He had asked Mrs. Hodge whether the money was stolen; there was “no problem” with it, Mitchell claimed she had said. As for accepting cashier’s checks for the rest of his fee, he had done this on advice of counsel so as to show the source of the money, rather than taking more cash, which would have looked suspicious.
He had believed then that he was innocent, and he believed it now. Unlike Lester Burns, he had refused to plea bargain, because he was confident of his own blamelessness. Not only was it wrong to accept stolen money, it was against his “upbringing.”
As far as Rod Kincaid knew, Mitchell had never been offered any plea bargain. What would Mitchell have had to offer in the way of information or testimony, now that everyone else except Gene Foust was either convicted or no longer under investigation? An investigation of the third lawyer, O. Curtis Davis, had gone nowhere: it was Davis’s word against the Bartleys’. Two out of three was pretty good, Kincaid thought. Waiting for the verdict, he could not accept that the jury would swallow Mitchell’s story. Yet you never knew.
The jury believed enough of it to acquit Dale Mitchell on each of the thirteen counts against him. “Reasonable doubt,” the foreman called it.
Because he was officially innocent of having accepted stolen money, Mitchell was under no legal obligation to make restitution to Dr. Acker. Nor did he.
At the request of surviving members of the Morris family, who had attended the Acker trial and become close with the doctor and Tawny, James Wiley Craft agreed to prosecute Epperson and Hodge for the Gray Hawk murders. A second set of convictions would be a safeguard against the remote possibility that the Acker verdicts would be overturned on appeal. The compelling reason to prosecute, however, was to give the Morrises justice.
This would be the last of the crimes for which the gang would be tried: there was no sense in pursuing outstanding Georgia and Kentucky robbery charges; and as for the late Moon Mullins, his occupation suggested that he had already received the justice he deserved.
Other than that Donnie Bartley would act again as the key government witness, the Morris and Acker cases differed sharply from one another. In Gray Hawk no fingerprint had been found at the scene; neither had any stolen money, jewelry, or firearms been recovered; nor would Bartley be able to say that he had actually been inside the house as the crimes were taking place. Not even the murder weapon or weapons were in evidence. If Craft were to win the Gray Hawk case, he would have to do so relying entirely on circumstantial evidence.
As it turned out, there would also be a very different sort of man on the bench. Jackson County Circuit Court Judge Clay Bishop was eighty-four years old by the time the case went to trial in November 1987. One of Lester Burns’s ubiquitous cousins, Judge Bishop was a sweet old fellow off the bench, but on it he was a terror, notorious for his intolerance toward defense attorneys. Becoming more irascible with each passing year, Judge Bishop continued to resist suggestions and demands for his retirement, which was overdue by at least a decade. His rulings, unlike Judge Hogg’s, were frequently overturned and criticized by higher courts.
If the defense had requested it, Judge Bishop would likely have denied it, but this time James Wiley Craft agreed that a change of venue was advisable. A random telephone poll showed that virtually every citizen in Jackson County was already convinced of Epperson’s and Hodge’s guilt; most had avidly followed the Acker trial. As the county had only twelve thousand people living in it, an accurate sampling of opinion was not difficult to compile. In addition to the impossibility of finding an unbiased jury, the late Bessie Morris’s brother was the County Sheriff, and one of her sons, Bobby, had become the circuit court clerk.
The trial was moved to London. Twice the size of Jackson in population, Laurel County was also more diversified socially and economically. It was contiguous with Jackson, however, and its newspapers and television stations had carried extensive coverage of the Acker trial and had already reported that in the Morris trial, the prosecution would argue that the murders had been staged within the county, at Laurel River Lake. Judge Bishop would hear none of this, refusing to permit attorneys to question prospective jurors about the effect of pretrial publicity on their predisposition toward the defendants. As far as the judge was concerned, the trial had already been moved once; that should be enough for everyone, period.
The judge was intensely exasperated by Benny Hodge’s attorney, Oleh Tustaniwsky of the state’s Department of Public Advocacy, pronouncing or mispronouncing the lawyer’s name as if it were some repulsive foreign food. The very sight of Tustaniwsky, a slight, bespectacled, scholarly fellow, seemed enough to turn the judge’s jowls a deeper shade of red and send his gastric juices into revolt. He frequently admonished him with less than judicial restraint: “Mr. Tustenoughsky, why do you continuously want to do things you know are improper?” and “Don’t get yourself in a mess and then expect the Court to pull you out. There are too many smart alecks, that’s the trouble with this world,” and “You’d better not get out of line again.”
Pleased as he was to have a judge sympathetic to his side, James Wiley Craft was alarmed as much as he was amused by the judge’s attacks on Tustaniwsky, who was an entirely competent advocate and was doing nothing to provoke them and whose principal offense seemed to be that his ancestors had clearly not ridden with Daniel Boone. And Craft was embarrassed when Judge Bishop, unable for once to make up his mind about how he should rule on a defense motion, turned to the prosecutor and asked, “What’s our position on this?”
Only one defense move, or the lack of one, puzzled Craft. When at last it was time for both sides to use their preemptive challenges to dismiss jurors likely to be prejudiced, Tustaniwsky and his colleagues left a KSP trooper on the panel. Were they doing this in order to lay grounds for an appeal? To obviate that possibility, Craft would have used one of the prosecution’s challenges to unseat the trooper, had they not already been exhausted. Craft could not recall ever having had a state policeman on a jury before.
The trial lasted only five days, it took that little time to present the relatively sparse evidence there was against Benny and Roger this time. Of the physical exhibits—bullets, pillows with bulletholes in them, various bloodstained household items including Mrs. Morris’s Bible with its four-leaf clovers—the most emotionally wrenching was the videotape taken by police of the murder scene. Even this, however, did not equal in power Jerry Morris’s account of his discovery of his parents’ bodies that morning after Father’s Day in 1985. He broke down several times. The jurors kept their composure, but many spectators wept.
The other, most important witnesses included Bobby Morris, who testified that he had encountered Roger Epperson and Benny Hodge at a car auction near London about three weeks prior to the murders; a ranger from the Holly Bay campground who produced her logbook for that June showing that Carol Malone had registered there during the crucial period and had departed immediately after the killings; Harold Clontz, who had to be transported from prison to testify, who described sharing his moonshine with the defendants and admitted having loaned Roger a van on the evening of June 16; two young men who told of having nearly been hit by a similar van that had pulled out of the Morrises’ driveway around eleven-thirty. And there was Donald Bartley’s story of his role as lookout, of the disposal of the weapons and clothing, of Benny’s admissions, and of the getaway to Florida.
Tustaniwsky and his colleagues made no attempt, as Lester Burns had, to break Bartley down, choosing instead to underline that, even if Bartley’s account were true, he was less than an eyewitness, having heard the shots but not seen them. Much of the rest of his testimony was hearsay. Very little if any evidence corroborated Bartley’s account, Tustaniwsky argued, and a defendant could not be convicted solely on the testimony of an accomplice.
Big John Bowling had his hands full that week, with both Epperson and Hodge back in the Laurel County jail. It was a likely time and place for them to try to escape, perhaps their last best chance, a
s the dozen or so troopers guarding them had been instructed. The prisoners had nothing to lose by trying. All of the grounds on which the appeal of the Acker verdicts and sentences had been based—judicial error and incompetency of counsel among them—had already been rejected by a higher court by the time the Morris trial commenced.
Big John’s task was simplified, however, in that Donnie Bartley, whom the others would surely have tried to kill, was no longer resident at Bowling’s jail. For safety’s sake, Bartley was moved to a nearby halfway house. Big John had come to know Donnie and the other Bartleys well; they were almost family together by that time. While Donnie was still his guest, Big John had graciously let the inmate’s parents manage the Old Mill motel and restaurant, which the jailer owned. Louise and Donald Bartley, Sr., remarried to one another, brought together by adversity or perhaps by something beyond common knowledge and understanding, seemed to be enjoying a degree of prosperity, on the evidence of automobiles registered to them and to Donnie’s sister and observed parked at the Old Mill. These included an older Olds sedan leased from Avis, but also a 1986 Subaru GL sports car, a 1985 Cadillac Eldorado, and a classic 1957 Thunderbird, this last alone worth more than most new cars.
The Morris jurors chose the KSP trooper as their foreman. After hearing closing statements—the defense stressed the lack of physical evidence; Craft quoted Mark Twain’s line that a human being’s most precious possession was his or her last breath on earth—they retired to deliberate. They were gone about an hour before reporting that they had reached guilty verdicts on all counts, recommending twenty years each for robbery and burglary.
The emotions in that sweltering courtroom—the air conditioning had broken down, and it was unseasonably warm, eighty-four degrees inside; the jurors fanned themselves with their parking passes—were heightened by the presence of so many family members, relatives of victims and killers alike. Once so close, the Eppersons and Morrises now avoided each other except for an occasional bitter exchange. Troopers stood behind the defense table, in every corner, and at the doors. Outside, they were on guard with shotguns.
In contrast to the Acker trial, the defense chose this time to call witnesses during the penalty phase in an attempt to sway the jury against the death penalty. Benny Hodge’s mother, identified as Eula Burkhart, was the first to take the stand to plead for mercy for her son. She described the hard life with Billy Joe Hodge, the beatings, the shooting of Benny’s dog. She characterized Benny as a sweet boy who loved Christmas.
“Do you know why Benny would kill old people?” James Wiley Craft asked her. She denied his guilt. As did one of his sisters and his daughter by his first marriage, who called him a wonderful father, stressing the presents he gave and his cooking. Craft inquired of her what she had given him for Father’s Day in 1985.
A preacher who had counseled him in jail stated that Benny had described how his stepfather had punished him by trying to force him to eat his own feces. It was the reverend’s opinion that Benny still had hopes and dreams. A psychologist testified that Benny had told her that his present wife had taught him how to love. His sixth-grade teacher remembered him as a good boy who sometimes came to school with bruises on his face. Benny’s second wife described how he had made a chocolate wedding cake with cherries on top for their nuptials at Brushy Mountain. Craft asked why, if she loved Benny so much, she had divorced him. Wasn’t it true that he had run off with a prison guard?
All of Roger Epperson’s immediate family members asked the jury to be merciful. Of them, his mother was the most emotional, his father the least. In her closing argument one of his lawyers described her client as a man with a drug problem and an alcoholic who was really “generous, considerate, a man who would put a Band-Aid on a bunny rabbit or try to save a bird who had flown in the window.”
As the jury again retired, now to decide on life or death, James Wiley Craft wondered whether any of them could possibly be affected by the hearts and flowers they had just heard. After an hour, he began to worry. After two more hours, the trooper-foreman emerged to inform the judge that they had not been able to agree. It was past five-thirty. Perhaps if they had a quick meal it would put them into a mood for unity. The judge agreed.
Craft happened to glance through a window that looked into the corridor outside the jury room. Apparently taking a breath of air after their snack, the six men and six women were milling about the hallway. The trooper was leaning down to talk earnestly to an older woman, one who Craft remembered had voiced misgivings about the death penalty during voir-dire examination, although she had said that she could imagine herself voting in favor of it. Unable to hear anything, Craft deduced that she was the lone holdout and that the trooper was trying to convince her to join the others arguing for death, the man of law reasoning against false sentiment. Letting him on the panel could prove to be a fatal defense mistake.
Just after six o’clock, the jury returned. They had chosen death for both defendants.
The Morris family cried from relief. Bobby Morris, responding to a reporter, said that his parents deserved no less than what the jury had decided. His heart went out, however, he added with tears streaming down his face, to the Epperson family.
James Wiley Craft studied the reactions of the jury. The trooper had his arm around the woman who Craft had guessed had been the holdout. She was crying, and the big man was trying to comfort her.
There were tears being shed over in the jailhouse, too. For humanitarian reasons, authorities at the federal prison in Lexington had permitted Sherry and Carol to be with their husbands on this day. Sherry was waiting in Big John Bowling’s office as a pair of troopers led Benny in.
“What is it?” Sherry asked.
“Death, again,” Benny said.
They embraced. Suddenly, as they were kissing, old Judge Bishop popped his head in.
“Say, Hodge,” the judge said. “I forgot to tell you. Those twenty years you got on the robbery and burglary? They’ll run consecutively.”
Now that his purpose for the government had been fulfilled, it was time for Donnie Bartley to learn what punishment was to be his. Back in May of that year, he had stood before Judge Hogg and, on the advice of his attorney, refused to waive his right to a trial by jury. James Wiley Craft had asked for a sentence of two hundred years, abiding by his agreement not to seek the death penalty in return for Bartley’s testimony. A jury would be bound by the limitations of Craft’s request; a judge sitting alone would not, and would remain free to condemn Bartley to death.
But on December 15, immediately after a Letcher County jury was chosen, Bartley ignored his attorney and asked that Judge Hogg alone decide his fate. His reasoning was unclear. Judge Hogg asked him whether he understood that he could still be sentenced to death, despite any agreements that had been made.
“I never committed the murder,” Bartley said in a near-whisper.
The judge continued to question him for some thirty minutes.
“I plead guilty,” Bartley finally said, “but I didn’t kill Tammy Acker. Benny Hodge committed the murder.”
Judge Hogg announced that his own inclination was to give Bartley the death penalty, since he considered him equally as guilty as his cohorts, whether he had personally killed anybody or not. He had tried to kill Dr. Acker, as he himself had admitted. But an extraordinary thing had happened. Just that day, Dr. Acker and his surviving daughter had come to the judge’s chambers and asked him to spare Donald Bartley’s life. Maybe their hearts were filled with mercy; more likely, they could not face the ordeal of another trial, in which Dr. Acker once again would have to relive that awful night. Only last month the doctor and Tawny had sat through most of the Morris trial, out of bonds of love and commiseration that had sprung up between them and the family of other victims of Bartley and his friends.
Bartley was a lucky man, Judge Hogg said. Out of respect for the Ackers, the judge sentenced him to life in prison without possibility of parole for twenty-five years.
Bartley did not feel lucky. He had been tricked, he maintained to anyone who would listen. He claimed to have understood that he would be eligible for parole after eight years. He began serving his long, possibly terminal stretch at the State Reformatory at La Grange—bitter, dreaming of revenge, considering himself one of life’s victims. “I’d rather be homeless,” he said, “sleeping under a bridge, than in this cell.” He passed the time lifting weights and “making love to my guitar.”
32
SHERRY SPENT THIRTY-SEVEN MONTHS and six days in prison, nearly all of that time at the Federal Correctional Institution in Lexington, before she was paroled. She was glad that she knew as much about prison life as she did, because her experience helped her to adjust. She dealt with the inevitable racial conflict during her first week in her own fashion. A large black woman challenged her to a fight. When the guards finally pulled them apart, Sherry’s opponent was nearly unconscious and had lost some teeth. After that they became, if not friends, then peaceful toward one another.
Her experience also helped her to know how to control and conceal the marijuana and the green money she managed to acquire. She hid her currency by stuffing it into a full bottle of shampoo. She got into trouble only because during the first year and a half of her stay the Lexington prison was coeducational, with men and women on different floors and in different buildings but permitted to mingle with one another during meals and recreational activities. This experiment in prison reform proved as disastrous for the institution—the illegitimate birth rate soared—as it was for Sherry, who was disciplined for three charges relating to unauthorized contact with males. One involved kissing a guard; the other two had to do with prisoners and were of a more intimate nature.
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