Innocent Victims

by Whisnant, Scott;

Finally, oral arguments before the North Carolina Supreme Court were set for September 14, 1988. Beaver decided he’d argue the evidence and Ann Peterson would discuss the death penalty issue. Billy Richardson would watch.

  “I don’t think the Supreme Court is going to allow three lawyers to argue,” Beaver said. “You’re going to have to let us handle it.”

  Richardson didn’t take it lightly. “Jerry, I’m part of this, too. I want to get up there and argue. That’s not fair to leave me out.”

  Beaver, who had experience arguing before the U.S. Supreme Court, knew that the Hennis trial wasn’t the time to break in a young attorney on appellate law. “It just makes more sense to do it this way, Billy,” said Beaver. “I can handle it.”

  “All right,” Richardson said. “You can have the appeal. I’m gonna have the second trial.” He took a seat in the audience and watched as his senior partner approached the seven justices.

  Lawyers arguing before the Supreme Court stand behind a podium with two lights. When the green light comes on, the lawyer begins his case. When the red one comes on 30 minutes later, he stops, without winding down or making a closing statement. He stops and he sits down.

  The half-hour passes quickly. The justices do not sit and politely listen until the red light comes on. They interrupt, asking questions and thinking out loud. Sometimes they lead the lawyer in circles for the sake of argument. If the justices get sidetracked on an issue, the lawyer must make sure it’s the right one.

  Soon after Beaver started, the sidetracking began.

  “What’s so prejudicial about projecting the images near the defendant’s head?” Justice Willis P. Whichard asked. “That’s not evidence, is it?”

  Beaver had studied the writings of Justice Whichard. In a prior case before the Court, the state argued that the defendant’s lack of remorse in the courtroom was a factor that made the crime worse. “Evidence in a case,” Justice Whichard wrote, “is not only what is said from the witness stand, but what is seen in the courtroom.”

  Beaver fed that line back to him. “Evidence is not only what you hear from the witness stand. It’s also what you see. We tried to shield Hennis because we were petrified the jury would judge his guilt or innocence based on his reaction.”

  Justice Whichard smiled. So did Bob and Marylou Hennis. They’d never seen Beaver perform better.

  A state appellate lawyer argued the case. William N. Farrell’s argument lacked the passion a prosecutor from the trial could have given it. “Almost as if he was kind of disinterested,” Marylou said, “but he was assigned the job of reading it.”

  Farrell said the photographs were needed to show the “elements” of the crime. Chief Justice James Exum, Jr., pounced on that line, noting that the defense stipulated to the cause of death. He questioned why 26 autopsy slides were necessary. “One photograph of each victim should have shown that,” Justice Exum said.

  After Ann Peterson argued the death issue, Beaver worried she’d done too well. Judge Johnson, in Beaver’s opinion, had made an obvious error in instructing the jury how to weigh “mitigating factors,” or factors the jury could consider in sparing Hennis’s life. Beaver feared the Supreme Court would back away from giving a convicted triple murderer a new trial and latch onto a more politically safe decision of granting a new sentencing hearing. Beaver knew that any jury, when presented this evidence, would vote again for the death penalty.

  The lawyers and family left the hearing for nearby Central Prison, where they had the most upbeat visit with Tim since he’d entered Death Row.

  “You should’ve seen ’em,” Bob said. “Jerry had them eating out of his hands.”

  “Yeah, but I got to warn you,” Beaver said. “Sometimes they’ll fool you. Just because the arguments seem to go well, they might not go in that direction. They could do the exact opposite.”

  “How long will it be before we know something?” Tim asked.

  “In a case like this, it’ll be six months, maybe nine months or a year before we get a decision.”

  Hennis mulled it over in his dank, cramped cell after they left. It was good news about the arguments, the best he’d had since his conviction. But another year?

  Back in the Supreme Court law library, the seven justices gathered around a slide projector. They’d requested a private encore of “The Show.”

  Less than a month later, Angela and Kristina visited Tim’s parents in Boca Raton for one last trip to Florida before summer ended. Angela and Marylou took Kristina on a dinghy across the Intracoastal Waterway to the beach, where Kristina took her sand shovel and started rearranging the coastline one scoop at a time.

  They hadn’t been there long when an older man came running down the beach toward them. “That looks a little like Bob,” Angela said.

  “That is Bob,” Marylou said.

  Kristina thought her granddaddy running in the sand was funny and began running toward him. Marylou and Angela did not. “Something’s happened, or he wouldn’t be out here,” Marylou said. She knew her husband hated the beach and all its sand. They braced themselves until Bob, panting and out of breath, got within earshot.

  “We got a new trial! We got a new trial!”

  They danced on the beach. Bob delighted in getting sand in his shoes.

  Within 22 days of oral arguments, the justices voted five to two in favor of a new trial and published an opinion. The newspapers called it “an unusually swift” decision. No one in legal circles had ever heard of the Supreme Court responding so quickly.

  Justice Harry Martin wrote, “Although this Court has not disapproved the illustrative use of autopsy photographs, the majority of the 26 photographs taken at the victim’s autopsies here added nothing to the state’s case as already delineated in the crime-scene slides and their accompanying testimony. Given this absence of additional probative value, these photographs—grotesque and macabre in and of themselves—had potential only for inflaming the jurors.”

  Justice Martin noted the “unusually large screen” built on the wall above Hennis’s head, a way of showing slides that “in itself quite probably enhanced the prejudicial impact of the slides.”

  Justice Martin also took exception to VanStory handing autopsy photos to the jury at the close of his case, saying it was “excessive in both their redundancy and in the slow, silent manner of their presentation.”

  Had the evidence been overwhelming, Justice Martin wrote, the error might have been harmless. “This is not such a case,” he wrote. “Here, appellant was linked to the crime through circumstantial evidence and through direct evidence upon which the witnesses’ own remarks cast considerable doubt.”

  As for other issues in Beaver’s argument, Justice Martin said he was “confident that such alleged errors are not likely to recur upon retrial.”

  A few miles away at Central Prison, the television pounded away inside the cell block. Make it go away, Tim thought.

  Day 820 of Death Row. His late twenties had become his early thirties. His daughter was approaching school age. His blond hairline was receding. He wondered if he’d still have some when he got out. If he got out.

  October 6 was a day for garbage bags over the windows. The excitement of oral arguments had flickered and died. Another year, Jerry Beaver had said.

  “Hey, Hennis, get out here.”

  His cellmates were stunned. The top story on the television news was that Tim Hennis had won a new trial.

  This had come out of nowhere, catching him off guard. He stared at the TV, dumbfounded. Then it started to sink in.

  But Death Row was not a place to jump up and down and slap high-fives. Most prisoners there don’t get another chance. Hennis quietly passed the news along to some of his friends in the cell block, then shut himself inside his cell. He had hope again.

  Hennis started mailing home books, but he hadn’t come close to cleaning out his cell when a guard came to see him on October 31.

  “Hennis, how soon can you be packed up?”
/>   “Where the hell am I going?”

  Hennis had moved four times within Death Row, the last time to Cell 201 in E block. He thought he was being asked to move again.

  “You’re going back to the county jail,” the guard said.

  Hennis’s first reaction was irritation. Not the Cumberland County jail. Couldn’t they let him stay on Death Row through Christmas, so he could at least have two more weeks of black-bottom pies in plastic sacks?

  No, Hennis had to go. He gathered up his belongings in four sacks and rolled them out in a cart. He left Death Row and walked with the guard to a room with racks of clothes that prisoners wear if they get to leave.

  Hennis found a white button-down shirt and blue-gray work pants, happily shedding his drab prison uniform.

  “You want a pair of shoes?” the guard asked.

  “No, I’ll just wear these.” Hennis wanted to wear his tennis shoes, the only piece of clothing he owned at Central Prison.

  A guard escorted him out. The door behind him groaned shut one last time.

  Clang.

  A van was waiting to take Hennis back to Fayetteville, 845 days after Death Row had taken prisoner 10258IL.

  Chapter Twenty-five

  In September 1988, Captain Gary Eastburn transferred to England, finally taking the assignment that had awaited his family three and a half years earlier. He checked into the Royal Air Force base at Mildenhall, about 80 miles north of London, and settled Jana into a government housing unit in Newmarket, the horse-racing capital of England.

  On his first drive through the countryside, Gary saw that England was everything he imagined. The green farmland stretched as flat as a soccer field, flatter even than his and Katie’s midwestern hometowns. Tucked away neatly on the farms were simple houses made of stone and history. Horses romped across the pastures of several stud farms, reminding him of Katie’s childhood dream.

  Fifteen miles from his home was Ely Cathedral, a castle completed in the thirteenth century after 300 years of construction. Gary took Jana on tours inside, awed by the cavernous rooms filled with ancient art and mystique. “Just think, Jana,” he’d say. “They did this by hand 800 years ago.”

  Gary loved that everything in England had a history people remembered and respected. Even the site of his government housing had a story. In the 1800s, King James had ordered Dutch workers to cut drainage paths through the marshy fens to make the land suitable for farming. The coal-black soil left behind was among the most fertile on earth. Gary loved taking Jana to the local produce markets on Tuesdays and Saturdays. He could buy three pounds of fat onions like he’d never seen for 60 cents, or celery stalks for a quarter.

  As much as he liked the countryside, Gary liked the English people even better. They walked the streets of Newmarket without fear, stopping to chat with their neighbors. They took long bike rides along the flat fields during the day and went to village pubs at night, looking for conversation. A pub near his new home was so old-fashioned that it still didn’t have electricity—all you could order was hand-pumped ale from the basement.

  It was a slower pace than anything Gary had known, a lifestyle he wanted to be a part of. “The pace of life was about like I remember as a kid in the mid-fifties, after the Korean War and before the Cuban Missile Crisis,” he said. “A real serene life, family oriented. People really respect tradition.”

  Gary was well-suited for his job as liaison at the Air Force Base. He made the rounds at Mildenhall, making sure the American pilots and the British radar operators were getting along. Gary shook hands, met people, and made sure questions were answered before they turned into problems.

  “He’s a good mixer,” his friend Jean Wagner said, “and very amiable. He can get on with just about anybody.”

  It was a world away from the United States and murder.

  The previous three years in Wichita had been bleak. The months leading up to the first trial were no more than survival. He went to work in the morning, left at night, picked up Jana at the baby-sitter’s, went home, cooked her supper, and put her to bed. Then he watched TV until he dropped off to sleep. Every night.

  “He knew he had to go forward,” Gary’s mother said. “I didn’t have to tell him. But I really didn’t talk to him much about it.”

  During the weeks Jana stayed behind at his mother’s, Katie’s parents would drive across the Missouri state line to Independence to pick her up for the weekend. “Just like child custody visits,” Gary’s mother said. Katie’s parents also took Jana on their vacations, sometimes fishing trips to a lake in Minnesota where her mother first tried waterskiing.

  Only once did she say anything about May 9, 1985. Gene Furnish had picked her up in Independence and was driving her back to Kansas. “I’m glad that mean man didn’t find me,” two-and-a-half-year-old Jana said suddenly. “He’d have killed me, too.”

  After a few months Gary cut his visits to every other weekend. His rut deepened at home. Sometimes Jana must have known something was different. When Gary told her he didn’t feel well and needed to be alone, Jana would quietly go to her room and play.

  “I focused on one thing—going to trial and getting it over with,” he said. “I wanted it to happen in three or four months. It upset me that it took a year.

  “I was doing great afterwards for a month or six weeks. Then I went into a depression. I was really down. It finally dawned on me, I’d spent so much time on dealing with the trial that I hadn’t had time to deal with the losses.”

  He sought counseling for Jana and himself, mostly to talk to an adult. He threw himself into trying to get a master’s degree in Human Resource Development, a degree he needed for an Air Force promotion but not one he had to get at that moment. He often studied until 2 A.M., trying to keep himself busy to block out memories.

  “There were a lot of pressures, and I did it to myself,” Gary said. “I didn’t have to do it.”

  He started to come around the second year after the trial, buying a boat and dating some, but when the chance came to go to England, he jumped.

  “Going to England severed me from any connection to what happened,” he said.

  In a country that cherishes its past, Gary Eastburn was finally able to escape his.

  He went to a school to learn about the Royal Air Force base and graduated on time. But about a week later, Detective Robert Bittle called. Gary was needed as a witness for the second trial. “Oh my God,” he said. “Not again.”

  As Gary prepared to return to North Carolina for a trial he considered to be a formality, Beaver and Richardson were making sure it would be different this time.

  “We’re pushing this case to trial as hard and fast as we can,” Beaver told his partner.

  Billy Richardson shook his head. “Now we’ve got another capital case, Jerry,” he said. “Shouldn’t that one have priority?” Richardson had been appointed to defend Mark Thompson, a seventeen-year-old Fort Bragg soldier who helped ambush an elderly couple in their home. Thompson and Jeff Meyer dressed in black Ninja costumes and bushwhacked the couple while they slept with blow darts and butterfly knives, all to gain “experience points” for their next episode of Dungeons & Dragons.

  “No, we’re trying this one first,” Beaver said. “We’re getting the hell out of Fayetteville. We’ll tell them we’ll try the case quick and agree to Wilmington and we’ll sandbag them, because we can outwork them and put the case together quicker.”

  Beaver ran the proposal by District Attorney Ed Grannis. “The facts in this case were close enough that the Supreme Court reversed it on a technicality,” Beaver told him. “If you fight us on venue and you win, we’ll get it reversed again.” Grannis bought it. He liked the idea of trying the case quickly, and he particularly liked Wilmington, a coastal town 90 miles southeast of Fayetteville known for its conservative juries. Beaver had conceded moving the trial to Wilmington so he could get the case heard quickly.

  Beaver and Grannis agreed to “shop” for a judge both co
uld live with. In major trials, the state and defense play this game, delaying trials until a judge they want takes the bench. But Beaver and Grannis both wanted to get on with the trial, so both agreed to make a separate list of three judges they liked. If there was a common name, they’d ask the state courts office to appoint that judge to the case.

  To each other’s surprise, Giles R. Clark appeared on both lists. The judge from nearby Bladen County happened to be holding court at the time in Cumberland County.

  Judge Clark was an old-fashioned Southern judge, calling prosecutors “solicitors” and referring to the accused as the “defend-ANT.” He shared his homespun wit from the bench, which made him sound like a hick. But heaven help the lawyer who thought the legal world had passed Giles Clark by. He’d set the lawyer straight and have the courtroom laughing at him.

  Prosecutors liked Giles Clark because he wouldn’t put up with defense lawyers’ delays and diversionary tactics. But Beaver and Richardson knew this judge would not be subject to pressure within a community for a conviction. He’d make sure the trial was fair. Judges who’ve been around as long as Giles Clark cannot stand to have their cases reversed by appellate judges.

  A couple of weeks after the Supreme Court ordered a retrial, Beaver, Richardson, and Grannis found Judge Clark in his chambers. “We could have a big long motion hearing on venue,” Beaver said, “but we’re willing to agree to a mutually accepted jurisdiction. We want to go to Wilmington. Can you hear the case?”

  Judge Clark was flattered both sides wanted him as judge. “Draw up an order and I’ll sign it,” he said. The trial was set for February 27, 1989.

  Beaver didn’t know then that the U.S. Supreme Court would agree to hear a police brutality case he’d taken. The Court told Beaver it expected his brief in late January, just a few weeks before the Hennis trial would start. Richardson, who’d wanted the second trial all along, realized his wish.

  Before he could begin, Richardson had to confront Trial One. He realized when he looked in the mirror he shared some of the fault for what had happened. He hadn’t forgotten that look on Hennis’s face. Give this ring to Angela and tell her I love her. The sobs from the man who sold his house to hire him still rang in his ears.