Above Suspicion

by Sharkey, Joe;

  The detective felt a little better about the plea agreement with Putnam. That eliminated the nagging thought that perhaps the body would have been found by chance. It meant that the only other potential physical evidence was the car in which the crime had taken place—the rental car that Putnam had told them about when they questioned him.

  The FBI, in fact, had already located the car. The rental agency had long since sold it to a man in Virginia who lived, coincidentally, not far from the bureau’s renowned forensic laboratory in Quantico, Virginia. There, bureau technicians tore the car apart piece by piece and finally discovered a tiny speck of human blood between two layers of foam inside a front-seat cushion. Jim Huggins would later say that this discovery showed the bureau at “its truly most impressive combination of dogged searching and use of technology.” But Ray didn’t see much ground for boasting since the blood sample didn’t match either Susan’s or Mark’s. The FBI technicians concluded that it must have come from an assembler in the factory where the car was built. There had been no physical evidence at all linking the killer to the crime.

  On Friday, June 8, Mark Putnam’s brief career with the FBI officially came to an end. He had typed out a short letter of resignation, just a few sentences, which he planned to take to the office personally. But he was no longer welcome at the office. Instead, Gavin and Torrence said they would come by his house in Sunrise. Huggins, unable to face that wrenching emotional ordeal, had gone home to Kentucky.

  When Gavin and Torrence arrived at the front door, the two supervisors asked Mark if he had any bureau property in the house besides his gun and credentials. He did not. Wanting to find a neutral site, they suggested a short ride. Mark and Kathy accompanied the two agents in their car, Mark in the front passenger seat, Kathy in the back. They drove in silence to a location cops tend to feel comfortable in, a McDonald’s a few blocks from their house, not far from the Florida turnpike, at a place where the suburbs of Fort Lauderdale and Miami expired beside the Everglades.

  Torrence went inside to get two cups of coffee. Mark and Kathy passed.

  It had started out proudly in a crisp ceremony at the FBI Academy in Quantico. Now it was ending with three cops and a grieving woman parked outside a fast-food joint, ruefully watching children at play on bright plastic playground equipment, their mothers on guard at tiny white tables.

  “I’m sorry it has to be like this. Doing it this way is in the best interest of the bureau,” Gavin explained.

  “I understand,” said Mark.

  While they waited for the coffee, Kathy thought of a day that seemed further in the past than it was. On a cool October morning in 1986, the letter they had been expecting for many months finally arrived in the mail at their apartment in Connecticut, in a long envelope bearing the return address, “US Department of Justice, Federal Bureau of Investigation.” Their future was inside.

  Neither of them had had the nerve to rip it open, so afraid were they that it would say, “No, thanks.” They left it unopened on an end table. Mark plunked one-year-old Danielle into the stroller for a hasty walk around the block. Kathy ran into the bedroom.

  When Mark got back, Kathy heard him opening it. “Just tell me what it says!” she squealed. He slipped it under the door, face up, and she would never forget the joy and sense of accomplishment that she felt, for both of them, when she looked down and read:

  Dear Mr. Putnam:

  You are offered a probationary appointment in the Federal Bureau of Investigation, United States Department of Justice, as a Special Agent.

  They had laughed and cried; at dinner they drank wine, and at bedtime they made love. And the next day, while Mark was at work, it had all almost come undone. She’d received a phone call from a personnel clerk at the bureau, apologizing that a mistake had been made. The letter was in error; an overlooked review of Mark’s medical records had turned up the 1985 shoulder surgery to correct the old soccer injury; the FBI regretted that it could not accept the potential liability this presented. Horrified, Kathy didn’t even call Mark to tell him. Instead, she just refused to take no for an answer. For hours, she worked the phone, calling office after office at the Justice Department, until she reached someone in FBI personnel who heard her out. “Please listen to me,” she said. “We’ve been around FBI agents for four years, and frankly, a lot of them are fat guys who couldn’t run two blocks if they had to. This man is a perfect physical specimen, I’m telling you. I swear to you, I absolutely guarantee you that my husband will have no problem with agent training; we’ll sign whatever waiver you want for your liability. You have to do this.”

  And, unbelievably, they did. She’d talked him back in. The next week, Mark, as happy as she had ever seen him, was on his way to Quantico, marveling at the tenacity of the woman he loved.

  Now that they had their coffee, the agents were ready to get back to the office. Numbly, Kathy watched her husband pass his credentials, his gun and holster, his pager, and office keys to Gavin. He then handed over his letter of resignation.

  Gavin cast a look back to Kathy. “I want you to know, if there is anything we can do for you, we’ll be there for you.” It was a nice thing to say. She knew it had no meaning.

  And that was the end of the bureau business. Susan had been found. Mark had confessed. His resignation was official. The rest was up to the State of Kentucky. Mark and Kathy didn’t want a ride back. They got out of the car and walked home silently along the sandy shoulder of the road.

  17

  In Freeburn, Shelby Jean Ward knew that Susan had been found when she got a call from John Paul Runyon late Monday, asking if she could come to his office the next morning at nine o’clock. He wouldn’t say why, but she could tell from the tone of his voice.

  Runyon and Captain Rose from the state police were already there when she arrived, shaken and subdued. They told her that Susan’s remains had been found and tentatively identified.

  “Mark Putnam?” she asked.

  “Mark Putnam,” Runyon replied. “He confessed last night.” Knowing how sensitive the matter was, Runyon tried to explain the necessity of a plea arrangement.

  “Why, it’s cold-blooded murder, John Paul,” she protested.

  Rose read her Putnam’s confession. Runyon then went over the main points of the prosecution’s case, which came down, he said, to the fact that there was no evidence without that confession. He said that a sixteen-year sentence was substantial, far in excess of the average for manslaughter.

  Shelby, who had never actually met Mark Putnam but who had pushed so hard to find out what had happened between Mark and her missing sister, was not buying that. She left his office in a tearful fury, and Runyon knew he had a problem on his hands even before he got the grand jury into session to prepare the indictment. But he didn’t know what else he could do. On Tuesday, June 12, Mark Putnam would be brought to Pikeville to plead guilty. He would be in prison that night. Until then, Runyon hoped that the situation could be kept quiet.

  The Wednesday-morning edition of the Williamson (W. Va.) Daily News, the paper that circulated in the Tug Valley carried a small story with the headline “Unidentified Body Found Near Pikeville.” The story didn’t identify the body and said only that the state police and the FBI were involved in the investigation.

  Shelby and her brother Billy Joe filled in the details for anyone who wanted to know. By Wednesday, the news that an FBI agent had been implicated in the death of a young woman was moving on the Associated Press wire out of Pikeville.

  “It’s cold-blooded murder to me. My family’s all upset about this,” Shelby told a reporter from the Miami Herald, which had been alerted to the story because it involved an agent assigned to the Miami FBI Bureau. “What was so bad is when he took the body and dumped it over the hill like it was nothing,” Shelby said.

  “Like some dog,” said Billy Joe

  Other reporters soon gathe
red details of the sordid relationship between Susan Smith and Mark Putnam. “She was possessed by him, madly in love with him,” Shelby said. “We tried to get her to date other people, but she didn’t even want to talk about it. She swore that it was his baby. She wouldn’t even have had that baby if it belonged to somebody else. She was even going to name it after him if it was a boy.” Shelby described how she had warned Susan to “quit threatening” Mark about the baby. “She wanted him to leave his wife. She was threatening to tell his wife about the baby and he was scared to death.”

  On Monday, June 11, when she came to the courthouse to testify to the grand jury, Shelby was surrounded by reporters and cameras. “Because he was a big FBI, famous and everything, they don’t want him to get justice,” she said, denouncing the plea agreement, which had not yet been publicly disclosed. “I don’t care what the clique in there says. To me it was brutal murder. Brutal, brutal murder.”

  Grand juries are pliant tools of the prosecutor, but there is no law that says a grand jury can’t get something into its head and refuse to go along, especially with the media going full tilt on Shelby’s impassioned denunciation of the deal as a miscarriage of justice, a cover-up orchestrated by the feds, in collusion with the prosecutor. It was hard to argue reasonably in so overheated an atmosphere, especially given the public sympathy flowing toward the victim’s tearful sister and other family members. It was highly unlikely, but Runyon knew that if grand jury members decided they were being bamboozled, they did have the legal authority to defy the commonwealth attorney, ignore the practical realities, dig in their heels, and return a murder indictment. That would present Runyon with the worst of all possible scenarios—not only would the plea agreement be null and void, but he would have to prosecute a case on which he had no evidence, on a charge he could not support. Politically, it would be a debacle.

  Runyon and his staff had worked diligently all week to prepare a presentation designed to foreclose that possibility. When the grand jury opened its session Monday morning, Runyon called Richard Ray as the first witness. He had the state police detective describe his long and frustrating investigation, beginning with his bewilderment over the FBI’s role in delivering Susan Smith to the Landmark motel in the first place, and his uncertainty about the activities of Ron Poole after she was reported missing. Ray said he was surprised to learn that Poole “was doing this more or less on his own—he didn’t have an official investigation going.”

  “At the time that you determined that she was at the Landmark motel, did you find anyone that actually saw him [Mark] with her?” Runyon asked.

  “No we didn’t. We couldn’t find anybody that saw them together, nobody at all.”

  Turning to the plea agreement, Runyon asked, “Up until the time that he openly was Mirandized and waived his rights on June 4, 1990 . . . did you have any admissible evidence or evidence that you could obtain a criminal charge against Mark Putnam?”

  “No, we didn’t.”

  “You didn’t have a body then?”

  “Didn’t have the body. I suspected that she was probably over in the Freeburn area somewhere, and I was pretty sure that she was dead, but didn’t have any information that we could have charged him with.”

  In his testimony, Jim Huggins reiterated that point. The plea bargain, he stressed, was the only viable option. “We had no choice whatsoever—or Mr. Runyon didn’t. If he hadn’t entered into this agreement, we wouldn’t be here today. We would have an unsolved homicide, or would have worse than that—an unsolved homicide where we know who did it, but we would not have a body.”

  Much to the annoyance of the state police and especially Richard Ray, Huggins took the opportunity to give the FBI credit for solving the case, saying he wished the bureau had gotten involved sooner “but unfortunately we didn’t enter it as a joint investigation until the first of May, and we had the case solved in two weeks.”

  A juror asked Huggins pointedly what had taken the FBI so long to get involved.

  “I think the girl’s history as being a runaway, and a lot of questions about her past, would indicate to the agents or the detective at the time that maybe she ran away with some other group, she’s going to show up in a few months. I don’t believe that initially it was taken as serious. No one really wanted to believe that an FBI agent committed a murder, in my opinion.”

  Captain Rose testified that, without the agreement, “that fellow would have walked. He would never have pulled one day in the penitentiary.” On the question of premeditation, Rose added, “I personally do not believe that he intended to kill her. He didn’t know she was going to be at the motel. He came back here for court, and there she was. The evidence that we obtained during the investigation was that he actually tried to avoid her during the week I believe as somebody said, had he actually planned to do it, he would have done a lot better job than the job he done.”

  Since she had been the main source of pressure on the police throughout the year that her sister was missing, Shelby Jean Ward was an important witness. But it was clear that she had no evidence that gave legal weight to her insistence on a murder indictment. The grand jury quickly saw that her knowledge of the relationship between Susan and Mark was strictly hearsay. Shelby conceded that all she knew about Mark was what Susan was telling her.

  “Did she tell you that she would come to Pikeville and see Mark Putnam?”

  “Yes.”

  “You don’t have personal knowledge, I take it, that she did, but that she told you she did—you weren’t over there when she met with him?”

  “No, she told me she did. And also Ron Poole, an FBI agent working along with Mark, he said that Susan was coming there and seeing Mark and going out with him on dates, and he said that he knew—she would set and tell him about, you know, that she was pregnant by him. They talked about it. But I never did see them together. I’ve never seen the guy. I’ve talked to him on the phone. He called my house several times wanting to know if she was there, and sometimes I would tell him she wasn’t when she was because I didn’t want her fooling with him.”

  “But you didn’t have any personal knowledge of whether they met or didn’t, or what their relationship was, other than what she advised you of?”

  “No. She would get ready and come over here [to Pikeville] and see him, and she told me they would go out on dates.”

  Before dismissing Shelby, Runyon wanted her firmly on the record about whether she understood and agreed with the plea arrangement. “Incidentally,” he said, “I doubt you are aware that all the officers that have testified, even Richard Ray, have testified that we had no choice, that if we had not done this, he would be walking free today without any punishment—without any. Do you understand it and accept it as being the thing that had to be done, but not the desirable thing from the standpoint of our wishes or our likes?”

  “Yes,” Shelby replied.

  “That until he confessed and revealed where the body was, that we had no evidence on which to even base the charge—have you been advised about that?”

  “Well, he took a polygraph test and he failed that, you know, but they say you can’t use that in court . . .”

  “That’s right . . . Well, if you felt that without this plea agreement, we have no charge at all, would you agree that this is the best we could do?”

  “Yes.”

  After working well into the night and early the next morning, the day Mark was coming to court, the grand jury handed up the indictment in the form Runyon had wanted. It read:

  Detective Ray’s initial investigation into Susan Smith’s disappearance produced no hard evidence regarding her whereabouts. . . . Because a body had not been located, the case remained an investigation into a missing person. . . . As possible motives and suspects were eliminated by the officers, the scope of the investigation focused primarily on one person, Mark Steven Putnam. . . . The Kentucky State Police, the
Federal Bureau of Investigation, the United States Attorney and the Commonwealth’s Attorney . . . discussed that although Mark Steven Putnam had a motive and the opportunity to kill Susan Smith, and although circumstantial evidence indicated he had, no eyewitnesses were available, and no physical evidence existed sufficient to support a criminal charge against him. Most importantly, no homicide charge could be supported because no body had been found and no other evidence of the killing existed. It was decided and agreed upon by all concerned that further investigation would be unlikely to reveal the location of the body or other evidence conclusively linking Putnam to the killing. A decision was made to enter into negotiations with Putnam through his attorney.

  . . . In return for the complete disclosure of the location of the body of Susan Smith and the manner in which she died, the Commonwealth agreed to recommend a 16-year term of imprisonment if Putnam would agree to plead guilty to first-degree manslaughter.

  . . . The Grand Jury during this investigation had made available to it various legal principles and the constraints that they placed upon this investigation, and under which the law enforcement officers and the prosecutors were compelled to operate. . . . On the case at hand, all of the information necessary to establish the legal requirement [for the charge] was furnished by the defendant only after he had been assured as to the recommendations of the Commonwealth. The Grand Jury was further informed that these plea negotiations were entered into under the limitations and constraints imposed by Rule 11 of the Criminal Rules of Procedure, which provide that any statements, admissions or incriminating facts that are disclosed during the negotiations cannot be used against the accused unless a plea agreement is ultimately reached and finally consummated.

  It is our opinion that the plea agreement should be ratified and accepted by the court.