Don't Tell a Soul

by M. William Phelps

Throughout the day Matt Bingham caught Kim Cargill in one lie after the next. Kim must have lost track of how many lies she had told. She just couldn’t keep track of them all. At one point Bingham wanted Kim to talk about dumping Cherry’s body, adding, “So you pull her out. And how do you get her away from your car?”

  “I just pulled her with her arm.”

  “Right. So you [dragged] her basically?”

  “For about a foot, yes.”

  “About a foot? So how does it feel to reach down and put your hands under the arms of Cherry Walker and pull her a foot, knowing that you’re fixing to put lighter fluid on her body and set her on fire? How do you do that?”

  “I don’t know, but I did.”

  “I mean, what kind of person does that?”

  “A desperate person.”

  “Desperate for what?”

  “To not be blamed.”

  “To hide evidence, right?”

  “Yes.”

  “So you pull her a foot. And when do you realize that you have the lighter fluid in your car?”

  “When I’m driving around, trying to figure out what to do.”

  “And you think, ‘Good. I don’t have to stop. I’ve got lighter fluid in my car,’ right?”

  “Well, yes.”

  “Yeah. And you got matches in there?”

  “I had some in my purse.”

  “Okay. Why do you have matches in your purse?”

  “I . . . I . . . always have . . . ,” Kim said, stumbling through her answer, finally saying, “I pick up matches when I go to restaurants or different places,” as if an answer suddenly came to her.

  “Okay. You don’t smoke, do you?”

  “No.”

  Bingham then asked Kim to explain every detail she could with regard to lighting Cherry on fire and fleeing the scene. At times Bingham would ask the judge to remove the jury so they could discuss something the defendant had said that contradicted the record. In other words, Bingham would catch her lying. He’d call up the transcript, or a transcript from a hearing or interview with one of her kids, and read from it. Then she would be hit with an epiphany—“Oh, geez, that’s right. . . . How silly of me to confuse things.”

  The judge would call the jury back into the courtroom and correct the record. Bingham would prove once again that Kim was not to be trusted because she was a pathological liar. Kim Cargill was trying anything and everything she could to save herself from a date with death.

  69

  BINGHAM COULD HAVE PROBABLY questioned Kim Cargill for a week and would have gotten her to crack eventually. But he didn’t have the time frame to do that. She’d done a fair job over the course of a day showing jurors that she not only had an answer for everything, but she was not going to admit to murdering Cherry Walker. She adamantly—and despite illogical appearances—stood behind the lie of Cherry having a deadly seizure in front of her.

  On May 16, 2012, Bingham finished his cross-examination of Kim Cargill during the morning session. Brent Harrison called his second witness, Detective James Riggle.

  * * *

  Harrison focused on Riggle’s visit to Cherry Walker’s apartment after she had been found on the side of the road. It was a transparent attempt to make something out of nothing. Harrison asked Riggle how he got into the apartment.

  “A key,” the cop said.

  Harrison then encouraged Riggle to explain what the apartment looked like.

  “Fairly neat,” Riggle opined.

  Harrison moved on to a “pill organizer” Riggle found inside Cherry’s apartment, plastic multicompartment container with the days of the week stamped on the top of each lid. Harrison wanted to know if there were still meds inside any of the sections. As Riggle began to say there was no way for him to know the answer to that question, that they had collected the container as evidence, Harrison moved on to another topic and then indicated he was done.

  Riggle’s testimony lasted all of five minutes.

  * * *

  Harrison called two more witnesses, who added no strength to Kim Cargill’s defense. For many inside the courtroom, her defense felt like a car heading for a cliff, its driver recognizing at the last moment what was about to happen and now searching for something or someone to grab hold of, but realizing, in the end, there was nothing and no one there.

  The following morning, May 17, the defense rested its case.

  The state called a few rebuttal witnesses to seal the deal, then closed its case a second time. The defense did the same, and the judge adjourned, letting everyone know that closing arguments would begin on the following morning after a few court-related matters.

  * * *

  Late in the morning of May 18, just before noon, after the judge read the charges against Kim Cargill, DA Matt Bingham stood at the lectern in front of jurors. There was a poster-size, blowup photo of Cherry Walker on an easel to his right; an American flag, framed in gold, was on the wall over his shoulder. April Sikes looked on from the state’s table, and Judge Skeen perched on his bench, listening.

  “I want to start off by telling you how much I and Mrs. Sikes, the family of Cherry Walker seated here in the front row, appreciate your service in this case,” Bingham began.

  The idea of a closing argument is to condense the highlights of your case and place an aesthetically pleasing bow on your package so jurors can understand exactly where you are coming from. Before doing that, Bingham talked through the charges the judge had read, making sure the jury understood it had choices with regard to a verdict: murder and capital murder.

  Life or death.

  As Bingham led into the state’s case, he talked about the previous night as he sat alone and wondered how he was going to fit what turned out to be “a week-and-a-half worth of testimony” into what the court wanted as no longer than an hour of closing argument. He then put the state’s case plainly. He explained that if the jury believed that Cherry Walker just happened to have a seizure on the exact day she had received a subpoena, and that the evil and madness and cruelty she endured following that was a mere coincidence: “All the talking in the world is not going to change your mind.”

  As he talked, Bingham made his points clearly and concisely—and this was one of Bingham’s greatest assets to the DAO: his ability to show how subtle evidence that exposed itself in the realm of a defendant’s lies was all that jurors needed in order to see the truth through the dust of manipulation.

  He asked jurors to take a look at Kim Cargill’s yard—they had plenty of photos to go through and study the grounds of her home—and think about how Michael Darwin had testified that he took care of her mowing and other landscaping needs, which sort of proved that her fire ant story for that lighter fluid was a lie. She never killed a fire ant in her life. She could not have cared less about fire ants or done anything else having to do with her yard. The inside of her home was a Dumpster, the outside no better, Bingham suggested. That alone indicated she lied about the lighter fluid.

  “She hasn’t done anything in her yard or house for months . . . but she has to come up with something. So she just happened to have lighter fluid and matches. And she’s the kind of person that could pull that out, pour it on the body of Cherry Walker, a sweet, mentally retarded girl, and set her on fire. She can do that. . . .”

  He then encouraged jurors to “go back” and watch the WPD video of Kim Cargill walking in and talking to that cop just hours after she admitted dumping and burning Cherry Walker. Her demeanor and how she approached that cop—“When she thought nobody was watching”—said a lot about who she was at the time Cherry Walker lay dead and burned up. This was the real Kim Cargill, nonchalantly walking into a police department, asking about her dog, how business was going, talking about Father’s Day, trying to find out how much the WPD knew at the time.

  These comments set the theme of Bingham’s closing: Look at the evidence. Don’t listen to me. Don’t listen to her. Don’t listen to her attorneys. See for yourself in the truckload o
f evidence presented during testimony. It was all there: the truth, the lies, the cunning and conniving ways of Kim Cargill and, of course, the sheer evil she was capable of.

  Another lie she got caught up in, without realizing it, was her story of pulling out of the Citadel parking lot that night. Kim Cargill said she turned left—and that was, Bingham smartly noted, the opposite direction of the hospital, a little fact she overlooked when constructing her story of Cherry dying inside her car.

  Bingham called Kim Cargill “kooky.”

  Manipulative.

  Paranoid.

  A control freak.

  Someone who didn’t give a “hoot” about Cherry Walker or anybody else.

  A woman “filled with rage.”

  A “fruit bag.”

  Someone whose life was “unraveling” at the time she committed this cruel murder.

  As Bingham listed all of the lies and stories Kim Cargill told throughout the trial, it was a wonder she didn’t slink down in her chair and try to hide underneath the table in embarrassment. But Kim Cargill, the true narcissist, sat and stared sternly at the prosecutor, shaking her head.

  Bingham reminded jurors that Dr. Meredith Lann testified that she was “absolutely sure” Cherry died of homicidal violence. Bingham did not want jurors to be fooled by any other theory. The defense had the opportunity to call rebuttal witnesses against Lann, but they had chosen not to.

  “A seizure is not a homicide,” Bingham said at one point.

  Also, Kim Cargill claimed she took Cherry out for Mexican food that night, Cherry’s favorite place to eat. Yet, Bingham said, “Why wasn’t there Mexican food in her stomach at autopsy?”

  Another lie exposed by the evidence.

  “Either you believe Dr. Lann . . . or you believe the defendant,” Bingham said. “That’s what this comes down to.”

  Bingham had a knack for making the obvious appear as devastating as it was: “Her lies are evidence of homicidal violence,” he said. Why? “I know this,” he added. “The defendant did kill Cherry Walker by homicidal violence. She was able to burn her body. And, you know, that hurt the case some, and she knows it did. She burned evidence up around [Cherry’s] head and neck.”

  Matt Bingham then thanked April Sikes for her years of work on the case and for basically putting all the pieces together. The DA concluded by stating, “I just want to end by saying this.... Don’t forget Cherry Walker. [Kim] sat in here, listened to the evidence, taking that stand, and spit her venom out and lied to you. That’s why I put that picture up. . . .” He pointed to Cherry’s photo. “I just want you to remember her.”

  * * *

  Brent Harrison stood and attacked Bingham’s version of the events, saying many of the reasons Bingham had just given were indications of how panicked Kim Cargill was on the night Cherry died, and why she decided to do what she did.

  Then Harrison brought in part of Paula Wheeler’s testimony, trying to say that it showed evidence of a woman, Kim Cargill, who was not trying to hide her anger or any of her feelings about Cherry testifying. Fundamentally speaking, if she had planned on killing Cherry, why would Kim have a conversation with Paula Wheeler such as she had? Why, moreover, Harrison posed, would she then “kill the primary witness against her” in a custody case, knowing that Paula Wheeler and the other people whom Kim spoke to that day could talk about how pissed off she was?

  “It doesn’t make any sense! It does not add up.”

  The difference, Bingham and Sikes knew, was that what Harrison had just told jurors was speculation and grandstanding. It was not evidence that jurors could wrap their minds around and take to the bank. What’s more, when jurors went back and read through her testimony, Kim had said she wasn’t angry or mad on that day—that everyone had pegged her wrong.

  Harrison called it an “anti-alibi”—Kim’s movements and the conversations she had throughout that entire day and night and what she did was in contrast with a presumed guilty woman

  After talking about how complicated the case was, as opposed to Bingham’s “simple” argument, Harrison launched into Cherry Walker’s medical history, focusing on her history of seizures.

  But if jurors believed that Kim Cargill was a pathological liar—a fact that had been unmistakably proven during the trial—they would have to take into consideration that she was lying about Cherry having a seizure, on top of a medical examiner telling them Cherry did not have a seizure and instead died of homicidal violence. If jurors looked at the case in that manner of speaking, every point Harrison made in his impassioned, intellectually stimulating and clever closing became a moot point. It did not matter. The end result would come down to the fact that Kim Cargill lied.

  To her husbands.

  To her mother.

  To her kids.

  To the court.

  Just about to everyone she ever met.

  As he talked through the case, Harrison fixated on Lann’s testimony. He read from it. Near the end of his reading, Harrison intoned, “And Dr. Lann testified that she believed there was a possible bruise inside the cheek of Cherry Walker. And she testified on cross-examination that that would be consistent with a seizure.”

  To which, Bingham—rightly so—interjected, “That’s a mischaracterization of the evidence.”

  * * *

  Judge Skeen asked jurors to “rely” on their “recollections and memory of evidence.” They could also request Lann’s transcript and have a look for themselves.

  Ending where he began, Harrison said, “Nobody wants to stand up here and say Kim Cargill’s an angel. She is not. What she did is reprehensible.” He talked of the “decisions she made after Cherry Walker’s death” and how “awful” those were. However, he pointed out, “Where is the proof that she caused the death of Cherry Walker?” In a bizarre metaphor he then encouraged jurors to be “sure” of their decision before jumping “out of that airplane.”

  * * *

  April Sikes and Jeff Haas offered their closings, both of which followed, for the most part, the same path each of their predecessors had carved before them. Each lawyer made his or her case, asked jurors to reach a verdict in his or her favor, then sat down with the understanding that arguing until the Texas sunshine came up the next morning would not sway a jury one way or another. Most jurors, everyone knew, make up their minds before the closings even begin.

  In what seemed to be no more than an hour, the jury foreman, Jeff Shaffer, declared they had reached a verdict.

  The swiftness of this jury was not a good sign for Kim Cargill.

  “‘In Cause Number 241-1510-10 verdict form, we, the jury,’” the judge read without emotion, “‘find the defendant, Kimberly Cargill, guilty of the offense of capital murder as charged in the indictment. . . .’”

  After all of the chaos and pain and conflict and violence she had caused those in her circle throughout the past twenty years, Kim Cargill had been found guilty of the worst crime the United States had on the books. She would now face the same jury during the sentencing phase, men and women who would decide whether Kim Cargill lived or died.

  Staring blankly and standing stoic and defiant, not a smidgen of emotion or a slight reaction on her face, Cargill looked at the judge as he read the verdict. It was as if Kim Cargill did not care about being found guilty of capital murder.

  70

  THE PENALTY PHASE OF A capital murder trial can become cumbersome on jurors, weighing heavily on their emotions and moral compass. Most community members serving on a capital case entering the penalty phase will say it is the hardest thing they have ever done in their lives.

  DA Matt Bingham opened on Monday, May 21, 2012, with the state’s argument for death, promising jurors his opening here would be quicker than his closing the previous week.

  In what could be called nothing short of a brilliant legal move, Bingham said right away, “Ultimately, you’re going to be asked to decide three special issues. The first one being, what is the probability that the defendant
will continue to commit criminal acts of violence that will constitute a continuing threat to society?”

  Here was Bingham at his finest, leaning on his signature form of using the law against Kim Cargill—same as he had done throughout the trial. She was a killer of the most despicable kind, a cruel and vicious sociopath who cared only about her own wants and needs. Bingham had proven that repeatedly. But none of that mattered, the DA was saying with this opening line. What mattered now was following the law and the judge’s instructions regarding determining life or death—and if you followed those rules, Bingham insisted, as a juror you had to come to one conclusion.

  Death.

  * * *

  Kim Cargill’s lawyers passed on the opportunity to give an opening at this time. A strategy of “less was more” was probably the best way to go. The defense needed to humanize Kim through testimony, not by shallow words that the jury could twist and turn into what it wanted, or overlook, or be offended by. That was all behind them now. She was guilty.

  Still, how does one put a shine on a woman who had murdered a mentally retarded person? How does a defense attorney make jurors believe that Kim Cargill, who did not value human life, deserved to live?

  * * *

  As Harrison and Haas sat and listened, one witness Bingham called on the first day of testimony was a fourth-grade teacher. She had taught one of Kim’s sons, Travis. She said Kim Cargill was the type of malicious taskmaster who, if the child got below a 96 on anything, would come into the class and ask the teacher to give the child extra work—which the teacher would always refuse to do.

  The teacher said the child came across as fearful and scared. However, after leaving Kim’s home and going to live with his dad, Travis changed, becoming much more relaxed in class, able to focus on his studies. She also mentioned seeing bruises on the child from time to time.

  Nailing the way in which Kim could change her demeanor in an instant, another teacher referred to her as “sweet as sugar one minute and mad as a hornet the next. . . .”

  These two witnesses preceded a long line of others that came in and told stories of Kim Cargill destroying lives, physically assaulting people whenever she felt like it, threatening anybody she chose, lying, cheating, screaming at her kids in public, hitting them and hiding them out from her husbands. It went on and on.