“I don’t give a damn what someone says about you in Chicago or some judge in 1893 or 1905 has to say,” Judge King barked. “You’ll have five hours. Not a minute more.”
I informed Judge King that although I had had disputes with judges on the issue in the past, in the end, no judge had ever restricted my time in summation.
“Baloney!” he bellowed.
“Are you calling me a liar, judge?”
“Mr. Bugliosi,” he said, visibly controlling himself, “I’ve already ruled.”
I had no doubt that Judge King was finally getting even, in his way, for what he perceived as my disrespectful confrontation with him at the beginning of the trial. He had come a long way from the day he had jested that the appellate courts wouldn’t dare reverse a conviction of mine, but he had held his tongue before the jury, and up until now, that was all that mattered.
I now wondered if I would end up paying a higher price in the long run for my challenge to Judge King’s authority.
MONDAY MORNING, FEBRUARY 23, 1986
THE GOVERNMENT would open this morning with its summation, and I would follow after lunch. If by the end of the day I was not at the midway point, my plan was to have Jennifer personally intervene with the judge. On the trial record, she would state that she wanted me to make every single argument on her behalf that I felt was needed. Most judges would probably not deny such a request from a defendant, but I was not convinced King would yield to Jennifer’s plea. Over the weekend I had reluctantly excised about an hour’s worth of summation. While doing so, I uttered more than one profanity (although I had to concede that other than the time limitation on summation, King had handled the trial well).
What if, despite my cuts, I ran past five hours and Judge King strictly held me to the five-hour limitation? Should I continue to talk, forcing the judge to look like a fool in front of the jury for insisting that I cease talking when it was obvious that I was building logically to my peroration?
When the jurors entered the box shortly after 9:30 A.M., Elliot Enoki, his left hand in his suit coat pocket and a pencil in his right hand, was already at the podium, primed to make his opening argument for the Government.
“May I proceed?” Enoki asked.
“You may,” said the judge.
Speaking in a low-pitched voice with little emphasis, Enoki explained that first-degree murder required not only malice aforethought but premeditation. “It is for you to determine whether in the circumstances of this case, the killing took place with premeditation.”
Enoki stayed with his focus—obvious as early as voir dire—that Buck Walker murdered Muff Graham and Jennifer helped him, or perhaps even instigated the murder.
“The law imposes responsibility in a murder case on more than just the person who does the actual killing. You don’t escape the grasp of the law by merely letting someone else perform the crime of which you are a part. In fact, an accomplice does not have to even be present at the scene of the crime or even know all the details of how the crime is to be committed. In this case, you can find Jennifer Jenkins guilty if she aided and abetted Mr. Walker in any way in murdering Mrs. Graham.” That would include, Enoki pointed out, her “inducing” or even merely “counseling” Walker.
“Now, the judge will instruct you that the law does not view circumstantial evidence as having any less weight or value than direct evidence.”
He was approaching the legal heart of the Government’s case. “The concept of circumstantial evidence is an important one for the prosecution, since quite obviously we have no eyewitnesses to any killing. However, it is our position that the circumstantial evidence in this case leads to the conclusion that Jennifer Jenkins is criminally responsible for the murder of Eleanor Graham on Palmyra Island.”
Because of the “most unique circumstances of the case,” Enoki asked who else but Buck Walker and Jennifer Jenkins could possibly have committed the murder. “There was no one else there,” he said pointedly.
Enoki quoted me as saying that Walker was “the kind of guy you wouldn’t want to meet in a dark alley,” but reminded the jury that Jennifer never saw her lover in that light. “She lived with him for more than a year prior to the trip to Palmyra. She knew he was on parole. She knew he had been arrested on drug charges. She knew he carried guns. She agreed to help him escape from those drug charges, even though it meant breaking the law herself. So, we are talking about a woman who not only had no hesitancy about associating with an ex-convict, and a person on the run from a pending prison sentence, but she actually assisted him in doing this.
“She devoted her money, her time, and even her labor in preparing the craft they used to escape, the Iola. She was willing to sail off with him into one thousand miles of ocean without even knowing how to navigate. So, we’re talking about an adventurous woman, one who was clearly willing to take a lot of chances with Mr. Walker. And she appeared to be attracted to those same qualities that caused others to be alarmed about him.
“The converse is likewise true. Mr. Walker thought a lot about Miss Jenkins. He knew she could turn him in at any given time, yet he was willing to take the same voyage off into parts unknown with only her as his companion.”
Reminding the jury what kind of people Mac and Muff Graham were, Enoki said, “If you were to pick two couples that would be the least likely to get along on a deserted island, you couldn’t get much further apart than these two couples. The one major identical characteristic is they both wanted to be on Palmyra alone. And that served to make them even further apart. Because they resented each other’s presence.”
Enoki conceded that some evidence proved interaction between the two couples, but added: “No one ever saw Miss Jenkins or Mr. Walker aboard the Sea Wind. For all of Miss Jenkin’s claims of interaction with the Grahams, after July you will find in her diary that there is no reference to her or Mr. Walker being aboard the Sea Wind.”
After reminding the jury of Muff’s being upset when Don Stevens and Bill Larson invited Jennifer to go on an island outing with the Grahams, Enoki moved on to Jennifer and Buck’s food situation. They were low on supplies “from the outset,” he said; “the evidence is clear they were facing a severe food shortage. There is no doubt she told Tom Wolfe when he was there—and he left the island on August 17th—that she was sick and tired of eating coconuts and fish. Certainly it was not by choice that she was reduced to this diet.”
Enoki suggested that it would have been harder for Buck and Jennifer to live off the land than for someone like the Grahams, whose motorized dinghy enabled them to troll for fish.
The prosecutor struck at the issue of the Iola’s unseaworthiness. He summarized the testimony of various visitors to Palmyra who had noticed cracks in the fiberglassed hull of the Iola and heard regular pumping of the boat’s bilge.
“There’s a big difference between thinking that your boat might make it to another island, and knowing that your boat is going to make it. The difference really is that your life hangs in the balance. We’re talking about one hundred and seventy-five miles of ocean between Palmyra and Fanning, and two people who had all kinds of problems sailing with the wind and with the current down from Hawaii. In fact, they took on so much water during their trip to Palmyra, they had to pump every day after they got there.
“And so you have to put yourself in the position of Miss Jenkins and Mr. Walker, looking at that trip, looking at the wide expanse of water, listening to people warn them—Mr. Wheeler told them it was an impossible trip—a trip that was against the wind and against the current. Miss Jenkins knew quite well how dangerous it would be to try to sail to Fanning. She even told the Leonards that she’d never leave Palmyra on the Iola. That’s the degree of confidence she had in the Iola.
“I would like you to keep in mind what is really the bottom line of this never wanting to leave Palmyra on the Iola question. She never did leave Palmyra on the Iola. And that is, after all, what really brings us here in this trial. Jenkins and Walker
not wanting to leave Palmyra on the Iola, and having left it on another boat.”
Enoki reminded the jurors of Jennifer’s “curious diary entry” of August 5, 1974, just weeks before the Grahams’ disappearance, that she and Mr. Walker spent the night “drooling and dreaming” about their next boat.
Enoki next discussed the all-important cake-truce testimony, reminding the jury what Curt Shoemaker had said about his last communication with the Sea Wind on August 28. “Not only was the visit unexpected by the Grahams, but it’s in the nighttime on top of it. There was a reference from Mac of a ‘truce.’ Now, this contradicts all of Miss Jenkins’s claims that there was nothing but a normal relationship going on between these two couples. The word ‘truce’ implies not the rosy picture that was painted by Jennifer Jenkins.
“You recall Tom Wolfe saying that Miss Jenkins said the two couples were not really getting along—or his impression was that they were not really getting along and not talking. The Leonards testified they left the island due to the situation they saw there. And recall, finally, Muff Graham saying she feared she wouldn’t be leaving Palmyra alive when she talked to Evelyn Leonard on their departure. Muff was crying at the time. It’s not the picture of the cordial relationship that Miss Jenkins told you about.” Enoki pointed out that after this unexpected nighttime visit to the Sea Wind, the Grahams were never heard from or seen again.
Enoki, in effect, had just told the jury he believed that Mac and Muff Graham had been murdered on August 28, 1974. If this was true, then inferentially my client was a murderer.
He turned to Jennifer’s diary entry for that date. “There is absolutely no reference to a visit to the Sea Wind,” he said. “In fact, there is not even a reference to the Grahams, or to her baking on August 28th. Nothing. I would submit to you that it’s a pretty significant event to be taking not only this cake over to the Grahams, but both of them are going over to the Sea Wind. So, it’s not like it’s an idle visit, where she happens to wander over by herself.
“Here she is baking a cake for the Grahams, when she has been begging for flour most of the summer. And the week prior to this she is eating nothing but coconuts for at least three days. And she’s also giving this food, this cake, to people who didn’t even need it, when about two weeks prior to this, she was down to ten meals plus rice. And she is now about to go on a voyage to Fanning, for which she needs all the supplies she can keep. This is not at all consistent with merely repaying the Grahams for the mere borrowing of the Fanning chart. You’ll recall that’s the only thing she could think of as a conceivable reason.
“But baking a cake is one hundred percent consistent with getting on board the Sea Wind when you’ve been having problems with the occupants. It’s kind of like bringing a peace offering, in appearance. When in reality, this turned out to be, I would submit, more like a Trojan Horse to get aboard the Sea Wind.
“If she had visited the Grahams that day after having had difficulties with them, or even if she just baked a cake for them, the event would have been more significant to her than writing down that Mr. Walker was husking coconuts, or the other insignificant events she has written down for August 28th.”
Enoki flat out did not believe any of Jennifer’s diary entries for August 30, “the day Miss Jenkins says the Grahams disappeared. There’s nothing to establish that date as the date of the Grahams’ disappearance, except her testimony and her diary! And I submit to you that both of those things are false. There is nothing that would have prevented her from writing the entries in the diary after August 28th—after killing the Grahams. How much better a way to avoid detection than to falsify succeeding entries?
“There’s an absence of information in these succeeding entries about critical points that she says occurred or in fact did occur. There’s nothing about the Sea Wind or about taking the Sea Wind. Remember, she says she disagreed vehemently with Mr. Walker, and argued with him about it. Yet, there’s nothing about that in the diary.
“There’s also nothing in her diary about the Iola, and what happened to her. There’s nothing in it about not notifying the authorities. Recall that she said Mr. Walker told her not to do that. Remember, she called the diary a kind of journal of events, yet there’s not a word about any of these things. And most absurd of all, she claims that the reason she stopped keeping this diary was because it really was the log of the Iola, and the Iola sank on September 11th. The last entry is September 10th. And yet, there’s not a single word about what happened to the Iola.”
Enoki now reached his conclusion on this issue. “This diary was written to cover up a crime. But it isn’t just the crime of theft that’s being covered. It’s also the crime of murder.”
He next started summarizing the scientific and medical evidence in the case, arguing that it proved Muff did not die as a result of a drowning or shark attack, as Jennifer said she had assumed, but was murdered. Much of this recapitulated the prosecutor’s summation at the Buck Walker trial.
“In order to reconcile,” Enoki then went on, “this scientific evidence, and the other evidence in the case, with Miss Jenkins’s diary and with her testimony, let’s look at what Mr. Walker has to do all by himself, without any assistance, without being observed, and without any sound that Miss Jenkins can hear, except for the sound of the Zodiac going away from the Sea Wind.
“First of all,” the sincere but unemotional prosecutor continued, with no attempt at drama in his voice or gestures, “he has to find both Grahams. Then he has to kill them both. Then he has to try and burn Eleanor Graham’s head with an acetylene torch that he would have to get from Mac’s workshop. He has to get at least one, and undoubtedly two, aluminum containers out of the old rescue boat that, in 1974, was still in the warehouse.
“Then he would have to take at least one of these containers from the warehouse to wherever he’s killed Eleanor Graham. And I would submit he has to do that with Mac Graham as well. He would then have to find some wires to wrap around the containers so the lid wouldn’t just pop off when he dropped them into the water. Then he’d have to weight each container down so it would sink.
“Following that, he has to burn Muff Graham’s body in the container for, we were told by an expert, at least fifteen to twenty minutes.
“He then has to get both containers down to the lagoon and load them into the Zodiac by himself with the bodies inside. We’re talking about carrying that container with a one-hundred-and-forty-pound woman in it, another with a one-hundred-and-eighty-pound man inside it. They don’t call that dead weight for lack of any reason. It’s just dead weight in that container. And loading it into a soft-sided rubber Zodiac is not like loading it into a van or bus or something that’s parked there. We’re talking about a boat.”
Never pausing for effect, Enoki went on to say that Walker would then have had to take the dinghy out into the lagoon, dump the bodies overboard, return to shore—without Miss Jenkins hearing the Zodiac motor—beach the dinghy upside down, detach the gas tank, and walk half a mile back to the bath area, where Jennifer said she saw him that afternoon.
“In addition, if either of the killings were done on the Sea Wind, he would have to, of course, clean up whatever evidence was left behind, because there was nothing unusual aboard the boat, according to Miss Jenkins, when she arrived.”
Enoki argued that if Walker had caught up with the Grahams and murdered them on shore, then he would have had to break into the Sea Wind to set up the drinks Jennifer said were there when she arrived.
“And,” the prosecutor added, “he’s also, according to Miss Jenkins, making appearances periodically throughout the day at the Iola. During this time, he would have to have done all of this not only without Miss Jenkins seeing him do anything, but without her seeing any smoke or without noticing any evidence about him, such as blood, injuries of any kind, gasoline. She didn’t notice anything.
“And he supposedly decides to kill two people and hide it from his girlfriend, when she could take the Iol
a dinghy ashore at any time and catch him in the act. This person, who supposedly thought enough in advance to go and set up the drinks on the Sea Wind, didn’t think about taking the dinghy away from her.” Her story just didn’t add up, the prosecutor said.
“But worst of all about her version of what happened, she claims she never even had any suspicions of foul play. Yet, she knew Mr. Walker was convicted of armed robbery. She knew he loved to carry guns. He had a ‘firecracker personality’ that could explode on the spot. She knew he was arrested with a loaded gun in the drug deal. She knew he kept booby traps when they lived on the Big Island. Yet her testimony is she did not suspect any foul play.”
The prosecutor looked directly at Jennifer, not a flicker of feeling on his face. “No one has described her as naive. She was twenty-eight at the time, not sixteen or eighteen or twenty. She has been described as intelligent, and she appeared to be intelligent on the witness stand. How could any intelligent person not suspect foul play with a man of Mr. Walker’s background? And yet that’s what she would have you believe. She suspected nothing.
“I submit to you that her story about what happened in the Grahams’ disappearance, and what happened on Palmyra, was just the beginning of a continuous stream of lies about the events on Palmyra that she told, and has told, ever since she left that island.”
Enoki’s tone of voice and whole demeanor seemed to be: “We all know that she’s guilty of the murders, and has told one lie after another in the hope that you won’t see the obvious.” He condensed the stream of lies: “Miss Jenkins tells Lorraine Wollen she got the boat from a man who was tired of doing maintenance on it after fourteen years. It got even worse when she gave her statements,” Enoki charged. “She told Bernard Leonard they found the Zodiac near Paradise Island. Her defense is that Mr. Leonard is mistaken about that. But there is no misunderstanding about the other lie she told Bernard Leonard: that she and Walker tried to sail the Iola off Palmyra, but it ran aground in the channel, so they went back and they got the Sea Wind. Leonard tells her it’s not believable they would have left on the Iola with the Sea Wind sitting there, so she changes her story, and instead tries to make it more believable. When she spoke to Agent Shishido a few minutes later, instead of sailing the Iola out and running up on the reef, now it’s that they were towing it out, and it got hung up on the reef. When she told Agent Shishido about the Iola winding up on the reef, she had forgotten she took these photos of the Iola on the open sea. When she gets to her theft trial, she still says the Iola wound up on the reef, and she denied taking the photographs. Another lie.”