That night, Kathy told Mark to wait upstairs until she brought Danielle. Sitting on the bed, he said, “I don’t know if I can handle this.”
“Just get yourself together I’m going to bring her in and we’ll do it together, just the way we discussed this afternoon.”
Kathy brought Danielle in. She scampered onto the center of their bed between her parents and asked her father why he was crying. He got up and went into the bathroom, where they could hear him sobbing loudly.
Kathy told her to wait. She returned with Mark leaning on her. Danielle watched quietly.
“Danielle, Daddy is so very sorry,” he said, unable to go on. They both looked at Kathy.
She held her daughter. “Listen, do you remember when a couple of weeks ago, you were in the kitchen and Mommy was by the sink making supper, and dinner was cooking on the stove, and little Mark went over to the stove and he was going to reach up and maybe get burned? And you pushed him away and he fell and bumped his head, and he cried? And Mommy only saw you push him, she didn’t see him reaching up for the stove?”
“Yeah, I remember it.”
“And do you remember how you felt when I yelled at you?”
“I felt bad.”
“But you really shouldn’t have pushed him so hard?”
“I know.”
Drawing a deep breath, Kathy explained that another bad thing had happened. Her father had done something impulsively. It was wrong; he had not meant to do it. A lady in Kentucky had been hurt very badly, there had been a fight, and Daddy had to be punished. The psychologist had stressed the need to explain that Mark was not bad, that the situation was. Moral nuances could be explored in years to come. “It wasn’t as though Daddy had time to think about anything,” Kathy said. “He reacted quickly, just like you did. Daddy had to tell the truth about what happened, but because of what happened, it was wrong. It was a terrible mistake. He’s going to have to go away for a long time.”
Danielle started to cry. She looked at her father and said, “Is that why you’re crying, Daddy?”
Then she jumped into his arms and said, “If you’re telling the truth, why do you have to go away?”
“Because what Daddy did was very wrong.”
He told her that he would always love her, that he was proud of her, that she was a big girl, and he wanted her to be brave. “Can you do that for me?”
She said she could.
Kathy asked Danielle if she had any questions.
She didn’t. She said, “Me and Mommy can take care of things.” She told her father not to cry. “You’re making your nose all red.” And Danielle left the room.
Mark was shaking violently. Kathy put her arms around him and rested her head on his chest.
“I can’t believe I did this to you and the kids,” he said.
She left him there and went downstairs to the sounds of life. Danielle was outside playing. Kathy’s mother was in the kitchen, making dinner. A storm had come up fast over the Everglades. Mark stood at the upstairs window and watched the Florida downpour, which would continue steadily for two days.
16
Bruce Zimet called Gavin at the start of the week and laid out the initial defense position. “You guys know you don’t have a case without a body,” Zimet told Gavin, an old friend.
“Well, with or without a body, we will not stop investigating. We’re going to run every lead out, and I’ll tell you, Bruce, I think I can get enough circumstantial evidence to make a case. And you also might want to tell Mark that John Paul Runyon, the prosecutor out in Pike County, can indict anybody for anything and be considered a hero.”
“I’ll be in touch,” Zimet said.
In Pikeville, the commonwealth attorney’s office had started moving on the prosecution of Mark Putnam the day after the state police detectives got back to Pikeville. Capt. Gary Rose had called Runyon at home on Saturday to tell him that Mark had just taken the FBI polygraph and failed it, and that he was going to be questioned the next day by supervisors in Miami. Runyon figured that Putnam either already had a lawyer or would soon be getting one.
On Monday, Runyon held a meeting with the state police; the FBI’s representative from Lexington; Terry O’Connor; and the US attorney out of Lexington, Lou DeFalaise. The men gathered in the prosecutor’s office knew that all they had on Mark at this point was that he had made false statements in an interview and during a polygraph test. Failing a lie detector test was not a crime, nor a legal indication of one. There had been no admission of guilt. They believed that he had killed Susan, but he hadn’t yet admitted it, and there was still no way yet of proving it in a courtroom. There wasn’t even enough to file a charge.
Runyon insisted that they evaluate the potential criminal case: In the absence of a confession, what did they have independently? Well, they could establish that Mark had a motive to cause Susan Smith harm. Several witnesses, Shelby most notable among them, would testify that Susan had said she was pregnant by Mark and had threatened to hound him until he met her terms, whatever they were. However, no one had actually heard her say these things to him. The motive was weak but at least presentable.
Furthermore, Mark had had the opportunity to commit the crime. His presence in Pikeville at the time Susan disappeared could easily be established; the two had been registered at the same motel. However, no one had been found who actually saw them together.
That, stripped down to its bare essentials, was their “case,” Runyon acknowledged morosely. The major problem, obviously, was the absence of any proof that a crime had been committed. The investigation had run its course, they knew that. After a year, they still had no physical evidence, no witness to a threat—and no body. All they could do was wait for the killer’s next move.
Runyon, who had prosecuted hundreds of homicides during his career, was a formidable opponent for any defense lawyer. Not only was he smart, he was convincing, which is often more useful in dealing with a jury. He had the unusual ability to cry real tears when summing up a case that particularly moved him. A performance of this distinguished white-haired servant of the people in front of a jury, literally crying for justice, was one that lawyers took time off to witness. After one trial, a judge had questioned the prosecutor about his remarkable theatrics. “Judge,” Runyon replied apologetically in a slow drawl, “it is a strategy I never use unless I feel that it is absolutely necessary.” To which the judge had snorted, “Hell, John Paul, in my opinion any lawyer has that ability and doesn’t use it is guilty of malpractice.”
Runyon knew that if he could get Mark Putnam indicted and in the dock in a Pike County courtroom, obtaining a conviction would be no great problem. He was already lying awake at night, rehearsing his summation to a jury of mountain people: “This slick prep-school boy from Connecticut, a college graduate”—here a knowing glance at the jury—“this highly trained criminologist for the Federal Bureau of Investigation who murdered, in cold blood, a poor, ignorant, pregnant mountain girl, a mother of two little children . . .”
But it was an exercise in fantasy. No matter how he shuffled the cards, he knew he did not have enough evidence to indict Putnam. And he worried that Putnam and his lawyer knew the same thing.
Runyon waited impatiently to hear from that lawyer, whoever it was. Monday passed without a word. Runyon was bewildered.
Finally, late on Tuesday afternoon, he received a phone call from a Fort Lauderdale attorney who introduced himself as Bruce Zimet, a former assistant US attorney, now in private practice, representing Mark Putnam.
Runyon said he knew the name.
Zimet wanted to talk hypothetically. But first he needed to invoke Rule 11 of the federal rules of criminal procedure. The prosecutor had been expecting that Rule 11 is a standard procedure that basically enables a guilty party to discuss a plea to a lesser charge, without being subject to criminal liability for anythin
g that is divulged during those discussions. Under Rule 11, true statements “made in the course of any proceedings under this rule” are inadmissible if the plea is ultimately rejected or withdrawn. Prosecutors with a solid case do not agree to hold discussions under Rule 11.
Carefully, Runyon told Mark’s lawyer to go on.
Speaking hypothetically, Zimet explained that while a client might be willing to confess, he was not willing to take the maximum penalty for a charge on which the state apparently had no evidence.
Two weeks of negotiations had commenced.
Runyon and his assistants researched their dilemma as the talks got under way. Their central problem was that, even in the unlikely event that evidence that Mark Putnam killed Susan Smith could be produced independent of a confession, an indictment for murder would be almost impossible to support in Kentucky, where state criminal law divides “criminal homicide” into four possible charges: murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide. The requirements for a charge of murder clearly reflected the historical realities of justice in a frontier state. Only cold-blooded homicides really fit the definition:
A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person, except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.
Even with a body and independent evidence linking Mark to the killing, the requirement for intent would have been difficult to meet. Moreover, even with a riled-up jury a prosecutor would have a difficult time countering the defense that Mark’s state of mind, reflected in facts that no one disputed, was consistent with “extreme emotional disturbance,” which was defined under Kentucky law as “a temporary state of mind so enraged, inflamed or disturbed as to overcome judgment and to cause one to act uncontrollably from its impelling force, rather than from evil or malicious purposes.” It would not have taken Clarence Darrow for the defense to establish that Putnam met those criteria.
If this was a homicide case, it appeared to meet the definition of first-degree manslaughter:
A person is guilty of manslaughter in the first degree when: (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under extreme emotional disturbance.
Still, manslaughter was a major crime, carrying a maximum penalty of twenty years in the penitentiary. But even in a cut-and-dried case—with the perpetrator found standing over the body holding a smoking gun—twenty years was an ambitious goal for a prosecutor. Runyon had his staff research the court statistics on homicides in Pike County during the 1980s. The average sentence for all homicides (murder and manslaughter) was 7.6 years. For manslaughter alone, the average sentence was about half that. Nationally, the average time actually served for these crimes was nowhere near twenty years. A national study of homicide cases from 1976 to 1987 in eight states—California, Georgia, Montana, New Jersey, New York, Ohio, Washington, and Wisconsin—found that the median length of confinement for defendants found guilty of murder was five years. Aware that he would have to vigorously defend whatever verdict he obtained on the Putnam case, Runyon was determined to hold out for the stiffest sentence he could manage. But he had to be careful how he did it. As both a sportsman and a politician, Runyon knew well that hooking a fish took a lot less skill than bringing it in. He spent restless nights deconstructing his problem, not knowing—not even able to eyeball—his quarry circling at the far end of a telephone line. Yet Runyon knew instinctively that in the churn of mountain politics, a prosecutor who lost a case like this—the case of an outsider, a federal agent who killed a poor coal miner’s daughter, dumped her body, and left her there for a year—would be vulnerable not only to defeat, but equally bad, to derision and scorn. And he knew very well that this case could be lost. The killer could manage to wriggle off the hook, even if he conceded doing, it, on the technicalities—he could practically hear the word curling from the lip of an as-yet-unknown political opponent, some Pikeville populist grabbing the opportunity to bring down the invincible John Paul Runyon.
If Mark Putnam walked, it would not matter politically that the state police and the FBI between them had not managed to produce a shred of evidence that a crime had even been committed, even though the brass from both agencies were now busy clapping themselves on the back for cracking the case. All that would matter would be that the prosecutor had let a murderer slip off the hook.
The prosecutor had no way of knowing that Mark Putnam was grimly determined to throw himself into the boat.
Back in Florida, Mark insisted that he was going to prison for thirty or forty years. “I killed somebody, Kathy. I’ve got to go to prison for a long, long time. You and the kids need to cut your ties to me,” he told her in conversations that started at dawn and continued until they fell asleep exhausted at night.
His fortitude confounded his lawyer. Zimet had been stunned by the story that Mark and Kathy told him when they came to his office in Fort Lauderdale on Tuesday morning, but he immediately saw the advantages his client had in negotiating a deal. It did not make sense that Mark wasn’t interested in negotiating. In fact, when Kathy stepped out for a minute to have a cigarette, Zimet asked Mark whether he was actually protecting someone else, such as his wife.
A suspicion of misguided gallantry was perhaps reasonable for someone who did not know the Putnams. Not many criminal suspects begin their case stipulating that they are guilty, even to their lawyers. Fewer still insist that they intend to admit to their crime. It took a while for Zimet to understand that Mark Putnam meant everything he said. Mark had been anticipating this reckoning for a year, focused entirely on the guilt that crushed him and the confession he needed to make.
It also took Zimet some time to see that, stricken as she appeared to be, struggling to keep her hand steady enough to sip coffee from the china cup in which it was served by a secretary, Kathy Putnam could be a strong force on her husband’s will. For Kathy, the disaster had just happened. She was like an earthquake victim crawling out of flaming rubble. But as she got her bearings and began to look ahead, she tried to impress on Mark the idea that assuaging his conscience was not the only consideration. There was also the fate of his family, and any hope they had of putting a life together at some point, no matter how far in the future. She worked hard to persuade him that he did not have the luxury of acting unilaterally. He owed it to his family, if not to himself, to begin thinking like a defendant. She realized that without Mark’s confession, the authorities did not have a good case—if they had one, they would obviously have made it by now.
On Wednesday, when she and Mark returned to Zimet’s office to hear his assessment after his initial conversation with Runyon, Kathy had already identified a number of options, the most sensible of which, she had decided, was to deny everything. Let them make their case and prove it in court.
Though he was uneasy dealing with a spouse who had positioned herself squarely between him and his client, Zimet had come to the same conclusion.
“You don’t want to plead out on this,” Zimet told Mark. “You won’t have to do a day. They just don’t have enough of a case. They don’t even have enough to indict you.”
But Mark wanted to put an end to the ordeal. He refused to elaborate on his reasoning, but he knew that it had much to do with guilt and pride and little with legal strategy. If he could avoid it, Mark had no intention of letting a Pike County prosecutor put him on trial. He would rat
her prosecute himself by pleading guilty. Furthermore, he had been tormented for a year knowing that he had abandoned Susan in a mountain ravine. Even while he had delayed it as long as he could, he had always known that there could be only one resolution. Susan would have to be found, and he would have to confess to killing her. There was no other way he could live with himself.
“It wouldn’t be right to try to beat it,” Mark explained darkly. “I tried it for a year. Look at me.” The lawyer had no way to compare, but Mark had by now lost over thirty pounds, and his face had the drawn, sallow look of a deeply troubled man. Besides, he argued, a trial could badly damage the all-important image of the bureau. A single agent pleading out on a homicide was one thing. In a trial, the whole sorry mess—systemic abuses of informants, shoddy procedures, indifferent supervision of agents—was likely to come out. He was not willing, he said, to cause further damage.
Invariably he returned to the bottom line: “I killed somebody. I did it. There is no excuse for what I did.”
Zimet suggested that Mark and Kathy go out to lunch to talk it over.
At a restaurant across the street, Kathy tried to breach the wall he had erected around his guilt. “What do they really have, Mark? You’re going to give them everything. I understand that. I accept it. But you can get some concessions in return. You don’t have to spend the rest of your life in prison. Think about what you’re doing to us, Mark.”
Above Suspicion Page 30
