...And Never Let HerGo

that purchase, he insisted.
    Joey said that Gerry’s memory was not all it could be because his drinking clouded it. “He tends to get things twisted,” he testified. Oteri nodded. Joey’s testimony boosted Oteri’s contention that Gerry was given to confabulation—to mixing up fact and fiction to fill the“Swiss cheese holes” in his memory. To win an acquittal for Tom, it was absolutely vital that Gerry appear to be demented by drugs and alcohol. The Capano family was split right down the middle; Louie had spoken for Gerry, and now Joey was standing behind Tom.
    J OE O TERI had gotten his “Swiss cheese” theory from Dr. Carol Tavani, the psychiatrist who examined Tom just after he was arrested in November 1997. Dr. Tavani testified to the depression that had gripped Tom in March 1998—a period that coincided with Debby’s defection to the state investigators. On direct, Tavani testified to her concern for her patient and how she had tried numerous combinations of antidepression and antianxiety medications to bring him some relief.
    On the witness stand, Tavani also diagnosed Gerry Capano for Oteri, and said she had found that he was a “confabulator,” with “Swiss cheese holes” in his memory. She even analyzed many of Anne Marie’s writings and suggested that, in her opinion, they showed she had had a very pleasant and friendly relationship with Tom Capano.
    Upon cross-examination, Ferris Wharton queried Tom’s psychiatrist about the best way for physicians who deal with mental health to evaluate patients. Tavani agreed that it was vital to meet the patient and do face-to-face screenings before beginning treatment. There were so many factors to consider: body language, general demeanor, rapidity of response, the state of nourishment, eye contact . . .
    “In fact,” Dr. Tavani offered, “most of our communication is nonverbal. Eighty-five percent of our communication—from those who have studied this sort of thing—is actually nonverbal.”
    Wharton had deftly led the psychiatrist into a trap; Dr. Tavani had never met either Gerry Capano or Anne Marie Fahey. She had not even watched as Gerry testified. By her own definition, she had no access to the essential 85 percent of nonverbal communication she needed to properly assess a patient. Tavani, who appeared squarely behind Tom, lost much of her credibility the moment she began to diagnose “patients” who were not and never had been under her care. Moreover, she agreed that she and Tom had built up so much rapport that he had refused to speak with any other prison mental health professionals.
    More defense witnesses appeared, many to speak of rumor, not fact, and it soon became obvious that the crux of the defense case would be the testimony of Tom Capano himself. As Judge Lee hadnoted, Tom did, indeed, want to get to the jury. He had been a popular, well-liked man for all of his adult life. Apparently he felt that his most compelling evidence was his own personality and his ability to explain to the jurors the reality of what had happened on the night of June 27, 1996.
    D EFENSE attorneys in homicide trials fight to keep their clients off the witness stand. Once the defendant finishes with the friendly questions of his own lawyers, he will face cross-examination. Any legal expert would have warned Tom not to testify, and his four attorneys did just that. Judge Lee certainly went over the pitfalls with him. But those who knew Tom would have bet money that he was going to do it. He had backed off reluctantly from handling his own defense, but a week later, on December 16, 1998, Tom rose from the defense table to take the witness stand. The jury was taken off guard; the mouths of three jurors actually dropped open. The Faheys looked alert and suspicious.
    Tom placed his hand on the Bible to be sworn in, but as he sat down, his arm hit it, knocking the Bible from its place. He tried to grab it as it fell to the floor, but failed. It was a jarring moment. Someone far back whispered low enough so only her neighbors could hear, “So much for God’s truth.”
    In a navy blue suit and red tie, with his floppy pompadour neatly combed, Tom was ready to explain everything in his own words. He seemed self-contained and happy to have his time in the spotlight. His cheering section was packed with relatives—his mother in her wheelchair with his cousin Loretta, his daughters, his extended family (but not Kay), all of them smiling tensely at him.