And the Sea Will Tell (67 page)

“I wouldn’t want to say that they told me to lie, but I was advised by one of my attorneys that if I testified inconsistently with statements that I made to the FBI, the trial would probably go poorly against me.”

“Just so the record is clear, neither Mr. Bugliosi nor Mr. Weinglass were involved in that case?”

Jennifer raised her voice.

“Absolutely not.”

“Did your attorneys at the theft trial know that the true fact was that the
Iola
had not run aground and you had not left it there?”

“Yes.”

Enoki next elicited from Jennifer that at her theft trial she denied taking the photographs of the
Iola
and the
Sea Wind
in the open sea off Palmyra.

“That was a lie, too?” he asked.

“Yes, it was.”

“Do you recall Bernard Leonard testifying that you also told him that you attempted to
sail
out of the lagoon on the
Iola
, and it wound up on the reef and that’s when you went back to get the
Sea Wind
?”

“I think I do, yes.”

“I gather you deny saying that to Mr. Leonard?”

“No. With all that was happening that day, I could have easily told Mr. Leonard that story, but then when I was speaking to Mr. Shishido, it got to where I spoke more close to the truth.”

“Isn’t it true the reason that your story changed between Leonard and Shishido was because Mr. Leonard told you that you would have never left on the
Iola
if the
Sea Wind
was sitting there?”

“No, it didn’t change for that reason.”

Noon recess.

B
EFORE THE
afternoon session resumed, Judge King asked each side, since we were nearing the conclusion of the trial, to submit instructions to the jury we wanted him to add to his standard instructions. There was one instruction I wanted him
not
to give, and because my request was so unusual, I had alerted Judge King before the trial began so that he would have time to mull it over at length. I handed him an article I wrote in 1981 titled “Not Guilty and Innocent—the Problem Children of Reasonable Doubt.”
^*

“For your reading pleasure,” I told the judge with tongue in cheek, referring to the very dry subject matter.

“I’m sure,” he muttered.

The article dealt with the critical distinction between the terms “not guilty” and “innocent.” (It is nothing short of incredible that with legal treatises having been written on virtually every point of law imaginable, apparently none had ever been previously published on the subject in America. At least, none is listed in the Index to Legal Periodicals, or the Criminal Justice Periodical Index.) The genesis of the distinction is in the requirement that guilt must be proved “beyond a reasonable doubt.” But what does that hallowed phrase actually mean?

The doctrine of reasonable doubt is, as Sir Winston Churchill once said of Soviet Russia, “a riddle wrapped in a mystery inside an enigma.” “This elusive and
undefinable
state of mind,” said J. Wigmore, the foremost authority on the law of evidence. “It is coming to be recognized that all attempts to define reasonable doubt tend to obfuscate rather than clarify the concept,” said E. Morgan, another authority. However, one all-important principle is implicit in the term—namely, that a jury does not have to believe in a defendant’s innocence in order to return a verdict of not guilty. Even their belief in his guilt, if only a moderately held one, should result in a not-guilty verdict. To convict, their belief in guilt must be
beyond a reasonable doubt
.

In federal courts throughout the country, the judge properly instructs the jury that to convict, guilt must be proved beyond a reasonable doubt. Inconsistently, however, in the very same instruction (#11.06 of
Federal Criminal Jury Instructions
by Devitt and Blackmar), the judge tells the jury: “You are here
to determine the guilt or innocence of the accused
.” Under existing law, this added instruction should not be given since it is not the central purpose of a criminal trial to decide the factual question of the defendant’s
guilt or innocence
.” Yet even the U.S. Supreme Court in case after case
^*
continues to define loosely and erroneously the jury’s function in a criminal trial. Needless to say, far less insightful state,
^†
county, and municipal courts throughout the land, as well as authorities on the criminal law,
^‡
make the same mistake.

To a lay juror—in fact, to anyone—“guilt” means that a person
did
whatever he is charged with doing, “innocence” that he did
not
do it. The completely reasonable assumption I wanted to erase from the jury’s mind was that their
ultimate
duty was to determine whether Jennifer did or did not participate in the Palmyra murders.

While a defendant’s guilt or innocence obviously is the most important
moral
issue at every criminal trial, the
ultimate legal
issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt. If the jury does not fully understand this critical distinction, its ability to fulfill its function as the trier of fact will almost necessarily be impaired.

In American criminal jurisprudence, a not-guilty verdict can result from one of two states of mind on the part of the jury: that they believe the defendant is innocent and did not commit the crime; or, although they do not believe he is innocent and
tend
to believe that he did commit the crime, the prosecution’s case was not sufficiently strong to convince them of his guilt beyond a reasonable doubt.

Instead of the correct term “guilty or not guilty,” the incorrect “guilt or innocence” has insidiously crept into the American language and consciousness. Although the precise date and locus of its misconceived birth are not known, it has led a very robust life, shows no signs of aging, and, as we have seen, has been invested with the imprimatur of the highest court in the land.

When jurors are deliberating, the media report that they are deciding the “guilt or innocence” of the accused. And a defendant found “not guilty” is usually reported by the press to have been found “innocent.” So, too, in novels, theater, movies and television. With this constant inundation, jurors naturally believe that their purpose at a criminal trial is to determine whether or not the defendant committed the crime. Even in the absence of such a deluge, they would almost automatically make this assumption. After all, though the prosecutor and defense attorney get caught up in the adversary process—with its attendant unblushing effort to maximize advantages and minimize disadvantages—jurors have a much more pristine view of justice. To them, justice is finding out the truth and then giving a person his due. And the question “Did the defendant commit the crime or not?” is much more compatible with their concept of justice than what they view as the gamelike “Did the prosecution prove it beyond a reasonable doubt or not?”
^*

Instead of clearly and unequivocally disabusing jurors of their misconception, courts throughout the land repeat the incorrect notion. Along with judges, the great bulk of prosecutors use the term “guilt or innocence.” (In the Walker trial, Enoki told the jury: “We are determining Buck Walker’s, not Jennifer Jenkins’s, guilt or innocence in this particular case.”) And defense lawyers everywhere can be heard arguing to juries that the prosecution has not proved guilt beyond a reasonable doubt, and in the next breath stating, “Now, in determining the guilt or innocence of my client, take into consideration…” In fact, the textbook of the Association of Trial Lawyers of America states that “the determination of guilt or innocence is the sole province of the jury, and is the essence of our system.”

What it all comes down to in an actual courtroom situation is this: if the question that is
uppermost
in the jurors’ mind when they retire to deliberate is “Did he do it or did he not do it?” as opposed to “Did the prosecution meet its burden of proof or did it not?” then even though the evidence against the defendant is only moderately strong (as opposed to the requisite very strong) the jury will probably be psychologically attuned to a conviction.

For this reason, I asked Judge King to delete all of the many references to “guilt or innocence” from his instructions, particularly the charge to the jury that it was
its duty
to determine the guilt or innocence of the accused. The judge said he had read my article, and although he had never thought of the matter before, had to agree with my conclusions. But he hastened to add, “Look, I’ve been giving the guilt or innocence instructions for years. How do you expect me not to give basic instructions that are in Devitt and Blackmar, that are a part of the standard instructions of the federal courts given everywhere? In all my years, I’ve never been asked not to give these instructions.”

I had saved my ace in the hole. “What if I furnished you with evidence that the coauthor of your book of instructions doesn’t use the term ‘guilt or innocence’ in his own court?”

“What do you have?” the judge said.

I showed him a long piece about my article in
The National Law Journal
of March 1, 1982. A staffer had contacted Judge Edward J. Devitt (Chief Judge, United States District Court for the District of Minnesota), the horse’s mouth, for his comment on my article. After reading it, Devitt remarkably told the
Journal
he didn’t use the phrase “guilt or innocence” in his own courtroom. (The judge uses the phrase in no fewer than ten instructions in his own book, which is cheerfully parroted by federal judges throughout the country.)

“Okay,” Judge King said, after reading the article. He agreed to delete all uses of the phrase “guilt or innocence” in instructions to Jennifer’s jury.

While not a pivotal victory, it perhaps could, in company with others, help me persuade the jury to return a verdict of not guilty. Of course, I still intended to argue Jennifer’s innocence to the jury,
but not in the context that her “guilt or innocence” was the ultimate issue for them to decide
.

W
HEN COURT
went back into session, Enoki resumed his cross-examination. “
When you found the Zodiac
, Miss Jenkins, do you recall whether the tide at that time was high or low?”

It wasn’t the first time he’d phrased a question in a way that indicated—grammatically, at least—that he was accepting Jennifer’s version of events. Of course, Enoki did
not
believe her and was trying his best to destroy her credibility on the witness stand. It was simple carelessness on his part not to qualify his questions with “allegedly” or “you claim” or some other terminology to signal to the jurors his disbelief.

“I don’t have a specific recollection, but I know that it wasn’t high tide, I mean, I don’t know where in between low and high it was.”

“Okay. Would it be fair to assume that at high tide, the Zodiac, from where you found it, would have been partially in the water?”

“I…I don’t know that.”

“Okay. It was one and a half feet from the water when you found it. Correct?”

“Yes, it was about one and a half to two feet from the water when I found it.”

“And the gas tank was approximately the same distance from the water?”

“Yes.”

“You remember Agent Shishido testifying that you told him you
found
the Zodiac overturned in the lagoon and the gas tank was floating nearby?”

“Yes.”

“And you deny telling him this?”

“I told him that I thought the dinghy had overturned in the lagoon, and that both the gas tank and dinghy had floated ashore.”

Enoki asked Jennifer about her testimony regarding the various obstructions in the lagoon. Wasn’t it true, he asked, that the lagoon was shallow enough in the area where the steel poles stuck up out of the water for the Grahams to walk to shore if their Zodiac had struck one and tipped over? Jennifer agreed it was shallow enough, but went on to describe again the occasion when she and Buck were rowing their own dinghy across a shallow stretch of the lagoon.

“He got out of the dinghy, and the sharks came after him immediately. So, I felt that even if Mac and Muff had their boating accident in shallow water and had been thrown out, that—you know, that was the image that was in my mind of what might have happened.”

“Then you were not thinking of a drowning?”

“I just…all I knew was that I found the dinghy upside down. And in searching for Mac and Muff, I found them nowhere. It was evident to me that
something
terrible had happened.”

When Enoki asked if Jennifer was—by August 30, 1974—tired of living on Palmyra, there was a long pause.

“I don’t know how to answer that question,” she finally stated. “If I had my choice of someplace to go, I would not choose Palmyra. I felt that way then. Palmyra was not my favorite place to be.”

“Did you want to leave Palmyra for reasons other than going to Fanning and getting resupplied?”

“No, my preference would have been to wait for Richard Taylor and his brother to come down.”

“You do admit that you were eating virtually nothing but coconuts in the last week in August?”

“Well, and fish. And we did have stores. But I was touching the stores as infrequently as possible.”

Enoki read the August 25 entry from Jennifer’s diary: “‘For the first time in three days we’ll have something other than coconuts for dinner—beans.’ So that would mean that on at least August 22nd, 23rd, and 24th, you didn’t have anything except coconuts for dinner.”