And Never Let Her Go (60 page)

On the morning of November 9, the time had come for Gerry to testify. His golden curls had long since given way to incipient baldness, but he still had his round baby face. He wore a very expensive suit and a tie that had probably cost $100, but he also had two gold earrings in his left ear. He was clearly nervous as a cat as he took the stand. Now he could look directly at Tom and, beyond Tom, into the faces of his extended family, who filled the benches on the left side of the courtroom.

His eyes already glistening, Gerry waited nervously for Colm Connolly's first question. After Gerry verified that the statements he had given to the grand jury a year earlier were true, Connolly began with February 8, 1996, when Tom asked Gerry for a loan of $8,000. “I wrote a check and went to the bank,” Gerry said.

“Why didn't you give him a check?”

“He wanted cash.”

“Did he pay you back?”

“Within a week or so.”

Connolly showed Gerry the deposit slip from his own bank
when he returned the $8,000. It was dated February 13, 1996. Tom's check for repayment was number 1666.

Gerry testified that Tom had been frightened by someone who was threatening him. “He said he was scared that the guy was going to hurt him. He was afraid the guy was going to beat him up or hurt him—come to his house and hurt him.”

“What did you tell him?”

“I originally told him, ‘You should call the police.' ”

But when Tom didn't want to do that, Gerry had offered him a shotgun “because it was better home protection.”

“Is a shotgun easier,” Connolly asked, “for somebody who is not familiar with guns in terms of hitting their target?”

“Yes—he didn't want it. He wanted a handgun.” Gerry had then given Tom the ten-millimeter Colt, and he had returned it sometime before Gerry moved to Stone Harbor in mid-May.

“What did you do with this gun?”

“I gave it to a guide friend of mine that I went hunting with,” Gerry said, “as a tip—I've gone grizzly-bear hunting with him and moose hunting.”

Gerry could not remember exactly when Tom had told him that someone was threatening to hurt his children, but he did recall Tom's words. “He said that if either one of these persons that was threatening to hurt his kids were to hurt one of the kids and he had to do something to them, could he use the boat?”

And that day had come. Gerry had good recall of the Friday morning that Tom showed up in his driveway. Three hours later, he was helping his brother load the huge cooler into the back of Kay Capano's Suburban. Gerry said the cooler was heavy enough so that it took two men to lift it.

“Were there any noises coming from the cooler?” Connolly asked. Several people in the gallery gasped.

“Sounded like ice was inside the cooler,” Gerry replied. Apparently, Tom had prepared for any eventuality; he had packed cubes from his refrigerator's ice maker around the body in the cooler. If there was an unforeseen delay, the contents of the cooler would not begin to decay.

Connolly asked Gerry to describe what happened after he and Tom drove to Stone Harbor.

“He backed up in the driveway and I believe we both went inside,” Gerry said. “And I think I went to the bathroom first and he used the phone.” Tom glowered at Gerry as he testified. “And then I got a couple of fishing rods and put them in the boat and started it up.
We both carried the cooler down to the boat and then put the chain and the lock in a plastic bag and carried it down to the boat.”

“Now, why did you take fishing rods with you in the boat?”

“So it would look like we were going fishing.”

“Were you worried that this cooler looked unusual on a boat?”

Gerry shook his head. “No—it's your typical fishing cooler.”

Hours later, they were far out in the ocean. Gerry said his
LORAN
was in its depth-finder mode, and it registered 198 feet when he cut the motor and told Tom he was on his own. The sea was choppy and he heard Tom throwing up repeatedly as he wrestled with the cooler.

“How did the cooler get into the water?” Connolly asked.

“I'm unclear on whether or not I helped him pick it up and put it in the water and then walked to the front of the boat—or if he did it himself.”

“Did the cooler sink?”

“No.”

“How do you know?”

Gerry looked sweaty and queasy as he recalled shooting into the white Styrofoam and seeing something reddish pink flow from the bullet hole. (The dead don't bleed, but melting ice inside would have been tinged by the blood that had trickled from whatever wounds Anne Marie had sustained. The longer she had lived, the greater the quantity of blood. But this had been far too pale to be fresh blood.) Gerry gulped as he described the gush of pinkish fluid he had seen.

“When the cooler didn't sink,” Connolly asked, “what did you do?”

“We pulled the boat up next to it,” Gerry said, “and then I shut the boat off and went back up to the front.”

“So, now,” Connolly pressed, “the first time you helped him [lift the cooler over the side of the boat]; the second time you [only] pulled alongside the cooler?”

“Right. That's when I told him he was on his own—and I went to the front of the boat.”

“Why did your boat have two anchors?”

“I always carry two anchors,” Gerry said. “If you anchor up the front of the boat and the back of the boat, it stays still.”

Gerry testified he had leaned against the bow rails and looked straight ahead, with his back to Tom. “I was telling him,” he testified, “this was not right—this was wrong.”

He had heard Tom rustling around with the chains and anchors, gagging from his grisly task. “I asked him,” Gerry said, “‘Are you done?
Are you done?' and he finally answered yes, and I turned around.” Gerry's face was pale green with the memory of it as he answered Connolly's questions. “I saw a foot going down.”

“A human foot?” Connolly asked.

“Yes.”

“Were you able to determine what gender this human foot was?”

“No,” Gerry answered with agitation. “No . . . No.” He had seen enough to know that there had been a human body in the cooler, but he had had no idea who it was or if it was male or female.

“Where was the cooler?” Connolly asked.

“The cooler was floating. I believe we jockeyed the boat around again to pick the cooler up, and then we dipped it in the water to clear out everything that was in there—ice or whatever—and then we pulled it into the boat and we headed for home.”

“What happened to the bag with the chain and the lock in it?”

“It got thrown in. I didn't see the lock and the chain get thrown in,” Gerry said. “I saw the keys to the lock get thrown in.”

As for the cooler, Gerry said he'd used a Phillips head screwdriver to unscrew the hinges that held the top on. “Tom was driving slowly when I did that,” he testified. “And then about five minutes later, we just threw the cooler in too, and we just kept heading home.”

“Now, when you headed back to the shore, did you pursue a certain course?”

“Yeah. I turned around and headed 310—310 degrees.” He said he used only the compass to get his bearings.

“On the way back to Stone Harbor,” Connolly asked, “what did your brother say to you?”

Gerry had kept his eyes down for most of his testimony, staring at his hands or the floor, and he continually grabbed tissues from a box as if to stanch the tears that welled up in his eyes. He looked for all the world like a naughty schoolboy confessing that he had done something bad. Now he looked up and Tom caught his eyes. Gerry appeared desperately apologetic.

“We didn't talk very much,” Gerry said. “He just said it was going to be all right—that he would never let anything happen to me. Because I was telling him, ‘This is wrong!' and I was scared.”

In his panic, Gerry had almost missed the New Jersey coast. They were south of Cape May. He turned the wheel hard right and headed up along the coastline.

“Now when you were out on the ocean,” Connolly asked, “did you see any other boats?”

“I did—I saw a small boat out in the same area we were in, with a dive flag.”

“Did you see any people?”

“No.”

“About how far away was this other boat?”

“Quarter mile.”

“Weren't you afraid if you fired a shotgun you might draw attention to yourself?”

“No—people are always firing guns out there trying to kill sharks, catch a big shark,” Gerry said. “You have to kill it before you can bring it in the boat.”

It was clearly a different world sixty-five miles out in the Atlantic Ocean, a world where Anne Marie Fahey never belonged. In the early afternoon of Friday, June 28, 1996, at the hour when Tom Capano was weighting her body down and lowering it into the choppy sea, she had planned to be sitting in the cool green of Valley Garden Park reading a book.

As gruesome as it was, Gerry's testimony was not really a surprise. Joe Oteri had already conceded that Tom had dumped Anne Marie's body in the ocean, but no one knew what had happened late on the night she died. There had been no further mention of the “accident” that killed her.

G
ERRY
C
APANO
had just begun his ordeal on the witness stand.

“Who drove home [to Wilmington]?” Connolly asked him.

“Tommy did.”

“And on the way, did he ask you anything?”

“He told me what to say if I was ever questioned.”

“What did he tell you to say?” Connolly pressed.

“That he had met me in the morning at my house to talk about a property my mother was giving him and myself, and that I left and went to the beach. And then that he left and went over to my brother Louie's house to talk to Louis about the property, and then he met me down to the beach later and we had lunch down at the beach. And then I think it was—we went and walked a new piece of property that I was buying down there—or had already bought—and he either said he was going over to my sister's in Stone Harbor or my mother's in Stone Harbor. But, you know, I left first.”

In fact, the two men returned to Wilmington, and in response to Connolly's questions, Gerry described to the jury how he had helped Tom get rid of the bloodstained couch. “It had a stain on it,” Gerry
recalled. “On the right, if you were sitting on it, on the right side about shoulder height. It was about the size of a basketball.”

“What did you do with the couch?”

“We carried it out the double doors of that room and down the steps, which would be in the front of the house, and around to the garage. And at that point, I cut the stained piece out of it and tried to break the couch up so it looked like it was just an old broken couch, and we threw it in the Dumpster.”

Gerry testified that he couldn't see the color of the stain on the maroon upholstery, but when he cut into the couch with his pocketknife, he saw “something red” on the foam underneath.

W
HEN
it became apparent that Tom was under suspicion in Anne Marie's disappearance, Gerry had met with Dan Lyons, an attorney that Tom had recommended. It was two months after Anne Marie vanished. Gerry testified that Tom had instructed him to tell Lyons the “same thing we talked about in the car coming home.”

“Did you make a record of what he told you?” Connolly asked.

“I did.”

“What did you write it on?”

“A yellow postee [Post-it].”

“What did you do with the yellow Post-it?”

“Stuck it in my checkbook and it stayed there.”

“Now, Mr. Capano,” Connolly asked, “would you read what you wrote down in your note as a result of the conversation with your brother, please?”

“We were at my house at 5:45. Wanted to talk about Capano investments. I went to work. Then met you at your house about seven-thirty, eight. We talked. I left for the beach. Did my thing, saw you around elevenish. We talked again because you saw Louie. Then I left. You stayed. I met you at your house around five to help move a love seat. It looked old. That's all. Helped you throw it in the Dumpster. Then I left. That's what I'm telling Dan Lyons on Friday.”

Gerry said he'd lied to his own attorney at first and only later told him the truth.

“When did you tell him the last part of the story—about your brother asking you, if he hurt somebody, could he use the boat?”

“Before I went and took the lie detector test—”

Gerry realized instantly that he had said the one thing he had been warned not to say. Neither side wanted him to mention the polygraph test. His face crumpled and he buried it in his hands, muttering, “I'm sorry—I'm sorry.”

Oteri turned white and Tom clenched his jaw.

Case law in Delaware Superior Court provides that testimony about polygraphs must not be referred to without a proper foundation. Gerry had been warned and he had forgotten.

Oteri asked to approach the bench. Maurer requested a mistrial and Oteri backed him up.

They had been in trial for almost five weeks. And now they might have to start all over.

M
OST OF THE GALLERY
and the jury had no warning that the trial might be over, and they ate their lunches unaware of any problems. When they returned at two-thirty that Monday afternoon, Judge Lee had decided that the trial would proceed. He instructed the jurors to disregard Gerry's last answer.

Colm Connolly was almost finished with Gerry, and Joe Oteri waited for his turn. Connolly asked Gerry about his boats and the replacement anchor that his brother Joey had found for him.

“Why did that become necessary?”

“Because of the newspaper articles that said I sold the boat without an anchor.” Gerry testified that he had given the anchor to Joe Hurley, who was then one of Tom's attorneys. He had no idea why Hurley wanted it.