He argued that “participating in the theft of the Sea Wind does not automatically mean” that Jennifer had participated in a murder, but that there was a danger here of one crime overlapping the other in the collective mind of the jury. If the case went forward, Len argued persuasively, then when Jennifer testified, “what will come out is the fact that she had made untruthful statements about the Sea Wind and about the Iola. The Government will seize on those untruthful statements and argue to the jury that she can’t be believed. And the focus of the jury will shift from the failure of the Government to prove their case, to: ‘Can you believe Jennifer Jenkins, who previously made untruthful statements about the Sea Wind?’ So the Government will have the benefit of a bootstrapping,” Weinglass said in conclusion.
After hearing from Elliot Enoki, Judge King predictably denied Len’s motion. Obviously, the case had to go to the jury. Among other things, as Enoki pointed out, the theft of the Sea Wind could not be separated from the murder, since the motive for the murder had been to steal the boat.
I now told the judge I was concerned about how he was going to tell the jury that the felony-murder count had been dropped.
“Well,” Judge King said whimsically, “let me try something on you and see how you like it.”
“Okay.”
“‘Ladies and gentlemen, I have removed Count One from your consideration. It’s no longer before you.’” Judge King smiled benignly, no doubt confident that he’d forestalled all objections.
“There’s a little problem with that,” I offered.
“What?” His eyes widened.
“The jury could conceivably draw the inference from your language that you feel there was no merit for the felony-murder count to proceed, but the fact you did not dismiss Count Two indicates you feel there is some substance and merit to that count. May we help you in the formation of what you tell the jury?”
“Suggest something, and we’ll talk about it. I have no pride of authorship.”
AFTER THE midmorning recess, the judge read the jury a statement dashed out by the defense and prosecution working together. It was an improvement over what he had been planning to say. Rather than “I have removed Count One from your consideration,” he explained:
“Count One has been removed from your consideration. It is no longer of concern to you and you should not speculate as to the reason for its removal. The fact that it was removed from your consideration should not influence your verdict with reference to the remaining count, which verdict you must base solely on the evidence.”
With that, the defense case began.
Our first witness was Bill Larson, who had been with Don Stevens on the sailboat Shearwater at Palmyra in July 1974. The tall, sandy-haired Larson was now an engineer for the Syndyne Corporation in Vancouver, Washington.
Stevens had been a prosecution witness at both theft trials, as well as at Buck’s murder trial. While poring over Walker’s 1975 theft trial transcript when I first got on the case in 1982, I saw where Stevens had mentioned that his (unnamed) friend aboard the Shearwater attended a potluck dinner party at Buck’s tent. Mac and Muff had been present, too. Stevens had remained aboard his boat because of an ear infection. We had to have at least one independent witness to help counter the overall impression that there was bad blood between the Grahams and Buck and Jennifer. Otherwise, the jury would likely disbelieve Jennifer’s story that she had found nothing unusual about the Grahams’ supposed dinner invitation. Although I had more than once asked Jennifer if there was anyone at all who could be such a witness, she had been unable to think of a soul. Grasping at straws, I telephoned Stevens at his home in Portland, Oregon, for the name and phone number of his former shipmate. When I called Larson at his home in Vancouver and he confirmed being present at the dinner and said that the relationship between the Grahams and Buck and Jennifer at the get-together seemed very cordial, I felt like Moses spotting Aaron in a roomful of Egyptians. With so precious little affirmative evidence for the defense, otherwise routine information becomes exhilarating. When I reported back to Jennifer about Larson, she did not remember him by name. When I explained he was the fellow from the Shearwater who had attended the potluck dinner, she said, “Oh, yeah, that guy. Yeah, he could tell about Mac and Muff having a nice evening with us.” Irked, I asked why in hell she hadn’t mentioned Larson before. As usual, I hadn’t really gotten through. She simply laughed her hearty laugh. “I just forgot.”
With Larson, as with almost any witness, there was some scuff on the shine. In the FBI’s 302 report of a telephone interview with him, he characterized Jennifer as “the leader of the two.” Leader enough to mastermind murder? I had delved into this issue in my pretrial interviews with Larson. Urged to clarify, he said he hadn’t felt very strongly about Jennifer’s leadership role, basing it mostly on the fact that she was the “talker” of the couple, and had once yelled at Buck, who had said nothing in return. Also, Larson had been impressed that she had acted as navigator on the Iola, even though she lacked ocean sailing experience. On balance, I felt it was worth calling Larson for the defense.
Although I had prepared Larson for trial, Len asked me if he could handle Larson on the stand, and I had no objection. Len first brought out that even before the dinner, Larson had accompanied the Grahams and Jennifer on a boating and exploration trip. As testimony arrowed toward the dinner party, seven or eight jurors—but not the Kansas Rock—began taking notes.
As to that night, Weinglass asked, “In your view, did it appear to be a friendly relationship between Buck and Mac?”
“Yes, it did.”
“You watched Buck and Mac playing chess?”
“Yes.”
“And when you saw Muff and Jennifer talking, did it appear, from where you were, to be a friendly conversation?”
“Yes, it did.”
“Based on your observations of Jennifer with the Grahams, how would you describe their relationship?”
“It was friendly.”
“Did you detect any animosity or hostility?” Len asked.
“No, I didn’t.”
The next line of questioning was adroitly designed by Len to show that even if Mac and Muff hadn’t liked Buck and Jennifer, Jennifer could not have known it from their behavior.
“Now, did you see or hear any comments or behavior by Muff Graham, in Jennifer’s presence, that would lead you to believe that Muff and Jennifer were unfriendly or hostile to each other?”
“No, I did not.”
“Did you see or hear any behavior or comment of Muff Graham, in Jennifer’s presence, that would lead you to believe that Muff was unfriendly or hostile toward Buck Walker?”
“No.”
Finally, Larson recalled visiting the Sea Wind one afternoon when Muff happened to be alone. She served him ice-cold Kool-Aid, a sybaritic luxury on a deserted island in the tropics. “It was refrigerated. It was something we hadn’t had in almost fourteen months.”
“Did you comment to Muff on your appreciation of the Kool-Aid?” Len asked.
“I thought it was very good and said that we ought to share it with everybody on the island.”
“Did Muff respond to that suggestion?”
“Yes. She said that she didn’t want the other two to actually be on her boat.” I tried not to show my inner reaction.
In his brief cross-examination, Enoki asked whether Jennifer or Buck had ever asked the men aboard the Shearwater for supplies of any kind.
“Yes,” Larson answered. “Jennifer did a couple of times.”
“What did she ask for?”
“Sugar or flour, I believe. I’m not positive.”
Enoki sat down. The Government had apparently overlooked what Larson had said about Jennifer’s apparent domination of Buck. We were prepared with a response, of course, but not being put on the defensive was a plus for the defense.
I now called FBI Special Agent Tom Kilgore to the witness stand, and first asked, poker-faced, whether he’d
ever testified for the defense before.
“Yes, sir.”
We both smiled.
“Not too often, though?”
“No, sir.”
The jury had, of course, already heard his account of an interview with Curt Shoemaker on October 30, 1974. I wanted to cover an interview conducted the previous day with the Leonards.
“Did it come to your attention that the Leonards had called the FBI requesting an interview?” I asked.
“Yes.”
Both had denied, during my cross-examinations of them, ever calling the Bureau to solicit an interview.
“In fact, they had called the FBI office several times. Is that correct?”
“That’s my understanding,” the agent said.
“And your purpose in interviewing the Leonards was to secure from them whatever information they had to help you in your investigation of the disappearance of the Grahams?”
“Yes.”
“During your interview of them, did either one of them tell you that while they were on Palmyra, Jennifer Jenkins told them that she would never leave Palmyra on the Iola?”
“Not that I can recall.”
“If either one of them had told you this, would it have been the type of information you would have put in your report of the interview?”
“Yes.”
On cross-examination, Schroeder asked Kilgore if it had been “pretty hectic” that day at the Ala Wai when he interviewed the schoolteacher and his wife.
“Yes.”
“How long did you spend interviewing the Leonards?”
“I would say close to thirty minutes, maybe a little more than that.”
“Would you agree that thirty minutes could not be called an in-depth interview?” Schroeder asked.
“Oh, by no means.”
On re-direct, I elicited that Kilgore’s interview notes came to nearly five typewritten pages, including such trivia as the Leonards’ telling him that the Grahams had a dinghy with an outboard motor and Buck cut down coconut trees with a chain saw.
“So you put in quite a few little details in the report, isn’t that true?”
“Yes.”
“Thank you,” I said. “Nothing further.”
THAT AFTERNOON, a disheveled middle-aged man who looked like Willie Nelson’s clone sauntered to the witness stand. Larry Seibert wore his sun-bleached hair long, like an aging hippie, and appeared quite comfortable in faded blue jeans and a military-style jacket. I had spent some time and effort finding Seibert, whose occupation seemed to be “beachcomber.”
Seibert lived on a boat in Oahu’s Keehi Lagoon and used the P.O. box of a Honolulu garment factory as his business address, though he didn’t work regularly there or anywhere else. I had started looking for him in early 1982 but was unsuccessful until February 1983, when I caught him by phone at the Honolulu home of a friend of his. Seibert not only confirmed, as Jennifer had told me, that he had seen a broken-off swordfish bill stuck in the hull of the Sea Wind, but also that she had told him privately that Buck had lied about how they came into possession of the boat.
Under Len’s questioning, Seibert now testified that he had first met Jennifer and Buck in the fall of 1973 when they were fixing up the Iola at Maalaea Bay boat harbor.
He next saw Jennifer and Buck in October 1974, when Buck called to invite him over to Pokai Bay to visit the couple on their newly acquired ketch. He had learned about the swordfish attack during that social visit.
“Did you see the patch on the outside of the hull?” asked Weinglass.
“Yes, yes. But I also saw a part of the fish sticking through the hull from the inside.”
“And could you describe for us what that part of the fish looked like?”
“It looked like the mangled-up bill of a swordfish.”
“About how long was it?”
“It was about six or eight inches long. What was left of it.”
Now on to the second pertinent topic.
“In the course of your being on the Sea Wind that day, did you have an occasion to ask Buck how he got the boat?” Weinglass asked.
“Yes, I did. He told me he had won the boat playing chess with the previous owner in a series of games,” Seibert answered.
“Now, was Jennifer there when he told you that?”
“Well, she wasn’t sitting at the table with us, but she was somewhere around.”
“Did you sometime after that ask Jennifer if the story that Buck had related to you was true?”
“Yes. She said that it had not been true. That he hadn’t gambled with the guy.”
On cross-examination, Schroeder tried to show that Seibert, being a friend of Jennifer’s, might lie for her.
“You were good friends, were you not?”
“Well, we were fairly good friends.”
Schroeder showed Seibert a photograph of him on board the Iola when the vessel was finally launched successfully.
“You have a bottle of champagne or wine in your hand. Is that correct?”
“Yes.”
There was a slight pause as Schroeder changed key.
“The swordfish bill is not something that you simply stumbled across. They said, ‘Larry, we’ve got something we want to show you.’ Would that be correct?”
“Something like that, yes.”
“And they took you and showed you this bill.”
“Right.”
Now the Government lawyer turned his attention to the second important part of Seibert’s testimony.
“Isn’t it a fact, Mr. Seibert, that Buck and Jennifer both told you that they won the boat?”
“Only Buck told me.”
“Do you remember being interviewed by FBI agents Richard Bramley and Roy George Hamilton on October 31, 1974?”
“Yes.”
“And during this interview, you signed a statement, did you not?”
“Yes.”
“And did you not, during that statement, say, ‘They said that after they had won the boat, they departed the island on the boat they won, and the previous owners of the boat departed in the Iola for Fanning Island’? Did you say that to the FBI?”
“I might have used the word ‘they’ at that time, but—”
“Would you like to see your statement?” Schroeder asked pointedly.
“I saw the statement. I know what it says. But I’m not very good at always making sure that I’m using the proper pronoun or whatever you call it. And the word ‘they’ should have been ‘Buck.’”
“So, in October 1974, you said ‘they.’”
“Yes, I said ‘they.’”
“And today, you’re saying ‘Buck.’”
“I have always said ‘Buck’ except for that one time that I used the improper pronoun.”
(Schroeder should have known that the jury might think he had intentionally misled them if it was brought out on re-direct, as it was, that later in this very same interview Seibert had clearly said, “Roy Allen related the following story to me—that he won the boat gambling, playing chess with the previous owner who he referred to as being a wealthy millionaire who did not worry about losing the boat or approximately a thousand dollars in cash that Roy also won gambling.”)
Schroeder elicited from Seibert that it was only after Jennifer’s arrest that she had told him, in Halawa Jail, that Buck had lied about how they acquired the Sea Wind.
Schroeder had one more line of questions to challenge Seibert’s credibility. “You went to the Unites States passport office with Buck Walker, did you not, and you signed an affidavit that he was Roy A. Allen?”
“Yes, I did.”
“Nothing further, your honor.”
BY THAT Friday, February 14, the advancing storm had finally arrived in full force, dumping four inches of rain on the San Francisco Bay Area on Valentine’s Day. (Non-Californians may forget that much of the state is susceptible to severe damage from rains that, elsewhere, would cause little but traffic jams and bad jokes.)
br /> “Mother Nature has interfered with us,” Judge King explained that morning as we gathered in his courtroom at 9:30 A.M. “Juror Nelson is doing fine, but he can’t get here. Highway 101 is wiped out at Petaluma, and so is another road below it. He’s being evacuated from his home and he’s moving to a friend’s house. Mrs. Rico can’t get here either. She got as far as Petaluma, and then had to go back home. There are two other jurors we haven’t even heard from.”
Before adjourning for the three-day President’s Day weekend, Judge King issued a novel order. “The paper says several days more of rain, so I hereby order that it cease raining by Tuesday morning. Let’s see how that works.” He smiled roguishly and left the bench.
Heading out of the courtroom, Len, Jennifer, and the prosecutors reached the door at the same moment. “Since we’re short jurors, maybe the judge should change his ruling on Rule 29 and dismiss the last remaining count,” Weinglass joked.
Enoki, smiling narrowly, didn’t miss a beat. “She can always plead.”
“I’ll plead guilty to jaywalking,” Jennifer chirped, adopting dry humor like one of the courthouse crowd. “Really, Elliot, you find something I’m guilty of and I’ll plead.”
The prosecutor stiffened as he spoke in a resonant baritone. “I know lots of things you’re guilty of, Jennifer.”
Unfazed, Len was still holding the door open, keeping his kind but crooked smile in place, as the tableau froze.
Enoki headed for the eighteenth floor, where he had set up shop in an office borrowed from the U.S. Attorney. He would, no doubt, spend most of the weekend there, preparing for the prosecution’s most important cross-examination of the trial. Walt Schroeder and Hal Marshall trailed like worker ants. Schroeder gripped a briefcase in one hand, and the bulky FBI agent carried, as he did at the end of each day, the carton containing Muff’s bones. The judge’s clerk, frankly squeamish about them, had asked him to be in charge of the grisly evidence. “No problem,” Hal had said. “A few bones don’t bother me.” As the friendly agent was prone to do, he told the clerk a story to illustrate the point. “My daddy was a sheriff in Texas,” he said in his deep drawl. “Down around the Gulf. One time he had to fish out a big old swelled-up drowning victim. He wrapped the body in a blanket he always kept in the backseat of the car. That Sunday, we used that very same blanket for a little family picnic. No problem.” When the young clerk looked stricken—no doubt the desired effect—her tormentor grinned broadly and added innocently, “Mind you, the body wasn’t still in the blanket.”