Bloodsworth (14 page)

Criminal discovery is different. It's what is termed limited discovery. There is no right to send interrogatories or take depositions.
Each side's access to what the other knows is curtailed. One reason for this is that prosecutors are not able to force the defendant to divulge any information. The Fifth Amendment to the Constitution—the privilege against self-incrimination—protects every defendant. Since the defendant doesn't have to tell what he knows, the prosecuting authority need not reveal all it knows. The ironic result is that where freedom as opposed to money is on the line, where a person's very life may be on the line, the parties must face a trial without knowing all the facts, without knowing who all the witnesses may be or what they might say, with potential surprises around every curve.

Whereas civil trials usually are fought between parties of equal resources, such is typically not the case in criminal court. The state has an abundance of prosecutors, detectives, police officers, lab technicians, scientists, and money to throw at a case if it chooses to do so. The typical criminal defendant, like Kirk Bloodsworth, can barely scrape together bus fare, and the budgets of public defender offices are usually meager.

Under the limited discovery rule, prosecutors, while not required to divulge the substance of the testimony expected from the witnesses they intend to call, are required to disclose the identities of their eyewitnesses and any identification procedures used. They must produce for the defense any physical evidence they intend to introduce at trial. Statements made by the accused must be turned over. Significantly, prosecutors must also share with the defense any exculpatory evidence that they come across—evidence that might exonerate the defendant, might show that he is not guilty. This rule stems from a 1963 United States Supreme Court case called
Brady v. Maryland
.

The defense has its obligations as well. Alibi witnesses and character witnesses must be disclosed well in advance of trial. And each
side must disclose to the other the identity of any expert witnesses it intends to call.

Discovery in a criminal case is conducted through lawyer meetings, letters, and motions. Between November, when he first entered his appearance in the case, and March, when the trial began, Steven Scheinin, with David Henninger's assistance, engaged in an intensive campaign to learn everything he could through the discovery process. He filed motion after motion trying to push for more information, trying to reap some benefit.

Scheinin filed a motion for the production of witness statements and police notes (it was denied), a motion for production of photographic copies of the scene (denied), a motion to suppress the witness identifications as stemming from unnecessarily suggestive procedures (denied), a motion to strike the state's election to seek the death penalty (denied), a motion for additional jury strikes (denied), a motion for early production of the grand jury testimony of witnesses (denied). There were many others. The court did grant a motion requiring the state to produce written statements pertaining to its identification witnesses and also granted a motion requiring the state to preserve all police notes. The court was required to conduct a hearing on the identification procedures used, and the state was required to call its identification witnesses to testify at that hearing. This gave Scheinin the opportunity to see them on the stand and ask them questions. It was clear, though, that the state's witnesses were locked into believing that Bloodsworth was the man.

Kirk's misgivings about his lawyer notwithstanding, Scheinin made a real effort to try to save his client. Kirk had told Scheinin where he was the day of the murder and that his housemates would testify as alibi witnesses. Scheinin and Henninger interviewed them all. They were hardly a tribe of churchgoers, and their recollections
were not consistent. Kirk's lawyers had to wonder how they'd come across before a jury. Scheinin believed they were telling the truth, however, and they were all Kirk had.

Wanda Bloodsworth had worked her mind back to July 25 and remembered that she'd had an appointment that day at the Eastern Community Mental Health Center. She was supposed to go for alcohol treatment related to her driving conviction. She and her half sister, Dawn, had also gone by the welfare office to get some money. They needed their welfare checks to keep food on the table. Wanda's mother, Birdie, had come over to the house to wake her up. This was around nine that morning, and Kirk was still asleep. Wanda said the cat jumped up on Kirk and peed on him. This caused Kirk to try to get into the bathroom to clean himself off. Dawn Gerald was taking a shower, and Kirk was frustrated he couldn't get in the bathroom. Wanda and Dawn Gerald didn't leave the house until ten fifteen or ten thirty, and Kirk was still there.

Dawn Gerald also remembered the counseling appointment and going by the welfare office that day. Her recollection was slightly different than Wanda's, as she remembered that they both left around nine. Kirk was still in the house.

Birdie Plutschak, Wanda's mother, remembered going over to Wanda's at a little after eight on July 25. She went to wake her kids because she knew Wanda had a doctor's appointment. She did this often, apparently. She recalled the cat wetting the sheet covering Kirk while he was sleeping and Kirk's getting upset. Birdie stayed at the Randolph Road row house until almost noon. According to Birdie, Kirk was there the entire time. The reason Birdie left the house was to have lunch with her husband, Jerry. After lunch she came back to the house sometime around one thirty. Kirk was out but came back a little while later with Wayne Palmer. They'd been out buying pot.

Tammy Albin also remembered the day because it was the morning
her kitten had peed on Kirk. She was asleep at the time but got an earful about it later. She got up around ten thirty, and according to her, Birdie, Wanda, and Dawn were all still there. Kirk was home and stayed in the house until one thirty, she recalled.

Joey Martin remembered waking around ten and seeing Kirk in the house. Kirk stayed inside and didn't leave until after one.

Wayne Palmer was marginally helpful. He had initially given a statement to the police that Kirk wasn't with him the day of the murder. Later, he realized that he'd mixed up two different afternoons. He'd cashed his last paycheck from the pool company on the afternoon of July 25. Kirk had been with him then. Palmer remembered that just afterward the wires in his car caught fire and Kirk helped him put them out. Kirk was with him for a couple of hours from about one to three. Kirk had run out of pot, and they'd gone looking for a guy who sold it. Palmer had contacted the police department and told them of the mistake he'd made in his statement, but no one had ever come out to take a corrected report.

With the help of the investigation performed at the behest of Kirk's prior lawyer, Scheinin tracked down Jeffery Wright. Wright recalled that on July 25 he'd gone with his brother to the South Randolph Road row house to try and sell a rifle. They arrived there in the early afternoon, and Kirk was home. A guy named Wayne was there. Wright also wanted to buy some pot and asked Kirk if he knew where he could get some. Since no one at the Randolph Road address wanted to buy the rifle, Wright had gone to a neighborhood sporting goods store and sold the rifle there. Then he returned, and with the money he made he, Wayne, and Kirk, had gone out and bought the pot. All this happened between about one and two o'clock.

Like Wayne Palmer, all of these alibi witnesses had been interviewed by homicide detectives before Scheinin became involved. Their recollections were already recorded, pinned down. And none
had even started trying to remember their respective whereabouts on the day of the crime until August 9, when Kirk was arrested, over two weeks after the murder occurred.

C
HARACTER TESTIMONY IS
usually not permitted in trials. A criminal defendant, however, is the rare litigant in our justice system who has the right to bring in witnesses to testify to his character—his reputation in the community for traits that would be inconsistent with those of the person who committed the crime. Character testimony can be a powerful defensive weapon. When the famous trial lawyers Edward Bennett Williams and Michael Tigar defended Governor John Connally of Texas in Washington, D.C., they brought in the Reverend Billy Graham to testify as a character witness on behalf of Connally. Asked to introduce himself, Graham, with his hand still on the Bible, said something along the lines of “My name is the Reverend Billy Graham and I preach the Gospel of Jesus Christ from one end of Christendom to the other.” When an elderly black woman juror in the front row heard this, she apparently couldn't help herself. She let slip a loud “Amen.” Williams and Tigar knew then and there that they had won the case.

Calling a character witness can be extremely dangerous, though. Once a character witness testifies, the prosecutor is free to question that witness about all the dirt that's been dug up on the defendant. This is only fair, to test the knowledge of the witness. The testimony of a character witness opens the door, so to speak. A prosecutor can sometimes ram a cartload of prejudice through that open door.

Bloodsworth was the rare criminal defendant without even an arrest record and without any history of bad acts. Scheinin set about finding character witnesses on behalf of his client—people who might be impressive to a jury. Kirk didn't know anyone with the status of Billy Graham, but Scheinin developed a large list, then
pared it down to include Richard Drescher, Kirk's discus coach; Milton Hubbard and Frank Krewen, both of whom had coached and taught Kirk at Cambridge High School; and Frances Bloodsworth, Kirk's aunt. Frances had taught at the Open Bible Academy.

S
CHEININ ALSO PURSUED
the forensic evidence taken from the crime scene. That's the place where he hoped he'd find proof that would absolutely exclude Kirk as the killer. Items taken from the crime scene or developed during the autopsy for possible testing, all of which potentially could reveal the identity of the killer, included the following:

One pair of child's panties, and one pair of child's shorts

One piece of concrete

One Big Red gum wrapper

Soil samples

One foreign human hair and one red fiber

The stick

Vaginal, rectal, and oral swabs from the victim

Smears from the swabs preserved on glass slides and frozen

Washings from the victim's vagina

Scrapings from the victim's hands

Photos of shoe prints taken from the victim's body

One vial of the victim's blood

Other assorted clothes from the victim

The white sheet the victim was wrapped in when taken to the morgue

The medical examiner at autopsy, looking for evidence that might lead to the assailant's blood type, had used cotton swabs to retrieve fluid samples from the victim's mouth, vagina, and rectum, and then by brushing these swabs over glass slides and staining the samples with a preservative, he created smears for microscopic
examination. Under the microscope, he'd visualized some spermatozoa on the vaginal smears and many sperm on the rectal smears. He'd also obtained a vaginal wash. The swabs, along with the contents of the vaginal wash, were turned over by the medical examiner to Detective Ramsey on July 26 to be transported to the FBI lab for testing. Along with these items, Ramsey took all of the physical evidence listed above to the FBI for analysis. The smears on the glass slides were retained and frozen by the coroner.

When Bloodsworth was arrested, detectives searched all of the various places he'd stayed. Rose Carson's house was ransacked. Cindy Bloodsworth's and Tommy Tyler's homes were searched. Dawn Gerald's place on South Randolph Road was torn apart. All of the clothes the police believed might be Bloodsworth's, including shirts, socks, tank tops, jeans, and a pair of beige shorts with red trim, were seized. All of these were submitted to the FBI for testing.

Fiber analyses were performed. No textile fiber matches were found linking Bloodsworth to the crime. The FBI was unable to lift any fingerprints from Dawn Hamilton's clothes. The Big Red gum wrapper was also tested for prints, as were the stick and the piece of concrete, but no fingerprints were developed from them. The blood on Dawn's clothes and in the soil sample was hers. The spot of “possible blood” on the rock was indeed blood but in too small a quantity to be tested.

Several pairs of tennis shoes were also seized by the police and delivered to the FBI lab. The shoes were all tested for soil samples. None matched the soil samples taken from the scene. The shoe prints from the various tennis shoes were compared with the marks on Dawn Hamilton's body. No conclusive match was found. One pair of tennis shoes, taken from Dawn Gerald's house, had soles, according to the FBI, with “limited design similarities” to the bruises found on the victim. Detective Ramsey told Steve Scheinin that the
shoes were size 10½. Bloodsworth wore size 10½. Scheinin never saw the shoes until the middle of trial. When he did, he saw that the shoes were marked size 8. Ramsey claimed at trial that he'd measured the outside of the shoes with a ruler and that they were 10½ inches from front to back. That's when Scheinin first believed Ramsey had purposely misled him.

Bloodsworth eagerly volunteered to give up a head hair sample and a pubic hair. Anything to clear him. Hair samples from Thomas Hamilton and the rest of those living with Dawn Hamilton on the day of the murder were also submitted. A hair sample from Detective Bacon was submitted, since he found the body and had leaned over it to check for a pulse. The one hair sample found on the scene did not match that of Kirk Bloodsworth. The other hair samples taken and submitted to the FBI, for some unexplainable reason, were never tested for comparison.

From early on, Scheinin had pressed the prosecutor's office to provide him access to the assailant's fluid samples and the physical evidence so that he could have it all examined and tested by his own serologist for a possible blood type—one that might eliminate his client as the perpetrator. He had received misleading reports about where the fluid samples and physical evidence were located. Initially, he was told it was all at the police department. He went there and then was told it was in transit to the FBI. On November 27, 1984, he wrote to the prosecutor requesting that he and his expert be provided access to all of the fluid samples and that he be permitted to view all of the physical evidence. Shortly thereafter, Scheinin received the FBI written report. According to the FBI, no semen was identified on any of Dawn's clothes, including her panties. And despite the fact that the autopsy report indicated that the coroner had seen many spermatozoa on the rectal smear, and occasional sperm on the vaginal smear, no sperm were reported seen by the FBI on the cotton swabs or in the vaginal wash. What
had happened to this vitally important forensic evidence—evidence from which a blood type analysis might have been performed—a test that might conceivably have cleared Bloodsworth? Had it been mishandled and destroyed? Scheinin never got an answer. In January 1985 Scheinin sent the FBI report, along with the autopsy report, to his retained expert for review and comment. Scheinin continued to press the prosecutor for information concerning an anal washing supposedly taken from the victim's body during the autopsy procedure. Since the swabs inexplicably turned up negative for sperm, he hoped to use sperm from the anal washing to develop a blood type for the murderer. Washings consist of fluid introduced into the victim's body cavities, then retrieved in a glass tube. Scheinin had first been told that this specimen was with the FBI. Then he was told the sample had been lost or destroyed. Then, on February 11, 1985, Scheinin received a letter from the prosecutor informing him that no anal washings were ever taken from the victim. The letter explained that the only sperm found in sufficient quantity to test was in the anal cavity, but that because of bacterial contamination, such samples were typically never kept by the medical examiner and would be of no use anyway. This absence of fluid evidence was a major setback. Accepting the FBI's conclusions, Scheinin never had his own expert examine the victim's clothing or the smears and swabs. The handling of the physical evidence from the crime scene was, in retrospect, grossly inept. Still, none of it, not one shred, linked Bloodsworth to the crime.