“When you were with Jennifer, did you have conversations with her, philosophical conversations?” I asked.
“Yes, we talked in deep ways, conversations about very profound things. About how we feel about life. Jennifer and I had a very close relationship.”
“How would you describe Jennifer to the jury?”
At this point, as if on cue, Schulze turned his head toward the jury and made eye contact with several of the people who would decide her fate. “Jennifer is a very unusual person,” he said earnestly. “She is a very giving person. She was always concerned with helping other people. She didn’t pay a lot of attention to her own problems. She is a very sound, reasonable person.”
“Did you ever have an argument with Jennifer?” I asked, for a reason that would become clear. I was successfully skirting Judge King’s “formula.”
“Well, I don’t know if it…was an argument. But there was an occasion when Jennifer and I certainly had a meeting of wills.”
“Would you describe that to the jury?”
“Jennifer lived on the other side of the island, maybe sixty or seventy miles from us. I had just built a new house—it would have been in 1973—and she came to visit, bringing her little dog, Puffer. Jennifer is very, very close to her dog. Puffer went everywhere with Jennifer. We had a long discussion over whether Puffer could come into our house to sleep with Jennifer that night. It seems silly now. But I never allowed my dog to come in the house, and I thought he would feel really bad if her dog came into the house. So, I wouldn’t let her bring Puffer in. Jennifer felt that she couldn’t possibly leave Puffer outside overnight.”
“What eventually happened?” I asked.
“What happened was that Jennifer finally cried, and went out and slept in the car with her dog.”
“Overnight?”
“Overnight.”
I felt that Jennifer’s handling of the situation was surely revealing.
I next asked Schulze if he was aware of any of the men in Jennifer’s life, and he said he’d met two of her boyfriends.
“Did these two men fall into a pattern?”
“Yes, they did.”
“In what way?”
“Contrary to Jennifer’s nature, her boyfriends tended to be scruffy, coarse men. Crude—crude men.”
“Did you find this to be incompatible with her nature?”
“On the surface, you would think so. But underneath, Jennifer is a helper of people. She thought she could save these fellows.”
“Give them some type of spiritual guidance, in other words?”
“She was very much a spiritual counselor, yes.”
“What type of person was Buck Walker?” I asked, continuing my prosecution of him.
“Buck Walker was a burly kind of guy, coarse, crude, I thought. He was also very paranoid. His idea of other people was that they were all out to get him. He was always talking in terms of defending himself against others who were going to come and get him. And he had a lot of fascination with weapons. He talked about them a lot. And he had them around.”
“Do you recall telling me he was the type of person who, if he joined a group, would join one like the Minutemen?”
“Yes,” Schulze said. “That would be his kind of group.”
“Did Jennifer indicate to you how she felt about Buck?”
“Yes.”
“What did she say?”
“Like other friends of Jennifer’s, I kept insisting that she get rid of this guy. But she saw some spark of goodness in him, something in there that she thought with the proper love and acceptance could be nurtured in him and brought out.”
“Mr. Schulze, based on your association with Jennifer, do you have an opinion as to whether she’s a violent or a nonviolent person?”
“Yes, I do.”
“And what is that opinion?”
“In my judgment, Jennifer is very clearly a nonviolent person. I have never seen her exhibit violence in any form. And my conversations with her have been in great depth, and I have found that deep down she has a very marked respect and love for humanity in general, and for individuals in particular. I cannot imagine Jennifer involved in violence in any way.”
I paused. This was the heart of our character defense. I cannot imagine Jennifer involved in violence in any way.
“Thank you, Mr. Schulze. No further questions.”
Schroeder began his cross-examination in textbook fashion. “Mr. Schulze, I gather you base your opinion as to Jennifer’s character for nonviolence on the fact you never witnessed any acts of violence on her part, is that correct?”
“In part, that’s correct.”
“And obviously you never observed Jennifer under circumstances of deprivation or desperation. Would that be correct?”
“Your honor,” I interrupted, “the question assumes a fact not in evidence. It’s an overcharacterization of the evidence.”
“Yes,” the judge said, then amplified to Schroeder: “You used words which are really your conclusion. I’ll sustain the objection, and the jury should ignore the question.”
Schroeder studied his notepad for a moment, reloading.
“Now, Mr. Schulze, during the times that you associated with Buck and Jennifer, did you ever have occasion to find any aspect of Buck’s demeanor and personality objectionable?”
“Oh, yes.”
“He talked of violence to the extent that you became weary of it?”
“Yes.”
I sensed that Schroeder, smooth and businesslike as always, was setting Schulze up for something, but I couldn’t figure out what.
“Among the people who knew Buck, was anyone afraid of him?” the prosecutor asked blandly.
“Yes. Jennifer’s friends began to shun her—or not to shun her so much as just not wanting her around if Buck was with her. And my wife and I—we became that way too, a little.”
At that moment, Schroeder strode over to the defense table, handed me a document with a flourish, and asked that it be marked as a Government exhibit. It was a January 7, 1975, letter from Schulze to, of all people, Judge King. I had never seen it before, nor did I know of its existence. I read it quickly. It spoke glowingly of Buck, saying, among other things, that Schulze did not consider him a violent person. My witness had written this testimonial on the eve of Judge King’s sentencing of Walker for the boat theft. I asked for a recess.
With the jurors out of the room, I pointed out that under the law of discovery the Government should have furnished the defense with a copy of the letter before trial. (In that case, I would have brought it out myself on direct examination to reduce its impact.) The Government’s attempt to introduce the letter thoroughly confused the judge.
“I’ve read the letter, Mr. Schroeder,” Judge King began, “and I can’t understand why you want to use it. As a matter of fact, I can’t understand why the defense would possibly object to you using it.”
“For the reason Mr. Bugliosi objects to it,” Schroeder said quite reasonably, “we want it in.”
“It’s incredible,” the judge said. “Do you really want to prove that everything bad that’s come out about Walker was untrue?”
Schroeder: “Well, your honor, the witness diametrically contradicted himself.”
Court: “I understand that. But now you want to prove that Buck is not a violent person? Is that what you’re trying to prove?”
Schroeder: “We want to demonstrate the standards of this witness’s ability to assess violence. This letter was a glowing tribute to Mr. Walker, and how Mr. Walker was nonviolent.”
Court: “I understand that. And that’s why I can’t understand, for the life of me, why you possibly want it in. And I can’t understand, for the life of me, why the defense objects to it. Maybe I’m operating in a never-never land where rational thought is irrelevant.”
Judge King closed his eyes and pinched the bridge of his nose like a man who has just seen double. Actually, he had everything in reverse when he ass
umed the Government would want to prove that Buck was violent, and we would want to prove he was nonviolent. Obviously, the Government would benefit by showing that Walker was nonviolent (although, as would soon become clear, this was not the reason they wanted to introduce the letter), for this would increase the likelihood of his not having committed the murders by himself—that is, increase the likelihood of Jennifer’s involvement. Conversely, I wanted to show that Buck was violent, that he had it within himself to murder Mac and Muff alone. But the judge and the Government would have to wait until my summation to learn this reasoning of mine. For now, I made a merely perfunctory objection, which the judge overruled.
When the jury returned, Schroeder sped to his point. “Mr. Schulze, did you write a letter to this court on January 7, 1975?” he asked, spoiling for a clash with the witness he felt he couldn’t lose.
“Yes,” said the witness.
As Schroeder savored the words of the letter he read aloud, Schulze verified having written all of them, including the lines “I have never had occasion to find any aspect of Buck’s demeanor or personality objectionable…. Whenever I have seen him in the company of others, he has always been courteous and respectful of their desires.”
“In your letter, did you write that you had never seen any indication that Buck was violent or even that he was particularly aggressive?”
“I did say that.”
“Did you also say, ‘Among this group [people the witness knew who also knew Buck], Buck had no reputation for violence that I am aware of’?”
“Counselor, I said in the letter, and I repeat here, that I have no knowledge of violent acts by Buck,” Schulze said, clearly having lost some altitude. “He was always courteous with me and always respectful. And whenever I saw him, he was that way. I never actually saw him engage in a violent act or even a very aggressive act.”
“But you were apprehensive of him?”
“No, counselor, I was weary of him. I tired of his paranoia, his attitude that other people had existence only, really, to hurt him in some way. But I never felt any personal apprehensions about his presence.”
When Schulze added that many things had happened since he wrote the letter to cause him “to look back on the letter with a small amount of embarrassment,” Schroeder interjected, “The event you are referring to would be his murder conviction?”
I was heartened by the nature of the question, certain that Schulze could reap advantage from it.
“Yes, and I believe he escaped from custody at some time,” the witness responded. “And I had begun to hear lots of stories that there may have been some aspects of his character I wasn’t aware of or, at least, weren’t manifest at that time.”
Inadvertently, the Government was aiding my effort to shock the jury with Buck Walker’s loathsome background. Now they knew that he’d escaped from custody, a fact I had intended to try to elicit from Jennifer over a predictable objection from the prosecution.
Schroeder now tried to turn the screw on my witness. “And just as you once vouched for Buck’s character for nonviolence, you are now appearing here today to vouch for Jennifer’s character for nonviolence.”
Schulze folded his arms across his chest. “Well, it’s not exactly the same because I’m here in San Francisco in person under oath in this courtroom testifying for Jennifer Jenkins. And this letter I wrote I did so at someone’s request. Maybe Jennifer’s or maybe Buck’s lawyer’s—I don’t remember. There is a difference in the magnitude between the two, it seems to me.”
“So, you would say that Jennifer is more nonviolent than Buck was nonviolent?” Sarcasm, in small doses, can be effective.
“There are no traits in Jennifer that indicate violence.”
“But you were confident, yet, that Buck was nonviolent as well?”
“Somewhat.”
Judge King was getting testy. “Haven’t we exhausted this subject, Mr. Schroeder, please?”
Schroeder instantly realized that he had nothing further.
During this byplay, I discovered by careful rereading that Schulze’s letter was not entirely a glowing tribute to Buck; in fact, the lawyer had set down some observations that were more in keeping with his testimony this day.
Thus, on redirect, I could ask, “Did you say on page two of your letter to the judge that ‘Buck is big and occasionally looks mean and people speak about this’?”
“Oh, yes, I did.”
Our next witness looked as if she’d been born in the same 1960s time capsule with Debbie Noland. Leilah Burns, like her husband, Donald, still favored floppy sandals, peace symbols, and ponchos. The Burnses were a pleasant couple, soft-spoken, sensitive, and peaceful. Both were completely convinced that their good friend and soulmate Jennifer had had nothing to do with the disappearance and murder of the Grahams. I had originally planned to call them both, but Len cautioned that if we called too many character witnesses, the jury might suspect we were relying too heavily on this line of defense. Len’s observation made sense, so we called only Leilah as a witness.
On the stand, Leilah told Weinglass that she and her husband had lived in Hawaii for fourteen years on a sailboat moored permanently at Oahu’s Keehi Lagoon. She had known Jennifer ever since the day in early 1974 when the Iola sailed into Keehi. Jennifer and Buck had stayed there for five days, Burns said, and the two women, hitting it off from the start, visited daily. The next time they had seen each other was when Leilah visited Jennifer in jail after her arrest. After Jennifer made bail, she came to live with the Burnses and their two young children (then ages four and seven) on their boat for eight months. It was quite long enough for Leilah Burns to form a strong opinion about Jennifer’s character. “In my view,” Leilah told the court and jury, “Jennifer is a very gentle, loving, caring, and considerate person. She’s not capable of being violent.”*
Way back in 1974, when Jennifer was first arrested and Leilah Burns was interviewed by the FBI, she had remarked that she could vouch for Jennifer’s good character. In answer to Len’s open-ended question about how she could have had such a strong feeling about Jennifer after knowing her for only five days, she responded, “I got very close to her. I really felt she was a good person.”
I winced inwardly. Conceivably, the very broad term “good person” could give the Government license to bring out all of Jennifer’s previous misdeeds.
Enoki came forward for cross-examination. “Mrs. Burns, I gather you would agree with the proposition that Jennifer is an intelligent person?”
“Yes.”
“Did you, in fact, tell the FBI that Buck appeared to be the muscle in the relationship and Jennifer was the brains?”
“No, I did not.”
“Did you say words to that effect?”
“I can’t even imagine it being interpreted to that effect. I did not know Buck.”
“You’d never met Buck?”
“I had met Buck one day. He came on our boat and spent a couple of hours and really, I talked to Jennifer the whole time.”
“You don’t dispute that Jennifer was the more intelligent, or appeared to you to be the more intelligent of the two, do you?”
“No, I don’t dispute that,” Leilah said. “But I honestly could not say that because I don’t know Buck.”
“You’ve never seen Jennifer in a situation where she was in a remote area in need of food, have you?”
“No.”
“You will admit, Mrs. Burns, that some people who are nonviolent in some situations can react with violence under other situations?”
“I imagine so.”
“Now, in response to one of Mr. Weinglass’s questions, did you describe Jennifer as being a good person?”
Enoki had spotted the opening.
“Yes.”
“Okay. Did you mean to imply by this that she was an honest person also, in your opinion?”
Although Judge King had not relaxed his inane rule that only the lawyer who called a witness could object to qu
estions on cross, I wasn’t about to abide by it. In the time it would take me to advise Len to object, even if it was only a split second, the witness could have already answered. Enoki knew the answer would logically be that Mrs. Burns felt her friend was honest. He was maneuvering, obviously, to bring up Jennifer’s three prior theft convictions on the rationale that honest people don’t steal.
“Objection,” I immediately blurted out. “Beyond the scope of direct examination.”
The judge scowled at me. “You have Mr. Weinglass right next to you to make the objection,” he said.
“I’ll join in the objection,” Len quickly said.
Court: “Mr. Enoki, I’m going to sustain the objection to that. She was called for a very limited purpose.”
“Then I would request that her testimony relating to Jennifer Jenkins as being a ‘good person’ be stricken,” Enoki said, “because I am not allowed to cross-examine on what that term means to the witness.”
Judge King reminded the prosecutor, a shade curtly, that he had already sustained my objection.
But Enoki was undeterred. An experienced trial lawyer, he knew there is almost always another way to skin a cat. Wheeling back to the witness, he asked, “Have you become aware of any information that you know personally, or that you have been told of from other people, that would be inconsistent with Jennifer being a good person?”
I knew exactly where Enoki was going. It was an old prosecution ploy. If the witness had answered no, which was predictable, Enoki’s next question would have been automatic: “If you had heard or been told that Jennifer had three times been convicted of theft, would you still feel she was a good person?” All of Jennifer’s damaging past would lie before the jury.
Pressing my luck, perhaps, I immediately objected again. “It’s too broad, your honor. Also, it’s beyond the scope of direct.”
The court again sustained my objection. “She wasn’t called to testify that Jennifer was a good person,” Judge King admonished Enoki.
“I can’t help what she said,” Enoki retorted. “I didn’t ask that question, your honor. It came out in her answer to Mr. Weinglass’s question.”
“Let me help you out,” the judge exploded in a burst of impatience new and no doubt startling to this jury. Turning to Leilah Burns, the judge asked more genially: “What do you mean by ‘good person’?”