[2020] The Third Rainbow Girl

by Emma Copley Eisenberg

  This title may speak to a truth about how many understood Franklin at the time, as well as his crimes, and the events that drew Powers into his orbit. Though we in the United States have adopted an eighteenth-century French version of Beauty and the Beast as our own, variations on the story of a young girl forced to marry a hideous animal because of her father’s crimes exist in language traditions and countries all over the world, including Italy, Spain, Germany, Denmark, Switzerland, Romania, Ireland, Scotland, Norway, Russia, India, China, and Greece. A 2016 comprehensive that used two thousand “types” of stories from more than two hundred societies found that only fourteen stories could be traced all the way back to a time before languages split into their current branches, somewhere between twenty-five hundred and six thousand years ago. This story is one of them.

  There was no animal and no father and no marriage in the real world of course, but the media comparison of Powers and Franklin to this tale tells us something in the language of story truth: people don’t kill other people for no clear reason, we say; only animals do. Fathers rack up the balance. Daughters pay it.

  5

  THE WEST VIRGINIA STATE PENITENTIARY at Moundsville was under a state order to close when Jacob Beard stepped off the bus there in 1993. During a riot several years earlier, prisoners took control of the facility—guards were handcuffed with their own handcuffs, and three inmates were killed—earning the place a spot on the list of “The 10 Most Violent Prisons in America.” Prisoners picked some of their cell locks easily; other locks hadn’t worked in years. The cells didn’t have solid walls or doors but were only bars facing the catwalk. It was common for inmates to smuggle flammable liquid out of one of the job shops, reach through the open bars of their target’s cell, and throw it on the sleeping inmate, followed by a lit tissue. There were roaches in the food, and fat rats ran through the cells.

  Beard had been given two life terms without the possibility for parole.

  “I maintain my innocence,” Beard said at his sentencing a month after his trial’s conclusion, on July 16, 1993. “I was wrongly accused, and I was wrongly convicted. This past year has been a tragedy for myself and my family.” His daughters were in the courtroom and intertwined their hands as he spoke, then hugged him and each other before he was taken away.

  In prison, Beard’s health plummeted. At the time of his sentencing, he was experiencing high blood pressure at near stroke-causing levels. “His blood pressure is so high I would consider it critical,” his doctor wrote. “To my knowledge he had none of this medical problem until the present legal problems arose.” Decades of heavy alcohol abuse had tanked his liver and his stomach. “Mr. Beard reports that he has not consumed alcoholic beverages since September 1990, but readily admits an alcohol problem,” wrote his counselor.

  He was also taking Tofranil, a drug indicated for major depression and suicidality. Prison medical records reveal Beard was struggling with severe anxiety episodes at first believed to be heart attacks. “This patient has a major stress syndrome and needs, very likely, hospitalization,” a report noted. Beard had exhausted his finances. “He is so distraught over the legal matters he is unable to sleep or function.”

  Moundsville sits in the thin northern panhandle of West Virginia, which extends into Pennsylvania, and it was hard for Beard’s family, split between Florida and Greenbrier County, West Virginia, to get there even if they had wanted to. He spoke to his daughters on the phone sometimes, but things were still strained with Linda.

  Then in February 1995, Beard was on the bus that took the first forty prisoners to the new and more modern Mount Olive Correctional Complex in southwest West Virginia, which at least had solid cell walls. These early arrivers were to get the prison ready to open—clean, move tables and chairs—and got better cell assignments as thanks. Slightly improved, Beard could now participate in his appeal.

  At the jump of Beard’s trial, Weiford had made a motion to bar the defense from presenting testimony that suggested Franklin killed Vicki and Nancy, arguing that any such testimony would be unreliable hearsay. Beard’s lawyers had wanted to bring Franklin in person to testify at the trial, but by 1993, nine years after Franklin whispered to DiFalco that he had done it, something had shifted in him again, and he was unwilling to cooperate, ignoring letters and calls from Beard’s lawyers and refusing even to give a deposition that could be read as a sworn statement in court. Undeterred, Beard’s lawyers planned to introduce into evidence Franklin’s March 1, 1984, confession to Wisconsin agent Smith and to call DiFalco to the stand to testify about the hand-drawn map and her investigation.

  “These statements have sufficient guarantees of trustworthiness and should be admitted by the Court,” Farmer had written, adding that “the admission of these statements is in the best interests of justice.”

  Weiford argued that they were not. He reiterated the reasons why he felt Franklin’s confession was not believable—the lack of route numbers on the map, the faulty distance estimations, the wrong name of the county where he had supposedly killed them.

  Farmer cited Federal Rule of Evidence 804(b)(3), which states that a confession from someone other than the defendant “offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement”; the map that Franklin drew was clearly corroboration, Farmer argued.

  But Franklin had since gone back on the confession he gave to Wisconsin agents, Weiford countered, when he refused to talk on tape to Debbie DiFalco. Perhaps he was simply trying to snatch credit—build his murder portfolio?

  Judge Lobban agreed and granted the prosecution’s motion—mostly. “I propose to let our officers say what they did in the course of the investigation, but not say what he said specifically,” Lobban stated, “other than he made statements that ‘I did it,’ and he made statements ‘that I didn’t.’” Invoking the four life sentences Franklin was already serving for crimes in other states, the judge called Franklin “a four-time loser” with nowhere further down to go.

  In 1994, Beard’s lawyers submitted his case to the West Virginia State Supreme Court of Appeals, raising as grounds the use of hypnosis techniques, the lack of competency hearings for Walton and Lewis, the state’s use of witnesses who gave knowingly false testimony, and Judge Lobban’s refusal to allow the defense to present evidence that would support a Franklin theory of the crime. Farmer, now a more established attorney in the firm, was the one to talk to Beard on the phone, visit him in prison, and prepare the briefs.

  The court denied the appeal on most grounds, except for a legal technicality that acknowledged the police might have erred by using information Beard gave them at the meeting when he had been given immunity for “the cat thing”; it threw the decision on that back to Lobban. After reviewing all the evidence, Lobban ruled against Beard on this matter as well—he felt Alkire and Weiford had not erred and that the outcome in the case would have been unchanged.

  Stephen Farmer stayed on Beard’s case long after the money was gone. He felt the appeal process had given Beard only one option: to appeal Lobban’s ruling on the technicality back up to the state supreme court. But Farmer also felt strongly that this was a fruitless path. Instead, in 1997, he filed a motion for a new trial based on the sworn confession Franklin had made to Cincinnati prosecutor Melissa Powers.

  In Pocahontas County, Walt Weiford was no longer any kind of prosecutor but rather a regular lawyer in his own practice. Alkire had retired from the West Virginia State Police in 1994 and was now pursuing a political career running for county sheriff. Yet they both appeared for the hearing on Farmer’s motion for a new trial, reprising their old roles. Weiford argued that Franklin had already confessed to the killings before Jacob Beard’s 1993 trial and his statement was not newly discovered evidence; if the defense had wanted to use Franklin’s testimony, they should have done so then. But Farmer reminded the court that Franklin had been unwilling to cooperate at the time, refusing all of Farm
er’s requests for an interview.

  Well, Lobban said to Farmer, call your witnesses. Let’s see what they’ve got to say that we haven’t already heard.

  Farmer called Powers first, then Deborah DiFalco.

  “He was really disturbed after he found out someone had been convicted of these murders and was in jail. That seemed to bother him a lot,” DiFalco testified. Franklin had kept calling her after Beard’s conviction. “He would be talking about some idea, some philosophy he was reading, and then he would say, you know, I just don’t understand why [the people in West Virginia] don’t believe me.”

  “Do you believe him?” asked Farmer.

  “I don’t believe that he is lying. I don’t know where he would get his facts from if he didn’t have some knowledge about it.”

  Weiford called Alkire as a rebuttal witness to show that Franklin’s facts—that he had fired three shots total, for example—were fundamentally flawed.

  Farmer then cross-examined Alkire. “That’s happened to you in other cases. When the guy says I shot x amount of times, and the physical evidence is different from that, right?”

  Alkire agreed that this sometimes happened. “They usually shoot until the gun is empty.”

  Judge Lobban reminded those assembled that five conditions had to be met for a new trial to be granted on the basis of new evidence. First, he said, the evidence had to have been discovered after the trial, based on the affidavit of a new witness. Second, Beard and his legal team had to have been diligent in “ascertaining and securing” the evidence, and it had to be proven that such diligence “would not have secured it before the verdict.” Third, the evidence “must be new and material,” not “cumulative,” that is, “evidence of the same kind to the same point.” Fourth, the evidence would have to be sufficient to produce a different verdict at the second trial than at the first. Fifth, the “sole object of the new evidence” could not be to “discredit or impeach a witness on the opposite side.” In order for all of these conditions to be met, Lobban needed to hear from Franklin himself. He ordered that Franklin be deposed and charged Farmer with doing it.

  Farmer would not have to travel to see Franklin alone—members of the media wanted to go too. Thanks to Powers and a local Cincinnati journalist, Charlie Rose had heard about the case of Jacob Beard and the strange serial killer named Joseph Paul Franklin. In November 1998, a crew from 60 Minutes II traveled to Potosi. Franklin wasted no time in front of the expensive camera setup. “I did it,” he said.

  Next stop: Pocahontas County. CBS’s Charlie Rose spoke to Arnold Cutlip, who again reiterated the same version of events he’d been telling since 1980—he and Johnnie Lewis were together all day, cutting locust posts. Farmer took a statement from Cutlip to use in court: “At no time on that day did Mr. Lewis or I see the Rainbow Girls, Ritchie Fowler, Gerald Brown, Billy McCoy or Jacob Beard. At all times on June 25, 1980, Johnnie Lewis was with me, and at no time were we with the Rainbow Girls, Ritchie Fowler, Gerald Brown, Billy McCoy or Jacob Beard.” Farmer filed Cutlip’s affidavit as support for his motion for a new trial—if what Cutlip said was true, Lewis could not have witnessed Beard commit the killings.

  On Friday, January 22, 1999, Judge Lobban came into the courtroom, called the parties to order, and without much fanfare announced that he was granting Beard a new trial.

  Weiford took off his glasses and sat down. He didn’t look well. Would Pocahontas County really seek to retry Beard a second time? Lobban asked. Without hesitation, Weiford stated that it would, though it would cost the county an estimated $100,000.

  In a strange and nearly unprecedented move, Judge Lobban then set a bond amount for Beard. If he could pay it, he could walk free and stay free until his new trial began. Beard posted his bond with help from a bonding company, and two hours later, after being incarcerated for nearly six years, he boarded a plane to Florida.

  The Putnam County Courier Journal, published in Crescent City, Florida, ran a front-page photograph of Beard being greeted at the Jacksonville airport by his two daughters. A bold one-inch headline proclaimed “FREE!” In Pocahontas County, there was mourning. The Pocahontas Times simply proclaimed, “Beard Out on Bond.”

  “The Case Against Jake Beard” aired on CBS on February 3, 1999. Franklin had gotten a haircut for television, his chin shone, and light reflected off his small round glasses. Cutlip appeared in front of a vaguely golden nineties background to tell his story, emphasizing that they were just regular Joes who cut posts and sold them for a dollar each, not murderers. Beard appeared in an orange jumpsuit to assert his innocence once again. Prison had not been kind to his body—he was pale, bloated. His heart was failing; also his kidneys and lungs.

  While Beard was driving a tractor in Florida and attorneys were filing motions and going to court in West Virginia, Alkire, West Virginia State Police investigators, and the Pocahontas County Sheriff’s Office launched yet another investigation. Weiford had been a hero in Pocahontas County after he’d convicted Beard the first time; now people touched him on the arm in Foodland and asked him how he was holding up. Both Weiford and Alkire came out of retirement to completely reconstruct their case against Beard—everyone who had been interviewed the first time around and was still alive was reinterviewed.

  In May 2000, in a trial held an hour outside Charleston that took two weeks, all the original parties reconvened. All the prosecution witnesses from the first trial were present and told the same stories, even Johnnie Lewis, despite Cutlip’s affidavit. Bill McCoy, the third alleged passenger of the blue van, was transported from Las Vegas, where he was incarcerated, to give testimony. But this time, to cast additional doubt on the testimony of Walton and Lewis, the defense hired a professor of psychology named Elizabeth Loftus as an expert witness.

  In the late 1980s and early 1990s, a phenomenon called “repressed memory” rose to the public consciousness when a series of therapeutic patients, mostly women, experienced old memories of physical or sexual abuse surfacing with the help of their therapists, then sought to prosecute their attackers. One such case was that of Eileen Franklin-Lipsker, a young woman in suburban California who, in 1989, came forward to say that she had recently become aware of memories of her father molesting and murdering her best friend twenty years earlier. Her childhood friend’s case was reopened by the prosecutor for San Mateo County, and Franklin-Lipsker testified in detail about riding in the car with her father when he committed the crime, and even recalled the ring her friend had been wearing when she died. The father was convicted of murder and sentenced to life in prison without the possibility of parole.

  Similar cases followed, and approximately half the states passed laws allowing for repressed memory witness testimony. Franklin-Lipsker’s father’s sentence was later overturned, however, when it came to light that she learned the details of her testimony from a TV special that showed her friend’s crime scene; many of the other cases also turned out to be flawed, and costly civil lawsuits accusing therapists of planting memories and prosecutors of using shady statements multiplied.

  Elizabeth Loftus was something of the reigning queen in the field of repressed memory and its legal implications for eyewitness testimony, particularly when it came to disbelieving it. She had consulted or testified as an expert witness on hundreds of cases—the trial of the officers accused in the Rodney King beating, the Michael Jackson case, and the Oklahoma City bombing case among them—and advocated that the wording of the swearing-in of a witness be changed to: “Do you swear to tell the truth, the whole truth, or whatever it is you think you remember?”

  “There is virtually no credible scientific evidence that memory of traumatic events can be massively repressed for prolonged periods of time and then reliably recovered,” Loftus writes. She argued that memory does not work like a tape recorder, passively storing true observations that can be retrieved later. Rather, she believed, human memory is very fallible, susceptible to making mistakes in its recording and regurgitation as a result
of many environmental factors—leading questions, the perceptions of others present at an event, “expectations of the self or others,” and even small differences in language.

  In one 1979 study, Loftus asked participants to view footage of two cars colliding and then prompted them to estimate the speeds at which the two cars were moving. She found that they gave much higher estimates if asked how fast they were moving when they “smashed into” each other than if the word “hit” was used, and that if prompted to discuss a broken headlight that didn’t exist, participants were more likely to say it did if asked, “Did you see the broken headlight?” versus “Did you see a broken headlight?”

  Another study by Loftus’s colleagues found that 36 percent of participants claimed to have seen footage of a fictional news event called “the explosion in the Bali nightclub,” and of these, all but one (97.2 percent) were “willing to provide details of where they were and who they were with at the time” when they watched the footage. Loftus coined the phrase “the imagination inflation effect” to explain the phenomenon of why people claim to have seen actual footage of highly traumatic public events that were never captured on film—the death of Princess Diana in 1997, for example. “The widespread news coverage of such events is bound to lead people to imagine the scene in their mind’s eye which in itself may lead to the formation of false memories,” the researchers concluded.

  Loftus also set about to show that false memories can be implanted into the minds of subjects. Her studies successfully created false memories for impossible things—meeting Bugs Bunny (a Warner Brothers character) at Disneyland, for example, or experiencing fictitious medical procedures. Loftus found that many people could not differentiate between having memories of things they had actually done versus things they had imagined doing.