t until an hour or so later that I realized only one person close to the defense had said nothing to me.

  Jennifer.

  1:30 THAT AFTERNOON

  IN REBUTTAL, the prosecution theoretically is only supposed to respond to (rebut) defense arguments. But since I had asserted my client to be not guilty, the door was left open, after responding to my specific arguments, for the prosecutor to go over once again and reemphasize in a new and powerful way all of the evidence against Jennifer Jenkins that, in his view, proved her guilt. Ending his rebuttal on such a strong, affirmative note would have been far better for the prosecution than the route Elliot Enoki took, which was to stay on the defensive for nearly all of his summation, merely responding to my arguments.

  “Mr. Bugliosi, went on for some length about a wide variety of subjects in his closing argument,” Enoki said as he commenced his rebuttal.

  “I believe he spoke for five hours or so. I’m sure you’ll all be relieved that I don’t intend to stand here and rebut each and every point that he raised or argued. We would probably be here for another five hours.”

  It was Enoki who looked the most relieved.

  “But by not answering every single argument made by defense counsel, I hope you do not get the idea that the prosecution agrees with whatever he did say.

  “I’m going to apologize in advance. Obviously, I didn’t know everything that Mr. Bugliosi was going to argue. As a result of that, I obviously have not been able to prepare a rebuttal in some logical format.”

  What Enoki was saying was startling. The prosecutor felt constrained to admit to the jury that he wasn’t ready to respond adequately to my summation! He seemed a little confused in what was now the last inning of an important ball game.

  “I may be just hitting one subject after another that Mr. Bugliosi has brought up,” said Enoki, who proved true to his word and launched into a disorganized and disjointed rebuttal.

  “The judge is going to explain that reasonable doubt is not proof beyond all doubt, as Mr. Bugliosi noted. You can still have doubts and uncertainties about the case and still convict.

  “In his argument, Mr. Bugliosi said, concerning Bill Larson, something like, here’s a person the prosecution never called. He points to this as if this is some sinister thing we did. Well, the prosecution never hid Mr. Larson. You recall that the FBI talked to Mr. Larson. The defense was able to call Mr. Larson. Each side calls its own witnesses. That’s our system.”

  Enoki’s next argument addressed Jennifer’s claim that her theft-trial lawyer had advised her to commit perjury, but his logic escaped me entirely.

  “Mr. Bugliosi made a remark about how the prosecution failed to call Miss Jenkins’s former lawyer on rebuttal. Well, first of all, there’s no evidence to suggest the prosecution knew of this in advance. Second, there’s no evidence in the record to indicate where the lawyer is or what the lawyer may be doing.”

  Was Enoki telling the jury that the FBI was incapable of finding Jennifer’s former lawyer, still a practicing attorney?

  “And thirdly, do you really believe that the attorney is going to come in and embarrass himself on that particular question? I don’t
think that’s really a fair thing to suggest that the prosecution do.”

  Was Enoki saying that the lawyer wouldn’t embarrass himself by telling the truth, the truth being he had told Jennifer what she said he did? But if Enoki felt this might be the case, then how was it helping him to even make this argument?

  “Mr. Bugliosi started out his argument by saying kind of a funny thing. He said he could argue that maybe there was not a murder here, but then he said he wasn’t going to do that.”

  Enoki then went on to spend several minutes arguing why a murder had taken place, a point I had already conceded.

  “Another thing he mentioned about the log. I’m sorry—about the consciousness of innocence. He said he would have—or she would have had—she would not have made up the story of a Zodiac—of finding the Zodiac up against the beach, because if she was trying to make up a story about drowning, she obviously would have had the Zodiac floating in the lagoon instead. Well, I mean, you have to give some credit to somebody making up a story.

  “Mr. Bugliosi argued on in his argument about high high tide, low high tide, high low tide, and low low tide. I don’t think there’s any dispute that there was a high tide between 4:30 P.M. August 30th and dawn on August 31st. But now he’s saying, well, it wasn’t the high high tide, and why didn’t we bring in an expert on tidal conditions? Well, the reason for that is, first of all, that the only evidence in this whole record about high high tides and low high tides comes actually more from Mr. Bugliosi than from any evidence in the case.

  “In a number of things, and a number of points in his closing argument, Mr. Bugliosi relies exclusively on Miss Jenkins’s testimony to prove the facts that he’s alleging are true.

  “And what about Joel Peters and his laundry? I must confess I’ve never heard of an argument for acquittal based on the return of laundry.

  “Now, in this case Miss Jenkins blamed—or at least Mr. Bugliosi has argued that Mr. Walker committed these murders by himself. Now, if Miss Jenkins—or Mr. Bugliosi is going to claim it was Mr. Walker…”