Innocent Victims

by Whisnant, Scott;

  But as far as her dad could tell, the events of May 9 had not permanently scarred her. He didn’t even mind taking Jana back to Fayetteville, no longer afraid past events there would haunt her. But then he bumped into the Hennises. He watched as Tim Hennis bounced Kristina on his shoulders. Gary envied a family that was together. His had been taken.

  Chapter Sixteen

  In The Defense Never Rests, F. Lee Bailey wrote that the closer a case gets to a jury, the less important a defendant’s guilt or innocence becomes. Bailey suggested a defense lawyer should get rid of a case as soon as he can. Jerry Beaver underlined that passage along with many others in his dog-eared copy of the book and referred to it in early January, nine months after the murders. F. Lee Bailey’s words could help him win the case.

  “We’re going to get Patrick Cone suppressed,” he told Richardson.

  Beaver feared that the state would take a cue from the bond hearing and realize its case had little more than Patrick Cone. He saw no reason to wait around for the state to find more evidence against his client, particularly after detectives that summer had already tried to pressure some of Hennis’s friends to say bad things about him.

  Detective Ron Oakes had irritated many of Hennis’s co-workers in the 600th Quartermaster. “They were trying to pressure you into saying something you didn’t want to say,” said David Guthrie, who stuck to his story that he’d been sitting with Hennis about the time the stolen bank card was used. “The state tried to make you feel guilty for saying what you were saying. They were trying to say either I wasn’t telling the truth, I didn’t remember it right, or I was outright lying.”

  Oakes hounded Kaarlo Ward, the day-room orderly who said he called about 11 that same night to ask Sergeant Hennis about closing the day room. Ward complained to Nelligar that Oakes wanted to hear another time.

  “Did you wear a watch?” Oakes asked.

  “Well, no.”

  “Then how do you know what time you called?”

  “I know because I got off work, showered, and was in bed by 12:05. I remember 12:05 because I saw the clock when I went to bed.”

  “But you didn’t wear a watch?”

  “No.”

  “Your story won’t hold up because you’re not sure about any of these times.”

  Manuel Fonseca, the CQ who relieved Hennis on Saturday morning, said Oakes wanted him to testify that Hennis had left earlier than 8:45, giving him time to get back out to Methodist College. But Fonseca wouldn’t do it.

  Richard Forgash, one of Hennis’s best friends in the Army, reported that Oakes had tried to convince him that Hennis was a womanizer who read pornography and was a financially strapped man with a bad temper trapped in a poor marriage.

  The same line of interrogation was used with civilian witnesses. The SBI sent Agent John Richardson to Selma to talk to Glenn and Judy Wiggs, whose home had been the drop-off point on May 9 for Angela to meet her father. Glenn Wiggs, then the assistant superintendent of Johnston County schools, and Judy had followed Angela and her father out the door that night to present an award at a Future Farmers of America banquet. Tim Hennis had been left alone with the Wiggs’s three young children.

  “He was a lot like an older brother,” said Tonya Wiggs, fifteen at the time. “I looked up to him.” She remembered Tim giving her stick candy and picking up her six-year-old sister, holding her high over his head until she giggled. Within a few hours, the state contended, Tim Hennis was slashing two other little girls’ throats.

  “Off the record, Hennis is guilty,” Agent Richardson told Glenn and Judy. Did they know Hennis had been married once before? Did they know he’d been kicked out of flight school, had been adopted, or had passed bad checks in Minnesota?

  The agent kept pushing. Did they know Hennis was seeing another woman while Angela was pregnant and had stopped to see her on the way home from Selma on May 9? He showed them the composite photo and asked if it looked like Hennis. He showed them pictures of the Eastburn children.

  Glenn and Judy Wiggs complained to the defense lawyers that the SBI agent was trying to get them to say something derogatory about Hennis. Two weeks later, Agent Richardson interviewed Tonya in her father’s presence and asked her if she knew Hennis was fooling around.

  The state successfully negated one of the better defense witnesses in the Summer Hill neighborhood. After a meeting with Jack Watts, David Hill was no longer sure it’d been Thursday, May 9, when he saw the mysterious blue van parked across from the Eastburns’. Might have been Friday, Hill said.

  Hill’s retraction confused the defense. As early as May 13, he’d told the Fayetteville Times that he’d seen the van on Thursday, a comment that appeared anonymously in print. Beaver gave up on Hill as a trial witness. He feared he might have to give up more if other stories changed. But if he could get Patrick Cone to say in open court what he’d told Nelligar and Richardson on Summer Hill Road—that he was no longer sure who he saw—the state would have no case. Beaver wanted to schedule a suppression hearing as soon as possible.

  “We can’t do that,” Richardson said. “We got to save it for trial. If it comes out and something goes wrong, they’ll get to him. They’ll scare him, and he’ll turn it around.”

  “If we don’t hold the hearing soon, we may be waiving our right to one,” Beaver said. “How would we look when we’re post-convicted on that?”

  A cloud that looms over a lawyer in a capital case is the possibility of being post-convicted. After a conviction, a lawyer at the appellate level looks over the trial record to determine if the client wound up on Death Row because of his lawyers’ bad decisions.

  “Tim’s already out on bond,” Richardson said. “Why do this now?”

  “You had all this evidence, you had a duty to file a motion to suppress,” Beaver said, his voice rising. “They could challenge your law license.”

  “You got to play your cards at the right time,” Richardson said. “There’s no guarantee they’ll dismiss it anyway. The best thing to do is let a jury find him not guilty.”

  “Billy, I’m lead counsel in this matter …”

  Beaver’s seniority prevailed, but he hadn’t convinced his partner. Richardson saw nothing to be gained from pushing a motion hearing that would jeopardize the trial a few months later, when Beaver could use Cone’s doubts to tear the state’s case apart before a jury. Instead, a suppression motion would be heard before a judge, and Richardson doubted any elected official would have the courage to quash the state’s primary witness in a triple murder.

  “Let’s ask Tim if he wants to do this,” Richardson said, though he could guess his client’s reaction. He was right. Hennis jumped at a chance to end the case. Richardson drew up a subpoena and rounded up Nelligar for another Cone hunt.

  This time they found him staying with his sister in Gibsonville, two hours away. Patrice Glover’s home had been a refuge from the pointed questions of his father, who’d never seemed to believe him. Patrice bolstered her brother’s confidence, telling him he’d done the right thing. “Nobody knows what you saw but you,” she told him. In the two days Pat had been at her house, he’d finally gotten away from the case. Then Billy Richardson pulled up in the driveway.

  “Pat, we need you for a hearing next week,” Richardson said. “This is a subpoena. This means you have to be at the courthouse in Fayetteville.”

  Cone looked it over. He’d never seen a subpoena before. He thought for a minute. Oh well, he thought. He missed his girlfriend, anyway.

  “Can I ride back with you?” Cone asked.

  He jammed what few clothes he’d brought inside a windbreaker and picked up his stereo and earphones, the same load he’d moved time and time again to apartments around Fayetteville since Mother’s Day.

  Nelligar turned to Pat in the backseat once they started.

  “Well, it helps a lot, Pat, what you said about the whole thing.”

  “Each time we talk it helps,” Richardson added.

  “We�
��re not the bad guys they kind of painted us to be, are we?” Nelligar asked.

  Pat spent the next couple of hours talking about the case, the only thing the three of them had in common.

  As Richardson started negotiating Fayetteville traffic, he asked Cone if he would make a tape-recorded statement confirming his doubts on seeing Hennis.

  “Don’t make no difference, you know,” Cone said. Nelligar fiddled with the tape recorder and made sure he had a blank tape.

  “I don’t know if you’ll be messing with us much longer, anyway,” Richardson said. He began to think maybe Beaver was right. Pat could end the case right here in his backseat.

  Nelligar lined up the tape. “Okay, Patrick, at this time I’m turning on the tape recorder, all right?”

  It was a ruse. The tape recorder had been on since they left Gibsonville, picking up every word Patrick Cone had said.

  “At any time have I told you what to say or forced you to say anything against your will or anything like that?” Richardson asked.

  “No, you sure haven’t.”

  “Okay. At the time that we were in, you know, going to, uh, coming home or coming to Fayetteville, you indicated to me that you had thought long and hard about your identification of Hennis.”

  “Yes.”

  “Okay. And what did you tell me?”

  “I said that I wasn’t too sure. At first I was, but now I’m not.”

  “What do you mean by ‘you’re not too sure’?”

  “Um, you know, I could have been mistaken about it, you know, that was the man.”

  “Do you feel that you have a reasonable doubt, or that you have a doubt as to the identity?”

  “Yeah, you know, for right now. But, you know, I’d like to think about it a little bit more, you know, but for right now, you know, that’s how it stands. I’m doubtful.”

  “Okay. And why do you have that doubt?”

  “’Cause, you know, I’ve read the papers and everything, and it’s not starting to add up like it was, you know, at the beginning. And of course, you know, I have talked to my father.”

  Richardson asked Cone what he would say if asked in a courtroom to identify Hennis as the man he saw.

  “If that was the case, and we were down to the court and everything and they showed me the pictures, you know, then I would probably say, you know, that I wasn’t sure.”

  “And when did you get this feeling that you might be wrong?” Richardson asked.

  “Uh, I don’t know, a couple of months afterwards.”

  “So you’ve had this feeling. It wasn’t just something that came over you today.”

  “No, un-uh.”

  “You’ve had this feeling for …”

  “About three months, might be longer than that.”

  Richardson was finished, but Nelligar wanted to get one more thought into the record. “At any time, Patrick, that we’ve been talking to you on the three or four occasions, have we ever tried to force you to say anything?”

  “No.”

  “Or to change your mind or do anything at all?”

  “No, sure haven’t.”

  “Anything you want to add to that, Pat?” Richardson asked.

  “No, not really, you know, but y’all are good guys. That’s about it.”

  Beaver was ready to play the tape in court, but the hearing was rescheduled for two weeks later. Cone went back to Gibsonville, where Richardson had to subpoena him again. By now Cone’s tape-recorded statement had been typed into an affidavit that Richardson wanted Cone to sign before a notary. As he neared Sanford, Richardson outlined his strategy for Nelligar.

  “Here’s how this thing’s gonna work,” he said. “I’m gonna go up there and say, ‘Look, we just want you to sign what you told us before.’ And while I’m asking him that stuff, I want you to have the tape recorder in your pocket and turn it on.”

  Nelligar stared blankly.

  “What is it?”

  “I forgot the tape recorder,” Nelligar said.

  Richardson thought about buying another one. He’d pass a Sears in Burlington, the town next to Gibsonville. But then he thought of something even better.

  “We’ll get a privy exam,” he told Nelligar.

  “Do what?”

  First-year law students in property class learn about the archaic privy exam. At one time in American law, a woman was considered the property of her husband and anything she did was presumed to be at her husband’s direction. Whenever she conveyed property, the law called for her to go into a private room, away from her husband, and answer questions from a neutral person on whether she was acting voluntarily.

  Richardson knew that one day a prosecutor would argue he’d harassed Cone. A privy exam would counter that argument.

  They found Cone in his sister’s yard, helping watch her children. “Pat, can you ride with us into town to see a lawyer?” Richardson asked.

  “No problem,” Pat said. Around the corner on Main Street, they found James Walker, the only lawyer in Gibsonville.

  “Can you do me the courtesy of talking with the gentleman here about an affidavit I prepared?” Richardson asked the lawyer.

  Walker had barely heard of the Mother’s Day murders in Fayetteville and knew nothing about its star witness. He knew if he talked to Cone he could become a defense witness in the trial, but agreed to help Richardson as a professional favor. He led Cone down a hallway to his office in the back of the building, went inside, and shut the door.

  “I don’t know who you are. I don’t know none of those people,” Walker told Cone. “They’ve asked me to bring you back here to see if you understand what’s on this paper.”

  Patrick Cone stared at the affidavit, his eyes moving back and forth as he read. Then the two talked briefly about it. Cone told him he agreed with it.

  “Hey, I don’t give a damn,” Walker said. “If you want to sign it, sign it. I don’t care if you sign it or not. It’s nothing to me. I don’t know these guys. I’m not getting anything out of it. Do what you want to do.”

  “Well, all that’s right,” Cone said, looking at the paper.

  Walker took him to his secretary, a notary public, and watched Cone put his hand on the Bible and swear it was true. Then Cone signed it and a subpoena to appear in court.

  William VanStory had not paid nearly as much attention to Cone. He had Cone’s statement and the photo lineup identification, so he left him alone. If Beaver wanted to hold one of his fancy suppression hearings, that’d be fine, VanStory thought. Beaver could complain about the photo lineup all he wanted and wouldn’t get anywhere with it.

  Only one piece of defense evidence worried VanStory, Beaver’s videotape of Patrick Cone walking on Summer Hill Road. Discovery laws in North Carolina entitle both sides to photographs, documents, or reports by expert witnesses that the other side will use in a trial, and the video would be considered a “photograph.” Beaver had no choice but to give VanStory a copy. But because he was certain the audio portion of the tape couldn’t be considered part of the photograph, he shipped a version without Cone’s statements to VanStory.

  The prosecutor plugged it into a VCR only to discover that Beaver had dubbed over Cone’s statements with country music, some of VanStory’s favorites. Hank Williams at Summer Hill. Beaver told VanStory he didn’t do it to be funny. VanStory wasn’t laughing.

  A week before Cone was set to appear as a defense witness in a suppression hearing, VanStory called him to his office. “What are you saying on this tape?” he asked.

  “I told them the same thing I’ve been telling y’all,” Cone said. He told VanStory not to worry, and the prosecutor didn’t. VanStory researched court opinions on photo lineups and prepared to answer Beaver’s argument that his was unfair.

  On the morning of the hearing, Richardson found Cone and his mother sitting outside the courtroom.

  “You still with us?” Richardson asked.

  “Yeah,” Cone said.

  “What was
that for?” Betty Cone asked her son after Richardson left.

  “I don’t know,” he said.

  Inside, the Hennises and Koonces had gathered to witness the end of the case, all having heard the glorious report that Cone had signed an affidavit backing away from his identification. Beth Hennis even flew in from Colorado. Sensing suddenly that the defense was up to something, the prosecution tried to prevent the hearing, arguing the defense wanted a statement under oath from Cone so they could “beat him over the head with a transcript” during the trial. The state said this had to be the reason because Cone had nothing to say that would help the defense.

  So they really don’t know, Beaver thought. This was going to work. He stood up, outraged that the state would try to postpone the hearing after Hennis’s family had come from all over the country.

  Judge E. Lynn Johnson, a forty-five-year-old former FBI agent, prosecutor, and defense lawyer, agreed with Beaver. “The motion to continue by the state is denied,” Johnson said.

  The state then tried to limit the hearing to a discussion of the photo lineup.

  “Mr. Beaver,” the judge said, “do you contend that the other features of your motion will affect the identification of Mr. Cone?”

  “Yes, sir.”

  “In what respect?”

  “Your Honor, in the respect Mr. Cone has provided us with information by way of affidavit and by way of tape recording that he is no longer certain of the identification that he has made that night and is no longer in a position to testify that the person he saw on the night in question was Timothy Baily Hennis.”

  Beaver scanned the room. Blood had drained from everyone’s face—the DAs, the judge, the clerk, even Patrick Cone’s mother. Richardson had been right, Beaver thought. If a jury had been seated, this case would be over.

  VanStory asked to see the affidavit and Judge Johnson ordered Beaver, over his protests, to turn it over. Then the judge recessed for lunch, 15 minutes earlier than usual.