Dark and Bloody Ground (39 page)

Comer and McNeal were part of Project Leviticus, a multistate operation designed to expose criminal activity in the Appalachian coal fields. In Kentucky, Project Leviticus’s targets included numerous law enforcement officials, judges, lawyers, and businessmen in an investigation of public corruption, drug dealing, influence peddling, and fraud. Comer and McNeal had been hanging around Lester for months, visiting him in Okeechobee as well as sticking close to him at home. Theirs was essentially a sting operation: they had already tried and failed to suck Lester into cocaine and marijuana distribution schemes in which other Kentuckians were involved. They had failed at that because Lester refused to have anything to do with drugs and told them they were crazy to mess with narcotics. But they had persuaded him to bite on the insurance scam, in which McNeal pretended to have suffered head injuries in a truck on which Comer carried the insurance. They pushed the truck over a cliff and Dr. Billy Davis built up a phony medical file on McNeal, coaching him on how to fool a CAT scan that the insurance adjustor would accept. Lester was to draw up the papers and file the suit against the company. On one of the tapes, Rod Kincaid heard Lester talk about back dating a lease to his farmhouse in Comer’s and McNeal’s names so that they could establish Kentucky residence and avoid filing the suit in Federal court, where Lester would be less in control. He also heard Lester ask the agents to stay away from the farm on certain nights early in September when, Lester said, he was expecting an important visitor from Tennessee. He did not say who this visitor was, but Kincaid had a fairly good idea.

It was only by chance that, because of Project Leviticus, Kincaid through Comer and McNeal was able to stumble onto revelations about the ACKMUR money. He listened to Lester confide that he was hiding an Oriental girl from the law and that she was an incorrigible dopehead and flibbertigibbet who was running off her mouth and throwing money around like Kleenex and would get herself killed and cause innocent clients—Comer and McNeal reported that Lester winked as he said this—to be convicted. He heard Lester brag that his fee was as much as four hundred thousand, that he had driven a
rental car six thousand miles from Florida to Canada and back to avoid being traced with the money, and that part of his fee was a 1963 Corvette that he had stashed in his Okeechobee garage.

It was from Comer and McNeal that Kincaid learned that Lester was using sheriff’s deputies to guard his farm and his Eagle’s Nest house and that Sheriff John Mar Adams of Pulaski County was a frequent visitor to the farm. One by one, warning them that to talk about the interview would be a serious breach of their duties as law enforcement officers, Kincaid grilled the deputies, including the one who had been sent out for chicken on the night of September 7. That deputy described the arrival of a woman and two men in a dark car early on the morning of the 8th and recalled that Lester Burns and attorney Dale Mitchell were in a jubilant mood afterwards and had tipped the deputy an extra hundred dollars. Eventually Kincaid interviewed Sheriff Adams himself, who described Lester Burns as “different” from other local attorneys, mentioned his long friendship, and admitted that Lester could possibly have been using him. The sheriff, who said his records were sketchy, agreed to try to provide an accounting of how much Burns had paid his deputies.

It was remarkable, Kincaid thought, how thoroughly Lester had been taken in by Comer and McNeal. As a resident of Somerset himself, Kincaid was well aware of Lester’s reputation as a man on whom supposedly nothing was lost, in or out of the courtroom. Obviously Lester’s judgment was slipping, whether through whiskey or hubris or both; perhaps his years of outsmarting everyone else had finally begun to wear him down. It was particularly amusing to hear him advise Comer like a wise uncle to take out more insurance on a Lincoln Continental that was actually government property that had been seized in a Virginia drug raid. The question now was when to bring the inevitable indictments. These had to be coordinated with the rest of Project Leviticus, and it would be a shame to stop Lester talking when every day he was revealing more about ACKMUR.

Lester’s New Year’s resolutions for 1986 included cutting down on his drinking, losing weight, and having his hip replaced so that he would be fit for the Acker trial, set for the first week in June. Early in March he went under the knife and emerged from the anesthetic to find himself with a new hip and troubles potentially more serious than any others he had faced in his life.

On March 14, a federal grand jury in Lexington indicted more than a dozen Kentuckians as the result of investigations carried out under Project Leviticus. Among the accused were a judge, a sheriff, a former KSP commissioner, and Lester Burns, who among seventeen other counts was indicted for conspiring with Dr. Billy Davis to bilk an insurance company on the basis of the accident faked by Comer and McNeal. Publicly Lester issued a statement pooh-poohing the indictments as nothing more than an attempt to ruin him by law enforcement officials angered by his courtroom successes over the years.

Privately he was as appalled by his own stupidity as he was nervous about the charges, which together carried maximum penalties of something like ninety years in prison. How could he have been such an idiot, he told family and friends, as to have been taken in by Robert Comer, who he knew was a crook but for whom he had felt compassion because Comer had supposedly suffered a heart attack and could not pay additional medical bills incurred by the illness of his little boy? The record would show, Lester insisted, that he himself was to profit exactly
zero
from the insurance suit, for which he was acting as the attorney only out of common decency and Christian charity.

As for the rest of the counts, they were bunk. The ones connecting him to dope deals were not only nonsense, they were insulting, slanderous, and libelous; and they were grounds for a multimillion-dollar harassment suit against the government.

Without saying so, Lester was also worried by what he knew he had told Comer and McNeal about the Acker money. Not only had he revealed his knowledge that his fee was part of the stolen money, he had exaggerated the amount—more than doubled it, as he recalled—and talked about everyone’s need for “a washing machine.” And all along he had thought that he was merely impressing in his usual hyperbolic fashion a couple of backwoods bozos down on their luck.

“Imagine being an FBI agent,” Lester said. “What a disgraceful way to earn a living!”

Although, so far, nothing had been disclosed from the Comer-McNeal tapes concerning the Acker money, Lester fretted about that possibility and strove to fashion a defense of his indiscretions. Perhaps the government planned to wait to see how the trial was progressing and would move against him if he appeared able to
get Epperson off. Was there still time to give the money back, to defend Epperson for a dollar or withdraw? He concluded that that would amount to resigning his license to practice law.

Suspicions about his fee surfaced sooner than he had thought they would, and from sources other than the tapes, POLICE THINK LAWYER MAY HAVE WASHED ACKER MONEY, reported the
Whitesburg Mountain Eagle
on May 7, under the masthead bearing a drawing of an eagle in flight and the paper’s motto, IT SCREAMS! The
Eagle
credited the scoop to the
Louisville Courier-Journal,
the biggest paper in the state, which had run a Sunday story accompanied by a photograph of Carol’s MR2 with the trunk lock punched out. According to both papers, it was the condition of that car, which Burns had turned over to police after Carol’s arrest last September, that led police to believe that the lawyer had jimmied the trunk to retrieve money Carol had hidden there.

Lester, in Florida recovering from surgery, was “unavailable for comment.” This incident, the Whitesburg paper said, “marks the second time this year that Burns has been implicated in wrongdoings.”

Commonwealth’s Attorney James Wiley Craft stated that he did not expect current investigations of Lester Burns to delay the start of the trial of the three men accused of murdering Tammy Dee Acker of Fleming-Neon. The bar association had already issued an opinion saying that Burns, like anyone else, was innocent until proven guilty. Circuit Judge F. Byrd Hogg, who would preside at the Acker trial, was mindful of the danger of a mistrial because of Burns’s situation and had summoned Roger Epperson to inquire formally of him, on the record, whether he wished to fire his attorney and hire another or be represented by a public defender. Epperson had said unequivocally that he believed in Burns’s innocence and chose to continue with him. That, Judge Hogg ruled, obviated any possible conflict. Jury selection would begin as scheduled during the first week in June.

Down in Okeechobee, Lester was indignant. If the police actually thought that he had taken money out of the trunk of that car, did they believe that he would be such an idiot as to drive it to the KSP post with the lock missing?

For the past several months, Epperson, Bartley, and Hodge had been housed in various facilities around the state. Pulling various strings
he referred to as “just sheer politics,” Lester had arranged for his client to stay in the Pulaski County jail some of that time, so attorney and client could consult more easily. Carol, free on bail from her criminal facilitation charges, visited Roger almost daily there—and caused Lester more headaches. Once, on his way to see his client, Lester found Carol in the waiting room wrapping something into a sheet. Lester was alarmed. He did not know what she was doing, Lester told her; she might be wrapping a present of pipe tobacco or talcum powder for her beloved that had nothing to do with the knotted sheets found recently in Roger’s cell. It would doubtless be farfetched to imagine that she planned to tie her sheet to one of Roger’s so he could pull them in through the cell window. Lester knew she was too sensible to try to play a game like that. But he did wish to remind her that there was a commode in the next room. If she felt the urge to make use of that convenience, she should feel free to do so.

By February all three defendants had been moved to the Laurel County jail, in London, to await transportation to the Letcher County jail for the trial. It was at the Laurel County Courthouse that month that Carol married Roger and Becky Hannah married Donnie Bartley. While these pledges of faith had an uplifting effect on the prisoners’ morale, the exchanges of vows meant that under Kentucky’s strict marital exclusion statute, the wives could not be compelled to testify against their husbands.

Sherry also married Benny, but she had to wait until her divorce from Mr. Wong was final. The delay gave her time to devise a more complex and in a sense traditional ceremony. Remaining convinced that, whatever else he had done, Benny had not murdered Tammy Acker, Sherry was intent on having her marriage blessed by God as well as recognized by the state for practical purposes. She wanted a church wedding. How to arrange this required ingenuity. The authorities declined to permit Benny to leave his cell.

Sherry gathered with E. L. and Louise and other members of her family at the Baptist church her parents attended in Harriman. Technically and legally, the marriage took place on April 8 in Roane County, Tennessee; electronically and metaphysically, however, it occurred simultaneously in Kentucky at the Laurel County jail, where Benny recited his vows over the telephone to the minister, who pronounced Benny and Sherry husband and wife although the groom was invisible to him. There was no reception.

Sherry began commuting to Whitesburg when Benny and Roger were transferred there early in May, with Bartley remaining in London—for security reasons, officials said. The new Mrs. Epperson was also in Whitesburg, and the brides did their best to provide domestic comforts for their men, delivering fast food to supplement the jailhouse fare, television sets, VCRs and tapes, and other amenities to their cells. As a honeymoon spot it was no Niagara, but Sherry found the jailer a humane sort of fellow.

Within a week of Epperson and Hodge’s removal to Letcher, Rod Kincaid received a telephone call from John Bowling, the Laurel County jailer. With his office only two blocks away, Kincaid knew Bowling well. At some three hundred and fifty pounds, Big John was beloved for his cheerful approach to his duties, reknowned for stringing thousands of colored lights around the jailhouse each Christmas and playing carols in his office day and night from Thanksgiving through the New Year. He was a shy fellow, afflicted with a serious stammer; his phone call to Kincaid on the morning of May 8 lasted the better part of twenty minutes, although what he had to say was as simple as it was dramatic.

He was with Donnie Bartley’s mother, Big John Bowling said, and Bartley himself, who was saying that he wanted to make a statement about the Acker case and related matters. Bowling, who kept one of Rod Kincaid’s cards pinned to the jailer’s office bulletin board, was telling Bartley that, if he really did have something important to say, he ought to speak to the agent, who was a man everyone knew as a straight shooter. Big John was contacting Kincaid on the prisoner’s behalf.

He would have to talk to the U.S. Attorney’s office, Kincaid said, and to Letcher County officials prior to any interview. He spoke briefly to Bartley’s mother, Louise Farley, telling her the same thing. She insisted that her son wished to talk to no one except the FBI.

The next morning, Kincaid and another agent met with Bartley’s mother and father, Donald Terry Bartley, Sr., at the jail; the parents were upset about Donnie’s legal representation. They complained that Donnie felt that his attorney, O. Curtis Davis (no relation to Dr. Billy Davis), to whom they had been referred by Lester Burns, was misrepresenting the facts to his client and sharing confidential information with the other attorneys in the case. Donnie would no sooner
tell his lawyer something, his parents claimed, than it would be repeated to him through Epperson, who must have heard it from Burns.

Their son had decided to fire O. Curtis Davis and accept a court-appointed lawyer: they were out of funds, and they figured they would be better off anyway with a lawyer who wasn’t in it for the money. In the meanwhile, Donnie wished to make a statement. He was prepared to tell everything he knew. Kincaid advised the parents that he was not in a position to make either promises or threats. He understood that Bartley was acting entirely of his own volition. They should inform their son of this and see whether he still wished to talk.