Dark and Bloody Ground (45 page)

Mitchell failed to rattle Bartley, who insisted not only that he had not killed Tammy but that he had not had any idea of the savagery with which she had been stabbed until his attorney had shown him photographs of the body.

It remained for Lester to try to get to Bartley. Lester’s technique was that of a fisherman. He had to bait the hook, let Bartley take it, let him run with it for awhile, play with him, then begin to reel him in. The bait consisted of a soft, inquisitive tone; the running and playing were a series of factual questions about which there could be little disagreement. Then came the reeling in and what Lester hoped would be the landing, the gutting, and the putting on ice. Lester began:

“When you got into the bedroom, Mr. Bartley,” Lester said to him slowly, hovering over each word, “I want you to describe—in detail—what you did to that little girl, Tammy Acker.”

Bartley supplied a minimal account of telling her to lie down and tying her up and removing her watch and bracelet. That was not good enough for Lester. He asked Bartley to reply precisely to a series of questions designed to place in the jurors’ minds the image of a brutal, heartless little man who was himself the killer. To these questions, Bartley answered with two or three words each:

“You told her to lie down? ... And she obeyed your command? ... How was she lying? ... What was the condition of the room? ... Where did you ask that little girl to lie down in that room? ... Was she on her back or stomach or side? ... I’m to understand that you tied her hands? ... Like this? ... What did you tie her hands with? ... Did you put a gag in the little girl’s mouth? ... And you tied that little girl’s hair right up in that gag, didn’t you? ... Did she cry or plead with you? ... Did she wrestle or fight or try to get away? ... She was just a peaceful, harmless, beautiful little girl, wasn’t she? ... Was she a pretty girl? ... She was a beautiful girl, wasn’t she? ... She didn’t have those holes in her back, either, did she? ...”

Other than the initial introductions of the photographs of the body, this was the most emotional moment of the trial so far. Lester’s questions were going to the black heart of the case. He stalked his prey, hobbling back and forth before the stand, then moving directly in front of him, blocking the jury’s view:

“Why are you crying?” Lester asked him.

“I’m not crying,” Donnie said.

“You’re not crying?”

“No, I’m not.”

"Well, you should be!”

Lester forced Bartley to look at the photographs: “Is that her? Is that her? Is that the kitchen that her lovely father, the old man, the fine gentleman and doctor—that she and he met you all in? Take a look at it! Is that the blood of her daddy on the kitchen floor? Did her back look like that? Is that what you gagged that beautiful young lady with? Didn’t she tell you, don’t bother my poor daddy, Mother just died?”

“She told me that on the way back to the bedroom.”

“You say you’ve been worried and you can’t sleep?”

“Yes.”

“Haven’t you been playing the guitar in your cell? Worried and can’t sleep? You look like you’ve gained a lot of weight, to me. Didn’t you tell me a few moments ago that I didn’t see tears coming from your eyes?”

“I’m not crying, sir.”

“You should be crying, shouldn’t you, young man?”

When it was all over, Donald Bartley had not broken down, had not changed his story, and had left the defense lawyers with little to do in their closing statements but to attempt to ridicule the credibility of Lawrence Anthony Smith and of Bartley.

Realizing how little he had to go on in terms of exculpatory evidence, Lester tried to gain the jury’s sympathy in any way he could. If they didn’t care for his client, maybe they would vote for Lester Burns and against Donald Bartley. He began his oration by enacting a kind of evangelical healing service, as if he had been struck into wholeness by the light of truth. He threw away his crutches.

“If I may, I’m going to try to stand here without that crutch. I would like to thank each of you personally for Roger Epperson and his family and myself for the awesome burden that’s been placed upon each of you by serving as a juror in this case. I would like further to thank the Commonwealth, the prosecutors—each of them—and the Court, the sheriff’s office, the Kentucky State Police and every official in this courtroom and this county. I have never been treated more kindly or nicely,” Lester said, and went on in praise of Dr. Acker. “That is one man before God Almighty in this County of Letcher who has nothing to tell but the truth! I submit to you before God Almighty as I stand here this morning that Dr. Roscoe J. Acker told you the truth!”

The specific truth to which Lester had referred was the one he had evoked during his brief cross-examination of the doctor, that nothing Dr. Acker had heard backed up Bartley’s contention that a conversation had occurred in the kitchen in which Benny Hodge volunteered to kill the girl. Momentarily Lester broke out of his humble, thankful demeanor to scream at James Wiley Craft, “Shame on you, Mr. Commonwealth! You let the rat escape! Shame on you for not trying that skunk in this courtroom!”

Lester reminded the jury that there was “only one perfect man” in
history and that even Lester Burns could make mistakes. He had misread Lawrence Anthony Smith’s rap sheet because his eyes weren’t very good. But he was glad he would not be making a more serious mistake. No one would be able to blame him for pulling the switch on the wrong man in the electric chair.

“Ladies and gentlemen,” Lester concluded, “I would submit to you—and then I’ll sit down—I’m not going to be able to find my seat—I just broke my glasses right in the trifocal—please find Roger Epperson not guilty of aiding and abetting in the murder of Tammy Acker. Please find him not guilty of the attempted murder of Dr. Acker. On the other counts, do justice as you see fit. Regardless of what the verdict is, I’m your friend and I want to thank you for the job you’ve done.”

In his final statement, James Wiley Craft reminded the jury that they were not trying Smith or Bartley. He emphasized that Tammy Acker’s body was lying on a heap of clothes, arguing that this proved that she had been killed after Bartley had ransacked the room, while Bartley was in the kitchen choking the doctor. Craft cited Shakespeare’s line about all the world’s being a stage to portray the story of this case as a tragedy written, staged, costumed, and directed by the Straw Boss (Bartley had cited Sherry’s epithet), Epperson. Benny Hodge, the strongman, had played the part of executioner. Now it was time for the jury to play their parts as the audience and to judge this play and show they understood its meaning. They should know that the tragic hero was Dr. Acker, who like King Lear had loved his daughters and had been made to suffer cruelly because of that love. In his final exhortation, Craft introduced another literary reference:

“I thought of a poem by Longfellow that I will quote to you. And I thought that if I could be permitted the insertion of just an extra phrase that it would be appropriate. And it is as follows: ‘Wisely improve the Present,’ for as I close, ‘it is thine. Go forth to meet the shadowy Future, without Fear, and with a manly heart.’ Justice must be done! The law must be enforced! Thank you.”

28

A
S IN MOST STATES
, capital cases in Kentucky are tried in two phases, the first determining innocence or guilt, the second, if the jury reaches a guilty verdict, determining the penalty, which is set by the judge on the recommendation of the jury. At 11:30
A.M
. on Friday, June 20, after receiving instructions from the judge, the jury retired to deliberate the outcome of the first phase, and Judge Hogg cleared the courtroom.

Down the hallway in the jail, Sherry took Ben Gish in to see Benny Hodge, who agreed to an interview because Sherry had told him that Gish was a good fellow and a sympathetic one. After taking a photograph of Sherry and Benny sitting together against a wall, arms and hands entwined, gazing into each other’s eyes and managing to smile, Gish asked Benny how he felt at that moment, with his fate in the jury’s hands. Was the death penalty on his mind?

“I think about it every day, twenty-four hours a day,” Benny said. “When you wake up in the morning, you don’t know if you’re going to fall to the sane side or the insane side.” He thought it was unfair that he had been pinpointed as the one who had done the stabbing. “The fact that I enjoy lifting weights doesn’t make me guilty. I’ve never used my strength to hurt anybody.”

He spoke about meeting Sherry when she was a prison guard and how she had changed his life. Things had been going fine until he had allowed himself to get involved in plans to commit the Acker robbery.

“I was minding my own business until someone came and gave me a sob story.” If he had it to do all over again, he would never have come to Kentucky. “I’d have made Booger chain me to the bed so I couldn’t’ve left that house.”

He was anxious to tell what had really happened at the Acker house, but his attorney had advised him not to. All he could say was that Bartley was lying about the stabbing.

Ben Gish’s impression, which he did not include as part of the story he wrote but confided to his parents and friends, was that Benny Hodge was not the brute he had been made out to be, and that he and Sherry genuinely cared for one another. It was difficult for Gish to reconcile the love he thought he saw between this pair with the image of someone who could murder a girl so viciously. As for Sherry, whatever she was, she was thoroughly, even obsessively devoted to this man, for whom she seemed willing to sacrifice her entire life.

Sherry did not tell Gish that she had already purchased two cyanide pills, which she was carrying concealed in her purse.

The jury, ten men and two women, deliberated for only an hour and forty minutes. At 1:30
P.M.
Judge Hogg reconvened the court and read out the verdicts. The jury found Roger Epperson and Benny Hodge guilty of murder and guilty on each of the three other counts, to which they sentenced the defendants to the maximum of twenty years on each. It remained for them to retire again to decide whether aggravating circumstances merited that death be imposed as the penalty for the murder convictions.

The defense attorneys were permitted to make pleas to the jury to save Epperson’s and Hodge’s lives. Often during this procedure before sentencing in a capital case, witnesses testify to mitigating aspects of character and personal history that might sway the jury’s sympathies. But Sherry had already taken the Fifth and could not be called; no other family or friends of Benny’s were present. Carol had also taken the Fifth; she might not have made a persuasive character witness anyway. Epperson’s family was in the courtroom, but none of them came forward. It remained for Judge Hogg to say that these men did have wives who loved them, and children, and that they had held jobs. Only Mitchell’s and Lester’s eloquence could now keep the defendants from execution.

Lester reminded the jury that many Biblical figures—Moses, King David, St. Paul—had done wicked things and had recovered to do great ones. Hadn’t Moses been eighty years old when he received the Ten Commandments? Lester also provided a detailed account of the actual process of electrocution, with reference to wattage and the smell of burned human flesh.

Carried away perhaps by his own rhetoric, Lester at one point, in a hissed aside not caught by the court recorder but heard by the jury, accused James Wiley Craft of being willing to do anything to win this case because of his ambition to be elected state representative. As soon as Lester finished his speech and the jury retired once more to deliberate, Craft exploded at Lester, calling his remark “the cheapest shot I’ve ever endured in all my years as a lawyer.” Lester, with reporters gathered round, apologized, saying Craft had presented his side brilliantly and calling him his friend.

It was nearly seven o’clock that Friday evening as the jury began their final, morbid task. They had the options of choosing any of four possible penalties: twenty or more years in prison, to add to the sixty already imposed; life in prison; life without possibility of parole for twenty-five years; or death. This time, they were gone for only forty minutes; it took nearly that long for the foreman to fill out the sentencing forms.

They chose death.

Judge Hogg read the verdict, polled the jurors individually, announced that defense counsel had waived any presentencing hearing, said that there was reason to believe that both defendants would kill again, and asked Epperson and Hodge with their attorneys to approach the bench. Neither defendant wished to make a statement. The judge pronounced the sentence of death.

“I believe we’re finished,” Judge Hogg said.

Frank Fleming had been standing directly behind the defense table. Now, as the convicted men were being handcuffed, Fleming walked up to Epperson and whispered into his ear:

“Roger, you still say Donnie stabbed Tammy?”

“Yeah,” Epperson said. “Ask Benny. Benny, tell him who did it.”

“Donnie did the stabbing,” Benny said. No one but Fleming heard him.

Sherry, sitting in a back row and crying as she watched Benny being led away, did not rush up with the cyanide. In the hours
between the verdict and the sentencing, she and Benny had scrapped their plan for suicide. There was the chance of a successful appeal, wasn’t there? If that failed, they could kill themselves.

On condition of anonymity, jurors spoke to the press. There had been no disagreement among them about any significant aspect of the case. “We all felt that Hodge did the killing,” one said. His strength had been the persuasive factor. They had believed Bartley as well as Lawrence Anthony Smith, because Smith had mentioned things he could only have learned from Hodge, the jury was convinced. “And according to the way they wrote our instructions up, Epperson is as guilty as Hodge.”

Outside the courthouse, Lester spoke to Tawny and Dr. Acker. They agreed that this had been a sad business for everyone. Dr. Acker said that he had no hard feelings against Lester, who had only been doing his job.