Innocent Victims

by Whisnant, Scott;

  “I hope they call her, because we damn sure won’t,” Richardson told Nelligar as they drove off. “Lord knows what she’d say up there.”

  “That’s a loose cannon you wouldn’t want up there on your watch.”

  Nelligar had already talked to Jack Watts about the same subject. Both sides would be crazy, Watts had said, to put the baby-sitter on the stand.

  But Richardson checked out Julie’s boyfriend anyway, just in case. He went to Little Rock, Arkansas, to confront Brad Bokkean at his Air Force dorm room. Brad said he hadn’t been the only guy Julie took to the Eastburns’. He’d left Summer Hill by April, he said. Richardson recognized that at five-foot-five with brown hair, long in the back, this boy definitely was not the man Patrick Cone saw.

  All Richardson got out of the trip was a comment that Julie had made to Brad. She’d told him the state had a witness who would “blow Hennis out of the water.” Richardson had Nelligar spend the rest of his investigation trying to find who that might be.

  Beaver tried to find out through a routine discovery motion. He asked VanStory for a list of all witnesses who’d seen a tall, blond man around May 9 on Summer Hill Road. One name on the list, Margaret Tillison, was new to the defense.

  Margaret Tillison had been particularly disturbed by the Eastburn murders. In the weeks after the bodies were found, the middle-aged woman asked her mother to stay with her during the day while her husband worked. Margaret didn’t hide her relief when Hennis was arrested or her dismay when Cone wobbled.

  On the afternoon of May 9, Summer Hill was still a safe place for Mrs. Tillison to make corn bread alone at home. About 11:30 A.M., she ran out of cornmeal and jumped in her car to go to Winn-Dixie. On the way out, she saw a small white car parked in a cul-de-sac across from the Eastburns’.

  Her first reaction was that her son had parked there for some reason. Mrs. Tillison slowed down to say something, but realized it wasn’t her son. A blond-haired man with a mustache and a red T-shirt, hair parted to one side, had poked his head out the window. He was still there when she returned from the store.

  After VanStory handed over her name, Richardson talked to her and decided she couldn’t hurt his case. Margaret Tillison couldn’t say the man was Hennis, and Hennis was not allowed to wear a red T-shirt on base. He showed her a picture of Tommy Presley, Julie’s half-brother, and a startled Mrs. Tillison allowed that could’ve been who she saw. Then she backed away from that, saying she knew Presley as a child and he wouldn’t be involved in something so bad. Richardson didn’t care who she thought it was. Whatever she had seen, it had taken her nearly a year to report it.

  Beaver and Richardson also learned of one other witness who’d been interviewed. The state had turned the investigation back to the house and the one witness who had been there during the murders.

  Jana Eastburn had learned to talk. In December and again in February, detectives asked Gary Eastburn if they could have someone interview her and, reluctantly, he agreed. Anything to help with the case.

  Dr. Helen Brantley in Chapel Hill conducted five videotaped interviews, armed with five 8 × 10 color photographs, including one of Tim Hennis. Dr. Brantley asked Jana, now two and a half, where her mother was, and the child said, “Mommy’s at work.” At a later interview, she showed Jana pictures of her mother and sisters, and Jana wiped her eyes and kissed the picture of her mother. Dr. Brantley tried to get Jana to talk about her family, but she couldn’t.

  The doctor then showed her the 8 × 10 photographs. To the second one, Jana said, “I don’t like him.” To the fourth, she said, “He has little eyes.” She didn’t appear to recognize anyone.

  Jana reviewed pictures of the house at the third interview and became upset and agitated. At one point she ran to a corner of the room, pulled a bean bag chair over her, and said, “Hide from the burglar so he doesn’t get us.” She talked about hiding in bed and pulling covers over her. “He’s going to come get me,” she told the doctor.

  The next day, Jana, still upset from the interview the previous day, looked at the photographs of the suspects again. She growled at the second picture.

  At the last interview, Dr. Brantley asked Jana to put together her memories of May 9 and shouted to jog her memory. Jana recalled hearing loud noises from Erin’s bed—the room where Kara was killed. Then she heard a voice:

  “Shh, be quiet. I can’t kill anymore.”

  Jana then said, “Mommy’s all gone.”

  Dr. Brantley concluded that either her mother or one of her sisters walked into Jana’s room during the mayhem and told her to “Be quiet. Hide from the burglar.” Her inability to remember anything her mother said suggested that either Katie Eastburn was killed quickly, that Katie tried not to awaken her baby daughter, or that whatever Jana heard was too terrible to recall.

  Dr. Brantley put a stop to the interviews.

  Jana’s identification of the pictures proved useless. The doctor admitted she had gotten the order confused during the interviews and couldn’t remember which ones Jana picked. Dr. Brantley, who did not know which photograph was Tim Hennis, said Jana had not picked the same photograph all three times.

  The trial was set for May 27, 1986, more than a year after the murders. Beaver thought about asking for a change of venue outside Cumberland County and even paid for a phone survey of 100 registered voters to get an idea of the community’s attitude toward his client.

  Ninety-six had heard of the Hennis case, probably more than could remember who shot Kennedy. Sixty of them said there was a good chance pretrial publicity would influence the case, but only 35 said that pretrial publicity had hurt Hennis. Eighty-two said they had no opinion on Hennis’s guilt or innocence.

  Beaver decided those numbers didn’t merit moving the case. He kept it in Fayetteville as a bargaining chip for other trial favors, such as the right to question jurors individually on their feelings about the death penalty.

  His next decision was whether to let his client get on the witness stand.

  The first impulse for a lawyer in such a case is: “Of course he takes the stand.” But Beaver wasn’t sure this time. He likened Hennis’s appearance to a storm trooper.

  “I’d been interviewing him day after day after day, telling him to do something as simple as change his appearance in the courtroom, not slouch, not snarl, not look angry, and not look haughty,” Beaver recalled. “He couldn’t follow that direction. If he couldn’t follow that, how could I figure out what in the world to do with him on the witness stand?”

  While out on bond, Hennis controlled himself at work and in his everyday affairs. Being out on bond was enjoyable. No one gave him a hard time and some strangers even gave him a thumbs-up sign at stoplights. His bond restrictions caused only minor annoyances. When Angela went to visit her Aunt Ruth barely two miles into the next county, Hennis had to stay home. He once drove toward Raeford to have his car worked on and had to whip out a map to make sure he wasn’t crossing the line. The garage was a half mile inside the county. He always kept a look over his shoulder, expecting a cop to be following him around, waiting for him to jump bail. But he never saw one.

  But controlling himself in the courtroom would be another matter. Hennis knew William VanStory IV would get to him. “We knew who would be cross-examining me,” he said, “and I damn sure would’ve come out of the chair at him. VanStory probably would have said something to me that I would’ve taken wrong, and I probably would have come right out of that chair, over the top and come swinging at him. Without a doubt I’d have tried it, he’d have pissed me off and the cops wouldn’t have gotten there fast enough. It was better I didn’t testify.

  “He was just waiting, like a hungry lion looking at a zookeeper waiting for meat to be thrown over the cage.”

  Beaver told Tim and Angela they could win anyway. “Just be cautiously optimistic,” he told them. The phrase amused them. Cautiously optimistic. Tim Hennis didn’t think he needed to testify.

  In early May, the lawyer
s and the family plotted final strategy. All agreed that the physical evidence would carry them, along with Cone’s inability to stick to a consistent story.

  A conflict arose over what to do with the vans, neighborhood voices, Hennis look-alikes, and Julie. Richardson wanted to throw it all out there and see if the jury chased it. Put Charlotte Kirby, the newspaper carrier, on the stand, he said, and see if she’d say more than she’d been saying. Bob wanted the MacDonald connection brought up.

  Beaver wouldn’t have any of it. “We don’t know what they’ve got,” he said. What if the defense threw out a rabbit and the state had an answer? What if the state could explain the van Charlotte Kirby saw? The one thing the lawyers couldn’t do was pretend they knew who did this, Beaver said. They didn’t know, and the jurors would resent them for it.

  A week before the trial started, Beaver walked into Courtroom 3C and learned a little about the state’s strategy. A viewing screen had been nailed to the wall across from the jury box, as if someone expected to watch a drive-in movie in court. A county work crew had built it above a row of chairs, stretching 5½ feet high until it reached the ceiling and 13½ feet across. Judge E. Lynn Johnson had approved its construction without consulting the defense.

  Beaver had no doubt how it would be used. He hadn’t thought the state of North Carolina would go that far.

  Chapter Eighteen

  Tim Hennis climbed out of his father’s car on May 27, 1986, and glanced up at the Cumberland County courthouse, the same building he could see from the county jail. Over the next six weeks, a group of 12 strangers would decide if he should live. Tim was unusually nervous. The same man who told his arresting officers “I hope you guys know what you’re doing,” suddenly couldn’t get his fingers to tie the knot of his necktie.

  “Dad, can you help me with this?”

  Bob Hennis put his hands on his son’s chest and worked the tie through a half-Windsor knot, just like the one he’d tied every day for 30 years at IBM.

  “Looks good, Tim,” Marylou said.

  Then he went inside to face trial for three murders and a rape.

  Jury pool members filled the 12 pews in Courtroom 3C, a bland, functional room with rust-colored ducts rimming the ceiling, a raised judge’s chair in the middle, a jury box to the left and, for this case, a movie screen hammered to the right wall. Hennis sat beside his lawyers underneath that screen.

  The defense lawyers were uneasy, afraid of what might go wrong this time.

  “When’s it gonna hit?” Beaver asked Carlin. The investigator grinned. Let Jerry Beaver try to guess what we’ve come up with. Beaver had caused an awful furor when he didn’t get inside the house when he wanted and humiliated the DA’s office with that affidavit he got Cone to sign. Beaver would get no breaks from the state just before trial.

  Judge Johnson addressed the jurors as a group, asking them if they’d heard about the case. Almost all of them had, though some knew fewer specifics than they thought. Odell Autry, who would eventually be seated as juror number six, stood at a men’s room urinal during a break and struck up a conversation with the man next to him.

  “Man, I sure hate being in here today,” Autry said.

  “You think you hate it?” the man said.

  When court resumed, Autry saw the man sitting at the defense table beside his lawyers.

  The jury pool was told the case could take six weeks. VanStory explained that there could be two trials—if Hennis was found guilty, the same jury would hear evidence again and deliberate on whether he should receive a death verdict.

  Judge Johnson sent the group to another room and had the jurors brought in one by one to answer the lawyers’ questions that probed their personal feelings about the death penalty. “Where do you go to church? What do you do in your spare time? Are you capable of pronouncing a death verdict in open court? Can you look at photos of maimed children? What magazines do you subscribe to?”

  One woman cried when she talked about the death penalty. She was excused by the judge.

  Picking a jury is often as important to the lawyers as the case itself. VanStory followed the standard prosecution strategy, accepting as many conservative, death-oriented jurors as he could.

  Usually a defense lawyer doesn’t keep anyone associated with law enforcement. A lawyer’s second rule is to trust his instincts. Beaver and Richardson had laughed at defense attorney Bernie Segal, who had hired a Duke psychology professor to determine an “ideal juror” profile for Jeffrey MacDonald’s trial. Six weeks later, a former highway patrolman stood up as foreman and stoically read guilty verdicts, a dry-eyed tower among weeping jurors.

  But Beaver and Richardson didn’t learn from the past. They went against their instincts and sought “ideal jurors”—ones with military affiliations who would believe the Army witnesses and ones with scientific backgrounds who’d understand physical evidence.

  Judge Johnson allowed Hennis and his family to meet with the lawyers in an empty judge’s chambers to discuss jurors in private, a decision that VanStory protested. He’d never known a defendant who was allowed to meet in private for jury selection.

  The Hennis family and the lawyers agreed that if someone had a deep enough objection, the juror had to go. But some compromises would have to be made because each side could excuse only 12 jurors.

  “I’m not worried about the death penalty,” Hennis said. “I’d rather get death, because I’ll get a better appeal. Just worry about getting me acquitted.”

  After a tedious two weeks, they agreed on seven men and five women. Among them were:

  •A forestry division enforcement officer who had served in the 82nd Airborne Division in Vietnam and would know about CQ duty. He fit the military profile, but their instincts warned them against him. The juror’s brother once had a fox-hunting dog caught in a steel trap and VanStory had prosecuted the culprit. A friend of the juror’s had been murdered after being forced to watch a little girl get raped. The juror read hunting and country music magazines. VanStory couldn’t pass him fast enough and watched in amazement as the defense did the same.

  •A man who worked in textile product development and did fiber and chemical analysis. The defense gambled that his ability to relate to Stombaugh would outweigh the fact that his stepson was a sheriff’s deputy.

  •A young woman who worked at the Veterans Administration Medical Center, where she drew blood from patients and ran tests on it. The defense thought she’d grasp the state’s failure to link Hennis’s blood and semen to the crime scene.

  •A secretary whose son had been charged with armed robbery by VanStory’s office. Little did the defense know that the woman was having her son involuntarily committed during jury selection.

  •Two housewives and an unemployed woman, three people whom prosecutors feared would be too naive to think that a well-dressed Army sergeant could have committed such brutal crimes. Prosecutors worried that these jurors would believe the court system as they saw it in TV shows, where the defendant just as often as not had been wrongly accused. They prefer jurors who make decisions at responsible jobs.

  One of the housewives subscribed to a nutrition letter, giving her a common interest with Katie Eastburn. She also watched soap operas and read Harlequin romance novels. Another one’s uncle had been convicted of murder when she was in third grade and her schoolmates had teased her about it. The uncle later died in prison.

  •The other jurors were a machine operator at Black & Decker, a motorcycle mechanic, the owner of an aviation business, and a draftsman of electrical and mechanical plans.

  Toward the end, Beaver and Richardson had to decide what to do with Alexander Thomas, a corrections officer at a prison hospital. VanStory had gladly passed Thomas. The defense panel, which had used nearly all of its allotted 12 juror challenges, was stumped.

  “If we pick him, he’ll wind up as foreman,” Beaver told the group. “You know that, don’t you?”

  Thomas had been a first sergeant in the Army and
served six years at Fort Bragg during Vietnam. He’d presided in 15 court-martials. He’d know it was nearly impossible to leave CQ duty for an hour on a Friday night. Tim Hennis particularly liked him. After a long debate, Alexander Thomas was chosen. Both sides agreed on three alternates and the jury was seated.

  The murder trial of Tim Hennis was the only show in town. School had been out for about a week and not much was going on at the base. It was too hot. Because Fayetteville lies next to a swamp, the city is subject to fog and, in the dead of summer, shirt-soaking humidity. Between thunderstorms, Fayetteville summers are as hot as any in the South, an oppressive heat that clings like a wet blanket. Friday, June 13, the first day of testimony, was one of those days. The newspaper reported that the high of 91 degrees felt much like the 104 of the day before.

  Sitting in his chair, hands folded at his chin, Judge Johnson towered over the courtroom crowd. He was a no-nonsense judge, not given to dramatic, gavel-banging speeches. The tall, thin man gave orders in a soft but firm voice, though he would make an occasional quip from the bench. He was insistent that the biggest trial of his career would not become a circus. Judge Johnson had orders posted on the courtroom walls for the crowds he expected once testimony began. He reserved seats for the press and the Hennis and Eastburn families. Spectators filled the rest of the room until there were no more seats. Then the doors closed with no one allowed to leave until a break. All 125 seats in Courtroom 3C were taken, an attendance figure that held steady throughout the trial.

  “Bring in the jury, please,” Judge Johnson said.

  VanStory stood up for his opening argument, taking the jurors on a tour down Summer Hill Road to a house up on a knoll.

  “If you visited that house in early May of 1985, at least in the first week, you’d have probably pulled up in the driveway, walked through a carport into the side door. Upon entering the house, you would have passed a little laundry room on the right, and you would have walked into a kitchen and a den combination.