Lester reminded the jury that there was “only one perfect man” in history and that even Lester Burns could make mistakes. He had misread Lawrence Anthony Smith’s rap sheet because his eyes weren’t very good. But he was glad he would not be making a more serious mistake. No one would be able to blame him for pulling the switch on the wrong man in the electric chair.
“Ladies and gentlemen,” Lester concluded, “I would submit to you—and then I’ll sit down—I’m not going to be able to find my seat—I just broke my glasses right in the trifocal—please find Roger Epperson not guilty of aiding and abetting in the murder of Tammy Acker. Please find him not guilty of the attempted murder of Dr. Acker. On the other counts, do justice as you see fit. Regardless of what the verdict is, I’m your friend and I want to thank you for the job you’ve done.”
In his final statement, James Wiley Craft reminded the jury that they were not trying Smith or Bartley. He emphasized that Tammy Acker’s body was lying on a heap of clothes, arguing that this proved that she had been killed after Bartley had ransacked the room, while Bartley was in the kitchen choking the doctor. Craft cited Shakespeare’s line about all the world’s being a stage to portray the story of this case as a tragedy written, staged, costumed, and directed by the Straw Boss (Bartley had cited Sherry’s epithet), Epperson. Benny Hodge, the strongman, had played the part of executioner. Now it was time for the jury to play their parts as the audience and to judge this play and show they understood its meaning. They should know that the tragic hero was Dr. Acker, who like King Lear had loved his daughters and had been made to suffer cruelly because of that love. In his final exhortation, Craft introduced another literary reference:
“I thought of a poem by Longfellow that I will quote to you. And I thought that if I could be permitted the insertion of just an extra phrase that it would be appropriate. And it is as follows: ‘Wisely improve the Present,’ for as I close, ‘it is thine. Go forth to meet the shadowy Future, without Fear, and with a manly heart.’ Justice must be done! The law must be enforced! Thank you.”
28
AS IN MOST STATES, capital cases in Kentucky are tried in two phases, the first determining innocence or guilt, the second, if the jury reaches a guilty verdict, determining the penalty, which is set by the judge on the recommendation of the jury. At 11:30 A.M. on Friday, June 20, after receiving instructions from the judge, the jury retired to deliberate the outcome of the first phase, and Judge Hogg cleared the courtroom.
Down the hallway in the jail, Sherry took Ben Gish in to see Benny Hodge, who agreed to an interview because Sherry had told him that Gish was a good fellow and a sympathetic one. After taking a photograph of Sherry and Benny sitting together against a wall, arms and hands entwined, gazing into each other’s eyes and managing to smile, Gish asked Benny how he felt at that moment, with his fate in the jury’s hands. Was the death penalty on his mind?
“I think about it every day, twenty-four hours a day,” Benny said. “When you wake up in the morning, you don’t know if you’re going to fall to the sane side or the insane side.” He thought it was unfair that he had been pinpointed as the one who had done the stabbing. “The fact that I enjoy lifting weights doesn’t make me guilty. I’ve never used my strength to hurt anybody.”
He spoke about meeting Sherry when she was a prison guard and how she had changed his life. Things had been going fine until he had allowed himself to get involved in plans to commit the Acker robbery.
“I was minding my own business until someone came and gave me a sob story.” If he had it to do all over again, he would never have come to Kentucky. “I’d have made Booger chain me to the bed so I couldn’t’ve left that house.”
He was anxious to tell what had really happened at the Acker house, but his attorney had advised him not to. All he could say was that Bartley was lying about the stabbing.
Ben Gish’s impression, which he did not include as part of the story he wrote but confided to his parents and friends, was that Benny Hodge was not the brute he had been made out to be, and that he and Sherry genuinely cared for one another. It was difficult for Gish to reconcile the love he thought he saw between this pair with the image of someone who could murder a girl so viciously. As for Sherry, whatever she was, she was thoroughly, even obsessively devoted to this man, for whom she seemed willing to sacrifice her entire life.
Sherry did not tell Gish that she had already purchased two cyanide pills, which she was carrying concealed in her purse.
The jury, ten men and two women, deliberated for only an hour and forty minutes. At 1:30 P.M. Judge Hogg reconvened the court and read out the verdicts. The jury found Roger Epperson and Benny Hodge guilty of murder and guilty on each of the three other counts, to which they sentenced the defendants to the maximum of twenty years on each. It remained for them to retire again to decide whether aggravating circumstances merited that death be imposed as the penalty for the murder convictions.
The defense attorneys were permitted to make pleas to the jury to save Epperson’s and Hodge’s lives. Often during this procedure before sentencing in a capital case, witnesses testify to mitigating aspects of character and personal history that might sway the jury’s sympathies. But Sherry had already taken the Fifth and could not be called; no other family or friends of Benny’s were present. Carol had also taken the Fifth; she might not have made a persuasive character witness anyway. Epperson’s family was in the courtroom, but none of them came forward. It remained for Judge Hogg to say that these men did have wives who loved them, and children, and that they had held jobs. Only Mitchell’s and Lester’s eloquence could now keep the defendants from execution.
Lester reminded the jury that many Biblical figures—Moses, King David, St. Paul—had done wicked things and had recovered to do great ones. Hadn’t Moses been eighty years old when he received the Ten Commandments? Lester also provided a detailed account of the actual process of electrocution, with reference to wattage and the smell of burned human flesh.
Carried away perhaps by his own rhetoric, Lester at one point, in a hissed aside not caught by the court recorder but heard by the jury, accused James Wiley Craft of being willing to do anything to win this case because of his ambition to be elected state representative. As soon as Lester finished his speech and the jury retired once more to deliberate, Craft exploded at Lester, calling his remark “the cheapest shot I’ve ever endured in all my years as a lawyer.” Lester, with reporters gathered round, apologized, saying Craft had presented his side brilliantly and calling him his friend.
It was nearly seven o’clock that Friday evening as the jury began their final, morbid task. They had the options of choosing any of four possible penalties: twenty or more years in prison, to add to the sixty already imposed; life in prison; life without possibility of parole for twenty-five years; or death. This time, they were gone for only forty minutes; it took nearly that long for the foreman to fill out the sentencing forms.
They chose death.
Judge Hogg read the verdict, polled the jurors individually, announced that defense counsel had waived any presentencing hearing, said that there was reason to believe that both defendants would kill again, and asked Epperson and Hodge with their attorneys to approach the bench. Neither defendant wished to make a statement. The judge pronounced the sentence of death.
“I believe we’re finished,” Judge Hogg said.
Frank Fleming had been standing directly behind the defense table. Now, as the convicted men were being handcuffed, Fleming walked up to Epperson and whispered into his ear:
“Roger, you still say Donnie stabbed Tammy?”
“Yeah,” Epperson said. “Ask Benny. Benny, tell him who did it.”
“Donnie did the stabbing,” Benny said. No one but Fleming heard him.
Sherry, sitting in a back row and crying as she watched Benny being led away, did not rush up with the cyanide. In the hours between the verdict and the sentencing, she and Benny had scrapped their plan for suicide. T
here was the chance of a successful appeal, wasn’t there? If that failed, they could kill themselves.
On condition of anonymity, jurors spoke to the press. There had been no disagreement among them about any significant aspect of the case. “We all felt that Hodge did the killing,” one said. His strength had been the persuasive factor. They had believed Bartley as well as Lawrence Anthony Smith, because Smith had mentioned things he could only have learned from Hodge, the jury was convinced. “And according to the way they wrote our instructions up, Epperson is as guilty as Hodge.”
Outside the courthouse, Lester spoke to Tawny and Dr. Acker. They agreed that this had been a sad business for everyone. Dr. Acker said that he had no hard feelings against Lester, who had only been doing his job.
Sherry, standing around outside with no one to talk to, then wandering back inside the courthouse, upstairs to the deserted courtroom, did not know what to do with herself. She approached the jailer, who told her that she could not see Benny now. Police were preparing to take the prisoners to the state penitentiary at Eddyville. They would be leaving in an hour or so, out the side exit. She might be able to see Benny then.
She wandered back toward the courtroom, past Judge Hogg’s chambers, and found herself outside the Commonwealth Attorney’s office. Through the glass in the door she could see a light. She stepped into the small, empty waiting room and sat down on a tattered couch. She began singing a song. It was Billy Joe Royal’s “I’ll Pin a Note on Your Pillow,” about how a lover will let it be known that he is gone. She sang the first few lines and kept on mumbling and humming the rest. The door to the inner office opened and James Wiley Craft came out. His shirtsleeves were rolled up; he was holding some papers.
“Hello, Sherry,” he said. “I know that song.”
“Oh, yeah?” she said.
“It’s about being lonely, isn’t it?”
“I reckon.”
He stood looking at her. He wondered if what he felt for her was wrong. He had seen her around the courthouse, always alone, so devoted to this man. There was something about her. She was that song. It seemed a waste. She was still humming.
“Sherry,” Craft heard himself saying, “you ought to get on with your life.” He cleared his throat. She looked up at him through her glasses. He had the impulse to say more, but did not.
She got up and left.
Outside again, around to the side of the courthouse, she sat down on the curb and smoked cigarettes as the darkness became complete. It was after ten by the time a Department of Corrections van pulled up.
Soon there he was, her man, handcuffed and shackled to Roger, being led down the steps toward the van. No one tried to stop her as she rushed up to him and threw her arms around his neck and covered his face with kisses and tears.
“Benny, I love you. Benny.”
They loaded them into the van. It drove slowly off. Sherry balanced on the curb, waving.
Suddenly she remembered that her car was parked around the corner, and she ran. She jumped in, found her keys, and gunned it, tearing off in the direction she knew they were going. She caught up to the van at the intersection where Highway 15 goes toward Hazard.
They seemed to be the only ones on the road. Did they know she was following? She was crying so, the taillights ahead were a red blur. Benny was in that van. If this was the closest she could get to him, she would follow all the way. She would see him taken out and into the prison. It would make it better for him if she did that.
Half an hour passed on the good, two-lane road. Through part of Hazard, closed stores, a light or two in houses. She followed them down the on-ramp and onto the Daniel Boone Parkway heading west. It was so easy not to miss the turn when you were following someone. She checked her gas gauge: half-full. She would have to stop for gas somewhere, but so would they. Eddyville was way to the west, almost to Missouri. If she had to stop first, she could always catch up to them. Him. She kept on, beginning to sing, crying.
Somewhere before Manchester the van slowed and veered onto the shoulder and stopped. She pulled up twenty or thirty yards behind and switched off her lights. The driver stepped out. He flicked on a flashlight and shone it in her direction.
She remembered that she had left her clothes and her music tapes back at her motel. She gave up and turned around.
* * *
Back with her parents in Harriman, Sherry talked to Ben Gish over the telephone and told him that Benny and Roger had been “railroaded.”
“I don’t agree with anybody being killed, but at least let’s try to be fair about it,” Sherry said. “I hope that everybody that had a helping hand in taking these two men’s lives has nightmares every night.” She continued through tears: “Taking two more lives is not going to bring back the one that was took.”
She thought that the jury’s spending so little time deliberating meant that they had already made up their minds and had not listened to the evidence. The way things had turned out, she could only hope that Judge Hogg would sentence Donnie Bartley to die, too. “It would tickle me to death. If it’s good enough for two, it’s good enough for all three of them. Bartley put those two boys in the electric chair. He took Benny’s life and Roger’s. Every statement he made contradicted every other witness. If that ain’t railroading, I don’t know what is. He killed that girl and lied to save himself.”
There were rumors, Gish told her, that Bartley had linked all three of them to other robberies and murders.
“Well, if that’s true,” Sherry said, “then why did this one bother him so bad if he wasn’t the one who did it? I wonder if he can sleep good now, knowing he’s killed two more people. If the other one bothered him so bad, then why in the hell didn’t he give the doctor back his money? I’m dying, too. When you take someone away from the person they love, that is death. If I could take Benny’s place in the chair, I’d do it. I love the man that much, and he loves me the same way. I won’t quit fighting till I got no fight left.”
She had no idea what had happened to all the missing money: “All I know is, I don’t have it. And unlike Bartley, I don’t lie. Even if I had it, that money’s nothing compared to Benny’s life. I’d give it to them in a New York minute. I don’t have nothing against the doctor and that other daughter of his. If I was them, I’d probably have feelings, too.”
Grateful for her candor—neither she nor Benny had spoken to any other reporter—Gish sent her a year’s subscription to the Mountain Eagle. He wasn’t sure quite why, maybe it was her steadfast devotion to Benny, maybe it was the way she stood alone, but he believed her. He hadn’t found anyone else who did. Aside from the defense attorneys, everyone else who had been at the trial seemed certain that Benny Hodge was the killer.
Sherry began a weekly commute to Eddyville, a distance of nearly eight hundred miles round-trip. Saturday was visiting day; the Eddyville regulations for death row inmates were more lenient than most. As did Roger and Carol, Sherry and Benny met in a picnic area, closely watched, allowed one kiss. At the end of July, the wives rented apartments in the same building in Eddyville, figuring they would save motel money by doing so; Sherry paid her advance rent with four one-hundred-dollar bills. Carol, who wrecked two cars in two weeks, spent more time up there than Sherry did.
In Harriman, Sherry had to fend off questions from her parents.
“When are you going to give up on Benny?” E. L. asked her over dinner one night. “You’re wasting your life. He’ll never get out.”
“I know he won’t,” Sherry said. “I love him. Do you dump someone you love just because he’s in jail and is going to die? Would you run off from someone who’s sick? What kind of a woman does that? Benny made some mistakes. I have, too.”
“What if he got out? What if Benny escaped? Would you go with that Biggin?”
“Of course I would,” Sherry said, knowing how much this pained E. L. “I’d follow Benny to the ends of the earth.”
“Then you haven’t learned nothing,” E. L. si
ghed.
Sherry was sure that her days of being able to visit Benny every week were numbered. That was the reason, apart from devotion, that she went to see him as often as she could; and that was why she was spending more time with Renee than she had in more than a year. Unless Benny could escape and they could disappear together—it seemed impossible—she knew that it was only a matter of time before she was arrested.
She tried to prepare E. L. and Louise for this event; she could not bring herself to tell Renee. The day would come, she told her parents, when the Feds would take her away, she did not know for how long. “I’ve done some things,” she said, “don’t ask me no questions, and I’ll have to pay for them.” She wanted her parents to know that she did still understand the difference between right and wrong and that she was prepared to take responsibility for her actions. She hoped her parents could still love her. She was grateful that they had let her move back in with them. She was abiding by their condition, that she not bring any of her trashy friends around.
Meanwhile, waiting for the inevitable, she piled up the miles between Harriman and Eddyville, rushing back after seeing Benny to receive the collect call he always made to her on Sundays. He also managed to call during the week—Sherry’s portion of the family phone bill for July was nearly five hundred dollars—but Sundays were special. She went to church with her mom and dad and, after the big Sunday dinner, waited for the phone to ring.
The phone calls and the visits—and the faint hope that Benny might escape—were all she felt she had to live for. Now that the reality of his sentence had sunk in, she could think of nothing else, and it seemed about to overwhelm her. She had no appetite. Every song, every place she drove around Harriman reminded her of him. She developed a monstrous headache that never seemed to go away; she went to bed with it and woke up in the middle of the night with her head pounding. It was then that the remorse got to her.
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