Dark and Bloody Ground (42 page)

Resplendent in yellow rattlesnake boots, several diamond rings, and enough gold to tempt Cortez, his effect enhanced by his being on crutches and confiding to reporters that he was in pain from severed ligaments and tendons slow to heal, Lester began his defense work with a flurry of preliminary motions. Epperson and Hodge were pleading not guilty. Lester wanted the trial moved out of Letcher County because there had been so much publicity that it would be impossible to select an unbiased jury. Circuit Judge E Byrd Hogg denied this, saying that he read newspapers himself and took them
"cum grano salus,”
as anyone with any common sense did, and that, at any rate, Whitesburg was not Fleming-Neon, where the crimes had occurred. If prospective jurors from Fleming-Neon felt they could not be fair, they would be dismissed. The judge did not believe that “the Supreme Court thinks that we have to go to the moon to try a case like this one.”

Lester also asked for a delay. It was the second day of June; James Wiley Craft had turned over the transcript of Donald Bartley’s statement to the defense only on May 28, explaining disingenuously, Lester sneered, that it had taken that long to have it typed. There was not time enough for the defense to adjust to this major development. Judge Hogg denied that one, too. He denied all but the most trivial motions Lester and Dale Mitchell introduced. (As Bartley would now plead guilty, he had been granted a separate trial, and would be appearing later as a witness at this one; his new court-appointed attorney did not participate in these procedures.)

Judge Hogg also lectured Lester. He told him that he knew him by reputation and would not tolerate in his courtroom the kinds of disruptive behavior for which the attorney was famous. Blatant appeals to emotion might be acceptable elsewhere, but not here.

“Yes, Your Honor,” Lester replied softly.

F. Byrd Hogg was a tough law and order jurist who was never afraid to speak his mind. Danny Webb liked to say privately that he always felt better when Judge Hogg was on the bench because then the scales of justice tipped ever so slightly to the prosecution’s side. Others enjoyed speculating that the character called Boss Hogg in the television series “The Dukes of Hazzard,” which was set in highly fictionalized Kentucky mountains, was modeled after him. It was true that, like the boss, the judge was a small, stout man who talked in a loud voice in a rich highlands accent. Unlike Boss Hogg, however, Judge Hogg never wore a white suit with matching Stetson and was not in any sense the boss of anything other than his courtroom.

A Republican in a heavily Democratic area who displayed photographs of Presidents Dwight Eisenhower and, defiantly, Richard Nixon on the wall behind the desk in his chambers, Byrd Hogg had been elected and reelected despite strong opposition from the United Mine Workers, the most powerful political force in the county. People appreciated his warm, unpretentious personality and knew that behind his folksy manner there was a first-class legal mind. His rulings were hardly ever reversed by a higher court.

His physical appearance may have encouraged his forthrightness. In World War II he had participated in the D-Day landings as an infantryman and in Germany was hit in the face by enemy shrapnel. His nose, or what was left of it, and the right side of his upper lip bore the scars of those wounds: he liked to joke that the Army must have assigned an apprentice plastic surgeon to him, figuring his face
hadn’t been much to begin with. He had learned to deal with life as with his disfigurement, as if to say, “Here I am. If you don’t like it, too bad.” His opinions could be downright startling, on and off the bench.

A visitor to his chambers was likely to be treated to vivid statements on the virtues of the death penalty as retributive justice. To illustrate, the judge spread out on his desk his collection of gruesome photographs of homicide victims, bodies mutilated and burned and hacked to bits, while commenting on each in hideous detail. He would ask whether whoever had done this or that ghastly thing to another human being didn’t deserve to be put to death. What right did such a person have to be housed, clothed, and fed by society for the rest of his natural life? What about the victims? He planned to write a book advocating the death penalty, illustrating the text with these photographs, to which he would add those of Tammy Acker, after the trial. That would give the misguided lamebrains who whined about cruel and unusual punishment a thing or two to think about.

Judge Hogg frequently volunteered that, after years on the bench, he did not believe in the jury system. He was stuck with it and would abide by it, but it no longer worked. Standards had fallen so low in American schools that the average person was too ignorant to be trusted with important decisions. In avuncular tones punctuated by gruff laughter, he explained why jurors were becoming more inadequate every day. Most of them were befuddled by legal arguments and judges’ instructions; hardly any of them were capable of understanding the scientific evidence that was such an important part of homicide prosecutions nowadays and would grow more complex in the future. Was anyone prepared to tell him that the typical numbskull sitting on a jury, who had an attention span about as long as a breakfast cereal commercial and had never read a book in his life and didn’t know a pathologist from a pickax, was equipped to evaluate medical testimony, let alone decipher psychiatric folderol?

Judge Hogg indulged certain tastes that might have been considered eccentric in more refined sections of the nation. He chewed tobacco on the bench, spitting into a paper cup or a brass spittoon. It was not that Byrd Hogg was unaware that this practice was elsewhere regarded as unsanitary and uncouth. The judge liked to say that he believed he was as well-informed as the savages wearing silk suits in
New York or loincloths in Los Angeles. He watched satellite TV. He was current with the Yale, Harvard, and other law reviews, read the
Wall Street Journal
every morning, and occasionally perused the
New York Times.
He was aware that chewing on the bench was not as common on the U.S. Supreme Court as it once had been; neither were brilliant opinions much in fashion. Nor was he unaware that reporters from Lexington, Louisville, and other far-flung metropolises delighted in portraying mountain folk as barbarians. Like his Texan relations, who had named a pair of daughters Ima and Ura, Judge Hogg simply didn’t give a damn what outsiders thought. What was America about but freedom, and what were the mountains if not one of the last places where you could be what you wanted to be?

His chambers, crowded with memorabilia and family pictures, were down the hall from the jail, just off his courtroom on the second floor of the courthouse. On most days he had the jailhouse cook fix him his lunch. His favorite meal, in which he indulged once a week, was boiled hog’s head. His eyes danced with anticipation as he recited the recipe for what his English ancestors had called brawny. Plunge one entire hog’s head, boned and quartered, into a pressure cooker. Add cabbage, carrots, garlic, salt, and pepper to taste. Boil an hour; drain and serve. The judge sometimes wandered over to the jail kitchen to oversee the preparation of this dish, which he consumed at his desk while meditating points of law. In his opinion the ears were the tastiest, but the snout—as the French would agree, calling it
museau de porc
and adding white wine and shallots—was succulent, too. In appreciation, exulting in this pungent break from legal tedium, the judge had been known to imitate the gobble of the wild turkey.

It may have been Judge Hogg’s admonitions to him; it may have been the sight of that pugnacious face, the unvarnished manner, the brusquely confident way in which Byrd Hogg overruled objections and denied defense motions; it may have been the knowledge that, for once, he was sparring with a man who knew the law as thoroughly as he himself did; perhaps the mere sight of that gritty, chunky man with his granite-gray hair brushed straight back and his chaw was enough to give Lester Burns pause. It could have been the indictments hanging over his head—whatever, by the second day of the trial, as everyone noticed, Lester had shed his jewelry. He still wore
boots and Western shirt, jacket and tie, but his fingers were bare of diamonds and only his watch and belt buckle shone gold. For Lester, the getup was homespun, and his mien was grave.

He was still on crutches, but without the jewelry they conveyed less gallantry than humility. One mischievous trooper, hoping to break Lester’s composure and trick him into a nimble move that would prove that he was faking, surreptitiously removed a rubber tip as Lester sat at the defense table. When Lester struggled to his feet and noticed that the crutch had been tampered with, he looked around and plaintively asked, “Who would do this to me?” That afternoon he told reporters that “in a murder trial like this, there are no winners, no matter what the verdict. It is a painful experience for everyone.”

His manner toward Dr. Acker, who was the first prosecution witness, was deferential. Somber and subdued, leaving the pro forma objections for Dale Mitchell to raise, Lester sat as Craft led the doctor step by step through that August night. Craft had already established the foundations of his case with a dramatic opening statement. His voice was a resonant baritone that carried no trace of regional accent; in the old days of radio, he could have been the announcer of some action-packed mystery or adventure series. The defense denounced Craft’s language and tone as inflammatory but offered no opening responsive account, reserving any alternative scenario until completion of the Commonwealth’s presentation of evidence. This was a tactic that had precedent but left Craft’s words hanging in the air and raised the unspoken question, what plausible defense could there be for Epperson and Hodge?

James Wiley Craft was nowhere as histrionic as Lester Burns, but was in his own way as strong a personality. Danny Webb thought Craft the most effective prosecutor in Eastern Kentucky. In his private practice, Craft’s reputation extended beyond the mountains, and other lawyers avoided tangling with him; he was thorough and could get nasty. He was one of several successful siblings of parents who had not been educated beyond the eighth grade but had stressed reading and education to their children. James Wiley had a brother who was a professor of comparative literature at the University of Chicago.

In trying to recite what he recalled of the sequence of robbery and murder, Dr. Acker spoke in the high, thin voice of a man of his years.
His Bostonian inflections had the effect of objectifying his story and elevating it, as if he too had died and were signaling from a distant galaxy. His voice quavered once, when he had trouble remembering what day of the week it had been, and he said, “Time matters so little, now that Tammy is gone.” Mitchell’s objection to this sounded callous.

In a dark suit, starched white shirt, and tie, his face almost as fleshless as a bird’s foot, Dr. Acker sat in the witness box facing the jury, which at that point in the proceedings consisted of eleven men and three women. In Kentucky the final panel of twelve is not selected until almost the end of the trial as the jury is about to retire to deliberate, when the court clerk draws the names of alternates by lot. In this courtroom, as in some others in Kentucky, depending on the shape of the room and the choice of the architect, the jury box sat directly below and in front of the bench and witness stand, rather than off to the side as is the usual configuration. This design, which gave the jury front and center seats, three rows deep, involved them much more closely in the action, permitting them to look at a witness straight in the face and allowing the lawyers to perform close to and in front of them at all times. The defense and prosecution tables were off to either side. Spectators sat beside and behind the jury box, on benches that remained filled throughout this trial.

Lester, sitting beside Epperson, let Mitchell conduct almost all of the cross-examination of the doctor. Short of being abusive, but not far short of it, Mitchell did not hold back. It was true, the doctor admitted, that he had had some difficulty in picking out Hodge’s photo from the display the police had shown him several days after the murder. This was because he had experienced blurred vision after the choking he had received, which had caused his eyes to hemorrhage. He had also suffered a heart attack during the assault. But he had no doubt that the blond-haired man sitting there today was one of the two who had first entered the house and tied him up. The other, darker man was not in the courtroom, but he could identify him, also, with absolute certainty. A third, big man had also been in the house, but he had not seen that one’s face.

Mitchell attempted to undermine Dr. Acker on the basis of the amount of money kept in his house. In emphasizing this, Mitchell tried to provide what a successful defense ought to have, an alternative version of events. Since there was no doubt that the defendants
had been in the house, might there not be a motive other than robbery for their visit? Collusion, perhaps? This strategy was, while not directly accusing him of crookedness, to imply something shady about the doctor and to insinuate that whoever had come to rob him that night did so because of unspecified illegitimate connections between the thieves and their victim. If this approach would not exonerate the defendants, it yet might sway the jury toward leniency. Why, Mitchell asked, had the doctor told the police that half a million dollars or less had been stolen, when the figure turned out to be closer to two million?

He had been surprised by that huge figure, Dr. Acker said. He did not count his money; he just earned it. Until her death from cancer, his wife, Dee, had managed the household expenses. He gave her the money from his practice, she paid the bills, and they saved the rest.

“You’re saying you saved five hundred thousand dollars from grocery money, is that what you’re saying?”

“I’m saying I probably saved a great deal more,” Dr. Acker replied steadily. It was true that, many years ago, he had owned an interest in a bank, but the bank was many miles away from his home and practice. For thirty or forty years, he and his wife had simply stored their money in an old trunk. Three or four months before the robbery, he had bought a safe. He used banks as seldom as possible. He did have a business account, for processing checks.