And the Sea Will Tell

by Vincent Bugliosi

  Implicit in the notion that an opening statement is enormously important is the false assumption that juries are, as one English barrister described them, “twelve people of average ignorance,” and that without having yet heard one single solitary word of testimony, they’re going to be permanently (or at least substantially) influenced in their view of the case. On grounds of pure logic, this would appear to be very unlikely. Moreover, the jury knows that the lawyers addressing them are taking the positions they are because they are being paid by their clients.

  Although I usually elect to make an opening statement, if, in a hypothetical situation, the other side could make one and I couldn’t, I’m confident that just these few words would almost be adequate to insure that the jury started the trial with an open mind: “You’ve heard opposing counsel tell you what he intends to prove during the trial. Well, as you folks know, there are always two sides to every story, and I would respectfully ask that before you form any judgment, you listen not just to their side, but to the side we’re going to present during the trial.”

  Even when jurors do form an opinion during the opening statement, it certainly is not etched in marble, and can be overcome by actual evidence and testimony from the witness stand.

  Lawyers making opening statements are like two opposing coaches talking on television before a Super Bowl game about what their teams hope to accomplish on the field of play. Jurors, I’ve long thought, are in the position of TV viewers who tire of prelims and want the game to begin.

  If a lawyer does make an opening statement, he should make sure he doesn’t bite off more than he can chew, that he doesn’t promise the jury he will prove something he may be unable to prove. He must be careful in his statement so he doesn’t have to contradict himself or retract by trial’s end. It is very effective for opposing counsel to point out to the jury at the conclusion of the case that the lawyer said in his opening statement he was going to prove something and he failed to do so. It hurts his credibility in the eyes of the jury and can adversely affect their perception of his entire case.

  p. 396: An alternative to the “why” question.

  An alternative to the “why” question is to save for final argument the implications of the witness’s testimony, but by that late point in the trial, the witness’s reason for his conduct is a matter for competing speculation by the lawyers, not court record. Moreover, the opportunity to make the witness “look like a liar” before the jury’s eyes when he is trapped has been lost.

  p. 435: Schroeder’s line of questions would be calling for hearsay.

  When used in a legal sense, “hearsay” has a very specific meaning. Hearsay is a statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence to prove not merely that the statement was made, but that it is true. If, for example, a witness intended to testify that “Ray told me he saw Michael kill his wife,” Ray’s statement would be inadmissible hearsay if offered to prove that Michael killed his wife. On the other hand, if a witness testifies at a competency hearing over Grandpa’s will that “Grandpa told me the sky was falling,” Grandpa’s statement would not be hearsay, since it would be offered not to prove that the sky was falling, but to prove that the old man had made the statement.

  Almost all hearsay consists of oral or written statements, but even conduct, when intended as a substitute for words (e.g., nodding one’s head in answer to a question, or identifying a person by pointing), is a hearsay “statement.”

  It is commonly stated that it is hearsay when a witness relates what someone else said, but an out-of-court statement by the witness himself can also be hearsay. An out-of-court writing by a witness, for example, can be hearsay, and if certain requirements are not met under an exception to the hearsay rule called “past recollection recorded,” the writing will not be admissible.

  The hearsay “exceptions” apply to situations in which the out-of-court statements carry a likelihood of trustworthiness, such as deathbed declarations and self-incriminating statements of a defendant (people normally do not incriminate themselves falsely). There are, in fact, so many legal exceptions to the hearsay rule (twenty-two, to be exact) that a number of legal scholars feel the tide is running in the direction of eventually abolishing the rule, and like most European countries, allowing hearsay in, to be given whatever weight the jury feels it is entitled to.

  Although some of Mac’s out-of-court statements to Shoemaker would not be hearsay (e.g., “I guess they’ve made a truce” was not offered to prove that there was, in fact, a truce), the key statements “There is a dinghy coming over to the boat” and “Let me go up topside and see what’s happening” were offered to prove that these statements were true; that is, that Buck and Jennifer came to the Sea Wind on the evening of August 28, 1974. Although it is unlikely that the spontaneous-declaration exception to the hearsay rule would apply (the precipitating event wasn’t so startling as to produce an excited utterance under stress), the key statements may have been admissible over my objection under the “present sense impression” exception to the hearsay rule—Mac’s statements describing what was taking place were contemporaneous with the events he was describing.

  p. 441: Prosecution’s disbelief that the hole in the Sea Wind’s hull was caused by a swordfish.

  The prosecution attempt to imply throughout most of Jennifer Jenkins’s trial, as well as at the Walker trial, that the hole was probably caused by a bullet was curious. On October 30, 1974, the day after Jennifer’s arrest and Buck’s escape in the Ala Wai harbor, FBI crime lab experts combed the interior and exterior surfaces of the Sea Wind for traces of blood, bullet holes, or any other evidence that a crime had been committed. Nothing was found, but no reference to the search for physical evidence appeared in any of the FBI documents on the case furnished to the defense by the U.S. Attorney’s office. This information first surfaced in a telephone conversation with Calvin Shishido on November 28, 1988. “The Sea Wind was clean,” Shishido said.

  p. 476: The need to argue innocence as well as reasonable doubt.

  A defense attorney has a serious dilemma when he only argues to the jury that the prosecution has not met its legal burden of proving guilt beyond a reasonable doubt. The baggage of such an argument can be that he has thereby, by implication, conceded his client is not innocent. In other words, if his client had absolutely nothing to do with the crime, and is completely innocent, it sounds almost inappropriate to only argue that his guilt has not been proved beyond a reasonable doubt. Though there is no legal implication of guilt in a reasonable doubt argument, as a practical matter it tends to go in that direction, though by analogy, not as conspicuously as a plea of not guilty by reason of insanity. While there is likewise no legal concession of guilt in the insanity plea, that is the precise effect of such a plea. Again, if a defendant had absolutely nothing to do with the commission of a crime, a plea of not guilty by reason of insanity is completely inappropriate. The plea in effect tells the jury, “I’m guilty, but give me a break because I’m crazy.”

  Suffice it to say that it is advisable, and in fact nearly always essential, for defense counsel to argue his client’s innocence. Not only does a jury have to vote not guilty if they believe the defendant is innocent, but a synergism is involved. Even if they don’t ultimately conclude he is innocent, the evidence which is presented to prove innocence will normally also go in the direction of helping to establish reasonable doubt. The approach almost necessarily has to be broken down into two levels. At the first level, counsel can argue that the evidence proves, or at least points to, his client’s innocence. Defense counsel can then go on to the second level and argue that the prosecution’s case against his client was so weak that even if one or more jurors nonetheless believe that he did commit the crime, they certainly should not believe in his guilt beyond a reasonable doubt. And therefore, under the law, they still are duty-bound to return a verdict of not guilty.

  p. 481: Problems wit
h character defense.

  There was a more subtle problem I had. The premise of the character defense is the oft-repeated notion that “people don’t change.” And originally, the language I had prepared for my summation used these words. But I knew that Enoki, if alert, could argue in his rebuttal that people do change, and cite as one example the also oft-repeated political aphorism that “power corrupts.” He could use other, more down-to-earth examples, such as people observing that those who were once their friends “don’t know them anymore” once they rise far above them (for instance, a co-worker who becomes a supervisor or president of the company). I had an answer to this, but unless I raised the issue myself, it was one I wouldn’t have a chance to use (since after my argument that people don’t change, I would not have the opportunity to respond to his rebuttal), to wit: perhaps power doesn’t corrupt or change; perhaps it only reveals. For instance, the “friend” who becomes the company president and doesn’t know his former friends anymore maybe never really was a friend, i.e., people, after all, don’t really change. Changed circumstances merely reveal what was latently always there. But since this argument, obviously, could also be used against Jennifer (that is, the claim could be made that the circumstances on Palmyra brought out the latent worst in Jennifer), I decided to take the “people don’t change” language out of my summation and leave in language that people don’t act out of character. Of course, this presupposes that one’s character doesn’t change, but the “change” issue is disguised and I gambled that Enoki wouldn’t be alerted to it.

  pp. 503–504: My “prosecution” of Buck Walker.

  Regarding my intention to prosecute Walker at Jennifer’s trial, not only did I immediately suspect that I would have trouble doing this, but in discussions with Elliot Enoki, he expressly told me he would oppose any such effort of mine. This is why I thoroughly researched the legal defense of “Commission of Crime by Third Person.” Curiously, most “third-person” cases are around the turn of the century, many in the mid-nineteenth century in the South. The basic rule is that such third-person evidence is inadmissible on the public policy ground of undue consumption of time—a trial could go on indefinitely if the defendant could accuse one third party after another. However, where it can be shown not only that a third party had a motive (motive alone isn’t enough) to commit the crime, but that there is “substantive evidence” connecting him to it, most cases hold that such evidence is admissible. Although Enoki had promised a fight, surprisingly, when the trial started, I was able to get in virtually everything I wanted to without objection. Frequently, Enoki himself offered the evidence, such as Buck’s obvious lie that he won the Sea Wind gambling. It was as if Enoki, in the absence of my bringing the issue to his attention each time it came up, lost sight of it.

  I was unable to get in only two very small matters against Buck, and they were only questionably incriminating. In both situations, among other cases, I cited (unavailingly) the case of Chambers v. Mississippi, 410 U.S. 284 (1972), for some reason a greatly overlooked case which, in its implications, is one of the very most important substantive cases for the defense ever handed down by the U.S. Supreme Court. Chambers held that no constitutional right is more important than the right of an accused to present evidence and witnesses in his defense and hence, where “constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule [and therefore, arguably, it would seem, every other established rule excluding evidence] may not be applied mechanistically to defeat the ends of justice.”

  p. 506: Jennifer had used her real name…

  Fortunately, Jennifer chose to use her real name on this important occasion. She had used two aliases in her early Hawaiian years, one of which, Susan Mallett, she got a driver’s license under when she had too many driving citations. Mallett was the name of the man she was living with at the time.

  p. 506: Introducing negative, depreciating evidence on direct examination.

  Several years ago, in a celebrated murder case tried in Amarillo, the multimillionaire defendant did not testify or in fact present much of a defense at all. The defense strategy was devoted to making his wife, the star witness for the prosecution, look like the cheapest, most tawdry Jezebel ever to slink down the pike. The defense allegations, though essentially irrelevant legally, were for the most part true, and the uptight Bible Belt jury, aghast at the revelations of immorality on the part of the defendant’s wife, in effect convicted her and, almost as an incidental by-product thereof, found her husband not guilty. The defense attorney was later quoted as saying he knew he had won the case “the moment the last redneck was seated on the jury.” I cannot help but wonder what the result would have been in this case if the prosecutor had matter-of-factly presented all of this negative, depreciating evidence on direct examination. Maybe, just maybe, they at least would have had a murder trial in Amarillo.

  pp. 520–521: Jennifer’s recollection of number of times and times of day she saw Buck on August 30, 1974.

  Assuming Jennifer’s story of what happened on August 30, 1974, is true, as I believe, it’s not entirely implausible that Buck had already murdered Mac and Muff by 9:00 A.M. (If so, he most likely hadn’t disposed of the bodies at this point; a more time-consuming and laborious task, actually, than killing two human beings. Also, Jennifer said she heard the Zodiac being operated in the lagoon later in the day around 4:30 P.M.) Given Mac’s proclivity for getting up and getting out early in the morning, and Muff’s for sleeping in, Buck might have killed Mac first, catching him unaware in his workshop or elsewhere, and then gone to the Sea Wind to find Muff, who may have still been asleep. Walker could have murdered Muff there or forcibly removed her from the boat before doing so. It should also be borne in mind that if Jennifer had the dinghy throughout the day on August 30 (a point which was never resolved), the safest time for Buck to have murdered Mac and Muff without having to worry about Jennifer coming ashore would have been early in the morning.

  p. 563: Jennifer thought it was before her theft trial that she had drinks with Gordon.

  If, in fact, it was before her theft trial that Jennifer had drinks with Gordon and if, in fact, she told him what he said she did, by Buck “spilling his guts,” Jennifer could have simply been talking about the lies she and Buck had told concerning the Iola’s getting hung up on the reef in the Palmyra channel. However, although she didn’t learn that the Government had the photographs showing the Iola and Sea Wind alongside each other on the open sea until later at her theft trial, she did know the authorities left for Palmyra on October 31, 1974, which was just two days after her arrest at Ala Wai harbor. Therefore, she would have known at that time (which was while she was still in custody and hence before her conversation with Gordon) that the authorities, not seeing the Iola hung up on the reef, would know she had lied. Therefore, it could be argued that she would not have been referring to the reef lie when she spoke to Gordon. On the other hand, since she knew of the authorities’ visit to Palmyra, why did she persist in the reef lie at her trial? Is it possible that for some unknown reason, prior to her theft trial it did not register in her mind that the authorities knew of the reef story lie? Or could she have thought that even though the authorities didn’t see the Iola on the reef, this wouldn’t necessarily prove she was lying—that the Iola could have sunk before they reached Palmyra, or could have been taken away from Palmyra by visitors to Palmyra after she and Buck left the island on September 11, 1974?

  p. 570: “…one all-important principle is implicit…that a jury does not have to believe in a defendant’s innocence in order to return a verdict of not guilty.”

  Why is it implicit? I make this effort: if the jury were instructed that to convict, they had to be “convinced of the defendant’s guilt,” the issue for the jury to resolve would seem to be guilt as opposed to what? The inference is innocence; i.e., the opposite of guilt. So the issue to be decided would be that of guilt or innocence. But this truncated instruction is not given.
To the words “convinced of the defendant’s guilt” are appended the words “beyond a reasonable doubt.” It would seem we have now jettisoned the previously inferential “innocence,” at least to the extent that it is no longer a sine qua non in the legal equation necessary for a verdict of not guilty. Now the issue seems to be guilt as opposed to what? Guilt beyond a reasonable doubt. In other words, when jurors are instructed that to convict, they have to be convinced not only of guilt, but of guilt beyond a reasonable doubt, they are clearly being told that a mere belief in guilt is not enough to convict. And if a mere belief in guilt is not enough, and has to result in a not-guilty verdict, all the more so a belief in innocence is not necessary for there to be a not-guilty verdict.

  p. 571: the ultimate legal issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt.

  For those who would say that, as used in court, there really is no confusion because guilt or innocence is understood by everyone to mean whether or not the prosecution proved guilt beyond a reasonable doubt, not “did he do it or did he not do it,” see, for example, the 1981 United States Supreme Court case of Bullington v. Missouri: “Underlying the question of guilt or innocence is an objective truth: the defendant did or did not commit the crime. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our system is designed to enable the trier of fact to discover that truth.”