Bloodsworth Page 19

  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.

  TWENTY-THREE

  THE 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?”

  “Some reaction, yes, sir,” Capel answered.

  “And did Mr. Bloodsworth have a reaction?”

  “Yes, very definite.”

  Stein was surprised at this. “And what was his reaction?” he queried.

  “It was not an immediate reaction, but it was a long-term reaction.” Capel tried to explain. “He remembered everything we put on that table although we removed it.”

  “Wait a minute, detective,” Stein pressed. “When Mr. Bloodsworth walked into that room, did he have a reaction?”

  “No,” Capel answered, reversing himself. “When he walked in the room, I wasn’t even sure he saw the items. He glanced around—”

  “Did Mr. Bloodsworth, yes or no, have a reaction when he walked into that room?”

  “No. He showed no visible reaction.”

  “And now you’re telling us that a possible reason why he had no visible reaction is because you don’t even know if he saw the items?”

  “I do know now. I didn’t know then.”

  “Then what was the purpose of the test? If the whole purpose of the test was to have somebody look at the items, why did you then take the items off the table?”

  Capel answered that he was only doing what the FBI behavioral science unit had recommended. Stein wouldn’t let him off that easily.

  “Detective,” he went on, “when you arrested Mr. Bloodsworth at three o’clock in the morning, you talked to him from approximately three o’clock in the morning to six o’clock in the morning, did you not?”

  “Yes.”

  “In all that time did you ever ask Bloodsworth if he saw the items in the room?”

  “Never.”

  “Because you didn’t want to know the answer, isn’t that correct? You didn’t want to know the answer to that question, Detective.”

  Stein moved to the lineup. “And before you put him in a lineup you called all of your witnesses, didn’t you, and told them not to watch television because Mr. Bloodsworth was going to be on television?”

  “It is a procedure we use, yes.”

  “But it was done in this case, wasn’t it, sir?”

  “Yes, it was done in this case . . .”

  Stein closed the loop. “Let me ask you, Detective: you were there at the lineup, were you not?”

  “Yes, I was.”

  “Show me a written report of any witness you ever asked did they see anybody on television.”

  “I didn’t ask it . . .”

  Stein elicited from Detective Capel that the head hair found on the scene did not belong to Bloodsworth and that no other physical evidence found on the scene linked Bloodsworth to the crime. By the time he finished his cross-examination, he had pretty well bloodied up Detective Capel.

  But Brobst and Pulver weren’t finished. They called the witnesses again from Cambridge—Rose Carson, Thelma Stultz, and Tina Christopher. Christopher was the one witness, the only witness, who’d claimed that Kirk had said something suggesting that he was with the man who went into the woods with the little girl. Again, just like at the first trial, she had a hard time remembering, and Michael Pulver had to try to refresh her recollection by having her read over the statement the police had typed for her shortly after Kirk’s arrest. When Stein rose to cross-examine her, he took a patient but firm approach.

  “At the age of eighteen, in August 1984, you had a bad alcohol and drug problem, didn’t you?”

  “No, not a drug problem.”

  “You had an alcohol problem, didn’t you?”

  “Yeah.”

  “And this person known as Kirk, had you ever met this person before?”

  “No, I have not.” Christopher had trouble with her grammar.

  “Did you know of any reason in the world why this person would talk to you about these things?”

  “No, I do not.”

  “How long were you in the house with this person?”

  “I don’t know.”

  “Well, you were paying so little attention to this person you wouldn’t even be able to recognize him today, would you?”

  “No.”

  Stein tried to impress on the jury through his questions the intimidating situation Christopher had found herself in when surrounded by questioning police.

  “Before you went to the police station, the police came to your house, didn’t they?”

  “Yes, they did.”

  “And there were about ten of them, weren’t there?”

  “I guess. Seven, eight.”

  “Ma’am, you have to understand something. This is very important. You just can’t guess.”

  “Well, I can’t remember too much.”

  “You can’t remember how many; you can’t remember much at all, can you?”

  “No, I don’t.”

  “And you really can’t remember all the bits and pieces of the conversations that you had, can you?”

  “No, I cannot . . .”

  Stein kept at her. “And now, you don’t remember anything about any bloody rock, do you?”

  “Not today, I don’t.”

  “And did you remember it then, or don’t you even know what you remember?”

  “Well, I must have remembered something because I gave them the statement then.”

  Stein then directed his questions to that statement—the one typed by the police that they had had her sign, insinuating that the police had put their words down, not hers.

  “And you don’t really remember even reading it, do you?” he asked.

  “Not today, I don’t remember,” she answered.

  “And let me ask you this. Did you ever say to the police, wait a minute, I can write, why won’t you let me write out my own statement?”

  “No.”

  Stein then asked Tina Christopher if she recalled that an investigator from the public defender service had interviewed her two months before, in January 1987. She did. She acknowledged that she’d told the investigator that her head was finally clear from drugs and alcohol and that she had no recollection of Kirk’s ever saying anything about a bloody rock or about another man he knew who was with the little girl. Christopher had even given a taped statement to the investigator, and Stein played it for the jury. With a clear head she had claimed she had no recollection of Kirk Bloodsworth’s making any incriminating statements.

  TO BEGIN THE defense, Stein started off with two witnesses from Cambridge. He first called Tom Collins, a man in the seafood business who had employed Kirk. Collins was called solely to establish that Kirk had worked for him in June of 1984, then just failed to show up one day. Stein called Billy Elliott, the crab-potter. Elliott too testified that Kirk had a way of quitting by just not returning to work. Stein was hoping to show the jury that Kirk’s abrupt departure from Harbor to Harbor was not unusual for him, was typical of his past behavior, and was not necessarily because he’d committed a murder.


  Stein called Fay McCoullough, the adult who had worked with Detective Capel to create the second composite sketch, the one he had thrown away. She told the jury how Capel had tried to use the foil transparencies with her to create a likeness of the strange man she’d seen. She described how he’d gotten frustrated and given up, and how he then told her he’d decided to go with the description given by the two boys. She testified that she’d attended the lineup in which Kirk Bloodsworth stood but that the man she’d seen at Fontana Village the day of the murder wasn’t in it.

  Douglas Orr testified that he had talked to Kirk in August of 1984, after Kirk had left Baltimore. Kirk told him he’d done a terrible thing. He’d left his wife and quit his job. That was the terrible thing he’d done. On cross-examination, Ann Brobst asked Orr whether Kirk had told her he’d forgotten to buy his wife a taco salad, whether, in fact, that was the terrible thing he’d done. Later Brobst introduced portions of the transcript of Kirk’s testimony from the first trial, where he said his failure to buy his wife a taco salad was the bad thing he’d done. Kirk had followed Stein’s advice not to testify in order to keep the taco salad testimony from coming in. Here it showed up anyway.