And Never Let Her Go (58 page)

Tom Capano looked straight ahead. People in the gallery had no clue about what he was thinking; they could see only the back of his expensive suit.

J
OE
O
TERI
began his opening remarks by promising the jury he would not talk for an hour and a half, and he pointedly reintroduced his team. Then he explained that in Boston attorneys called other attorneys “brother.” “My brother, Mr. Wharton,” he said, “pointed out to you that Tom Capano was a controlling freak because he ordered a meal for Anne Marie Fahey at the Panorama. You will hear that Tom Capano considers himself a gentleman. You will hear there's an E-mail between Anne Marie Fahey and a girl named Kim Horstman where she tells her, ‘Go to dinner with Tom—he's a perfect gentleman.' A gentleman who is a host at dinner orders dinner for his guest.”

Oteri started out magnanimously, dealing with the easier questions about the case. He said he didn't want to cast shadows over Anne Marie, and then he proceeded to do just that, moving swiftly
to chip away at her character. “We have no intention of besmirching this girl's background or reputation,” he said, “but we must talk about reality also. Anne Marie Fahey was not an eighteen-year-old high school kid. She was a thirty-year-old woman in 1996. She had been with Tom Capano off and on for two or three years, so she wasn't a kid starting out with some older guy. She had lived in Spain. She had lived in Washington, D.C.—that cesspool—and she had been down there working. [She] came back here and was involved in politics. One grows up mighty quickly in politics even in a state as small as Delaware. Anne Marie Fahey knew what was happening.”

Oteri listed the things Tom had bought or given her: the new windshield, the air conditioner, the $500 for her therapist, $30 by messenger when she was broke. “She was onto a good thing,” he said with a slight sneer in his voice. “And she used it, and more power to her.”

It might have been a tactical error to denigrate Anne Marie, the victim. But who could read the impassive faces of the jurors?

As for Gerry Capano's testimony against his brother, Oteri dismissed Gerry as having a “brain like a fried egg. He has used drugs for years. He's also a boozer. He's a typical screwed-up rich kid who never had to earn anything in his life. You will hear that he's a poster boy for the ‘me generation.' ”

The lawyer from Boston was fully aware that he didn't have to prove anything; the burden of proof was on the prosecution. Oteri's remarks touched upon nothing that was absolute and everything that vilified the victim and the state's witnesses. He maintained that Tom Capano had done his best to help the investigation into Anne Marie's disappearance. He had finally given up only because he was afraid.

“Tom Capano tried to arrange to speak to Wilmington Police officers,” Oteri said, “but subsequently, his house was searched by the FBI, and he stopped that because he could no longer trust anyone. He tried to arrange a meeting with the government early on—on the condition that he would only talk about the night in question, not any other night, and Mr. Wharton refused it. He came back with an offer—another offer—saying they would speak about any aspect of his relationship with Anne Marie Fahey, but he would not talk about other people or other events. Again, it was refused.”

Oteri told the jurors that Tom had been “terrified” by the “massive police presence” and felt no one would believe him. “Based on his prior experience as a lawyer and a political operative,” Oteri
said, Tom was “convinced he could not get a fair hearing from the feds. If he spoke to them, they would only twist his words and hang him up. You will hear that Tom Capano was a wealthy lawyer, had a big house, four beautiful daughters. You will hear he was a managing partner of a fancy law firm. He was socially active, belonged to prestigious clubs. All at once—if Tom Capano talks to people—this is all gone, because no one's going to believe him, because the feds have picked him as a target of this investigation from the beginning.”

Joe Oteri was an old hand at fighting “the feds” and he made the government sound evil and predatory. He stressed that even President Clinton and Governor Carper had inserted themselves into the search for Anne Marie, bringing federal investigators in as early as July 8. “He knew that the FBI and Mr. Connolly and the United States Attorney's Office and all their massive resources would be directed toward this one case,” Oteri said. “There's a massive use of power, there's massive amounts of money and people and resources that can be brought to bear, and all the gloves come off and it's bare-knuckle fighting.”

It was true that the investigation had focused on Tom Capano early on. The last person to be seen with a murder victim is always the first suspect. But would mentioning Tom's wealth, prestige, and his beautiful daughters endear him to this far from wealthy jury?

“Tom Capano is a bright guy,” Oteri continued in his streets-of-Boston accent. “If Tom Capano is buying a coffin with this big cooler, would he go to a store a couple of miles from his house? Would he buy it with his credit card? Would he leave it with the bar code on it that puts it right to that store? That's insanity. He wouldn't do a thing like that. Wouldn't he arrange to dump it someplace? He never goes out on boats. You will hear evidence that Tom talked to his brother Joe about doing something for Gerry—the kid brother—who was very good to Tom's kids by taking them out on his boat. You will hear that Gerry had just bought a new $125,000 boat and Tom wanted to get him something. Joe suggested a cooler.”

Oteri dismissed the $8,000 loan from Gerry. He could explain that. He would explain the borrowed gun. But most of all, he would explain through testimony that Tom Capano had not murdered Anne Marie. “Anne Marie Fahey died as a result of an outrageous, horrible, tragic accident, that only one other person—who was there—knows everything that happened that night.”

A buzz started in the courtroom. This was the first time that anyone suggested that Anne Marie had died in an accident. What accident?
Where? Was Tom there? And who was the other person who had been present?

“Tom Capano and his brother Gerry,” Oteri continued in a startling admission that Tom had been involved in a death, and its subsequent cover-up, “disposed of Anne Marie Fahey's body by placing it in a cooler and taking it to sea and sinking it. You're going to hear that Tom Capano is not the least bit proud of that. You will hear that it was motivated by fear for himself, by a desire to protect himself, by a desire to protect others. You will hear what happened to Anne Marie Fahey's body. This is the difficult thing you're going to have to do. You hear about what happened to Anne Marie Fahey. You are revolted. You want revenge. You want to strangle the person that did it. But you can't—because you're jurors. You're twelve people. You have to decide—never mind what happened after she died.
How
did she die? Was it murder, or was it not? Was it an accident? Was it something?”

Joe Oteri had just pulled a sensational rabbit out of his hat. The question was, could he make it hop? He ended his opening remarks with a patriotic paragraph about America and the “presumption of innocence” that ruled its courts. “What that means is any one of us—me, you, this lady, Wharton—no matter what we're accused of, no matter what we're charged with, we stand here in this jury room before you, sir, and you, ma'am, and everybody else, presumed innocent. And we will remain innocent, wrapped in a cloak of innocence, until that prosecution can rip that cloak from you by proof beyond, and to the exclusion of, all reasonable doubt.

“And until that's done, Tom Capano is innocent.”

T
HE
opening statements in a trial give the jury an overview of the entire case. Both the state and the defense attorneys tell the jurors what happened and how they will prove it. Their conclusions are, of course, dissimilar. Now, each had to produce compelling witnesses and physical and circumstantial evidence to validate their rhetoric.

The first morning of the trial had come to an end and with economical use of time; both sides had finished their opening statements. The suggestion that Anne Marie had died in an accident had everyone guessing. It could not have been an automobile accident; there had been no damage to any of the cars involved in the case. Had she fallen down Tom's stairs or drowned in his bathtub? One reporter thought Oteri was suggesting that some kind of kinky sex had gone wrong.

Outside the courthouse, reporters crowded around Oteri. He
seemed comfortable when he said, “Yes, Anne Marie did die at Tom's house.”

“Why did he take her out on the boat if it was an accident?” someone asked.

“Because you can't keep it at home,” he shot back in jest. But it was a sick joke and drew only nervous laughter.

Oteri was already walking away as someone asked him, “But why didn't he call 911?”

O
NE PART
of the long journey toward the truth was over; the witnesses and the evidence came next. Now, Colm Connolly and Ferris Wharton would present their case to the jurors. Often, one of them began with the direct examination of a witness and the other did the redirect. Each had a mind geared to details, but Connolly was the more intense of the pair, while Wharton often began his questioning with an easier style, homing in later. Tom's “dream team” watched carefully for any weak spots that might provide an opportunity to jump in on cross and lessen the impact of the testimony.

No one in the courtroom heard what went on in the sidebar conferences at Judge Lee's bench. On the opening day of the trial, there was a discussion of something as simple as the problem of the Capanos' bringing bags of candy to pass around to lawyers and paralegals. Judge Lee commented dryly that he would not allow the attorneys to speak with candy in their mouths. More important was Lee's disapproval of Tom's demeanor.

“Tom's turning around and talking to his family all the time,” Lee said, “and they've [Department of Correction guards] asked him to stop, and he's told them he's not going to stop. This trial is not a visiting period with his family.”

Brian Fahey was the first witness for the prosecution. Anne Marie's family had waited for twenty-eight months to tell her story, but it must have been difficult for him, her closest sibling in age, to remember the good and the bad times. As one reporter said, “Brian had his heart in his eyes. Looking at him, you felt that he had known Anne Marie so well and generally understood people on a spiritual level—as if he somehow knew things without having to ask.”

Brian answered Wharton's questions carefully and without emotion.
He recalled the day they all lost their mother and Anne Marie's struggle to grow up amidst chaos. She had, indeed, grown up, working hard for her education as they all had. He remembered the last time he had seen her, sitting in O'Friel's and holding Mike Scanlan's hand.

“She asked if she could pick me up at the airport [when he came back from Ecuador]. I said yes, and then I told her I would call her and give the time and flight and all that.”

But when he came back, Anne Marie was not there. He had never seen her again.

Joe Oteri's cross-examination continued his attempt to disparage Anne Marie. Brian would not go along with Oteri's characterization of his dead sister as having an “Irish temper.” When Oteri tried to paint her as neurotic and promiscuous, it fell flat; Brian simply gazed at him with a calm but resolute expression.

Yes, it was true that the Fahey family had filed a civil suit against Tom Capano and members of his family. Yes, they had hired an attorney, David Weiss. Once Oteri had brought the matter up, Wharton asked Brian on redirect why he and his siblings had filed such a suit.

“Basically, we believed that Tom Capano had murdered my sister,” he replied. “We believed that he got his brothers to help him cover it up. And so we decided that we needed to do something—to take action.”

“Why?” Wharton asked.

“We were very mad and believed that they were responsible for causing my family a great deal of pain, for killing my sister, and being perfectly content to [let us] live out the rest of our lives without ever knowing what happened to our sister. And I didn't think that they should be able to get away with that without us putting up some kind of fight.”

The animosity between the Fahey and Capano families was palpable and dramatic. The Capano side of the gallery stared stonily at Brian. But there was more drama in the courtroom than most people there realized. At 2
P.M.
, Judge Lee received a phone call that said, “Capano is going down in an hour.”

Lee called a sidebar conference to inform the attorneys about the death threat against the defendant. Joe Oteri's witty response was, “May Mr. Capano be moved up to the prosecution table, please?”

Wharton smiled. “Well, if you trust him up there with us.”

Lee pointed out the extra guards he had stationed in the courtroom and the consensus was that it was a crackpot call. An hour
passed and nothing happened. The trial went on, and no one—not even the media—knew about the death threat.

The next day, Colm Connolly began questioning Kathleen Fahey-Hosey. She was very pretty and looked a little like the pictures of Anne Marie, but she was blond, more petite, and wore glasses. Kathleen recalled her dread when her sister had not been home waiting for Mike Scanlan to take her to Robert and Susan's house for dinner on the night of June 29. Connolly showed her a picture of the small settee in Anne Marie's apartment. “Do you recognize any of the clothing on this couch as being there when you went to the apartment on June twenty-ninth?”

“Yes. The robe and the blue-and-white striped shirt and blue pants.”

“How about this item right here?”

“That's a floral dress that Anne Marie bought to wear to the Point-to-Point with Mike Scanlan.”