Innocent Victims

by Whisnant, Scott;

  Richardson turned back to the defendant. It was time to explain what he was doing Mother’s Day weekend and particularly what he was burning in that barrel. But Angela would have to speak for him. Hennis had already passed up his last chance to testify.

  As Angela struggled to keep her voice up, she tried to rebut some of the inferences VanStory had raised in his case. She explained that she and Tim had not split up on Mother’s Day weekend. She told the jury that Tim took his jacket to the dry cleaners because the baby had spit up on it. And she said Tim had carried Army manuals and shoeshine rags from their back bedroom and burned them while she was gone that weekend.

  VanStory was torn between ripping into her or leaving her alone. Carlin wanted him to attack, but Angela Hennis hadn’t hurt anyone. VanStory treaded lightly.

  He asked her about Tim reporting to the sheriff’s department after the announcement for the man with the dog.

  “Do you recall you yourself talking to the officers when you came down on that Wednesday?”

  “Yes, I do.”

  “And do you recall telling them that you saw it on television and called your husband from the other room and told him that you had to go down to the sheriff’s office to talk about the dog?”

  “No, I don’t. What I said was that he was in the kitchen making himself a sandwich and the news was about to come on. It had not started yet. And I told him to hurry up and come on in so that he could hear what they were going to say.”

  “So you were real interested in what they were going to say at that particular point in time, weren’t you?”

  “Well, curious. Yes.”

  “Okay. Enough to call your husband out of the kitchen, tell him to hurry up, the news is about to come on, let’s hear what they have to say?”

  “Yes. I did tell him to come on in.”

  “And you had read about what had happened out there in Summer Hill prior to that?”

  “In the newspaper, yes.”

  “Thank you, Mrs. Hennis. I’ve got no further questions.”

  Beaver and Richardson thought she’d held up well, but the jury would have a hard time forgiving Hennis for not taking the stand. “I know me personally, I’d want to get on the stand and say where I was at,” juror Odell Autry said.

  Richardson saved Paul Stombaugh for last to end his case on a high point. The government’s own authority on Jeffrey MacDonald’s guilt would now become an authority on Hennis’s innocence. But before Stombaugh could say anything about his findings, VanStory asked for a “voir dire” hearing.

  The Cumberland County prosecutor questioned Stombaugh’s qualifications to testify in fabric impressions, the same subject he’d used to dismantle MacDonald six years earlier. VanStory’s point was that Stombaugh, the federal government’s leading forensic chemist for 16 years, hadn’t testified in fabric impressions since the MacDonald trial, rendering him incompetent.

  Lawyers for both sides do this. Expert witnesses who’ve testified hundreds of times can expect to have their credentials challenged, especially those who are repeatedly paid to testify for the defense.

  Earlier in the trial, VanStory challenged the credentials of a footprint expert who’d been a state’s expert just four years earlier in a murder case in a neighboring county. The state in that case had defended Dr. Louise Robbins’s expertise in appeals to the state Supreme Court and the conviction had stood.

  Beaver and Richardson were surprised that VanStory would challenge another expert witness who had testified for the government numerous times. Anybody can have their conclusions challenged, but they hadn’t expected Stombaugh’s qualifications to be questioned in Cumberland County.

  Judge Johnson allowed Stombaugh to testify, but first warned both sides’ lawyers to leave Jeffrey MacDonald’s name out of it. That was fine with Beaver and Richardson, neither of whom wanted Stombaugh’s Fatal Vision II theory before the jury.

  Stombaugh had two points to make in his testimony. First, he said a foreign pubic hair found in the area of the rape “could indeed have originated from the assailant.”

  Second, he said he’d counted the number of ribs on Katie Eastburn’s sock and on the corduroy found in the barrel and compared both with the fabric impressions found on the sheet and bedspread. He said the corduroy had wide ribs and narrow gaps, about 18 ribs per inch. The sock had narrow ribs and wide gaps, much like the bloody impressions on the bed linen. He said both had about 13 ribs per inch.

  In short order, Richardson had gotten from Stombaugh exactly what he wanted. Then it was VanStory’s turn. Several members of the SBI lab swarmed around him, showing him their notes. Then he began to combat Stombaugh point by point.

  VanStory first addressed the pubic hair. “Sir, anybody could—I don’t mean to be coarse, but the only way I know to put it—drop a pubic hair out of a pant leg if they walked into a room, could they not?”

  “I do not know,” Stombaugh said, “whether or not the hair in question here had fallen out naturally or had been forcibly removed. If it had been forcibly removed by its root, then you would have a situation where it would strongly point to an assailant.”

  “But you know nothing about this particular hair?”

  “I never had a chance to examine it.”

  After Richardson had taken what he thought was all the physical evidence to Stombaugh’s lab in November, Stombaugh did an inventory. Fifty evidence boxes were empty, including 30 that were supposed to have had hairs taken from the house. Besides the pubic hair, Stombaugh never saw a hair retrieved from Katie Eastburn’s fingernail clippings, hairs from her front and back, hairs from Erin’s legs and gown, and other head hairs found near the pubic hair. The SBI said all those hairs were either animal hairs or could be matched to the victims, though Stombaugh never could check that finding.

  Stombaugh didn’t know what to make of it. With the FBI, all the hair samples from a given case were kept together. He noted the missing evidence in his report and examined the hairs he did have.

  Hamlin said he didn’t know why Stombaugh had not gotten all the hairs. No one from his lab removed them from their boxes, he said.

  At any rate, the state’s new theory on the pubic hair amused Hennis’s lawyers. During his final argument, Richardson would hitch up his trousers and shake his leg for the jury. “Let’s assume for a minute that pubic hair was Tim Hennis’,” he argued. “And let’s assume for a minute that I had to stand up here and tell you on Tuesday night when Tim Hennis was in that house picking up that dog, that he shook his foot and his pubic hair fell out on the floor.

  “You would laugh me right out of this courtroom and you would take my client and you would put him up on that flagpole.”

  VanStory was more prepared for Stombaugh’s analysis of the fabric impressions. Stombaugh had told the jury the sock had 13 ribs per inch and that each rib was one millimeter wide with gaps in between of two millimeters each.

  “Well,” VanStory asked, “if there’s 13 one-millimeter ribs per inch, then 13 times 1 equals 13 millimeters, correct?”

  “Approximately, yes, sir.”

  “How many gaps would be in between?”

  “About ten. You’d have to count them.”

  “Wouldn’t it in fact be 12?”

  “Sir?”

  “Wouldn’t it in fact be 12?”

  “Approximately.”

  “And these gaps in between are two millimeters apiece?”

  VanStory brought out a blackboard and wrote his figures on it.

  “Well,” Stombaugh said, “I can see where my mathematics is wrong.”

  VanStory added out loud. The 12 gaps at 2 millimeters each would be 24 millimeters. Added to the 13 millimeters for the ribs, Stombaugh’s inch had 37 millimeters.

  “But there’s only 25.4 millimeters to an inch, aren’t there,” VanStory asked.

  “I believe that’s right.”

  Spectators murmured in the courtroom. “It cast a pall on the entire defense case,” Bob Hennis said
.

  Stombaugh’s point was lost in an argument over his measurements. All he wanted to say was that the corduroy couldn’t have made the impressions and the sock could have. He said his measurements were averages taken from stretching the sock several ways. To apply any measurement taken from those averages to an actual inch would be wrong, he said.

  VanStory showed him a color photo of Kara lying on her bed, the covers removed. He’d had the photo blown up to about the size of a poster board so Stombaugh could see that some of the dried blood on her stomach had formed a ribbed pattern.

  “And if the sock was responsible for making these impressions, that would imply that the mother was stepping on her child’s belly, is that correct?” VanStory asked.

  Stombaugh, who’d never seen the photo, argued that blood sometimes dries in a ribbed pattern, a contention that rang hollow by this point.

  “And how much did you get paid for doing all of that?” VanStory asked.

  “Nothing.” Until then, Stombaugh had expected to charge $25 an hour, but that was before his most gratifying moment on the stand would be telling VanStory he was working for free.

  On rebuttal, VanStory picked up where his case had left off. A real estate agent with Suzanne Barlow Realtors said Tim Hennis had paid overdue rent the afternoon of May 9, around the same time Margaret Tillison said she’d seen Hennis parked across the street from the Eastburns’. VanStory had the real estate agent tell the jury her office was just one and a half miles from Summer Hill.

  Then VanStory called Jay Logan, Hennis’s assistant CQ the night of May 10 and the only Army witness who hadn’t testified. “What does he want with Logan?” Richardson asked Nelligar. In their interviews with him, Logan had done nothing but help Hennis. He’d rode Hennis to CQ duty and remembered his car as messy and not bloody. Logan remembered Hennis getting the call from Ward to close out the day room before 11 and remembered Hennis sitting at his desk until he checked behind Ward around 11:30.

  But Logan had mixed up his story. He’d told Detective Oakes that Hennis had stayed out on dinner break until 11 P.M. He later said Hennis returned at 10:30. With Logan that confused, Richardson decided to go with the 12 other Army witnesses.

  VanStory produced state’s exhibit 145 and asked Logan what it was. “It’s a crime prevention checklist,” Logan began.

  Richardson stopped taking notes and stared wide-eyed at the prosecutor. He’d looked and looked for that crime prevention checklist at Fort Bragg, trying to get something on record to back up what Ward and Guthrie had said all along. The last place he’d expected to find it was in VanStory’s hand, but there it was, shoved under Logan’s nose on the witness stand.

  “And was that particular crime prevention checklist prepared by the defendant?” VanStory asked.

  “Yes. It was.”

  “And does it indicate what time the day room was closed that night?”

  “Object,” Beaver said. “May we approach.”

  Beaver feared the worst. For all he knew, the document said the day room had been closed around midnight or later, leaving plenty of time for Hennis to have been at Methodist College. Beaver glanced at it and it said “11:30.” Exactly what Hennis, Guthrie, and Ward had said all along. But without the checklist, they had been unable to stop VanStory from belittling Ward for not wearing a watch.

  “I’ll withdraw the objection then,” Beaver said.

  VanStory continued with Logan.

  “The entry under ‘day room’?”

  “Yes, sir.”

  “Have you found that?”

  “Yes, sir.”

  “Okay. And it indicates 11:30?”

  “It says 11:30. But that means that he checked at 11:30 to make sure that it was secure.”

  To check the day room at 11:30, Hennis would’ve had to have been in the day room when Ward first called to close it, typically about 30 minutes before. VanStory didn’t appear to gain anything from Logan, unless he used the witness as a way to introduce evidence that helped the defendant. A prosecutor is required to hand over such exculpatory evidence under the law before the end of the trial. VanStory had carefully avoided breaking the law while leaving the defense no time to respond.

  The three lawyers prepared their final arguments. Richardson spoke first.

  “Members of the jury, Mr. VanStory is asking an awful lot of you.” His sincere drawl set a far different tone than his opening statement. “He’s asking you to kill Tim Hennis, or to take his life away for the next 80 years, to take him away from his wife and his child, his mother, and his father, and his in-laws. He’s asking an awful lot of you.

  “And he’s asking that on the basis of a man who cannot get his story straight, whose initial statement does not corroborate what he is saying in this courtroom, on the basis of a woman who cannot positively identify my client, who tells police three weeks after these murders that she didn’t see anything out there, who tells our investigator two months later that she didn’t see anything out there, who suddenly 10 months later says her memory comes back and she doesn’t know why.

  “They’re asking you to convict this man and take his life on the basis of his wife being out of town, on the basis of a jacket that has not one shred of blood on it, on the basis of him burning trash in his backyard in front of his neighbors and friends with the dog out there running around.

  “Now, when you get down to the nitty-gritty and you think about it, if that ain’t the substance of the state’s case, I contend to you I don’t know what it is.”

  Beaver hit on the same theme. Reasonable doubt, he argued. How could Tim Hennis commit three murders and clean up a house for four hours and not take part of the house with him? Or not leave part of himself behind? How could he then walk down the middle of Summer Hill Road and casually greet a stranger?

  How did he get through that Friday on less than two hours’ sleep, beginning with a four-mile run at 6 A.M. and ending with all-night CQ duty? Wouldn’t he struggle to stay awake? How could he sit there and glue shingles on a dollhouse for his baby daughter? When did he find time to rummage through 105 documents in a stolen lockbox to find the code for a stolen bank card?

  How did he evaporate from CQ duty for more than a half hour on a Friday night around 11 o’clock? Why did he choose the BB&T across town at Methodist College? How did he even know that, of all the BB&T’s in Fayetteville, the one at Methodist College was one of only two branches with a 24-hour machine?

  Are Army ties so close that soldiers will lie for a possible triple murderer?

  If he was going to clean a jacket for blood, why would he take it to the dry cleaner he always uses, where they know him by name? Why would he even wear a jacket covered in dog hair to impress a woman he intended to have sex with?

  If he was going to burn evidence of a triple murder, why would he do it in clear view of neighbors having a backyard barbecue? How did he make the 25-minute drive from the BB&T at 8:59 A.M., change into jeans, and have smoke pouring from the barrel by 9 or 9:30, as the neighbors said? If he was burning corduroy pants, where were the zippers, buttons, and snaps? Where were the weapons?

  Wouldn’t Tim Hennis have known he left semen behind at the house? Wouldn’t he guess that hair and fingerprints were left behind as well? How would Hennis, an E-5 buck sergeant with a high school education, have known that his semen would be “masked” by the victim?

  Why would he voluntarily come forward and donate physical samples to be matched against the crime scene? Did he know, as the SBI lab experts had testified, that in the vast majority of cases, physical evidence is useless?

  He questioned Cone’s inability to tell a straight story, pointing to his first description of a six-foot, 167-pound man. Lucille Cook, Beaver said, recovered her memory only after the state’s case started to go poorly. She still couldn’t positively say she saw Hennis. And when would Hennis get enough time away from work to pay his rent, go home for lunch, and sit on Summer Hill Road the afternoon of May 9 long enough to be s
een twice by Margaret Tillison?

  It went well until Beaver committed the one mistake he vowed not to make. He began theorizing on who was killed first, how the Luminol footprints were made, whether the killer was left-handed, and other parts of the crime scene. His own frustrations over the unknowns in the case came boiling over into his jury argument.

  VanStory broke into a grin as soon as Beaver waded into his pool of theory. He knew Beaver didn’t know what happened and he’d make Beaver pay for that.

  “The important things are that there is nothing that’s been presented in this case to link my client to this house, not a thing in the world at the time of these crimes, not one thing,” Beaver said.

  “I wish you could have been here and observed a classic case of arrest and then investigate. They were so proud. They had made such a quick arrest. They had such good evidence. And then the tests went off and the results came in. And as they came in, you could just see it. ‘Well, I don’t know. I guess fingerprints don’t mean very much. Perhaps—I don’t know. Hairs, they don’t mean anything.’ And it starts to be explained away, more and more excuses come out, one after another, after another, after another. And Patrick contradicts his statement and signs an affidavit. ‘Well, that doesn’t mean anything. Y’all tricked him into it.’

  “It was a sad thing to behold. People are always asking me ‘You going to win or lose this case?’ Ain’t nobody going to win this case. There’s nothing to win. This case was lost the day that Mrs. Eastburn and these children were found.”

  Beaver closed with one final plea. “This boy’s family put his life in my hands and Mr. Richardson’s hands. And we have carried it for a year. And the time has come when I’m going to transfer that life to your hands. And it’s going to be in your hands from now on. And you are going to say possibly if he lives or dies, and even if he lives, if it’s going to be any type of meaningful life.…

  “Find this boy not guilty,” he concluded, more than an hour and a half after he’d started. “He has not been proven guilty beyond a reasonable doubt.”

  VanStory was granted extra time over lunch to prepare for what he called the most important argument he’d ever make. When court resumed, he railed against the defense arguments, proclaiming that he had “laid all his cards on the table,” implying that Hennis’s lawyers hadn’t.