Don't Tell a Soul

by M. William Phelps

  * * *

  Kim’s mother sat in the witness stand and did what she could to try and put a sparkle on her daughter’s image. She tried to explain why her daughter was the way she was, but it all felt desperate and scripted. Forced. Kim Cargill was a psychopath and, unfortunately, no matter what anybody said or how many stories doctors and family members told of her days struggling with depression and feeling unwanted, her medication changing her, there was nothing anybody could say or do to file down those figurative horns protruding from the top of her head.

  Kim’s ex-husbands and ex-boyfriends, and even her own children, told story after story of her abusing them, lying to them, manipulating them, threatening them and making their lives a living hell. The woman destroyed lives as routinely as washing clothes or taking a walk. It meant nothing to her to hurt someone, physically or emotionally—and the people around Kim Cargill were at the constant receiving end of her torment.

  The state, staying true to the thoroughness it had displayed with utter authority during the guilt portion of the trial, spent a week providing witnesses—doctors and neighbors and family members—all of whom described Kim as a person who cared only about herself and her selfish needs.

  * * *

  All of this testimony contrasted with Rueon Walker’s positive stories. She spoke of being a stepmother who presided over a family that was grieving and missing a gentle soul, who was the most special person they had ever known. Contrary to what some might have thought, Rueon made it clear that they were not asking themselves why Kim Cargill took Cherry’s life. The proverbial “why people kill” being at the forefront of trials and true-crime talk. Instead, they had come to the stark and pious realization that Cherry’s death was part of a greater plan.

  Acceptance has a way of allowing forgiveness to enter the soul.

  * * *

  Brent Harrison gave an impassioned opening on May 28. The task of trying to save Kim Cargill’s life was as tough a job as he was ever going to face. Harrison and Haas called several defense witnesses, mostly doctors who had treated Kim Cargill for her personality disorders. The collective claim was that a change in her medications throughout the years might have caused a psychotic break. It was a last-ditch effort on the defense’s part to save their client’s life.

  What else, really, could they do?

  * * *

  By May 31, 2012, after closing arguments, the jury was dismissed into deliberations, clearly not looking forward to the duty at hand. Everyone looking on could feel the weight the jury carried with them as they exited the courtroom.

  Late into that same day the jury presented a question to the court, which offered some insight as to where they were: What are our options or what happens if we cannot decide?

  The court indicated it could not give any further instructions.

  Making it obvious they were taking their responsibility seriously, jurors went back to the table.

  Deliberations went on into the night.

  By 9:00 P.M., the jury indicated it had come to a decision.

  One of the questions the jury faced while deliberating Kim Cargill’s fate put the entire case into perspective: Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background and the personal moral culpability of the defendant, is there . . . sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

  This type of question, which the jury could deliberate on, made their decision a bit easier than a life-or-death verdict. It put into context how they should view their decision and took, for the most part, morality out of the equation.

  As it was read into open court, the jury’s mutual answer shocked just about everyone: “‘We, the jury, unanimously find and determine that the answer to this Special Issue Number 2 is no.’”

  Thus, after two years of intense preparation on both sides, four weeks of jury selection, eighteen days of courtroom testimony, with that decision Kim Cargill became the first woman to face execution and begin what was left of her life on death row in the state of Texas since 2005. She was only the fourth female since 1863 to face such dire circumstances.

  As a formality an appeal was filed in the days after the verdict.

  It was finally over.

  * * *

  In a direct statement to Kim Cargill while on the stand talking about Cherry’s life, Rueon Walker summed up, perhaps, what mattered more than anything else to the Walker family. With great humility and a sincere appearance, Rueon stared at Kim Cargill, who had no reaction and showed zero emotion as Rueon spoke: “Mrs. Cargill . . . Cherry loved you. She did not deserve the terrible thing you did to her.” Rueon let Kim know that Cherry’s father, Gethry, did not hate her, contrary to what maybe many had presumed.

  “We have to accept what God has allowed,” Rueon concluded. “He allowed this to happen for a reason.... We don’t hate you because we’re not made out of hate. We only have love and pity and compassion for you.”

  EPILOGUE

  I WROTE TO KIM CARGILL and her mother. Neither responded. Instead, I heard from Kim’s appellate lawyers that Kim and Rachel were not interested in speaking to me until the case was completely adjudicated and I understood that they all believe Kim Cargill is innocent. These were the same two lawyers who had prepared that Initial Application habeas corpus document I quoted throughout this book.

  Every convicted murderer I have spoken to believes that he or she will win his or her appeal.

  It never happens.

  Kim Cargill’s new lawyers, along with Kim and her mom, I was told, were not at all interested in talking to me unless I bought into the argument that Dr. Lann totally botched this case. They claimed to me that there was plenty of evidence pointing to the fact that Cherry Walker died of a seizure, but that attorneys Harrison and Haas did not present all of it during trial and, in turn, acted as incompetent counsel for Kim Cargill. In addition, one of Kim’s new lawyers insulted me and my career as a journalist, noting on the phone during a call (with a scathing, how-dare-you tone in his voice) something to the effect of, “I’ve seen you on TV. . . . I saw your website. . . . I know about those crime shows and what you do.” He mentioned Snapped in particular—an episode dealing with Kim Cargill, of which I was not a part. The implication was that I had made up my mind about Kim Cargill going in, without knowing all of the facts, and wasn’t interested in changing my mind. This is common when dealing with appellate attorneys, save for a few I have met and have come to respect greatly.

  After spending a year on this book, studying every piece of available information, I would be in denial of the obvious if I came to the conclusion that Kim Cargill did not murder Cherry Walker. It is so obvious based on the evidence; to overlook this is tragic.

  When I asked her appellate lawyers for accompanying documents cited in the Initial Application, one of them e-mailed me, explaining that I could find those documents at the courthouse: We are hoping you will write a book that argues for Ms. Cargill’s innocence.

  That story—of Kim Cargill’s innocence—does not exist, I’m afraid. To quote a phrase Wally Lamb drew on as the title of one of his novels: “I Know This Much Is True.”

  As I wound down my interviews and research for this project, I sent an e-mail to Kim’s new lawyers, letting them know that if she or her mom wanted their voices heard, they had two weeks to respond. It had been months since my first request. A journalist writing a book has to put a deadline on closing out interviews. I do it with all my books.

  I never heard from them.

  * * *

  Kim’s new lawyers found an expert (in Ohio) that agrees with her argument of Cherry having a seizure and dying from it on that Friday night in June 2010. Not some hack, paid to testify to what you ask him to, mind you, but rather a bona fide expert in his field. Dr. Samden Lhatoo is the director of the Epilepsy Center in the Department of Neurology at University Hosp
itals Cleveland Medical Center. His credentials are impressive; his résumé is stellar. He is respected and knows his business of epilepsy. His conclusions and reputation were put to the test when he was summoned to testify for Kim during her habeas hearing based on that Initial Application.

  I will say up front that I don’t see how a second, thorough examination of Cherry Walker’s supposed “condition,” or how she died, could be done without exhuming her body.

  That’s number one.

  Number two, in Lhatoo’s twenty-three-page report, dated August 14, 2014, he says that Cherry’s “death was sudden” and had been “unexpected” and there was a witness to it.

  All salient facts.

  But the credibility of that witness is not discussed in the document Lhatoo generated to support his claims. In fact, that witness is a convicted murderer sentenced to death.

  Not the best witness to substantiate facts.

  When she died, Cherry was in what Lhatoo called a “prone position,” as are a “majority” of the victims he’s studied that ultimately died from SUDEP, a rare condition Lhatoo defines as follows: [It is] sudden unexpected, witnessed or unwitnessed non-traumatic and non-drowning death in a patient with epilepsy with or without evidence of seizure....

  The Epilepsy Foundation website describes SUDEP more pointedly: Sudden Unexpected Death in Epilepsy, [a condition wherein] a person with epilepsy dies unexpectedly and was previously in their usual state of health.

  Dr. Lhatoo attacked the autopsy conclusion Dr. Lann had come to as a matter of Lann taking most of the facts at face value. He said there was “possible evidence of seizure” that was missed at autopsy: Even if we were to discount the evidence of the defendant. He added, The postmortem examination did not reveal a toxicological or anatomical cause of death.

  Thus, Lhatoo’s report noted, in the absence of an identifiable toxicological or anatomical cause of death, Cherry Walker’s death is likely to have been a SUDEP death.

  Lhatoo claims the most likely age of the SUDEP death is a person between twenty and forty years of age. He also said in his report that between three thousand and five thousand people a year die from SUDEP. He even explained how George Washington’s daughter had died from SUDEP, as provided by Washington’s explanation of what happened to her in his presence, adding how SUDEP is not a “new phenomenon” and it is “widely accepted.”

  The Epilepsy Foundation’s website states: Each year, more than 1 out of 1,000 people with epilepsy die from SUDEP. However, it occurs more frequently in people with epilepsy whose seizures are poorly controlled.

  This contradicts the facts in Cherry’s case. What’s more, as the Epilepsy Foundation further states, the person found dead from SUDEP is often “in bed and doesn’t appear to have had a convulsive seizure.” One third of SUDEP victims exhibit evidence of a “seizure close to the time of death.” Those victims are frequently found lying facedown.

  The cause of SUDEP is still unknown: Some researchers think that a seizure causes an irregular heart rhythm. More recent studies have suggested that the person may suffocate from impaired breathing, fluid in the lungs, and being [facedown] on the bedding.

  Again, all of this is in total contrast to the autopsy results, toxicology and how Cherry was alleged to have had a seizure (according to pathological liar Kim Cargill).

  Lhatoo then went on to attack the homicidal violence conclusion by Lann, saying the “minor” injuries she described were “insufficient” to be categorized as “cause of death.” In contrast, he said, the injuries described were “consistent with circumstantial evidence of a seizure,” where a person’s “biting the tongue, lip or cheek is a common occurrence.”

  Dr. Richard Ulrich, who had treated Cherry, was called as a state witness during Kim Cargill’s trial and he talked about SUDEP under cross-examination from Kim Cargill’s attorney, Jeff Haas. SUDEP was clearly outlined in the trial for jurors and they rejected it.

  In the end, after arguing his case for seven pages, Dr. Lhatoo concluded that “based” on his review of “all the materials provided” to him: I am under the opinion that Cherry Walker’s death is likely to have been a SUDEP death. He went on to say that had he been contacted by her former attorneys: I would have been able to testify consistent with this report.

  Of the twenty-three pages in his report, seven focused on the doctor’s argument; the remaining sixteen consisted of his curriculum vitae.

  * * *

  In October 2014, Kim Cargill’s appellate lawyers, Derek VerHagen and Brad Levenson, from the Office of Capital Writs, went public with their Initial Application and claimed to have “new evidence” in their client’s case (mainly, Lhatoo’s conclusions). They also claimed that Kim’s attorneys at trial knew about Lhatoo and should have put him up on the stand, with Brad Levenson calling Lhatoo a “nationally renowned expert” on epilepsy. The idea was that Haas and Harrison put Cargill on the stand to explain what happened to Cherry in her presence, but they did not support her admission/Cherry’s death narrative of that seizure with an expert.

  Matt Bingham said in a statement responding to the Initial Application: Kim Cargill was convicted by a Smith County jury of Capital Murder and sentenced to death based on the overwhelming evidence, including DNA evidence, as well as her own admissions regarding her dumping and setting the body of the mentally retarded victim on fire in order to destroy evidence. Bingham went on to note that Cargill had been “afforded every right under the law to which she is entitled,” and would continue to be under the appellate process. Bingham praised Judge Skeen. The facts at trial showed the extreme brutality and heinous nature of this crime and what Kim Cargill is capable of doing to another human being, Bingham concluded.

  Levenson and VerHagen maintained that their client had what they termed “ineffective trial attorneys” and argued for her writ of habeas to warrant a new hearing on the matter.

  As of this writing, the matter has still not been decided. (Please Google this after reading the book to see if a final decision has been made.)

  * * *

  In November 2014, however, the highest criminal court in Texas denied Kim Cargill’s automatic trial appeal (separate from the habeas) and upheld the jury’s decision and sentencing. In that appeal the legal team for Kim Cargill argued to the Texas Court of Criminal Appeals that the evidence against Kim was “insufficient to justify a capital murder charge.” It maintained: [Skeen] improperly allowed testimony about how she acted enraged and screamed during phone calls to state child welfare officials and about how she had choked her two children and her mother.

  Tacked onto this appeal was an accusation that her trial attorneys did not do a sufficient job of defending her and did not call expert witnesses that could have helped explain several important factors to the jury.

  Kim Cargill remains on death row at Mountain View Unit in Gatesville, Texas. No execution date has been scheduled, as of this writing.

  She can still appeal to the Supreme Court of the United States, if she can find a lawyer to take on such a monumental task.

  * * *

  Experts on both sides can argue about the specifics and science of seizures, while medical examiners can weigh in on what they believe happened to a particular individual and how the science backed up their opinions. But in this case a jury weighed all of those opinions, heard the science, all under the careful tutelage and watchful legal eye of a competent judge, and found Kim Cargill guilty.

  For me, personally, I have to believe there is a bit of truth in every lie. If we apply that theory to Kim Cargill’s story, when considering what happened to Cherry Walker, I ask myself one question. Could Cherry have had a seizure while Kim was strangling her to death? In my opinion that is exactly what happened.

  There is one major factor that all of Kim Cargill’s supporters, I feel, either entirely missed or consciously overlooked. Kids don’t lie about the things Kim Cargill’s children admitted to have happened to them throughout the years. They don’t make up
those types of stories. In addition, each of the kids’ separate stories back each other up. Do these truths of abuse make Kim Cargill a killer? No, of course not. But it does, without a doubt, show by example what she is capable of and how far she is willing to take matters—even where her own children are involved. There is no doubt, based on those abuse stories alone, that Kim Cargill is a cold, callous, vindictive, violent sociopath, who is capable of the worst crime imaginable.

  * * *

  I could have included a dozen additional stories exemplifying Kim Cargill’s psychotic, abusive behavior toward her husbands, boyfriends and children. However, room in the manuscript and redundancy stopped me from going further than the samples I chose to use.

  I wish to conclude where I started—with Cherry Walker. By all the accounts I read and those individuals I spoke to about Cherry, she was one of those people others viewed, as Gethry would later put it, within a prism of unconditional love—someone to whom we could all look and learn so much about ourselves.

  Where Kim Cargill is concerned, one could speculate that she and Cherry were polar opposites: one representing every good thing that makes the human soul what it is (the light); the other representing the true madness and evil within the human soul (the dark). One would, I assume, bring out the best and the worst in the other.

  ACKNOWLEDGMENTS

  There is really only one person to thank for this book: Donna Dudek, a producer from Jupiter Entertainment, a great friend who sent me an e-mail long ago to the tune of, Phelps, you have to do a book on Kim Cargill. She outlined just a small fraction of Kim Cargill’s extraordinary life of crime—the pain she caused everyone around her—and the ultimate crime of murder she committed. I looked into it. I was hooked from the first few moments I began to learn about Cherry Walker’s life. I felt Cherry needed a voice. I felt Kim Cargill needed to be exposed for the monster she is, despite fooling two new lawyers and others in her life. Without Donna’s help and encouragement I could not have written this book.