Above Suspicion

by Sharkey, Joe;

  He repeated his mantra. “Kathy, I killed that girl.”

  “Mark, if you go to jail in Kentucky, they’ll kill you.”

  Overhearing this, a busboy who had been clearing the booth behind them dropped a plate. The crash brought a look of recognition to Mark’s face.

  Kathy went on. “Mark, you have to think clearly. Think of Danielle and Mark and me. You have some power in this.” She was imploring him as she never had before. Finally, his mind managed to move past the word deal. By the time they went back, he had agreed to let his lawyer negotiate one.

  In Pikeville, the prosecutor had guessed at Putnam’s rationale. A more cynical man might have scoffed at the notion, but Runyon finally sensed that Mark was being impelled, step by step, not by his lawyer but by his conscience. Runyon didn’t know how long that situation would last—consciences can fade when things get tough. He had no idea how far he could push.

  In what quickly evolved into a high-stakes poker game, the phone calls flew back and forth between Kentucky and Florida every day for two weeks. Runyon told his associates at the onset of the plea negotiations, “I can never be sure when I hang up the phone today whether he’s going to be talking to me tomorrow.”

  The prosecutor presided over a small group of people who had an interest in the case and whose judgment he trusted. They gathered daily around the conference table in the windowless second-floor library of Runyon’s office, where the speakerphone provided a disembodied link to the suspect in Florida. Always on hand were Richard Ray and Rick Bartley, the assistant commonwealth attorney. At various times they were joined by Lou DeFalaise, Terry O’Connor, Jim Huggins, Gary Rose, and Paul Maynard.

  DeFalaise had more than a passing interest in the homicide investigation against Mark Putnam, which was a state matter. As the US Attorney’s office in Lexington entered the initial phase of its long-planned investigation into political corruption throughout eastern Kentucky, it was evident that several of the cases that had been developed in the Pikeville office, both by Putnam and by Poole, could be part of the interlocked framework on which that federal initiative would have to rest. There was concern about what might come out in a trial of Mark Putnam. No one knew what to expect.

  At the initial gathering, Runyon laid out the dilemma: “We know the boy did it—but gentlemen, we can’t prove that in a court of law. We can’t even prove that a crime has been committed.”

  What if Putnam backed out?

  Runyon didn’t like to consider that possibility: “We’ve got to turn up the heat as high as we can.”

  Richard Ray huffed and puffed at the notion that Putnam might be able to cop a plea, but he was a good enough detective to know that there was probably no other choice. “We have no way of locating her body,” Ray conceded.

  Runyon went around the table, polling each participant individually. None of them disagreed with the plan to negotiate the best plea agreement possible under the circumstances.

  “You going to hold his feet to the fire?” Ray asked morosely.

  “You bet I am,” Runyon replied, though he was not at all certain that he would be able to deliver on the boast. “I’m not going to take anything less than a twelve-year sentence.”

  There was a low whistle. Someone said, “Good luck, John Paul.”

  Under instructions from the Putnams to proceed on plea negotiations, Zimet had laid out the broad outlines of what he anticipated. A prison term was inevitable. The only question was how long. And with a defendant determined to plead guilty, that seemed to be a matter largely in the hands of the prosecutor.

  “I wanted ten years,” Zimet told them at the end of the first week of negotiations while Mark listened in stony silence. “If this had happened in Florida, there is no way you’d serve more than four. But Runyon says he won’t sleep with less than sixteen.”

  Mark surprised them by engaging in speculation for the first time. “What do they really have? I told them about the car, so I guess they can find the car, but I checked it over pretty carefully. The floor mat is long gone. Of course, if they want your ass in Pike County, they can find anybody to testify to anything. But really, only that girl on the horse can put me on the scene.”

  Startled, Kathy asked, “What girl?”

  Mark looked, at her blankly. The one on the horse! The young woman who had ridden off without giving a second thought to the dark-haired young man she had encountered climbing up out of the ravine—the woman whose knowing face, fleetingly as he had seen it, had not left his mind for a single day in the past year. The one who could put him at the scene! He couldn’t believe they didn’t know whom he was talking about.

  The men gathered around Runyon’s conference table were making grim bets on whether the talks would collapse.

  “You think they’re going to back out today?” someone invariably asked.

  “Not today,” said the prosecutor. He never knew about tomorrow.

  Early the following week, Zimet made a formal offer: Mark would plead guilty to first-degree manslaughter in exchange for a guarantee of an eight-year sentence.

  “I couldn’t live with myself at that,” Runyon said, digging in hard with a bluff. “It’s got to be eighteen.”

  As he talked, Runyon doodled abstractly on a yellow legal pad. Later, he would see that he had put down the number 18 but crossed it out. Beside it, he had written 16 and underlined it in hard black strokes, with an arrow drawn right at it. But the fact was, he was prepared to take twelve.

  The next day, Zimet had a new gambit. If Mark pleaded guilty to whatever sentence they agreed on, he wanted to serve his time in a federal prison, not a Kentucky penitentiary.

  Richard Ray felt he had to object strenuously to this as a matter of principle. “What if I did this?” he asked. “What would happen to me? Could I serve my time in a federal prison?” He would never actually say it, but he felt the responsibility of speaking for Susan Smith, and maybe for generations of other poor, ignorant mountain people. But he knew that if this was the major concession they needed to make to get a stiff sentence, and if Runyon was ready to take the inevitable heat for making it, it should be made.

  In fact, the cops, Ray included, were the most worried among the group that gathered in Runyon’s office. Collectively, they had seen too many defense lawyers wreck too many criminal prosecutions, and they understood that this one could collapse in a minute if Putnam bolted out the door of Zimet’s office. As Runyon himself had pointed out in amazement when he realized Putnam was willing to talk, “any defense lawyer in Pike County would tape that boy’s mouth shut and tell him to take a long vacation until his conscience stopped bothering him.”

  Runyon replied that he was willing to go along with the federal prison. On June 1, the Kentucky Department of Corrections tentatively agreed not to object to Putnam’s serving his sentence in a federal facility. This handed Runyon his last card to play.

  “Runyon won’t go for twelve,” Zimet told the Putnams when they came in that day. “It’s got to be sixteen.” He broke it down. “Sixteen years. You won’t do more than twelve; you’re eligible for parole after eight, and it’s in a federal facility.”

  Mark looked uneasily at his wife, who nodded shakily. “Let’s go,” he said.

  Runyon’s letter spelling out the plea agreement was drafted and faxed back and forth until both sides signed off on the final language. It was dated June 1. The key portions of it read as follows, with italics representing the additions Zimet insisted on:

  This will confirm our conversations with regard to your client, Mark Putnam. As a result of these conversations it is agreed by and between the Commonwealth of Kentucky and Mr. Putnam as follows:

  An investigation into the disappearance and possible killing of Susan Smith is being conducted by the Kentucky State Police and the Federal Bureau of Investigation.

  Mr. Putnam will be completely forthright a
nd truthful with this office and federal and state law enforcement agents with regard to all inquiries made of him regarding Susan Smith. Mr. Putnam will give signed and sworn statements if same are deemed necessary. In any interviews conducted pursuant to this agreement, Mr. Putnam may have counsel present if he desires. These statements will be exclusively made pursuant to this agreement. If this agreement is not fully consummated for any reason, these statements cannot be used against Mr. Putnam.

  It is anticipated that evidence obtained from Mr. Putnam as well as evidence obtained by law enforcement investigators will be presented to the Pike County Grand Jury and that an indictment will be sought against Mr. Putnam on or before June 11, 1990 charging him with manslaughter in the first degree relating to Susan Smith.

  In the event that Mr. Putnam is indicted for murder for his role in the killing of Susan Smith, the Commonwealth of Kentucky, by and through John Paul Runyon, 35th Judicial Circuit Commonwealth Attorney, agrees to amend the charge to manslaughter in the first degree. If the grand jury returns an indictment charging Mr. Putnam with first-degree manslaughter, no amendment to said charge will be recommended by the Commonwealth.

  Mr. Putnam will plead guilty to the charge of first-degree manslaughter on June 12, 1990, or within ten days thereafter Mr. Putnam may voluntarily appear for his guilty plea.

  The maximum penalty to which Mr. Putnam will be exposed by virtue of his guilty plea is imprisonment for a term of 20 years and the minimum penalty will be imprisonment for a term of 10 years. Kentucky law does not provide for the imposition of a fine for this charge. Court costs of $57.50 and a $10.00 payment to the Crime Victims Compensation Fund will be paid in full on the date Mr. Putnam is sentenced.

  The Commonwealth will recommend that Mr. Putnam will be sentenced to a 16-year term of imprisonment following his guilty plea.

  Acknowledging that sentencing is “within the sole discretion of the court,” the agreement letter nevertheless stipulated:

  In the event the Court rejects this plea agreement or refuses to follow the 16-year recommendation of the Commonwealth and Mr. Putnam refuses to plead guilty or withdraws his guilty plea, pursuant to Kentucky Criminal Rule 8.10, nothing contained in any statement or testimony given by Mr. Putnam pursuant to this agreement or any evidence developed there-from will be used against him in any further criminal prosecutions.

  Only a few loose ends remained. Zimet wanted assurance that Mark would not face a related charge over the death of a fetus if it was indeed true that Susan had been pregnant, and in the unlikely possibility that an autopsy on a body that had lain exposed for over eleven months would still show evidence of it. Kentucky law was clear on that point. The state Supreme Court in 1983 had held in the case of a man who killed his wife while attempting also to kill her unborn baby that a “fetus was not a ‘person,’ as that word is used in context of criminal homicide statutes, and could not have status as victim of criminal homicide.”

  Negotiations concluded with that. On Monday morning, June 4, Paul Maynard and Jim Huggins got on a plane and flew to Florida. A state police unit was ordered to stand by to recover the body of Susan Smith.

  Accompanied by Maynard, Jim Huggins arrived at Zimet’s well-appointed office in Fort Lauderdale just after five o’clock. Mark had asked Kathy to stay home. He was ready this time when Maynard read him his Miranda rights.

  Speaking softly, Mark confessed that he had killed Susan Smith and told where to find her body.

  The directions he gave were so simple that the officers standing by in Pikeville didn’t believe him. He said the body was in a ravine on the left side of a gravel road on Harmons Branch, five miles from the center of Pikeville, not even a mile off Route 23, on a surface mine site a few hundred yards from a cleared area with a shed where the mine company stored earth-moving equipment and parked coal trucks. Just before the ravine, also on the left, was a slope back through the trees where kids rode dirt bikes.

  It sounded preposterous. “There’s no way she could be laying there,” Ray scoffed to Maynard over the phone. “Somebody would have found her.”

  When this was repeated to him, Mark muttered that that was the point. He thought they would have, long before now.

  With a scrawled map and the directions, Ray drove a small and gravely dubious group of searchers up the road on the low ridge above Harmons Branch. Accompanying him, in two vehicles, were state police lieutenant Ed Shemelya; two FBI agents, Sam Smith and Tim Adams; and Fred Davidson, a state police officer who had brought along his excitable German shepherd, which he called a “body dog.”

  Driving slowly over deep ruts, Ray spotted the clearing where it was obvious that dirt bikes had clawed into the loose soil on a hill. Above, a high black ridge went on for miles, blocking out most of the thin sunlight. Ray found the turnoff and stopped the car on a mud-caked siding beside a narrow and bumpy coal-truck road that climbed sharply up to the strip-mine cut. With the light fading, they wouldn’t have much time.

  Mounds of fresh dirt and debris were pushed up at the side of the road, on the lip of the ravine. It appeared to be rubble from the strip mine, pushed down from above by bulldozers. They climbed over it and peered into the ravine, which was thick with undergrowth. After the first ten yards, the ground fell off sharply. They used ropes tied to the truck to ease down, one by one, lurching for the nearest bush or an occasional sapling for support. The dog thrashed ahead. The trickle of a small creek could be heard coming from the bottom of the ravine, but it was difficult to see through the brush. About halfway down, the way was blocked by a weed-covered pile of dirt and trash, remnants of tangled wire-mesh fencing, rotted mine timbers, and moldering trash bags. The rubble appeared to have been pushed down from the roadbed some time ago.

  The dog was making a commotion somewhere below, but it scrambled back toward them, whimpering. Ray had no faith in the dog anyway. He had never known it to find anything before. It climbed on up toward the road, peed on a bush, and barked at the searchers stumbling downward.

  Ray heard a shout from the brush about ten feet below. “Hey, it looks like there’s some bones here!”

  Ray stumbled and slid down to where Tim Adams had braced himself between two bushes and was staring down at the bones, which appeared to be from a skeleton that had come apart. At first, Ray thought they looked like the bones of a child. A flashlight glinted off metal; prodded with a stick through the dried mud and matted leaves, it proved to be a thin gold chain with a tiny cross.

  Shaking his head, Ray squinted back toward the top of the ravine. The remains of Susan Smith lay not fifty feet from the road.

  A radio transmission was made back from the scene to the state police post in Pikeville, where the message was relayed to the small group in the lawyer’s office in Fort Lauderdale. Maynard put down the phone and said, acknowledging Mark’s distressed look, “They found her just where you said.”

  Mark took a few minutes to collect himself. Then he continued talking as a stenographer took down the rest of his confession.

  It was dark by now. The cops who had found the body waited until another state police vehicle arrived with two officers who would remain to guard the scene through the night.

  Just before eight o’clock the next morning, a police car and a pickup truck lumbered up to the site. A man from the state medical examiner’s office, a forensic anthropologist named David J. Wolf, got out, to supervise the removal of the remains.

  Complaining about the difficult climb, Wolf worked slowly, taking copious notes. Some of the bones were entangled in the wire mesh, as if tugged at by animals. “Evidence of scavenger activity was visible,” Wolf wrote.

  To Ray, who had returned to the scene with Wolf and some other officers, Mark Putnam’s claim that he had placed the body near the top of the ravine seemed plausible in the bright daylight. The hill was too steep for a man to have carried a body down that far, where anyone standing at the si
de of the road would have had to look hard to see it. Wolf’s report described the scenario:

  Though heavily vegetated with briars, weeds and grasses, the embankment had very few trees closely spaced that could impede a body rolling down the steep incline. . . . Based upon the topography, it became obvious that the body rolled down the embankment from the crest of the brim alongside the road until it became entangled in the wire mesh fencing which stopped its further progress downhill. Due to the steepness of the slope, the unevenness of the slope, the vegetative cover, as well as the quantity of wire mesh fencing, it would have required a truly herculean effort for one person to have carried the body to the site where it was found and deposited it among the flattened coils of the wire mesh.

  As a police photographer took pictures, Wolf supervised the collection of the bones and the loose soil on which they were scattered. He reported: “During the troweling activity, small bones (wrist, ankle, finger, etc.) were observed but were not individually collected at that time.”

  Annoyed by Wolf’s officious direction, the state cops removed the material and placed it in ten-gallon coal buckets. They used wire cutters to cut away the pieces of fencing. According to Wolf’s inventory, “several dark human hairs, a gold-colored chain with crucifix attached, and several fingernails as well as toenails that had been painted with red polish” were found in the debris along with the bones. “Flecks of nail polish that had exfoliated from the nails were observed. No other physical evidence (e.g., clothing, jewelry or personal effects) were observed on the surface at the scene.”

  Holding on to ropes tied around trees near the road, they passed up the buckets containing the loose soil and bones. When they were finished, a worker from the mining company drove up in a truck and asked when they would be finished.

  Wolf said they were finished now.

  When Ray asked the man why he wanted to know, the driver explained that the mining company was planning to abandon the mine and bulldoze the mounds of backfill into the ravine and landscape the area. Within days, Susan Smith’s remains would have been buried under sixty feet of debris.