WILMINGTON, Del. -- The lawyer who would represent himself has decided instead to turn that unenviable task back to his lawyers.
"Tom [Capano] is obviously a very bright guy. He decided he's better with us than without us. It's that simple," said Joseph Oteri, one of four lawyers who yesterday continued their defense of the accused murderer despite his proclaimed desire 24 hours earlier to fire them.
Capano, a wealthy and politically connected lawyer, had thrown another surprise into a tumultuous trial on Monday when he announced that he wanted to defend himself against charges that he killed his one-time lover, Anne Marie Fahey, the governor's scheduling secretary.
He cited "irreconcilable differences" with his lawyers, saying he wanted a "chain saw" defense instead of the "scalpel" that they were using.
But, after a three-hour meeting with his lawyers Monday night, Capano decided to allow his attorneys to proceed with their defense. Compared with his grand pronouncements on Monday, was terse in his public explanation for his change of heart yesterday.
"There was some misunderstanding on my part," he told Superior Court Judge William Swain Lee yesterday morning. Lee delayed the trial Monday, when the defense was scheduled to begin presenting its case, to consider Capano's request.
Although Capano ultimately decided to keep his attorneys, his active role in his own defense was clear yesterday, as it's been throughout the trial. He whispered often into their ears as proceedings continued and scribbled and passed them numerous notes.
His lawyers began presenting their case yesterday, and apparently will call far fewer than the 80 witnesses called by the prosecutors in the first six weeks of the trial.
Yesterday's witnesses offered little new light on Fahey's death. Fahey, 30, was said to have been rebuffing Capano's attempts to renew their affair when she disappeared after dining with him on June 27, 1996. Prosecutors say Capano killed her in a jealous rage; defense attorneys suggest it was another Capano mistress, Deborah MacIntyre, who shot Fahey.
Eugene Maurer, one of Ca-pano's attorneys, spent much of the day hammering on the subject of MacIntyre's credibility. MacIntyre, 48, a former private school administrator, had initially lied to investigators about her involvement with Capano and eventually was given immunity in exchange for cooperating with prosecutors.
MacIntyre has admitted buying a gun for Capano, her lover of some 18 years, and offering an incomplete account of her contact with him during the days following Fahey's disappearance.
The defense also had a series of e-mails that Capano and Fahey exchanged in the spring of 1996 read into the record. The missives were mostly bantering, the scheduling of dinners and meetings and a missed episode of "NYPD Blue."
Other testimony offered yesterday seemed equally trivial. Maurer read an affidavit from the manager of a Philadelphia performing arts center, saying that Capano on June 7, 1996, bought by phone two tickets for a Jackson Browne concert in August, but never picked them up. Two friends each testified to seeing Capano dining with Fahey on two evenings in June. And a neighbor testified that he and U.S. Rep. Michael Castle -- who previously as governor had hired Capano as his chief counsel -- helped push Capano's car out of a snow drift one winter day.
Still unexplained is the defense's contention that Fahey died in an accident that Capano tried to cover up by stuffing her body into a cooler and throwing it into the Atlantic. Oteri has said that one person besides Capano knows what happened that night, but the cross-examination of Mac- Intyre that suggested she was present that night led nowhere.
That leaves only Capano to take the stand and explain what happened that night. But then, a defendant as a witness can be as risky a proposition as a defendant as his own attorney. And defense lawyers have not said if Capano will testify.
Pub Date: 12/09/98