Innocent Victims

by Whisnant, Scott;

  “Then you probably would’ve seen Mrs. Kathryn Eastburn, a thirty-one-year-old mother of three, an attractive woman whose friends and loved ones called ‘Katie’ …

  “If you’d gone elsewhere in the house, you’d have seen Katie’s and Gary’s three small children. As cute as any children as you’d ever wish to see …

  “Now if you’d gone into that same house on Mother’s Day—Sunday, May 12, 1985—you’d have seen something completely and entirely different. Something so gruesome, so terrifying that the worst horror show ever portrayed on the silver screen would pale by comparison.”

  VanStory counted the numerous stab wounds each victim suffered. He walked over to the defense table and pointed at the defendant.

  “The state’s evidence in this case will tend to show the person responsible for these atrocities is sitting in this very courtroom among us. And that is the defendant in this case, Timothy Baily Hennis.”

  The jury couldn’t help but notice the hostile look on Hennis’s face.

  Richardson and Beaver had clashed over who should give their opening statement. Beaver had questioned all the jurors and it hadn’t been necessary for Richardson to say much. But because he would later present the defense case, Richardson wanted the jury to hear from him early. Beaver accepted that logic and let his younger partner have the argument. Richardson stood up as soon as VanStory finished.

  “May it please the court,” he began. “Members of the jury, the evidence in this case will show that on Sunday, May 12, 1985, the Cumberland County Sheriff’s Department was put in a position of horror and chaos, and that this investigation was begun in that posture.”

  Oh God, what am I doing? he thought. His voice was trembling, barely loud enough to be heard. Richardson had never been in a capital trial, and he hadn’t expected a room full of people. The young lawyer had known mostly success up to this point, but now he was scared to death.

  The jury should have been left with images of the state’s weaknesses—no physical evidence, Cone’s lack of credibility, and the alibi witnesses for Hennis. Instead they remembered that Richardson seemed uncertain of himself and his client. A round that could have been won was lost. While Bob Hennis confronted Beaver about ordering Richardson off the case, VanStory carried momentum when he called his first witness.

  Margaret Tillison was ready to go, wearing her best church dress, her hair salon-perfect. Three weeks before, Mrs. Tillison had told Richardson and Nelligar that she wasn’t sure who was in the white car parked across the street from the Eastburns on the afternoon of May 9. But she no longer doubted who was in the car.

  “This young man right here,” she said, pointing at Hennis as he drank from a cup of water.

  This was a great start for VanStory. His first witness firmly put Hennis at the crime scene, and no matter how badly the rest of his case went, the jury had an image of Tim Hennis parked across from the Eastburn house, head poked out his window.

  Cross-examination rolled right off her. Mrs. Tillison didn’t remember telling the defense she couldn’t be sure who was in the car. But she did accuse Richardson of pressuring her. “Mr. Richardson said to me his client didn’t get to hold his baby or something. I felt he was trying to play with my sympathy.”

  She conceded that she’d seen Tim Hennis’s photo in the newspaper and on television several times between May 9 and the following April, when she first told her neighbor, Deputy Eddie Hollingsworth, about seeing the car.

  Beaver asked her about the 11-month lag in reporting her Hennis sighting.

  “Well, you know, as I recall back, it all came back to me,” she told Beaver, “but I figured that they had the man that I thought done it and they knew what they were doing.”

  Mrs. Tillison assured Beaver that she’d known it was Hennis all along. “I seed what I saw that day,” she said.

  “And so you did not come forward for 11 months, is that correct?” Beaver asked.

  “No, I figured if they wanted to see me, they’d find me.”

  Gary Eastburn was next. His mission was to remind the jurors that his wife and children were once alive and real. He broke down on VanStory’s fifth question. The next day would’ve been his and Katie’s eleventh anniversary.

  “Captain Eastburn, I hand you what’s been marked for identification as state’s exhibit number three, sir, and ask if you recognize and identify that?”

  His daughters were now a state’s exhibit, a snapshot with a red sticker.

  “That’s a picture of my—of Kara, Erin, and Jana in front of the Christmas tree.”

  VanStory brought out a picture of Gary’s mother holding Kara and Erin on her lap, with Katie beside them. He introduced another of Kara and Erin dyeing Easter eggs. Katie had sent that to him in Alabama a month before they were killed.

  Beaver objected to the photos as tactfully as he could, accusing VanStory of playing to the jury’s pity. He was overruled.

  “Permission for the witness to approach the jury box,” VanStory said.

  “All right,” the judge responded. “Captain, if you would come down before the jury.”

  Eastburn stood before the jury, pointing to faces on the snapshots.

  “Okay. This is Kara. That’s Erin.” He cried again. “That’s Jana.”

  “If you could, sir, walk it on down so everybody can see,” VanStory said.

  “That is Kara over here, and that’s Erin and Jana.”

  “Is that the picture that was taken right at Christmas of 1984?”

  “Yes.”

  Spectators shifted uncomfortably, as if bystanders at an accident scene. Jurors wished they were somewhere else. So did the defendant. This isn’t good, Hennis thought. Damn, I want to leave this room.

  VanStory knew it was going well, and he wasn’t ready to let up. Eastburn returned to the stand and recalled the events of May 11, when he couldn’t get his wife on the telephone. By the time he finished, he wasn’t crying alone.

  After VanStory finished, Beaver leaned forward across his table. He knew if he offended Eastburn, he’d make everyone angry. He’d agonized the most over this part of the trial. Beaver had never met Eastburn and had no idea how Eastburn would react to him. But he needed the question to get across some crucial points.

  Beaver spoke softly. “Captain Eastburn, forgive me. I need to ask you a few things if I might.”

  Gary said that would be okay and started answering questions. It was unlike Katie, he said, to leave Kara alone in the house for 30 minutes as she did May 9, even if she was only next door.

  He told the jury about Katie’s crank call a week after he’d left for school.

  Then Beaver scored one point he didn’t expect. Gary said the key to the missing strong box had been kept in a jewelry bowl on the dresser. Gary said only he and Katie knew where the key was. Whoever took it had left the jewelry behind. Someone knew what he was after when he looked in the bowl, unless Katie gave the key away while pleading for her life.

  Beaver thought his cross-examination was a good moment for him, but it would be some time before he felt that way again. VanStory shifted the trial to the victims and the grisly manner in which they were killed. The trial’s first day ended with Conrad Rensch, the ID tech, holding up Katie Eastburn’s ripped panties, Kara’s shredded bedspread, and other macabre items from inside the house.

  The exhibits, piled high on a table in front of the stand, still reeked of blood.

  Chapter Nineteen

  “Request permission the lights be turned out, Your Honor,” VanStory said.

  “Mr. Huskey, if you’ll take care of that please.” A bailiff followed the judge’s order and flipped the switch, darkening the courtroom.

  A drawing of the floor plan of the Eastburn home lit up the left half of the projector screen. Deputy William Toman, who’d found the bodies on Mother’s Day, identified it.

  Beaver had tried to prepare Hennis and his family for what would fill the other half of that screen. They had come to his office
two weekends earlier to look at 35 color photographs of dead bodies, 26 from the autopsy, that the state would introduce into trial.

  “What sick mind wants to show these pictures?” Bob Hennis had asked.

  Carlin had put together “The Show,” figuring it would be the most dramatic way to demonstrate in the courtroom what a sick mind had done to those girls. As an investigator, Carlin’s job wasn’t to decide whether the slides violated the rules of evidence. That was the prosecutor’s call.

  “What better evidence of the atrocity of a crime than a photograph of what happened?” VanStory argued, sanctioning Carlin’s slide show.

  Beaver stipulated that the Eastburns had been stabbed to death, but VanStory wanted the photographs to prove first-degree murder. By showing each wound, he said, he could show premeditation.

  Judge Johnson ruled that VanStory could present the evidence the way he wanted. “In my discretion, I’m going to do this,” the judge said.

  The judge did cut the number of photos. VanStory had asked for 54, but only 35 were allowed—8 of Erin, 12 of Kara, and 15 of Katie. Beaver argued that was still far too many, but his arguments were overruled.

  Toman finished identifying the floor plan, and VanStory nodded. The projector clicked and the other half of the screen was filled. Someone in the courtroom gasped.

  “Sir, I show you what’s been marked for identification as state’s exhibit number 18 and ask if you can recognize and identify that?”

  “This is a picture of the small child lying on the left-hand side of the bed in the master bedroom as I approached it from the hallway,” Toman said.

  The projector’s light passed inches in front of Tim Hennis’s nose, splattering the image of the dead child on the wall to his right. Jurors could not look at the slide without looking at Hennis. From his parents’ point of view, their son took up the bottom right corner of each frame.

  Hennis turned to his lawyers. “What should I do?”

  “Just look down,” Beaver told him. “Don’t look at the pictures, the jury, or anywhere else.”

  Hennis looked down and pretended to take notes, a pose he held for two days and 34 more slides. ID techs carried pointers with them up to the frame, poking at it as if lecturing a science class, while Hennis, a few feet away, sat with his head bowed.

  In a chambers hearing, Judge Johnson offered to allow Hennis to sit somewhere else.

  “I think if I did that, Your Honor, it would look like he was trying to hide something,” Beaver said.

  It was too late for Hennis. The Show went on with him in place. The medical examiners pored over the autopsy slides, five-and-a-half-foot-high images of children three-foot-two and three-foot-ten. Dr. John Butts testified over Beaver’s repeated objections that the marks on Katie’s wrist could have been made by parachute cord, something detectives had found when they searched Hennis’s home.

  “The whole thing was like a B movie,” Hennis said. “Obscene, profane, and disgusting.”

  At least one juror agreed. “I didn’t sleep good at all,” Odell Autry, the machine operator at Black & Decker, said after the trial. “It was like a horror show, knowing these people were actually alive and living in your community, then you see a child with her head cut so severely and nearly cut off.

  “We saw them every single day. You knew when you went in there that you would see them. For me personally, it did the prosecution more harm than good. He was trying to get us to hate. VanStory acted like he was trying to push it down our throat.”

  But to juror Frederick Powell, owner of an aviation business, the slide show was merely repetitive. “You see them once, it’s sort of shocking,” Powell said. “You see them several times, it becomes sort of boring.”

  During a break in The Show, Richardson found Beaver in the office of Mary Anne Tally, the public defender. “We’re getting screwed,” Richardson said. “We’re getting railroaded.”

  “No, screwing’s fun,” Tally replied. “You’re getting raped.”

  Before the trial started, Gary Eastburn had thumbed through the photos. Carlin offered him a chance to see them as a courtesy. “If you want to see them, they’re here,” he told him.

  Gary took him up on it, driven by the same morbid curiosity that would later pack the courtroom during the slide show. That’s not them, he thought. Just bodies. There’s no spirit. That’s not my wife and daughters. “That kind of made them dead to me,” he said.

  He consented to the slides. “Anything that will make the jurors realize how horrible the crimes were is okay with me,” he said. “I want them to get this bastard.”

  Before the slide show started, Beaver suggested to VanStory and Carlin that if Gary wasn’t going to sit through the slide show with a courtroom full of strangers, he should leave the courtroom before the jury was seated.

  “Oh, he’ll leave,” Carlin said.

  “No, no, no. I don’t want him standing up and parading in front of the jurors,” Beaver said.

  When court resumed, Gary was sitting behind the prosecutors. On Carlin’s cue, he got up, followed by his mother and Katie’s mother, and they walked out until they were safely in the hallway.

  The autopsy photos were gruesome. Katie and the girls were laid out naked on a steel table, a photographer leaning a few inches from their faces. The dried blood glistened in the harsh light. From most angles, Kara and Erin were so cut apart they didn’t look real. From others, they still looked like little girls. The latter ones were the worst.

  Dr. Butts pointed to Kara Eastburn, a partly eviscerated projection on a wall, and discussed each of her 10 stab wounds and protruding organs. He held up her panties, showing how blood had run down her chest and soaked in.

  He defined a “defense wound.” Kara had a scratch on the upper part of her left forearm and a cut on the back of her left hand. She’d known something bad was happening. One of her final acts had been to raise her arms, trying to ward off the knife.

  Erin Eastburn suffered 10 wounds to the chest and back, Dr. Robert Thompson said. He showed the jury slide after slide of Erin’s neck wound, about a foot high on the wall, and how it’d been made with several slashes of the knife.

  He paused at state’s exhibit number 87. “This is a photograph of Erin Eastburn showing the wound of the neck,” Dr. Thompson said. “This looks like the one we saw before.”

  He talked about probing the child’s stomach, to determine when she last ate, and clipping and saving the fingernails of both hands.

  He did not talk of defense wounds. Erin Eastburn, not yet old enough to know the world could be such a place, had none.

  VanStory reaped an unexpected benefit from his show. The focus of the trial had shifted to Tim Hennis’s attitude. The way the defendant carried himself could decide a close trial, and VanStory couldn’t help but notice Hennis was losing that battle. He slouched in the courtroom, seemingly indifferent and, to some, arrogant. He gave the impression the trial was keeping him from something else. He and Angela passed notes back and forth until Beaver told him to stop.

  “Can you do something with Tim?” Beaver asked the family.

  The Hennises didn’t understand. They didn’t like VanStory, either. Beth shared her brother’s attitude toward VanStory, once marching off an elevator the second the prosecutor entered it. As far as they could tell, Tim had been asked to be calm and collected, and that’s what he was doing. “I can see where people might’ve thought he was cocky,” Beth said. “He would smile. He didn’t do it, so why shouldn’t he act like a normal person. Yeah, he’d smile and laugh.”

  VanStory delighted in the effect Hennis’s attitude had on a jury. “Like an uncaring cold fish,” said juror Odell Autry.

  The prosecutor was ready to move forward into the most challenging part of his case. VanStory had to put his own state lab experts on the stand to explain the lack of physical evidence. If he allowed Beaver to call the experts as his witnesses, Beaver would call him a coward during his final argument, saying the pr
osecutor had wanted to conceal the physical evidence from the jury.

  VanStory had to find a way not only to put his experts on the stand, but to have them turn the physical evidence against Hennis as much as they could. He started with Ricky Navarro, the fingerprint expert who’d found none of Tim Hennis’s prints but five fingerprints and palm prints that had no similarities to Hennis or the victims.

  “Sir, in what percentage of cases in which you know a crime has occurred and a suspect has been arrested do you find the suspect’s fingerprints?” VanStory asked.

  Beaver objected, but Judge Johnson allowed the question. Navarro answered that he’d tracked his cases in 1983 and in 70 percent of them he hadn’t found the suspect’s fingerprints. Beaver questioned what these findings had to do with the Eastburn murders of 1985, but VanStory had found a way to make his point: The failure to find Hennis’s prints didn’t matter because the odds were against finding them. Playing the odds with physical evidence would become one of VanStory’s most successful trial tactics.

  VanStory asked Navarro to list the eight police officers he found inside the house. Contamination, the prosecutor suggested. Reluctantly, on Beaver’s cross-examination, Navarro would admit he’d never checked those officers’ fingerprints, already on file in Raleigh, against the unknown prints from the house.

  VanStory shifted his questioning to the bloody footprints leading to the master bedroom. Navarro said photographs of the Luminol footprints were “of insufficient quality or quantity for any type of conclusion.” Without portions of the heel and toe, he said, no one could measure it, leaving open the possibility Hennis’s foot could have made the print.

  VanStory raised the possibility that an officer might have stepped in blood, further contaminating the scene. He succeeded in forcing Beaver and Richardson to hire their own footprint expert, turning what the defense had thought to be a simple issue—Hennis’s foot being too big to make the prints—into a battle of experts. As with most such battles, the jurors would call it a standoff. They were left to believe either Hennis or a careless officer had made the prints.