And the Sea Will Tell

  Jennifer’s lies were in the nature of self-defense; hence, relatively speaking, more understandable than the second type of perjury. But I still had reason for serious concern. Her lies under oath before the previous jury could very possibly destroy her credibility with the jury at her murder trial.

  The inescapable reality I faced with Jennifer was the prosecutor arguing to the jury in his summation: “Miss Jenkins admits she lied to another jury. She says she is telling the truth now. If we know she lied before under oath, why should we believe her now?” If everything else she had done and said wasn’t already enough, it could be a clinching argument to sway the jury against Jennifer.

  “Well, what do you think?” Jennifer said. “Did I do a good job of making it tough for you?” She had a smile on her face, but she wasn’t really smiling.

  “I don’t mind tough cases, Jennifer. What I resent about you,” I said with a straight face, “is that even though you say you’re innocent—and I believe you—you went around acting guilty. That’s hypocrisy.”

  Jennifer chuckled, a real smile dissolving the rented one.

  “Let me tell you, Jennifer, what the trial is going to be all about,” I said. “The unique circumstances of this case come down to a matter of basic math. When four people are on a deserted island, two are murdered, and the remaining two take off in the victims’ boat and otherwise act very suspiciously, as you and Buck did, most reasonable people would conclude that these two are guilty. So the prosecution’s case is essentially going to be—almost has to be—that four minus two leaves two. And I’m just going to have to convince the jury that four minus two leaves one. And that the one killer is Buck.”

  Jennifer smiled once again. “Good luck,” she said.

  Her tone suggested that I was the one who had the problem and she was good-naturedly wishing me well in my effort to solve it. Jennifer was amazing, I said to myself.

  I WAS TO have more problems preparing Jennifer for trial than with any other witness I could remember. Typically, when I interview a witness, I write down everything the witness says in narrative form, as if it were a straightforward factual account of events. Later, I convert the material into tentative questions and answers. In the nature of things, there will always be many modifications to my original Q and A, but with Jennifer, the changes were endless. Often, entire pages of questions became useless because she would add a different twist to an incident we had already covered in detail. I was also constantly having to expand my line of questioning because Jennifer would suddenly open up an entirely new area that needed to be explained or covered. The difficulty of preparing her for trial was reflected in the numbering of my pages of questions. It degenerated to the point where it was rare for one consecutively numbered page to follow another. For instance, between pages 43 and 44 there soon appeared pages 43 (a), 43 (b), 43 (c), and so forth. Then, later, for further additions between pages 43 (b) and 43 (c), I would have to resort to 43 (b) 1, 43 (b) 2, 43 (b) 3…

  Why was there always yet another layer of truth to be revealed? Another shadow in this hall of mirrors? After one particularly frustrating session with Jennifer, I admitted to my wife over a late-night snack that perhaps I was having so much trouble because I was “trying to fit a square peg into a round hole.”

  Gail’s frank response was alarming. “I’m not sure I trust her.”

  “Why not?”

  “When I met her, she didn’t look me in the eye.”*

  “That doesn’t make her a murderer, honey.”

  “I know. But it’s more than that. I keep wondering how anyone could have been on that tiny island while Buck Walker was killing those people and not know anything about it. Where was she?”

  “On the Iola.”

  “Doing what, Vince? Baking bread?”

  “As a matter of fact”—I was almost too embarrassed to say it—“she was, among other things, baking bread on the day Mac and Muff disappeared.”

  Gail said nothing more. She didn’t have to. Her expression of utter disbelief said it all.

  When my own wife, who is as level-headed as anyone I’ve ever known, suspected my client, I knew I had problems.

  Gail was hardly alone in questioning Jennifer’s innocence. A July 1981 public opinion survey in Hawaii commissioned by the Honolulu law firm of Hart and Wolff, which Leonard Weinglass hired to handle matters in the islands, showed how strongly the public there felt about the Palmyra case. In the survey, 205 adults were selected at random from lists of registered voters and questioned by telephone. Ninety-one percent of those surveyed said they had read or heard about the case of a sailing couple disappearing on Palmyra Island. Clearly, the Palmyra murder case had become Hawaii’s most sensational crime story since the Massie murder case in 1931 (Clarence Darrow’s last big case, and the basis for the novel and television film Blood and Orchids). To the key question, whether “the couple charged with the Palmyra murder” was guilty or innocent, the tally was a landslide. A staggering 95.8 percent believed both Buck and Jennifer were guilty of murder.

  Not only did the unusual circumstances point irresistibly to the guilt of both Buck and Jennifer, but the media coverage only exacerbated the problem. Hitler didn’t get much worse press in London than they got in Honolulu.

  Obviously, there was an early defense motion for a change of venue to the mainland, where, away from the inundation of publicity, the chances of a fair trial would be increased. At a critical three-day July 1981 hearing in Honolulu before U.S. District Court Judge Ernest M. Heen, Dr. Jay Schulman of Columbia University, a recognized authority on public opinion, was called to the stand by Len Weinglass. Schulman founded the National Jury Project, an organization devoted to research and consultation on all facets of the American jury system, and for many years has been one of the nation’s leading consultants to defense attorneys, prosecutors, the U.S. Justice Department, and Congressional subcommittees examining our judicial system.

  Schulman testified that the 95.8 percent prejudgment of guilt was by far the highest he had ever heard of in a criminal case. It was “astronomically high,” he said, even compared to other high-visibility cases. He cited the Patty Hearst case; polls preceding her trial had indicated only a 15 percent prejudgment of guilt. (And Patty Hearst, of course, was found guilty.) Schulman speculated that the reason for the low 15 percent in the Hearst case was the possibility of an alternative explanation for her conduct (i.e., that she had been brainwashed), which was lacking in this case. Schulman believed the unique facts of the case were such that the prosecution wouldn’t have to prove guilt, as they are required by law to do.

  “I think she [Jennifer] would have to prove her innocence before a jury could acquit her,” Schulman told Judge Heen.

  Testifying that he had examined hundreds of articles published in Hawaii’s newspapers and reviewed transcripts of dozens of TV and radio news stories about the case, Schulman concluded: “My opinion is that the publicity in this case has reached almost every eligible juror in Hawaii…. It is a macabre story, a bizarre story. It has all the ingredients of a fantastically interesting soap opera.”

  Noting that people frequently don’t read articles to the end, and often forget what they do read, Schulman said this case was different. “It so much captured people’s imagination that they read it through and they assimilated a great deal of the total circumstances reported.” The story “excites and courts the imagination. It offers the imagination the chance to wonder, to infer, to develop some closure of its own as to what happened.” Coupled with “the paradisiacal romantic image of this remote island where all of this took place,” Schulman said he could understand why his survey showed that people had “the highest recall of details of any case I have ever encountered.”

  On cross-examination, Assistant U.S. Attorney Elliot Enoki, opposing the change of venue for Jennifer’s case, asked if it wasn’t true that the “majority” of publicity had to do with Buck Walker—“his prior convictions for drugs and other things, his esca
pe and being a fugitive?”

  “No,” Schulman answered. “Buck Walker and Jennifer Jenkins are always paired. There is an inescapable conclusion that both of them were involved.* Because of this twinning phenomenon, in every piece of publicity on this case, Jenkins and Walker are twins: Jenkins is Walker’s girlfriend; they had an association before they sailed to Palmyra; their association was obviously close on Palmyra; and they sailed the Sea Wind back to Honolulu together. The publicity has linked Jenkins and Walker constantly.” Schulman’s expert opinion was firm: it would be impossible for Jennifer to receive a fair trial in Hawaii.

  Judge Heen disagreed. On August 12, 1981, Heen, a former U.S. Attorney for Honolulu, orally denied the change of venue motion.

  On March 12, 1982, U.S. District Court Judge James M. Burns, Heen’s successor, issued a written order again denying a change of venue for the Palmyra murder case.

  But at the same March 12 session—four days after I first interviewed Jennifer and before I joined the defense as co-counsel—Judge Burns (as Judge King had done for the theft trials in 1975) granted Leonard Weinglass’s motion to sever her case from Buck’s. There would be separate trials for Buck and Jennifer.

  CHAPTER 22

  A YEAR-LONG ROUND OF LEGAL delays began September 7, 1982, when Judge Burns denied Leonard Weinglass’s double-jeopardy motion to dismiss, which was first presented to the court before I entered the case. I agreed the decision should be appealed, though I held little hope for success.

  Len’s major contention was that Jennifer had already been prosecuted in 1975 for the theft of the Sea Wind. He argued that since theft is a necessary element of the crime of robbery, prosecuting her now for a robbery-murder would constitute a second prosecution of the theft. Such a prosecution was barred, Len argued, by the double-jeopardy clause of the Fifth Amendment to the U.S. Constitution.

  In opposition, prosecutor Elliot Enoki argued that an exception to double jeopardy exists where evidence of the main felony (murder) was not available at the time of the earlier prosecution. He noted that although authorities had long suspected that Jenkins and Walker were somehow responsible for the disappearance of the Grahams, the discovery of Muff’s remains—powerful evidence that a murder had occurred—happened seven years after Jennifer’s boat-theft prosecution. Therefore, Enoki claimed, the murder charge was in fact a new charge based upon that new evidence and did not constitute double jeopardy.

  On May 31, 1983, the Ninth Circuit Court of Appeals denied Len’s appeal, and six months later, the U.S. Supreme Court “denied certiorari” (refused to hear the matter), effectively putting to rest the double-jeopardy issue.

  Several trial dates had been pushed forward while we awaited the outcome of the double-jeopardy appeal. On January 19, 1984, U.S. Magistrate Bert Tokairin convened a hearing in Honolulu to set new trial dates. I did not attend the session, but all three lawyers who did asked for continuances: prosecutor Enoki said he needed another six months to prepare for trial; Partington, Walker’s attorney, had a five-month Army Reserve active-duty obligation beginning in May; and Len was involved in a criminal proceeding back East. (Kathy Boudin, a Weather Underground radical he represented, was charged with robbery and murder in the $1.6 million 1981 holdup of a Brinks armored truck in Rockland County, New York, that left two policemen and a Brinks guard dead.)*

  After both defendants, through their attorneys, waived their right to a speedy trial, Tokairin set January 15, 1985, as the date for the Walker trial to begin, with Jennifer’s trial to start immediately afterward. We were advised that the prosecution would seek sentences of life imprisonment for both defendants.

  Meanwhile, Len continued his effort—parallel to that of Walker’s attorneys—to win a change of venue. The people of Hawaii had already tried and convicted both defendants.

  MOST PEOPLE on bail for the worst crime of all, murder, would have trouble getting a job shining shoes at a bus terminal. But Jennifer, despite the murder rap hanging over her head, had done remarkably well for herself. Recently promoted to branch manager of a Los Angeles telecommunications firm, she supervised six employees.

  For her theft conviction, she had spent seven months (April to November 1977) at Terminal Island Correctional Institution off Long Beach, California, followed by ninety days in a Santa Barbara halfway house. At this low-security facility, she had been allowed to work outside as a sales clerk during the day. She also enrolled at the University of California at Santa Barbara, and in January 1978, as part of a work-study program, began a part-time job at the Center for the Study of Democratic Institutions, a well-known, left-leaning intellectual think tank. In February, when she was released from the halfway house, she quit school and took a full-time job as a secretary at the center. That job ended in January of 1979, but she immediately began working as an executive recruiter for the firm of John Lawrence and Associates in Van Nuys. (An uncle was part owner.) In October 1980, Jennifer had purchased a comfortable two-story tract home for $100,000 in the scenic chaparral country of Simi Valley, a middle-class bedroom community northwest of Los Angeles with the highest per capita population of police officers in L.A. County. Interested in a job with greater opportunities for advancement, Jennifer joined the telecommunications firm in September 1982, selling expensive business telephone systems. She had a mortgage payment, a new car, and a good-paying job. I considered using the following argument to the jury: Would she have been as likely to devote the physical, mental, and emotional energy necessary to achieve such career success if she knew she was guilty of murder and would, in all likelihood, be convicted one day and spend perhaps the rest of her life behind bars? But I had no sooner contemplated using that argument than I realized that another interpretation was possible.

  The prosecution could well argue in rebuttal that Jennifer might have been able to put the two murders behind her and go about making her way in the business world because she was extremely cold-blooded, perhaps even a sociopath who didn’t think she’d done anything wrong and therefore had no feelings of guilt. (It is widely recognized that sociopaths guilty of crime are frequently able to pass polygraph examinations.) This entire point, I decided, might at best end up being a wash, and at worst suggest the possibility of some lethal quirkiness in Jennifer’s personality rather than innocence.

  During the double-jeopardy appeal and subsequent delays, I had continued working to prepare Jennifer for trial, developing a routine that varied little. Because she was now working quite a distance from my office, I would drive once or twice a month to her office after business hours—arriving after the worst of the rush-hour traffic and bringing with me a bag of the nut-and-raisin mix favored by many hikers. We nibbled on this trail mix—which we called “trial mix”—rather than take the time to go out to dinner. Further fortified by less healthful cups of coffee, we always worked well into the evening.

  The dates we actually met, however, were never arrived at routinely. As often as not, she would call my office on the very afternoon of an agreed-upon evening session and cancel. One such call to my secretary, who came to expect them, inspired this note: “The princess slept on a pea last night. Has to cancel.” Cancellation often led to conversations like the following: “What about Monday night then, Jenny?” “Sorry, Vince. Monday Night Football is on.” Watching sports on TV, particularly her beloved Rams and Raiders, was a passion. “Tuesday night?” “I’m going over to my mother’s for dinner.” “Jennifer, the trial date is approaching, and we still have a lot of work to do. You act like you only have a drunk-driving case facing you in Honolulu.” “Well, okay, what about the next Friday night?”

  I sometimes got the feeling that Jennifer was agreeing to meet and prepare her defense more as a favor to me, even though it was she who faced the prospect of life imprisonment. Was the reality too terrible to confront directly on the conscious level? Or had she at some level, particularly in view of her previous conviction, actually given up hope?

  Whatever continuances were being soug
ht and granted, Jennifer was invariably in favor of them. “Vince,” she explained once, “my career is going well and I’m enjoying life now. I can think of a lot better things to do than go to Honolulu to be tried for murder.” How, I asked myself, was it possible for someone facing a charge of first-degree murder to “enjoy life” and put what she faced in the back of her mind? I had gained the distinct impression from Jennifer that with all the granting of trial delays, she felt the case might somehow die of old age.

  “Jennifer, this is a murder case,” I cautioned her. “It’s not going to fade away. There’s going to be a judgment day soon. That’s when you take the witness stand. And we’ve got to be ready.”

  My stack of yellow legal pages with questions and answers for Jennifer kept growing. But she had yet to write a word on the pad I’d given her the night we met. Whenever I pointed this out, she would shrug, laugh, and say something like “Haven’t had the time. I’ve been so busy,” or “Other than when we meet, I try to put it out of my mind.” Her casualness continued to amaze me.

  An attorney benefits from his client’s own helpful ideas and thoughtful insights. Jennifer had produced neither. Not once in nearly two years had she ever said, “Vince, I want you to check this out,” or “I was thinking about what we were talking about last time, and I remembered something else I should tell you.”

  Yet despite the frustrations of preparing Jennifer for trial, on a personal level I still found her very likable, with an outgoing personality and ready sense of humor, and we invariably got along well together.