...And Never Let HerGo

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.
    F ERRIS W HARTON made the opening statement for the state. He began with Anne Marie’s own voice. Who better could tell the jury of the struggle she had put up to free herself from the man who now sat at the defense table?
    “I finally have brought closure to Tom Capano. What a controlling, manipulative, insecure, jealous maniac. . . .”
    With a conscientious juxtaposition of facts and time, Wharton told the jury that less than two weeks after that entry in AnneMarie’s diary, Tom had bought a huge cooler. “It wasn’t the kind of cooler you might throw some sodas and some beers in,” he pointed out. “It was a 162-quart cooler. Huge. It was the kind of cooler you might take on a boat when you go fishing. . . . But it was a curious purchase for the defendant because although he could well afford it, he didn’t have a boat and he had no interest in fishing.”
    Moving on, Wharton described Tom’s next step. “On May 13, he made another curious purchase, through a woman by the name of Debby MacIntyre,” he said, and told the jury about the little gun store out on Route 13. The gun she had bought had disappeared, but the cooler would end up as “Anne Marie Fahey’s coffin. You see,” he said, “that person—Thomas Capano—had determined that if he could not manipulate Anne Marie Fahey into being with him, she would be with no one—
forever.”
    Connolly and Wharton had agreed going in that they would not over-try this case; the facts were there, the witnesses were present who would corroborate the facts. And there were vital pieces of physical evidence waiting. Thus, in a very short time Wharton encapsulated the case against Tom: a jealous man, a woman who resisted, a gun, and a cooler. And now he proposed to introduce to the jury everyone who was involved with the case, beginning with Judge Lee and moving on to the prosecution and the defense teams, a gesture a surprised Joe Oteri did not appreciate. “If Your Honor please,” he objected, “I’ll introduce myself and the group to the jury!”
    “Your Honor,” Wharton countered with exaggerated innocence, “I think I’m entitled to do that.”
    “You’re entitled to do that,” Judge Lee said with a hint of a smile. “I’m sure you’ll get a second chance, Mr. Oteri.”
    Judge Lee set the tone of the trial in a courtroom so filled with emotion that it would be a continual balancing act. His sidebar conferences, out of the jury’s hearing, would keep both sides defused, and his sotto voce comments were often hilarious. Lee had six attorneys (seven if you counted the