Dark and Bloody Ground (41 page)

This confession was recorded three days after the first, untaped statement Bartley had made to Rod Kincaid. Assistant Commonwealth’s Attorney Mike Caudill asked the questions, with Danny Webb and Frank Fleming in attendance, at the Laurel County jail. The interview lasted only half an hour, because it concerned only events directly related to the Acker trial.

Bartley told the same story that he had given Kincaid, with the key, or at least the most sensational, element being that Benny Hodge had done the stabbing. He was more detailed about where he thought much of the money had gone, saying that he and the others had left more than a hundred thousand dollars with Pat Mason and that he believed that Mason’s Las Vegas miracle was part of a laundering scheme: “I think it was a setup, where she won that money.” He had been in jail, however, and admitted he knew nothing about Mason’s possible role for sure. He also said that Epperson had told him that Lester Burns had received some four hundred thousand of the money, plus the ‘63 Corvette.

The
Eagle
asked Lester to comment. “Bartley is a young man trying to save his hide,” Lester said. “I think you could find a great amount of his statement in a barnyard. And testimony by an alleged accessory to a crime is totally unreliable.” Was there anything Bartley had said that might be correct? “His name was correct,” Lester replied, adding, “I’ll tell you this. Bartley may be the murderer.”

What the
Eagle
did not print, because even with all of its inside sources the paper was not informed of it, was that there was disagreement between Caudill and Webb on the one hand and Frank Fleming on the other as to whether Bartley should be believed. Caudill and Webb agreed with Rod Kincaid that Bartley was credible. Fleming, who remained unshaken in his belief that Epperson had told the truth off the record during the drive from Florida months before, thought Bartley was lying about who had done the stabbing. “Besides,” Fleming argued, “show me a killing like that and nine times out of ten it’s a little guy who did it. It’s just what an insecure pint-sized coked-up little runt would do under the circumstances if a girl refused him. Hodge is a big old stud. He might kill a woman, but not like that.

He’s got nothing to prove. Bartley is out to save his own ass, is all. He’s copped out before. He’s a snitch and a chickenshit, is all he is. He couldn’t kill anybody in cold blood, but he could go berserk. He was on coke. He’s a pipsqueak and a liar.”

Danny Webb, with Mike Caudill concurring, said that there was no more reason to believe Epperson than Bartley. As for Hodge, his size and strength alone were the strongest argument that he had stabbed Tammy. Didn’t Frank remember? The knife’s point had gone through the body, out the breast, through the carpet, and into the floor.
That was a stone floor!
That part of the Acker house must have been built on the foundation of one of the old miner’s duplexes. The floor beneath the carpet was like cobblestone, actually stones laid together and filled in with mud for mortar. The knife had been jammed between stones and into that hardened mud. Nobody but a tremendously strong man could have done that. It had to have been Hodge.

The number of wounds, all of which could have been inflicted in under a minute, could be explained by the panic they were in to get out of there. The telephone had rung. Hodge was trying to make sure he did the job right, like the good criminal he was. Bartley had botched his, just as he did when he left the briefcase. Bartley did nothing right.

“It doesn’t matter what I think,” Fleming said. “What a jury believes is what matters. But I’m not convinced.”

Word came to Rod Kincaid that Benny Hodge, reacting to Bartley’s allegations when they were made public, was ready to talk in return for leniency. Kincaid refused the overture, saying he would not be a party to any deal with the man he believed was the killer.

For Sherry the news that Bartley had fingered Benny and would do so at the trial was crushing. She took little satisfaction in remembering that she had warned Benny from the start not to have anything to do with him. Staying by herself in a motel near the jail, she was not surprised when she read in the
Mountain Eagle
that Bartley’s confession had surprised few people in Harlan who had known him since childhood. What old acquaintances revealed about Donnie only confirmed to Sherry what she believed she had always instinctively known. Some old-timers interviewed around the Harlan County Courthouse claimed that they had predicted that Bartley would tell authorities that he had taken part in the crime but did not commit the murder:

“We were all saying that Donnie would say he did some of it, and that he didn’t have a thing to do with the rest of it.”

Bartley was remembered as a boy who was a charmer but could
not stay out of trouble. A high school classmate recalled that Donnie had been in trouble since his first day in school: “Everybody knew that if they got into a fight with him, he had a knife.” Confessing to crimes was nothing new with him. In the seventies he had taken advantage of plea-bargaining agreements by implicating co-defendants in other cases. In 1983 he had been one of five men indicted on several burglary charges. Pleading guilty, he had claimed that his only role had been to stand watch, while others testified that it had been he who had done the planning and the actual breaking and entering.

“He always gets to telling that someone else did something,” someone identified as “a long-time Harlan County courtroom observer” said. “It makes you wonder, doesn’t it?”

“I’ve never known Donald Bartley to tell the truth,” the classmate said. “You name it and I think the boy’s done it.”

A deputy circuit court clerk remembered Bartley as a little boy, coming in to pick up his mother’s child support check. “He was the sweetest and most polite person,” she recalled, “and good looking, too. I almost cried the first time he got in trouble.” When he was testifying in the burglary trial, he had remembered her and said, “’Hello, you look so nice.’ He handed me that same line, just like nothing in the world had ever happened. And he was just as pretty as he ever was, too.”

Pretty Boy, Sherry thought bitterly.

Once the trial began, on Monday, June 2, she was forbidden to enter the courtroom because she was under subpoena as a witness, barred from hearing others’ testimony, although she had every intention of refusing to testify and had notified the court that she would cite the marital exclusion rule and, if necessary, take the Fifth. She considered being kept outside a cruel ploy on the part of James Wiley Craft, who everyone said fully lived up to his name, to influence the jury into thinking that Benny Hodge was so evil that not even his wife would stand by him. She could only visit Benny in the jail, under strict observation, since certain implements had been discovered in his cell. She tried to comfort him, but Benny was despondent. He was sure the FBI had put Bartley up to his statement and was doing everything it could to see him fry.

When Rod Kincaid approached Sherry on the courthouse steps and urged her to testify fully and truthfully, implying, she thought, that things might go easier for her if she did, she told him to go to
hell. She was not going to betray her man; she was out to save him, any way she could.

She thought she found a possible avenue when Ben Gish, who was covering the trial for the
Mountain Eagle
and with whom she had had several off-the-record conversations, asked her formally for permission to do an interview with her. She liked Ben, the son of Tom and Pat Gish, owners and publishers of the
Eagle;
he seemed like a down-to-earth, good-hearted young man; he was friendly to her when everyone else, as soon as they found out she was married to Hodge, shunned her like the plague, which confirmed her lifelong belief that most people were hypocritical jerks. Ben treated her like a lady and a human being. Like a true gent, he even picked up the check when he found her sitting alone at the Courthouse Café, biding her time and feeling so anxious and blue. Sometimes they talked about music; like Benny, Ben Gish preferred classic rock, and he worked part-time as a radio disk jockey, playing oldies; Sherry listened to his show.

She decided to grant his request and to tell the world her side of the story. She knew that members of the jury weren’t supposed to read the papers, but she figured some of them must cheat.

They did the interview sitting outside near the courthouse parking lot, where the six cars that were evidence in the case were impounded.

“If Benny was a murderer,” she began, “he would already have killed me. I’ve given him every opportunity. What really hurts me about Bartley is that we were so good to him and I helped him get over hepatitis and kick his cocaine habit. Bartley’s more likely to have done that murder than Benny is. I know of at least two times that Benny had kept Donnie from killing someone.” She described the incidents, one in which Donnie had pointed a gun at a man after hitting him over the head with a poker, the other in which Donnie had threatened to kill his own sister. She provided vivid and elaborate details. Donnie was a liar through and through. He had even lied about her buying her parents a house with the Acker money. Her father had borrowed that money from his credit union.

Her husband, Sherry said, was a man who walked away from trouble: “I don’t know of anyone who ever met Benny that didn’t like him. He’s never even spanked his daughters, or mine.” He was the world’s best father and a man who lived for his family and his bodybuilding.

Sherry said that she had often made Benny mad enough to want to kill her and hit her and that, instead of becoming violent, he had left home each time and rented a motel room. She spoke of her happiness with him, of a trip to Six Flags Over Georgia and other outings with the kids. This trial was taking its toll on her daughter and on Benny’s children, who couldn’t understand why they couldn’t see their daddy and touch him. She was having a rough time herself, reduced to supporting herself by cutting the hair on dead bodies in mortuaries. The FBI had told her that she would be arrested after the trial was over.

“If loving Benny’s a crime, they can lock me up and throw away the key.” She was being treated poorly by the FBI and the state police, but she wished to thank Letcher County Jailer Frank Tackitt, who had been especially nice to her and Benny.

The
Eagle
printed the long interview, in which Sherry came across as the devoted wife of a misunderstood victim, on the front page. She read it aloud to Benny, who was thrilled by it but doubted it would do much good. More and more every day, he was convinced he was going to get the death penalty.

Sherry told him, as she had so many times, that life without him would not be worth living. If he were condemned to death, which she was praying every day would not happen, she would kill herself. She knew where she could get some cyanide pills. She suggested that they make a twin-suicide pact. She would bring the pills into the courtroom if he ended up sentenced to the chair. The instant the sentence was pronounced, she would rush up, and they would take the pills and die in each other’s arms.

Benny agreed.

Whitesburg was the prettiest town in Eastern Kentucky and also the most sophisticated and progressive. In addition to its weekly newspaper, it was home to Appalshop, an arts center housed in large studios of contemporary design that broadcast over its own radio station and produced documentary films, traditional and current music recordings, television programs, and original plays performed by an ensemble troupe that traveled throughout the nation. On one of his CBS television programs, Charles Kuralt correctly described Whitesburg as the cultural capital of Appalachia. The town was also home to Harry M. Caudill, the writer and lawyer whose
Night Comes to the
Cumberlands
and other books were widely acclaimed and had had a powerful effect on Robert F. Kennedy, among other government and academic figures. Many of Whitesburg’s citizens lived there by choice, some moving back, like the publishers of the
Mountain Eagle,
after successful lives elsewhere, or staying on after discovering it, like the Yale graduates who owned the Courthouse Café, where they served health-conscious dishes that tasted more like California than Kentucky.

But if Whitesburg differed from, say, Fleming-Neon, it was still an isolated mountain town, where the biggest event of the year might be a high school football game or the Fourth of July celebration and most of its citizens worked in the coal industry, when they could. When reporters started pouring in and Lester Burns drove up to the courthouse in his gigantic plush law office on wheels to plug his computers into the 220-volt line and begin putting on his jurisprudential Wild West show, the town became captivated by the trial that had the whole state talking and was predicted to last from three to four weeks. The atmosphere, Ben Gish said, was like a circus. You never knew what bizarre act was going to perform next.

After Lester’s entrance, the most dramatic turn was executed by Pat Mason, “the millionaire witness,” as the press called her, who arrived driving a new white Cadillac Eldorado convertible with the numbers “7 7 7” on the Florida plates and embossed in black above the door handles. Her jet-black hair cropped short, she emerged from the car wearing an all-white pantsuit and flourishing a white walking stick topped with gold.

Her statement, revealing no more than her sales of two cars to Roger Epperson, was stipulated into evidence, with Lester and Dale Mitchell reserving the right to call her to the stand at a later time. She declined to be interviewed.

26

L
ESTER BURNS STAYED WITH HIS ENTOURAGE
and Dale Mitchell at La Citadelle—"this beautiful motel, on the apex of a forest-clad mountain, is Kentucky’s contribution to relaxation, recreation and the gallant hospitality of the fabled mountain country"—throughout the trial. His only complaint about the accomodations, the most sumptuous in that part of the world, was that he had trouble getting his bus up the steep climb. He descended the thirty or so miles to Whitesburg each morning, favoring the press with a choice quote or two as he alighted to enter the courthouse.