Innocent Victims

by Whisnant, Scott;

  He again said he thought the affidavit he signed was a subpoena.

  “Mr. Cone, is there any doubt in your mind that this defendant is the man you saw coming down that driveway on the morning of May tenth?”

  “No, sir.”

  “Thank you, I have no further questions, Your Honor.”

  Billy Richardson leaned forward, ready to tear into Cone and relieve more than three years of frustration with this witness.

  “Mr. Cone, were you drinking that night?”

  “No.”

  “You didn’t have anything to drink that night?”

  “No, not that I know of, that I can remember.”

  “During this time period did you ever drink a lot?”

  “I drank. I didn’t drink a lot.”

  “Okay. What do you mean you drink?”

  “I drink. I socially drink.”

  “Okay. What do you mean by you’re a social drinker?”

  “I drink a couple of beers every now and then.”

  It was not Richardson’s intent to cross-examine Cone on every step of his walk home. He did not ask which streetlight he was near when he first saw the man, or where they passed in the road. Beaver had tried all that three years before and it only gave Cone a chance to repeat his story.

  “Mr. Cone, at this present time, you’re presently under charges with the state of North Carolina for attempted credit card fraud, are you not?”

  “Yeah, they say I am.”

  Richardson asked Cone to tell him about it.

  “Well, me and my girlfriend was arguing. And I looked in her purse. She had some credit cards. We was arguing about the car. So I left walking …”

  “So you’re saying you made no attempt to use that card at that time?”

  “No, I didn’t.”

  “You did not make any attempt to use the card?”

  “No. I forgot that I had that card.”

  “Did you make any attempt to hide behind the bank?”

  “No.”

  “And wait for people to leave and then come out and use the card?”

  “No, I didn’t. I didn’t even go to the bank. I stopped. I was like 100 yards from the bank.”

  Cone denied he’d been charged with drunk and disorderly conduct at Kroger’s grocery store until Richardson produced a copy of the arrest warrant. Cone acknowledged the arrest, but denied he was drunk or disorderly.

  He admitted drinking “a couple of beers” the night Jack Watts stopped his car, but denied Vincent Taylor’s claim that he’d drank a pint of wine and 12 beers. He denied saying to his friends, “I can get away with anything I want, because they need me in this case.”

  He repeated the weather was clear and he could see stars.

  “And you made those observations?” Richardson asked.

  “Yes, well, I was walking, so I had to see something, right?”

  Cone admitted he’d quit his job working for his father at Methodist College two years earlier.

  “Why did you leave it?” Richardson asked.

  “No reason, really.”

  “There was no reason why you left the job?”

  “No. My father talked about it. He said something and I went to work that day, and the next day I didn’t ever come back.”

  Richardson pressed Cone about the doubts he once expressed. He read the entire transcript of his tape-recorded statement during the ride back from Gibsonville.

  “I asked you ‘The day that we went out and looked at the scene, you were expressing doubts that day, weren’t you?’ And your response was ‘Yes,’ was it not?”

  “Yeah.”

  “‘And at that point you weren’t certain?’ I asked you that. And your response was, ‘Yes,’ was it not?”

  “Yeah, but I’m always certain,” he said. “Just with y’all I’m not.”

  The cross-examination lasted little more than an hour. Cone was on and off the witness stand in the same day, after taking three days at the first trial. But this time, there was no wink for Billy Richardson.

  John Cone followed his son to the stand and repeated a version of the joke that went over so well in Fayetteville.

  “I told him to be sure that the guy was right, that he had the right person,” he said. “And he said that he was sure he had the right person. And I told him that he would curse the day that he got involved in that trial …”

  Detective Robert Bittle chuckled out loud, a hearty laugh that dried up when he realized he was laughing alone. The trial in Wilmington would be very different indeed.

  On cross-examination, John Cone reluctantly admitted he’d fired his son because of “suspected theft.” An instructor at the college had caught Pat rummaging through his desk.

  Richardson thought he’d gained a satisfactory revenge, but his partner was less impressed. “I’m not sure you hurt him,” Beaver said. Dickson seemed positively relieved. As far as he was concerned, Cone had survived.

  Dickson moved forward with his case, and the defense lawyers resumed waiting for the worst. For six anxiety-ridden days, every time Dickson or Colyer stood up to call a witness, they winced like schoolchildren expecting a pop quiz. Had they studied enough? Would they know this witness?

  A low point came when Randall Murch testified about blood testing. While listing his credentials, he said he’d performed DNA testing, which had become standard ID evidence in criminal cases. Colyer then referred him to the Eastburn case.

  “Sir, you mentioned earlier in your qualification the term ‘DNA,’” Colyer said. “What is DNA?”

  Oh no. Here it comes again. Beaver and Richardson braced for a positive DNA test result and the end of the case.

  But it turned out Colyer raised the issue only to explain to the jury why DNA testing wasn’t done. The semen samples had not been preserved.

  A week of moments like that tortured the lawyers. Billy Richardson gave up eating. He lost 18 pounds, down to a rail-thin 154. Court recessed early one day because he was light-headed. He began chewing gum in court.

  Beaver was chewing paper. He’d tear off edges and corners, chew them awhile and spit them out. Sometimes he took paper clips and bent them out of shape, tossing them behind him when he was finished. As his anxiety mounted, so did the mangled pile of clips behind the defense table.

  During the lunch break before the SBI lab experts would testify, Beaver studied his notes.

  “You coming to lunch?” Richardson asked.

  “No, I need to prepare for these witnesses.”

  Richardson looked at him for a moment. “Jerry, you sure you can handle this?”

  “That’s not funny, Billy. That’s not what I need from you at this time. I need support.”

  The lab experts reached the same conclusion: The physical evidence neither incriminated nor eliminated Hennis. But this time, the expert phase was the beginning of a string of unexpected victories for Hennis’s lawyers.

  Durwood Matheny refused to admit it was even worth trying to match the ashes in the barrel to the 105 missing documents. Beaver presented the transcript of the first trial, when he’d said “there could be a possibility. We’d had good results with it in the past.”

  Beaver asked again if the test was worth running. His memory refreshed, Matheny said there was a possibility of a match.

  Colyer asked Brenda Dew, the SBI’s blood expert, if she had personal experience with whether dry-cleaning would remove blood from a jacket.

  “Yes, sir. I do,” Dew said.

  “And what has been your experience in that regard?”

  “My experience has been that dry-cleaning of an article of clothing will remove the blood so that it is no longer present or detectable.”

  At the first trial, Dew had only said dry-cleaning would interfere with the detection of blood. Her new answer raised a flag for Richardson. The next weekend he’d find out for himself if dry-cleaning would remove blood.

  The pleasant surprises kept coming. Deputy Eddie Hollingsworth testified that M
argaret Tillison told him about the man she saw “within a day or two” after Patrick Cone flagged him down May 12, 1985, on Summer Hill Road. But Richardson showed him a transcript of the first trial, when he said that she’d told him 11 months after the murders.

  The state expected Charles Mims to testify he’d seen a white Chevette parked across from his house on Summer Hill Road at about 11:45 P.M. when he came home from the NCO Club, 15 minutes after his wife had seen the same car. But Mims said he couldn’t remember if the car was still there when he got back from the club. Instead, he remembered it was there when he left for Happy Hour around 7 o’clock. At about that time, Tim Hennis was twirling little Amy Wiggs above his head 50 miles away in Selma.

  Susan Moore of Branch Banking and Trust testified that her records showed the exact time the stolen Eastburn card was used, broken down to the second. Whoever used the card on Saturday morning, May 11, began his transaction with a balance inquiry at 8:55.19 and started a transfer from savings to checking at 8:55.45. He began withdrawing $150 at 8:56.06. Beaver asked Moore when Lucille Cook started her transaction. Moore testified that the Cook transaction began at 8:59.41, some 3 minutes and 35 seconds after the withdrawal from the Eastburn account.

  Whoever used the Eastburn card had taken only 47 seconds to perform two transactions—the balance inquiry and the transfer from savings. The third transaction couldn’t have taken much longer than 30 seconds. Beaver and Richardson would argue that the card thief would not have waited about three minutes for someone to drive up.

  Hazel Pratt, a neighbor who witnessed the barrel fire, was adamant that she saw smoke pouring out by 9 A.M. Saturday, some 30 minutes earlier than she’d testified at the first trial. John Green, another neighbor who saw the fire, was an employee at Methodist College. Beaver had Green tell the jury that it took 20 to 25 minutes to get from Lafayette Village to Methodist College. Hennis couldn’t have been at Methodist College at 8:59 and had smoke pouring from his barrel by 9.

  Durwood Cannon, one of the Cumberland County ID technicians, testified he had used a key hanging above the deadbolt lock to open the front door. Dickson suggested that perhaps this was the source of the unknown fingerprint found there. But then he asked a question he shouldn’t have.

  “Were you wearing surgical gloves at the time you were in the home?”

  “Yes.”

  A flustered Dickson tried again.

  “And were the other ID techs wearing surgical gloves?”

  “Yes. Everybody who entered the residence was wearing surgical gloves.”

  Dickson continued to suggest that the crime scene had been ruined, but wound up contaminating his own theory. He recalled William Huggins, the ambulance driver, to the stand so he could say he wore a size nine shoe, a suggestion that Huggins had backed out of the house carrying the bodies and left behind bloody footprints that went out the side door. Unfortunately for Dickson, Huggins had carried the bodies out the front door.

  The surprises stopped with Gary Eastburn’s testimony. It sounded just as tragic as the first time, but this trial was not the same for him. Gary had no desire to endure another trial. The outcome wouldn’t change anything—he’d always believe Tim Hennis was guilty. But he’d come to sympathize with Bob and Marylou Hennis—they’d never done anything to him—and he didn’t want them to suffer again.

  After Gary testified, the judge took a 15-minute break and Gary walked into the hallway. Angela Hennis walked out behind him. Both wanted the war that divided the two families in the first trial to end.

  There was only a brief pause. “How’s Jana doing?” Angela asked, thinking about her own daughter being without a parent. Gary told her about Jana. Angela told him about Kristina. He told her about England. They talked through the recess until it was time to go back inside the courtroom.

  Later that day, Gary’s mother brought five-year-old Jana to court for a lunch date with her dad. Jana was sitting on a bench in the lobby, filling in the blank pages of a coloring book as hard as she could go as the crowd filed out of the courtroom for lunch.

  “Jana,” Gary said, “say hello to Mr. and Mrs. Hennis.”

  The defendant’s parents smiled and waved.

  While the families came together, the lawyers kept their distance. Beaver couldn’t wait to get Lucille Cook on the stand. As expected, Dickson had saved her for the end. Though both lawyers were equally dismayed by Mrs. Cook’s flash of memory in the first trial, it was Beaver who’d fumbled through the cross-examination. The DA’s office didn’t come upstairs just to watch Mrs. Cook sink Hennis. They wanted Beaver to go down with him, and Beaver had. He hadn’t forgotten the jurors folding their arms, his lowest moment as a trial lawyer.

  This time he had three years to prepare for her. Richardson put together most of the case, but Lucille Cook belonged to Beaver.

  Her story had changed a little. Mrs. Cook told Dickson the man was hunched over the machine instead of walking back to his car. Her observation time stretched from a minute at the first trial to two minutes.

  “Mrs. Cook, did the defendant drive away?” Dickson asked.

  “He didn’t drive away immediately, no, sir, he didn’t. I didn’t get out of my car until he left.”

  “Okay. Tell us what occurred as he came back to his car.”

  “What do you mean?”

  “Did you stay in your car?”

  “Yes, I did, until he started to move. Then I got out of my car.”

  “About how long did he stay in his car before he drove away?”

  “It was more than a minute. Probably two—I don’t know. It seemed like a long time. It was probably a couple of minutes.”

  Beaver smirked. At the first trial, Mrs. Cook was in a hurry. This time she waited in her car for two minutes so she could watch the man’s hair fall over his face.

  “Are you sure about what you saw that day, Mrs. Cook?” Dickson asked.

  “Yes, I am.”

  “What is it about that day that makes you remember, ma’am?”

  “Well, I remember seeing him there. He was a soldier at the bank on Saturday. You just don’t see that at that bank because, see, that’s way away from Fort Bragg. That’s maybe about, what, five miles from the main part of Fort Bragg.

  “There’s not that many military right around that area. I had never before, or never since, seen a soldier in BDUs at that Branch Bank on Saturday morning.”

  A nice detail. Dickson handed her over to Beaver, who started in right away.

  “Mrs. Cook, this really stood out in your mind?”

  “Yes, sir. It does.”

  “Yet you had absolutely no memory of it for at least 10 months after the event occurred?”

  “I don’t know how long it was, but I did not remember it at first.”

  “It was more than a half year, wasn’t it?”

  “Probably so. I don’t know.”

  “And for six months after this event that you have described, you have no memory of seeing a tall blond male at that bank?”

  “No, I don’t.”

  “None?”

  “Nuh-uh. I didn’t try to remember.”

  “Well, you were asked to?”

  “Well, they asked me, and I said no, and that was it. I did not remember it.”

  “You were asked by our investigator in September of 1986, were you not, if you had seen anyone at that bank?”

  “Whenever he called me, yes, I did.”

  “And you had told him, no, you had not seen a soul?”

  “That’s what I said, because I didn’t remember.”

  “You didn’t remember a white car?”

  “No, I didn’t.”

  “Didn’t remember a tall guy?”

  “No.”

  “Didn’t remember any BDU pants?”

  “No.”

  “What type of T-shirt did the person have on, what color?”

  “It was white. That’s another thing, too. He was out of uniform.”

  “He was out
of uniform?”

  “Right.”

  “Do you remember that he was out of uniform?”

  “Uh-huh.”

  “You remember that?”

  “Well, it has always been like that. It has always been out of uniform.”

  “And you had no memory of the person being out of uniform for six to nine months after the event occurred?”

  “Well, I just didn’t remember the event.”

  Beaver showed her a list of more than 90 automatic teller transactions she’d made from December 7, 1984, to May 30, 1986, and another list of transactions six months prior to that moment. Several were made on a Saturday. Beaver went over each one, asking Lucille Cook if she could remember anything on those occasions. If she didn’t remember, Beaver told her to mark it with an ‘X.’

  The only one Mrs. Cook remembered was a $7,000 deposit on May 1, 1986. She even put an ‘X’ by the May 11 transaction.

  “Okay,” she said. “I’ll put an ‘X’ all the way down.”

  “Just don’t remember any of them?”

  “I ain’t even trying to.”

  “Well, would you try to?”

  “No. I don’t know of any reason to.”

  Beaver got back to the May 11 transaction. “I asked you if you had any memory of a May 11, 1985, 50-dollar withdrawal at Methodist College?”

  “Yes.”

  “You said no?”

  “Well, I—because you tricked me, that’s why.”

  They kept sparring back and forth, with little objection from the state. “Could she finish an answer one time?” Dickson once complained. But he was content to let Beaver question away, satisfied his witness was holding her own.

  Lucille Cook’s finest moment came when the lawyer had her step in front of the jury with a photograph of the bank parking lot and explain how she was parked. After a long explanation, Beaver still didn’t get it.

  Mrs. Cook looked up at the jurors.

  “Do you all understand?” Twelve heads in the jury box nodded yes. John Dickson and Cal Colyer were ecstatic.

  But during a recess after she finished, some of the jurors gathered in their room, looked at each other and chuckled. “People got right tickled at her,” said Ken Wells, a twenty-four-year-old electrical apprentice, “because she kept shooting herself down.”