And Never Let Her Go

by Ann Rule

  O’Donnell said he felt that once Tom was transferred to a prison facility, he would have the opportunity to help other inmates. Perhaps teach them to read. “But most of all,” O’Donnell concluded in a surprising fashion, “I ask you to consider the effect of your recommendations on his brothers, Louie and Gerry. . . . Gerry is a mess. If you can’t find it in your hearts to recommend life for Tom because of Tom . . . do it for his mother . . . for his daughters . . . for his ex-wife . . . , please find it in your hearts to do it for Louie and especially for Gerry.”

  Ferris Wharton gave the last argument of the trial. He decried O’Donnell’s contention that the murder of Anne Marie had been rash and impulsive, or that Linda Marandola had not been afraid of Tom. “The rekindling of Linda Marandola’s relationship,” he said, “is also more of a testament to the defendant’s relentlessness and persistence than anything else. You’ve heard how he can be. You’ve heard how he was on the phone with Debby MacIntyre. . . . He can be charming. But above all, he was relentless. . . .”

  How many mitigating factors were there left in Tom Capano’s makeup? “Perhaps there was good in him,” Wharton acknowledged. “Fifteen years ago. Ten years ago. But there was also evil in him. There was substantial evil in him. . . . Perhaps at one point, there was this duality . . . a battle going on, if you will, for his soul. But that battle has been lost. What you see now is the Tom Capano that you have to recommend a sentence for.”

  Wharton doubted that putting Tom in the general population of a prison for the rest of his life would be a wise idea. “There are people there to relate to,” he pointed out. “There are people to control . . . to manipulate. There are people to do things for, do things to. There are the Harry Fuscos in prison. There are the Nick Perillos in prison. There are rules to be broken. There are ways to get over . . . inmates to be influenced.”

  Wharton noted that Tom had never once mentioned tutoring prisoners or helping them with their education during his allocution. No, he had thought, as always, of himself. And now the jurors would have to decide if the aggravating factors outweighed the mitigating factors as they looked back over Tom Capano’s life and Anne Marie’s death.

  “And when you answer those questions,” Wharton said, “you will have an opportunity to do more than simply confine the evil that Tom Capano has become. Because that type of evil is relentless and will not be confined. You will have the opportunity to end its presence in your lives, ladies and gentlemen, because that type of evil must be ended.”

  WHEN the jurors returned for the second time with a decision, the city of Wilmington held its breath. Tom was led into the courtroom to hear his fate, and he seemed as insouciant as always. He looked toward his mother, who sat tearfully in the courtroom, and mouthed, as he often did, “I’ll be OK,” or, less likely, “It’ll be OK.”

  It was late on Thursday afternoon, January 28, 1999. The jurors recommended by a vote of ten to two that Tom Capano be put to death by lethal injection. Only once in Delaware history had a judge gone against a jury’s recommendation of the death penalty.

  Outside, horns blared, people clapped and cheered.

  Now it was up to Judge William Swain Lee.

  Chapter Forty-six

  JUDGE LEE HAD MANY THINGS to consider as he decided what Tom Capano’s sentence should be. The jurors’ recommendation would certainly have tremendous weight, but there was one haunting voice, a voice that spoke for the whole family. It was Robert’s, as he sat on the witness stand during the penalty phase, on January 21, and remembered his sister and the pain of losing her.

  For sixty days, the Faheys had kept a vigil at Anne Marie’s apartment and then entered a lost place, where they still were. “And the best description I can give anybody is that it is a black hole without boundaries,” Robert said, “and it is as black as it gets. There is no light.”

  Robert talked of their search for someplace where they could feel Anne Marie’s presence so they could say good-bye to her. They had been to the Grant Avenue house. “If you had a sibling or a spouse or a child or someone that you deeply cared about, and they were killed in a car accident, and that car was towed away to a junkyard, I would argue that everybody in this courtroom would go to that junkyard and look at that car, especially if the body had never been recovered. And that was our way of trying to see where Anne Marie’s last resting place was. . . . We knew in our hearts she had died in that room. And we had to go and see it and touch it and say a prayer for Anne Marie . . . by going to the place where she was brutally murdered.”

  Robert spoke of never having been able to have a funeral for his sister. “You think about how important a funeral is, because there are rituals, and some of the rituals I never appreciated the benefit of because they had always been there. And when they’re not there, you don’t have the opportunity to grieve.

  “You don’t have a viewing. Rather than a piece of plastic with a bullet hole in it, you generally have a wooden coffin. And you go to the funeral home, and you can say your prayers and hug everybody collectively that’s there to support you. So instead of a funeral, we have a cooler for a coffin and we have images that are just very, very painful.”

  As pitiful a substitute as it was, they had all gathered around the cooler and prayed for their sister. Now, as Robert spoke, people began to cry; even reporters who never let their emotions show in public had tears running down their faces. Anne Marie had been with them all along, but as part of a legal puzzle, and it had been easier to look away from the real woman. But as her brother talked about her, the sounds of sniffling and nose-blowing grew stronger.

  “Rather than Anne Marie being buried in a family plot next to her grandmother and her mother,” Robert said, “instead of being surrounded by her family when she died, Anne Marie was surrounded by her killer and her killer’s brother.

  “And she was thrown over the side of a boat, wrapped in chains and anchors and rope, rather than in her finest dress. And rather than being in a coffin—whether it was a hundred thousand dollars or ten thousand—she was in an Igloo cooler.

  “And rather than being buried next to her mother, she was thrown into a piece of water that’s known as Mako Alley. So instead of my mother, she had sharks.”

  Robert remembered how his family and grandmother had gone to the shore for a week every summer. He said he and his siblings would continue to do that for their children, but it would never again be the same. “I can’t go anywhere near the Atlantic Ocean, because I know my sister is out there, probably in a million pieces, and it’s not a real pleasant thought.”

  They would never know, any of her brothers and her sister, if Anne Marie had been beaten or tormented before she died. And even though their religious beliefs told them she was safe with God, their minds would go back forever to that night when she died and wonder about that.

  Kathleen would say, “I hope he shot her from behind and she never had to be afraid. I cannot bear to think that she was afraid.”

  AND now, Judge Lee thought of all those things as he struggled to make the most awesome decision any man can make, and one few would seek to make.

  On March 16, 1999, he was finally prepared to sentence Tom Capano. The day before St. Patrick’s Day was cold, much colder than the two days in January when crowds had gathered to hear the decisions the jurors had made. Spring seemed months away, the sky was leaden, mounds of dirty snow covered the curbs in front of the Daniel J. Herrmann Courthouse, and spectators bundled up against the wind. With each increment of this seemingly endless legal procedure, the crowds had grown. Now there was no room to walk; reporters, cameramen, families, friends, bystanders, and the curious filled every spare inch of the sidewalk and the wide apron of steps. People even began to climb onto the concrete walls around the steps. Some watched with binoculars from Rodney Square across the street. The television trucks weren’t just from Wilmington and Philadelphia; there were network news trucks, too.

  Would Tom Capano get the death penalty? Most said no.
They couldn’t see how the man could fall any lower than he already had. Others said he was “gonna fry,” even though the death penalty in Delaware is accomplished by lethal injection.

  “I feel so sad for his mother,” a woman said to her friend. “Look at her there in her wheelchair with all the cameras poking in her face—they shouldn’t treat an old woman like that.” But, of course, they did. Running backward, photographers aimed their cameras directly into the faces of Marguerite and Tom’s daughters.

  Above the clamor of people talking and the sounds of traffic on the busy corner opposite the Wilmington Public Library, a crazy, cacophonous noise penetrated the air sporadically. Two men in a long 1950s Cadillac convertible drove repeatedly around the block, apparently so they could show off their horn. They laughed and waved but the crowd only stared at them. Whichever side they were on, none of the people who had gathered here found anything remotely funny about this landmark day.

  The Faheys and the Capanos had arrived and gone up to the courtroom. Kay Ryan had come downtown with her daughters but she could not bear to walk past the cameras again. Her daughters entered the courthouse while she waited down the street in a friend’s car. She didn’t really want to hear what the judge would say.

  Marguerite’s wheelchair sat in the aisle near the railing on the right side of the courtroom in which Tom’s sentence would be pronounced. For some reason, now that it was almost over, the Capanos and the Faheys had reversed sides of the courtroom—but then, it wasn’t even the same courtroom. Another hearing was being held in Courtroom 302.

  Father Balducelli held Marguerite’s hand and her family crowded around. It had been one thing after another for her; Joey had undergone heart surgery and survived, again. Now she trembled as she waited to hear if her Tommy would survive.

  The room was packed, and for once, Judge Lee allowed people who could not find seats to stand along the walls. Tom walked in and looked toward his mother—toward his daughters. And once more, he mouthed, “It will be all right . . . It will be all right.”

  Judge Lee looked at the gallery, the attorneys, and the convicted man. No one knew what he might have been thinking during all the months of Tom’s trial; judges rarely betray their feelings. He had been unfailingly gracious and in control of his courtroom, but he had never once commented on the proceedings in any personal way.

  Now, he began to read the statement he had prepared.

  “This is the time established for the sentencing of Thomas J. Capano, who has been found guilty of murder in the first degree by a jury which also found the existence of an aggravating statutory circumstance by a vote of eleven to one, and recommended the sentence of death by a vote of ten to two. . . .

  “The Court is required to give great weight to the jury’s recommendation. I have completed that process.”

  But Judge Lee said he had found the law itself inadequate to describe what had happened during the trial just held, and he had decided to supplement his decision with further remarks.

  “The gradual revelation of the personality and character of the defendant,” he began, “clearly was a factor in both the verdict of the jury and its recommendation concerning appropriate sentence. It is a significant factor in my sentencing decision today.

  “Thomas J. Capano entered this courtroom on trial for his life, a man presumed innocent, and almost immediately embarked on a course of conduct to rebut that presumption. Intelligent, educated, affluent, accomplished, and charming by reputation, he proceeded to negate all of the advantages his life had provided during the harsh confrontation with reality which is a criminal trial, and eventually revealed an angry, sinister, controlling, and malignant force which dominated the courtroom for months.

  “From the beginning, he systematically and contemptuously degraded all of those who participated in the proceedings: the prosecutors, the witnesses, prison personnel, the Court, and his own attorneys.

  “From direct insults to prosecutors to withering stares at witnesses, continuous claims of privilege from correction officers, constant violation of the rules of the Department of Correction and the limitations established by the Court, and suborning perjury, to the constant undermining of the efforts of the excellent team of lawyers he assembled to represent him, Thomas Capano needed to show everyone that he was in charge and that he held all those who he viewed as adversaries with contempt.

  “In spite of imposing his will on his attorneys in matters where, by law, the decision was rightfully theirs, the possibility remained that he would be acquitted, until he insisted they adopt his unsupported theory of the case in the defense opening statement, which all but required his testimony once a promised credible witness failed to materialize.

  “Again against the unanimous advice of his counsel, the defendant insisted on testifying and solidifying the remaining area of weakness in the state’s case by presenting a story of Anne Marie Fahey’s death which the jury found incredible.

  “Having sealed his fate on the question of guilt or innocence, he displayed the malevolence of his nature, which became crucial in determining sentence.”

  Judge Lee continued to read, each sentence blasting the man who had made a mockery of his courtroom for well over three months. “The defendant,” he said forcefully, “insisted on a ‘chain-saw’ approach, attacking, maiming, and destroying the character and lives of lovers, friends, and family who had, in his eyes, been disloyal to him in his time of need. . . .

  “The defendant fully expected to get away with murder and, were it not for his own arrogance and controlling nature, he might well have succeeded. . . .

  “If the virtuous Tom Capano ever existed, he no longer did at that time. He chose to use his family as a shield, make his brothers and his mistress accomplices, use his friends and attorneys for disinformation, attack the character of the prosecutor, make his mother and daughters part of a spectacle in an effort to gain sympathy, chide his brother [Gerry] to ‘be a man’ when the weight of the investigation fell upon him, rely on character assassination when that brother is compelled to testify, and insist that the family ostracize him for telling the truth. . . .

  “He even bullied, berated, and undermined the efforts of his own lawyers, who believed they could gain his acquittal. The defendant has no one to blame for the circumstances he finds himself in today except himself. . . .

  “The selfishness, arrogance, and manipulativeness of Thomas Capano,” Judge Lee continued, “destroyed his own family as well as the Fahey family. He did not hesitate to use his family to commit or suborn perjury or to ask for the mercy he specifically refused to ask for himself. His only remorse is for himself. . . .

  “Tom Capano does not face judgment today because his friends and family failed him. He faces judgment because he is a ruthless murderer who feels compassion for no one, and remorse only for the circumstances he finds himself in.

  “He is a malignant force from whom no one he deems disloyal or adversarial can be secure, even if he is incarcerated for the rest of his life.

  “No one except the defendant will ever know exactly how or why Anne Marie Fahey died. What is certain is that it was not a crime of passion but, rather, a crime of control. By all accounts, she had ceased to be the defendant’s lover but had never escaped his sphere of influence, control, and manipulation. Anne Marie Fahey could not be permitted to end the relationship unless he said so. She could not be allowed to reject him.

  “The defendant’s premeditation and planning was a contingency that perhaps he hoped would never happen—but did—on the evening of June 27, 1996. He chose to destroy a possession rather than lose it; to execute an escaping human chattel.

  “Considering and weighing all the evidence, the verdict and the recommendation of the jury was just. Mr. Capano, would you rise for sentencing, please.”

  And there, in that hushed courtroom, Judge William Swain Lee sentenced Tom Capano to die by lethal injection in the presence of ten witnesses. His execution date was to be June 28, 1999, thre
e years to the day from the time he threw Anne Marie’s body into the Atlantic Ocean.

  THERE was an automatic appeal, and Tom Capano did not die on June 28. He is in “max max,” in prison in Smyrna, Delaware. Tom was in every sense of the phrase a man who had everything. But he wanted more than that. He wanted everything his way. And when he took a young woman’s life because she would not submit to his will, he destroyed them both.

  Afterword

  WHEN I RETURNED to Wilmington it was full summer, 1999, the kind of weather that always colors my memories of living in the Philadelphia-Wilmington area when I was a teenager. All the wind, snow, and rain that seemed part of Tom Capano’s trial had evaporated in the drought of 1999. Only the heartiest plants kept their heads up when the city forbade watering lawns and gardens, but the honeysuckle perfumed the night as it probably has since the first settlers arrived in New Castle.

  After three years of an investigation and trial that seem to have touched almost everyone in the city with sorrow for a promising life lost too soon and for families blighted with dissension and shame, I somehow expected to find that at least some of the people involved had moved away from Wilmington to start over. But no one has. The years ahead may change their decisions; more likely, they may only soften the edges of raw pain and bright memory. It is not a city one leaves; family structures reach too deeply into the earth there, and for everything that is ugly, three or four beautiful new things appear. More and more of the old row houses are being renovated, and there are traditions all around Wilmington that newer cities cannot duplicate. Joe Oteri might have figuratively waved the American flag a bit too much in his arguments to defend Tom Capano, but if he did, he picked the right city, a city integral to all our histories no matter where we live in this country.