Innocent Victims

by Whisnant, Scott;

  Beaver approached the bench and objected to lunch. He was overruled.

  Before Cone could leave the courthouse with his mother, Detective Bittle grabbed him and led him to an empty room in the district attorney’s office. He sat Cone down.

  “You want some lunch?” Bittle said. Cone said he did not. Bittle left him.

  For the next hour and 45 minutes, Cone sat and waited—alone in that room, looking out a window that gave him much of the same view Tim Hennis once had one building over in the county jail.

  Cone found a legal pad and a pen and began writing.

  Mom, it seems like everything I say to the other guys turns out backwards. I mean everything I say. They are changing it around, because I really don’t remember signing that paper, but they’re saying I did. If I did sign that paper, it was because I thought it was a subpoena, and I’m telling you the honest to goodness truth, Mama.

  The other day when you asked me if I signed the papers saying I couldn’t be sure of who I saw, when I said, “No,” I wasn’t lying to you so please believe me.

  Now, Mama, if the judge doesn’t believe me, I hope you do because I really don’t care what everybody thinks. Mama, they’re trying to say I don’t know what I’m talking about. But, Mama, I know one thing. I was there. I know what I saw when I saw them because I know deep in my heart I know that the man I picked out in the line-up is the man I saw that night. It’s the one who killed those people and I know this is true. I wouldn’t do anything to jeopardize anybody’s life if I were not sure.

  And Mama you know this because I don’t want to play with anyone’s life and, Mama, I don’t care what they say in court about me that I don’t know what I’m talking about because I do. Don’t worry about it. I’ve got something for them. Mama, don’t tell anybody but I have a tape of the lawyers and me on it when they brought me back from Shawn’s house, but I left it at Terry’s.

  By two-thirty, Cone had resolved all doubts.

  “Do you see the man in the courtroom today?” VanStory asked.

  “That young man on the end down there.” He pointed at the defendant and noted his grayish pinstripe suit.

  VanStory had Cone read the “Dear Mom” letter, even the part about having a tape “of the lawyers and me on it,” which wasn’t true.

  If Patrick Cone had said what the defense lawyers thought he would say, Hennis would have walked from the courthouse a free man. The government would no longer have justification to keep him under indictment and would have to report that a baby-killer was still at large. Cone spared the prosecutors that ignominy. Judge Johnson wasn’t about to keep him from telling a jury he had seen a triple murderer leaving the Eastburn house when he could positively identify the man in court.

  But Cone stayed on the stand a while longer, and it wasn’t all good for the state of North Carolina.

  VanStory asked Cone who was in the car with him when he viewed the photo lineup. One officer was Robert Bittle.

  “And was the other officer Mr. Morris here?”

  “Not that I know of,” said Cone. He’d spent an hour and a half in the front seat with the SBI’s Joel Morris.

  Cone denied signing the affidavit until he saw his signature on it. Then he said he thought it was a subpoena. He denied telling Richardson and Nelligar he had doubts, saying he only told them he’d “think about it some more.”

  During cross-examination, Cone tried to back off saying he had seen the white Chevette many times before, but Beaver forced him to admit it. Nor could he deny his story that while looking over the photo lineup, Bittle had asked him, “Have you got him yet?” He explained it wasn’t really 30 to 45 minutes, as he’d told Richardson twice, but just seemed like it.

  Cone said the weather was clear and there was no moon on his walk home. “Because, normally, when I’m walking, I go by the moon and the North Star,” he said.

  Within a month after the suppression hearing, Beaver wound find a meteorology professor who looked at weather reports for early May 10 and said it had been low fog, rainy, miserable weather. In all likelihood, Patrick Cone was rained on during his walk. And while Cone could have seen a couple of hundred yards at ground level, the North Star certainly didn’t guide him home.

  The weather was so bad that an Army rescue pilot had aborted a mission to rescue victims of a car wreck, saying it was so cloudy that it was like “flying in a cave.” His flight took him over Summer Hill about three hours before Cone walked home.

  Beaver wouldn’t use Cone’s weather report against him until the trial. For now he just tried to rattle him on the stand. But as he did so, Cone dug in harder.

  “I know deep in my heart who I saw and what I saw,” Cone said.

  Detective Bittle’s performance on the stand infuriated Beaver further. He asked him about Cone’s first statement to Bittle and Watts on May 13, two days before Hennis was arrested. VanStory didn’t have to turn the statement over until the trial, but Beaver was curious. He asked Bittle how Cone first described the man.

  “The best I can remember, he said six-foot-one to six-foot-two,” Bittle said. “He said ‘about my height’ and I said, ‘Well, how tall are you?’ He said, ‘I’m six-two or better,’ and I said, ‘When you stand up straight?’ And he said yes. He said he was a white man, he had blond hair and a thin mustache. That is the best of my recollection, Your Honor, without my notes.”

  “How many times have you ever seen a detective testify without his notes?” Beaver asked afterward. The state obviously wasn’t ready to turn over that statement.

  After the witnesses were finished, VanStory stood up to argue, furious it had come to this. He was disturbed that he’d heard only portions of Cone’s taped “conversation,” his voice growing louder and the color in his face matching his crimson beard.

  “When it comes down to the important time, the moment of truth when he ultimately is confronted with testifying and with the defendant,” VanStory argued, “he testifies once again there is no doubt whatsoever in his mind.”

  Richardson assessed the damage. Though they had picked up useful tidbits to use against Cone, the hearing had been a disaster. All their best evidence had been brought into the open for nothing. VanStory had three months to rehabilitate Cone and put a favorable spin on his recantation. The defense couldn’t do anything about it because Cone was through talking to the defense lawyers.

  From what Richardson could tell, he’d underestimated the influence of Cone’s family. Patrick had always wanted his parents to believe him and he refused to admit to his parents that he wasn’t sure.

  Hennis would face trial for triple murder.

  Chapter Seventeen

  Bad blood between the district attorney’s office and Beaver that had simmered through the summer and fall was stirred by the suppression hearing. VanStory seethed as he read the affidavit sprung on his high school dropout witness. “Trial by ambush,” he called it. The defense was gaining on him and he didn’t like it. His open and shut case now had no physical evidence and a shaky Cone. Sentiment arose within the district attorney’s office to drop the case.

  Ed Grannis instead had his staff try harder. Its mission would be beating Jerry Beaver’s client, and they would have to find more evidence.

  The state brought in Haral Carlin, the best Cumberland County’s law enforcement had. The investigator assigned to the district attorney’s office was a tenacious wad of energy packed into a spry frame. He had a gift for wearing people down. Carlin only took over the troublesome cases, which now included the Hennis case.

  Richardson knew all about Carlin. He saw his entry into the case was another disastrous result of the suppression hearing. Five years earlier, Carlin had taught Richardson how to win cases as a young prosecutor. Work the other side to exhaustion, Carlin preached. Make them interview everybody you’re interviewing. If someone hurts you on the stand, attack them. Find something, anything, from their past. Everybody had something to hide. The district attorney’s office won a lot of case
s that way, and many Cumberland County defense lawyers couldn’t stand Carlin because of it.

  But he and Richardson were good friends. Both had coped with alcoholic parents, and it had been Carlin who talked Richardson into helping his mom and dad through an “intervention,” a process where friends and family members confront a loved one about a drinking problem. Carlin had done the same with his father.

  With Carlin heading the state’s investigation, Richardson knew his own case would have to get better. He would work just as hard as Carlin, setting off a scramble for more evidence by both sides in the final weeks before trial.

  Carlin had every witness reinterviewed, beginning with the first suspect: Gary Eastburn. Could he have borrowed a plane on Maxwell Air Force Base and flown to Fayetteville and back?

  Carlin learned that Eastburn was a control tower operator and couldn’t fly a plane. No planes left the base that night, and Eastburn was seen on base at 11 that night and 8 the next morning. Carlin moved on to other suspects.

  Carlin eliminated any “Hennis look-alike” defense Beaver might try, ruling out several suspects he’d heard the defense would introduce. Julie Czerniak’s half-brother Tommy Presley, who looked like Hennis, had been in the western half of the state. He found an alibi for a blond soldier in Summer Hill who hired Julie as his baby-sitter and owned a white car. He did a rape kit on Dennis Mills, Julie’s soldier friend who, according to Beaver, “looks amazingly like Tim Hennis.” Carlin had determined that Mills had not been in Summer Hill on May 9, but Hennis’s lawyers persisted in chasing him as a suspect.

  The blood test on Mills came back “PGM 1,” which was consistent with the semen sample. Carlin never asked the FBI to determine whether it was “plus one,” further matching the semen, or “minus one.” The state was through with lab comparisons of anyone other than Hennis.

  Carlin turned his investigation to the defendant. If his lust had led him to murder a family, it must have led him elsewhere as well. He began a quest to show Hennis was a man on the prowl.

  Three detectives visited Nancy Maeser’s fifteen-year-old daughter, pulling her out of school for the interview. “Has Hennis ever made any moves on you?” they asked. “Has he ever touched you? Has he ever kissed you in more than a brotherly way?”

  No, no, and no. “He’s a good friend, someone I can talk to and tell my problems,” the young girl said.

  The detectives didn’t believe it. They wanted to polygraph Nancy. “I always felt like they were trying to put words in my mouth,” she said. “They would change what I said. They accused me of lying and putting my daughter up to lying.”

  The detectives tried the same questions with fifteen-year-old Tonya Wiggs. “He had never approached me in any way,” Tonya said. “Never. He wasn’t like that.”

  Richardson returned to Summer Hill to knock on more doors. He worked his way down the street behind the Eastburns’ house, but no one was willing to talk to Hennis’s lawyer. Some even slammed the door in his face.

  Richardson had just about run out of houses when he got to Chuck and Cheri Radtke’s house. The Radtkes invited Richardson in and offered him something to drink.

  Cheri Radtke told him they’d moved there in February 1985. Chuck often traveled with the Army’s Special Forces and she worried while he was gone, often staying awake until daylight. On those nights she paid close attention to her neighborhood.

  One night about 2 A.M., she heard a man and a woman arguing from the direction of the Eastburns’ house. Cheri couldn’t make out what the man was saying, but remembered the woman’s voice. “I can’t take this anymore,” she said. “I can’t do this anymore.”

  Cheri Radtke was worried enough to call the sheriff’s department. Two nights later, Kathryn Eastburn and her children were murdered.

  Richardson’s interest picked up. “Do you remember anything about the night of the murders?” he asked.

  The Radtkes did remember. Cheri told him they’d left their home around 3 A.M. to take Chuck to an Army school in Fort Belvoir, Virginia. Their route out of the neighborhood took them past the Eastburn home about the time Patrick Cone said he was walking home. Cheri had checked the weather to see if she needed to pack her hot curlers. The weather was foggy and misty, definitely hot-curler weather. On the way out of the neighborhood, she distinctly remembered that a white car wasn’t parked by the fence.

  Richardson thanked her and started to leave. If nothing else, he could use her to discredit Cone’s version of the weather. On the front porch, he asked Cheri to call him if she thought of anything else.

  “Well, that Cone fellow said he saw this man walking down the street,” she said. “I’ve seen a man, too.”

  “Tell me about it,” Richardson said, trying to hide his excitement.

  Cheri said that a few weeks before the murders, she awoke around 4 A.M. and made her husband walk with her to get a pack of cigarettes. On the walk home along Summer Hill Road, they saw a man coming toward them. He stood about six feet, wore a black jacket and black hat, and had a bag slung over his shoulder.

  In January, seven months after Hennis’s arrest, Cheri saw the man again, this time on a 4 A.M. drive for cigarettes. The man was dressed in the same manner.

  Cheri told Richardson she didn’t know who the man was, but as Richardson drove home he vowed to find out. Find the walker, win the case. Find the walker, win the case. The thought haunted Richardson from then on. He began a stakeout on March 3. Five nights a week at 2 A.M., Richardson would kiss his wife good-bye and leave her alone with two-and-a-half-year-old Matt and three-week-old Caroline. He would pick up Nelligar and head for Summer Hill Road, where they would sit for four hours waiting for the walker.

  Hour upon hour they stared at that unmarked, residential road. Very little moved in Summer Hill at this hour. One night, someone threw a bottle at them. Another night, they tried to explain to a deputy why they were there, without telling him too much. The only regular visitor was the paper carrier for the Raleigh News and Observer. Richardson flagged the man down and asked him if he had the paper route in May. He did not.

  Nelligar was tired, unhappy, and sorry he’d ever taken the case. Almost a month later, with no walker in sight, Richardson called it off.

  His only lead was to find the Raleigh newspaper carrier in May. He called the News and Observer and persuaded the front office to give him Charlotte Kirby’s name. Her address was listed in the city directory.

  Charlotte Kirby was not glad to see him, shifting from one foot to another as she talked, her eyes darting away. For some reason, she remembered May 9, now almost a year later. “It was drizzly that night,” she said. “I had to bag the papers.”

  “Did you see anything unusual?” Richardson asked. There had to be a reason she remembered.

  Charlotte looked away. “Yeah, I did.”

  “You got to help me. What was it?”

  “There was a van parked right down from the Eastburn house.”

  She saw the light-colored van parked on the Eastburns’ side of the street at 1:45, on her way to deliver a News and Observer to the only subscriber on Summer Hill Road. She said if she hadn’t swerved at the last minute, she’d have hit it.

  “Did you see anybody?”

  Charlotte Kirby thought about it and said no. “I’ll testify anonymously,” she said, “either in the judge’s chambers or on tape, but I will not show my face in the courtroom.”

  “I don’t think we can do it that way,” Richardson said, losing patience with her. He promised to ask Judge Johnson, but knew VanStory would oppose anonymous testimony and the judge would agree with him.

  He wasn’t sure how much Charlotte Kirby would help, anyway. Richardson’s frustration mounted with each new lead pointing him in a different direction. David Hill saw a dark blue van across from the Eastburn house, then became confused about which night he saw it. Julie remembered a blue van following her the day after Mother’s Day. Charlotte Kirby saw a light-colored van. Richardson wasn’t s
ure if he was dealing with one or two vans in the neighborhood.

  He was just as confused about the white car. Neither Charlotte Kirby nor Cheri Radtke had seen a white car, and Richardson met two other Summer Hill residents who clearly remembered not seeing a white car. But there were plenty of witnesses who had seen a car out there at some point. Allison Mims, Gloria Mims’ eighteen-year-old daughter, had seen a white car before dark. Interesting, Richardson thought. Tim Hennis would’ve been in Selma, 90 minutes away, before dark.

  Before his investigation wound down, a familiar source checked in. Julie Czerniak called to interrupt Richardson’s Sunday with his wife and children.

  “I got something I desperately need to tell you,” she said.

  “Can’t it wait?”

  “No, I’ve got to tell you this. It’s got to do with the case. I really have to talk to you.”

  Richardson rounded up Nelligar and headed to a house where Julie was baby-sitting.

  “You kept asking me, ‘You sure you didn’t have anybody over there?’” Julie said, “and I got to thinking about it and I thought I should tell you that Brad had been over there. And he does have a little white Rabbit convertible, but when Patrick said he’d seen a car over the summer over there …”

  “Uh-huh.”

  “Across the street …”

  “Uh-huh.”

  “That was Brad’s.”

  So Julie did have boys at the Eastburn home, something she’d denied from the start of the case. Brad had been there twice, she said. Once while he was there, Julie had rocked too vigorously in Katie Eastburn’s rocking chair and knocked a plate off the wall, smashing it into pieces.

  “When Mrs. Eastburn came home I cried,” she told Richardson, “and I told her, ‘I’m sorry I broke your plate,’ and she said, ‘Don’t worry. We bought it at a yard sale. No big deal.’ She told me from the beginning that I could have anyone over there.”

  Gary Eastburn disputed Julie’s claim and said his wife would never have agreed to such a thing. The interview was vintage Julie, pointing the lawyers in directions other than Hennis. If she said these things in court, she could help them.