Above Suspicion

by Sharkey, Joe;

  The Grand Jury is not unmindful that a death has occurred. However, we are also not unmindful of the fact that without the cooperation of Putnam and his attorney, most probably the body of Susan Smith would never have been found and the case would never have been solved.

  The Grand Jury invited the sister of the victim, to wit, Shelby Ward . . . [who] concluded by acknowledging that although the punishment to be received by the accused does not satisfy her, she now fully understands that without the accused’s voluntary confession and disclosure of where the body was left, no charge whatsoever could be brought against the accused. She is satisfied that this is the most that can be achieved by this Grand Jury.

  The Grand Jury is also aware of the Commonwealth Attorney’s concern for the family of Susan Smith and the desire at all times to be able to bring this matter to a conclusion for their peace of mind. The decision of how best to proceed when faced with the facts and the circumstances which John Paul Runyon and the investigators were given was most difficult. The decision made, without question, was correct, appropriate, and in the best interest of the family and the citizens of this Commonwealth.

  It is the Grand Jury’s opinion that the charge of manslaughter and the recommendation of 16 years in prison reflect the realities of this case. Obviously Putnam would not cooperate with the investigators and reveal the location of the body without assurances that the Commonwealth would recommend less than the maximum possible sentence. The information given by Putnam and his plea of guilty have two positive results. First, the family of Susan Smith can now know her fate and can begin to adjust and reconstruct their lives with this painful knowledge. Second, a guilty man will be punished for his crime.

  The Grand Jury sincerely hopes that this inquiry by a duly assembled and randomly selected Grand Jury of 12 impartial Pike County citizens will help to clear up some of the erroneous, irresponsible and seemingly deliberate false statements disseminated by the media.

  On her way into the courtroom to hear Mark’s plea, Shelby got caught with a loaded .38 in her purse, wrapped in a thick cotton sock. It set off the metal detector when she passed through. “I just plumb forgot I had that gun,” she explained. She was promptly disarmed and two state troopers accompanied her to her seat.

  Up front, waiting for the judge, Runyon rolled his eyes when he was told what had caused the commotion in the back of the courtroom. Mark, waiting with his lawyer in the witness room, didn’t know anything about it. A few cops milled around in the jury room, and Mark caught the eye of Bert Hatfield and tried a feeble joke that he regretted immediately: “You remember when you told me that girl was trouble?” Bert winked and made a small clicking noise with his tongue.

  “There’s a lot of media out there,” a court marshal said apologetically, explaining to Mark that he would have to handcuff him after the plea for the benefit of the cameras from the Lexington television stations. Mark appreciated the consideration of being told what to expect.

  He considered his court appearance a technicality, since in his own mind the verdict had already been given and the sentence was in place. This allowed him to brace himself for the ordeal with a measure of concealed contempt. Had things worked out for him in Pikeville, Mark had expected to be a key investigator in the federal probe of political and judicial corruption in eastern Kentucky. He had to accept the cruel irony of standing there, accused and guilty under the scornful gaze of several people whom he had once anticipated he would help indict.

  It was the first time he had ever appeared in court dressed in anything other than a neat business suit. Instead, he wore blue jeans, sneakers, a white shirt unbuttoned at the collar. Only the fact that his shirt was wet with sweat and clinging to his back betrayed the deeply conflicting emotions he felt as he stood at the defense table. The room smelled of fresh paint. Every seat in the little courtroom was taken, and spectators were crowded at the entrance, straining to see inside. He could hear whispers and titters. Whenever he turned his head, he saw faces hidden by cameras. The still cameras made nervous fluttering sounds; the television cameras were silent and watchful.

  Court was called into session. Pike circuit judge Bayard Collier opened the proceedings with a soliloquy on the majesty of the law. Drifting out of time and place, Mark thought about bracelets. At the academy, they called handcuffs “silver bracelets.” They had explained that the bracelets had both practical and psychological functions: one to disable a prisoner, the other, sometimes equally important, to humiliate him. Mark rubbed his wrists together, wondering how they would feel.

  “It was sixteen years or nothing at all,” Judge Collier was intoning from the bench, calling Mark back to attention. “If I had not accepted, or expected to deny, the motion to accept the plea, then according to the law I would have had to tell Putnam and his attorney that in advance. At that point, he simply would have withdrawn his confession and we would have been back to square one.” The judge peered down portentously at the cameras. “No evidence, no case.” Shutters chattered in response.

  The judge looked at Mark and asked if he was in agreement with the terms of the plea arrangement.

  Mark forced himself not to clear his throat and said, firmly and loudly, “Yes, sir, I am.” The judge didn’t meet his stare. He appeared to Mark as if he were at the end of a long tunnel.

  A voice whispered in Mark’s ear to put his hands behind his back. A drop of sweat collected on his eyebrow just at the top of his vision. The cuffs snapped on with the resonance of a car door slamming. The cameras clucked with satisfaction. The judge imposed the sentence. The whole thing was over in less than a half hour. Having no idea where he was going, Mark said good-bye to his lawyer and was led out of the courtroom by two marshals.

  A few days before the court session, Runyon, unable to convince Shelby that he had negotiated the best deal he could get, had advised her, “Hell, Shelby, if you don’t understand what I’m telling you, go get you a lawyer, somebody you trust, to explain it for you.”

  The next day, Runyon had received a phone call from Larry Webster, a tough-talking young Pikeville lawyer whose business cards depict a bungalow set in a mountain holler. Webster often defended hill people in criminal cases. Runyon distrusted him with grave wariness, believing that he harbored political ambitions. But Runyon at least credited him for having a modicum of intelligence, and he thought Webster would have set Shelby straight.

  “Look, Larry, explain it to her,” Runyon said.

  But Webster was staking out a new claim. “Well, the FBI could have done more.”

  “Larry, I’m in a position now where that’s immaterial. They didn’t. We’re beyond that point.”

  The morning of Mark’s court appearance, Webster, representing Shelby and other members of her family, filed a civil action charging that Mark Putnam “wrongfully caused the death of Susan Smith.” Webster said he would be asking “millions of dollars” in punitive damages. From that point on, the suit would be a silent factor in much of the controversy that was about to occur over the plea arrangement and confession.

  Runyon had anticipated a certain amount of backlash. “Mountain people think that certain people can get anything done,” he would later say. “They’re real quick to say, ‘Well, hell, he was bought off’—and I have to admit with a certain degree of justification.” But he was surprised and somewhat overwhelmed by the resonance of Shelby’s protests, reflected in a strong and negative reaction in the out-of-town papers. Runyon had expected controversy, but he hadn’t expected anyone to say he’d let the killer off with a light sentence. He was proud of the bargain he had driven.

  Yet it was true that the plea arrangement was drafted and adjudicated in a way that precluded any public examination of the complexities of the case—including the questionable performance of the FBI both in tolerating the exploitation of informants like Susan Smith and in neglecting to investigate aggressively when circumstances indicated that one
of its agents was involved in a scandal and perhaps a crime. The killer was in and out of court in a flash, and the record reflected only his formal seven-page written confession. There was no opportunity for dispassionate examination of the events that had led to the crime.

  With the victim’s aggrieved family denouncing the result, this was a recipe for a kind of media reaction that fed not on information but on well-placed and quite reasonable sounding innuendo. Runyon was about to learn that he couldn’t control it with a few phone calls and an avuncular chat.

  After the sentencing, Runyon held his first press conference in eighteen years as Pike County commonwealth attorney.

  “Someone here this afternoon asked if justice has been rendered,” Runyon said. “Justice is a result of doing the best you can with what you have. Justice, like beauty, is in the eye of the beholder.” Without the confession, authorities had “absolutely no evidence,” he said. “Not one scintilla or shred of evidence to bring a charge or convict this man.”

  “Well, what if the body was found?” he was asked.

  “Believe me, they couldn’t have ever found it.” He didn’t mention that by the time Mark told them where the body was, the ravine was about to be filled in by the mining company. He tried to explain that he saw only two options when Mark’s lawyer phoned to discuss a deal: “To hang up the phone and do nothing, or to start negotiations of some kind.”

  Why did the suspect confess, then?

  “I happen to believe that his conscience played a major role, conscience and a hope to save his soul.” The prosecutor happened to believe that it was as simple as that.

  The prosecutor had been annoyed by the FBI’s official dismissal of the matter as a state case, and Runyon insisted that Terry O’Connor from the Lexington office attend the press conference to answer questions. Runyon had no intention of letting the FBI off the hook, but the questions were perfunctory and reflected no interest in the systemic problem underlying the case. Media apathy enabled the FBI man to say merely, “This incident has damaged the FBI’s reputation and its most valuable asset, that being the public trust. We are following up on this, and I would expect some administrative changes to result from it.”

  It would be the last official statement the FBI would make on the case.

  Meanwhile, Shelby had her own reckoning with the law. The state police officers stayed with her through the sentencing proceedings and then took her to headquarters in Pikeville, where she was cited for carrying a concealed weapon and released on her own recognizance in time to get back to the courthouse a few blocks away and talk to reporters out front.

  What about the gun charge? “I told them, ‘Lord, I wasn’t going to do nothing. I wouldn’t shoot nobody at all. I always keep my pistol in my purse, but when I get out of the car, I take it out and put it on the seat. This morning I forgot.’”

  Runyon didn’t think she intended to shoot Mark Putnam either, no matter how it looked. In eastern Kentucky, carrying a gun in your purse was something even the best of people might do. Runyon could recall a tearful phone call he had received a few years ago from a prominent Pikeville woman who had gone to Washington, DC, on a trip and ended up in federal custody. It seems she had forgotten about the pistol in her purse when she went on a White House tour. Runyon had to make a number of phone calls to get her out of jail and have the charges dropped.

  Shelby’s explanation about the gun was at least plausible, although one state police official maintained that she had really brought in the weapon for “publicity purposes.” The fact was, for a woman with a gun charge over her head, Shelby was getting a lot of publicity denouncing as a slap on the wrist the sentence for the man who killed her sister. “This is the dirtiest county I’ve ever seen in my life,” she said. “I think they’re covering everything up.”

  In the hubbub over the plea agreement and Mark Putnam himself, it was easy to lose sight of the victim. And Shelby was determined that that not happen. Even though they fought, the sisters had been close—it was to Shelby whom Susan turned when she was most in trouble. Whatever else might be said about Susan, she had been exploited and abandoned by an institution that employed her and by a man she trusted. Shelby was determined that attention be paid to Susan even if she did tend to trumpet her own role in her sister’s life.

  “She was more like a daughter to me than a sister,” Shelby told the Williamson Daily News, published in a small coal city up the Tug Fork on the West Virginia side. She said she had warned Susan to stop seeing Mark “because he was married and had a family. And also, I didn’t want her to because I felt she was in danger, that he was using her as an informant, informing on people around where she lived and I lived and she was staying with me. I felt like we were all in danger because of her fooling with him. . . . He had a violent temper, she told me that.”

  Later in the summer, scheduled to appear in court on the misdemeanor gun charge, Shelby retracted her denunciation of the prosecutor’s office: “I do apologize; he, Runyon, was right and I was wrong. I just didn’t understand what they were telling me before.” She insisted that her about-face had nothing to do with the gun charge: “I was not told to make an apology. I hold my hand to God, I have never been coerced. I talked to my mom and dad and we all think John Paul Runyon and the state police done real good on this.”

  Why the change of heart? “Once I got my rest and got to thinking about it, they just did the best they could with what they had. The FBI is the one to blame. I got no cooperation from the FBI and, in fact, was insulted by one of their agents. An FBI agent killed my sister and the FBI tried to cover it up. I believe the role that the FBI played should be thoroughly investigated and a full public disclosure made.”

  Still, she expressed sympathy for Mark. “I do feel sorry for the boy,” she said, having had her first look at him in the courtroom. “He did look pitiful.” She explained that her Sister was “so in love with him” that she wouldn’t heed her warnings about the dangers of working as an informant. Susan “just went crazy” when Mark told her that he and his wife would adopt the child if it was his. “Right to this day, I don’t think she would want us to say anything about Mark.” But Shelby added, “There is no excuse for what he done and he will pay for the rest of his life. I don’t think he really meant to kill her. He just panicked.” Still, she said, “I will never forgive him for what he did to my sister; I just hope that one of these days he can forgive himself.”

  The peace Shelby decreed with the prosecutor’s office did not hold for long. After the gun charge was dropped, she changed her position and again withdrew her apology, “I didn’t mean a word of it,” she said.

  Shelby’s instincts for publicity were unfailing. The prosecutor’s office, which had been quietly pleased with the sentence extracted from the negotiations with Putnam was pummeled in the press for letting the killer off lightly. While the state’s most respected newspaper, the Courier Journal in Louisville, applauded the plea arrangement, the only daily newspaper circulated throughout eastern Kentucky, the Lexington Herald Leader, set a tone that would influence other newspapers and television stations in Lexington. In the absence of detailed information about the investigation, assertions were treated as fact. One editorial stated, “Putnam once threatened Smith when she talked to him about the pregnancy”—an allegation made solely by Shelby.

  An editorial in the Ashland (Ky.) Daily Independent, denounced the “light sentence” given to Mark Putnam and proclaimed that a “murder charge would have been more appropriate.” Among the grounds it cited, inaccurately, were that there was “evidence of Putnam’s involvement in Smith’s death before his confession”; that “an argument between Smith and Putnam could apparently be heard in the motel”; and that “a cracked windshield in the rental car indicated that a scuffle could have taken place,” which ignored the fact that the windshield was repaired long before anyone had reason to believe Susan Smith was dead.

 
Runyon thought such editorials were idiotic and encouraged wild conspiracy theories, but he also believed that they validated one of his favorite axioms: “A lie can go around the world twice before the truth gets its socks on.”

  In Pikeville, of course, the controversy reached feud proportions immediately. Shelby’s lawyer, Larry Webster, had a regular column in the twice-weekly Pikeville paper, the Appalachian News-Express, which ran under the pen name Red Dog. He wrote, “It used to be that the crooks had to do their own killing of informants. The government is so efficient now that they do it for the crooks. The agent who strangled that girl sure was lucky he didn’t accidentally kill her in a car wreck. He could get life for that.”

  Meanwhile, the newspaper’s publisher, LeJeune Waggoner, offered these tips in a column under the headline “How to Get Away with Murder”:

  1. Be sure and commit the crime in eastern Kentucky, preferably Pike County.

  2. Make sure your victim is poor and white. Do not kill a minority or a man.

  3. Make sure the prosecution, grand jury and judge dance to your jig.

  4. Be specific where you want to spend your time. Do not accept any ole Kentucky state pen.

  5. Be sure and make enough money to be a yuppie so you can hire a fancy out-of-state lawyer.

  6. It helps if the taxpayers furnish the money to buy drinks and other party favors. Most any man can impress girls if Uncle Sam is paying the tab.

  7. Remember hillbillies from eastern Kentucky are kind of second-class citizens and sometimes you can kill two for the price of one—it helps if you’re the father of one.

  The prosecutor’s defenders rushed to respond. Ten members of the grand jury released a statement denouncing Waggoner’s column as “irrational and without any basis in fact.”

  “From a prosecutor’s perspective, sixteen years was pretty darn good,” William B. Johnson, the president of the Kentucky Association of Defense Attorneys told reporters. Frank Haddad, a past president of the same association, said that as a defense lawyer he would never have considered trying to make a deal with a prosecutor who had no evidence. “I would have said, ‘Bring your indictment and let’s go to trial.’ They would never have been able to make the case.”