Bloodsworth (24 page)

The trial commenced on March 23, 1987. Stein requested that he be allowed to adopt all previous motions. He also argued that because of all the pretrial publicity and because it was a death case, Judge Smith should question each prospective juror individually before selecting a panel. Smith agreed to do this. Again the jury would be death qualified. The questioning of jurors began on the morning of March 24 and ran through March 26.

To Kirk, Judge Smith seemed very different from Judge Hinkel. Smith took his time, went out of his way to be solicitous. He brought Kirk back into his chambers during the jury selection process so
that Kirk could watch. He reminded Kirk of Mr. Rogers on children's television. Smith was patient, polite. He seemed to listen with an open mind before he ruled.

The next morning Michael Pulver opened for the state. The state's strategy, like before, was to emphasize the terrible nature of the crime.

While murder, rape and sodomy are the technical names we give to these charges, they by no means begin to describe for you the enormity of the crime that was committed or the horribleness of her death. The facts in this case go beyond really my limited ability to express. They go beyond comprehension of any decent person. They are best, I suppose, compared to a nightmare. A nightmare that ended for young Dawn Hamilton when she finally died, after having been crushed with a rock, strangled and sexually assaulted. . . .

Pulver backed and filled.

The defendant then lured Dawn into the woods, deep into the woods, far from the town homes, and then once, as I said, far away from everybody else, far from any potential passers-by, he turned and viciously attacked her with a rock, smashed her in the face and in the skull with a rock, crushing her skull, and he strangled her by standing on her throat for so long and with such force that when he finally lifted his foot, embedded in the soft skin of her neck, was the imprint of his shoe. And as if destroying this little girl were not horrible enough, if that were not enough, he raped her, and sodomized her, and then in one last act of perversion, and I hesitate to even mention it to you, but it is a fact in this case, took a stick and stuck it into her vagina, approximately five and a half inches. . . .

The worse the crime, the more horrible the facts, the more the jury could be made to despise the perpetrator, the harder it would
be for them to acquit. Pulver described the facts in graphic detail. He outlined as well the evidence the state expected to prove. He put the state's spin on the rock-and-panties gambit Ramsey and Capel had used on Bloodsworth:

Before talking with him, they went to a local five and dime and they bought a pair of shorts and a pair of underwear that matched those worn by Dawn the day that she was murdered. And from off the parking lot at police headquarters they picked up a large rock. They took all these items and put them in the interview room. It was their hope that if the person that had done this to Dawn saw these items they might react in some unusual manner. . . . Upon entering the interview room, the defendant took no apparent notice of the rock and panties and they were immediately taken off the table, out of view. . . .

Pulver turned this against Kirk by relating the statements Kirk made afterward in Cambridge about a bloody rock. Pulver insinuated that Kirk had never even seen the rock in the police interrogation room and only knew of it because he'd used it to murder Dawn Hamilton. Pulver described the identifications of the state's witnesses and how they came about. He told the jury to use its collective life experience, its common sense. He asked them to return a verdict of guilty.

Michael Pulver was good, but Leslie Stein was also ready. He first tried to tell Kirk's story from Kirk's point of view: A twenty-three-year-old kid never before arrested who found himself in a strange town and enmeshed in an intolerable marriage. So he left, went home, only to be arrested for the worst of crimes, thrown into his own unimaginable nightmare. Stein then suggested that this case, from the investigative standpoint, was backward. Rather than find clues leading to Kirk Bloodsworth, the police, for the skimpiest of reasons, had zeroed in on Kirk Bloodsworth and then gone out and searched for clues to incriminate him. The police were in a fishbowl,
Stein said. The media coverage was relentless, demanding that the murderer be caught, and the police made assumptions, wrong assumptions, about the murder weapon and the murderer, and everything flowed from there. The eyewitness identifications, Stein promised, would be shown to be unreliable. The witnesses who went into the lineup already knew who they would pick out. Each one of them, he said, had already seen Bloodsworth on television, or somewhere else. The lineup was a travesty. Stein promised the jury a hotly contested trial. He set out to deliver on his promise.

That night, back at the jail, Kirk was excited. His lawyer had been compelling. There was a sense of urgency about Stein's presentation. Kirk felt he'd been effective. Stein had countered Pulver well. For the first time Kirk thought his lawyer might really save him.

T
HE STATE DIDN'T
deviate much in its presentation of evidence from what had worked as a winning trial strategy before, though this time no forensic witnesses from the FBI would be called. The scientific evidence, the state contended, was simply neutral, not probative of anything. Leslie Stein, though, went off on new tacks. In cross-examining Elinor Helmick and Thomas Hamilton, Stein asked questions about Richard Gray. Early on, he began developing his argument that Gray was more likely than Kirk Bloodsworth to be the murderer.

Again Ann Brobst sought to introduce the grisly photographs of Dawn, and again, over objection, the judge permitted them to be shown. As before, the jurors couldn't help but be viscerally shaken by the pictures.

When Brobst called Detective Roeder, the crime lab technician, Stein began to chip away at the assumption that the rock killed Dawn Hamilton. It was porous and crumbly, admitted Roeder, who'd retrieved the rock from the scene. Stein questioned him as to whether any debris matching the rock fragments had been found in any of Dawn's wounds or hair or anywhere on her skin or
clothes. Roeder's answer was no. If she was struck by a porous, crumbling rock, Stein asked rhetorically, why weren't there fragments in her scalp?

Dr. Dennis Smyth, the medical examiner, testified again. Stein questioned Smyth extensively about the swabs he had taken from the vagina and rectum of the victim at autopsy, samples from which, when smeared on glass slides, the doctor had found semen. Why had the FBI been unable to find any sperm on the swabs? Smyth had no answer. Regarding the cause of death, Smyth admitted the victim's brain had
contrecoup
injuries, which could have been caused by having her head slammed against a hard surface. Smyth also admitted that no one had ever shown him the rock or asked him to test it.

Chris Shipley was the first of the ID witnesses. Now thirteen years old, he told the jury that the height of the man by the pond was “six something.” Stein gently took him over the various descriptions he had given since the crime.
Six something?
Stein repeated. Wasn't your first description of the man's height, back on the day of the murder, six feet five inches? And at the first trial, didn't you change it to six feet? And now you're saying six something? “And why does his height change? Why is it six feet five in July of ‘84; why is it six feet tall in March of ‘85; and why it is six feet something in March of ‘86?” Chris had no answer. Stein got Chris to remember that when he'd picked out the photo of Bloodsworth, he told the detective that the man at the pond had hair that wasn't as red. Chris also acknowledged that the man at the pond did not have sideburns. Stein's implication was clear: someone was trying to fit a square peg into a round hole.

Jackie Poling testified, as did his mother, Denise. Ann Brobst didn't even ask Jackie to identify Bloodsworth in court this time, but had both him and his mother explain how he'd recognized Bloodsworth in the lineup but been too scared to tell the detectives.
Denise said her son told her what happened right after the lineup. Stein's tone and manner conveyed his disdain for Denise and for her testimony. Why in the world, given the urgency of a major murder investigation involving the killing of a child, had she waited several weeks before notifying police about what her son had told her? She had no explanation. He asked her then about the reward: “How much money did your son receive or did you receive in connection with his assistance in solving this case?”

“Christian and Jackie each received a check,” she answered.

“For how much?”

“Around $230,” she said.

“That's a lot of money to you, isn't it?”

“Yes, it is,” she answered.

The other eyewitnesses followed the boys. Neither Hall nor Ferguson held up particularly well. Stein made them both look bad. Hall admitted she'd seen Kirk on television the night before the lineup. Who else were you going to pick out, Stein queried, when you saw the man on television the night before? Ferguson admitted she'd been doped up the morning of the crime and had made inconsistent statements to the police. James Keller went last. His testimony exemplified the problems inherent in a trial held almost three years after an event. Keller claimed he was dead-on certain Kirk was the one. Yet on cross-examination, he couldn't recall whether the strange man he'd seen had a beard or not. Stein also had him admit that he'd picked a different man out of the photo array shown to him by defense investigators. All Ann Brobst could do was have Keller reiterate his lineup ID and his certitude that Bloodsworth was the stranger he'd seen while driving out of the Fontana Village complex.

That night, as Kirk obsessed over the evidence, he felt upbeat. He liked the way Stein was going after the witnesses. He thought most of them looked stupid.

Stein had been readying himself to confront Robert Capel. A botched investigation, the improper assumptions made by the detectives, overly suggestive identification procedures—these were at the core of Stein's defense. Stein knew Capel was a pro in court. He'd been testifying for years. Capel took his time on the stand, made eye contact with the jurors, explained things carefully. He'd be tough to crack. Right up front, though, Stein had him on his heels.

“Detective Capel, how long were you at the scene at Fontana Village,” Stein asked.

“Twenty minutes,” Capel answered.

“And why did you take that rock?”

“The rock was a piece of evidence taken at the scene.”

“A piece of evidence of what?”

“We believed that was the murder weapon.”

“You made that decision in twenty minutes?”

“No, sir. I wasn't in charge of the crime scene or the evidence.”

Stein began to find his rhythm. “So your partner, Detective Ramsey,
assumed
that was the murder weapon?”

“Detective Ramsey took the rock as evidence, yes, sir.”

“Did you ever show that rock to the medical examiner?”

“I don't know, Counselor. I believe that was shown to the medical examiner, but I don't know.”

“Do you have a report of that?”

“No, sir, I don't believe I do.”

“In any of the ten pounds of paperwork was there any report that this rock was ever shown to the medical examiner?”

“Not to my knowledge, sir.”

“What then, did you base the assumption on that this was the murder weapon?”

“I didn't assume anything.”

“When you first questioned Mr. Bloodsworth in Cambridge, why
did you go get a rock—you and Ramsey—go get a rock off the lot and get a pair of panties and put them on the table, if you didn't
assume
anything?”

Capel had no good answer. Stein's insinuation gained credence. The rock had never been tested. There was no evidence in the case, other than the assumptions made by the detectives that it was even involved in Dawn's death.

Stein also tried to raise doubts about Capel's truthfulness. He insinuated that Capel's story of having brought in another detective, shorter than six feet five inches, for Chris Shipley to look at, was made up: “You testified that he described the man as six feet five inches?” Stein asked Capel. “Where in your report does it say that after you took that statement you brought a police officer in there, confronted Mr. Shipley with the height, and Mr. Shipley changed it and said that the man he saw was shorter than the police officer?”

Capel got red in the face. He strained for an answer.

“Concerning all the reports you have written, show me a written report that describes the scenario that you just told us about,” Stein demanded.

“There is nothing written,” Capel admitted.

“What is the name of the police officer you brought in?” Stein demanded to know.

Capel's confidence was draining away. “I don't know,” he said.

Stein kept at him. He had Capel identify again the photograph of Bloodsworth that he and Ramsey had taken the day before Bloodsworth's arrest, in which Bloodsworth had long mutton-chop sideburns. “Let me ask you something,” Stein then said. “Did you ever ask Mr. Shipley, who was giving you this composite, did you ever ask Mr. Shipley whether or not the suspect had sideburns?”

“No, sir, I never do that.”

“You never did?”

“No, I don't do that.”

“And when Mr. Shipley, when you talked to him and he gave a description did he ever say anything to you about sideburns?”

“No, he didn't.”

Stein moved on to mine the misguided gambit played out by Capel and Ramsey—the rock and the panties that they placed on the interrogation table before Bloodsworth was first questioned, expecting a reaction if he was the killer.

“I want to make sure I understand your testimony,” Stein said. “This little test, the passing grade was no reaction. The failing grade was some sort of reaction, like a violent reaction?”