Innocent Victims

by Whisnant, Scott;

  VanStory countered the failure to link Hennis to the semen by having the FBI’s Randall Murch testify that in 80 percent of the cases he handled, the victim’s PGM was the only one he found.

  “So in 80 percent of the times, the donor of the semen does not identify himself. Is that correct?” VanStory asked.

  “That’s correct.”

  Murch had told Beaver four months earlier that PGM sub-typing separated two people in about 75 percent of his cases. In his notes on the call, Beaver wrote, “Mr. Murch indicated to me that in his opinion it was just as likely that it came from another assailant as it came from Mrs. Eastburn.”

  In the courtroom, Murch said that discussion was about “immediate intercourse and immediate sampling.” Because Kathryn Eastburn had been dead three days, he said, her PGM was less likely to fade than that of the man’s. The inability to find Tim Hennis’s PGM, a rare type found in 3 people out of 200, was no longer a factor.

  Later that day, VanStory walked over to the defense table. “I got something I need to tell you,” he said. Hair expert Troy Hamlin’s report had a few extra hairs the defense didn’t know about, VanStory said. The most notable was a pubic hair.

  “Well, whose is it?” Beaver asked.

  “We don’t know.”

  The hair was found in front of the living room couch, near Katie Eastburn’s cut bra and panties and crumpled blue jeans, strong evidence the rape had taken place right there. All VanStory could say was that the hair didn’t belong to Katie or Gary Eastburn, and it didn’t belong to Tim Hennis.

  “Why is this just now coming up?” Beaver asked. He didn’t know whether to be angry or overjoyed. It was glorious evidence for his client, but Beaver didn’t appreciate having it dumped on him like this. Stombaugh hadn’t had a chance to look at the hair and determine whose it was or whether it had been forcibly removed.

  “I just learned about it myself,” VanStory said.

  Beaver and Richardson immediately met with the hair expert in the district attorney’s office to find out about this oversight. Hamlin stared straight ahead, shaking his head. “I thought I told them, but maybe I didn’t,” Hamlin kept saying.

  He testified the next day that in 75 percent of all his cases, the defendant’s hair was never found. Beaver objected and was again overruled.

  “Now, sir,” VanStory began, “the five hairs that you indicated you found that you could not attach to anyone, do you attach any significance to these?”

  Beaver objected, questioning why Troy Hamlin would get to tell the jury how to weigh the evidence.

  “Overruled, if he has an opinion,” Judge Johnson said.

  “Due to the fact that we find in most instances hairs that do not originate from any of the subjects, I cannot attach any significance to this. Anyone who had been in the residence or been in contact with these items could have deposited those hairs,” he said.

  “My God, that’s insane,” Beaver blurted out. VanStory had no more questions.

  “Are you telling me,” Beaver began on cross-examination, “that you found an unidentified pubic hair in the living room of the Eastburn residence?”

  “Yes, sir.” Hamlin repeated that the hair hadn’t matched the defendant or the Eastburns’. Beaver completed a short series of questions without asking Hamlin to explain how just anyone could have left a pubic hair in the living room.

  By this point in the trial, Beaver knew he’d better be careful to “preserve error,” a lawyer’s term for objecting in the right places, filing the right motions, and making sure chambers arguments were recorded by a court reporter. If a Supreme Court justice were to look at a transcript and notice he hadn’t objected to evidence at the right time, Beaver would have a difficult time raising the issue on appeal. Midway through the parade of SBI lab witnesses, Beaver began to think an appeal might be necessary.

  VanStory continued to turn the odds in his favor. Brenda Dew testified that the blood type of vaginal swabs taken from the scene didn’t match Tim Hennis, but did match Kathryn Eastburn, and in 80 percent of her cases, she found only the victim’s blood type. She also lessened the impact of the negative test for blood on Hennis’s black jacket. “Simple dry cleaning will interfere with the detection of blood by nature of the chemicals used in the dry-cleaning process,” she said.

  Durwood Matheny, the burn document expert, said his failure to link the 105 missing documents to the items found in the barrel was meaningless.

  “The fragments that we had were so extremely small,” he said. “In order to identify—to make a positive identification, you would have to have more to go on. We had small words like ‘and’ and ‘the’ and this type of thing, and it was just an impossible situation.”

  Matheny was the same expert who’d written in his report that the ashes had “met with negative results.” Beaver asked him if he’d thought it was worthwhile to at least try to compare the missing documents and the ashes. Matheny said his lab at first had thought there was a good possibility. Beaver asked again if he’d been able to find any link to the missing documents.

  “No, sir,” Matheny said. “Because we didn’t have large enough portions to make a positive identification.”

  “That’s fine,” Beaver snapped, nearly paralyzed with frustration. “That’s all I have, sir.”

  VanStory was down to his last expert. John Bendure was prepared to testify the corduroy patch he found in the barrel could have made the bloody impressions on Kathryn Eastburn’s bed.

  Beaver argued in chambers that Bendure’s “association” was weak, based on a failure to eliminate rather than a positive match. He said Bendure shouldn’t be allowed to testify. The judge and prosecutors listened patiently as Beaver argued.

  “Strange place to burn corduroy,” Judge Johnson finally said.

  VanStory and Carlin laughed. Bendure testified, giving VanStory a strong ending to a part of his case that had turned to his advantage. He’d convinced the jury that, at worst, the physical evidence helped neither side, and at best, the corduroy piece tied Hennis to the crime. The momentum helped as VanStory looked forward to the next part of his case. Patrick Cone was getting ready to tell his story again.

  Chapter Twenty

  The same people returned to Courtroom 3C day after humid day, competing for the few parking spaces in front of the courthouse and lining up early to claim one of the seats. Inside, the crowd overflowed onto the pew reserved for Gary Eastburn’s family, who could only half fill it. His mother came throughout. Katie’s parents took turns—Jane Furnish came the first week, Gene Furnish came the second. Neither one wanted to be there. Eastburn’s father never came to Fayetteville.

  Directly across the aisle, the “Defendant” pew stayed packed with Hennises and Koonces. Jean Wagner, Eastburn’s friend from Pope Air Force Base, felt sorry for Gary being “so outnumbered” and started coming late in the trial.

  The families huddled in groups in the halls, trying not to mingle with each other. Sometimes they couldn’t help it.

  Billie Brown, Gary’s mother, once found herself alone in the bathroom with Judy Koonce.

  “I know how bad you feel, but my son didn’t do it.” Judy Koonce always considered “in-law” a vulgar term when it came to Tim Hennis.

  Billie Brown turned and walked out.

  The elevators were a common ground. Everybody, including the defendant, had to ride one to get upstairs.

  Gary Eastburn followed prosecutors into the back elevator, sparing a chance meeting with Hennis. But Eastburn’s friends and family sometimes had to wait with Hennis for the same elevator. “I tried to stay away from him if I could,” Jean Wagner said. “It scared me to get close to him.”

  On the day Patrick Cone arrived to testify, he spotted some reporters and jumped in the first elevator. The group inside shifted to make room. Cone looked around and saw Hennis, his wife, his parents, and his lawyers. Cone looked at Hennis. Hennis looked at Cone. The elevator couldn’t cover those two floors fast enough.
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br />   Inside the courtroom, Cone raised his right hand and was sworn in. He settled in the witness chair, bracing himself for the next chapter in his curious rise to stardom. His family was out there. It seemed everybody he knew was there. “I did think that maybe somebody’s gonna run up and shoot me in my damn head,” Cone would say later.

  Again he replayed his May 10 walk down Summer Hill Road, weeding out the more unusual twists. No more walking up in the Seefeldts’ yard or U-turns by the white Chevette. This time, Cone said, Hennis greeted him in the street, got in his car, and drove off.

  While Cone talked, VanStory handed Beaver a typed page. Beaver read over it and handed it to his partner. VanStory had held onto Patrick Cone’s original statement for good reason.

  Cone had dictated a statement to Watts the day before Hennis was arrested and Watts had followed with some questions:

  “On Friday, the 10th of May at about 3:30 A.M. I had just left my girlfriend’s and I was coming down Summer Hill Drive.

  “I saw a white car to the left. It was a white Chevette. I kept walking and walked down and I was just about under the second streetlight and I saw a white guy coming down from the carport or driveway with a garbage bag over his shoulder. I thought he was breaking in but I could not say nothing, so I just kept walking.

  “As I was walking, we passed. He spoke to me and said, ‘Leaving kind of early this morning.’ So I walked up under the streetlights to see where he was going. So I bent down and turned around to look. He was looking at me. So he got in the white Chevette and started to turn around.

  “So I walked up to this lady’s yard and turned around and made—he turned around and made a right turn on Yadkin Road. So I went home and told my dad what had happened. He told me not to worry about it and that was it.”

  Q: “How do you know it was a Chevette?”

  A: “Because I know cars.”

  Q: “Are you sure it was white in color?”

  A: “Yes, sir.”

  Q: “Which driveway did you see the white male with the garbage bag walk out of?”

  A: “Where the people were murdered.”

  Q: “Are you sure? If so, why?”

  A: “Positive, because I saw him.”

  Q: “How was this white male dressed to the best of your recollection?”

  A: “He had on a black toboggan, white light T-shirt, thin dark-colored jacket, jeans and tennis shoes.”

  Q: “What other description can you give me of this white male you saw leaving the house where the people were murdered?”

  A: “He had a mustache, short hair like a G.I. haircut. Light brown.”

  Q: “How tall was this man and how much do you think he weighed?”

  A: “He weighed about 167 pounds and was about six foot tall.”

  Cone described a man two inches shorter than himself with a frail build similar to his own. Hennis stood six-foot-four and weighed 205 pounds and had blond, not brown, hair. Cone had first described a white shirt. It wasn’t until after he’d seen Hennis wearing a plaid shirt in the photo lineup that he amended his description to include a plaid shirt.

  Beaver read the statement while Cone and VanStory sailed through the testimony, just as they’d practiced. VanStory portrayed his witness as pitiable, trampled by lawyers smarter than he was, signing an affidavit he thought was a subpoena. At a time of crisis, he’d written a letter to his mother.

  Spectators giggled at Cone when he said he’d asked his sister if he could spend Mother’s Day night in her and her husband’s room.

  “Where in the room did you sleep?” VanStory asked.

  “I was on the floor right beside the bed.”

  The crowd burst out laughing. Tim Hennis wanted to laugh with them. Nonetheless, the question with Cone, as it always had been, was why would he make it up?

  “Yeah, I believed him,” said juror Frederick Powell. “No reason for him to lie.”

  VanStory closed on a high note. “And I’ll ask you again, sir, is there any doubt in your mind the defendant is the one you saw coming down that driveway?” he asked.

  “No, sir.”

  “Pat, you realize the seriousness of this case?”

  “Yes, sir, I do.”

  VanStory was finished with him. Judge Johnson recessed court for the day. Cross-examination would begin in the morning.

  Beaver and Richardson were delighted. Cone’s version bore little resemblance to what he’d said on the videotape. On the videotape, for example, Cone was all over the Seefeldts’ yard. The lawyers would spring it on him in the morning and Patrick Cone would sink, taking the state’s case with him.

  VanStory knew he’d better find out what was on that videotape. He asked Judge Johnson to order Beaver to turn over a version without the maddening country music. Beaver asked why he would have to. The state had finished its questioning of Cone. What good would it do them now? Beaver did not have to provide the audio portion before the trial, he argued, so why would he turn it over the night before he began cross-examination?

  Judge Johnson said that, in his discretion, the state was entitled to the audio portion of the tape. Beaver questioned the judge’s legal authority to make that decision, but Judge Johnson held firm.

  The next morning, VanStory’s attitude toward Cone’s testimony had changed. He told the judge he’d taken some friends to Summer Hill Road the night before, and they didn’t think Beaver’s videotape was a fair portrayal of the distances Cone had described. Not only did VanStory want to reopen his questioning of Patrick Cone, but he wanted to take the jury to Summer Hill Road.

  Requests for jury views are usually denied because it’s impossible to re-create a crime scene. Hennis’s lawyers were livid, particularly when they realized that Judge Johnson appeared willing to go along with VanStory’s request.

  “My God, you’re going to let them do it,” Beaver said. “In broad daylight.”

  “I’m not going to tell the state how to run its case,” the judge said.

  “Get the court reporter in here. Right now. This is going on the record,” Beaver said.

  Richardson lost control.

  “You’ve already made up your mind, haven’t you?” he shouted, dropping common attorney protocol against shouting at the presiding judge. “You can’t be serious. You can’t do that. You just can’t do that. You can’t take a jury out there in the middle of the day to see what Patrick Cone saw at 3:30 on a foggy night.”

  Judge Johnson ruled that, in his discretion, he certainly could. He, too, had heard Cone’s statements on the videotape.

  Beaver showed the judge photos of how a few months before, the city of Fayetteville had pruned the trees along Summer Hill Road, after he’d given VanStory the video portion of the tape. Limbs along the chain-link fence where Patrick Cone saw the white Chevette had been cut. No longer did pine needles cover the streetlight at the base of the Eastburns’ driveway. Furthermore, the car lot at the corner had become a car dealership. The owners had installed several light poles that lighted the area like never before. Jurors wouldn’t be able to keep from trying to see for themselves if Cone could have seen what he said.

  Judge Johnson said he would limit the jury view to the “physical locations of objects and places and distances between those objects and places.” The jury would be told not to consider lighting. VanStory asked to put a car along the chain-link fence, where Cone saw the car, but Judge Johnson denied him, saying the purpose of the jury view wasn’t “experimentation.”

  Three sheriff’s vans and three sedans were rounded up to take the 12 jurors and 3 alternates. Judge Johnson announced in court that there would be a jury view, and a full courtroom of spectators scattered as though he’d stirred up a hive of wasps, racing to get to Summer Hill Road before the deputies blocked it off.

  Tim and Angela rode with his parents to the neighborhood he hadn’t seen since May 1985. While he was out on bond, Angela wouldn’t let him even drive within a mile of Summer Hill.

  “Park at the
top of Yadkin Road and wait for us,” Beaver told Bob Hennis.

  Beaver drove his Cadillac where he was supposed to meet Bob. “Where is he?” he asked Richardson.

  “Why is that van parked there?” Richardson asked, more concerned with a sheriff’s van that had parked on the dirt area next to the chain-link fence.

  “They told them not to …” Richardson trailed off, his attention suddenly diverted farther down Summer Hill Road. “Goddamn it. I told them to park on Yadkin Road. Look down there. Look where Tim is. Would you look at that? God-damn. What’s he doing?”

  Bob Hennis had driven past the Eastburns’ house and parked. Tim and Angela got out and walked arm-in-arm back up the street, past 367 Summer Hill.

  “We look all the way to the other end of the street, past the Eastburn house at 11:30 in the daytime and who’s walking down the goddamn middle of the street but Timothy Baily Hennis,” Beaver said.

  Right where Patrick Cone said he saw him early on May 10. Jurors leaned out of the vans, craning to see the six-foot-four defendant moving toward them. One pointed at him.

  VanStory couldn’t have choreographed it better. A photographer captured Tim and Angela for that afternoon’s newspaper, walking up Summer Hill Road with the murder scene in the background.

  Judge Johnson had everyone reassemble on the street as if it were a courtroom. The jurors stood in a group to his right. VanStory and Carlin stood closest to the jurors, with Eastburn behind them. Beaver, Richardson, and Hennis stood to the judge’s left. About 100 spectators stood in the back or watched from one of the neighbor’s yards. Julie Czerniak watched from the Seefeldts’ yard.

  Cone was the star. A lifetime of late nights, six-packs, and video games was behind him now. Cone was The Man among a crowd of important people. They hung on his every word.

  Cone went through his walk again, the jurors, lawyers, and spectators shuffling behind him in formation. He stopped at the point in a gully below the Eastburns’ house where he said he met Hennis. Then he walked to the telephone pole in the Seefeldts’ yard where he said he stopped and watched the man get in his car.