Dark and Bloody Ground (50 page)

Judge Siler said that in many ways he thought Mr. Burns was a
perfect candidate for community service, but deterrence had also to be considered. The maximum on the two charges was five years each. Lester would remain free so that he could testify in the upcoming Dale Mitchell trial. He would also have time to undergo a second hip operation before entering prison in August. “With a heavy heart,” Judge Siler said, he was sentencing him to four years on each count, the terms to run consecutively.

Lester had not been optimistic; he had tangled with Eugene Siler years ago and had feared that ancient rancors might prove an influence. But
eight years?
He was stunned. He felt as if his entire life, all that he had achieved, had been wiped out—as if he had spent his days down a coal mine and had been condemned to die in one.

“They say the night comes before the dawn,” was the best he could come up with for the reporters. “This must be night.” He had already resigned his license to practice law; it no longer seemed practical, after receiving such a harsh sentence, to think about getting the license back someday. “I’ll just have to pay my penalty. I’ll make a good prisoner. I’ll return to society and make a good citizen. Of course I’m disappointed, and my family is. But I’m a big old man.”

31

T
HERE WAS A LAST HURRAH FOR
L
ESTER
, although he called it “the worst day of my life.” For an afternoon he turned the Dale Mitchell trial into his own farewell performance. The subject of his testimony was ostensibly Mitchell’s guilt. But Lester’s soliloquies—neither prosecution nor defense could stop the flow, and the judge did not try—were a tragicomic tour de force.

Irritating Mitchell’s lawyer by repeatedly addressing him by his first name, an indecorous familiarity implying that they had all been cozy in conspiracy together, Lester exasperated him with relentless apologies—to the judge, the jury, his friends, the bar, his mother, and other members of his family dead and alive, to his Divine Maker—for his sins. “Are you through apologizing, Mr. Burns?” Mitchell’s counsel finally broke in.

“No, Richard, I could never stop apologizing. I am ashamed.”

To the simple question of whether he had asked to have the date on which he was to enter prison put off so he could testify against Mitchell, Lester responded:

“The reason I have not reported, Richard, is that I’m undergoing major surgery as soon as it can be set up in September. My total hip replacement was last March, and I’m having the same thing on the other hip in September. As soon as I recuperate I’m reporting—I have orders to report—to Eglin Federal Correctional Center at Eglin Air Force Base in Eglin, Florida. Richard, I’ve had back surgery. I’ve had
hip—it’s this right shoulder, grew back in low I had a hip joint that’s been replaced and one out and I had to testify and it’s federal orders, if I’m in prison they have to put shackles on my ankles and legs and they have to handcuff me and bring me to court and I’m not physically able for it. And I’m not violent, never have been violent, and I have to sit in a little walled-off cold cell staring at the wall and it would be an inconvenience to my health. The government has not had to send me back here with armed marshals in an airplane and it’s saved the government money and it’s been a great personal relief to me to have the opportunity to have my surgery and not to go through any more. I’ve been going through a pretty rough time and still am, right now.”

While he was not appearing voluntarily, Lester said, he was committed to telling the truth: “I have told many a tale, but never under oath.” He knew that he had taken stolen money; he had warned Mitchell about it; he had bragged about it; he had acted out a plot gone haywire.

Sherry, in court wearing her usual pressed jeans and T-shirt, talked of how she had made Mitchell give her a receipt—which was then introduced into evidence—and had lied to him about tearing it up. She said she had warned him not to spend all the money in one place, because the serial numbers ran consecutively. There was no doubt in her mind that Mitchell knew where the money had come from; she had never pretended it was legitimate.

What impressed Rod Kincaid about both Lester’s and Sherry’s testimony was that, with all of Lester’s dramatics and with all of the lying each had done, they were capable of telling the truth and did so, Kincaid believed, in convincing detail. He thought Sherry, who went straight to the facts and had complex figures down cold, was especially effective. She would have made a crackerjack agent.

In the end it was up to the jury to decide whether to believe the two convicted felons or Dale Mitchell, who was his own principal defense witness. Mitchell told the jury that he had jumped at the chance for his “dream,” a big fee such as the ones Lester Burns always got. By asking for three hundred and fifty thousand, nearly as much as he then believed was the total stolen from Dr. Acker, he assured himself that his fee could not be part of the criminal proceeds. He denied that Lester had told him that the Acker take was over a million, as Lester had testified. On the contrary, Mitchell
insisted, he was led to believe that Sherry and the others were fabulously wealthy people, with property all over Tennessee and Florida. When Sherry offered a Miami house as part of her payment to him, he took this as confirmation of her legitimate wealth.

Mitchell swore that he had not deposited any of his fee in a bank only to conceal that he was splitting it with Lester. Since he had signed a receipt for a hundred and fifty thousand, someone might have questioned why he was putting only half that amount in the bank. The fee-splitting arrangement would have come out, jeopardizing his old pal and benefactor.

He had asked Mrs. Hodge whether the money was stolen; there was “no problem” with it, Mitchell claimed she had said. As for accepting cashier’s checks for the rest of his fee, he had done this on advice of counsel so as to show the source of the money, rather than taking more cash, which would have looked suspicious.

He had believed then that he was innocent, and he believed it now. Unlike Lester Burns, he had refused to plea bargain, because he was confident of his own blamelessness. Not only was it wrong to accept stolen money, it was against his “upbringing.”

As far as Rod Kincaid knew, Mitchell had never been offered any plea bargain. What would Mitchell have had to offer in the way of information or testimony, now that everyone else except Gene Foust was either convicted or no longer under investigation? An investigation of the third lawyer, O. Curtis Davis, had gone nowhere: it was Davis’s word against the Bartleys’. Two out of three was pretty good, Kincaid thought. Waiting for the verdict, he could not accept that the jury would swallow Mitchell’s story. Yet you never knew.

The jury believed enough of it to acquit Dale Mitchell on each of the thirteen counts against him. “Reasonable doubt,” the foreman called it.

Because he was officially innocent of having accepted stolen money, Mitchell was under no legal obligation to make restitution to Dr. Acker. Nor did he.

At the request of surviving members of the Morris family, who had attended the Acker trial and become close with the doctor and Tawny, James Wiley Craft agreed to prosecute Epperson and Hodge for the Gray Hawk murders. A second set of convictions would be a safeguard against the remote possibility that the Acker verdicts
would be overturned on appeal. The compelling reason to prosecute, however, was to give the Morrises justice.

This would be the last of the crimes for which the gang would be tried: there was no sense in pursuing outstanding Georgia and Kentucky robbery charges; and as for the late Moon Mullins, his occupation suggested that he had already received the justice he deserved.

Other than that Donnie Bartley would act again as the key government witness, the Morris and Acker cases differed sharply from one another. In Gray Hawk no fingerprint had been found at the scene; neither had any stolen money, jewelry, or firearms been recovered; nor would Bartley be able to say that he had actually been inside the house as the crimes were taking place. Not even the murder weapon or weapons were in evidence. If Craft were to win the Gray Hawk case, he would have to do so relying entirely on circumstantial evidence.

As it turned out, there would also be a very different sort of man on the bench. Jackson County Circuit Court Judge Clay Bishop was eighty-four years old by the time the case went to trial in November 1987. One of Lester Burns’s ubiquitous cousins, Judge Bishop was a sweet old fellow off the bench, but on it he was a terror, notorious for his intolerance toward defense attorneys. Becoming more irascible with each passing year, Judge Bishop continued to resist suggestions and demands for his retirement, which was overdue by at least a decade. His rulings, unlike Judge Hogg’s, were frequently overturned and criticized by higher courts.

If the defense had requested it, Judge Bishop would likely have denied it, but this time James Wiley Craft agreed that a change of venue was advisable. A random telephone poll showed that virtually every citizen in Jackson County was already convinced of Epperson’s and Hodge’s guilt; most had avidly followed the Acker trial. As the county had only twelve thousand people living in it, an accurate sampling of opinion was not difficult to compile. In addition to the impossibility of finding an unbiased jury, the late Bessie Morris’s brother was the County Sheriff, and one of her sons, Bobby, had become the circuit court clerk.

The trial was moved to London. Twice the size of Jackson in population, Laurel County was also more diversified socially and economically. It was contiguous with Jackson, however, and its newspapers and television stations had carried extensive coverage of the
Acker trial and had already reported that in the Morris trial, the prosecution would argue that the murders had been staged within the county, at Laurel River Lake. Judge Bishop would hear none of this, refusing to permit attorneys to question prospective jurors about the effect of pretrial publicity on their predisposition toward the defendants. As far as the judge was concerned, the trial had already been moved once; that should be enough for everyone, period.

The judge was intensely exasperated by Benny Hodge’s attorney, Oleh Tustaniwsky of the state’s Department of Public Advocacy, pronouncing or mispronouncing the lawyer’s name as if it were some repulsive foreign food. The very sight of Tustaniwsky, a slight, bespectacled, scholarly fellow, seemed enough to turn the judge’s jowls a deeper shade of red and send his gastric juices into revolt. He frequently admonished him with less than judicial restraint: “Mr. Tustenoughsky, why do you continuously want to do things you know are improper?” and “Don’t get yourself in a mess and then expect the Court to pull you out. There are too many smart alecks, that’s the trouble with this world,” and “You’d better not get out of line again.”

Pleased as he was to have a judge sympathetic to his side, James Wiley Craft was alarmed as much as he was amused by the judge’s attacks on Tustaniwsky, who was an entirely competent advocate and was doing nothing to provoke them and whose principal offense seemed to be that his ancestors had clearly not ridden with Daniel Boone. And Craft was embarrassed when Judge Bishop, unable for once to make up his mind about how he should rule on a defense motion, turned to the prosecutor and asked, “What’s
our
position on this?”

Only one defense move, or the lack of one, puzzled Craft. When at last it was time for both sides to use their preemptive challenges to dismiss jurors likely to be prejudiced, Tustaniwsky and his colleagues left a KSP trooper on the panel. Were they doing this in order to lay grounds for an appeal? To obviate that possibility, Craft would have used one of the prosecution’s challenges to unseat the trooper, had they not already been exhausted. Craft could not recall ever having had a state policeman on a jury before.

The trial lasted only five days, it took that little time to present the relatively sparse evidence there was against Benny and Roger this time. Of the physical exhibits—bullets, pillows with bulletholes in them, various bloodstained household items including Mrs. Morris’s
Bible with its four-leaf clovers—the most emotionally wrenching was the videotape taken by police of the murder scene. Even this, however, did not equal in power Jerry Morris’s account of his discovery of his parents’ bodies that morning after Father’s Day in 1985. He broke down several times. The jurors kept their composure, but many spectators wept.

The other, most important witnesses included Bobby Morris, who testified that he had encountered Roger Epperson and Benny Hodge at a car auction near London about three weeks prior to the murders; a ranger from the Holly Bay campground who produced her logbook for that June showing that Carol Malone had registered there during the crucial period and had departed immediately after the killings; Harold Clontz, who had to be transported from prison to testify, who described sharing his moonshine with the defendants and admitted having loaned Roger a van on the evening of June 16; two young men who told of having nearly been hit by a similar van that had pulled out of the Morrises’ driveway around eleven-thirty. And there was Donald Bartley’s story of his role as lookout, of the disposal of the weapons and clothing, of Benny’s admissions, and of the getaway to Florida.

Tustaniwsky and his colleagues made no attempt, as Lester Burns had, to break Bartley down, choosing instead to underline that, even if Bartley’s account were true, he was less than an eyewitness, having heard the shots but not seen them. Much of the rest of his testimony was hearsay. Very little if any evidence corroborated Bartley’s account, Tustaniwsky argued, and a defendant could not be convicted solely on the testimony of an accomplice.

Big John Bowling had his hands full that week, with both Epperson and Hodge back in the Laurel County jail. It was a likely time and place for them to try to escape, perhaps their last best chance, as the dozen or so troopers guarding them had been instructed. The prisoners had nothing to lose by trying. All of the grounds on which the appeal of the Acker verdicts and sentences had been based—judicial error and incompetency of counsel among them—had already been rejected by a higher court by the time the Morris trial commenced.