And the Sea Will Tell

  She looked up expectantly, perhaps waiting to see how that idea played with me. But I kept quiet.

  After the slightest pause, she went on. “I told Buck that didn’t make sense. If Mac wanted to kill Muff, he could have waited for us to leave the next day. They would have been alone on the island, and he could have done whatever he wanted. He could have reported to the authorities that Muff had fallen overboard in the ocean. He could have spent the rest of his life sailing the seven seas on the Sea Wind.”

  “What was Buck’s response?”

  She shook her head. “He didn’t say anything. He just…shrugged, or something.”

  “Did you talk about anything else?” I asked.

  “Well…” She looked a little embarrassed. “I asked him if he’d go first this time. See, he had asked me to go first during the theft trials, and I did. I was thinking he might want to return the favor this time.”

  “What did he say?”

  “His exact words: ‘I’m not sticking my neck in no chopping block.’ The judge took the bench then, and we had to keep quiet. I haven’t talked to Buck since.”

  “So, after you heard about Muff’s remains being found along with the box, you did begin to suspect that Buck had murdered Mac and Muff?”

  “No, not really. It just—confused me. I still don’t believe Buck killed them. You have to understand, Vince. I loved Buck very, very much. More than any man in my life, before or since. And I knew the real Buck, the hidden Buck, better than anyone else did. Besides, I was with him every day on Palmyra. I just don’t know how he could have done such a horrible thing right under my nose without my knowing it.”

  I leaned back in my hard wooden chair and watched her closely. Guilty suspects typically try, of course, to put the hat on someone else in order to lift suspicion from themselves. But Jennifer would not do that to Buck, even though I had given her the opportunity. She didn’t even make any effort to distance herself from him. And somehow I didn’t sense she was using clever reverse psychology on me.

  “What have you written down on your note pad since we last met?” I asked.

  “Nothing.” She was back to being breezy.

  Somewhat testily, I suggested that she keep the pad and make time to do the homework I had assigned her. I then asked her to continue her story where she had left off at our previous meeting.

  In all, it would take three sessions for Jennifer to tell me her complete version of everything that had happened from the moment she had met Buck through all of the events on Palmyra, and on up to the present. In the meantime, I confirmed with Len Weinglass that Jennifer had indeed taken a polygraph examination. In fact, two. The first one had been judged by the examiner to be “inconclusive,” but everyone agreed that one of the key questions had been ambiguously phrased. The second test, Len assured me, was a clear “pass.”

  By this time, although Jennifer had done everything possible to convince the world she was guilty, I was coming to believe she was innocent of murder. She was certainly guilty of having loved the wrong man, and she had shown bad judgment in a number of other ways. But I was moving in the direction of concluding that she was one of those rare criminal defendants who is not guilty as charged. Yet, because of one of the most unusual sets of circumstances I’d ever seen or heard of in a murder case, I knew that only a tremendous uphill legal battle would save her from being convicted.

  MARCH 19, 1982

  SINCE ALL of the case files were there, my first meeting with Leonard Weinglass was at his office in the Old Bradbury Building, an 1893 historical landmark located in a declining area near the L.A. County Courthouse. This five-story building, complete with an open courtyard, exposed elevator cages, and ornamental rails and banisters, was the kind of place you’d expect to see a gumshoe like Sam Spade hang up his shingle.

  When I arrived, Weinglass was on the phone, so I took a seat in his waiting room. Close to hand lay the latest copy of Mother Jones, the self-proclaimed “magazine for the rest of us,” a liberal, nonprofit publication based in San Francisco. I smiled…of course.

  In addition to the Chicago Seven and Pentagon Papers cases, Weinglass had defended Symbionese Liberation Army soldiers Bill and Emily Harris, and also been involved in the Wounded Knee defense, a Native American cause célèbre.

  In a long article on him in the Los Angeles Times two years earlier in which he was referred to as one of the top trial lawyers in the country, “the Weinglass commitment” was summarized as a “brand of easy-riding radicalism that embraces both a concern for the underdog and an absolute certainty that capitalism is dying.” The forty-eight-year-old barrister was described as anti-nuke, anti-MX missile, anti-big oil, anti-macho interventionist foreign policy, and anti-death penalty.

  I couldn’t imagine what Weinglass might think of my prosecutorial background—particularly, the notoriety I had received during some of my death-penalty cases. I suspected he was as incredulous as I that we might end up on the same side in a court of law.

  When Weinglass appeared, he greeted me by my first name, suggesting I call him Len, and warmly grasped my outstretched hand. Tieless and bearded, he had long gray-streaked brown hair, with a neat round bald spot at the crown, a kindly smile, and a pleasant voice.

  As we settled into his sparsely furnished office, I noticed a large framed sketch of Clarence Darrow on the wall behind him. (Weinglass had been selected as the first recipient of the Clarence Darrow Award in 1974.) To his right was a small bust of Ho Chi Minh.

  Since our backgrounds were poles apart, I casually tried to soften the image he might have of me. I explained that as a prosecutor I always abided by the old 5th Canon of Ethics of the American Bar Association that the primary duty of a public prosecutor is to secure justice, not a conviction, and only if a conviction was justice would I have anything to do with a case, and then, only by prosecuting in a fair manner. I was proud, I said, of having been called a “prosecutor with a heart” by one of the leading underground newspapers.

  Hoping I wasn’t sounding patronizing, I added that I was in sympathy with the civil rights causes he’d been fighting for throughout the years.

  Len, with his smile in place, said he appreciated that. I was amused that he made no effort to toughen any image I might have had of him.

  I remembered from the Times article that Len was content leading “a simple life,” taking cases that did not violate his principles, and getting by on ten to fifteen thousand dollars a year.

  It is said that the principal element that distinguishes a profession from a business is that in a profession, one’s primary obligation is to those he serves, not to himself. In this day and age, where the pursuit of dollars has become the top priority of so many lawyers, and where unconscionable fees as well as overbilling (for example, working one hour and billing for two or three, or billing at the lawyer’s hourly rate for work which, unbeknownst to the client, the lawyer has the paralegal do) are commonplace, Len Weinglass is among the last of a dying breed.

  “I imagine you’ve represented, along the way, quite a few people without a fee,” I said.

  His smile broadened. “That’s true,” he said, “but I’ve never gone without a meal.” He had a lot of friends around the country, he explained, who happily provided him with room and board when his legal travels took him to their town.

  “Allard Lowenstein lived the same way,” I said.

  I had come to know Lowenstein, the brainy, inexhaustible former Congressman and lawyer from New York, when he asked me to handle the legal proceedings in his group’s attempt to reopen the investigation into the assassination of Senator Robert F. Kennedy. A close friend of the Kennedys, Lowenstein himself was later murdered. He’d become, I knew, kind of a cult figure. A movie was reportedly in the works on him, and it has been said that Lowenstein probably influenced more young people to become political activists in the 1960s than anyone else. Definitely a member of the “left,” Lowenstein is believed by some to have actually triggered the downfal
l of Lyndon Johnson over the Vietnam War by giving a stirring call-to-action speech at a massive rally in New York City.

  Weinglass’s expression had darkened.

  “I bring up Allard,” I offered, “because he’s the only other member of the activist left I’ve personally known.”

  “He was not trusted by the left,” Weinglass said flatly. “I am not an admirer of his.”

  I smiled to myself, realizing just how far to the left Len Weinglass was coming from. (I would tell him, at a later time, that being as far to the left as he was, one would think he would have “both feet planted very firmly in the air,” yet I found him to be a sensible, down-to-earth guy. He chuckled.)

  With that, we turned our discussion to Jennifer Jenkins.

  IN APRIL 1982, after further sessions with Jennifer, I made a decision to defend Jennifer Jenkins against the charge of first-degree murder. I made another decision: since Buck and Jennifer had been together throughout the Palmyra period, and both had seemingly been acting in concert thereafter, I would have to rewind the past and try to separate them. I instinctively knew that a key way would be to don my old DA’s hat and prosecute Buck Walker at Jennifer’s trial. Despite Jennifer’s protestations, I was certain that Walker was responsible for the brutal murders of Mac and Muff Graham.

  Weinglass, however, told me he was uncomfortable with this approach. “I’m afraid if Buck Walker goes down,” he said, his voice filled with doom, “so will Jennifer.”

  From the moment I take a case right up to the time of a jury’s verdict, I always have tremendous confidence I will win. For some inexplicable reason, the feeling comes over me that I can’t lose. This trial would shake my confidence more than any case I had ever tried.

  MAY 5, 1982

  UNEARTHING A COPY of the transcript of Jennifer’s boat-theft trial was not easy. But I had to have it. The transcript would undoubtedly be used by the prosecution to attack Jennifer’s credibility at her murder trial whenever her testimony varied from it. However, Weinglass did not have a copy. He told me that one of Jennifer’s former attorneys had the transcript, but when I spoke to the lawyer on the phone, he couldn’t find it. Eventually, I learned it had been put in storage in a Los Angeles warehouse with other old unrelated files.

  When I was finally able to lay my hands on the 749-page transcript, I discovered a number of substantive inconsistencies between what Jennifer had told me and what she had testified to in 1975. They were disturbing.

  She had told me that she and Buck had found a 1961 signed will of Mac’s on the Sea Wind. It provided that in the event of his death at sea, whoever he designated in another document (Jennifer never saw any other document) could take up to two years to return the boat to his sister, Mary “Kit” Muncey. Although she and Buck obviously hadn’t been so designated in this other document, Jennifer argued strongly to me that the language of the will implied justification for their plan to sail the Sea Wind for two years before returning it to Muncey. But in her theft-trial testimony, other than mentioning that she and Buck had found Mac’s will naming his sister, Mary Muncey, as the executrix of his estate, Jennifer had made absolutely no mention of this two-year grace period. On the contrary, she had testified that when she was arrested in Honolulu, she and Buck had been on their way to Seattle to immediately deliver the Sea Wind to Kit Muncey.

  With respect to the all-important day in question—August 30, 1974, supposedly the day Mac and Muff disappeared—I found two major discrepancies. In one of our first sessions, Jennifer told me that Buck had the Iola’s dinghy all day on August 30; in other words, she couldn’t have gone ashore unless he came and picked her up. It had occurred to me then that if Buck had possession of the dinghy that day, he would not have had to worry about Jennifer coming ashore while he was committing the murders. However, if she had the dinghy that day, then Buck would have had to worry about being caught, either in the act of killing Mac and Muff, or while disposing of their bodies. Buck’s having the dinghy, then, would be one piece of circumstantial evidence going in the direction of supporting my argument to the jury that Buck had alone murdered Mac and Muff. But if Jennifer had the dinghy…

  Now I learned that, contrary to what she had told me, she had testified that she, not Buck, had the dinghy on August 30.

  The second discrepancy was also alarming. She had told me that on the morning of that same critically important day, she and Buck had gone back and forth between the Iola and his camp bringing things like a camping stove, lantern, and articles of clothing back to the boat in preparation for their departure. But she had not testified to this activity at her trial. Rather, the clear implication of her testimony was that she had stayed aboard the Iola all day.

  Of course, I confronted Jennifer with these inconsistencies at our next meeting. She was not surprised and answered calmly. With respect to the will, she explained that her lawyers at the theft trial had advised her not to testify about the subject provision in the will or about her and Buck’s plan to return the Sea Wind after two years. “They said it sounded unbelievable,” she explained.

  When I countered that even before she had any lawyers, she had failed to tell FBI agent Calvin Shishido about the will and its unusual provision, she replied that she had simply been too frightened and confused to tell him the whole story, and that she also knew that the provision, since it did not apply to them, gave them no legal right to take the Sea Wind.

  But what she did tell Shishido was even worse, yet a third version of events. Testifying at her trial that she and Buck intended to bring the Sea Wind back to Mac’s sister immediately but telling me they intended to wait for two years was bad enough. But when she told Shishido that the reason she and Buck never notified the authorities about what happened to Mac and Muff was that they knew if they did, the Sea Wind would be taken away from them, and they believed the Grahams would want them to have the boat, Jennifer was in effect telling Shishido that they never intended to return the boat. Why, I asked her with some heat, had she told Shishido this outrageous as well as very incriminating story? She answered that she couldn’t admit the real reason why they never reported the Grahams’ disappearance. Buck had insisted they couldn’t have any kind of contact with the authorities because he was a fugitive. And when she spoke to Shishido, she was still protecting Buck’s identity.

  “What about your telling me that you were on and off the Iola during the morning?”

  “I was.”

  “There’s no reference to that in your trial testimony.”

  She shrugged. “I guess no one asked me.”

  “Jennifer, this is important. Very important. I’m going to ask you again—who had the dinghy that day? You or Buck?”

  “As I remember, Buck had the dinghy that day,” she answered, without hesitation.

  I couldn’t help but wonder whether Jennifer, in the years since her theft trial, had figured out the significance of who had the dinghy that day and had altered her story accordingly. It was a chilling thought with enormous ramifications.

  “Then why did you testify in 1975 that you had the dinghy?”

  She shook her head. “I honestly don’t know. I’ve talked to so many people about the case over the years. Sometimes it’s hard for me to remember what really happened that day. But I think Buck had the dinghy.”*

  I knew witnesses could become confused by all the questions and proposed scenarios suggested to them by the police, prosecutors, and defense attorneys, sometimes not remembering if something they are saying actually happened or was an image or thought implanted in their mind earlier by someone else. With the passage of time added—in this case, eight years—variations in anyone’s story could be anticipated. But Jennifer’s prosecutors would not look upon these discrepancies so charitably, and could use them to discredit her with the jury.

  There was another, even more serious, problem I would have to deal with at Jennifer’s murder trial. She admitted to me that she had committed perjury at her theft trial.

&
nbsp; Not that her perjury surprised or shocked me. To people unfamiliar with court proceedings, the word “perjury” can set offlights and sirens. But in fact, perjury occurs at nearly every trial. A distinguished former member of the New York Bar once observed: “Scarcely a trial is conducted in which perjury does not appear in a more or less flagrant form.” Perjury is so common that attorneys are not only unsurprised by it, but even expect it.

  Although Jennifer had told several lies on the witness stand, the main one concerned the final fate of the Iola.

  She told me it was Buck’s idea to leave Palmyra on the Sea Wind and that she had originally balked at the suggestion, finally relenting when he argued that the Sea Wind, left unattended in the Palmyra lagoon, would be vandalized. They would be respecting Mac’s love for the Sea Wind by protecting her, Buck had said. That made sense to Jennifer and she had agreed. But I discovered that at her theft trial she had served up the story (the same one she told Shishido) about trying to leave on the Iola before it grounded on the reef, foolishly sticking to that lie even in the face of damning photographic evidence to the contrary. Jennifer told me that shortly after those pictures of the Iola and Sea Wind were taken, Buck had sunk the boat by opening up all of the Iola’s hull fittings.

  “When I last saw our boat,” Jennifer said, “she was sailing toward the horizon, slowly sinking. It made me very sad.” She went on to explain that Buck, even before they left Palmyra, had concocted the story of the Iola’s grounding in order to justify taking the Sea Wind. He told her the authorities would never believe the true story—that they were acting out of concern for Mac’s wishes.

  There are two basic types of perjury in a criminal trial. In the first, a guilty defendant denies under oath that he committed the crime. The prosecutor merely blinks his eyes at this type of perjury and looks the other way, because he knows it is a form of self-defense that is inevitable. If the defendant were going to admit his guilt, he normally would have pled guilty and there wouldn’t have been any trial. The second form of perjury is not self-defensive in nature. The most egregious example would be a witness knowingly accusing an innocent person of a crime. This type of perjury, if it can be proved, is not overlooked, resulting usually in a criminal prosecution.