Cruel Doubt

by Joe McGinniss

  “The State took three weeks to put on its case. Three weeks’ worth of information that the DA laboriously put in front of the jury. And we felt he would laboriously spend three more weeks asking the defendant, ‘Isn’t it true that this happened?’ And we felt the damage from that—from hearing that again, with the defendant sitting up there saying, ‘No, that is not true, I did not do this’—we felt like there wasn’t any advantage to that.

  “In the eyes of the jury, whether he says yes, no, or ‘I was in Hawaii,’ it just reiterates those points.”

  The risk, of course—as would have been the case with Chris—was that no matter how often a jury was instructed that a defendant’s decision not to testify should not count against him, it almost always did. Presumption of innocence was a splendid concept in the abstract, but what was found far more frequently in the real world of the courtroom was a presumption of guilt. After hearing two former friends spend days describing how he had plotted and carried out a murder, why wouldn’t James Upchurch—or any innocent defendant—have demanded the right to personally tell the jurors it was not true?

  In any event, with Upchurch having chosen to stay silent, closing arguments were made on Monday, January 22. In the absence of any direct denial of guilt from the defendant, it was up to his two public defenders to argue that the case against him had not been proved beyond a reasonable doubt.

  Frank Johnston spoke first. He had not written out his presentation in advance, nor even outlined it. He never did. His approach was to “think through” the weak areas in the State’s case and focus on them. Here, he felt, he had an abundance from which to choose.

  “I don’t think this case falls into the realm of good, old, everyday common sense,” he said. “I think it’s in the realm of the supernatural. I think it’s in the realm of imagination, science fiction, the movies. This is not a case where you simply go out and say, well, it must have happened because Neal Henderson and Chris Pritchard said it did.”

  Then he began to chip away, piece by piece, at the evidence the State had presented. The inconsistencies, the unanswered questions, the elements that defied rational explanation.

  He began with Angela, suggesting, without saying so outright, that perhaps she should have been a defendant, too. “Angela’s bedroom,” he said, “was ten to twelve feet from Mr. and Mrs. Von Stein’s bedroom.”

  He reminded the jury that the doors of both Angela’s bedroom and the master bedroom were “hollow-core doors—not as good a sound protector as a solid door would be.” And that Bonnie had awakened to screams. Yet somehow Angela had managed not to hear the screams. Somehow, she’d managed to sleep through it all.

  “And what did the officer say who spoke to her?” he asked. “ ‘Angela showed no emotion, nor any interest in the situation.’ ”

  Bonnie, when awakened by the screams, saw someone standing above her. “And how did she identify this person? Very broad-shouldered; no neck. Very broad-shouldered; no neck. Now, this is interesting. Remember how she describes this. She says there was light filtering through the door. She had testified there were no lights on in the bedroom. It was completely dark. So this intruder had evidently turned a light on somewhere. She is telling us now that there is a light on somewhere in the hall—or is it coming from Angela’s bedroom?”

  Whatever its source, Johnston emphasized, “even though she may not be able to see his face, that light would silhouette his form. And it did. And that is why she is able to give that kind of description. Broad-shouldered, and no neck. But not just broad-shouldered. Very broad-shouldered. It made a distinct impression on her. And the specific question was asked of her, ‘Mrs. Von Stein, does the defendant look like, or does his size appear to you to be the same as, the person you saw in the room on that morning?’ ‘No, it does not.’

  “The State tries to say, oh, well, now, if you were in a completely dark room with the lights out, with somebody standing up holding a bat, could you tell who that person was? Well, no. But if that’s the case, why does she see Neal Henderson and James Upchurch in the courtroom in Washington, North Carolina, under the same circumstances, at approximately the same time, and it’s the figure, the physical appearance of Neal Henderson, that bothers her so badly that she gets scared and has to leave the courtroom and go to an attorney’s office across the street.

  “The State would contend to you that doesn’t make any difference. But Neal Henderson fits the picture. You’ve seen a picture of Neal Henderson. You’ve recognized and identified him. Seen him on the stand. You can see that there’s a marked difference in his physical stature and that of James Upchurch. But the State would contend to you that, well, you ought not to pay any attention to that. That’s not important.

  “Well, you are trying this man for some awfully serious crimes. And it is important. And it needs to be considered, seriously considered, by each one of you when you get in that jury room.”

  Next, he spoke about the bat. “Who is the only person,” he asked, “who has indicated that this bat was in the Von Stein residence? Neal Henderson. What does Bonnie Von Stein say? She said she heard a whooshing sound, even after someone left the room and shut the door. Now, you swing that bat as hard as you want to, you are not going to hear a whooshing sound. ‘Oh, but we found a bat in the woods eleven months later.’ The scientists, the SBI, the FBI, nobody can say anything about that bat except it’s a bat and it was found in the woods—except Neal Henderson.

  “Who knows what his thought processes were, his defense tactics? There’s no way to tell that. But I think it’s awfully strange that a bat was found in the woods near Smallwood that can only be identified by Neal Henderson. A bat that was not identified by Bonnie Von Stein. A bat that could have been put there anytime after July twenty-fifth. No blood on it, no fibers, nothing to connect it with this case except for old Neal saying, ‘Yes, I saw James take it out of his closet two or three days before this happened. I saw him draw something on it.’

  “But isn’t it conceivable, doesn’t it make sense, that that bat could have been planted there, or could just have been there, period?”

  Then he voiced doubt about Bonnie. “You’ve got to weigh Bonnie Von Stein’s testimony in the totality of this situation. What’s happening here? What’s going on? Have you seen any good Alfred Hitchcock programs lately? Her husband goes to bed. She watches TV. Ted Bundy story. Any of you familiar with that? Remember what it was like? Took her rooster in to watch it with her. Daughter came home. Went upstairs to get ready for bed.”

  But what happened next? Johnston asked. “She says, well, I was unconscious for part of the time. When did it happen? Did Lieth get assaulted and killed sometime earlier in the evening, and then Bonnie get assaulted three, four, five hours later?

  “What do we know? We know she called the police at four twenty-seven A.M. We know that the gentleman saw the fire about ten miles away in Pitt County at about quarter to five. Those times certainly check out. But what do we know about old Lieth?

  “The blood had jelled. Blood had jelled. He’s lying across the bed. Are we going to believe that she was passed out for hours and that the attacker waited around for her to regain consciousness before he attacked her again? Is that what the State wants us to believe?

  “It’s like a game of Clue is what the State wants you to believe. Have you ever played Clue? You draw little cards. It says the knife is in the kitchen, so you move your man over to the kitchen. Try to figure out who did something. The State wants you to draw all these cards, and the ones you can’t fit in the puzzle, just throw them away and don’t worry about it.

  “And where is Angela all this time? Safely tucked away in her bed, sleeping through all the screams, through all the noise, through all the batterings. What did Bonnie say she told Detective Taylor? ‘Yes, I could have told him that Lieth screamed as many as fifteen times. I heard piercing screams, and I screamed.’ The ins
ulation was so poor that she had to keep her door shut to keep from hearing her daughter’s radio.

  “They rush her off to the hospital. And obviously, she is injured. Got some cuts and bruises on her forehead where she says she was struck. Had a collapsed lung from a knife wound.” He paused there, apparently hoping that the jury would, on its own, contrast the relative insignificance of these injuries to the massive and murderous wounds inflicted on Lieth.

  “Then Detective Taylor and the rest of Washington’s finest come in and do the crime scene,” he said. “And what do they find? Nothing. Nothing. And what does the SBI find? Nothing. What does the FBI find? Nothing. There is not one thread of physical evidence that ties anything that happened in this case to the defendant, James Upchurch. Not one.

  “The State has introduced approximately one hundred and seventeen exhibits, and there is nothing in any of them that ties the defendant to being in that house, or to being with Neal Henderson on that evening, or to having anything to do with this. There’s only the statements of Neal Henderson and Chris Pritchard.”

  Neither of those two, he argued, was worthy of belief. “Why aren’t they telling you the truth?” he asked. “Who are they protecting?” It was not a question he attempted to answer directly, hoping instead that the jurors might come up with a few tentative answers of their own—enough, at least, to have reasonable doubt about the guilt of James Upchurch.

  Johnston said it was awfully important to keep in mind that Neal Henderson was a genius. “I don’t know about y’all, but most of us don’t run into contact with geniuses every day. And I don’t know how to weigh and to approach a genius mind. I fall much inferior to that. We’ve got a person here who has immense capabilities, not only of developing and focusing and directing and imagining, but we don’t even know what we are dealing with. We do not know the ramifications. Perhaps some of you are geniuses and you understand, but I don’t think good common sense can even help us to understand the magnitude and thought processes that geniuses have.”

  But he wasn’t just a genius, he was an unfeeling, mechanical man. “Look at Neal Henderson’s demeanor on the stand,” Johnston said. “Have you ever seen anybody testify that looked more like a robot? . . . ‘James told me to do it. James told me to stick my hand in the fire, so I did it. I do everything James tells me to do. I don’t make any independent decisions of my own. Look, I wouldn’t even have got involved in this if I didn’t need some friends.’

  “He played Dungeons and Dragons with two groups of people, lived with his girlfriend, but he needed friends? Does that sound to you like somebody that’s a recluse, that doesn’t have friends?”

  And he wasn’t just a genius and a robot, he was a liar. Take, for instance, his mention of the radio. They hadn’t talked on the way back to Raleigh, they’d just listened to the radio. Except there hadn’t been a radio in the car.

  “If you’re going to tell the truth,” Johnston said, “you tell the truth fifteen times, you tell it the same way. But if you’re going to tell a lie, you get mixed up. You get confused. You tell it different ways. ‘Well, I think the car was black.’ If he can remember every road he came out of Raleigh on, if he can remember every little detail on that map, you mean to tell me he can’t even remember what color the car is?”

  Of all Henderson’s lies, he said, the most preposterous was the account of moving the car from the American Legion Road to the Airport Road while Upchurch was presumably inside the Von Stein house, committing murder.

  “He wants you to believe that after this defendant killed Mr. Von Stein, he strolls on out to Market Street with the big streetlights out there, with blood all over him, and goes on down the road.

  “Now, is somebody going to go on a straight line back through some woods where they are going to be protected, where they won’t be seen—go in a straight line back to the car—or come out on the highway, walk down the road that’s well lit, one of the major roads in Washington? And from what Neal tells you, this defendant didn’t even know the car was there! He didn’t know Neal had moved his location. Does that make sense to you?”

  Then Johnston closed with a summary of what he considered to be the most glaring inconsistency.

  “Dr. Page Hudson,” he said. “As good an expert, as informed, educated, experienced, an expert as you could have in any case. Highly renowned, tremendous background and experience, dedicated, responsible.

  “With Dr. Hudson, we come to a situation that is totally and irrevocably unexplainable. With Dr. Hudson, ladies and gentlemen, the bottom falls out of this case.

  “Because what does he tell you about the medical evidence? ‘It’s undisputed that Von Stein ate supper eight-thirty, or seven-thirty at Sweet Caroline’s. Had a chicken and rice dinner. I would expect a dinner of chicken and rice to be completely digested and out of the stomach within one to two hours after consumption. If he finished supper at eight o’clock and the death occurred at between three and four, we are talking about seven hours. At best, we are talking seven hours. Highly unlikely. Very unusual.’

  “Now, the State is saying, wait a minute, can’t his bodily processes be slowed down or stopped because of all this emotional trauma that he’s experiencing? ‘Yes, that could happen,’ Dr. Hudson says, ‘but it’s an absolutely unusual scientific thing to happen, for somebody’s bodily processes to stop functioning because of stress. It just is not likely. And not because of a financial situation, or a family-death situation from some time back.’

  “And I say to you again,” Johnston went on, “where is all this stress, other than Bonnie saying the parents died and that he was upset about it. Which was a year before this, for his parents—a year or more—and four or five or six months for his uncle. But he wasn’t so stressed out that he couldn’t get on his computer and figure out how to invest his stocks and his bonds and how to improve his station in life.

  “Which is okay. I am not criticizing him. But there’s no medical evidence that he’d been to see doctors, that he was having digestive problems, that he was having a nervous condition. Nothing.

  “There’s a big hole in this case. Common sense? This doesn’t make any sense. What’s the answer? I don’t know. But I think it tells us something about this case. We ain’t getting the truth. When you get through listening to all this evidence and hearing this case in its entirety, you still are not going to know what’s happened. I don’t believe anybody knows.

  “Well,” he said in conclusion, “somebody knows. But we don’t even know who that is. I don’t know what the truth is. But I do know that we haven’t heard it in this courtroom.”

  * * *

  Johnston had spoken for almost two hours. After a short break, Wayland Sermons gave a shorter, lower-keyed presentation. He said, “The State spent almost two weeks establishing that Lieth Von Stein suffered a horrible death. There is no question about that. There’s no one here to tell you he did not. There’s no one arguing he did not. You’ve been shown horrible pictures. No doubt Mr. Norton will strut those in front of you again.

  “But is that evidence of the defendant’s guilt? Absolutely not. Absolutely not. Don’t let that tactic shock you into thinking that there must be some evidence of guilt. Because just as horrible as that death was, equally horrible is the thought that an innocent man may be found guilty upon the uncorroborated testimony of two confessed murderers. There’s absolutely nothing to link the defendant to the crime which the State says he committed. Absolutely nothing.

  “You have the power over this young man’s life. There’s no question about that. Mr. Norton doesn’t decide it. Judge Watts doesn’t decide it. We don’t decide it. Y’all decide it.”

  Then, as had Johnston, he suggested that Neal Henderson had committed the murder, pointing out that one of Lieth’s worst head wounds had been sustained on the left side of his face, as it would be if a right-handed person were swinging a club at someone
facing him. Henderson, he reminded the jurors, was right-handed. Upchurch was not.

  He also suggested that Henderson had suffered from a failure of imagination in being unable to describe more dialogue between himself and Upchurch after the crime. “He said they didn’t really say anything. They didn’t feel like talking. They listened to the radio. Now, I contend to you that he told us that for this reason: he made that journey and came back and that car was utterly silent and he was with his own thoughts.” And then there turned out to be no radio.

  The couple of remarks Henderson had attributed to Upchurch—“I can’t believe I did it. . . . Blood was everywhere”—indicated nothing. By the time Henderson first told his story, “anybody connected with the case” knew there had been a lot of blood.

  Next, he focused on the return of Chris’s car keys. He had the jury picture the scene: “driving into Raleigh as the sun is up, seven o’clock Monday morning, summer school at North Carolina State.” They parked the car in the same place they’d found it seven hours earlier, and then, despite the fact that “Mr. Henderson lives a mile away in an apartment and James Upchurch lives two floors up above Chris Pritchard’s room,” it is Henderson, not Upchurch, who returns the keys, “because James told him to.”

  But what was the real reason? It was, Sermons said, “because Henderson realized that he had to say he went up and put the keys up there in case somebody saw him that morning. He had no reason to be up there unless he actually took the keys up there by himself when he returned from Washington by himself.”

  Then Sermons trained his sights on Chris. “Y’all remember him. I think you can see that Chris Pritchard was ready to say and do about anything to save his life. He admitted that to me on the stand. Chris Pritchard is lying.