Lester, sitting beside Epperson, let Mitchell conduct almost all of the cross-examination of the doctor. Short of being abusive, but not far short of it, Mitchell did not hold back. It was true, the doctor admitted, that he had had some difficulty in picking out Hodge’s photo from the display the police had shown him several days after the murder. This was because he had experienced blurred vision after the choking he had received, which had caused his eyes to hemorrhage. He had also suffered a heart attack during the assault. But he had no doubt that the blond-haired man sitting there today was one of the two who had first entered the house and tied him up. The other, darker man was not in the courtroom, but he could identify him, also, with absolute certainty. A third, big man had also been in the house, but he had not seen that one’s face.
Mitchell attempted to undermine Dr. Acker on the basis of the amount of money kept in his house. In emphasizing this, Mitchell tried to provide what a successful defense ought to have, an alternative version of events. Since there was no doubt that the defendants had been in the house, might there not be a motive other than robbery for their visit? Collusion, perhaps? This strategy was, while not directly accusing him of crookedness, to imply something shady about the doctor and to insinuate that whoever had come to rob him that night did so because of unspecified illegitimate connections between the thieves and their victim. If this approach would not exonerate the defendants, it yet might sway the jury toward leniency. Why, Mitchell asked, had the doctor told the police that half a million dollars or less had been stolen, when the figure turned out to be closer to two million?
He had been surprised by that huge figure, Dr. Acker said. He did not count his money; he just earned it. Until her death from cancer, his wife, Dee, had managed the household expenses. He gave her the money from his practice, she paid the bills, and they saved the rest.
“You’re saying you saved five hundred thousand dollars from grocery money, is that what you’re saying?”
“I’m saying I probably saved a great deal more,” Dr. Acker replied steadily. It was true that, many years ago, he had owned an interest in a bank, but the bank was many miles away from his home and practice. For thirty or forty years, he and his wife had simply stored their money in an old trunk. Three or four months before the robbery, he had bought a safe. He used banks as seldom as possible. He did have a business account, for processing checks.
A few years ago, noticing that some of the money was getting moldy and mildewed, he had taken it to the Bank of Whitesburg to exchange it for new bills in clean wrappers. Everyone knew him. There had been no questions. The tellers had simply given him new bills for old. He had not counted it; he had no idea how much had been involved in this transaction. He trusted people.
“We were never extravagant, and we saved considerable money. But I don’t know how much.”
Mitchell tried to imply that the intruders had actually had permission to enter and to linger; to insinuate that some or all of the money had been owed to these men, who had come to collect it, by force if necessary.
Why then had Hodge and Bartley bothered to pose as FBI agents, if the doctor knew their true purpose? One would assume the jury would be aware of this contradiction, but James Wiley Craft decided to underline it. On redirect examination, over Mitchell’s strenuous objections and demands for a mistrial, Craft asked whether any of the money had been owed to Bartley, Hodge, or Epperson.
“Not one red penny!” Dr. Acker snapped.
“And did these intruders have any permission to enter or remain in your house that night?”
More defense objections.
“Did you hear the question, doctor?” Craft asked.
“Yes, I heard it,” Dr. Acker replied vehemently. “And they never had any permission at any time—any one of them—to remain in my home, no more than they had permission to kill Tammy, throttle me and take my money!”
Mitchell objected and asked for a mistrial.
“Same objection. Admonish the witness to answer the question only,” Lester said.
“The jury will not consider that,” Judge Hogg agreed.
But Dr. Acker’s outburst remained on the jurors’ minds and in the consciousness of everyone.
When it was his turn to cross-examine, Lester took a different tack. He hobbled over to the stand, less an adversary than a supplicant.
“Dr. Acker,” he began, “my name is Lester Burns, and I’m hard of hearing, and I’ll move over.”
“I beg your pardon?” Dr. Acker asked.
“I’m hard of hearing and I’ll move over close beside you, if you don’t mind, sir.”
“That would be perfectly all right.”
Had the jury not been sitting so near and able to view at such close range what followed, the subsequent colloquy would have been lost on them. Lester, balancing on his crutches, arching forward and downward toward the witness box as if gripping a trapeze, spoke into the doctor’s ear.
“I have very few questions to ask you, doctor,” Lester said in a voice that trailed off, then ascended like the smoke from a funeral pyre. “If you do not understand them, please ask me to repeat them. Because I’m not trying to pull any tricks.”
Lester paused. Dr. Acker nodded as if to say, “I trust you.”
“I understood from your testimony that the first time something was put around your neck that it did not render you unconscious or insensible?” No, he had not lost consciousness then, Dr. Acker said; he had heard everything, as he had already told the jury.
“It did not affect your mental faculties at all, did it?”
“No.”
“And you told the jury what you heard?”
“That’s right.”
“Dr. Acker, thank you, sir, but that’s all I have at this time.”
The dialogue had lasted less than a minute—Lester spent longer making his way to and from the witness box. There was more point to it than was just then apparent, Lester knew, but for the moment the impression was that he was primarily conveying his sympathies.
Lester had concluded that attacking Dr. Acker was counterproductive. The wiser course was the reverse, to concede the doctor’s credibility, to avoid appearing no better than the men who had already turned an old man’s final years to tragedy, and to make use of what the doctor had already said to undermine the credibility of Donald Bartley, who would repeat conversations Dr. Acker never heard.
To defend Epperson while being himself involved in aspects of the gang’s crimes was proving to be extraordinarily difficult for Lester. He was constantly aware of the web of deceit in which he had entangled himself that threatened his own freedom and career. After so much scheming and subterfuge, he longed to tell the truth without compromising his client and himself. He could not see how.
Alone in his room after picking at dinner in the Skyline Room and watching the dying of the day through tinted windows, he contemplated the mess he was in. That afternoon in court a Fleming-Neon policeman had described what it was like being the first person on the scene, encountering Dr. Acker bloody-faced in the doorway, nearly stumbling over Tammy’s body as it lay on a heap of her blood-soaked clothes, seeing the butcher knife and her wrecked room. During a break Lester had approached James Wiley Craft in the narrow corridor outside the Commonwealth Attorney’s office.
“What a tragedy,” Lester had mumbled. “James Wiley, I been thinking. What if I gave back my fee?”
Craft arched one dark eyebrow above his glasses, touched his thick mustache, and disappeared into his office.
Had Craft heard or understood him? Even if he had, he doesn’t take me seriously! Lester thought in frustration. There must be some way I can give that money back! He could think of none.
The only course was to defend his client and deal with personal difficulties afterwards. Other than making every conceivable motion and objection in an attempt to catch Judge Hogg in reversible error, the most promising strategy appeared to be to go after Donald Bartley when he took the stand as
the government’s star witness. Tactics aside, Lester believed that Bartley was lying. It was always a plus as a lawyer when you thought the government was trying to pull something and you could believe in what you were saying, no matter the guilt or innocence of your client. Lester’s reasoning was the same as Frank Fleming’s: Bartley, not Hodge, was the type to kill a woman in that way and was fingering Hodge only to save himself.
Lester had not had the stomach to try to impugn Dr. Acker to begin with. A small-town doctor was nearly invulnerable to criticism, and Lester avoided blaming victims for crimes. Many people who had been through the Great Depression distrusted banks; there were mattresses stuffed with cash all over Kentucky, although none perhaps with two million dollars. Although he had not seen the actual returns, information had come to Lester that Dr. Acker paid taxes each year on a reported six-figure income and was not in trouble with the IRS. If he was guilty of imprudence, perhaps even of arrogance, in assuming that an alarm system was enough to protect his family and his cash, his popularity in Fleming-Neon could easily have induced a false sense of security, even after his clinic had been burglarized. He would suffer during whatever years he had left for his negligence; no jury was going to blame him beyond that.
Born in Boston in 1908, Roscoe Jacob Acker received his medical degree from the College of Physicians and Surgeons there in 1943 and began practicing in the coal fields after the war at a time when the United Mine Workers offered young physicians as much as thirty thousand dollars a year as an inducement to come to Appalachia. (A doctor starting out then could normally expect to make less than half that amount.) Beginning in Charleston, West Virginia, by the mid-fifties Dr. Acker had established his private practice and a small hospital in Fleming-Neon. As the region declined economically, people recalled, Dr. Acker often accepted chickens and eggs for fees, until the establishment of the Medicare and Medicaid programs in 1964.
He was always at or near the top of all doctors in the state in amounts claimed from Medicaid, usually well over a hundred thousand dollars annually. This was not surprising, given the proportion of his patients on relief. He had been suspended from the program in 1969–70 and was indicted, accused of billing for doctor–patient visits that had not taken place; but a judge dismissed the charges, and Dr. Acker gained immediate reinstatement. That had been a merely unfortunate episode, most people believed, caused by a mean-spirited bureaucracy. Lester saw no point in bringing it up and doubted that it would be admissible anyway, surely not with Judge Hogg on the bench.
If some people, and there were a few, thought that the idea that Tawny and Tammy had owned Porsches was offensive when many of the people of Fleming-Neon were lucky to have shoes, most of his patients begrudged him and his family nothing. They saw him as a distinguished Eastern gentleman, whose favorite recreation was grouse hunting, who graced their community with his nobility, weighing so lightly what he gave in long hours of personal attention. Lester speculated that Dr. Acker had increased his wealth dramatically through the coal business in the seventies, as the incident involving Roe Adkins and the bulldozer suggested. But to take the attitude that he did not deserve his riches, let alone that he deserved to have had his daughter murdered, was to adopt the criminal mentality that assumed that wealth belonged to whoever could grab it, by whatever means.
To break Bartley down, that was the only way to save Epperson and Hodge from the chair, perhaps to cause a mistrial. If the prosecution based its case on a lie, Lester believed, it deserved to fail. He intended to hound Bartley into revealing himself as a murdering, sniveling rat.
27
IF FRANK FLEMING, DR. GEORGE BUCKLEY, Jesse Spicer, Roe Adkins, Sonny Spencer, Robert Loturco, Tom and Travis McDowell, a clerk from a Whitesburg drugstore, the laboratory technician who had lifted Donald Bartley’s print—one after another they took the stand to tell the story Craft and Caudill constructed scene by scene. Bit by bit the physical evidence mounted up, money, weapons, receipts, drug paraphernalia, jewelry. When Dr. Buckley used the butcher knife, still caked with Tammy’s blood, as a pointer, Lester objected and the doctor apologized. But there was the knife.
Dale Mitchell tried to get Dr. Buckley, who in his testimony emphasized that it must have taken tremendous force to penetrate Tammy’s entire body, to admit that speed was also a key factor, that weight and force were only factors in speed, and that an adrenaline (cocaine) rush could increase strength. Buckley conceded these arguments to an extent but was insistent that a large man rather than a small one was likely to have done the stabbing. The issue of the knife’s actually penetrating the stone floor—an added consideration so important to Danny Webb’s belief that Benny must have done it—could not be considered at the trial, since the knife had been removed before it could be photographed sticking between those stones. Probably it could not have been photographed in its original position, since Tammy had been on top of the point. Webb felt that most reasonable people, if informed of this extra evidence, would concede that a true muscle man must have done it.
Travis McDowell added further drama when, obviously nervous, he said that an unidentified voice on the phone had threatened him if he testified. Without revealing his role in leading the FBI to Epperson, Travis described a druggy party at the condominium with the defendants and denied that he was the actual buyer of the ‘85 Corvette: “Why would I need a Corvette when I’m already driving a Porsche?” Bill Fluherty told of the arrests, emphasizing how Hodge had hesitated before leaving the van and had denied owning the butterfly knife. Chuck Boling outlined the SWAT team’s role and Epperson’s arrest.
Fluherty and Boling were housed at a country club in the mountains near Jenkins as they waited to testify. They played a few rounds of golf at the otherwise deserted course and wondered if the club actually had any members, it was such an incongruous emblem of leisure amid poverty. The mountains thick with trees, bright green with the birth of summer; the rivers and lakes; the grungy towns and trailer homes surrounded by trash; the long, bony faces of unemployed mountaineers; the sunken, dark, blank eyes of so many of the women; here and there the attractive house, children bouncing with energy—it was surreal. To drive to Whitesburg, such a contrast with its cleanliness and bustle, its wooden signs saying BIRD SANCTUARY and DUCK-XING, they had to pass through a black tunnel carved out of a mine shaft.
In the courtroom Boling kept thinking that he was a day’s drive from Florida but a century away. The characters, the whole quaint scene made him recall the Scopes Monkey Trial testing Tennessee’s anti-evolution laws in 1925—but, far from scorning the anachronisms, Boling liked them. The people, especially the judge, were so, well, human. They might seem rough, but they held up well against the oily breed Boling knew from Florida. He had expected a lynch-mob atmosphere; instead he found the people matter-of-fact, impressed perhaps by Lester Burns’s entrances and exits and by the cars and money involved in the case but otherwise calm. When James Wiley Craft introduced into evidence the heaps of cash agents had found in the condo, in Hodge’s wallet, and in Epperson’s car—some hundred and sixty thousand—Judge Hogg instructed his bailiff to dump the bills in a basket to pass around to the jurors. “Let them take a good look,” the judge said, grinning. “They’ll never get that close to that much money again in their lives.” As for Burns, Boling thought that the attorney could have made another fortune in Hollywood. Boling was not aware that several people in that courtroom, including the Assistant Commonwealth’s Attorney, had played roles in Coal Miner’s Daughter. Mike Caudill had met the challenge of acting tanked-up on moonshine inside Dr. Acker’s clinic.
Relations between government and defense attorneys, fairly civil up to that point, turned sour during the third and final week of the trial. On Monday, June 16, a surprise witness appeared for the prosecution. In a tense in-chambers conference, Lester and Mitchell complained that although they had known the gist of what this witness would testify, having been given a copy of his handwritten statement on May 28, they had not known h
is name until a few days ago. Mike Caudill said that it had been necessary to conceal the witness’s name to protect him until he was brought from Florida to Kentucky. How could they have been expected to investigate this witness, the defense argued, without knowing his identity? Judge Hogg ruled for the prosecution. Lawrence Anthony Smith took the stand.
Smith testified that he had been an inmate at the Orange County jail in Orlando when Benny Hodge was brought there and placed in an adjacent cell. Hodge, Smith claimed, had almost immediately begun talking about the crimes for which he had been arrested. Among other details, Hodge had bragged about stabbing Tammy Acker “several times"—possibly thirteen. Smith also said that Hodge had described piling the money from the robbery on top of his bed at the condominium and making love on it with his girlfriend.
Lester believed Smith to be a liar, a typical inmate trying to get his own sentence reduced by disclosing, in this instance fabricating, information supposedly learned from another inmate. Whether authorities had put Smith up to his testimony, or whether he had made up his story from reading the newspapers or listening to another inmate—possibly Bartley?—Lester could not figure out. But, to begin with, the idea that a man such as Benny Hodge, who had survived nine years at Brushy Mountain, knew well the consequences of blabbing to other inmates, and was by nature so closemouthed that he would hardly talk to his own lawyer—that such a man would begin shooting off his mouth the moment he was arrested was preposterous.
Dark and Bloody Ground Page 32