Innocent Victims

by Whisnant, Scott;

  Hennis started out playing basketball and he wasn’t bad. One year in high school, he had gone out for the team, but quit after a few practices. As a teenager, he never took authority well, one reason his announcement that he’d joined the Army shocked his parents. Still, at six-foot-four, he could be a formidable presence, but he couldn’t match the intensity of Death Row prisoners playing for keeps.

  “I gave up on that because they just got too worked up over it,” he said. “They had fights start over basketball games. It wasn’t worth my effort.”

  But he couldn’t let his body waste away on Death Row. To keep exercising was to remain optimistic. He often did push-ups and sit-ups in his cell, pushing himself to keep trying. Gotta keep trim. Can’t give up. I will not be like the others. One more. Just one more. C’mon, body, give me one more. I’m outta here one day, and I’m going to be ready.

  It’d last a few days before the bags went back over the windows and lights. To hell with it. What damn difference does it make?

  Some prisoners bailed out on Thorazine. Four doses a day kept them docile and sleepy day and night. Hennis watched them revive long enough for supper and glide back to bed, wondering if he’d get like that. He never took drugs to calm down, fearing how it would look if he ever got another trial.

  One of the few other choices a Death Row prisoner could make was how he would die. The state offered the electric chair and lethal injection.

  Hennis had decided on lethal injection shortly after moving into Cell 208, but he rarely thought about it. He’d read enough case law to know it’d be years before anything would happen. “I worried a short time, then I dismissed it. Get rid of it, flush it, it’s garbage.”

  Bob and Marylou weren’t as convinced death was that far from their son’s thoughts. “The first six months or so, I don’t think he cared,” Bob Hennis said. “He thought he would meet his maker.”

  Tim’s parents were almost as despondent. Though their Boca Raton home lacked bars and electric doors that clanged shut, the life Bob and Marylou shut themselves in was almost as confining.

  “I think we slept the first year after it was over, our bodies were so worn out,” Marylou said. “The only time I didn’t think about it was at work, but the minute I’d get in the car and go home, I’d start thinking about it again.”

  The first nights were the worst. Bob and Marylou skipped work, unable to make a go of it. A group of friends brought over supper in the Southern tradition of donating food to grieving families. At night they’d wrestle with the sheets into the wee hours until their bodies gave up and collapsed.

  When they woke up, their first thought was “Is today the day it ends?”

  Beth saw the toll it was taking on her parents: They were getting older. When she and her brothers were growing up, Bob and Marylou could fix anything, from wrapping a broken finger to curing a broken date. Beth and Tim figured their parents could fix this mess, but after watching them pour nearly every bit of themselves into Tim’s defense, she realized her parents were mortal. They couldn’t fix everything. Tim sat on Death Row and it was killing Bob and Marylou.

  “There was a lot of forgetfulness, a lot of ‘Where did I put this?’” Beth said. “After he was convicted, I could swear I was gonna lose one of them before I would lose Tim.”

  Not only was the case draining, but it had become expensive. Bob and Marylou could no longer afford to fly to North Carolina to visit Tim. Three weeks after the conviction, they packed up the Nissan and hit northbound I-95 for a 16-hour drive they’d make about every month.

  At a gate in front of Raleigh’s Central Prison, they showed a guard their driver’s licenses to prove who they were. Once inside the prison walls, they faced a guard behind a Plexiglas window. “We’re here to visit Tim Hennis.” A metal drawer shot out of the wall.

  “Gotta see some identification,” the guard said.

  Bob and Marylou pulled out their driver’s licenses again and put them in the drawer. The guard nodded. A metal door groaned open and the guard motioned them inside.

  The visiting booth on Bob and Marylou’s side had padded stools. On the other side of a metal wall, a guard let Tim inside a room and removed his cuffs. Tim sat on a plain metal stool. A window about a foot high gave him a view of his parents.

  “At first he complained as soon as we got there,” Bob said. “He carried on. He just had to unload on somebody. That’s why we felt we had to go so often.”

  Hennis was allowed one visit a week. As out-of-state visitors, Bob and Marylou were allowed three hours a week, twice as much as Angela could have. But his parents figured out ways to get even more time. “We’d go up on Friday, stay over and catch a visit on Tuesday,” Bob said. “We learned to call Saturday morning and see if everyone came who was supposed to. A lot of people wouldn’t use all their time. That way we’d get three days—Friday, Saturday, and Tuesday.”

  Angela could no longer bear Fayetteville without Tim. She moved back in with her parents in Jacksonville and got a job selling jewelry at JC Penney’s. Kristina became the sixth Koonce daughter, obeying Lloyd Koonce around the house as her aunts did. She heard the others call him Daddy, so she called him Daddy.

  Her father was known at the Koonce home as Timothy. Kristina liked that, so she began calling him “Timphany Daddy.”

  Angela worked weekends and went to see her husband on her days off during the week. She couldn’t trust the Chevette to make those trips, so her parents made the downpayment on a new Plymouth Horizon and Tim’s parents picked up the payments. As the car moved up Western Boulevard, Central Prison came into view.

  “Daddy’s house,” Kristina would say.

  Unlike the county jail, Kristina was allowed to visit at Central Prison. She and her dad played hand games at first, Kristina holding her tiny palm against the glass and tracing her father’s massive hand on the other side. Sometimes Tim showed her pictures he’d drawn.

  When Kristina got sleepy, Angela would put her down for a nap on a counter in front of the window. Other times, Kristina got frustrated. She’d learned to run and talk and wanted to show her father what she could do. But that sheet of Plexiglas was always in the way. “Why can’t he come on the other side and play?” she’d ask Angela.

  Then she’d bang her hand on the Plexiglas. “Open this, open this, Daddy. Open this.”

  “I can’t.”

  “Open this.”

  “I can’t.”

  Huge tears would roll down her cheeks. Tim would walk away, unable to stand it. Some days he’d kick the wall in front of him. “I’m missing her growing up,” he said, growing angrier with William VanStory each day.

  After a few of those visits, Tim made an offer to his wife. “You don’t need to be going through this mess,” he said. “Why don’t you just go. Go on. Get on with your life, get a divorce, and get on with your life. I’ll just duke this out by myself.

  “Kristina doesn’t need to be coming up here every weekend seeing me locked up, banging on the glass saying ‘Daddy, open this.’ You don’t need the hassles, the financial burdens, and the mental anguish of seeing me locked up. You need to forget about this like a bad chapter in your life. Write it off and go do something else. If I ever get out, I won’t fight for custody, I won’t cause you any problems, I won’t ask for anything.”

  “You’re being a jerk,” Angela shot back. “I’m not going anywhere.”

  Chapter Twenty-four

  The appeal process moved much too slowly for Tim Hennis. Almost a year passed before the 3,998-page trial transcript had been typed. While his lawyers resumed their careers with other cases, Hennis didn’t want them to forget his.

  “When’s something going to happen?” Hennis kept asking. He wanted motions filed, arguments heard.

  Be patient, Beaver told him. He told him the lawyers would get on it as soon as they could.

  He and Richardson wanted the appeal more than anything. Anyone who gets the death penalty automatically gets an appeal to t
he state Supreme Court, delaying the execution date the judge reads at the trial. The judge almost always appoints the trial lawyers to handle the appeal, though some ask not to be appointed, having lived too long with a client and his family. But Beaver and Richardson saw the appeal as a second chance to pay the state back for a trial they compared to a steamroller. “The time I knew the jig was up,” Beaver said, “was when they scheduled a jury view with 10 minutes’ notice in bright June sunshine of an event that occurred on a rainy, cloudy, foggy night.”

  Though they didn’t talk about it as much, they also wanted a chance to atone for their own mistakes. After the trial, several well-wishers had come up to Billy Richardson and told him he’d be a good trial lawyer—one day. Even Beaver, who’d proven himself in other trials, began to have doubts. The appeal would vindicate them.

  When the transcript came, Beaver began to organize the appeal. Lee Boughman, the intern who had posed as a “tall blond man” during the nighttime demonstration on Summer Hill Road, researched cases. Richardson researched the judge’s ruling not to suppress Patrick Cone. Beaver talked Bob Hennis into spending $5,000 for Ann Peterson, a Chapel Hill appellate lawyer who was an expert on death penalty issues.

  Beaver did the rest. He wrote a 177-page brief, “assigning” 59 errors to Judge Johnson, beginning with the release of the crime scene—Hennis’s favorite—and ending with an argument that the death penalty was unconstitutional. But Beaver stressed the SBI lab witnesses, the issue he wanted the Supreme Court to cite in reversing the case. Since when, he asked, are defendants convicted based on the odds of evidence being found at a crime scene? He wrote:

  The jury was instructed by the experts that the lack of corroborating physical evidence in the case was of no importance to their deliberations because the odds were only 1 in 5 that the blood type of the semen in Mrs. Eastburn would reflect her assailant’s, 1 in 4 that the killer would have left discoverable fingerprints and 1 in 5 that the killer would have transferred hair in the acts of raping Mrs. Eastburn and murdering her and her daughters.

  Beaver quoted VanStory’s final argument. “So the odds are against us there,” the prosecutor had said, later saying, “Unfortunately, all the odds worked in the defendant’s favor.”

  Troy Hamlin’s testimony that the foreign pubic hair was insignificant was “absurd,” said Beaver. He wrote:

  By the testimony of a person certified to the jury by the court as being an expert, the jury was instructed to ignore the inferences which naturally arose from the finding of such evidence because it had no significance to the jury’s deliberation.

  Many of Beaver’s issues dealt with the photographs. Beaver accused Judge Johnson of ruling ex parte on the slide projector screen, meaning the judge allowed the state to build the screen without consulting the defense.

  Beaver cited case after case supporting his position on the photographs. He wrote:

  Simply stated, the position advanced by the State is that the weaker the case, the greater the need for exhibitions of graphic and gory photographs to enhance the State’s position. The law is exactly the opposite.

  A year after the case, Judge D. B. Herring had written a letter to the district attorney and Beaver’s office, saying the movie screen had to come down. Judge Herring said it violated a previous judge’s order against the “defacing of any walls in the courthouse building.” Beaver used the letter in the appeal.

  Bob Hennis wanted more than for the trial to be overturned on legal issues. Somebody, he argued, needed to find whoever killed that mother and children. What would help the appeal more?

  The investigation of the murders had ceased. Beaver was putting all the firm’s efforts into the appeal. Bob Nelligar had moved on to other projects, his work done on the Hennis case. From their home three states away, a frustrated Bob and Marylou couldn’t do anything. Bob wrote Beaver at least once a week, urging him to get back out to Summer Hill and do something.

  After a visit to Central Prison, he and Marylou drove to Fayetteville to meet the lawyers. Bob reminded the lawyers of his desire to find the real killer.

  “How much would an investigation cost?” Bob said.

  “It’d probably take another $20,000,” Richardson said.

  “Spend it on the lawyers,” Beaver said. “Not on the investigators. You can’t solve this case now. Our goal is to get Tim off Death Row.”

  “Well, couldn’t we split it? Spend a little on investigation and a little on lawyers?”

  That was fine with Richardson. He still wanted to solve the case. All he needed to get started again was someone to put up the money.

  Beaver saw it as a waste of time.

  “What are you going to do,” Bob asked, “if we pull out of this thing? Physically and financially pull out.”

  Richardson had dreaded those words coming from Bob. If he wanted to hire other lawyers for Tim’s appeal, he had that right. But Richardson had some unfinished business. You’ll be a good lawyer—one day. He wanted to stay in it.

  “We’d lose,” Richardson said. “And everything would go down the tubes.”

  Beaver compromised just enough. Bob hired an investigator from Charlotte named Les Burns, putting up another $1,000 retainer. “There’s a killer out there,” Bob told him. “I want you to find him.”

  Bob and Marylou again thought about selling their home. They didn’t know how far this would go. “For all we knew, we might end up living in a tent,” Bob said. They swore off parties and holidays and refused to spend money on each other for birthdays and Christmas.

  “We weren’t going to spend a nickel,” Bob said. “It was all going to go to Timmy.”

  The case finally took his job. In July 1987, Bob walked into his IBM boss’s office in New York and was handed a hefty bonus check, a reward for his work. But Bob was embarrassed. Most of his concentration that year had been on his son, not IBM. He knew he had to quit. He couldn’t do the job he’d been doing and continue to visit Tim and work on his case. He’d always given IBM his best, but Tim’s case came first now.

  So Bob retired at age fifty-nine, cutting his retirement benefits by about half.

  He came home to dwell on the case full time. Marylou worked part of the day at a real estate office and spent the rest suffering with Bob. After a while, they sought therapy.

  “Abstaining is not doing you any good,” the counselor said. “Go out and buy something. Have some fun.”

  Bob bought the Sea Song, a nine-year-old fiberglass deep sea fishing boat. He and Marylou would motor down the Intracoastal Waterway for up to a week at a time, working at enjoying themselves.

  “We felt guilty about having a good time,” Marylou said. “No matter where we went.”

  The closest their son came to a good time on Death Row were the two weeks at Christmas. Visitors were allowed to take food to Central Prison, a program designed to bring some cheer inside the drab concrete walls. But there were stipulations: no frozen foods, beverages, or instant mixes. No nuts still in their shell. Prison officials once had found a walnut with the shell glued back on and a lump of cocaine tucked inside.

  All food had to be in disposable containers. No glass, metal, or plastic was allowed. The food had to be for immediate consumption because the prison would not store it.

  Tim Hennis wanted to bite into a steak his first Christmas on Death Row. Not a fried slab of prison meat, but an honest-to-goodness grilled steak from a place where they ask how you want it cooked. Tim wanted his medium rare.

  His mother-in-law bought him one from a steak house near Central. But by the time Hennis got it, it was too cold to eat.

  “Put it in the sink,” one of the prisoners said.

  “Why?”

  “Get a Ziploc bag and put it in the mop sink. Then run hot water over it.”

  “That’ll heat it up?”

  “Better than it is now.”

  Tim wondered how many years on Death Row it took before someone thought of that. But it worked. The steak heated
up, a little bit.

  His mother baked a couple of black-bottom pies, Tim’s favorite. Prison guards dumped them into plastic bags, breaking the pies into pieces.

  “Why’d you do that?” Marylou asked.

  “Gotta make sure there’s no contraband.”

  Tim scooped the pies out of the bag, eating them by the handful.

  Hennis also spent the next Christmas season on Death Row, eating homemade pies out of sacks. The Army had kicked him out, arguing he was an embarrassment to the government, though the decision wasn’t final until after the appeal. His case was no closer to being solved, even though Mr. X had resurfaced. A man calling himself “Mr. X” called Fayetteville lawyer Bobby Deaver, who is often confused with Beaver. The man wanted to thank Beaver for being such a sorry lawyer and getting the wrong man convicted. “There’s not much we can do with something like that,” Beaver told him.

  Hennis’s twenty-ninth and thirtieth birthdays passed. Kristina celebrated her second and third birthday parties with him holed up in “Daddy’s House.” No hug. No kiss. He wasn’t even allowed to call and sing “Happy Birthday” to his growing toddler.

  His sister, Beth, vowed to hold off her wedding until her only brother could be there, but Tim insisted she go ahead with her life. In 1987, she and her fiancé, Bob Brumfield, invited a small group of friends and family to Boca Raton for a brief porch party the day of the wedding.

  As everyone was celebrating, the phone rang. Angela picked it up. “Beth, it’s for you.”

  “Who is it?”

  “Just answer the phone.”

  Within seconds, the sound of Beth crying carried onto the porch. “Hey everybody, it’s Tim,” she yelled.

  Angela had arranged the phone call through the prison chaplain. The only other call Tim would be allowed to make from Death Row was to his mother the day after her brother died of Parkinson’s disease.