The next day, December 30, Sheriff Mills filed a state complaint charging Shaw with first-degree murder under Mississippi law, his county having overlapping jurisdiction over crimes on the Trace. Sheriff Mills and the local DA asked me to prosecute, however, because the case would be very expensive and difficult for the county to prosecute. We agreed and began looking for a motive. Why would anyone do such a horrible thing? At the jail, the agents had seen Shaw’s girlfriend, who was named Janet. She was a strange-looking girl, but about right for someone like Shaw: tall and skinny with long black hair which contrasted sharply with her milk-white complexion. She walked awkwardly, having one leg shorter than the other. Her strong resemblance to the witch-like girl in a popular TV beer commercial of the time caused the agents to nickname her “Mortitia.” Local informants said it was rumored she’d been seeing another man while Shaw was off in the pen, a man who drove a car almost identical to the one driven on the fatal night by Kenneth Brinkley.
We filed a federal criminal complaint, and the FBI arrested Shaw and took him into federal custody. On January 12, 1981, we gave Shaw a preliminary hearing before U.S. magistrate Charles “Mo” Powers, who bound him over to the federal grand jury. Our theory of the motive at the hearing was that Shaw had thought he was shooting a rival for the affections of Janet.
At this point, veteran democratic U.S. Attorney H. M. Ray, who had been in office since John Kennedy appointed him in 1961, was replaced by republican Glen Davidson, a former Tupelo district attorney and Ole Miss basketball player. Glen had prosecuted numerous murder cases, and Al Moreton and I looked to him for guidance. Al and I had neither one ever prosecuted a murder case. And our proof seemed to be getting weaker. FBI ballistics experts had just completed a bullet-trajectory study using dowel rods to show angles of entry. They concluded that Shaw had shot the car from the front, long before he could have seen whose car it was or what color it was. There was no reason to believe he would have thought his rival for the affections of Janet would be on the Trace at that time and place. An interview of that man revealed he never drove on the Trace, finding it too isolated and scary.
Al and I had a long meeting with Glen Davidson where we explained the proof we had and what the defenses would be. He said, “You boys are good. I’ve seen you in action. Whatever you decide to do, I’ll back you to the hilt. But if it were my case, I’d be happy with a plea to involuntary manslaughter. No matter what kind of sorry bastard the defendant is—and he is totally sorry and the jury will hate him—it sounds like a drunken hunting accident to me, and I think that’s what the jury will decide.” In our minds Al and I agreed, but in our hearts we could not let the case go. We decided we’d rather lose the case than give it away, and Glen agreed for us to go ahead.
We first studied the legal issues. Under the “assimilated crimes” law, we could charge Shaw with violating the Mississippi murder statute within federal jurisdiction. I read that law for the first time since law school. Then I read the federal murder statute for the first time. One phrase caught my eye: “Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing . . . or perpetrated from a premeditated design . . . to effect the death of any human being other than him who is killed, is murder in the first degree.” We liked the part lawyers call “transferred intent,” that is, if you shoot intending to kill one person and accidentally kill another, you’re still just as guilty. We liked even more the part about “lying in wait,” which fit perfectly Sheriff Mills’s description of the “wallowed-out” place behind the twin oaks.
Shaw had first lied about doing any shooting, then lied about where he did it, moving the site from Ballard Creek to Pigeon Roost for some reason. Still, we had no credible motive. Then Al said, “You know, John, proving motive is important in the movies, but the law doesn’t require it. The judge will instruct the jury that proof of motive isn’t required. That’s what the standard jury instruction says.” Al loved a challenge and always had a plan.
The FBI investigation continued on apace. Our whole office offered to help us with legal research, but that was the easy part. What we needed was evidence, not law. I finally drafted an indictment in five counts. The first count was for possession of a firearm by a convicted felon and carried five years in prison. That count was a cinch. Count 2 was for the murder of Terrell Johnson and carried life without parole or the death penalty if we asked for it. Count 3 charged Shaw with using a firearm in that murder and carried another ten years. Counts 4 and 5 charged assault with intent to kill Terrell’s sister Lachelle and using a firearm in that assault, again carrying life plus ten years. Legally we felt good.
Al and I drove down to the scene one freezing night in January to see what it looked like under similar conditions. We felt like it was a bad omen when the heater on my decade-old Mercedes went out. Our fingers got so cold we could hardly feel them as we surveyed the scenes with flashlights and I tried to take notes. We found the twin oaks, but the wallowed-out place had been destroyed by officers trampling over it searching for spent shells. No one had photographed it.
On January 29, 1981, the grand jury enthusiastically voted an indictment and strongly encouraged us to go all the way with the case. They wanted the death penalty. We were less confident. At that time, the Ole Miss Law school had its own federal defender program, established by Judge Keady to train students and to save money on court-appointed counsel. It was staffed by one professor and as many law student researchers as he could handle. There were plenty of inexperienced volunteers. We knew that appointment meant we’d be flooded with legal motions but also knew the professor, Robert Doyel, had little practical experience in criminal law and none in murder cases. We were even a little concerned that if Shaw were convicted, an experienced appellate attorney might convince the appeals court that such a tricky case with a man’s life at stake should not have been entrusted to such inexperienced counsel. That fear turned out to be unfounded.
The case went as we’d figured. The students did a fine job on the legal issues, bombarding us with motions, the most important of which were to exclude the rifle as illegally seized without a warrant and Shaw’s statements as illegally obtained in the absence of an attorney after Shaw had specifically asked for one. The case was assigned to veteran Judge Orma Smith, who made short work of the motions. When Professor Doyel argued in chambers that the murder counts should be reduced to manslaughter because there was no proof of deliberation by Shaw, Judge Smith, who had defended murder cases himself, asked Doyel point-blank, “Mr. Doyel, what if I reached in my drawer here and pulled out a pistol and without saying a word just shot you dead right here in chambers? Is that not murder? Your motion is denied along with all the others.”
As trial approached, we got one big break. FBI agent Don Greene, who will always be in my personal law enforcement hall of fame, somehow found us two new witnesses who became crucial. Leigh and Ann Avery, a teenage brother and sister who were students at Mississippi State University, not far south of the crime scene, regularly drove home up the Natchez Trace. They told Greene that early on Christmas Night, after dark, they’d been driving down the Trace near a dumpster by the Mt. Pisgah church when they passed a truck looking just like Shaw’s with a lean-faced man on the driver’s side who closely resembled Shaw. Just after they passed him, curious about why he was there, they looked back. To their shock, Shaw was leaning out the window of his truck, sighting over his rifle at them. Leigh took off, telling Ann he recognized the rifle as a lever-action .35 Marlin deer rifle, the exact one Leigh himself had. We decided to hold the Averys back for rebuttal since their evidence was really damning. We feared if we offered it in our own case-in-chief, the judge might exclude it as too unrelated and prejudicial, but if we waited till after the defense, they might inadvertently make it relevant and open the door for us to get it in.
Then we received some critical help from inside our own office. AUSA Tom Dawson, an avid hunter who regularly tra
veled to the Yukon and Canada’s north woods to hunt elk and caribou, also had a .35 Marlin lever-action rifle identical to Shaw’s. Dawson badly wanted to try the case with us and kibitzed constantly with Al and me. One day, reading the FBI reports of the seizures and Shaw’s various statements, he had a eureka moment: “I may have this wrong, John, but I know my rifle, and maybe you can use this on cross-examination if they’re stupid enough to put this fool on the witness stand.” In his final version, Shaw had told the FBI that he’d stopped at the “pull-off place” because he’d seen deer there as he was driving. He said he’d stuck his rifle out the window and fired a single shot and hit one deer and followed it unsuccessfully into the woods.
Dawson was emphatic: “The key thing is the number of shells. These Marlin .35s hold just seven shells. The officers recovered five shells from the floor of the truck, right where Shaw said he ejected them when he saw the officers following him. A sixth shell was found jammed in the tube that feeds the shells into the chamber. Shaw didn’t know that. If you count the one shell he used to kill the boy with, that makes the full seven. It proves his story about shooting a deer is bogus. That would have been an eighth shell, and the Marlin only holds seven. His own story hangs him.” Dawson smiled broadly. “You boys need some hunters on the jury.”
Al and I wondered how we could use this theory. The best way, if we could keep it straight, would be in cross-examining Shaw, but he might not take the stand. Otherwise, we’d have to have a firearms expert testify to it, and our period for informing the defense of our expert witnesses had passed. Plus, we had not yet decided which of us would cross-examine Shaw if he did take the stand. Al had never hunted, and I hadn’t hunted much since high school. But the issue of which nonhunter would cross-examine would be resolved shortly.
Interviewing witnesses and preparing them for trial was always one of my favorite parts of trying cases. You get to size them up as narrators, focus them, calm them down, and generally make them better witnesses. I also enjoy preparing them for cross, usually acting myself as a cross-examiner. My witnesses often told me after trial that I was harder on them in pretrial prep than opposing counsel was in court. And that’s how it should be.
We’d already prepared Kenneth Brinkley, an intelligent and articulate witness. But we’d avoided talking to Linda Johnson, knowing how painful it would be for her to relive the suffering and death of her son. But one night a couple of weeks before trial, we scheduled a meeting with them at their motel in Oxford, where we felt she’d be more comfortable than in an office. As we approached the door, Al, a veteran Navy enlisted man who was always fearless and hard as nails, put his hand on my arm and stopped me: “John, I just can’t do this. Tell you what, if you’ll interview Mrs. Johnson and put her on the stand in court, you can cross-examine Shaw. I just can’t do it.” I’ve never known a more courageous man than Al Moreton. He’s one of the rare stoics I’ve ever met. Al ignores pain, physical and moral. It made me feel cold and heartless that I could do this without a problem, but to me it was just something we had to do.
When Linda opened the door, Al was gone. I told them he’d been called away. The interview went fine. I assured her that no attorney in his right mind would dare be ugly with her at trial. She seemed reassured. It made me feel dirty to be so cynical, but I was doing it for her as a victim when I told her, “We’ll make this quick tonight. I don’t want to cause you pain or make you cry, but if you break down and cry in front of the jury it will help our case, and it’s your right to let the jury see what pain this monster caused you.” She said she’d lived with it and could handle it and she still had her daughter, Lachelle. She was pretty and articulate and looked just right that night barefoot and wearing jeans. I wished she could have testified that night and gotten it over with. But she was even better on the stand at trial.
Judge Smith having swept away the blizzard of motions by the law students, Al and I turned to the order of witnesses and who would question each one. That was no problem. We would just alternate. Al asked if I would question the prospective jurors on voir dire, my favorite part of the trial. “If you don’t mind, I want you to do the first part of the closing arguments and summarize our evidence. You’re good at that. Then I’ll do the final part. You tend to get pretty wound up, and I’m afraid you might get too emotional and commit error.” I knew Al was right. “And if you want to make the opening statement after I do voir dire, that’s fine too. You’re better at that,” I said.
Al looked concerned. “I’ve been meaning to talk to you about that, John. I know you’ll disagree, but hear me out. I want to waive opening—not even make an opening.” I erupted, as he knew I would. “Not open!” I yelled “Let them box us in? Speak for us? Are you crazy?” Al made his point calmly. “John, I like opening almost as much as you do. But this is a shaky case. We don’t know exactly what we’re going to prove, so it’s better we don’t limit ourselves.” It was true that our key witness, Sheriff Hays Mills, had gone missing for a week. After an argument with his wife, he’d left town, and no one could find him. I figured he was too committed to the case to let the victims down, but who knows what humans will do? Trial was less than a week away, and no one had heard from him or seen him in at least a week. Reluctantly, I went along with Al. He was right a lot more often than I was.
Later that week, Bob Doyel came to us and offered to plead his man guilty to the firearm count and ask the court for a five-year sentence if we’d dismiss the murder counts. Hays Mills was still missing. He could be dead for all we knew. But we still had the proof of defendant’s different versions. We could prove he lied. And just like in a mystery novel, he had returned to the scene of the crime, then run away when he saw the police. We told Doyel no. We’d still rather lose the case than give it away. The day before trial, Sheriff Hays Mills called from Vicksburg. He was on his way back. We could count on him. The next time I saw him, he was smooching with his wife outside the courtroom.
Al’s strategy of waiving opening worked far better than even he had imagined. When Judge Smith asked, “Who will open for the government?” Al said quietly, as if it was perfectly normal, “We’ll waive, Your Honor.” Al had told the judge’s clerk what he would do ahead of time, so the judge acted as if waivers were routine. “You may now open for the defense, Mr. Doyel.” Caught whispering to a law student, Doyel had not heard him. The judge repeated himself, this time considerably louder. Doyel lost his cool and sounded nothing like an attorney. “What?” he said. “You may open for the defense,” the judge intoned. Doyel stuttered, “But what about the government?” Judge Smith smiled slightly. “They’ve waived. It’s your turn, Mr. Doyel.” “I—I—I’m not ready,” he stammered. Recovering himself a little, he added, “Can we reserve our opening till we start our own case? That’s what they do in most courts.” Judge Smith did not like the implication. “This is my court, Mr. Doyel, and I’ve found it is unwise to let the defense hear the prosecutor’s evidence before they say what their proof will be.”
Coming from Judge Smith, usually so mild-mannered and evenhanded, that was pretty strong and subtly damaging to Doyel, suggesting fabricated testimony. I wondered if it would be error on appeal. The jurors looked puzzled. After several speechless seconds, Doyel asked for a recess. Judge Smith said, “I’m reluctant to start a trial with a recess, but if you feel you really need it to get organized the court will grant it. Everyone be back in your places in fifteen minutes.” Judge Smith whacked his gavel hard on the bench, also unusual for him.
After the recess Doyel made one of the most nervous, evasive, slippery sounding openings I’d ever heard. Our proof then went beautifully. Every witness was better than they’d been in interviews. The cross-examinations went nowhere, often making the witnesses stronger and more determined by challenging them. We put on only Shaw’s first two statements, where he denied firing his gun. Then we put on the agents who said they smelled the odor of fresh-burned gunpowder when they seized his gun. We ended with our expert from t
he Reagan case saying Shaw’s gun absolutely fired the fatal bullet that killed Terrell and lodged in Lachelle’s hip.
Doyel had opened for the defense by admitting Shaw was guilty of Count One and asked the jury to find him guilty of that. He followed up with a little trick. He called Jerry Marsh to testify to Shaw’s last interview, the one where he finally admitted he had fired the bullet that hit the car and the children. We objected that under the circumstances Shaw’s exculpatory out-of-court statement to the FBI was hearsay. If they wanted the jury to hear that story, they would have to put Shaw on the stand and let him tell the jury that himself. Judge Smith agreed, sustaining our hearsay objection. Doyel was boxed in. No way he wanted the sinister-looking Shaw testifying. To stall, he then put on some people who’d been with Shaw that night to testify that he was not violent when they were with him. But they still had to admit he was very drunk.
His female cousin and a friend had asked him to take them home after visiting several clubs. Those witnesses also admitted that although he was a convicted felon forbidden to have a gun, he carried a rifle and hunted illegally all the time with the very gun that killed Terrell Johnson. The girls also had to admit Shaw was angry when they left him because his cousin’s girl friend would not go drinking with him any further that night. In the middle of trial, it suddenly occurred to Al and me that the volatile Shaw might well have been so drunk and angry about being rejected that he just shot the first car that came along.
After exploring every other option and calling several witnesses who clearly had little to offer, Doyel finally bit the bullet and reluctantly called his client to the stand. Shaw had a lean, haunted look. His shoulder-length hair was dirty and uncombed. His clothes hung loose on his lanky body. He had a vacant stare and never looked the jurors in the eye. Doyel made the mistake of asking him first about his two prior rape convictions, stressing that they were not for murder and did not involve firearms, which opened the door for me to ask on cross what weapons he had used and to make Shaw speak the words “carpet knives.” Doyel got through his direct very quickly as if to avoid his client slipping up on anything.
From Midnight to Guntown Page 41