On my way home, I reviewed what I had just learned. The ants could have gotten into the marrow in three types of situations, two of which would not point in the direction of Jennifer’s guilt: (1) at the time of the murder, if the fractured bones had punctured the skin, or (2) in 1981, when the dry bones, still with enough oil in them to attract ants, were washed ashore.
I couldn’t prove what had actually happened, but I now knew the prosecution couldn’t either. Before I left his office, Snelling had agreed to testify as an expert for the defense. With his testimony, the jury could not conclude that the presence of ant exoskeletons in the marrow of Muff’s bones necessarily pointed in the direction of Jennifer’s guilt. I still hoped the subject wouldn’t come up at all, but if it did, we were prepared.
The ant exoskeleton issue had spotlighted the as yet futile search to learn what had really happened on the remote island of Palmyra in the late summer of 1974. Only two people had survived. Of the two, I did not believe that Jennifer knew what had taken place, and Buck Walker, who surely did know, wasn’t talking. What other living creatures knew? If the dogs could only talk, I thought.
A WEEK BEFORE THANKSGIVING, 1985
WITHOUT CONSULTING me, Len had advised Jennifer that because of the strength of the Government’s case, it would perhaps be wise to “negotiate the best deal possible” with the Government. When Jennifer told her brother about this, he asked for a meeting at my home in Los Angeles. Jennifer and Len drove over, and Ted Jenkins flew down from the Bay Area.
Len took the plunge. “I think we should give serious consideration to approaching Elliot Enoki about a plea bargain,” he said. “I don’t know if he’d go along with it, but if he does, maybe we can get second-degree murder or even manslaughter. Enoki will probably insist on a minimum prison sentence of two years.”
Ted and Jennifer exchanged glances, but neither said anything.
“The Government has a very strong case,” Len continued, as if rushing to forestall disagreement. “In a sense, stronger than against Buck, and we have virtually no defense but Jennifer’s denial. I remind everyone how swiftly the jury convicted Buck.”
Ted raised his eyebrows. “Vince?”
“I’m against any effort to plea-bargain,” I answered. “There’s no question they’ve got a strong case, but I still think we can win.” I spelled out the strengths of our case, stressing that Jennifer’s testimony would be “very important,” and also noting that we would present a strong “character defense” to show Jennifer’s revulsion toward violence. I added that I had finally found a witness, Bill Larson (Don Steven’s shipmate on the Shearwater), who would testify that relations between the Grahams and Jennifer and Buck were friendly, thereby making it much more plausible that Jennifer would believe Buck’s story about the invitation to dinner. “And in all candor, I’m going to make a powerful summation.” I added, directing my words at Jennifer: “But obviously, it’s up to you, Jenny.”
At last, my client spoke, and per usual, there was ambiguity. Yes, she was opposed to a plea bargain, but if we could work out a deal with the Government, she wouldn’t agree to spend more than six months in prison.
“Enoki will never agree to that,” Len said.
I didn’t like Jennifer’s qualified response. “Jennifer, if you are innocent,” I said, “as I believe you are—as all of us in this room believe you to be—how can you plead guilty to anything? I mean, how can you possibly stand up in front of the judge and say you were involved in killing Muff if you weren’t?” I added that this wasn’t like cutting a deal in a drunk-driving case. “For the rest of your life, you’ll be branded a convicted murderer. That’s something you have to think about.”
She agreed she did want to think about it.
“I only ask one thing of you, Jennifer,” I said. “Whatever you decide to do, make up your mind soon, not just before the trial. I don’t want to waste one more day preparing for trial.” Was I shouting down a well?
She said she’d let us know her decision in a few days. The team, at least for now, was more like queen bee and entourage.
I suspended all work on the case until her decision. Yes, this was precious time that was needed to prepare for trial, but I wasn’t going to spend one second more than the hundreds of hours I’d already put into the case if she chose to cop a plea.
A long week later, Jennifer called and said she was not going to plead guilty to anything.
“That’s great! We’re going to do it, Jen.”
She laughed nervously. “I guess my life’s in your hands now, Vince.”
DECEMBER 24, 1985
PROSECUTOR ENOKI ADVISED US by phone that FBI agents had recently gone to see Buck Walker in prison. There could be only one reason for such a visit.
“I’ll bet they’ve made Buck some kind of offer for a reduced sentence if he testifies against Jennifer,” I told Len.
He wondered aloud what Buck could have told them.
When we received the final list of Government witnesses, however, Buck Walker was not listed.
Apparently, he had said no to incriminating his former lover.
CHAPTER 29
PERHAPS NO OTHER ISSUE in the case tested my resolve not to represent a murder defendant I believed to be guilty as much as that of the tidal activity on Palmyra on August 30 and 31, 1974. And frankly, I wasn’t overly impressed with myself.
At her theft trial, Jennifer had testified that “between 4:00 and 5:00” on the afternoon of August 30, she heard the motor of the Zodiac dinghy going “out and away” from where she was on the Iola. When I interviewed her she put the time “somewhere around 4:30 P.M.” I planned to argue at the trial, of course, that what Jennifer had heard was Buck operating the dinghy with Mac and Muff’s bodies inside, and that after dumping the bodies in the lagoon, he overturned the dinghy on the beach to lead Jennifer to believe it had capsized in the lagoon and the Grahams had died an accidental death. Assuming it took Buck about ten minutes to deposit the bodies in the lagoon and overturn the dinghy once reaching shore, that put the time around 4:40 P.M.
Both at her theft trial and to me, Jennifer said that they commenced searching for Mac and Muff the following morning at dawn and found the overturned dinghy on the beach “just after dawn.” The dinghy was “about a foot and a half or two above the waterline.” (Jennifer told me that the Zodiac was perpendicular to the shore, with the stern—where the motor is located—being closest to the water.) She recalled that the water was not at high tide. Therefore, if there was a high tide between approximately 4:40 P.M. on August 30 and dawn on August 31, chances are the water would easily have washed up the beach more than two feet and soaked the Zodiac’s motor with salt water. But the prosecution had established that the motor was absolutely clean, showing no trace of salt water.
With this background, I should have immediately tried to ascertain whether there had, in fact, been a high tide between these two times. But my knowledge of anything having to do with the sea was so deficient that initially it never even occurred to me there might be a record somewhere of tidal activity on Palmyra.
Long after I had come to the conclusion that Jennifer was innocent, this whole issue finally crystallized in my mind. Like every other issue that enters my mind when I try a case, I promptly wrote it down on my yellow pad: “Check to see if there’s any record of whether there was a high tide on Palmyra between 4:40 P.M. on 8/30 and dawn on 8/31.” Although I felt there probably wouldn’t be any such record, once I write a reminder down on my pad, it of course never goes away until I cross it off. My note serves as a nagging reminder of work undone.
I originally made a few calls locally seeking to find out if anyone, anywhere, would have the answer to my question, but no one I spoke to seemed to know. Not getting the answer to my specific question, I simply went on to the long list of other things I had to do.
I knew, of course, that if a tidal record existed somewhere, and if it showed there was a high tide between 4:40 P.M. on Augus
t 30 and dawn on August 31, 1974, that would probably mean Jennifer had made up the whole story about finding the Zodiac overturned on the beach. And if she had invented this story, she was probably guilty, with Buck, of murdering Mac and Muff. Since I had already concluded that Jennifer was innocent, I obviously did not want there to exist any evidence of her guilt. Not wanting the evidence to exist was one thing. But not making every effort to find out whether it did exist was something else altogether, and that’s what I found myself doing. I simply was not pursuing the high-tide issue the way I have a habit of doing things, feeling almost relieved each time I failed to get the necessary information.
This procrastination went on for almost a year. Finally, I decided to stay on the phone until I found the answer, good or bad. I was eventually referred to someone in Seattle, who in turn directed me to the Tidal Datum Quality Assurance Section of the National Ocean Service (NOS) in Rockville, Maryland. No matter what one is seeking in life, it seems there’s always someone, somewhere, who makes it his business to be knowledgeable about it.
The first person I spoke to in Maryland said that the tidal information I wanted was available, that on their charts Palmyra was Tidal Station 2721; and that as part of the instrumentation for recording tides, there was a camera on Palmyra. A camera? Unbelievable. The thought immediately entered my mind—was it possible (a one-in-ten-million chance) that the camera had witnessed the murders? If so, where was the film now? I was aware of the surreal notion that one can’t go anywhere in the world, even the most remote corner, without someone watching. Later, however, I learned from others at NOS that there was no camera on Palmyra. What they did have there was a tide gauge (with a pressure sensor) mounted underwater on a piling in the lagoon on Sand Island. Also, the tides had been actually measured at Palmyra only during three periods: from May 30, 1947, to December 31, 1948; January 1 to November 12, 1949; and February 19 to March 26, 1967. These measurements, which were made simultaneously with those in Honolulu, enable the NOS to determine at any other time what the tides are on Palmyra. From the observed tides in Hawaii, which are taken daily, the NOS knows what mathematical correction to make to determine the tides on Palmyra. These determinations, though officially classified as “predictions,” are amazingly accurate.
When I asked the NOS people the key question—was there a high tide on Palmyra between around 4:40 P.M. on August 30 and dawn on August 31, 1974?—they said they didn’t know when dawn was at Palmyra on August 31, that I’d have to call the Naval Observatory in Washington, D.C., to find this out. Also, of the two high tides approximately every twenty-four hours and fifty minutes (the average daily tide cycle throughout the world), one was a “high high” and the other was a “low high,” when the water, of course, wouldn’t go quite as far up the beach. Similarly, there was a “low low” and a “high low” tide during the same period. It would be best if they sent me all the tables, they suggested, and if I couldn’t figure them out, I could call back.
Meanwhile, I called the Naval Observatory to learn when dawn had occurred on Palmyra on August 31, 1974.
“Well, actually,” I was told by an astronomer, “there are three phases of twilight.”
“I’m sorry,” I said. “I’m only interested in dawn, not twilight.”
It turns out that “dawn” is not a term used by the Naval Observatory. It’s more poetic than scientific, I was told, a subjective term to describe daylight or natural illumination in the morning, rather than a quantitative term. And “twilight” is used by the observatory not just to describe the period from sunset to nightfall, but that period in the morning between daybreak and sunrise—what most of us call dawn. And there are three types of twilight: civil, nautical, and astronomical.
I was already confused and wondering whether I’d be able to get what I needed. Obviously, the first step was to get a definition of all these types of morning twilight. I was told that “civil twilight” in the morning starts when the center of the sun is six degrees below the horizon, and ends at sunrise (sunrise being when the top rim of the sun’s disk first appears in view). “Nautical twilight” starts earlier, when the sun is twelve degrees below the horizon, and “astronomical twilight” is when it is eighteen degrees below.
I explained to the astronomer that what he was telling me was very educational but, I pardoned the play on words, “really not that illuminating” to a lay person such as myself. I had virtually no framework of reference. “Could you define these three morning twilights,” I asked, “in terms more understandable to me?”
So often in life people who are experts do not know how to communicate their specialized knowledge to others. In fact, it’s probably the rule rather than the exception. Fortunately, I was talking to an exception. He patiently explained that generally speaking, astronomical twilight begins around one and a half hours before sunrise and is the time in the morning at which the upper atmosphere, receiving sunlight from the sun below the horizon, reflects part of it back to earth. Because of this increased lightness in the sky, the stars and planets can no longer be photographed. Nautical twilight begins around one hour before sunrise and is that period when the fifty-three stars used for navigation at sea are no longer visible to the naked eye. Civil twilight is about half an hour before sunrise, the time at which one no longer needs artificial illumination (such as car headlights) to see during outdoor activities.
Now we were getting somewhere. When lay people use the word “dawn,” he explained further, they are usually describing a time somewhere between nautical and civil twilight, when “it first begins to get light in the morning.”
Looking at his tables, I was informed that on the morning of August 31, 1974, in the Palmyra region of the Pacific, astronomical twilight was at 4:32 A.M., nautical twilight at 4:56 A.M., and civil twilight at 5:21 A.M.
Fair enough, I thought. I now had something concrete to work with. I next had to find out what Jennifer meant by “dawn.”
When I asked her, she replied, “You know, when it first starts to get light in the morning.”
“You don’t mean that time of morning when it’s light enough to see everything without artificial light?”
No, she said, before that.
So, as the astronomer had suggested, by “dawn” we were talking about halfway between nautical and civil twilight. Or approximately 5:08 A.M. on Palmyra on August 31, 1974.
Jennifer elaborated that by “just after” dawn (when they found the dinghy), she meant around five minutes later. That brought it to 5:13 A.M. She also said that by the time they called out and searched the immediate vicinity for Mac and Muff, set the dinghy upright, reattached the engine, and motored off, it was around ten or so minutes later. That brought it to around 5:23 A.M.
Of course, all these times were just estimates. The actual times could have been, and almost undoubtedly were, at least slightly different. But since the estimates were all I had to work with, they assumed virtually the same importance as the actual times.
Naturally, I eagerly awaited the tidal activity tables from NOS, which I received as a certified copy a week or so later. The tide tables covered the “Central and Western Pacific Ocean and Indian Ocean” for the year 1974.
Was there a high tide at Palmyra between 4:40 P.M. on August 30 (the approximate time I was assuming Buck overturned the Zodiac) and 5:23 A.M. on August 31, 1974 (the approximate time I was assuming that Buck and Jennifer motored off in the Zodiac that morning)? Adding one hour for Daylight Saving Time to the standard times always used in the tables, the first entry looked good. There was a high high tide in Honolulu at 15:07 (3:07 P.M.) on August 30, 1974; i.e., almost an hour and a half before Jennifer heard the Zodiac engine. But this was Honolulu, and there was a one-hour-and-nineteen-minute addition to correct for Palmyra, bringing the high high tide on Palmyra to 16:26 (4:26 P.M.), just fourteen minutes before 4:40 P.M.
Factually, this was okay, but trialwise, a problem. It would look pretty “convenient” to the jury that the high hig
h tide was just fourteen minutes before the critical time of 4:40 P.M. (and just four minutes before Jennifer heard the Zodiac in the lagoon).
In any event, that took care of the high high tide. What about the next high tide, the “low high”? Was it, as I hoped, after 5:23 A.M. the following morning? And sufficiently after to offset the earlier “convenient” time problem? Maddeningly, the low high tide was at 5:35 A.M.; after 5:23 A.M., fortunately, but again, only twelve minutes after the approximate time Jennifer said she and Buck motored off in the Zodiac. The whole scenario would just look too pat to the jury. There’s a high high tide fourteen minutes before the dinghy is overturned, and no high tide (either high high or low high) between then and when Jennifer and Buck motor off in the dinghy, the next one being twelve minutes later. In other words, Jennifer was saved by around fourteen minutes on one end and around twelve minutes on the other. If the jury received the tidal evidence, they might very well conclude, I thought, that Jennifer’s testimony was contrived. I knew, of course, that it wasn’t. Jennifer had already testified at her theft trial to her times and had already given me essentially the same times, all before I received a copy of the tidal report. But how could the jury know for sure that she had not somehow picked up this information earlier? After all, what were the mathematical probabilities against Jennifer’s being protected in her testimony by only a matter of minutes, twice within a twenty-four-hour period?
Because I felt the jury might feel that Jennifer and perhaps even I were involved in a fabricated defense, I decided against introducing the report into evidence, despite Jennifer’s and Len’s urging that I do. My reasoning was that if the jury concluded that Jennifer’s testimony was fabricated, the ball game would be over for us. But if there was no evidence one way or the other on the issue, I could at least fashion an argument that would render the whole matter inconclusive in the jury’s eyes.