by Tim Junkin
Experienced investigators never know where the key to the puzzle may lie. They pursue every lead. They chase down the clues. They wring out every rag. When Joanne Suder met with Kirk following his sentencing, she promised him that her office would not rest until they found some way to aid him. Joanne came across to Kirk as someone who believed in his innocence, someone who sincerely cared about his plight. She told him not to worry too much, to keep up the faith. Once again, his hope flared.
Richard Gray was an obvious candidate for further study. Doug Cook interviewed ex-Detective Mark Bacon at his home and Bacon was cooperative, forthcoming. Much of what he offered, though, was suspicion rather than fact. Investigators questioned the residents of Fontana Village about Gray, but they learned little that was new. Detective Darden, the polygraph operator from the county police department, gave a short interview to Randy Edwards.
Darden was the detective who had administered the lie detector test to Richard Gray two weeks after the murder. Darden admitted that Gray had failed the polygraph. But he was suspicious and cryptic during the interview. He wouldn’t disclose the precise questions that were asked Gray or which ones he supposedly lied about. Darden said he’d talk more freely only if Ann Brobst would give him permission.
Edwards tracked down Richard Gray and cajoled him into talking. Gray told him that he wore size 8½ shoes. Edwards pressed him about some of the questions that had bothered Detective Bacon. Gray explained that he had eaten his lunch just prior to hearing over his police scanner the report about the missing girl. Before eating he had washed his hands at a gas station, which is why they were clean. He told Edwards that the reason he had picked up the underwear that was found in his car was that he always grabbed used rags when he could. He used them for cleaning his cars and shining his boots. Gray denied that he had a spot of blood on his shirt. It was red paint, he explained. He had been painting a gutter for someone the week before.
Gray seemed to have an explanation for everything. The investigators continued to probe.
They went to the News American offices where Gray had been employed and began asking around for any information about Gray, about Kirk Bloodsworth, looking for any clue. It was October 1985 when Doug Cook ran into a woman working at the News American who told him she was disturbed about the Bloodsworth conviction. She felt uneasy not so much about Richard Gray but about another colleague there, John Michael Anderson.
Anderson looked like the composite, she said. He was over six feet tall and wore a cowboy hat and cowboy boots most of the time. Her fifteen-year-old daughter had ridden with him once delivering papers and had returned home spooked. She’d told her mother she would never get in his car again. He had trash, razor blades, and dirty magazines all over the back and had acted weird and frightening.
Doug Cook found another News American employee who told him that after the Bloodsworth conviction, he’d overheard a colleague mention how closely Anderson resembled the composite sketch. A lightbulb flickered. This man had called the Fullerton Police Station and asked them whether Anderson had been investigated. He told them about Anderson’s resemblance to the composite. The detective he spoke with told him that no, Anderson had not been investigated. Nor did they have any interest in Anderson. The man thought the detective had been rude.
Cook discussed this information with the lawyers. Maybe in Anderson they’d found their “Cowboy Bob,” the suspect who kept appearing on the earlier police reports, the one mentioned repeatedly by the residents of Fontana Village the day of the crime.
Cook learned that Anderson often rented cars from Betz Auto Leasing in Rosedale. Randy Edwards and Sam Wallace visited there. On July 25, 1984, Anderson had rented a 1975 Pontiac LeMans in the morning, then returned it that afternoon and exchanged it without explanation for a different car. The Pontiac had a red interior and the carpet inside was a burgundy color. The carpet was made up of red fibers. A Betz employee who rented the car that day, recalled having seen child pornography in the car when Anderson returned it. It also had boxes of sweets, candy, and gum in it. She believed at the time that the sweets were to lure little girls into the car and advised her boss to call the police. There was also a large stain on the carpet in the trunk. Another Betz employee told the investigators that she remembered a car Anderson returned on a different day, in early August 1984, an Oldsmobile with a trunk full of trash. She’d been the one who had to clean it out. There was a half pint of whiskey, she recalled, a half joint, some gay magazines, a box of child pornography—pictures of children and adults having sex, and some chewing gum wrappers. Big Red gum wrappers, she specifically recalled. It also had empty candy boxes in it.
The Pontiac had been sold some months before. Wallace and Edwards tried to track it down so that the stain in the trunk could be analyzed. They followed it through three different owners, but the trail disappeared. Whoever bought it last had left town. There was no trace of where it went.
Sam Wallace learned that Anderson had a criminal arrest record and had been treated for mental problems. Eventually, he discovered that Anderson had a court appearance coming up in nearby Montgomery County. Anderson had been charged with assault. Wallace was waiting for him.
In the courthouse corridor, Wallace told him he was looking for help in the Kirk Bloodsworth case. He told Anderson he was looking for information about Richard Gray. Anderson had his lawyer with him and agreed to be interviewed. The lawyer left to do other things. Anderson was talkative, friendly. He did resemble the composite sketch. He knew Richard Gray’s wife, he said, and liked her, but he thought Gray was dirty, unkempt. He confirmed he often wore a cowboy hat and boots but sometimes wore tennis shoes when he had to deliver papers himself. He told Wallace that he had a mustache back in July and owned some Ocean Pacific shirts. He admitted to using cocaine and pot sometimes and described himself as a binger. As far as July 25, he was out doing his job, he said. He recalled Gray’s wife mentioning something about her husband’s finding the little girl’s clothes, but Anderson couldn’t remember where that conversation occurred. July was a while back. He was a bit fuzzy.
The investigative team wasn’t about to narrow the scope of its inquiries to one possibility. It also set out to learn more about the suspect known as the Candy Man. W. F. Johnson, the man who passed out lollipops to little girls at the Calvary Baptist Church was the one Detective Milton Duckworth had suspected of committing the murder. Wallace and Edwards interviewed him in February of 1986. They thought he rambled, contradicted himself, had trouble maintaining his focus on one subject. He offered little useful information and said nothing incriminating. They obtained his psychiatric records from the Clifton Perkins State Mental Hospital. The records were voluminous. He’d been treated for pedophilia and discharged in 1975 on a five-year conditional release. Interesting, but not much help.
During this time, Wallace and Edwards continued to pursue interviews of the trial witnesses. Thelma Stultz was questioned in March. She remembered, for the first time, that Kirk had specifically denied committing the crime and had told her that the person who did it was sick. Wallace and Edwards visited James Keller in May. They showed Keller a photographic array that Wallace had put together containing Kirk’s picture. Keller identified someone other than Kirk as the stranger he’d seen at Fontana Village on the day of the murder. Throughout the interview, Keller kept pointing to the picture of this other man, referring to him as the one he’d seen.
Donna Ferguson and Nancy Hall were interviewed. While admitting that she was high on marijuana the morning of the murder, Ferguson said, “I don’t think I was completely delirious when I saw the man.” Nancy Hall told Wallace that she’d kicked her drug problem, that she was clean. During their meeting, her eyes were bloodshot, her pupils dilated. They remained so even in the bright sunlight. And she slurred her words. Wallace and Edwards both thought she was stoned.
Gary Christopher met with Kirk numerous times. He went out to the crime scene and walked it. He didn’t believe that
anyone not intimately familiar with those woods could have killed Dawn Hamilton and then found a way out through the back paths. The woods were dense with thorny underbrush and covered with poison ivy. Kirk Bloodsworth had not been infected with a rash when arrested. Christopher became convinced that Kirk was innocent of the crime. The question was what to do with all of this information. How to use it to get Kirk a new trial. Gary Christopher and the other lawyers began researching a way to turn it all into a pleading they could file, a way to bring the case back before the court.
TWENTY-ONE
ON THE TIER above the cell where Kirk was imprisoned, almost directly overhead, was the room that contained Maryland’s gas chamber. A few of the guards had a nasty habit. They liked reminding Kirk that it was there waiting for him; they got their kicks by talking in his presence about just how the process worked.
In the center of the room, like some large deep-sea diving bell, stood the chamber, a hexagonal structure, eight feet high, made of steel and surrounded by reinforced glass windows. It had been constructed in 1956. Bolted to the floor was what everyone referred to as the captain’s chair. It was made of steel with interlocking cuffs for wrists and ankles. It had thick leather straps attached to it that would restrain the body during the convulsions caused by gas poisoning. The glass panels existed so that the select witnesses could watch the final death throes of the person being executed.
Inside the chamber and underneath the chair was a stainless steel vat. Sulfuric acid would be poured into the vat. Cyanide tablets, wrapped in gauze, would then slowly be lowered through a mechanized lever into the acid. As the tablets dissolved, they filled the room with the sharp, acrid, and lethal hydrocyanic gas that burned the eyes, nose, throat, and lungs. It wasn’t supposed to take too long, maybe ten minutes or so. Sometimes longer if you were a big person like Kirk. The gas caused gagging, foaming at the mouth, writhing, and convulsions.
Every time Kirk walked into the prison yard, every day, he could see to the roof above the chamber where the state executed its prisoners, where the state was planning to take him. There were ventilation pipes running up through the concrete. These pipes were unique to the prison. They let the gas escape.
Kirk didn’t know why he was compelled to look every day. He had a fixation. He couldn’t help himself. His neck would just turn, his eyes move to those pipes. He had to see if they were still there.
Once some guards told him they needed him on a painting detail. They escorted him up to the level above his cell. They took him to the room where the gas chamber stood open, handed him a can of paint and a brush, and pushed him inside. They wanted him to see the vat and the captain’s chair. “You’ll be the captain, soon,” one of them said. “We want to get it ready, for you.” The man grinned. “Take a good look, Captain Kirk . . . Paint it up. Make it nice and prime for your bad ass . . .”
Kirk began to dream of suffocation. He’d wake up unable to breathe, choking, gasping for breath, as though a kerosene-soaked rag had been stuffed down his throat. He couldn’t shake it. He’d wake gagging, run to the toilet, and throw up. This happened over and over.
IN MARYLAND, THE highest appellate court, the supreme court for the state, is called the Maryland Court of Appeals. There is also the Maryland Court of Special Appeals. Under the state’s judicial structure, the court of special appeals usually hears and decides cases first. Because of his death sentence, Kirk was entitled to appeal directly to the state’s highest court.
An appeal of a case is a true exercise in legal scholarship. There are no live witnesses; there is no testimony. Court reporters transcribe all of the proceedings that took place in the lower court. Every word of every witness who appeared at trial is set down. Arguments of the lawyers, objections, and rulings of the judge all are recorded in a transcript that can easily run thousands of pages. Appellate lawyers are given the responsibility of reviewing these written transcripts, looking for judicial error, looking for things that the prosecutors or the judge did that were legally improper and that caused prejudice to the defendant.
A good appellate lawyer must know the law well in order to identify possible issues as the volumes of transcripts are read. Then, once the transcript has been reviewed and digested, the legal research begins. The lawyer must develop the arguments around the issues identified and find the legal cases, whether recent or ancient, that support those arguments. Finally, the appellate brief must be written. If done well, it concisely and convincingly sets forth the facts, the issues, the arguments that mandate a reversal, and the legal authorities that support those arguments.
While the defense team continued its intensive efforts to turn up new evidence, Kirk’s appellate lawyers spent months preparing his appellate brief. When they finally filed it, the pleading ran to ninety-two pages. In it his lawyers raised sixteen different questions for the court to consider. Of these, six would be the main focus of oral argument, any of which could possibly win the day. Was the evidence sufficient to sustain the conviction? Was the shoe evidence admissible? Did Judge Hinkel err in refusing to strike a prospective juror who had counseled the mother of the victim? Did the suppression by the state of the Richard Gray material violate the defendant’s right to a fair trial? Was Birdie Plutschak wrongly prevented from relating what the defendant had said to her? Did the trial judge abuse his discretion in excluding the testimony of the eyewitness identification expert? As is standard procedure, the lawyers were allotted one hour for oral argument, a half hour per side.
The night before the appellate argument, Julia Bernhardt and George Burns worked late preparing. They kicked the issues back and forth, tried to anticipate the questions the judges might ask, rehearsed what they planned to say.
While in law school, Julia Bernhardt had worked as a law clerk in the public defender’s office. Upon graduation, she’d served as a clerk for Judge Joseph Kaplan of the Baltimore City Circuit Court. In 1982 she accepted a job in the appellate division of the public defender and had worked there since. It was agreed that she would prepare and present the main argument. After the attorney representing the state finished arguing, Burns would handle the rebuttal.
The next day, March 4, 1986, Kirk’s brigade of public defenders traveled to Annapolis. They came to watch, to hope, and to assist Bernhardt and Burns as they argued their points before the seven judges of the Maryland Court of Appeals.
The court of appeals has an imposing and stately interior. It reeks of old English, of the pomp and circumstance of colonial times. Walking into the courtroom is like walking into a theater. The lights are dimmed. Instead of a stage, a raised dais of polished mahogany four feet or so above the floor spans the front of the room. There are seven high-backed burgundy leather chairs behind the long bench. Behind the chairs, on each side of the platform, are large mahogany doors. When the court is called to order, the seven judges, all dressed in scarlet robes with white dickeys, simultaneously step out through the doors, three judges from one side, four from the other, and take their seats at the raised bench.
When the Bloodsworth case was announced, Julia Bernhardt rose to speak. She took her place behind a wooden podium, inset with a digital timer and a microphone. The timer would tick off her thirty minutes. A red light would flash when her allotted time was up.
Bernhardt began her presentation by arguing that the evidence put forward by the state was weak, of poor quality, insufficient to support a conviction. She liked to begin with an attack on the quality of the evidence, because even if the argument failed, she believed that first thrust tended to soften up the judges, make them more amenable to her other points. She went on to hammer home her complaint about the government’s failure to turn over Detective Bacon’s report on Richard Gray. This was classic Brady material, she argued. It was exculpatory. The defense had a right to know about it. She moved to the exclusion of Dr. Buckout’s testimony. While there were a number of issues to address, the judges, from their questions, seemed interested in returning to the sufficiency of
the evidence issue and also the Brady question. Why hadn’t Detective Bacon’s report been turned over? And if it had been, might it have changed the outcome?
Valerie Cloutier argued on behalf of the state. Cloutier was no stranger to the court of appeals. She had been a teacher and had also worked for the federal government in military intelligence before going to law school. Like Bernhardt, she too had clerked for a circuit court judge, Judge Eugene Lerner of Anne Arundel County. Following her clerkship, she’d gone to work for the Criminal Appeals Division of Maryland’s Office of the Attorney General. By the time of the Bloodsworth argument, she’d been promoted to deputy of that division and had argued dozens of cases in the court of appeals.
Cloutier had seen the photographs of Dawn Hamilton. The photographs were so vivid that they had upset even a seasoned attorney like herself. She assumed they also must also have shaken the jurors. Cloutier appreciated the fact that the evidence against Bloodsworth, since it was mostly circumstantial, might give the court pause. She rose to parry the thrusts made by Bernhardt.
Cloutier was hit with a wave of questions from the bench. Judge Marvin Smith, who ended up authoring the court’s opinion, asked in his gravelly voice whether the state really wanted to send someone to death based on circumstantial evidence. His brow was wrinkled. He looked troubled. Judges John Eldridge and Harry Cole pummeled her with similar questions. They asked about the Detective Bacon statement, about why the trial judge hadn’t let Birdie Plutschak respond to what the “bad thing” was that Kirk had told her, after the state had placed such importance on Bloodsworth’s words. Cloutier could hardly keep up with the barrage of questions. Afterward she felt like she’d been in a prize fight. She felt bruised. She told her husband later that night that the court was going to find some reason to overturn the conviction.
