by Tim Junkin
All the lawyers that day were impressive. They addressed each judge by name when answering their queries. Bernhardt and Burns knew that several of the seven were bothered by the issues. They’d need a majority to overturn the conviction. They thought they had a real chance.
On July 29, 1986, almost two years after Kirk Bloodsworth’s arrest, the court of appeals handed down its opinion. In its ruling it first concluded that there was enough evidence, viewed in the light most favorable to the prosecution, for a rational fact finder to conclude that Bloodsworth was guilty beyond a reasonable doubt. Bloodsworth lost that one. The court also ruled, after an extensive analysis, that the trial judge did not abuse his discretion in excluding the testimony of the eyewitness expert, Dr. Robert Buckout. Under Maryland law, trial judges are vested with wide discretion in ruling on the admissibility of expert witness testimony. The court concluded that Judge Hinkel had a reasonable basis for excluding Buckout. The court of appeals went on, however, to find that the prosecutors’ failure to turn over the Mark Bacon report on Richard Gray was a violation of the state’s duty under Brady v. Maryland to provide the defense with all exculpatory evidence. The court concluded that this oversight was “sufficient to undermine confidence in the outcome of the trial.” It also suggested that the FBI “shoe expert” evidence should be left out of any subsequent prosecution. The court found that Judge Hinkel also committed error in refusing to let Birdie Plutschak testify about what Bloodsworth told her was the “bad thing” that he had done. Since her testimony would have offered a contemporaneous explanation of Bloodsworth’s alleged admission to Rose Carson, made before he ever knew he was a suspect, it should have been allowed. Of critical importance, though, was that the court of appeals reversed the conviction. The case would be remanded back to the Baltimore County Circuit Court. Kirk Bloodsworth was once again presumed innocent. He would be transferred off of death row and sent back to the county detention center. He would have the opportunity to try once again to save his life and clear his name.
PART VI
BROKEN JUSTICE
The quality of mercy . . .
It is enthroned in the hearts of kings,
It is an attribute to God himself,
And earthly power doth then show likest God’s
When mercy seasons justice.
—WILLIAM SHAKESPEARE
TWENTY-TWO
THE DAY THAT Judge Hinkel signed the warrant of execution for Kirk Bloodsworth, March 28, 1985, he’d received a strange phone call from a man who identified himself as Dr. Gene F. Ostrom. Dr. Ostrom was the director of the Eastern Regional Mental Health Center located near where Dawn Hamilton was killed. Ostrom told Judge Hinkel that he was torn over having to make the call. It was a breach of patient confidentiality, he said. But weighed against the possibility of an innocent man being put to death, he’d concluded it was necessary.
“Yes?” Judge Hinkel said, trying to move things along. He had a busy court docket to handle.
Ostrom told him that on the afternoon that Dawn was murdered, a patient of the clinic had unexpectedly appeared asking to see a counselor to talk about a relationship with a young girl. The patient’s name was David Rehill. He bore an uncanny resemblance to the portrait of the killer in the composite sketch.
Hinkel was irritated. “Why wait until now to come forward?” he asked. “After the trial has been completed and the defendant sentenced?”
Dr. Ostrom explained that he’d hoped Bloodsworth might not be convicted. That he had struggled over what to do because of his obligation to his patient.
Judge Hinkel thanked him for the information. He then picked up the phone and contacted Bob Lazzaro at the state’s attorney’s office. He told Lazzaro what Ostrom had said. “You need to investigate this,” he told Lazzaro. “And pass it on to Bloodsworth’s lawyers.”
Lazzaro discussed this new information with his supervisors. The concensus was that the police should investigate this new information before anything else was done with it. Lazzaro passed the information on to Detectives Ramsey and Capel. He left the state’s attorney’s office a few months later to enter private practice. Lazzaro never informed Steven Scheinin or any of Bloodsworth’s attorneys about the Ostrom phone call, and Hinkel never gave it another thought.
Once Kirk was transferred back to the detention center, he met with Katy O’Donnell and Donna Shearer, both trial lawyers with the public defender service. Joanne Suder was leaving the office, and they’d been assigned as his new attorneys. Both felt that given the nature of the crime, a team of women lawyers might provide Kirk with his best chance in front of a jury. O’Donnell would be lead counsel. She was smart and optimistic that they could win, particularly given all the material her office had uncovered in its investigation. Kirk liked her. But he didn’t want to make any mistakes this time. He’d gone with the advice of the public defender in the first trial. A real money lawyer, he thought, a high-dollar guy, somebody who knows the judges, somebody who wins cases, was what he wanted.
Curtis and Jeanette were as ecstatic as Kirk about the reversal and the new trial. This time Curtis promised to do whatever he could, to spare nothing to save his son.
While in the chow line one afternoon, another inmate began telling Kirk about a lawyer named Leslie Stein. Stein was the slickest of slick, he told Kirk. He represented a number of the big-time drug boosters—the ones with money. Stein had gotten a lot of them off. The next day Kirk heard about Stein from a different inmate down in the laundry. He asked around. Everyone said Stein was the man. Even Kirk’s marine friend, Officer Flaherty, confirmed that Stein had a good reputation.
Kirk asked Curtis to see if Leslie Stein would visit him. Stein met with Kirk in early October. Kirk saw why people thought the man was smooth. A fast talker, dark haired with streaks of gray, and well dressed, Stein wore a pin-stripe suit, a black silk tie, and a gold Rolex watch. He’d be a good match for Lazzaro. Stein told Kirk right up front, “A lot of things are going to be different this time. We’re going to win this thing.” He exuded confidence. He picked up on details. “When it’s over,” Stein said smiling, “I’m buying you a steak dinner at a fine restaurant out on the street.” Out on the street . . . Those were the words Kirk needed to hear.
Kirk believed him. He needed desperately to believe him. While Kirk liked Katy O’Donnell and the other lawyers from the public defender’s office and felt a twinge of guilt about dismissing them after all the work they’d done, this was his life at stake. He needed the very best professional he could afford.
Kirk asked Curtis and Jeanette to meet with Leslie Stein. Kirk knew it would be a stretch for them, but if they were equally impressed he hoped his father would figure out a way to raise the money. He’d pay his father back, he promised. He’d pay him back every nickel.
Stein wanted $25,000 to represent Kirk. He agreed to accept $15,000 up front, with the other $10,000 due April 17. Curtis had spent the little money he had remaining from the 1984 loan. Every week he tried to give Kirk cash for commissary, $30, $40 at a clip. It added up. Ronald Raubaugh, the investigator he’d rehired, had not come cheap. Now this. But this time he didn’t hesitate. He went back to the National Bank of Cambridge and, together with Jeanette, convinced them to lend him another $25,000. In mid-October, he signed a retainer agreement with Leslie Stein, paying him the first installment.
Kirk’s spirits were rising. He geared himself up for another fight. He tried to ignore the anger that now constantly welled up. He needed to have a clear mind, to ready himself for war, to prepare better for his testimony this time around. He intended to show the jury who he really was.
But Leslie Stein had other ideas. After reading the transcript from the first trial and meeting with Kirk’s alibi witnesses, Stein concluded that the alibi was a loser. It hadn’t worked in front of one jury, and there was no reason to believe it would work in front of another. The witnesses were not impressive, and they didn’t seem particularly interested in cooperating anymore.
He also had doubts as to whether Kirk should testify. He didn’t think Kirk had helped himself much by taking the stand. Kirk was already locked into this excuse about a taco salad and Stein thought it was a major liability. He didn’t want this next jury to hear what sounded like such a lame and contrived explanation for statements that seemed so incriminating. The state’s case was weak, and Stein believed he could discredit the state’s key witnesses and create sufficient doubt surrounding the other evidence of guilt: Kirk’s leaving town and the statements he made in Cambridge. Stein was good at cross-examination. He relished taking a witness down. He also liked the idea of blaming the murder on someone else—Richard Gray being the prime candidate. Kirk kept bugging him about finding the real killer. If Stein could undercut the state’s case and give the jury another suspect to blame for this terrible crime, he thought he could walk Kirk Bloodsworth.
Stein developed some additional strategies. Why were the police so certain that Dawn had been killed where she had been found? And was the rock, the so-called bloody rock, even the murder weapon? There had been only one small spot of coloration on the rock, what one detective surmised might have been blood. And though the rock apparently had been tested, there was no evidence that Dawn Hamilton’s blood was on it. Stein saw firsthand that the rock was porous, crumbly. Lining the bottom of the plastic evidence bag in which the rock was stored were fragments and particles of the porous material. It had crumbled right there in the evidence room. Yet there had been no rock fragments found in Dawn’s skull or scalp, in her matted hair, or in her blood. If she’d been struck by this crumbly rock, why weren’t there fragments embedded in her tissues? Moreover there was evidence in the coroner’s report suggesting that the injuries to Dawn’s brain were contrecoup injuries—damage caused not by a hard object striking the brain but by the brain being violently forced against a hard object. Perhaps her head had been slammed into a tree or an asphalt road. If the rock were not the real murder weapon, the fact that Kirk had been talking about a bloody rock actually showed he was innocent—that he had only been duped by Ramsey and Capel’s misguided gambit, tricked into believing that a rock had killed Dawn Hamilton when it hadn’t. Stein hired a brain specialist to review the autopsy report. The doctor agreed with Stein’s theory.
Stein was an experienced and talented trial lawyer. He’d spent seven years as a Baltimore City prosecutor and found an even better outlet for his skills as a defense attorney. He believed his client was innocent. What concerned him most, though, was the fact that this was a second trial. The jurors couldn’t help but learn that Kirk had been tried before. Transcripts from the first trial would be used to impeach witnesses. Stein expected the newspapers to run front-page stories of the case every day. He knew of no way to prevent the jurors from learning that Kirk had been previously convicted for this terrible murder. This undoubtedly would make it harder for them to find him not guilty. Stein considered asking for a sequestration of the jury. He knew the prosecution would fight it, and the jurors always ended up angry at the defense for requesting it. After hearing portions of the transcripts read, the jurors would figure out that Kirk had been found guilty anyway. Stein decided to forgo the request. He’d just have to overcome this impediment.
The trial was set for late March 1987, and Kirk had drawn a new judge, James T. Smith. This was a possible break. Smith had worked his way through the University of Maryland Law School at night, earning a living as a law clerk during the day. Once he passed the bar, he began taking appointments defending indigents. From 1973 to 1977 he’d served in a part-time position as the county’s deputy public defender. He’d been appointed to the circuit court in 1985 by Governor Harry Hughes. Smith had a reputation for being fair-minded, a middle-of-the-road kind of judge.
Still, as the trial approached, Kirk grew more nervous. He began to second-guess Stein about the alibi. He was truly, in fact, at the row house on South Randolph Road that day, he told Stein. Shouldn’t Stein at least call one or two of the witnesses?
A week before the trial, Stein visited Kirk at the detention center and explained again why, in his view, the alibi had backfired in the first case. They discussed again whether Kirk should testify. Stein was sure of himself, cocky. Kirk felt like Stein was trying to sell him a car. Stein told Kirk again that his taking the stand before had only hurt him. He was too easy a target on cross. Stein promised Kirk once more that he’d soon be buying him a steak dinner. Kirk agreed that the alibi witnesses wouldn’t be called and that he’d stay off the witness stand.
Since Robert Lazzaro had left the office of the state’s attorney for private practice, Ann Brobst was assigned to lead the prosecution team. A new lawyer, Michael Pulver, would assist her. From the first moment in court, it was clear that Brobst would run the show. It was clear too that she hadn’t lost her animosity toward Kirk Bloodsworth. Just seeing her caused the fear to coagulate in his chest. He felt it there, heavy, like a palpable knot of phlegm. The woman just made him sick.
Eleven days before trial, the state’s attorney’s office notified Leslie Stein for the first time about the information provided to Judge Hinkel by Dr. Ostrom—the appearance at his mental health clinic the afternoon of Dawn Hamilton’s murder of a man resembling the composite and needing to speak with a counselor. For two years, since March of 1985 and even after the court of appeals had reversed Bloodsworth’s conviction for the state’s failure to turn over exculpatory information, the state had withheld Ostrom’s revelations from the defense. Stein sent an investigator out to Ostrom’s clinic, but no one there that day seemed to remember much. With just over a week to go before jury selection and much to do to prepare, Stein felt he didn’t have the time to further pursue this new lead. He decided not to ask for a continuance. He made the judgment to forge ahead, to attack the state’s evidence, to make Richard Gray the scapegoat, to ignore both David Rehill and John Michael Anderson.
The trial commenced on March 23, 1987. Stein requested that he be allowed to adopt all previous motions. He also argued that because of all the pretrial publicity and because it was a death case, Judge Smith should question each prospective juror individually before selecting a panel. Smith agreed to do this. Again the jury would be death qualified. The questioning of jurors began on the morning of March 24 and ran through March 26.
To Kirk, Judge Smith seemed very different from Judge Hinkel. Smith took his time, went out of his way to be solicitous. He brought Kirk back into his chambers during the jury selection process so that Kirk could watch. He reminded Kirk of Mr. Rogers on children’s television. Smith was patient, polite. He seemed to listen with an open mind before he ruled.
The next morning Michael Pulver opened for the state. The state’s strategy, like before, was to emphasize the terrible nature of the crime.
While murder, rape and sodomy are the technical names we give to these charges, they by no means begin to describe for you the enormity of the crime that was committed or the horribleness of her death. The facts in this case go beyond really my limited ability to express. They go beyond comprehension of any decent person. They are best, I suppose, compared to a nightmare. A nightmare that ended for young Dawn Hamilton when she finally died, after having been crushed with a rock, strangled and sexually assaulted. . . .
Pulver backed and filled.
The defendant then lured Dawn into the woods, deep into the woods, far from the town homes, and then once, as I said, far away from everybody else, far from any potential passers-by, he turned and viciously attacked her with a rock, smashed her in the face and in the skull with a rock, crushing her skull, and he strangled her by standing on her throat for so long and with such force that when he finally lifted his foot, embedded in the soft skin of her neck, was the imprint of his shoe. And as if destroying this little girl were not horrible enough, if that were not enough, he raped her, and sodomized her, and then in one last act of perversion, and I hesitate to even mention it to you, but it is a fact in this case, took a stick and stuck it into
her vagina, approximately five and a half inches. . . .
The worse the crime, the more horrible the facts, the more the jury could be made to despise the perpetrator, the harder it would be for them to acquit. Pulver described the facts in graphic detail. He outlined as well the evidence the state expected to prove. He put the state’s spin on the rock-and-panties gambit Ramsey and Capel had used on Bloodsworth:
Before talking with him, they went to a local five and dime and they bought a pair of shorts and a pair of underwear that matched those worn by Dawn the day that she was murdered. And from off the parking lot at police headquarters they picked up a large rock. They took all these items and put them in the interview room. It was their hope that if the person that had done this to Dawn saw these items they might react in some unusual manner. . . . Upon entering the interview room, the defendant took no apparent notice of the rock and panties and they were immediately taken off the table, out of view. . . .
Pulver turned this against Kirk by relating the statements Kirk made afterward in Cambridge about a bloody rock. Pulver insinuated that Kirk had never even seen the rock in the police interrogation room and only knew of it because he’d used it to murder Dawn Hamilton. Pulver described the identifications of the state’s witnesses and how they came about. He told the jury to use its collective life experience, its common sense. He asked them to return a verdict of guilty.
Michael Pulver was good, but Leslie Stein was also ready. He first tried to tell Kirk’s story from Kirk’s point of view: A twenty-three-year-old kid never before arrested who found himself in a strange town and enmeshed in an intolerable marriage. So he left, went home, only to be arrested for the worst of crimes, thrown into his own unimaginable nightmare. Stein then suggested that this case, from the investigative standpoint, was backward. Rather than find clues leading to Kirk Bloodsworth, the police, for the skimpiest of reasons, had zeroed in on Kirk Bloodsworth and then gone out and searched for clues to incriminate him. The police were in a fishbowl, Stein said. The media coverage was relentless, demanding that the murderer be caught, and the police made assumptions, wrong assumptions, about the murder weapon and the murderer, and everything flowed from there. The eyewitness identifications, Stein promised, would be shown to be unreliable. The witnesses who went into the lineup already knew who they would pick out. Each one of them, he said, had already seen Bloodsworth on television, or somewhere else. The lineup was a travesty. Stein promised the jury a hotly contested trial. He set out to deliver on his promise.