by Tim Junkin
RAMSEY AND CAPEL had zeroed in. They were the ones with the responsibility for solving this crime. It was no light burden, no cakewalk. The FBI profile made clear that the killer would strike again. The community was frightened and expectant. The two detectives were in a fishbowl, treading water. With leads pointing everywhere they must have been feeling the pressure. Like the prosecutors who succeeded them, like the jurors who judged the two trials, they wanted to believe they had their man. They weren’t overly concerned with the suggestive circumstances surrounding many of these identifications. They bypassed the fact that Chris Shipley had not been completely satisfied with the composite sketch he helped create. They weren’t unduly troubled over whether his photo identification, qualified as it was by his statement that the hair color was off, might have resulted from his memory of the composite as opposed to a real recollection of the stranger at the pond. And they apparently never worried that Chris Shipley’s lineup identification might have come from his having drafted the composite, from having seen Bloodsworth’s picture in the photo spread, from having seen the same image too often—errors compounded by errors, reasons why the boy might be mistaken. The detectives yielded, perhaps, to the all-too-human desire to hastily find and punish this child killer.
PART IV
TRIAL AND ERROR
Until the infallibility of human judgment shall have been proved to me, I shall persist in demanding the abolition of the death penalty.
—MARQUIS DE LAFAYETTE
THIRTEEN
KIRK WAS TAKEN from his initial hearing before Judge Wittstadt to the county detention center and handed over to the jail guards there. He was made to strip and take a lice bath. They gave him an orange jumpsuit, a throw blanket, a small rough pillow, and a toothbrush. He was escorted upstairs to lockdown in Section 3E and led into a tiny rectangular cage. Three of the walls were beige cinder block, the floor rough concrete. A steel wall surrounding a door completed the enclosure. Part of the door, a hinged, free-swinging hatch, allowed him to receive food and drink. The cell contained one wrought-iron bunk with a green Naugahyde mattress, a stainless steel sink, and a toilet. A small air vent with slats angling down was built high into the far wall. If he stood on tiptoe and looked down, he could see a sliver of baked ground, little else. With his arms outstretched, he could touch both sidewalls of the small room. Many of the inmates in the detention center had free range of the tiers. Because Bloodsworth was charged with a capital murder, he was on lockdown. He would spend twenty-three hours a day in this cell for most of the next eight months.
That first night Kirk started hearing it. The guy in the cell above him started chanting it. It came through the vent right into Kirk’s cell. Quiet at first like a rustle, a whisper, then louder. He was going to do to Kirk what he’d done to that little girl. “I’m going to fuck you in the ass with a mop handle,” Kirk heard him say, “like you fucked her, you dirty son of a bitch.” Other inmates joined in. Soon it was screamed down the tier. “You’re all ours now . . . We gonna rape you like you raped her, boy. You’re our boy now . . .”
Sometime in the dark, while he lay awake listening to this, someone knocked open his food hatch and squirted a bottle of piss all over his cell floor. He heard a crazy laugh and footsteps running on the tier. He was too scared to move off his cot. Breathing the stench made him want to vomit. The guards must not care, he thought. He lay quiet, curled in the fetal position, trembling, tears streaming down his face. The chants continued. One inmate would stop and another would start. These chants would go on for months. Inmates sprayed his cell with urine night after night.
Curtis came up the next day for a jail visit, accompanied by his brother, Kirk’s uncle Billy. Curtis hadn’t been able to eat a thing since Kirk had called. Kirk came out into the interview booth in his orange jumpsuit and chains. Curtis moaned, “Oh Jesus Christ,” when he saw him. Billy just shook his head. They had to speak through a phone. Curtis looked his boy right in the teeth and asked him straight up. “Son, you didn’t have anything to do with this crime now, did you?”
Kirk looked at his father. He began crying over his father even asking it. “Dad,” he said, “you know damn well I couldn’t do anything like that.”
Curtis could see in his face that he was innocent. Billy too. Billy also started bawling right there. Driving home, Curtis cursed the detectives.
The first lawyer Curtis contacted was John Wheeler Glenn of the firm O’Connor, Preston, Glenn and Smith, P.A. Glenn was recommended to Curtis by a real estate buddy who’d told him that Glenn had represented their state senator, Fred Malkus. Glenn’s firm had an office in Baltimore and a satellite office in Cambridge. Glenn came to see Kirk and listened to his story, his claim of innocence. Kirk again broke down. Glenn had his hair all slicked down on one side and reminded Kirk of a dime store manikin. “Either you’re a good liar or you’re an innocent man,” Glenn told Kirk. “You’re very convincing.”
“The reason for that, sir, is that I didn’t do what they’re saying I done,” Kirk replied. “I didn’t kill no little girl . . .”
A few days later Glenn called Curtis on the phone. He told him that he was sorry, but the case was just too controversial. He couldn’t take it on. His firm sent Curtis a bill for just under $500.
Curtis started calling around trying to find a lawyer who might take his son’s case. He even called F. Lee Bailey. Bailey wanted $100,000 before he’d agree to visit Kirk. Meanwhile, Kirk had heard the name of Russell White in the jail several times. White was supposed to be good, a real hot shot, and his office was in Towson. White, everybody said, knew the court and all the local angles. Kirk asked Curtis to contact White.
Russell White was well aware of the case. Initially he wanted $100,000 to represent Kirk. Eventually, he agreed to do it for $75,000. Curtis didn’t have that kind of money. On August 16 Curtis borrowed $15,000 from the National Bank of Cambridge, using as collateral the savings he and Jeanette had accumulated over the years and placed in a certificate of deposit. On August 17 Curtis reluctantly forwarded to White a check for $10,500 and asked him to get started. He figured he’d just have to come up with a way to raise the rest. He planned to go back to the bank and take out a larger loan, using the little remaining equity in his house as collateral, but that would take time.
White began his investigation. As part of it he arranged for a polygraph examiner to privately administer a lie detector test to Kirk at the detention center. Polygraph tests are not admissible in evidence. They are based on heart rate, breathing, and perspiration, internal measures of stress. They are error prone. Courts over the years have considered them insufficiently reliable to be introduced into evidence. Still, they can help in plea negotiations and certainly in bolstering a lawyer’s confidence in his client. The results were not encouraging. The polygraph examiner concluded that Kirk lied about all the relevant questions concerning Dawn Hamilton.
White told Curtis Bloodsworth that the lie detector test results were “inconclusive.” But that wasn’t what Curtis had hoped to hear. Kirk’s father had already begun sinking down over Kirk’s arrest. He was drinking heavily. The polygraph results just torpedoed him. Having his only son accused of such an atrocity had turned his world inside out. Curtis had always believed in authority. He’d been a decorated marine, loyal to his country, and had worked for Tidewater Fisheries, which served as the local marine police. He trusted law enforcement, trusted figures of authority, believed they knew what was best. He was conflicted now. Torn between this system he’d always believed in and the word of his son. And the financial burden itself was just a back breaker. He began closing up, withdrawing; he wouldn’t eat; he couldn’t bear to see anyone. Only Kirk’s mother, Jeanette, never doubted. When she’d first heard of Kirk’s arrest she said to Curtis, “I know he didn’t do that crime. I don’t even have to ask him.” On her first visit to see her son at the detention center she said, “This will all be righted.” She spoke like that sometimes, like a fortune-teller
might talk. “I knew you’d one day get in trouble, and I know it will all be made right,” she said. She told Kirk to hold his head high and to never give up.
Russell White came to visit Kirk at the jail and brought with him a retired homicide detective whom he planned to use as an investigator. Kirk spent two hours telling the two of them his story. He was certain by then that he’d been home the entire morning of July 25. When he went out that afternoon, it was with Wayne Palmer to buy some pot.
White seemed genuine, sincere, and picked up on everything. Sharp as a paper cutter, Kirk felt. White told Kirk that he believed him. That he didn’t believe he’d done it. He added that he thought there were too many unanswered questions, too much suspicious circumstantial evidence for Kirk even to have been arrested. He promised Kirk that he’d find the answers. “Immediately,” he said, “we’ll begin our own investigation.”
Curtis continued to try to help Kirk through the people he knew, through his connections. He went to see state senator Fred Malkus, and spoke to a trusted friend, Ira T. Tide, who had money and had always let Curtis hunt on his farm. Ira Tide said, “Look, I’ve heard all about this. Let me make some calls around town and see what I can find out.” Early the next morning Tide called Curtis back. Tide said he’d spoken to a Judge Simpkins from Crisfield, who had been close to the previous governor. Ira said that Simpkins recommended Kirk get a public defender. Public defenders were expert in these types of cases and free. “Otherwise you might just be throwing your money away,” Tide told him.
Curtis discussed a larger loan with the folks at the bank. While they didn’t turn him down outright, they impressed upon him how much money he was talking about. They seemed less friendly. Curtis felt like a pariah in town. White had told Curtis that for the fee, he would also handle Kirk’s appeal, if necessary. Curtis worried why White was already talking about an appeal before he’d even been paid for the trial. Curtis decided to trust the advice of Ira Tide and Judge Simpkins. On September 13, when the next installment was due to White, Curtis called him and ended White’s representation. Most of the $10,500 had been spent, but White promised to turn over to Kirk’s new lawyers his investigative reports. When Curtis told his son of this, Kirk was crushed. White had seemed like a winner. He had given him a boost.
Up in Towson, the Baltimore County seat, Curtis met with the district public defender there, Thomas Saunders. Saunders was patient but professional. Saunders told Curtis that someone in his office would represent Kirk until Saunders could find two able lawyers to take over the appointment, private lawyers with real trial experience. The case was going to draw a lot of heat. Saunders decided to farm it out to Steven Scheinin and Scheinin’s younger partner, David Henninger.
Scheinin had been a prosecutor with the state’s attorney’s office for ten years. He had prosecuted numerous murder trials. Two years before, convinced that his boss, State’s Attorney Sandra A. O’Connor, was about to run for higher political office and that his future as a high level assistant in that office might be in jeopardy, Scheinin had resigned and gone into private practice. While he had never defended a death penalty case before, he was an experienced trial lawyer. He had tried dozens of murder cases for the state, and he knew the detectives and the prosecutors well.
Before Scheinin and Henninger entered their appearances in the case, however, Kirk was indicted. The state’s prosecutors, Robert Lazzaro and Ann Brobst, had brought the witnesses they wanted into the grand jury room and had them testify before the grand jurors, a place where defense lawyers are not allowed. The grand jury handed down the indictment on September 12. On September 17 Kirk was taken in his orange jumpsuit before Judge John Raine of the Baltimore County Circuit Court for his arraignment. While there in court the prosecutors filed the state’s formal notice to seek the death penalty. Kirk had known it was coming but still hadn’t been able to prepare himself for the blow. It sent him into freefall.
FOURTEEN
IT IS EASY TO understand why most young lawyers fresh out of law school who aspire to be criminal litigators would want to be prosecutors. They want to be on the side of right and justice, fighting for a safer world. What is curious is why so many gravitate toward defense work. There’s something in a person’s makeup—perhaps a wild gene—that makes him or her want to champion the underdog, even when the underdog is usually an outlaw.
Public defenders, particularly, are a strange breed. They have a thankless job. They work to try to free criminal defendants who comprise the poor, the destitute, the most desperate, the most violent. The pay is pitiful. Most people in the community scratch their heads and wonder how anybody could represent such people. Often their clients distrust them, at least at first. After all, it’s the state that appoints and pays the public defender—the same state that’s trying to convict the client. And you get what you pay for; the clients have learned that much: anything free can’t be worth a damn.
Public defenders typically last as such for only a few years. The work is just too grim. The daily contact with grinding poverty and wasted lives has a cumulative effect. It takes a strong stomach, an idealistic outlook, and a youthful courage. Most public defenders are young, with idealistic notions that they can help balance the scales of justice, scales that are always tilted, scales that rarely favor the poor.
It was early October when Steven Scheinin accepted his appointment from the Office of the Public Defender in Towson to represent Kirk Bloodsworth. Scheinin, while not a public defender, would serve as an appointed contract lawyer, working under its guidelines. He would be paid $25 an hour for out-of-court work and $200 a day during trial, with an overall $10,000 cap on attorneys’ fees. An investigator, Janet Moss, was assigned to assist him. Because Maryland law required that two defense lawyers be appointed in every capital case, his law partner, David Henninger, was selected to assist him. Scheinin had no qualms about the death penalty. But he relished the challenge of the case. He’d be in all the papers and would get a lot of free publicity. If he could win, it might boost his practice. The cash he’d make wouldn’t hurt either.
When Scheinin first visited Kirk, Kirk had already been in the jail for over two months. The state had its case neatly arranged. The trial was scheduled to begin in February, only four months away. Scheinin was way behind the eight ball.
The first meeting between lawyer and client, at least from where Kirk sat, did not go that well. Scheinin was shorter than Kirk, portly, wore glasses, and was dressed in a shabby suit that didn’t quite fit. His trousers looked too tight and his jacket sleeves too short. He interviewed Kirk in the jail’s visiting room. They were separated by a shatterproof glass window and had to talk through a phone. Scheinin introduced himself, telling Kirk that he’d been chosen by the public defender and appointed by the court to represent him. He explained that his partner, David Henninger, would be joining the team. Scheinin was confident that he could handle things. He began to tell Kirk all about the case and what he’d found out. Scheinin went on for half an hour before he ever asked Kirk a question. He seemed impatient as Kirk went over his story. After Kirk finished, Scheinin began telling Kirk how certain he was that they’d find a way out of this mess. Together, he stressed. He put his palm on the glass for Kirk to match. It seemed like an overly dramatic gesture. “I know my way around the criminal justice system,” he assured Kirk. “I know my way around the courtroom, and I know my way around this case. I’ll find us a way to get out of this.” With that Scheinin picked up his briefcase, said good-bye, and turned and walked right into the cinder-block wall behind him, knocking off his glasses.
After the interview Kirk felt sick. He called Curtis and begged him to find the money to bring Russell White back. Curtis told him that he needed to trust the system. That the system was a good one. Kirk’s head throbbed. He felt he was drowning.
TRIALS IN OUR justice system are categorized as either civil or criminal. Criminal cases are brought by the governing authority, either federal or state, against individu
als and entities for breaking the law. Civil cases are everything else: contract fights, injury claims, malpractice suits, antitrust, and a host of other noncriminal disputes. In civil trials, the participants are entitled to what is called open, or full, discovery. Each side is entitled to learn from the other all the information in its possession that is pertinent to the case. Written interrogatories posed by one side must be answered by the other under oath. Depositions of the parties and the parties’ witnesses may be taken. During these depositions, the lawyers can ask relevant questions and receive answers, again under oath. There aren’t supposed to be any surprises at a civil trial. It’s meant to be a search for truth.
Criminal discovery is different. It’s what is termed limited discovery. There is no right to send interrogatories or take depositions. Each side’s access to what the other knows is curtailed. One reason for this is that prosecutors are not able to force the defendant to divulge any information. The Fifth Amendment to the Constitution—the privilege against self-incrimination—protects every defendant. Since the defendant doesn’t have to tell what he knows, the prosecuting authority need not reveal all it knows. The ironic result is that where freedom as opposed to money is on the line, where a person’s very life may be on the line, the parties must face a trial without knowing all the facts, without knowing who all the witnesses may be or what they might say, with potential surprises around every curve.
Whereas civil trials usually are fought between parties of equal resources, such is typically not the case in criminal court. The state has an abundance of prosecutors, detectives, police officers, lab technicians, scientists, and money to throw at a case if it chooses to do so. The typical criminal defendant, like Kirk Bloodsworth, can barely scrape together bus fare, and the budgets of public defender offices are usually meager.