And the Sea Will Tell

  “That’s what Miss Jenkins said?” Enoki asked, just this side of open sarcasm.

  “Yes.”

  Enoki wanted to know if Jennifer had mentioned why she and Roy Allen had not reported the disappearance of the Grahams to the authorities when they reached Hawaii.

  “She said she did not want to report the disappearance of the Grahams because she was afraid the authorities would take the boat away from her.”

  Shishido testified to his inspecting the Sea Wind after Jennifer’s arrest to look for evidence. He noticed that on the stern of the boat, “underneath the new paint you could see the name Iola,” which had been painted over. Among other things he found Buck’s .22-caliber Ruger Bearcat pistol and the Iola’s log, but no log pertaining to the Sea Wind, nor any diary written by Mac or Muff Graham.

  Shishido told about the November 1974 search of Palmyra and its lack of results. When he returned to Palmyra in February 1981 to recover the bones found by Sharon Jordan, he also recovered the aluminum container, its lid, and a length of wire found next to the bones. “I slipped the wire around the container and lid to see if it would fit,” the ex-agent said. “It did. It fit snugly.”

  Enoki handed Shishido several photos, which the former case agent identified as showing Sharon Jordan pointing to the general area where the bones were found, “right in front of a line of bushes on shore.” At the prosecutor’s direction, Shishido stood and went to a map on a tripod beside the witness stand and marked the spot.

  He described it as a “coral shelf that extends from the land into the lagoon,” occasionally submerged completely. “When it gets to the deep-water area, it makes a sheer drop. The shore is made up of rocks, coral, and little bits of sand.”

  Enoki showed the jury an aerial videotape of the area, then sat down.

  The judge looked my way. “Are you ready for cross, Mr. Bugliosi?”

  My awareness of the importance of this witness must have been obvious to the jury by the reams of documents and transcripts I lugged to the podium with me.

  “Yes, your honor.”

  I had no doubt in my mind that the witness I was about to cross-examine was a completely honest one. I also felt, however, that he was not the most reliable one, at least insofar as this case was concerned. I first established for the jury’s edification that all FBI agents are called “special agents” (hence the witness before them was not part of an elite group of “special” agents within the FBI) and that he, Shishido, was the only witness who had testified before the grand jury that indicted Jennifer.

  “On the morning of Miss Jenkins’s arrest,” I continued on with Shishido, “you received word, by way of a radio communication from the Coast Guard personnel surveilling the Sea Wind, that Jennifer and Roy Allen were observed leaving the Sea Wind and boarding a dinghy. Is that correct?”

  “Yes, that’s correct.”

  “Sometime thereafter,” I now asked in my prosecution of Walker (since Harry Conklin, the Coast Guardsman who had testified at Buck Walker’s trial to having observed Walker dive into the water, did not testify at Jennifer’s trial), “you learned that the man whom you believed to be Roy Allen had gone ashore, stripped his clothing off, dived into the water, and disappeared. Is that correct?”

  “That’s correct.”

  “With respect, Mr. Shishido, to your interview of Jennifer on the Coast Guard cutter on October 29, 1974, she was very, very eager, was she not, to tell you what happened on Palmyra?”

  “Yes, sir, she was.”

  “In fact, she was so eager that while you were advising her of her constitutional rights, she kept interrupting you because she wanted to tell you what happened?”

  “Yes, that’s true.”

  “And you had to actually stop her so you could read to her all of her rights. Isn’t that correct?”

  “That’s right.”

  “Did you tell her that she had a right to consult with an attorney before you spoke to her?”

  “Yes.”

  “And she told you she didn’t want a lawyer?”

  “That’s true.”

  “In fact, right off the top, she said, ‘The boat doesn’t belong to me. It belongs to the Grahams.’ Isn’t that correct?”

  “Yes.”

  To increase the likelihood that Shishido’s recollection of his interview with Jennifer was unreliable (most important, her alleged statement that she and Buck found the dinghy overturned in the water), I first sought to weaken his credibility as a witness.

  “Did you tape-record your interview of Jennifer?” I asked.

  “No, sir, I did not.”

  “Is there a reason for that?”

  “Well, we’ve found that when we do that, we rely too heavily on the tape recorder and don’t pay attention to what’s being said. And later, when we go to make the transcription, oftentimes we can’t transcribe the recording itself because the words get slurred or there is some other outside noise.”

  “So you feel that now, almost twelve years later, it’s better for the jury to rely on your recollection of what Jennifer told you as opposed to listening to a tape-recorded conversation?” I asked incredulously.

  His answer was fairly stunning. “I would answer yes,” he said evenly. “On some tape recordings, you can’t make out parts of the question. You can misconstrue an answer if you don’t fully understand the question.”

  “But if someone wanted to verify whether your recollection of what she told you is accurate, there would be no way in the world to do so, isn’t that true, Mr. Shishido?”

  “Well, I guess scientifically, no.”

  “Her words are lost forever, is that correct?”

  “Well, they’re in the memorandum that I prepared shortly after the interview.”

  I asked if he had taken written notes for preparing that memorandum, and he answered that he had.

  “Do you have those notes with you?”

  “No, sir, I don’t.”

  “Do you know what happened to them?”

  “They were destroyed after I prepared my memorandum of the interview. That was the practice back then.”

  “It’s not the practice now?”

  “No, sir, it’s not.”

  “You’ve been cross-examined many times in court by defense attorneys, have you not?”

  “Yes.”

  “And almost invariably, the defense attorney wants to see your notes of any interview you’ve had with their client, isn’t that correct?”

  “No, sir.”

  “They don’t ask you for your notes?”

  “Well, on some occasions, yes, they have.”

  “Knowing that they sometimes ask for your notes, is there any reason why you would destroy the notes?”

  “It was just…actually, if they ask me for my notes, I can say they’re in typewritten form because I dictate from my notes.”

  “I imagine there would have been an FBI case file on Jennifer?”

  “Yes.”

  “And rather than put your original notes in that case file, you just tore them up and threw them in the wastepaper basket?” I stopped and looked scoldingly at Shishido, treating the jury to a disbelieving glare.

  When he answered, Shishido’s voice was barely audible: “At that time, yes.”

  I paused for several beats.

  “Approximately how long did you interview Jennifer on the cutter?” I continued.

  “I think it took a total of about an hour, maybe forty-five minutes, somewhere in that area. At the FBI office, where we took her later, I believe it ran about an hour and a half.”

  “So, we’re talking about, what? Two and a half hours total?”

  “Roughly, yes.”

  “Would you characterize your memory, Mr. Shishido, as being average, below average, or what?”

  “I would say it’s average. On occasion, it’s above average.”

  He conceded that Jennifer did most of the talking during the two interviews that day and concurred with my descr
iption of her words as “gushing out,” particularly at the beginning.

  “And you condensed what she told you during this two-and-a-half-hour period into a brief two-and-a-half-page report?”

  “Well, that’s true.”

  “I take it that of necessity, the great bulk of the words in the report are your words, not hers. By that, I mean you couldn’t put everything she told you in two and a half pages, so you had to summarize, in your words, what you recall she told you. Is that correct?”

  “That’s true.”

  “If a disinterested party were to look at your report, would there be any way for them to know what words are yours and what words are hers?”

  “Well, I guess they would have to listen to my side. They would have to listen to hers.”

  That was not possible, of course, without a tape recording of the conversation. We were being asked to take Shishido’s word for exactly what Jennifer said in the interview.

  “But your report doesn’t indicate which words are your words and which are her words.”

  “Well, I said she furnished the following information. When I do that, this is what she’s telling me.”

  “But she would tell you something and then you would put down what she told you in your words?”

  “Yes, unless I used a quotation.”

  “Do you find any quotation marks there in that two-and-a-half-page report?”

  Shishido slowly perused the copy of his report he had taken to the stand. “No. No. I don’t see any, not in this one,” he finally answered.

  “Do you think it’s important, in serious matters like this, to indicate in your report which words are yours and which words are those of the person to whom you are talking?”

  “Yes, I think it is,” he said tonelessly.

  I was deriving no pleasure out of embarrassing Calvin Shishido in open court. There’s probably no finer, cleaner, more competent investigative agency in the world than the FBI, and Shishido was a salt-of-the-earth agent who had just done his job pretty much by the book. To be honest, I felt a little sorry for the witness. On the other hand, his testimony was threatening my client’s life and liberty.

  “Did you prepare your report in this case the day after you interviewed Jennifer, or later on the same day?”

  “The very next day,” he said.

  “Did you formulate that report from your memory of what she told you or from the notes you had taken?”

  “From both memory and the notes.”

  I quickly flipped to the appropriate page in my portable library. “In 1975, at a hearing in this matter, you testified: ‘I made a note of as much as I could remember in the memorandum I wrote.’ It sounds like the following day, you based your report not on notes you took the previous day, but on what you could remember.”

  “Well, that’s not what I meant,” he answered weakly.

  Having laid a foundation that Shishido’s credibility as a witness in this case was suspect, I proceeded to the key issue of whether or not Jennifer, during the interview, had told Shishido that she and Buck found the Zodiac overturned in the water of the lagoon. First, I elicited that although Shishido testified on direct examination that Jennifer told him the Zodiac was found three-quarters of a mile west of the Sea Wind, his report gave no indication where (other than in the water) Jennifer said she found the dinghy.

  Then I brought out the inconsistency that at a hearing on November 8, 1974, he had testified that Jennifer had told him the Zodiac had been found a half mile away from the Sea Wind.

  “I would say that if the earlier testimony said half a mile, that was more correct than what I said today,” Shishido conceded.

  A small point, to be sure. But every fleck of evidence that undermined Shishido’s reliability as a witness was valuable.

  “With respect to your testimony today that Jennifer told you they found the Zodiac overturned in the water of the lagoon, at the hearing in this case on November 8, 1974, at page thirteen of the transcript, you testified as follows: ‘She told me they searched the next morning for the Grahams. During the search they found the Zodiac dinghy that was used by the Grahams the night before. The dinghy was overturned. It had an outboard motor which was also overturned. They also found a gas tank that belonged to the dinghy floating nearby in the lagoon.’”

  I put the transcript down and locked gaze with the witness. “Mr. Shishido, when you say ‘they found the dinghy overturned’ and then say they found the gas tank ‘floating nearby in the lagoon,’ doesn’t it sound from the context as if you recalled her telling you they found the dinghy on shore, and the gas can floating in the water nearby?”

  “No, sir, it does not. When you’re on the stand testifying, you just go into the general details oftentimes. And I may have done that in that instance. But at the time of the investigation, my recollection is that she said the dinghy was found overturned in the lagoon. But if the motor had overturned in the lagoon, how could they have turned it upright, attached a gas can, started the motor, and continued the search? Because the motor I doubt would have run.”

  “That would have been a good question. Did you ask her it at the time?” I wanted to know, getting the ball back over the net.

  “I may have.”

  “What did she say?”

  “I don’t remember the answer.”

  “And there’s no tape—”

  “My guess is she said, ‘Well, I don’t know, we did it, you know.’”

  “We just have your memory of this, is that correct?”

  “Yes.”

  I walked as close to Shishido as I thought I could without asking Judge King for permission to approach the witness. Looking deeply into his eyes, I summed up his testimony. “Actually, Calvin,” I said, lowering my voice and speaking almost conversationally, “you really don’t have the best recollection of what she told you at all. Isn’t that true?”

  The former FBI agent, his confidence and composure on the stand having gradually faded, said quietly, “I don’t have perfect recollection. That’s right.”

  It was a dramatic courtroom admission, but Shishido’s credibility had been so damaged in the last half-hour that he had little choice. His principal testimony—that Jennifer had told him they found the Zodiac overturned in the water, as opposed to on the beach—was now at least open to question.

  It was still an issue, however, and I knew I had to travel some additional miles with other witnesses to convince the jury that Jennifer had told Shishido the dinghy was found on shore, and that his critical entry to the contrary in his report was in error.

  As we moved on, Shishido acknowledged that Jennifer had gone to the rest room at the yacht club after she had boarded the Coast Guard cutter. The next critical question was whether he had required her to empty out her purse in his presence on the cutter beforehand, or later at the FBI office. But before posing it, I wanted to get him to commit himself to a position that would paint him in a corner. In other words, if Shishido had considered Jennifer a suspect while on the cutter, the great likelihood was that he would have had her empty out her purse before going to the rest room, as Jennifer claimed. I needed this testimony to knock out the Leonards’ implication that Jennifer had flushed incriminating evidence down the toilet. I expected Shishido would readily concede that Jennifer was considered a suspect while on the cutter. But I was wrong. It was about as easy as getting the Pope to say he wasn’t Catholic.

  “At the very moment that you brought her on the Coast Guard cutter, she was a suspect, is that correct?” I began.

  “Well, I wouldn’t say immediately when she was brought to the cutter she was a suspect. I didn’t think of her so much as a suspect, but as a witness.”

  I was going to have to dig. “You had instructed the Coast Guard to keep the Sea Wind under surveillance, had you not?”

  “Yes.”

  And Shishido conceded, of course, that he had joined in pursuing Jennifer in the harbor.

  “And yet, in your mind, she
was just some witness you wanted to talk to?”

  “Well, that’s true, because at this point, I felt that we had no real jurisdiction but to assist the Coast Guard in trying to determine to whom that boat belonged. Now, when it came to the point where the Grahams were not there, that the Allens were in possession of the boat, then, of course, my concern came for the safety of the Grahams, and that possibly there could have been some foul play.”

  “So you did suspect foul play before you even spoke to her.”

  “Well, not really, because at that point, I really didn’t know if the Grahams were just left stranded on Palmyra. But foul play in the sense of illegal possession of the boat, yes.” Shishido had become as elusive as mercury.

  “So, you were very suspicious.”

  “Not really. Just because we didn’t see the Grahams on the boat at the time, didn’t mean that…maybe they had gone shopping and their guests, the Allens, were still on the boat. Those were questions I had. At the time, you know, there were a lot of possibilities.”

  I pressed on, feeling almost like someone enticing a wary bird with crumbs. “Mr. Shishido, you’ve already testified that at the very beginning of your interrogation of Jennifer you advised her of her constitutional rights. Is that correct?”

  “Yes.”

  “If you only viewed her as a witness when she first came aboard the cutter, why at the very beginning did you advise her of her constitutional rights?”

  “Because, like I told you, there were several options open in my mind. There could possibly not have been a crime, but then there also was the possibility that there was a crime. Say of murder.”

  “But you do not advise a simple witness of their constitutional rights, do you?”

  “Well, sometimes I do. It depends on whether I feel that the witness may have some complicity in a particular crime.”

  Shishido was trying to justify the unjustifiable. Like any witness, he was not eager to admit that his actions didn’t make sense. Since I had started bearing down, Shishido appeared increasingly less comfortable on the stand. He no longer rested his hands on the railing, but nervously folded and unfolded them in his lap. At times, he seemed bewildered by my questions. Occasionally, he looked toward the prosecution’s table like a Little League pitcher, with bases loaded, seeking cues from his dad in the bleachers.