LEN AND I spent Saturday working at the hotel. We ventured out on Sunday, driving across the Bay bridge and continuing east for another thirty miles to Lafayette, the leafy suburb where Ted and his family lived.
Jennifer, attired in sweat clothes, invited us into the spacious family room. The three of us discussed some of our upcoming witnesses and the points we needed to make with each. Jennifer’s testimony was very much on my mind, of course, and I took the opportunity to run her through several portions of newly designed Q and A. As always, when we zeroed in on areas vital to her defense, my summation was not far from my thoughts. As it turned out, Jennifer was also thinking about my final argument.
“Vince, are you going to argue my innocence?” she asked out of the blue. There was an edge to her voice.
“You’ve got to be kidding, Jenny. Of course I am.”
“I don’t know. Len doesn’t think you should. That you should only argue reasonable doubt.” She looked directly at Len, apparently to take over the argument. Evidently, he’d been working on Jennifer. His hope, undoubtedly, was that with her support, I would reconsider, even though I thought I’d made it very clear to him why I needed to argue both.
After Len outlined—once again—his legalistic reasons for my arguing only reasonable doubt, I smiled derisively at my client. “Jennifer, you do want me to argue that you’re innocent, don’t you?” I said sarcastically.
“Well, I’d like to see what you’re going to say,” she countered.
“Ordinarily, Jennifer, I would show my argument to you. But not now. You’re only going to hear it, not see it,” I said sharply. “I never thought I’d see the day,” I added, raising my voice, “when I’d have to get the goddamn approval of my client to argue that she is innocent.”
Jennifer, blinking wildly, said nothing.
“Let’s go, Len,” I said as I stalked to the door, not wanting to spend any more time in the presence of our client.
In the car heading back to the city, Len and I discussed the issue more rationally. By the time we got back to the hotel, we had buried once and for all the innocence vs. reasonable doubt matter. But working on the case into the early-morning hours, I bristled whenever I thought of Jennifer’s conduct. I probably should have been more understanding. She was simply a lay person totally unschooled in the law who was consistently influenced in her thoughts by one of her lawyers, a fine lawyer at that.
The next morning, my bedside phone rang early.
It was an apologetic Jennifer. “Obviously, I have total confidence in how you’re going to argue the case, Vince. I was out of line last night. I’m sorry.”
BY EARLY Tuesday morning, the judge’s order had worked. The storm had ended, and the day was bright and clear.
We were set to put our character witnesses on the stand. At the low-rent hotel near the courthouse where we had put up all of these witnesses, and with Jennifer present, I conducted my final interview with Deborah Noland, an old friend of hers who had moved to Hawaii in 1972. We sat down together a few minutes after seven in the morning.
A petite woman in her thirties, Noland, her long, dark hair gathered in a bun, wore granny glasses and sandals. A mother of two, she worked on the Big Island for a counseling program that helped abused women.
In 1973—then “a kid of nineteen and pregnant”—Debbie and her boyfriend, unabashed hippies in search of an alternate lifestyle, had arrived on the Big Island. Mutual friends had written Buck and Jennifer’s names on a matchbook, and the couples ended up living together for a time on the two-acre parcel of rugged forest-land where Buck had helped his father build his cabin.
Although most of this background information would not come out in her testimony, I had accumulated pages of notes from my several telephone interviews with Noland. “I liked Jenny right away,” she told me. “She’s real easygoing—a loving person. She took good care of me, like a big sister or even a mother. She was a vegetarian at the time and she made sure I was eating right for my baby’s sake. She always kept busy around the place. Buck, I remember, spent a lot of time in bed, reading. One title sticks out in my mind: The Master Game. It was about getting your mind together. He read it over and over. He liked self-help and Zen books, too. And murder novels.” Eventually, she warmed up to the quieter Buck, too, despite some disturbing tendencies. “When he got mad, he would go out and shoot his gun. He never beat Jennifer, but later, after I worked with abused women, I realized that Buck had psychologically abused Jennifer and taken advantage of her kindness.”
In my final interview with Debbie that morning, I asked a question Judge King would probably sustain an objection to, but I needed to know the answer in case I decided to try to elicit it.
“Debbie, you witnessed the relationship between Jennifer and Buck. Do you think Buck had enough control over Jennifer to get her to go along with murder?”
Noland didn’t answer right away. In fact, her silence gradually became alarming.
I interrupted the long hiatus with a nervous chuckle. “God, that pause could bury us, Debbie. Don’t worry. I won’t be asking you that question.”
But Noland had completed her ruminations. “Jennifer is not that kind of person,” she said firmly. “She couldn’t kill anyone.”
Later, Jennifer explained that people in Hawaii speak and react slowly because they are “laid-back. They just aren’t as quick in their conversations as most of us are,” she said.
Native son Sam King, with his whiplash tongue, would have loved that gloss.
Before the jurors took their seats that morning, I advised Judge King that I wanted to introduce Buck Walker’s 1975 theft trial testimony about his activities on the all-important day of August 30, 1974. Because of Walker’s unavailability at this trial, I believed his testimony to be admissible under the “former testimony” exception to the hearsay rule. “The only hurdle that has to be negotiated, as I see it, is whether the testimony is relevant,” I told the court.
It was relevant, I went on, because it supported Jennifer’s testimony “that she was told by Buck Walker about the dinner invitation; i.e., she’s not saying that the dinner invitation was made by the Grahams, only that Buck told her it was. This previous testimony of Walker’s contravenes the prosecution’s position that the dinner invitation is a story that was concocted by both Miss Jenkins and Buck Walker.”
Enoki, determined to keep out Walker’s testimony, countered that the prosecutor in the boat-theft case did not cross-examine Walker about the issue of his activities on August 30, 1974; therefore, it did not meet the cross-examination requirement of the former testimony exception rule.
I quickly pointed out that the very language of the legal rule involved says that former testimony is introducible if the opposing side had an opportunity to cross-examine, as the prosecution did. Their failure to seize the opportunity was irrelevant.
Enoki wouldn’t let go. The “former testimony” exception also required a similar motive to cross-examine, he said. Since Walker’s testimony had been given in a theft trial, the aim of cross-examination would be different from that at this murder trial.
The prosecutor and I stood only a few feet apart, as tense and almost as physically close as boxers before the bell, as we staked out and defended our positions in front of the judge. Neither of us wanted to lose this one.
“The Advisory Notes to 804(b)(1) say that only a ‘substantial’ identity of issues is required to satisfy the requirement of a similar motive in cross-examination,” I said. “The issues don’t have to be identical. But actually, they are identical in this instance.”
“Yes,” the judge concurred thoughtfully, rubbing his chin. “Everybody was talking about theft at the theft trial, but everybody was thinking about murder. I think Mr. Bugliosi is right.”
The Jenkins jury would hear from Buck Walker in absentia.
After a short recess, the jury was called in and Debbie Noland drifted to the stand.
SINCE NEARLY everything Jennifer had
said or done after the Grahams’ disappearance pointed toward her guilt, I had been on a constant, intensive search for evidence, any evidence, that might help prove her innocence. Early on, I had decided to put on character evidence to that effect; namely, that her caring and physically passive nature would be unlikely to produce the violent act of murder. (In a related vein, although I found a federal case that would allow such evidence, United States v. Staggs, several phone calls to forensic psychiatrists confirmed that there is no test yet devised by the psychiatric community to determine whether or not someone is capable of a violent act, or likely or not to have committed such an act.)
Character evidence is the most indirect type of evidence that can be offered at a criminal trial, since none of it relates to the actual circumstances of the crime charged. The defense of “good character” in a criminal case dates back to the time of Charles II in the seventeenth century, but it is not a frequent defense at a criminal trial, and if handled clumsily, can be perceived by the jury as indicative of a weak case.
Jennifer had given me the names, addresses, and phone numbers of friends who could testify to her nonviolent character, and I was eventually able to reach and interview them all.
Len agreed that a character defense was a good idea in the abstract, but feared that the Government, in rebuttal, might be able to introduce all of Jennifer’s actions that showed bad character, including her theft conviction of the Sea Wind. I remembered from my days in the DA’s office, however, that the prosecution would be restricted under the law to presenting evidence bearing only on that particular character trait about which the defense witness testified. In this case, therefore, the Government could only present evidence that Jennifer was a violent person. As it turned out, Judge King gave the impression that he shared Len’s interpretation. But after I cited my supporting cases (Mitchelson v. United States; United States v. Curtis), Enoki himself acknowledged that my position was consistent with the law.
The main caveat I had with a character defense was the lurking danger that the Government might be able to find some evidence in Jennifer’s past indicating a violent nature. Such a revelation would not merely cancel out the testimony of our entire platoon of character witnesses. If someone, for instance, had seen Jennifer throw a broken bottle at someone’s head, this would be specific, affirmative evidence that would, understandably, weigh more heavily than all of our generalized character testimony. I warned Jennifer of the risks involved in a character defense and asked her repeatedly if she was absolutely sure there was no violent behavior the Government would be able to dredge up from her past. Anything at all, even slapping someone hard on the face, even a threat to be violent. Jennifer placidly assured me there was nothing.
On the phone, in writing, and finally in person, I reminded each of our character witnesses to confine their testimony to the issue of Jennifer’s being a nonviolent person. If they inadvertently strayed from this narrow path and testified, for instance, that Jennifer was a “nice” or “good” or “honest” person, or one with “high morals,” since these are general terms, virtually anything negative about Jennifer would be allowed in rebuttal. Thus, the door would swing wide open for the two petty-theft convictions, the conviction for the theft of the Sea Wind, and perhaps even the marijuana conviction. Fully aware, then, of the dangers inherent in a character defense, I nonetheless felt, in view of all of the other factors, that taking the risk was advisable.
With Debbie Noland, I began not with precise character-defense questions but by eliciting testimony from her that corroborated some very important points Jennifer would soon testify to. Noland alluded to certain “problems” she saw in the relationship between Jennifer and Buck, and I asked for illustrations.
“For one thing,” she said, “Buck had a thing for weapons. Guns, mostly. Jennifer just didn’t want the guns in the house. She didn’t want any part of that.”
“Would they argue about it?”
“Yes. They argued often about the same thing, the guns.”
“Was she able to get him to remove the guns from the house?”
“Yes, the guns were taken out of the house.”
I prodded her to go on.
“They were…totally different people.”
“In what ways?”
“Jennifer was peaceful, easygoing. She loved nature. She went to the beach a lot. She loved animals. Buck stayed in the house most of the time. And he had a firecracker personality. He was nice for one minute, and then he would explode on the spot.”
When I asked for examples, continuing with my “prosecution” of Buck, she said that if Buck and Jennifer were having a disagreement, Buck might get so angry that “he would just run outside and throw rocks at her van.”
“Was Buck kind of domineering over Jennifer?”
Debbie paused, as she had earlier that morning at the hotel, but, to my relief, soon answered clearly, “Yes.”
“Would you say you had a close relationship with Jennifer during this period of time?” I asked.
“Yes. I…I became very close to her,” she said demurely.
“Based on your knowledge of Jennifer and your association with her, do you have an opinion as to whether she’s a violent or nonviolent person?”
“Definitely a nonviolent person. Loving to animals, to people, mothering everybody. She’s so giving.”
Because of the likelihood of surprise and consumption of time, most courts permit character testimony relating to specific acts only on cross-examination, not direct. However, this was a gray area of the law (“not generally permissible” per Advisory Notes to Rule 405), and I intended to make an effort to slip in such specific testimony from Noland on my direct.
“What caused you to believe that she was nonviolent?”
“Are we getting into specific acts now?” an alert Judge King asked. “I thought you weren’t supposed to get into that.”
I didn’t respond, but swiftly took another tack with the witness. “Did she speak about nonviolence?”
“Yes, she—”
Enoki cut her off. “I’m not sure what the answer is going to be, but it could call for a statement about specific acts.”
Court: “Yes. I thought that what you were getting into was not permissible under the rule.”
“Well,” I said, “I think the bald declaration of the nonviolence certainly is helpful, but what caused the witness to form that opinion I think is important.”
When I stubbornly tried, yet a third time, to get into specific acts, Judge King said, with studied calm: “Mr. Bugliosi, we’re going to have a little problem with this. Because you and I both know the rule. It’s almost a formula. ‘Do you know the defendant?’ ‘Yes.’ ‘Do you have an opinion?’ ‘Yes.’ ‘What is that opinion?’ I’ll sustain the objection.”
A remarkably restrained Judge King was continuing to keep his tongue in check before the jury. I knew he would have roared at Buck Walker’s attorneys—and perhaps at me, if I hadn’t confronted him earlier in chambers—for blatantly trying to dance around a ruling of his two consecutive times.
Not once throughout the trial had Judge King indulged in a tantrum or in any other way belittled me or Len in open court. He had shown irritation with me a few times outside the presence of the jury, though he never seemed upset with Len. In and out of court, my co-counsel had a personality that seldom rubbed people the wrong way. It was sometimes difficult to recall that this nice-guy Weinglass had battled it out in court with crusty old Judge Julius Hoffman in the historic Chicago Seven conspiracy trial while a nation watched in fascination or partisan anger.
In any event, with or without specific acts, Noland’s testimony was decidedly helpful. The judge just wouldn’t let me put the icing on the cake.
On cross-examination, Enoki asked rhetorically, playing more to the twelve jurors than to the witness, “It’s your opinion then that in spite of her association with Mr. Walker and knowing the kind of person he was, Jennifer was still capable of being
a nonviolent person?”
“Definitely.” Debbie Noland’s tone was pleasingly decisive.
“I gather she also demonstrated,” Enoki went on, “as part of that character, a capacity to tolerate violence in other people.”
The judge sustained my objection, deeming Enoki’s question “a little philosophical.”
Our next witness, Rick Schulze, was a lawyer from the mainland who, within a year after moving to Honolulu in 1963, had made partner in the firm of Bill Quinn, a popular ex-governor. Schulze had left in 1970 to put up his shingle in tiny Kamuela—population 2,500—on the Big Island.
Schulze entered the courtroom attired in the colorful casual dress I’d come to expect of Hawaii residents—a lightweight summer sport coat, white open-weave shirt with playful orange tie, navy-blue slacks, and scuffed high-top desert shoes.
I first brought out that Schulze had served four years as a district judge in Honolulu and had been elected to the state’s 1968 constitutional convention, chairing the committee charged with reapportioning political districts.
He recalled meeting Jennifer in 1970, when she was staying at a mutual friend’s house.
“After we met, I saw Jennifer weekly throughout 1970. In December of that year, I married my second wife, and Jennifer was among a few friends who came and stayed at our house for the week before the wedding to help us with all the preparations. After that, Jennifer would visit us once a month or so, and my wife and I would visit her at the cabin in Mountain View.”