Most of the press and gallery were out in the hallway, phoning in stories, so that few saw that the Fahey family’s priest gave Kathleen a quick blessing as she knelt in the aisle of the courtroom before she took the stand again.
Maurer questioned Kathleen intensely about when she had seen the twenty-seven-inch television set; whether the box from Talbot’s had been opened; and whether she had seen some Cézanne prints Tom had given Anne Marie. “And there was, I guess,” the defense attorney said, “continuing discussions . . . concerns on your part, maybe some friction between the two of you, that you felt Anne Marie did not manage her money well?”
“Yes.”
“Anne Marie told you she had won the TV?”
“Yes. She told me Mrs. Columbus bought a chance for her and she won.”
“Your characterization of Anne Marie’s response when you would talk about this money issue was that she was ‘snippy.’ Is that right?”
“It was a source of contention.”
The thrust of Maurer’s questioning was clear; he wanted to suggest that Anne Marie and Kathleen were not really close, that Anne Marie had lied to her big sister and been snippy. Anyone who ever had a sister knew that was often the way even loving sisters interacted.
Maurer brought up a red herring when he asked, “Did Anne Marie have a red-and-white striped shirt?”
“I don’t know. I don’t remember seeing it in her laundry basket.”
“Now, when you did your inventory of her apartment,” he persisted, “did you find a red-and-white striped shirt?”
“No.”
“Nowhere?”
“No.”
“How many pairs of sneaks did she have?”
“I may be off by a pair or two, but she had a number of pairs of sneakers.”
“I take it she also had more than one jogging outfit?”
“I know of a purple one. She may have had a blue one, too.”
“Do you know if she had a black one?”
“I’d have to look at my list.”
If Maurer could establish that some of Anne Marie’s clothes were missing from her apartment, the defense might be able to bolster its scenario. He questioned Kathleen exhaustively on every detail of what she had found in Anne Marie’s apartment, and she admitted that the shoes that Annie usually wore with the blue floral dress were there. How this line of questioning meshed with the accident theory remained to be seen.
And now Maurer put Kathleen through an ordeal. She had felt guilty enough about reading her sister’s diary for the prosecution. Maurer asked her to read the rest, the sections written in the beginning of her relationship with Tom—when Anne Marie had been besotted with him.
On Friday, February 24, 1995, Anne Marie had written,
I have shared my soul with T. I gave him my whole world, body and love. What I have not shared with T. is my fear of abandonment. I will withhold thoughts, info, etc., about myself if I think it may steer someone away from me. If I ever have the opportunity to speak to T. again, I will share everything, even my soul, and let him know exactly the way I feel. If I am rejected, at least I know that I told him about me, and let him into my world.
I love you T.
There were other entries, written by a young woman who seemed virtually defenseless in dealing with a man she thought she knew—a man whom she perceived to be gentle, kind, and as vulnerable and sad and lonely as she was. In those entries, Anne Marie seemed nothing at all like the savvy, opportunistic woman Joe Oteri had described. She sounded as gullible as any eighteen-year-old. In asking Kathleen to read the diary, it was possible that Maurer had given the prosecution a two-edged sword.
On re-cross, Connolly asked, “All of the diary entries you just read with Mr. Maurer were from the year 1994 and before March 1995?”
“That’s correct.”
At last, Kathleen could step down. All the while she had testified, Tom had glared at her with unmistakable hatred, “as if daring me to say what I needed to say.” Now, as she walked between the lectern and the defense table, he hissed, “You fucking bitch.”
Remembering it months later, Kathleen said, “I used to like Tom Capano, just like everyone else did. He actually said that to me when I stepped down from the witness stand. And the jurors heard him.”
THAT was the way this long-awaited legal contest would continue. And between tearful memories and complicated testimony on police procedure and forensic evidence, there would be occasional smiles. But there would also be—despite all of the pretrial media coverage—startling revelations.
Tom Capano had long suffered from colitis, his particular response to stress. On the second day of trial, Oteri signaled Judge Lee urgently. Tom was having an attack of colitis, and he was rushed from the courtroom, something that would happen more than once. Medicine was prescribed for him but it had to be taken with food. Judge Lee then had to explain to the jurors why the defendant often ate bagels and sipped water as the trial progressed.
Dr. Neil Kaye, the psychiatrist who monitored her prescriptions and saw Anne Marie on the last afternoon of her life, testified that she had made the decision to rid herself of the man who was “freaking her out” by calling her every half hour and sending her endless E-mail. But Kaye admitted she had never told him the man’s name.
Curiously, Dr. Kaye wore a wooden hat to court. It was very expensive, and meticulously carved from a single block of wood, so that it appeared to be an actual half fedora, half cowboy hat. He set it carefully on his knee as he testified. When Oteri asked him about his hat, he acknowledged that it was somewhat unwieldy and hot, but said he collected wooden hats and a trial was as good a place as any to display them. Dr. Michelle Sullivan knew the name of the man Anne Marie feared. It was Tom Capano. And she told the jury about her patient’s determined struggle to break off with him.
IN sidebar conferences, the defense attorneys fought to keep out of the jury’s hearing statements Anne Marie had made to her friends about Tom. They submitted to Judge Lee that much of what Jill Morrison, Siobhan Sullivan, Jennifer Haughton, Jackie Steinhoff, Ginny Columbus, and Kim Horstman might say would be hearsay or even triple hearsay. They claimed it would show “prior bad acts” of their client. The prosecution maintained that her friends’ testimony would validate Capano’s stalking behavior.
Judge Lee finally decided to let their testimony in because it would show Anne Marie’s state of mind. There was no other way to do that. “I think her state of mind becomes important,” Lee said, “for a number of reasons because somehow we now know that she died in his house—the defense has indicated that in its opening argument. . . . And we are told that this was a very tragic, ill-defined accident. . . . In order for the state to approach the concept of there being some intentional homicide—because they are not interested in proving an accident occurred in the house—they have to show a change in their [Anne Marie and Tom’s] relationship that made it more toxic. And that this pattern of calling her under circumstances that were inconsistent with the E-mails, inconsistent with the portrait of domestic tranquillity . . . is important in balancing the emotional condition of their relationship at this time.”
Judge Lee ruled, however, that Jill Morrison could not tell about the time Tom made Anne Marie tear up all the pictures of her old boyfriends while standing over her as she tearfully complied. Nor could Jill testify about how he flew into a rage if Anne Marie spoke to anyone in the office when she was on the phone with him. “He’d tell her she was to talk to him and no one else,” Jill had told Wharton. But the defense objected to testimony about these incidents because Jill was unable to pinpoint the time they had occurred.
Allowed now to speak for Anne Marie, her friends followed one another to the witness stand. They spoke to the jury of the hovering, smothering presence Tom had become in their friend’s life. They recalled his incessant phone calls, his unexpected visits, his continual E-mail, and his rage when Anne Marie began to date Mike Scanlan. Jill Morrison testified about her f
riend’s anguish when Tom drove his Jeep Cherokee slowly by Mike’s house, and his inevitable calls to Anne Marie later to tell her the exact times he’d seen her car there.
The prosecuting attorneys moved through their witnesses, some talkative and some speaking haltingly because of stage fright or emotion. The presentation flowed effortlessly. Now that all the components of the case were assembled, no one listening could ever have known how hard they had worked to put them together.
The gallery and the media waited eagerly for particular witnesses. Everyone wondered if Tom’s brothers would actually take the stand and repeat the information that had led to Tom’s arrest. Could Gerry and Louie look Tom in the eye and say the words that might bring him the death penalty?
Joe Oteri had claimed to be looking forward to cross-examining Gerry. “Gerry and I will have some good times,” he said, smiling and almost licking his lips.
GERRY was the soft spot in the strong Capano front. He had idolized Tom from the time he could talk and he was reportedly agonizing about testifying against him. He was thirty-five years old, but Gerry had never really grown up. Whatever their faults, the three older Capano brothers were hard workers. Gerry still played most of the time, fueled by cocaine and alcohol. He hung out at drag strips with his customized Corvettes and, of course, hunted and fished for dangerous prey. Probably none of them really needed to work, but all but Gerry had the work ethic bred into them. Gerry knew he didn’t even have to show up at his landscaping business; the money kept flowing in from the firm that his long-dead father had built.
On the morning of November 9, the time had come for Gerry to testify. His golden curls had long since given way to incipient baldness, but he still had his round baby face. He wore a very expensive suit and a tie that had probably cost $100, but he also had two gold earrings in his left ear. He was clearly nervous as a cat as he took the stand. Now he could look directly at Tom and, beyond Tom, into the faces of his extended family, who filled the benches on the left side of the courtroom.
His eyes already glistening, Gerry waited nervously for Colm Connolly’s first question. After Gerry verified that the statements he had given to the grand jury a year earlier were true, Connolly began with February 8, 1996, when Tom asked Gerry for a loan of $8,000. “I wrote a check and went to the bank,” Gerry said.
“Why didn’t you give him a check?”
“He wanted cash.”
“Did he pay you back?”
“Within a week or so.”
Connolly showed Gerry the deposit slip from his own bank when he returned the $8,000. It was dated February 13, 1996. Tom’s check for repayment was number 1666.
Gerry testified that Tom had been frightened by someone who was threatening him. “He said he was scared that the guy was going to hurt him. He was afraid the guy was going to beat him up or hurt him—come to his house and hurt him.”
“What did you tell him?”
“I originally told him, ‘You should call the police.’ ”
But when Tom didn’t want to do that, Gerry had offered him a shotgun “because it was better home protection.”
“Is a shotgun easier,” Connolly asked, “for somebody who is not familiar with guns in terms of hitting their target?”
“Yes—he didn’t want it. He wanted a handgun.” Gerry had then given Tom the ten-millimeter Colt, and he had returned it sometime before Gerry moved to Stone Harbor in mid-May.
“What did you do with this gun?”
“I gave it to a guide friend of mine that I went hunting with,” Gerry said, “as a tip—I’ve gone grizzly-bear hunting with him and moose hunting.”
Gerry could not remember exactly when Tom had told him that someone was threatening to hurt his children, but he did recall Tom’s words. “He said that if either one of these persons that was threatening to hurt his kids were to hurt one of the kids and he had to do something to them, could he use the boat?”
And that day had come. Gerry had good recall of the Friday morning that Tom showed up in his driveway. Three hours later, he was helping his brother load the huge cooler into the back of Kay Capano’s Suburban. Gerry said the cooler was heavy enough so that it took two men to lift it.
“Were there any noises coming from the cooler?” Connolly asked. Several people in the gallery gasped.
“Sounded like ice was inside the cooler,” Gerry replied. Apparently, Tom had prepared for any eventuality; he had packed cubes from his refrigerator’s ice maker around the body in the cooler. If there was an unforeseen delay, the contents of the cooler would not begin to decay.
Connolly asked Gerry to describe what happened after he and Tom drove to Stone Harbor.
“He backed up in the driveway and I believe we both went inside,” Gerry said. “And I think I went to the bathroom first and he used the phone.” Tom glowered at Gerry as he testified. “And then I got a couple of fishing rods and put them in the boat and started it up. We both carried the cooler down to the boat and then put the chain and the lock in a plastic bag and carried it down to the boat.”
“Now, why did you take fishing rods with you in the boat?”
“So it would look like we were going fishing.”
“Were you worried that this cooler looked unusual on a boat?”
Gerry shook his head. “No—it’s your typical fishing cooler.”
Hours later, they were far out in the ocean. Gerry said his LORAN was in its depth-finder mode, and it registered 198 feet when he cut the motor and told Tom he was on his own. The sea was choppy and he heard Tom throwing up repeatedly as he wrestled with the cooler.
“How did the cooler get into the water?” Connolly asked.
“I’m unclear on whether or not I helped him pick it up and put it in the water and then walked to the front of the boat—or if he did it himself.”
“Did the cooler sink?”
“No.”
“How do you know?”
Gerry looked sweaty and queasy as he recalled shooting into the white Styrofoam and seeing something reddish pink flow from the bullet hole. (The dead don’t bleed, but melting ice inside would have been tinged by the blood that had trickled from whatever wounds Anne Marie had sustained. The longer she had lived, the greater the quantity of blood. But this had been far too pale to be fresh blood.) Gerry gulped as he described the gush of pinkish fluid he had seen.
“When the cooler didn’t sink,” Connolly asked, “what did you do?”
“We pulled the boat up next to it,” Gerry said, “and then I shut the boat off and went back up to the front.”
“So, now,” Connolly pressed, “the first time you helped him [lift the cooler over the side of the boat]; the second time you [only] pulled alongside the cooler?”
“Right. That’s when I told him he was on his own—and I went to the front of the boat.”
“Why did your boat have two anchors?”
“I always carry two anchors,” Gerry said. “If you anchor up the front of the boat and the back of the boat, it stays still.”
Gerry testified he had leaned against the bow rails and looked straight ahead, with his back to Tom. “I was telling him,” he testified, “this was not right—this was wrong.”
He had heard Tom rustling around with the chains and anchors, gagging from his grisly task. “I asked him,” Gerry said, “‘Are you done? Are you done?’ and he finally answered yes, and I turned around.” Gerry’s face was pale green with the memory of it as he answered Connolly’s questions. “I saw a foot going down.”
“A human foot?” Connolly asked.
“Yes.”
“Were you able to determine what gender this human foot was?”
“No,” Gerry answered with agitation. “No . . . No.” He had seen enough to know that there had been a human body in the cooler, but he had had no idea who it was or if it was male or female.
“Where was the cooler?” Connolly asked.
“The cooler was floating. I believe we jockeyed the boat ar
ound again to pick the cooler up, and then we dipped it in the water to clear out everything that was in there—ice or whatever—and then we pulled it into the boat and we headed for home.”
“What happened to the bag with the chain and the lock in it?”
“It got thrown in. I didn’t see the lock and the chain get thrown in,” Gerry said. “I saw the keys to the lock get thrown in.”
As for the cooler, Gerry said he’d used a Phillips head screwdriver to unscrew the hinges that held the top on. “Tom was driving slowly when I did that,” he testified. “And then about five minutes later, we just threw the cooler in too, and we just kept heading home.”
“Now, when you headed back to the shore, did you pursue a certain course?”
“Yeah. I turned around and headed 310—310 degrees.” He said he used only the compass to get his bearings.
“On the way back to Stone Harbor,” Connolly asked, “what did your brother say to you?”
Gerry had kept his eyes down for most of his testimony, staring at his hands or the floor, and he continually grabbed tissues from a box as if to stanch the tears that welled up in his eyes. He looked for all the world like a naughty schoolboy confessing that he had done something bad. Now he looked up and Tom caught his eyes. Gerry appeared desperately apologetic.
“We didn’t talk very much,” Gerry said. “He just said it was going to be all right—that he would never let anything happen to me. Because I was telling him, ‘This is wrong!’ and I was scared.”
In his panic, Gerry had almost missed the New Jersey coast. They were south of Cape May. He turned the wheel hard right and headed up along the coastline.
“Now when you were out on the ocean,” Connolly asked, “did you see any other boats?”
“I did—I saw a small boat out in the same area we were in, with a dive flag.”
“Did you see any people?”
“No.”
“About how far away was this other boat?”
“Quarter mile.”
“Weren’t you afraid if you fired a shotgun you might draw attention to yourself?”