It is pure folly to expect a lay jury to be less confused than the U.S. Supreme Court.
See also Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis (1927): “At the trial, the only issue was—were Sacco and Vanzetti two of the assailants of Parmenter and Berardelli, or were they not? This was the beginning and the end of the inquiry at the trial, and the end of any judgment now on the guilt or innocence of these men. Every other issue is relevant only as it helps to answer that central question.”
The above is not to suggest that the highest court in the land and legal scholars do not have any grasp of the distinction between “proving guilt beyond a reasonable doubt” and “determining guilt or innocence.” What it does suggest is that this grasp is fuzzy, unarticulated, visceral, and not sufficiently conceptualized in their minds to enable or compel them to speak or write correctly on the subject.
p. 580: My failure to explore Jennifer’s relationship with Joe Buffalo.
Jennifer had told me that after her conviction for the theft of the Sea Wind in June of 1975 (and while she was on bail pending her appeal) she lived for a few months communally in a large old house in Puako on the Big Island with one Mama Lee (a singer at the Sandbox Bar), Uncle Albert (a seventy-year-old man Mama Lee looked after), a man named Joey who she said had a “criminal background” (“Joey” turned out to be Joe Buffalo, the “friend” she told me she received the letter from before her murder trial), and “others.”
p. 612: “[If Shoemaker] never told anyone about it for many years, we can almost…assume it never happened.”
It seems that Shoemaker did tell someone (though it is not known whom) about the cake-truce incident as far back as 1981; still, however, seven years after it allegedly happened. An article on the Palmyra murder case in the New York Times on July 13, 1981, titled “Mystery on Pacific Atoll Leads to Murder Charge,” stated that Shoemaker testified before the grand jury that indicted Buck and Jennifer that Mac told him, “I guess they’re going to declare a truce. They’re bringing over a cake tonight.” Although Shoemaker did not testify before the grand jury, nor, prior to the Walker trial, in any legal proceeding about the cake-truce incident, the reporter, now retired, obviously got this information from someone, although he no longer recalls who told him.
p. 655: First explaining away the negative evidence.
If a lawyer starts his argument on the positive part of his case without having first attempted to eliminate the negative, at the very moment he is making these arguments the jury is thinking, But what about this and that? and the force of his argument will be substantially diluted. Moreover, to end his argument thereafter on the defensive, trying to mitigate or explain away the negative evidence, is very poor strategy. One should always end on an affirmative note.
p. 677: “under that [circumstantial evidence] instruction Judge King will give you, Jennifer is entitled to a not-guilty verdict.”
I had pointed out to the jury that even if, in a particular case, the evidence did not reasonably permit any conclusion of innocence, and the only reasonable conclusion was that of guilt, by itself even that would not be enough for a guilty verdict. The conclusion of guilt would still have to also be beyond a reasonable doubt.
p. 684: “[Enoki] seemed a little confused in what was now the last inning of an important ball game.”
I had seen other prosecutors make the same mistake—hastily scratching out their rebuttal while defense counsel is arguing, instead of preparing it well beforehand. Since the prosecutor knows all the weaknesses in his case, he should anticipate every conceivable defense argument attacking those weaknesses and prepare his response long before the defense attorney rises for summation. In fact, the prosecutor’s rebuttal should be the most powerful argument he makes in the case.
VINCENT BUGLIOSI received his degree from the UCLA Law School, where he was president of his class. Of 106 felony jury trials, he lost only one case. His most famous trial as a prosecutor for the Los Angeles District Attorney’s office was the Charles Manson case, which became the basis of his bestselling book Helter Skelter. Both Helter Skelter and Till Death Us Do Part won Edgar Allan Poe Awards for best true crime book of the year. Mr. Bugliosi lives with his wife, Gail, in Los Angeles, where he is in private practice. He is currently working on a book about the assassination of President John F. Kennedy.
BRUCE B. HENDERSON, who has taught at the USC School of Journalism, is the author and coauthor of many works of nonfiction, including Empire of Deceit and his latest, True North. Mr. Henderson lives in Sebastopol, California.
*FBI agents in Hawaii would be unwise to wear dark suits favored by agents in other locales. Two years earlier, an FBI team—including Honolulu’s special agent in charge—was staking out a dangerous felon in a crowded public place when two elderly women walked by and glanced at the conservative suits. One lady remarked to her companion: “Something bad must be happening for the FBI to be here.” A revised dress-code policy was handed down by the SAC the next day. In the future, all agents in Hawaii were to wear aloha shirts so as to blend in anonymously with the bright-plumaged tourists and local residents.
*Under the U.S. Code, “interstate” transportation of stolen property occurs not only when the property is transported from one state to another, but from a U.S. possession, such as Palmyra, to a state.
*After completing a six-month impoundment to ensure they were disease-free, Popolo and Sista were separately adopted in May 1975 by Oahu families.
*“Jumping bail.”
*A friend of Jennifer’s subsequently took them to the Honolulu jail and attempted to give them to her. An alert jail matron confiscated the prints and turned them over to the FBI.
†There were more pictures on the roll, but this jury would not see them. Cal Shishido had, of course, seen all of the photos, several of them being nude pictures of Jennifer and Buck in various poses aboard the Sea Wind. Shishido had to deal with a particularly sordid rumor going the rounds about the explicit nature of some of them. Agents and lawyers, time and again, had sidled up to him and begged to see the pictures of Jennifer having sex with a dog. There was no such picture. There were shots of a nude Jennifer lounging on the deck with the dogs, and petting Puffer.
*On July 30, 1955, a week before he received three years’ probation for burglary, Walker married his sixteen-year-old sweetheart, Tanya Logan, in Tijuana. Logan was granted an annulment in 1958, while Walker was serving his San Quentin stretch for armed robbery.
*My disinclination to defend a murderer also resulted in my electing not to represent former San Francisco supervisor Dan White for the 1978 assassination murders of Mayor George Moscone and supervisor Harvey Milk when friends of White’s from the San Francisco police department—White was a former officer—asked me to.
*I subsequently realized that under Jennifer’s version of what happened, she had to have had the dinghy at least later in the day because she told me she went ashore by herself around 5:30 P.M. to take a bath and then meet Buck at the Sea Wind for their supposed dinner invitation with the Grahams. When I confronted Jennifer with this reality, she said she was more confused than ever as to who had the dinghy on August 30. Certainly the possibility exists that each of them had it during different parts of the day.
*Len Weinglass, though he never said he did not believe in Jennifer’s innocence, nonetheless remarked to me that she came across as “manipulative and untruthful,” and in answering questions she frequently “shifts her eyes and hesitates, as if she’s searching for the right answer.” Len said he found these mannerisms “disturbing.” But I did not see these things. One insight Len and I did agree on from the beginning: Jennifer was quite intelligent. Her capacity to grasp and understand virtually anything she was confronted with was impressive.
*The July 1981 public opinion poll consistently contained responses such as these: “It was a double murder of a couple who sailed down there to some island. A murderer and murderess stole a yacht.”
“Jennifer Jenkins and her boyfriend were on Palmyra Island and I’m sure they murdered the Grahams.”
“They left the bodies of a couple on the island and fled.”
“They killed the people and took their yacht.”
“Jennifer Jenkins and Buck Walker murdered the owners of a boat and stole the boat.”
“A young couple ended up with another couple’s yacht and the evidence would point to the fact that they murdered the couple who owned the boat.”
“Two hippie characters murdered a couple on the island and took their yacht.”
“I think it was very atrocious what they did. Those people deserve the maximum penalty. I don’t know how they thought they could get away with it, especially since they brought the stolen boat back to Hawaii.”
*Boudin eventually pleaded guilty and is currently serving a twenty-year prison term.
*My argument that Buck Walker alone had murdered the Grahams would be more believable to the jury if Buck Walker was the dominant party in the relationship than if Jennifer were the boss (or even if they were equals).
*The media have been complicit in perpetuating the myth. For example, cross-examination as bland as pablum is routinely reported to be “rigorous,” “grueling,” or “withering.” Why? Because cross-examination is supposed to be rigorous, grueling, and withering.
*Walker was subsequently convicted of the escape and sentenced to five years, the term to commence after his other sentences.
*Because Steve Trott had once made an uncommonly flattering remark about my trial abilities, the thought had immediately entered my mind that my former colleague might have had a hand in the decision to dispatch Schroeder.
*Later, Raskin figured in the cocaine-dealing trial of automaker John DeLorean when the defense sought to introduce the passing results of a polygraph test he’d given DeLorean. The Government’s polygraph expert had given DeLorean a separate test and concluded he was lying, and the trial judge declined to admit the results of either test.
*New Mexico is currently the only state which allows either party alone to introduce the results of a polygraph examination.
*Although testimony from the Government’s two informants had, according to Enoki, been the basis for the addition of premeditated murder charges against both defendants, Len and I were not overly apprehensive about what the informants had told authorities. We knew neither Ingman nor Williams would be permitted to testify at Jennifer’s trial about Buck’s alleged statements implicating her in the murders. In the landmark 1968 U.S. Supreme Court case of Bruton v. United States, 391 U.S. 123, the court held that a defendant implicated in court by an out-of-court statement made by his codefendant is, in effect, being accused by his codefendant (i.e., Jennifer accused by Buck). Every person on trial has the constitutional right under the Confrontation Clause of the Sixth Amendment to confront and cross-examine his accuser in court. But the codefendant cannot be forced to take the stand, and if he does not voluntarily do so, the accused loses the right to cross-examine. Len and I were certain that no matter what happened to Buck at his trial, he would not take the stand at Jennifer’s trial to testify against her. If he were found not guilty but testified at Jennifer’s trial that he had, in fact, confessed to his prison buddies that he’d murdered the Grahams and that she was involved, this could form the basis for an indictment against him for the murder of Mac Graham. Even if found guilty of murdering Muff, he would automatically appeal his conviction, and if, down the road, the conviction was reversed, any admission at Jennifer’s trial could be used against him at his retrial.
*Theft, the crime Jennifer was previously convicted of, is not considered to be “an inherently dangerous felony.” In shorthand terms, “theft” is simply the taking of another’s personal property with intent to steal, as when a professional pickpocket lifts someone’s wallet. But when the taking is accomplished by means of force or fear (for example, the victim handed over his wallet at gunpoint), “robbery” has been committed.
*Under our system of justice, the defense attorney’s only obligation is to his client, whereas the prosecutor has a dual obligation—not only to represent the state or federal government (as the case may be), but to do his part in insuring that the defendant receives a fair trial.
*On October 18, 1981, Kit’s ex-husband, Bill Muncey, fifty-two, was at the controls of his unlimited hydroplane, The Atlas Van Lines, in a race off the coast of Mexico when rapid acceleration caused to bow to lift out of the water, flipping the boat over backward (called a “blowover” by boat racers). Muncey, who during his three-decade racing career drove with a verve and wizardry that became his trademark, was struck in the neck by a propeller blade and expired before reaching the hospital. His funeral in San Diego was attended by several thousand mourners.
*Sure enough, Elliot Enoki in his closing argument at the Walker trial, did not argue that the missing rat poison decreased the probability that the Grahams would invite Jennifer and Buck for dinner.
*In a March 21, 1991, letter to me, Partington said that the way he and Ray Findlay acted “in regard to Judge King’s conduct toward us” was a “tactical decision based on consultation with, and instructions from, our client. “These tactics, he said, were imposed on them by their “ethical obligation” to their client.
*The aluminum box measured thirty-three inches long by twenty-three inches wide, and was eighteen inches deep.
*An April 7, 1981, FBI report described the watch found by Sharon Jordan as a seventeen-jewel Westclox brand, and stated that the last time displayed by the watch was around 12:15. It could not be determined, naturally, whether that was a.m. or p.m. Also undeterminable, of course: whether or not the watch had stopped ticking at or near the time of Muff’s death.
*This .22 had been purchased by Buck Walker’s brother, Don, in 1963, and was still registered to him.
†J.W. Williams was brought to San Francisco for the Walker trial but was not called to the witness stand. To date, Elliot Enoki will say only that he decided against calling Williams after speaking to him there. “I can’t go into why I didn’t call him,” explains the prosecutor, “because it isn’t a matter of public record.”
*Sharon Jordan had testified that when she found the container, there were several inches of sand at its bottom.
*Dr. Stephens had previously narrowed it down further. “Adipocere is most commonly associated with water that is still, such as a lake or lagoon. It would not form well in a stream,” he said.
*I was amazed that Enoki didn’t buttress his argument by specifically citing to the court the whole line of prosecution cases holding that the requirement that the death be connected to the robbery should be liberally construed, with no strict causal relationship needing to be shown. Moreover, the precedents allow the connection to be shown by circumstantial evidence, i.e., by inference.
* Several other defense-oriented people went along, including Partington, Chris Cannon (a San Francisco—based federal public defender then assigned to the Walker case), Len Weinglass, and Norman Sanders, who would eventually appear as a Walker defense witness. Also on the trip: two divers and a pair of crewmen for the party’s chartered sailboat. Partington and Weinglass had visited Palmyra previously, in January 1982, shortly after they both came on the case. On that earlier trip, the two defense lawyers, along with Stuart Hilt, a Honolulu private investigator, and Roger Coryell, a Honolulu photographer, were flown to the island by Martin Vitousek aboard his twin-engine aircraft.
*Moreover, Jennifer would be telling her jury the very same story (dinner invitation, Grahams not present on Sea Wind, discovering the overturned dinghy on the beach the next day, belief the Grahams had died an accidental death, etc.) that Buck’s jury had heard, and his jury had not bought it.
*To save time, courts will recognize, when relevant, the existence and truth of certain facts that are universally regarded as common knowledge, such as historical events, dates, geographical features, and so forth, and furnish these f
acts to the jury as a substitute for formal proof. Hence, neither side has to introduce evidence to prove these facts. However, facts that are not of common knowledge but are capable of determination by resort to sources of “reasonably indisputable accuracy” can also be the subject of judicial notice. It was this latter type of notice I asked the court to take.
*Judges, with the ironic exception of Justices of the U.S. Supreme Court, must be lawyers. No non-lawyer has ever sat on the U.S. Supreme Court, although Lyndon Johnson did try to get non-lawyer Dean Rusk, his Secretary of State, to accept a nomination.
†If not appointed (the usual situation), to become a judge one has to run, like any other politician, for the office.
*Federal judges, who are appointed for life, are even more insufferably pompous than their state counterparts. When one is not, he prompts this type of remark: when U.S. District Court Judge Anthony M. Kennedy was nominated for the U.S. Supreme Court in 1987, Ronald Zumbrum, the director of the Pacific Legal Foundation in California, said: “If you picture a federal judge, he does not fit it. He has a low ego threshold and he has no airs about him. He is a normal person.”