The Government team had done their homework. Step by step, the cumulative scientific evidence had made it clear that a human body—obviously that of Muff Graham—had at one time been inside the container. Partington’s accidental-death theory, though dying a slower death than had poor Muff, was well on the way to rigor mortis, it seemed.
But the defense had yet to present its case.
The jury had heard two days’ worth of complex medical and scientific testimony, often delivered in numbing jargon and sewing-machine rhythms. It was a relief for everyone when Enoki returned to calling witnesses who didn’t have a ten-page vita.
By the end of the day on June 5, the Government had called its last witness. Enoki was expected to rest his case the following morning.
Before Judge King sent the jurors home, he reminded them, as was his daily custom, not to discuss the case, read newspaper articles about it, or watch the TV news coverage.
After the jurors departed, Partington made a motion for a judgment of acquittal as to Count One of the indictment. This was the felony-murder count I had previously asked the court to remove from the indictment, which Judge King had declined to do.
But now, Judge King, no doubt to Enoki’s surprise, looked at the Government table and asked: “How do you connect her death with the robbery?” The judge’s question implied that the Government had not presented evidence that the killing took place “during the perpetration” of the robbery, a circumstance that had to be proved before the felony-murder rule would apply.
Enoki: “Well, if in a bank robbery the defendant takes the bank teller along with him and kills her later—I don’t mean three weeks later, I mean in the process of taking her away from the scene—that’s connected to the robbery.”*
Judge King was unmoved by the prosecutor’s argument, and granted the defense motion. Of course, if felony-murder had been the only count in the indictment, as it had been originally, and hence dismissing that count would have set Buck Walker free, Partington would have had about as much chance of winning his motion as of persuading Kit Muncey to step up as a character witness for his client.
Before the marshals escorted him from the courtroom, Walker grinned smugly at his attorneys and gave Partington a good-old-boy pat on the back.
Walker might have considered the felony-murder dismissal a major legal triumph, but I thought it more a matter of the Government’s being prevented from pursuing an inappropriate charge.
With the defense set to present its case, the charges against Buck Walker had been whittled down to a single count of premeditated murder.
JUNE 6, 1985
THE FIRST defense witness was Charles Morton, a criminalist who was the director of the private Institute of Forensic Sciences in Oakland. Morton testified that his examination of the metal container revealed no “direct evidence” indicating there had ever been a body inside. On the other hand, he added, he had found nothing to “exclude that possibility.”
In his never-say-die effort to keep the bones out of the box, Partington wanted to know if the expert had found any evidence suggesting that the abrasion to the bones had taken place inside. The answer: “I looked for areas in the box that would show that. I found only relatively light abrasion to the interior of the container in a couple of areas.”
Obviously, Partington would have preferred the complete absence of discernible abrasions.
On cross, Enoki asked: “If the container were partially filled with sand, wouldn’t the sand provide another surface for possible abrasion of a human bone?”
“Certainly,” the criminalist replied without hesitation.
Enoki next used the defense witness to elicit a critical piece of testimony to bolster the argument that the reason Muff’s remains were found right alongside the container was that they had once been inside. After all, how else could they have gotten there?
“By the way,” the prosecutor now asked, “bones don’t float, is that correct?”
“That’s correct,” the defense criminologist replied.
Next, a serologist from the same institute testified that he had cut out a section of the piece of green cloth found in the container for examination. His tests had not shown evidence of human protein in the blood (ostensibly contradicting the findings of the FBI serologist), meaning that the blood could be either human or animal.
Now, it seemed, Partington wanted to suggest the novel scenario that a bleeding animal—not a human being—might have been inside the container.
Enoki swiftly dealt with this ploy on cross. “There is really no way for you to contradict the finding [of the Government’s serologist] that there was in fact human protein on the cloth in a different section of it, is there?” (The Government’s serologist had already testified that because of the saline solution used in his testing, that sample of the cloth had been “consumed in the examination.”)
“In a different section? In other words, that he could have tested that I didn’t test?”
“Yes.”
The defense expert pursed his lips. “I cannot contradict that possibility,” he conceded.
The expert dental witness for the defense was an intense, studious-looking odontologist experienced in treating burn victims. Dr. Duane Spencer testified that his examination of Muff’s teeth revealed no evidence of burning. He also said that the conclusion of the Government’s odontologist that the fractures to Muff’s teeth had to have been caused by “blunt trauma” erroneously presupposed that the trauma occurred at or near the time of death. “Teeth are the hardest object in the body, harder than bone,” but after death, “teeth dry out and become brittle, and it doesn’t take much force to break them.”
Going beyond his area of expertise, Dr. Spencer offered a possible cause for the abrading on the skull. “When a body is floating in the water, it will usually float on its stomach, arms down, in what is called the ‘dead man’s float.’ If the body ends up that way on the sand or beach or rocks, that face could just rub into the sand or whatever the abrasive material might be. I believe that could be an explanation for the abrading on the face.”
Enoki brought out on cross that Dr. Spencer had never before testified in a court of law as to the cause of injuries to a human body.
Undaunted, Dr. Spencer challenged the prosecution expert’s opinion that if the fracture to the gum line had occurred prior to death, the pain would have been so great that the person would immediately seek dental care. People have different thresholds of pain, he pointed out. Whereupon Enoki countered: “Wouldn’t you say that the overwhelming majority of humans would seek dental treatment if the crown of their tooth was fractured off at the gum line?”
“It would seem so, but there are people walking the streets of San Francisco right now, if you look in their mouths,” Dr. Spencer sniffed, “you would be appalled by what you’d see there.”
The defense, further pursuing the accidental-death theory, and in an effort to show that the Grahams’ dinghy might have capsized in the lagoon, next called a U.S. Air Force meteorologist to the stand. The witness spotlighted the extraordinary remoteness of tiny Palmyra when he testified that even though his job was to provide aviation forecast mission support “throughout the entire Pacific region, I had never heard of Palmyra until the events of this case came up.”
Thumbing through satellite weather pictures of the Palmyra area, the weather forecaster said that on August 27, 1974, they showed “very intense” thunderstorm activity that subsided by the 28th. On the 29th and the key day of the 30th, the heavy weather had moved about one hundred miles north of the island. Defining a squall as a “burst of wind,” Major Rodney West of the 20th Weather Squadron stationed at Hawaii’s Hickam Air Force Base said that the thunderstorms north of Palmyra on August 30 could “possibly” have created squalls with a velocity of up to thirty-five miles per hour for several minutes on Palmyra that day.
(The Government’s meteorologist, the chairman of the Department of Meteorology at the University of Hawaii,
had earlier testified that August 30 appeared to be a “fine weather” day on Palmyra. He had noted a “heavy shower zone” north of the atoll in late August and early September, but said the likelihood was that it had only generated, if anything, a southeast trade wind “probably somewhere between seven to ten or eleven miles an hour” over Palmyra. He found it “extremely difficult to imagine” any sudden storms or squalls there during this period. Everyone knows how weathermen disagree on future weather. We had now learned they also disagree on the past.)
Findlay next called an expert in the operation of Zodiac dinghies and asked whether or not a strong wind could flip or overturn a motorized Zodiac. The witness said it was possible if winds exceeded twenty knots (twenty-three miles an hour).
The defense theory that the Grahams drowned when their boat capsized required that the jury accept quite a string of ifs: if there were squalls on Palmyra on August 30; if the lagoon, normally placid even during tempestuous seas outside, was uncharacteristically turbulent; if Mac and Muff just happened to be in the lagoon during the several minutes of a squall; if the Zodiac was not, as Government witnesses had testified, almost impossible to capsize; and if Mac and Muff, thrown in the water, had been unable to get back to their dinghy or to shore.
But Partington and Findlay were doing their best to convince the jury that these ifs added up to a reasonable doubt of Buck Walker’s guilt.
University of Hawaii marine biologist Richard Grigg, still lithe and rangy like the big-time competitive surfer he had once been, next testified about a trip he made to Palmyra in August 1984 on behalf of the Walker defense.*
The biologist explained that one objective of the excursion had been to search for the missing second container from the rescue boat. They did not find it after numerous scuba and snorkel dives that totaled sixteen hours underwater. The divers had seen plenty of blacktip sharks, though. Were they afraid? “Not really,” Grigg shrugged. “With sharks, you are safer staying right against the bottom than swimming on the surface. Most accidents with sharks occur at the surface, the sharks being attracted by splashing or some sort of agitation in the water.” The jury was also told that sharks have “very, very poor vision” and compound it by closing their eyes when they attack. A gray reef shark, however, with one bite “could take a pound of flesh with no problem.” Grigg said he saw many gray reef sharks (“They are only about six feet long, but they are perhaps the most aggressive shark in the Pacific”) outside the lagoon, but only one inside. He said that although the lagoon’s blacktip sharks were also aggressive, they “wouldn’t take a very large bite” of a human, since most were smaller. Grigg’s laconic testimony had not been overly helpful to Partington, who peppered him with questions suggesting the Grahams could have been killed by sharks.
To rebut the Government’s position that the metal container had surfaced after Buck dumped it in the lagoon, Partington next inquired about the stability at the bottom of the lagoon. Grigg described the bottom sediments as “very fine,” and metallic pieces of debris scattered around the lagoon bed as “coated,” as if they had been undisturbed for years. “The bottom [he found the deepest point to be around 150 feet] is very stable. There is no indication that a box, such as the metal container, could be moved on its own. There is just not enough wave or current energy along the bottom to move anything once it was lodged on the bottom.”
Grigg and his associates conducted a survey along the entire length of the beach connecting Strawn and Cooper islands in which they counted the number of items of flotsam—floating material that had washed up on the beach—every fifty feet.
“What was the purpose of that survey?”
“To determine to what extent the site where the box and bones were found was a cul-de-sac.”
“Did you find any area that collected more debris than any other?” Partington asked.
“Yes, the box and bones site.”
“Do you know why that is?”
“It is a place of confluence, meaning concentrated current where more objects than normal collect.”
In other words, the defense was suggesting, the finding of the bones near the container didn’t necessarily mean they had once been inside.
Partington had done a good job with Grigg, a credible witness. Enoki, obviously sensing that the man would only strengthen under fire, merely asked a few benign questions and sat down.
Although his Toloa shipmate, Thomas Wolfe, had appeared as a prosecution witness, Norman Sanders came to the stand on the other side. In 1981, he had read Australian press accounts of the discovery of Muff Graham’s body in “a steel box on Palmyra Island” and had written to the authorities in Honolulu offering to be of assistance to the prosecution, but the U.S. Attorney’s Office eventually decided not to use him. Partington put on his traveling shoes in late 1983 for a trip to Australia to recruit the former college geology instructor as a defense witness. Sanders, now an Australian citizen and the first American-born politician ever to be elected to the senate of the Australian Federal Parliament, had subsequently been hired by the defense, all expenses paid, to conduct geological experiments on Palmyra during the August 1984 trip. The bearded Sanders, his head lifted high, had a puffed-up demeanor on the witness stand that sometimes made him seem fatuously self-confident.
Sanders shared with the jury his melodramatic impressions of the island during his short stay there in 1974. “Palmyra is one of the last uninhabited islands in the Pacific. The island is a very threatening place. It is a hostile place. I wrote in my log: ‘Palmyra, a world removed from time, the place where even vinyl rots.’ I have never seen vinyl rot anywhere else. I said, ‘Palmyra will always belong to itself, never to man.’ It is a very forbidding place.”
Because the presence of blood in the water enhances the probability of a shark attack, Partington elicited testimony from Sanders that he observed Mac slash at small sharks in shallow water with his machete. Sanders identified two photos he had taken of Mac: in one, his left calf bandaged, he posed with a machete; in the other, he stood in ankle-deep water holding the machete up in the air as a small shark approached his feet.
Partington, pursuing the defense’s boat-accident theory, next asked if there were any obstructions in the lagoon that would be hazardous to small boats.
“It’s full of steel spikes that stick up and concrete blocks in various places. There are a lot of underpinnings that you couldn’t see well at high tide and which are a hazard to a small boat. At low tide, you can see them and avoid them.”
To cast doubt on the credibility of all the prosecution witnesses, Partington suddenly changed course, asking about a conference telephone conversation Sanders had with the Government attorneys following the 1984 trip to Palmyra.
“A voice sounding like Mr. Schroeder’s said, ‘Well, these defendants are nasty people. They are killers. Why are you working for the defense?’ Another voice then came on saying, ‘We are just joking around here, Dr. Sanders,’ as if that person felt this was not a proper thing to be saying,” Sanders recalled for the jury. He then flashed a smug smile in the direction of the prosecutors, as if to say, That’ll teach you.
If this was the heavy-handed way the prosecutors dealt with one witness, had other witnesses been cowed by the prosecution’s tactics? That was the question Partington wanted the jury to consider.
At the defense’s behest, the court then accepted Sanders as an expert witness in coastal geomorphology. Sanders explained that he had spent a number of hours at the site where the bones were found, studying beach erosion on the lagoon shore. The defense attorney asked his witness for any conclusions he arrived at as a result of his experiments.
Sanders seemed to relish the moment. “There was evidence of a great deal of coastal erosion, as well as accretion, which is the opposite of erosion. Accretion occurs where the sand builds up on the lagoon shores. Both these movements are very rapid on Palmyra. This is a sign of extremely rapid beach fluctuations.”
Partington asked if
Sanders’s analysis of the sand samples showed them to be abrasive. The witness said yes.
Judge King interjected with a smile: “They use sand for sandpaper, don’t they?”
“Yes, they do,” Sanders said.
Court: “So it would, indeed, be an abrasive?”
“It would, indeed, be an abrasive.”
Partington, ignoring this needling, pressed on. “In view of the sand movement you have testified to, what might happen to a skeleton on that beach over a period of time?”
“It would be buried in the sand,” the witness said. “The sand buildup could cover a skeleton or anything else that was there. It would lie there until some action dug it out.”
A one-man band for the defense, Sanders rendered his judgment that Buck and Jennifer’s boat was seaworthy. In fact, his overzealous attempts to do well for the defense provoked Judge King numerous times: “Just wait for the question.” “Keep it short. We don’t want all your mental processes.” “Could we get to it as fast as possible?” “Briefly, briefly!”
On cross, Schroeder, after a struggle, got Sanders to admit that he had sensed a “great deal of tension between Mac and Muff and Roy and Jennifer” and that, to his knowledge, the two couples did not associate with each other.
All eyes riveted upon the next witness, a stunning brunette in her late twenties who approached the witness stand with the casual poise of a woman unaccustomed to being ignored. With her bright floral prints, stylish sandals, and flashing smile, Galatea Eatinger glided through the courtroom with the freshness of a tropical breeze.
Under questioning by Findlay, Eatinger testified she had lived in Hawaii for ten years and in June 1980, aboard a small fishing boat called the Aquaholics, visited Palmyra. Friends on three other boats—the Kiave, the Luty and the Hawaiian Moon—also made the journey.
“On this occasion in the summer of 1980, did there come a time when you discovered a bone?” Findlay asked.
“Yes.”
A bone? Found on the island seven months before Sharon Jordan’s discovery? I had to shake my head at the Erle Stanley Gardner theatrics. Was the beautiful mysterious witness actually going to produce amazing evidence that would turn the trial around?