And Never Let Her Go (56 page)

She just hugged them.

O
N
August 31, 1998, Tom was indicted on three counts of criminal solicitation (for the two murder plots—against Debby and Gerry—and the plot to burglarize Debby's house). These three charges, if proven in a court of law, could result in a sentence of thirteen years in prison. But you can pour only so much water into a vase, and if Tom was convicted of murder, the charges might be moot.

Tom's defense team was taking one hit after another. They denied vociferously that there had ever been real murder plots, and hinted that the state had deliberately put prison snitches next to Tom
to entice him into wrongdoing. Tom Bergstrom characterized Capano's plots as those of a man “acting in total desperation and arrogance.”

The Fahey family looked on with weary understanding. It had been so long now, and they resented anyone who tried to slow down Anne Marie's day in court. They were understandably angry at the defense team. “How can [they] come out and feed this stuff to people and expect us to believe it?” Kevin asked.

“He just seems to be a desperate person who is trying to control MacIntyre the way he controlled Annie,” Kathleen commented.

The women in Tom's life, from mistresses to daughters, had been offered up to burglars, alleged hit men, and sex offenders. It was not a question of their safety but of his; it was a matter of priority. (It took until June 13, 1998, before Tom conceded that his daughters were not the source of the blood spots found in his house. When he stipulated to that, he saved them from giving blood samples or from having to testify about their menstrual periods.)

Even so, there were those who said privately that Tom was prepared to ask his daughters to lie for him if need be. They clearly adored him. As a last-ditch effort, would he suggest they testify that they had been in his house on June 27 and therefore he could not possibly be the one who killed Anne Marie? One of Tom's defense attorneys had left the team unexpectedly the first week of April. Joe Hurley resigned without any public explanation, although it was alleged that he was unwilling to go along with Capano's proposed game plan. Hurley made his exit as splashily as he made his entrance, vowing he would never reveal his reasons in this lifetime.

Headed for trial, Tom still had four attorneys representing him: Charlie Oberly, Gene Maurer, his old friend Jack O'Donnell, and a new member of his team, whose flamboyance made up for the loss of Joe Hurley—Joe Oteri of Boston. Many people said Oteri was the top criminal defense attorney on the East Coast.

The state didn't have nearly as much weight in terms of sheer numbers—only two prosecutors—but they were arguably the two men whom Tom hated and feared the most: Colm Connolly and Ferris Wharton, the “Nazi/snake/weasel” and “the hangman.” Neither was a showboater; both were workhorses, and although there were witnesses that each would give his right arm to cross-examine, there was no lead prosecutor. They would be co-prosecutors in every sense of the word.

. . . nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty,
or property, without due process of law. . . .

Fifth Amendment,

Constitution of the United States

I
T HAD BEEN A LONG TIME COMING
, but finally, on October 6, 1998, the trial would begin—first with jury selection, and then in earnest. In retrospect, it was autumn that seemed to have marked critical turning points in Anne Marie Fahey's life and death. In earlier autumns, she had returned to Wilmington to work for Governor Carper, tried to break up with Tom, and met Mike Scanlan. In the Capano family, Tom, Louie, and Joey all had October birthdays. Debby had divorced her husband in October. In later autumns, Tom had left Kay, proposed to Debby, and been arrested for murder. Thanksgiving had long since ceased to be a time of celebration for all of the principals in this case. But after a long sultry summer, perhaps it was fitting that Tom's murder trial should begin in the bright coolness of October.

The Daniel J. Herrmann Courthouse hunkered over an entire block of downtown Wilmington, only grudgingly giving up enough space on each front corner for two tall holly trees. Huge, gray stoned, with massive colonnades across the front, the courthouse looked as if it would last a century, although Wilmingtonians were already suggesting it was obsolete. The Wilmington library was kitty-corner across the street, the Hotel du Pont was straight across on the other side of Rodney Square. In October, the trees in the
square still had leaves, but they changed color a little more with each chilly night.

This trial above all trials attracted the curious like a magnet. The sidewalk and the wide steps in front of the courthouse drew passersby who all seemed to have an opinion, many speaking conspiratorially to anyone who would listen. “Thomas is a good man—he could not have done what they say.” “Ahh, the old man must be spinning in his grave today. His sons killed him, you know—to get at his money.” “It's those women—they made him do it.” “That poor mother. To see it all come to
this.”

When asked if they actually
knew
the principals, most of the rumor carriers shook their heads. But they felt qualified to judge—from what they'd read in the papers, or seen on television, or even heard in the neighborhood.

Those who made it into the courtroom were extremely determined, or lucky—or privileged: family members of the victim and defendant, of course; the press; and those willing to rise before the sun and drive through the hazy dawn to wait in a serpentine line. Everyone had to pass through metal detectors before they could even move into the courthouse. The winding marble stairs to the third-floor courtroom, number 302, were smoothed and worn in the center of each step, testimony to the hundreds of thousands who had climbed there. Between the second and third floors, traffic would halt as people up ahead were checked for contraband.

The rotunda at the top of the stairs was high and splendid. Bronze banisters kept the crowd back from the well that channeled upward through the two flights of curving stairs; the floor was marble. Three courtrooms with ornate portals reaching to the ceiling of the rotunda opened off the waiting area. It was a grand, if not economical, use of space.

Kathi Carlozzi, a pretty woman in middle age and a secretary from the Superior Court, had been chosen to make the decisions about who would get in and who would not. The organizing of the press and the gallery in the Capano trial would be meticulous. Court employees had already been through a baptism of fire with the high-profile cases of Amy Grossberg and Brian Peterson. Kathi would also keep track of the forbidden items: cell phones, cameras, recorders, and laptop computers. Regulars pasted their names on the phones and other gear; eventually, when court recesses ended too quickly, even half-empty cans of pop were labeled and left on the battered table in the rotunda area.

The last step before access to the courtroom itself was granted
was to hand over purses and briefcases before passing through another metal detector. Kathi was unfailingly pleasant, but immovable when she had to be.

Courtroom 302 had an octagonal theme that was translated in its windows, wood trim, five hanging lamps, and wainscoting. The high ceiling was golden, molded in bas relief. Majestic as it was, the room's acoustics were lousy, especially when the nine wooden benches on each side were packed with avid spectators whose whispers and murmurs bounced off the lofty walls. The courtroom was so long and narrow that those in the backseats seemed a football field away from the witnesses.

Each day Kathi Carlozzi would usher the Faheys and Capanos in first, and, two warring families, they were separated by both an invisible boundary and a true one, the center aisle. The Capanos took up several of the forward rows on the left, and the Faheys sat on the right. Neither side acknowledged the other, except at the times the push of the crowd jostled them together in the aisle or doorway. Then, they were civil.

Members of the working press quickly chose their seats, and only then was the public allowed in. Many of them had never been in a courtroom before. They rushed in to find a good seat. The massive courtroom was actually designed to hold only 122 people, although there would be many times in the weeks ahead when spectators would make room for as many bodies as the long benches could possibly hold.

There was an air of expectation when Tom's trial began, even though nothing much was going to happen until a jury was picked—and that could take a long time. With the proliferation of pretrial publicity, it might not be easy to find prospective jurors who had no opinion about the innocence or guilt of Thomas Capano.

The cast of characters who took the stand would change continually; the prosecution expected to call more than a hundred witnesses, and the defense team hinted that it had almost as many. The constants would be Judge William Swain Lee, who looked more than a little like Robert Redford; Ferris Wharton, Colm Connolly, Bob Donovan, and Eric Alpert, the prosecutors and investigators; and for the defense, lead defense attorney Joe Oteri, Charlie Oberly, Gene Maurer, and Jack O'Donnell.

They were all top criminal defense attorneys, but very different from one another. Oberly was avuncular and quiet spoken, solidly versed in the law and a detail man; “the bookkeeper,” some called him. Gene Maurer was slender and intense, with a Beatleish haircut,
and often wore a worried look. Tall with gray curly hair, Jack O'Donnell was an old friend of Tom's who usually practiced law in Florida. It was O'Donnell who would frequently hug Tom's daughters or pat Marguerite's shoulder during breaks. He smiled easily. O'Donnell had bailed Gerry out of trouble years before. And when Joe Oteri signed on to defend Capano, wags called Tom's four attorneys the “dream team.” And they were a million dollars'—or more—worth of lawyers.

At sixty-seven, Oteri had proved that a poor boy from south Boston could one day be a highly successful attorney. The ex-marine was living on borrowed time, however, and not from scrapes in the Korean War. When he was in his twenties and still handling divorce cases, he encountered a Boston police officer who had just lost a child support case to his estranged wife, whom Oteri, to his regret, represented. The enraged cop shot his wife and then wounded Oteri in the knees, back, and head. Scrambling under a car, he realized dully that the shooter was coming to finish the job. But at that moment the injured wife made a noise and the maddened man turned back to shoot her in the head. Forgetting Oteri, he swallowed his gun and fell dead beside her.

Emerging alive from beneath the car, Oteri decided that being a divorce lawyer was far too risky, and his practice through the years since had become heavily weighted with safer clients—defendants who had drug or murder charges hanging over their heads. He was good at winning acquittals and was not the favorite attorney of the DEA. Handsome in a dangerous way and dapper with his snow white hair, mustache, and beard, and his dark eyes, Oteri had graduated from Boston College and Boston College Law School, just as Tom had. In fact, Tom had attended his lectures, and he selected Oteri from a roster of high-profile criminal defense attorneys.

Joe Oteri had a sense of humor, a lightning-quick intelligence, and didn't mind the media at all, cheerfully wading through reporters. He was a showman and a scrapper. His failings were his tendency to shout at a jury to emphasize his points and his condescension to witnesses who were obviously a few steps down the social ladder from himself or elderly. These elements of his style were annoying but apparently unconscious on his part.

No one yet knew what Tom Capano's defense would be. In the summer just past, his attorneys had filed more than two dozen motions asking for the obvious—to disqualify Gerry, Louie, and Debby as witnesses and to ask for a change of venue—or the ridiculous: They wanted Judge Lee to forbid the Fahey family and their friends
from sitting in view of the jury or showing emotion in the courtroom. They asked to have Connolly removed as a prosecutor, claiming his federal grand jury investigation was tainted, and they maintained that the evidence seized in the search of Tom's house was “fruit of the poisoned tree,” obtained with an illegal search warrant.

Judge Lee had denied all their motions, save for granting permission for the Department of Correction to release Tom's medical records. Were his attorneys considering a not-guilty-by-reason-of-insanity plea? Since Lee would not throw out the possibility of a death penalty verdict, finding Tom criminally insane might well save his life. But it was doubtful that a man of his ego would agree to such a plea.

As had been expected, jury selection took a very long time—almost three weeks. Each side had twenty peremptory challenges and could dismiss that many potential jurors without giving a reason. They could also be dismissed for cause. It was Monday, October 26, before the actual trial began. Twelve jurors and six alternates had finally been seated. It promised to be a prolonged trial, and extra alternates would guarantee there would be at least twelve sitting jurors. None of their names were released to the media.

The litigants sat at three long tables on the left side of the courtroom, one behind the other: the court staff closest to Judge Lee, then the prosecutors, and finally the defense. Whoever addressed the jury would move to a lectern on the right side of the room.

Tom was sandwiched between his attorneys and kept under the watchful eye of court deputies. Those who knew him were surprised to see that he seemed to have shrunk. His skin, like that of all longtime prisoners, displayed the yellow-white pallor of jail and his features were pinched. Even so, he still carried himself with a familiar confidence. He often turned to the gallery to mouth messages to his mother, his daughters, his sister. He virtually ignored his guards, managing somehow to look as though he were a member of the defense team, and not the defendant.