[2020] The Third Rainbow Girl

by Emma Copley Eisenberg

  In the end, most of that 1985 meeting was spent discussing how Gerald Brown might still be the one and, if he was, how to prove it. They couldn’t prove he’d fired the gun, but Weiford and Alkire strongly suspected that Brown had been there when Vicki and Nancy died. They were disturbed specifically by Brown’s cavalier attitude toward the charges when arrested and his cavalier attitude toward death generally.

  Worse, his wife, Drema Brown, had divorced him in 1983 on the basis of “extreme mental cruelty,” and there was also the troubling fact that Brown had given his girlfriend a necklace that belonged to “one of my Rainbow friends” and several times driven her up to Briery Knob to cry.

  At the end of the meeting it was decided that Alkire, DiFalco, and the other officers would continue investigating both Franklin and Brown as suspects. Then Alkire was transferred to Parkersburg, and DiFalco was also reassigned to another county; eventually she moved to northern Virginia to work with US Customs.

  The first time Franklin called DiFalco was on February 14, 1985—Valentine’s Day. He wanted to chat, to tell her about a newspaper article that someone was writing about him.

  “He just took a liking to me,” DiFalco says. “He was a little creepy, a little strange. He would call me, a lot, over the years.” Sometimes during these calls, Franklin would drop into conversation the name of the small city in Maryland where DiFalco’s parents still lived as a way, DiFalco felt, of saying, I know you. But she was not frightened of him, she says. “He mellowed over the years.”

  Okay, so I lied, Franklin said during that first Valentine’s Day call. I did rob that bank in North Carolina. But that’s it, I didn’t kill anyone. Franklin asked DiFalco if she could send him the pictures of himself from the bank robbery. She told him no.

  3

  THE PRECISE PROCESS WE ARE talking about when we say, “believe,” and where we think it happens—the brain? the heart? the stomach?—are poorly understood. DiFalco believed Franklin when he said he had done the killings, while Walt Weiford and Sergeant Alkire did not. We tend to treat believability as if it were synonymous with truthfulness or akin to solving a mathematical equation, but the relationship between what is believable and what is true and, further, what makes a story believable to one listener but not to another turn out to be some of the murkiest parts of human cognition.

  The twelve jurors who voted to convict Jacob Beard were given the following instructions: “After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness’s testimony, only a portion of it, or none of it.…In making your assessment, you should carefully scrutinize all of the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness, in your opinion, is or is not worthy of belief.”

  The instructions also asked them to consider, when determining believability, “each witness’s intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand.” Yet much of this—“every matter in evidence,” a witness’s “appearance and manner”—leave great room for subjectivity. Judge Lobban several times directed the jury to use “common sense” and to view the evidence “in the light of your own observations and experience in the ordinary affairs of life,” as if this would manifest twelve identical metal compasses.

  For centuries we believed that humans are generally rational beings, applying rational thought and usually achieving sound judgment, except under circumstances where our feelings get in the way. But in the 1980s, just after Vicki and Nancy were killed, a sea change began to sweep through the scholarly community. What if it wasn’t that our feelings were the source of our errors in logic, experts began to ask, but rather that our “machinery of cognition” contained errors in its very design?

  Scholars who studied the processes of mind relevant to civil and criminal trial proceedings took up this idea with gusto. Researchers Nancy Pennington and Reid Hastie at the University of Colorado applied it to studying the workings of the minds of judges and juries and published a series of studies in the late 1980s and early 1990s that advanced a theory called the Story Model. Their theory holds that cognitively, instead of taking in each piece of information one at a time and judging it on its logical merits, humans judge legal evidence en masse, forming a story out of it. We then match the story we have built to the relevant legal term—guilty or not, murder in the first or second degree, and so forth.

  Researchers found that the stories that judges and jury members construct influence their assessments of how credible a given witness is or the importance of a given piece of evidence. They also found that we tend to fill in any gaps in evidence with inferred causes and associations, consistent with the story we’ve built, and omit pieces of information that are unrelated or contradictory to our story. That is, if you’ve already started to tell yourself that the defendant is a good man wrongly accused of murdering his daughter, you will be more likely to disbelieve the ex-wife who takes the stand to testify to his violent temper and find reasons to discount the bloody footprint that matches his shoe.

  The justice process is a war between competing stories and a quest to win the imaginations of the people who matter at every stage—investigators, prosecutors, judges, and juries. But what factors determine why these people choose one story over another?

  Most experts in the field have come to the consensus that it is the “ease of story construction”—that is, the easier it is for the parties that matter to form a story out of the events in the first place, the more likely they are to believe that story.

  According to the Story Model, two characteristics determine how “believable” an average person will find a particular story: coverage, or the extent to which the story accounts for evidence presented at trial, and coherence, or the story’s wholeness, lack of contradictions, and “plausibility”—“the extent to which the story is consistent with knowledge of real or imagined events in the real world.”

  The more familiar the story is, then, the easier the narrative connection forged between teller and listener. At its most basic, many experts say, our brains work by slotting our experiences into molds of classic stories. Each time we hear a new story, we figure out what it means by trying to match it to one of our stored narratives. “We are always looking for the closest possible matches,” write Roger Schank and Robert Abelson, professors at Northwestern and Yale, in their essay “Knowledge and Memory: The Real Story.” “We are looking to say, in effect, ‘Well, something like that happened to me, too,’ or, ‘I had an idea about something like that myself.’”

  In terms of plausibility, it’s not hard to see things from Alkire or Weiford’s perspective. A mentally ill white supremacist serial killer roaming the nation is unfamiliar enough, let alone one who happens to be passing through one of the most rural counties in the United States, miles from any interstate, at the exact same time that thousands of other outsiders also happen to be passing through it. In America, where misogyny and violence against women are rampant, in a county where alcohol use is high, a story of local men fueled by alcohol killing women for no reason may feel strangely and deeply familiar.

  It is also widely known that judges and jury members’ perceptions of witness credibility are seriously influenced by seemingly irrelevant factors and that prepackaged stories from the world affect these judgments too. Jurors tend to see experts offering scientific testimony as more credible if they are attractive and confident. Rape victims who speak loudly or with anger or who do not break down in tears or who once went on a date with their rapist are less likely to be believed, studies show, because these actions deviate from the preconceived stories of rape we know. “When creating their stories jurors rely on their mental scripts that include stereotypes and regular arrangements of events,” writes scholar Katharina Kluwe of Loyola University Chicago. “Accordingly, they use their existing knowledge and beliefs to fill in missing information, to sort out contradictory evi
dence, and to determine the believability of a story.” Our courtrooms then, are where some of our most toxic stereotypes and flattest truths are made and reinforced.

  This view seems deathly dark unless you think of our brains less as maliciously negligent and more as simply inclined toward rest and relaxation. This is essentially what Daniel Kahneman argues in his acclaimed work Thinking Fast and Slow, in which he writes that we all have two “systems” working in tandem to conserve our mental resources and function efficiently: System 1 is fast, instinctive, automatic, subconscious, and constantly busy generating impressions, intuitions, intentions, and feelings; System 2 is logical, effortful, comprehensive, and slow. System 1 requires little of us and is sufficient for most of our everyday functioning, but it’s not equipped to handle complex processes like long division, deciding which house to buy, or holding two conflicting ideas in the mind at once. Most of our mental questions are ones we do not even know we are asking, and they are answered by System 1, but when there is a question for which System 1 has no reply, System 2 is pushed into action.

  We don’t like this idea that System 1—a force outside our conscious control—exerts such enormous influence over our mental life, but according to Kahneman, it is so. “You believe you know what goes on in your mind, which often consists of one conscious thought leading in an orderly way to another,” he writes, “but that is not the only way the mind works, nor indeed is that the typical way. Most impressions and thoughts arise in your conscious experience without your knowing how they got there.…You know far less about yourself than you feel you do.”

  System 1 is continuously taking in information from the world and spinning a story from it. Your most intimate friend says a single word into the telephone, and you know she is angry with you; a tall man on the subway platform is shouting curses, and you sense a threat and move away. System 1 also identifies incongruity and reacts with surprise; Kahneman offers the example of an upper-class British man’s voice saying, “I have a large tattoo on my back.” Studies measured that the brains of participants had a response to this in just two hundred milliseconds: something is off; something does not make sense; people with moneyed British accents cannot also have large tattoos down their backs.

  “If endorsed by System 2, impressions and intuitions [generated by System 1] turn into beliefs, and impulses turn into voluntary actions,” writes Kahneman. “When all goes smoothly, which is most of the time, System 2 adopts the suggestions of System 1 with little or no modification. You generally believe your impressions and act on your desires, and that is fine—usually.”

  There is just one problem: System 1 is a blunt tool—it has so much work to do that it cannot afford to wade into the fine print every time—so it operates from the perspective of categories—the most typical case, the most plausible meaning—and thus produces the best story possible out of the information available. It tends to minimize ambiguity, suppress doubt, and exaggerate coherence—the degree to which the elements of the story go together, cause each other, and add up to a meaning or message—in order to tell stories that reinforce our existing judgments and beliefs. We are evolutionarily programmed to make links between our perceptions and their most likely meanings. “Coherence means that you’re going to adopt one interpretation in general. Ambiguity tends to be suppressed. Other things that don’t fit fall by the wayside, Kahneman instructs: “We see a world that is vastly more coherent than the world actually is.”

  Can such errors in thinking and judgment be overcome? Kahneman says, essentially, no.

  4

  AT THE FEDERAL PRISON IN Marion, Illinois, where DiFalco visited him, Joseph Paul Franklin lived in a special semi-isolated section called K Unit, which housed, in solitary confinement, celebrity prisoners and those who had committed the kinds of socially condemned crimes that made them vulnerable to attack. Franklin was both. He was sure the government wanted to kill him, that the guards were poisoning his food and mail. He threw away his letters and refused to eat. Then the K Unit was dissolved, and Franklin was moved into a prison unit that offered less protection. His delusions turned to hallucinations.

  On a dark winter night in October 1994—he’d been locked up fourteen years—a “Spirit Guide” appeared to Franklin. It helped him, he said, and told him how to feel about what had become of his life. “Most of the time my Spirit Guide comes to me in dreams,” Franklin told a reporter. “Sometimes I see my Guide in a dark corner of my cell, sometimes in the day, sometimes at night.” His Guide told him that even though Missouri had the death penalty, in the case of the Jewish man exiting the St. Louis synagogue, it was time to confess, for it was fundamentally immoral to kill a person exiting a place of worship. Franklin spoke to an FBI agent and was soon whisked off to a Missouri jail. Other death penalty states came knocking once more about cold cases.

  Melissa Powers was two years out of high school when cousins Dante Evans Brown, thirteen, and Darrell Lane Brown, fourteen, were murdered in that Cincinnati street under a railroad trestle. “This is one of the most horrible crimes that has ever happened in our community,” Cincinnati prosecutor Joseph Deters said in a 1998 TV interview. “The nature of it was so cold-blooded and senseless.”

  Growing up in Cincinnati, Powers had wanted to be a fashion designer and had the genes and the blond hair for modeling, so she posed for fashion snaps and competed in runway competitions to pay for design school. She graduated, met a guy, had a son, separated from the guy, and went to law school while still modeling during her off hours, ending up in the Cincinnati district attorney’s office. Her job was to do research for Deters, write briefs, and occasionally to argue a case—mainly traffic tickets and drunk and disorderlies.

  Franklin had been a suspect in the Cincinnati murders of the two young boys after his capture in 1980; Cincinnati police could put him in the city at the time of the crime but had nothing more. To convict Franklin of the cousins’ murders, a confession to a certified law enforcement official would be necessary. But Deters had had no luck—his requests for interviews with Franklin had all been rejected. Word had spread among law enforcement agencies who needed confessions from Franklin that he preferred women investigators and reporters, particularly if they were “attractive.” Powers had heard this, too, and her ambition to solve the Brown murders had only grown as she researched and studied Franklin’s crimes.

  In the winter of 1997, Deters called Powers into his office, said he had something to show her, and popped a VHS tape into the player. In the taped interview, given a year earlier, Franklin’s hair was lank and shoulder length, and the camera stayed tight on his face. “I am a natural born killer,” Franklin said in the video. “You know what I’m saying?”

  Deters asked Powers if she would be willing to journey to Potosi Correctional Center near Mineral Point, Missouri, where Franklin was then being held on death row.

  “We told [Powers] flat out, I’m only asking you to do this because of the way you look,” Deters said.

  Powers agreed to try. When she contacted Franklin, she sent a picture of her prosecutor’s photo ID card.

  That April, Powers drove to Mineral Point for the meeting. Franklin freely admitted to killing the two young cousins. Why? Powers asked, recording the interview. “I was trying to get rid of all the ugly people in the world,” he said. “I considered the blacks the ugliest people of all.”

  In an MSNBC documentary about these events, Powers says she felt that she had spoken to “somebody extremely evil, someone that is very much the devil walking on this earth.” She also told the Cincinnati Enquirer, “He’s evil and he’s a weak person. Killing was his way of feeling powerful and important. This is a person who is alive when he is killing.”

  Three days after meeting with Powers and thirteen years after meeting DiFalco, Franklin called the Cincinnati prosecutor’s office, asked to be connected to Powers, and told her that he’d killed two women in West Virginia and wanted to confess to that too. He’d heard that some guy in West Virgi
nia was locked up for it. “The only thing I can say is he was convicted just due to the sheer number of people lying about it,” Franklin told Powers.

  He described the women and their clothing, said that he had stopped at a convenience store with them, that he had placed their bodies in a field after he shot them, and that he dumped their belongings—which he remembered as army military duffels—off the highway he took toward Lexington, Kentucky. He now said he’d shot the women inside his car while one sat in the passenger seat and the other in the backseat. He said he thought he had fired three shots—the actual number is five—but was sure he had been driving a Chevy Nova then. He said that his bullets went through their bodies and that the shots had maybe shattered the passenger-side window, which he had rolled down. He said he had killed the “dirty-hippie-type broads” because they admitted that they were “into race mixing.” He asked Powers to contact the authorities in West Virginia and also to return and see him again, if she wanted another sworn confession.

  Powers drove back to Potosi the following week.

  “Did you get any emotional satisfaction out of killing either one of those girls or both of the girls?” she asked him.

  “What do you mean?”

  “Was there any—emotional, did you get, I guess, what was your feeling afterwards? Or during?”

  “I’m not really sure, you know. It’s not that you get emotional satisfaction. It’s just that you, you know, it’s someone you think should be wasted, you know. So I just went ahead and wasted them. You know?” Franklin said. “To me it was just, you know, something I had to do. It’s a nasty job, but somebody had to do it.”

  “Can you see their faces in your mind? Can you see them?” Powers asked.

  “Basically yeah, I can see them.”

  Newspaper reports exploded the next day with headlines like “Prosecutor Face to Face with Monster,” “Former Model in Peril,” and “High Fashion Prosecutor Gets Her Man.” The MSNBC documentary produced later was dubbed Beauty and the Beast.