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Sudden request by the defense interrupts Capano's testimony Murder trial recessed as lawyers ask to meet with judge in private


WILMINGTON, Del. -- The stage was set yesterday. Thomas Capano was building to the moment when, finally, he would explain under oath what happened that night 2 1/2 years ago when his girlfriend was killed in his home and he stuffed her body into an ice cooler and dumped it into the ocean the next day.

But, as has happened so often in the tumultuous, eight-week trial, yet another disruption left the proceedings up in the air: a sudden request by defense attorneys to speak to the judge out of the presence of the prosecutors and the public. As a result, the trial was recessed until Monday.

Speculation over the reason for the defense request ranged from possible problems with Capano's testimony to a dispute with his attorneys, who increasingly are at odds with their willful client as they try to counter the prosecution's strong but circumstantial case.

Capano, a once prominent and politically connected attorney, recently declared he wanted to fire his lawyers and defend himself, only to change his mind a day later. And, over the objections of several of his attorneys, he has insisted on testifying, which most lawyers consider highly risky.

One line of courthouse speculation centered around the possibility that Capano had made a statement that attorneys knew to be false, or that his testimony was headed in that direction, and his lawyers were thus obliged to inform Superior Court Judge William Swain Lee.

Andrew Radding, a former assistant U.S. attorney in Baltimore now in private practice, said, "Given this case, my inclination would be to suspect that they're having another divergence on how the defense is being handled."

Radding and other lawyers said the defense request was highly unusual. "Even in the O.J. Simpson case, you didn't see this happen," Radding said, "and everything in the world happened in O.J."

The interruption occurred after the trial's normal afternoon break, which stretched longer than usual. Instead of returning to the witness stand, Capano sat down at the defense table, visibly angry. Lee excused the jurors, cleared the courtroom and held a 25-minute meeting with the four defense attorneys.

"We can't say a word," Capano's lead attorney Joseph Oteri said as he left the courthouse.

Capano spent much of the day testifying about his two lovers, Anne Marie Fahey, the 30-year-old scheduling secretary to Gov. Thomas Carper whom he is accused of murdering, and Deborah MacIntyre, 48, whom his attorneys have suggested pulled the trigger.

Both, he said, initiated the flirtations that led to the affairs.

"Anne Marie's probably the biggest flirt I ever met," Capano said. After meeting through the political circles in which both were involved, their relationship became sexual after he took her to dinner on her birthday, Jan. 27, 1994.

"I was crazy about her. She seemed to feel the same way about me," Capano said, and they occasionally spoke of marriage.

Immediately before the afternoon interruption, Capano had been testifying that he became alarmed by how thin Fahey had gotten in February 1996, after years of suffering from eating disorders, and that he tried to force her into a hospital program.

He said he withdrew $17,000 from the bank and borrowed $8,000 from his brother Gerry and showed up at Fahey's apartment demanding that she take the money and check in. (Gerry Capano previously testified that his brother borrowed the money to pay off extortionists.) Fahey refused and threw the money back, he said.

Earlier, Capano gave further details of his relationship with MacIntyre, whom he characterized as the most sexually driven woman he had ever met. Their relationship, which began in 1980, had its ups and downs, but at the time that he was arrested in November for Fahey's murder, they were planning marriage, he said.

As his ex-wife, Kay Capano, and some of their daughters listened in the courtroom, Capano's defense attorneys played tapes of telephone conversations he had with MacIntyre in February and March, after he learned she was cooperating with prosecutors.

MacIntyre taped the conversations, in which the imprisoned Capano is highly distraught over what he considers a betrayal. He badgers MacIntyre to fire her attorney and hire one of his choosing and demands repeated declarations of her love and loyalty, which she provides.

Although Capano testified that he would protect MacIntyre for what he says is her involvement in Fahey's death, he never is heard on the tapes confronting her over how she could turn on him when he went to prison rather than tell police she was the killer.

Capano said he did confront her in one phone call during this time, but she hadn't taped that one. He also said he feared FBI monitoring of his calls and thus didn't want to reveal too much about her involvement.

MacIntyre purchased a gun in May 1996. She claimed Capano asked her to buy it for him; he said she bought it for herself over his protestations. He said MacIntyre showed up at his house with the gun on June 27, 1996, the night Fahey is believe to have been killed.

L The details of that night, though, have yet to be explained.

Pub Date: 12/18/98

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