Blood Games (60 page)

“Was that during the same period of time that you told Mrs. Newsom that you didn’t know where he was or how to contact him?”

“Off and on, yes, sir.”

“Did he play ball when he was a young man, child?”

“Played basketball with his friends.”

“Never played baseball?”

“He wasn’t that athletic.”

“Never played baseball?”

“Not to my knowledge.”

“Where was he supposed to be living in June of 1989?”

“He was staying with friends. I don’t know where in Raleigh exactly.”

“Did you know that he was supposed to be living with Neal Henderson in June of ’89?”

“At one point he called me and said he was moving in with Neal.”

“But you never went around then?”

“No, sir. I didn’t know where Neal lived.”

“And this was the same period of time where you lost track of him, couldn’t find him?”

“Up until that point, I had lost track of him.”

“After that point, when Mrs. Newsom called you, you didn’t know where he was, did you?”

“No. She called during the spring a couple of times. I told her at the time I really didn’t know where he was living.”

“Specifically, after the 9th of June during 1989, didn’t Mrs. Newsom contact you on several occasions then trying to find out where your son was?”

“She called me a number of times, but I don’t recall what the dates of those calls were.”

“Do you know when the last time was that you had contact with your son prior to his arrest?”

“It was sometime early June, but I don’t recall the date. I honestly don’t.”

“All right, sir.”

An uncle of Joanne’s followed Jim to the stand, confirming Bart’s presence at his great-grandfather’s funeral, offering photographs as evidence.

Bart’s high school friend, Coy Odom, who had introduced Bart to Neal years earlier, was next to testify.

He described himself as being close to both Bart and Neal, but closer to Bart. “Me and Bart has pretty much been brothers, you know, pretty much.”

“And do you recall throughout high school Bart having a wooden baseball bat?”

“No, sir.”

“And do you ever recall Bart having a green army knapsack?”

“No, sir.”

Coy testified that he had visited Bart’s dorm room at N.C. State three or four times and had twice spent the night there with him, but he’d never seen a bat or a green army bag in the room.

Coy said that he hadn’t talked with Neal since the arrests, but he had talked with Bart three times.

“Did he suggest anything for you to testify to or say?”

“No, sir.”

“Did you ever play baseball?” Norton asked after Sermons had finished

“No, sir—or have
I
ever played baseball?”

“Yes.”

“Yes. I’ve played baseball.”

“Have you ever been convicted of any criminal offense, Mr. Odom?”

“No, sir.”

Norton asked if he’d seen martial arts weapons in Bart’s dorm room. He hadn’t.

“Did you look in his closet?”

“No, sir.”

“Look in his drawers while you were there?”

“No, sir.”

“So what you are saying is you don’t know what was in the closets or in the drawers or other things in the room, do you?”

“I don’t really think he had much of anything. He had a bicycle that I knew of. And I think he had a sofa that, you know, he pretty much carried around with him.”

“A sofa that he carried with him?”

“You know. Different places that he traveled. I ain’t for sure, but it seems like to me two or three places.”

“You don’t know what he had other than the bicycle, do you, Mr. Odom? Isn’t that the truth of the matter?”

“No, sir. I don’t really think he owned much of anything besides the clothes on his back.”

The next witness was a window glass manufacturer who had been sent to the Von Stein house to examine the glass in the door to the back porch after Chris’s testimony. It was not Plexiglas, he said, but standard double-paned window glass.

Sermons offered a photograph of Butch Mitchell into evidence so the jurors could see that he was black and it was passed to them.

“Any other evidence for the defendant?” asked Judge Watts.

“Your Honor, that’s the evidence for the defendant,” Sermons said.

Reporters in the audience were surprised. They had expected, certainly had hoped, that Bart would testify in his own behalf. It was not that he didn’t want to, for he did. He was certain that he could convince the jurors that he had nothing to do with any murder, but in this instance his lawyers had prevailed. Bart could testify to nothing that his plea didn’t already say, his lawyers told him. Also if he got on the stand, his entire record would be bared for the jurors. They would know that he was under house arrest and had cut his leg band and fled after John Taylor came showing the army knapsack. He couldn’t risk that, his lawyers warned. What they didn’t tell him was that his cockiness, his eagerness to argue with the district attorney, his smirking expression surely would alienate the jurors beyond hope. Silent, with his parents and grandmother behind him, he at least maintained the appearance of the “clean-cut, quintessential upper-class college student,” as one newspaper report had described him, an image the jurors might find sympathetic. It would be on that image, combined with the discrepancies in testimony and an appeal to reasonable doubt, that Bart’s fate would rest.

Bart had been busying himself working on final arguments for his attorneys to present.

“Ladies and gentlemen of the jury,” he had written on his legal pad, “the state has introduced 117 pieces of evidence, all of which have been linked to Chris Pritchard and Neal Henderson, and none of which have been linked to the defendant, except through the testimony of Neal Henderson and Chris Pritchard. These two gentlemen developed and followed through on a plan to get rich by murdering an entire family and now the state would ask you to believe them when they testify against a third party to avoid going to death row.

“Acting in their own self interest, C.P. and N.H. have caused the death of one man. Don’t let them succeed in doing it to another.

“There is as much evidence that each of you committed this crime as did the defendant.

“The defendant gave an alias when questioned by a campus police officer. Is this a strange thing for college students to do?

“When the SBI came and told the defendant he was under arrest for murder, he ran. Damn right, he ran. If he had gotten away maybe he wouldn’t be here accused of murdering somebody he’d never even met. The defendant did not run when questioned by campus police. He did not even run when brought to the station house. He ran when he was told he was being charged with murder.

“If the defendant was the brutal murderer the DA says him to be, why didn’t he strike or fight against Agent Young when he was dragging him off balance for about ten feet?

“If you were charged with murder and knowing you’re innocent, would you come along peacefully and be in the defendant’s shoes right now?

“Neal’s plea bargain was to testify against me and Chris. Chris’s plea bargain was to testify against me. Chris could’ve testified that I didn’t have anything to do with it, but the DA would’ve said he was just covering for me. The DA thinks Neal’s testimony is ‘truthful,’ even though there’s no evidence to support it. Chris made a bargain to save his life. Of course, he’s going to yes-man Neal.

“Do you have enough faith in the testimony of C.P. and N.H. to send Bart Upchurch to the gas chamber?

“ALL THE FACTS, EVIDENCE, TESTIMONY, MEDICAL TESTIMONY SAYS THAT C.P. AND N.H. ARE LYING.”

The judge decided there would not be time for final arguments this day, however, and recessed court for the weekend.

Frank Johnston, who had announced before the trial that he was running against Mitchell Norton for the office of district attorney, argued first in Bart’s behalf on Monday morning.

He suggested that the case was so confusing as to fall into the realm of the supernatural.

“I’ve listened to all the witnesses, looked at all the evidence, and I still don’t know what happened,” he said.

He went on to point out all the discrepancies in the testimony. “Inconsistencies, ladies and gentlemen, deficiencies, weaknesses. What’s happening here? What’s going on? What does your good common sense tell you? It’s like a game of Clue. That’s what the state wants you to believe. Draw cards, the ones you can’t use, just throw ’em away, don’t worry about ’em.” Among the discrepancies that Johnston pointed to was the testimony of Dr. Page Hudson, the medical examiner, about the food in Lieth’s stomach, which raised questions about the time of death.

“I think it tells us something about this case,” Johnston said. “We aren’t getting the truth.”

Hands in the pockets of his gray suit coat, pacing in front of the bench, Johnston, a short man wearing glasses, described the evidence taken from the Von Stein house.

“There is not one shred of physical evidence that ties anything that happened to the defendant, James Upchurch.”

Johnston spoke scathingly of Chris, calling him “cold, callous, bloodthirsty.” In his descriptions, Chris “slithered” into meetings and “slithered” back out. But the person Chris had hired to kill his parents wasn’t Bart, Johnston indicated; it was Neal.

“You’ve got to remember ol’ Neal is the crucial figure in all of this. Have you ever seen anybody testify who looked more like a robot?”

Johnston recalled the negroid hair found in the tennis shoe.

“Neal Henderson roomed with Butch Mitchell, black male. What does your common sense tell you?”

He reminded the jurors that Bonnie had fled the courtroom in fear after first seeing Neal. And he used the baseball bat to take yet another verbal swing at Neal.

“Who is the only person who has indicated that this bat was at the Von Stein residence? Neal Henderson.”

Even after the jurors made their decision, Johnston reminded them before closing his hour-and-a-half argument, they still couldn’t know for certain what had happened in this case.

“I don’t know what the truth is, but we haven’t heard it in this courtroom. There’s got to be reasonable doubt.”

Wayland Sermons’ wealthy elderly father, a former legislator, came to court this day to hear his son argue his first capital murder case. He sat beside reporters, occasionally nodding agreement as his son made an impassioned plea, his voice often rising.

“Lieth Von Stein suffered a horrible death,” Sermons acknowledged at the beginning. “There’s no question about that. As horrible as that death was, equally as horrible is the thought that an innocent man may be found guilty upon the uncorroborated testimony of two confessed murderers.”

Sermons went on to assault the evidence, noting that Lieth’s head injuries indicated that they had been inflicted by a bat being swung by a right-handed person. Bart, as the jurors could see by watching him writing on the legal pad at the defense table, was left-handed. But as Sermons pointed out, when Johnston asked Neal to mark dates on a calendar, he had done it with his right hand.

Referring to Neal sneeringly as “the genius,” Sermons noted that it was Neal who’d ended up with all the money taken at the Von Stein house, Neal who took the car keys back to Chris’s room despite Bart living only two floors above Chris.

Sermons reminded the jurors of Chris’s description of the effects of LSD—“You see colors; it makes you feel invincible; it gives you incredible energy”—and pointed out that Neal had told Kenyatta that he had taken LSD so that she would throw him out and give him an excuse to go on the murder mission.

“I contend to you that Mr. Henderson was telling you the truth when he said, ‘I took LSD,’ and he was telling Kenyatta the truth, and after taking LSD, he went and did this murder.”

Sermons repeatedly called Chris a liar and argued that his stories defied “all logic and reason.”

“He never formed a conspiracy with Upchurch,” Sermons said. “He formed a conspiracy with Neal Henderson and fingered Upchurch because, one, he knew he lived alone, and number two, he knew he was an easy mark, a good guy.”

Chris and Neal were simply lying to protect one another’s stories and to save their lives, Sermons said.

“What other than them saying it’s so do you have?” Sermons asked. “What other than their testimony? If you throw out all the evidence by somebody who has an interest in the case, you’ll come to the conclusion that the state has failed to prove its case beyond a reasonable doubt. I contend the evidence shows Mrs. Von Stein’s woman’s intuition was correct that day in court when she became so frightened of Neal Henderson that she had to leave the courtroom and go to her attorney’s office.”

In closing, Sermons quoted John Locke, the seventeenth-century English philosopher: “One unerring mark of the love of truth is not entertaining any proposition with greater assurance than the truths it is built upon will warrant.”

“That’s a fancy way of saying don’t believe anything that doesn’t have proof that establishes it. I think that’s what this case is about: not letting the state’s 117 exhibits and 27 witnesses make you think that the guilt of Bart Upchurch should be embraced with any greater assurance than what it actually proves.”