Innocent Victims

by Whisnant, Scott;

  After he testified, Judge Ellis made it clear to the prosecutors that if they were holding anything else that might help Tim Hennis, they had better give it up quickly. Dickson and Colyer spent four and a half hours that night poring over seven files from the DA’s office and two sheriff’s department files. During a chambers hearing the next day, they turned over all the notes they had on John Raupach. The state had known this much about him:

  On the night of the murders, Raupach got off work at Winn-Dixie at 11:16 P.M. and walked home, wearing a white dress shirt and dark corduroys. Raupach told detectives that he would’ve taken off his tie and unbuttoned his shirt for the walk home.

  Around 11:30, Gloria Mims had looked out her window on Summer Hill Road to see what had caused her dog to bark. She described a well-built white man with light hair, a white shirt, and dark pants. Damn, Richardson thought. That’s a better description of Raupach than anyone’s ever given of Hennis. But even with that information, VanStory steered the jury to think Gloria Mims had seen Tim Hennis until that jury sentenced Hennis to die.

  The notes reflected that Raupach owned a couple of guns and several knives. That Raupach had A positive blood, matching the semen sample found at the scene. That one of Raupach’s friends owned a blue van. That Raupach knew Mrs. Eastburn well enough to say “hi.” That Patrick Cone had bummed cigarettes off him.

  But the notes further disclosed that Raupach had worked until 11:28 P.M., the night after the murders, placing him at Winn-Dixie when the stolen bank card was first used. Raupach also wore a size 13 shoe, much bigger than the bloody footprints found in the Eastburn house.

  That was enough for the state to rule him out. The state was only interested in whether Raupach was involved with the crime and was not interested in helping the defense theorize on who Patrick Cone had seen. Raupach was sent home.

  Richardson was furious. His client, too, had been at work the night after the murders and had feet bigger than the bloody footprints, but that hadn’t ruled him out. His frustration multiplied when Colyer found a note saying Raupach had even been to watch the first trial one day, sitting no more than 25 feet from the young lawyer who’d spent a month of late nights looking for him.

  That was all the state had on Raupach, but Colyer brought up something else he’d found in the files.

  “This has nothing to do with Raupach, but I think it is something that needs to be disclosed to the defense at this point,” he said. He produced an envelope addressed to the sheriff’s department with a Fayetteville postmark.

  “Mr. X letter,” Beaver and Richardson said simultaneously.

  Dickson and Colyer paused, wondering how they knew.

  The letter arrived exactly one year after Hennis got a Mr. X letter in Central Prison. The letter had the same scrawled block lettering and said:

  I’m passing thru Fayetteville

  on my way to New Jersey.

  I murdered the Eastburns.

  I did the crime, Hennis is

  doing the time.

  Thanks again

  Mr. X

  Judge Ellis scheduled the misconduct hearing for immediately after the trial evidence was completed.

  While the lawyers clashed behind closed doors over the new evidence, the families and spectators waited outside the courtroom. Bob Hennis motioned Gary Eastburn to him.

  “This boy didn’t do this,” Bob said. “I hope that doesn’t bother you, but it’s going to come out innocent.”

  “I know you got to believe that,” Gary said.

  Chapter Thirty

  While sheriff’s detectives in Fayetteville unhappily prepared notes for a misconduct hearing, the trial went on. Richardson launched a new attack against the state’s case, an effort that two days later would further irritate prosecutors still smarting from the Raupach incident and leave jurors thinking about the case in another light.

  He began with Keith Smith, the drug informant who finally proved useful to the defense. If Joe Nunnery could testify that he’d seen Tim Hennis parked across the street from his car lot for four hours, then Keith Smith could testify that Nunnery had actually seen him in his beige Honda. Also, he could testify why he was there, giving Richardson an excuse to bring drugs into the case, something he’d wanted to do from the beginning.

  Smith told the jury he was a drug informant and began describing how he recruited Julie Czerniak as a source. Dickson wanted to make Smith stop. He stood up and asked that the jury be excused.

  Jurors startled by the connection of drugs and Julie Czerniak to the Eastburn house sat in their jury room with arms folded, staring at the walls and wondering what was going on with the baby-sitter.

  “It was quiet as a tomb,” juror Debbie McDowell said.

  With the jury out of the room, Smith told Judge Ellis about the drug buy he made with Julie at the car lot on Summer Hill Road. “We gave Julie $250,” he said. “Julie then gave it to the black gentleman. Then somehow between there, they ripped us off of $250. We had already been told not to give money up, but we did …

  “So we sat there for at least four hours one day and some hours during the night until we could get up with the guy and tell him. We finally got up with him and told him that we wanted our money or our dope.

  “And then Julie said that I’ll be at this house, which would be Mr. Eastburn’s house, and told the drug dealer to come there and bring her the coke on a following Friday night. We were supposed to get back with Julie and see if he had. Well, then I was out of town for a week. I come back and that’s when I found out everything that had happened.”

  Dickson kept the jury from hearing Smith describe that drug buy, but it was too late. His attempt to prove that Hennis had parked across the street staking out the Eastburn house had been turned into a suggestion that maybe drug dealers irate with a fifteen-year-old informant had been to the house that Mother’s Day weekend. The jurors’ imaginations filled in the blanks.

  Richardson shifted his attack to the black jacket. For four years, Tim Hennis had regretted being one of the millions who wore Members Only jackets in the mid-1980s. During two trials that jacket mocked him in its dry-cleaner plastic bag, an ominous suggestion he’d tried to cover up something.

  Now the jacket would be used as a weapon against the SBI lab. When Brenda Dew testified that dry-cleaning would take blood out of a jacket, Richardson thought she was wrong and set out to prove it. He and O’Malley found Gene Verne, who had cleaned the jacket four years earlier.

  “Will dry-cleaning take blood out of an item?” Richardson asked him.

  “You can do it, but you have to know it’s there,” Verne said. “Ordinary cleaning with Varsol won’t do it.”

  “How do you know that?”

  “What do you mean ‘How do I know that?’” he said. “I’ve been doing this for 30 years.”

  Gene Verne got a subpoena. “You’re not going to put me up there alone, are you?” he asked.

  “What do you mean?” Richardson said.

  “Well, nobody’s going to believe just me. We’ve got this institute for whenever we have a tough stain or a question, we can write them and ask them about it.”

  Richardson called James Kirby, head chemist at the International Fabric Institute. Kirby told him Varsol wouldn’t get blood out of a jacket. He got a subpoena.

  “That’s all we need,” O’Malley said.

  “No, that’s not all we need,” Richardson said. “Dickson will ask if he’s worked with Luminol and he’ll have to say he hasn’t. We need somebody who’s worked in a crime lab.”

  O’Malley called Bill Best, a forensic chemist in Charlotte who years earlier had helped set up the SBI’s lab in Raleigh. Best said he would testify, but only after he dry-cleaned a bloodstained Members Only jacket with Varsol and tested it with Luminol. All Best needed was a jacket. O’Malley put his maroon Members Only jacket on a Greyhound bus and sent it to Charlotte.

  Richardson had his three witnesses ready to go in the courtroom, hoping Dickso
n would walk into his trap.

  “In the course of 30 years as a cleaner,” Richardson asked Verne, “do you have an opinion as to whether or not cleaning with Varsol will remove blood from a jacket?”

  “It won’t remove blood.”

  “Are you absolutely positive of that?”

  “Positive.”

  Dickson fought back.

  “You wouldn’t know … how Varsol would affect the ability of a chemist to determine whether or not there had ever been any blood there?” Dickson asked.

  Verne did not. Good, Richardson thought. He called his chemist, James Kirby, to the stand.

  “Can you tell this jury whether or not Varsol drycleaning will remove blood from a fabric?” Richardson asked.

  “Simply put, Varsol is a petroleum-based solvent that will have some effect on solvent soluble-type stains, such as greases and oils,” Kirby said. “It has virtually no effect on blood whatsoever.”

  “Mr. Kirby, a few weeks ago a witness came in this courtroom, a forensic serologist with the State Bureau of Investigation,” Richardson said. “She stated to this court that in her experience, dry-cleaning of an article of clothing will remove the blood so that it is no longer present or detectable. Do you have an opinion about that statement, sir?”

  “Did you say it was that person’s experience? I would suggest that there was no experience. I mean it just didn’t happen.”

  Dickson quarreled with him as well. “Do you know what effect it might have on the ability to detect blood through the use of Luminol, whether the blood is still there or not, sir?”

  “No, I wouldn’t know about that particular test.”

  Two for two, Richardson thought. The next morning, he called Bill Best to the stand.

  “You can detect blood after dry-cleaning in many, many instances,” Best said.

  Best had brought photos of the jacket he tested with Luminol. He’d put a dab of his own blood on the inside of each sleeve, where a man with blood on his arms might leave a stain.

  The photos showed a white Luminol reaction on each sleeve. Best walked before the jurors and pointed out the glowing stains in the photos.

  Dickson pointed out the jacket’s color was blood-red. When that fact didn’t seem to make any difference to Best, the prosecutor was down to his last option.

  “If the person who committed a particular offense where there was a great quantity of blood didn’t have a jacket on at the time of the commission of the actual offense, you wouldn’t expect to find blood on it then, would you?” he asked.

  For four years the state had sold that jacket to the public as the final evidence from Hennis’s cleanup. Now that it could no longer be used against Hennis, the prosecutors tried to dismiss it. But when the jacket was tossed aside, a good deal of the SBI lab’s credibility went with it.

  As Best got off the stand, juror Debbie McDowell crossed her arms and glared at the prosecutor. Beaver nudged Richardson. “There’s no way that woman is going to vote to convict Tim Hennis,” he said.

  Richardson then took on the two last strongholds of the state’s case: Patrick Cone and Lucille Cook.

  He began with the letter from the missing wallet found years before. Sean Buckner had saved all his girlfriend’s letters, including this one. Richardson wanted Sean to read it aloud in court. Patrick Cone’s “Dear Mom” letter at the first trial had been a tough pill to swallow, to believe that Cone had spontaneously decided to write a letter to his mother that perfectly corroborated his identification of Tim Hennis. Richardson wanted the state to eat the “Dear Pat” letter. But getting it into evidence was a problem. Richardson knew the court would quickly squelch it as hearsay—unless he could find a way to make it relevant.

  So before Buckner took the stand, Richardson approached John Dickson.

  “John, I want to be up front with you,” he said. “His mother works for us. But that’s not how we found out about him. It had nothing to do with her and you shouldn’t bring that up.”

  Dickson muttered that he already knew about Sean Buckner’s mother, which was fine with Richardson. Bring it up and watch what happens, he thought.

  Sean Buckner settled into the witness chair, not sure he wanted to be there. He took a deep breath. Sean didn’t like turning on his friend, but Pat had left him no choice.

  He and Pat had resumed a childhood friendship during the first trial. They talked many times about the case. Sean told the jury how Pat had told him about the man he saw walking on Summer Hill Road.

  “He said that he looked over and saw him, and he walked down and got into a white Chevette,” Sean said. “And he looked and remembered the license plate number. The person turned around, and he hid behind a tree and ran home and slept under the bed because he was scared. And after that he started telling me different things. It didn’t make sense.

  “And so then later, near the end, he started getting worried about it. I said, ‘What’s the matter, Pat?’ He said, ‘I feel like I’m sending an innocent man to prison.’ And he was real worried about it.”

  “Did you ask him or did there come a time when you tried to encourage him to come forward and say that he wasn’t sure?” Richardson asked.

  “We talked about it, but he was scared because if he goes to talk to Mr. VanStory and they say a lot of words that he don’t understand, he was afraid they would put him in prison for perjury. He wanted me to help him. We thought about talking to the prosecutors, but they seemed like they were crooked.”

  Richardson asked Sean to describe Cone’s drinking habits.

  “He would drink—he usually drinks stuff like Thunderbird and stuff like that. And when he starts getting worried and concerned, he starts drinking more. When he starts drinking, he’s not coherent at all. He doesn’t see things that is going on around him, and he lies a lot.”

  Dickson didn’t take it lightly. “Did you live there with your mother?” he asked.

  “Yes, sir.”

  “What does your mother do?”

  “She works at a nursing home, and she works for Mr. Thompson. He’s a lawyer.”

  “What Mr. Thompson is that?”

  “That works with Mr. Beaver.”

  “That’s Mr. Jack Thompson of the law firm of Beaver, Thompson, Holt and Richardson, isn’t it?”

  “Yes, sir.”

  “And your mother works there? How long has she been working there?”

  “I don’t know exactly.”

  It was just what Richardson wanted. Dickson took the bait, trying to infer he got Sean Buckner to testify because his mother cleaned Jack Thompson’s floors.

  “Mr. Buckner, you also talked to Pat Cone this year, didn’t you?” Dickson asked.

  “Yes, sir. I did.”

  “In fact, you tried to call him repeatedly, didn’t you?”

  “Yes, sir, I did.”

  “At whose request were you calling him?”

  “My own.”

  “And what were you telling him, Mr. Buckner?”

  “I told Pat that I got subpoenaed. So I was trying to let Pat know that if he didn’t say anything, I was going to have to. Also, I was letting Pat know that he needs to get himself out of this, because I felt like that the state was going to try to send him to jail.”

  “Mr. Buckner, you kept calling Pat for Mr. Richardson, didn’t you, to get him to talk to Mr. Richardson?”

  “I object,” Beaver hollered. “There is no good faith basis for such a question. There is absolute denial from this counsel table that anything like that occurred.”

  Richardson wanted to jerk the bottom of his jacket and yank him back to his seat. “Beaver, sit,” Richardson said.

  “Why? He’s attacking us,” Beaver whispered.

  “The letter. This is how we’re going to get the letter in. He’s opening the door.”

  Richardson got his chance on re-direct.

  “I came to find you by you losing your wallet?”

  “Yes, sir.”

  “And in that w
allet was a letter that—”

  Dickson objected to Richardson leading his witness. He tried the question again.

  “What was in the wallet?”

  “Objection to relevance,” Dickson said.

  “It will become relevant,” Richardson countered.

  “What was in the wallet?” he asked Sean.

  “My driver’s license and a letter that my wife, who was my girlfriend then, had wrote me.”

  “What was the content of the letter?”

  Dickson objected again, but it was too late. Judge Ellis allowed Sean to read the part of the letter about Patrick Cone:

  “Did you ever talk to Pat? And if so, what have you decided? I really hope that you have. And if you haven’t, you need to stop wasting your time, because if you don’t and Hennis really does get the death penalty, it will partly be your fault. Because it’s your responsibility as a Christian and a friend to help Pat out. I’m right. Yeah, I am. So you better quit wasting your time and get down to business. If you haven’t talked to Pat by the next time I talk to you, I’m going to be a tad bit upset with you. So get on the ball, nigger.”

  Lori Buckner followed Sean to the stand and testified that Pat told her he wasn’t sure of what he saw because he’d been drinking.

  “Tell the jury what Patrick is like when he drinks,” Richardson said.

  “He lies. He lives in a fairy-tale world. He’s incoherent. He doesn’t know what is going on around him.”

  “How often does he drink?”

  “A lot. Excessive.”

  Richardson was finished with Cone. Lucille Cook’s credibility was next.

  She’d testified that it was unusual to see a soldier at the BB&T across from Methodist College. The bank’s vice president testified that many of his customers were soldiers. A real estate agent then testified most of the home sales in the area were military.

  Richardson reminded the jury that Lucille Cook’s card had been used 3 minutes and 35 seconds after the stolen Eastburn card. Then he showed a videotape he’d made at the same BB&T. Three customers used the bank machine in less than 3 minutes. Richardson videotaped himself using his own bank card in less than 50 seconds.