The Killing Kind (34 page)

J
uries are unpredictable. Just when lawyers think they’ve got a jury figured out, they come back and surprise the attorneys. Most lawyers, as a rule of thumb, try not to make predictions or consider how a jury might be keeping score: those looks each juror might offer on his or her way into the courtroom, or reactions to evidence and testimony. Add a capital case to the mix and it intensifies all those feelings. One cannot help trying to gauge what jurors are thinking. Part of a jury’s unpredictability, it is widely believed throughout the legal system, is that jurors rely—as much as we say they don’t or shouldn’t—on personal beliefs, intimate biases, intuition, and core human values. Part of what goes into a jury’s decision is how each juror responds to the evidence, obviously; but an even greater part, according to a paper published in the
DePaul Law Review,
²
is how jurors react to witness testimony. Evidence is expected. How a witness tells his or her story is what ultimately convinces most jurors which way to vote.

Danny Hembree and his team could have put up ten experts to talk about his proclivity for falsifying confessions and making up stories. They could have questioned investigators on every aspect of the investigation, digging and searching for that one mistake law enforcement inevitably and unintentionally made. They could have entered into evidence reports by psychiatrists and psychologists that explained how much Hembree had lied. Yet, none of it would have negated the bitter, abrasive, and combative testimony that Hembree offered himself on cross-examination: how he went after ADA Hamlin at times and demeaned her; how he attacked her personally; how he denied every serious fact she threw at him. Not a thing any additional witness from this point on could say would wash that nasty taste out of jurors’ mouths that they undoubtedly had from listening to Danny Hembree spew his vitriol.

“I think I was just so tired after that cross-examination,” Hamlin later said after being asked how Hembree’s coarse attitude and condescending nature affected her. “I was glad it was over. I do remember I had fun cross-examining him. It is very rare as a prosecutor to be able to cross-examine a murderer.”

After listening to Hembree’s rants, all jurors had to do, if they felt inclined, was put themselves in the position of Heather or Randi at the receiving end of a drug-drunk maniac who didn’t like what was said to him. Hembree had shown jurors who he was. He gave himself away.

Beam had to try to redeem his witness. And so over the course of the next several days, that’s what Hembree’s attorneys set out to do. Beam called a Brevard County sheriff to explain how he had looked into those homicides Hembree admitted to in Florida, but the witness said he could not find any victims matching the time frame associated with Hembree’s admissions.

After the sheriff, Beam called another law enforcement officer, Detective Michel Sumner, who offered nothing of any significance to bolster Hembree’s new story of making false confessions. Yet, through Sumner’s cross-examination by ADA Hamlin, something happened.

Something Hamlin and Bell had discussed with Sumner before his testimony was what he should say regarding Hembree’s psychological condition. Sumner was told repeatedly, Hamlin said, not to analyze Hembree psychologically. Don’t go down that road of saying he’s a sociopath, a psychopath, and, especially, a pathological liar. That wasn’t Sumner’s job, Hamlin stressed. The detective was there to discuss what Hembree had said and verify those facts.

“Do you think Hembree was lying when he talked about killing Randi and Heather?” Hamlin asked Sumner before court began that day.

“No,” Sumner said, adding that he believed Hembree 100 percent.

“So he’s not a pathological liar, then. He does tell some truths. But if you go up there and say he’s a pathological liar, you’re saying he lied about killing these women,” the ADA outlined.

The impression Hamlin had left with her brilliant cross-examination of Hembree was that he, in fact, picked and chose what he lied about. It was a conscious decision; it wasn’t something he couldn’t control. He intentionally selected when to tell the truth and when to fabricate.

Sumner, however, got up on the stand and called Hembree a “liar.”

Really?
Hamlin said to herself as Sumner went on with Beam to talk about Hembree not always telling the truth.

Beam saw an opening as Hamlin sat, frustrated.

“Do you remember telling me that Mr. Hembree . . . couldn’t tell the truth consistently?” Beam asked Sumner.

“Yes, I do remember telling you that.”

“That was your opinion, right? And that’s how you phrased it, correct?”

“That was my opinion, without clarifying the answer. I wasn’t able to clarify my answer after making that statement.”

“But your opinion is still, and was, that he can’t tell the truth consistently?”

“That is true of certain matters, certain individuals, um, certain people he stated he killed.”

Stephanie Hamlin wanted to pull out her hair.

“As far as you know?” Beam asked.

“Of course.”

“That’s your opinion, right?”

“Based on the evidence, that is my opinion.”

“Okay,” Beam concluded. “I don’t have any further questions.”

During a recess, Hamlin found Sumner and cornered him. “How
dare
you go up there,” she said angrily, “and say that after having what? One meeting with him? And all of a sudden,
you
become this expert on how much Danny Hembree lies or doesn’t lie, when obviously he has told the truth on numerous occasions.”

Sumner felt bad. He didn’t know what to say. The prosecutor had a point.

Hamlin was livid. They had been sailing along; Hembree’s defense was falling down. Now this bump! Sometimes, that’s all it takes for that one juror on the fence—a reason to disagree with the state and—boom—a hung jury. A problem juror—a mistrial.

Any number of possibilities.

The point was, Hamlin said later, “Hembree doesn’t always lie. And here was one of our own saying that Hembree was a liar. Sumner was agreeing with the defense.... I mean, look, I don’t know Detective Sumner that well, and I somewhat understand what he was trying to do. But we told him not to analyze Hembree. I guess our personalities just don’t match up. I was really pissed at him.”

“That’s what I thought about Danny Hembree,” Sumner said later.

Sumner’s analysis of Hembree was “totally objectionable, and we did object to it repeatedly,” Hamlin explained.

After that hiccup, Hembree’s hired clinical psychologist, Dr. Claudia Coleman, under the direction of Beam, told jurors she had done an evaluation of Hembree after being contacted by his attorneys. And through Coleman’s testimony, Beam was able to get the psychologist to say exactly what he needed: Hembree had a history of making up confessions. She believed he could be lying here, too, and that his answers to her during their sessions were truthful.

Coleman said Hembree suffered from “major depression since adolescence.” She had reviewed “thousands of pages” of documents pertaining to his mental-health history. That research, combined with her personal meetings with Hembree while he was in prison, contributed to her opinion.

Coleman’s testimony went on far too long. Her answers, although quite professional and believable, were far too long-winded. Juries want sound bites, not graduate-school-level textbook descriptions of disorders they have no interest in learning about. They want “yes” or “no,” with a little bit of context. As this type of expert testimony carried on, it came across as a hired doctor bolstering a defendant’s argument. It became so obvious it was almost embarrassing to listen to at times.

After a lengthy discussion among the lawyers, without the jury present, there was one point when the judge allowed Coleman to talk about what Hembree’s lawyers referred to as a “brain injury” Hembree had. Coleman said it was her opinion that “he has a brain impairment, my testing shows, and it’s consistent with several things in his history. . . .”

One could almost hear the gallery collectively think:
So what?
The guy might have a brain injury. Yes, he abused drugs and alcohol. He probably had been whacked in the head during fights on a number of occasions. Sure, he had lied about things in the past and had confessed to things he did not do. Yes, he sat with countless psychologists and was even treated in psychiatric hospitals for mental disorders. And, of course, Hembree, like Coleman said, was your classic narcissist.

True, Coleman had testified in court over two hundred times throughout a thirty-year career and made, just in the past five years alone, over $500,000 doing it. But none of this mattered in the end: Danny Hembree had admitted killing these two women, and the science and evidence backed up his statements. There was no spinning those facts. These were truths Hembree was now trying to take back.

As Locke Bell tore apart Coleman’s testimony on cross-examination, bringing into question all that money she had made testifying in court for various defendants, he brought up one pivotal, nearly forgotten point regarding Hembree’s “false confessions.” Bell was able to sketch out for jurors through his questioning of the psychologist—with Coleman consistently agreeing—that Hembree, within that DVD of him traveling around with Sumner and Hensley, knew all of the facts of Heather’s and Randi’s deaths he had talked about during his interrogations: where they were dumped, how they were brought out to each location, where Heather’s clothes were located, how he murdered both women, etc. None of what he said during that car ride or inside the box was ever recanted, at any time, to law enforcement. He had told this story to police and never went back on it. Even after he cut those deals with the DA and got placement in the prison he had wanted, Hembree stuck to his admissions.

Coleman could do no more than repeatedly agree with Bell that Hembree knew detail after detail surrounding the girls’ murders, the dumping of their bodies, it all panned out through the evidence, and was backed up—without question—by his own (unrecanted) statements to law enforcement.

Late into Halloween, Dr. Donald Jason, Forsyth County medical examiner and pathologist, sat in the witness stand and told his story of reading through the autopsy reports, examining the autopsy photos, and reviewing a transcript of the interviews Hembree conducted with Hensley and Sumner. It took all of about five minutes into his direct testimony, after being asked about Heather’s cause of death, for Dr. Jason to give Beam the goods: “In my opinion, it’s not possible to scientifically determine what the cause of death of Heather Marie Catterton was based on the autopsy and where she was found and the autopsy including the toxicology report. There are indications that the most probable cause of death is cocaine toxicity.”

Bell objected to that response.

Beam continued and Dr. Jason furthered their argument of Heather dying by overdose. He stated how much cocaine was in Heather’s system and testified that Heather’s body did not display “any trauma that would be consistent with being cause of death.”

No fractures.

No brain injuries.

No bruises of any significance.

No signs of strangulation.

Mostly just small, insignificant “abrasions,” said the doctor.

Heather, the doctor testified, most likely died of a cocaine overdose.

When Bell got hold of him, the DA latched on to Dr. Jason’s disregard for how Randi died and how his opinion was based solely on Heather’s case. Then Bell got the doctor to admit that within one of his own reports, he had written,
It cannot be determined scientifically from the autopsy and the toxicology report [how Heather had died]
—and that his testimony and his report differed in viewpoints.

As a final cross-examination question, Bell asked: “Did you see where Danny Hembree said he took a plastic . . . bag and held it over her mouth and suffocated her that way? Did you see that?”

And the doctor responded: “Perhaps. I don’t really remember.”

Jurors had to ask themselves:
How could you do a thorough reexamination of the cause of death and miss that one, seemingly all-important fact?

The Hembree team brought in its forensic scientist, a toxicology expert, to testify that Heather had large amounts of cocaine in her system—a fact that had been well established by this point in the trial. It was redundant testimony. They were beating a drum too loudly and far too repetitively. The jury was either going to buy that Heather died of an overdose or they were not. Most likely, they were going to toss all of the testimony associated with her blood and cocaine toxicity levels and rely on what Hembree had said, plus the fact that Heather, sad as it sounded, was a chronic crack cocaine user and used to high levels of the drug.

Next up was a licensed psychologist to talk about Hembree’s brain injury and its effect on him making up stories. Redundant testimony once again, offering nothing in the form of explaining how Hembree, a career criminal with violent offenses all over his record, wound up being in the presence of two dead girls in fewer than three weeks.