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Defense strategy flawed in Call case
Only evidence was tire tracks that were not made by Call's pickup
Journal photo by David Rolfe
Eric Call is on death row in Raleigh.
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Published: September 21, 2009
Forsyth County District Attorney Tom Keith is coming up on 20 years in office, and spent 20 years as a defense attorney before that. He said there are few cases in which there is no confession, no DNA evidence or no eyewitnesses.
Keith had nothing to do with the prosecution of Eric Call for the 1995 murder of Macedonio Hernandez. But he suggested that the strategy of prosecutors in the case was clear.
"There's no big home runs in our business, so what the state was probably doing was just slowly putting pebbles on their side,'' Keith said. "The pebble that the jury never heard from the defendant. The pebble that his friend said he did it. The pebble that the second person said he did it. The pebble that the friend said he helped him escape. The pebble that both victims were in the same place. What are the odds of going to the same place in a whole county full of empty fields?"
Interpreting the approach of the defense in Call's case is more difficult.
His attorney, Anthony Lynch, died of a brain tumor in January 2003. Lynch's assigned second, Don Willey, declined a request to comment about the case.
The most striking thing about the defense of Call is the fact that after the prosecution rested, the defense rested.
Lynch apparently felt that the prosecutors had presented no direct evidence tying Call to the murder of Hernandez, or that he had created reasonable doubt in jurors' minds through his cross-examinations of Varden and Gabriel Gonzalez, the 18-year-old cousin of Hernandez. He was also able to show that tire marks found in the field where Hernandez was killed did not match the tires on Call's pickup.
Lynch brought passion to his closing argument, arguing forcefully that Varden was the person who consistently embellished the truth, had financial problems, was found with money on him, admitted to owning and wiping off the baseball bat believed used for at least one of the attacks, admitted to owning the rope used to tie up Hernandez, and, finally, had an affair with Call's wife that ended violently.
A flawed strategy
But their strategy had its flaws. To avoid being put in a position of potentially having to lie, Lynch had asked questions of Call only to get information that he needed to poke holes in the prosecution's case.
As a result, Lynch and Willey spent much time during cross-examination trying to establish doubt in the jurors' minds about Gonzalez, who had testified that he managed to escape after Call picked him up and hit him with a bat not long after he had come to the house and gone off with Hernandez. Lynch and Willey also tried to show that the county residents who reported seeing Call's pickup the night in question could have been wrong.
By not learning the full story, his attorneys limited what they could offer as an alternate theory first to the police and prosecutors, and then to the jury. They wound up disputing testimony of witnesses that jurors had sympathy for.
The defense strategy may have been at least partly shaped by Call's unwillingness to consider a plea bargain. Call said he told his attorneys that he didn't want any deals.
"It wasn't my idea and I wasn't willingly involved in it,'' he said.
Bill Massengale, who is Call's appellate attorney, said he understands Lynch's strategy. Because no one had been sentenced to death in Ashe County since 1906, the defense lawyers probably were confident that it wouldn't happen, and that they had a good chance to get a not-guilty verdict based on lack of physical evidence in the death of Hernandez.
There was no definitive murder weapon, no blood, no DNA. The most persuasive physical evidence was the tire tracks found in the field where Hernandez died, tracks that prosecutors said came from Call's Toyota pickup. During the trial, it came out that the measurements did not match the tires on Call's truck.
The key witness
Massengale and his partner, Marilyn Ozer, both said they believe that the case turned because investigators made a decision not to pursue any serious investigation of Varden. They said that such an investigation could have resulted, for example, in Varden's pickup being seized and its tires checked.
They said they believe that Varden's past and the years since show that he should have been an suspect worthy of investigation, with motive to lie based on his affair with Virginia Call and a violent streak shown in the breakup of that affair. Call, they said, had no indications of violence in his past nor has shown any during his years in prison.
From Atlanta to North Carolina
Varden had arrived in Ashe County from Atlanta in June 1995, just two months before Hernandez was killed.
Reached in Atlanta, Varden's former fianceé, Linda Canavan Tew, said that Varden left her because his mother lived in North Carolina and he needed to get his life straightened out to try to support his newborn child with her. She said he didn't have a good work record and "we just didn't get along very well. We fought a lot. He was aggressive.''
After the trial, Varden drifted west. He wound up in towns along the Washington and Oregon borders, where he continues to live today and where he has run into problems with numerous people.
In 2005 and 2006, two women called police on Varden -- one of whom also took out a restraining order -- saying that he became violent and threatening. The women both said, in telephone interviews, that they believed Varden was using methamphetamines.
Massengale and Ozer have obtained affidavits from both women, and from a cable-installation operator who was Varden's boss in 2006, and who also said that he was threatened by Varden.
Reached by telephone in Oregon, Varden had little to say about Call or the Hernandez murder, making it clear in a 30-second conversation that he didn't want to talk.
"I really don't have anything more to say than what you've read. That's pretty close to exactly what I would have to tell you … the truth is the truth. That's what he's (on death row) for.''
On the stand during Call's trial, Varden acknowledged that he was worried about being charged in the case. Call's attorney asked if he had made any deals with the prosecutors and he said no.
Steve Cabe, an SBI agent who helped investigate the case and who is now chief of detectives for the Wilkes County Sheriff's Office, says the decision on whether to charge Varden was something "in the province of the district attorney. All the evidence in the file was there. All his statements, everything was there.''
The district attorney in the Ashe County district today is Tom Horner, who assisted in the prosecution of Call. He declined a request to comment.
Garland Baker was the lead prosecutor. He is now a defense attorney. He, too, declined a request to comment.
During the trial, Lynch was not allowed by the judge to ask questions about Varden's behavior with, for example, his fianceé in Atlanta or with Virginia Call, who took out a restraining order against Varden.
On the other hand, for Lynch to have made use of Call's version of events, it would have meant acknowledging his role and involvement, probably in hopes of some kind of deal. And Call didn't want a deal.
But Call is aware today of the way he mishandled things.
"I can't say I was a very mature person at that time. I didn't make the right decisions. I realize that,'' he said. "Nothing I done was smart.… This all could have ended before it started if I'd have done the right thing to start with. You know, when he first said something, I could have went over to the police and said ‘Hey, this guy said he was gonna do this.'"
It took a jury less than an hour to find Call guilty. Then, they sentenced him to death.
Appeals by Massengale and Ozer have failed. They also tried to pursue an evidentiary hearing that would have questioned prosecutors on why Varden was never pursued as a suspect or as an accessory, given his statements to police and at trial. That effort failed, too.
Massengale and Ozer said they intend to submit a clemency request once an execution date is set for Call.
Capital cases and the truth
Ultimately, the adversarial system of justice is intended to present an accurate picture of what happened to a jury.
"I think justice is seeking the truth,'' said Tom Ross, the president of Davidson College who was a Superior Court judge for 17 years. "I think at times the truth is elusive.''
"What I think I know is that not just the system of justice in America but lots of our society is dependent on honesty and integrity and truthfulness,'' Ross said. "And when there are circumstances in which those virtues are not present, then there are problems.… If people are dishonest, there are going to be problems."
During closing arguments in Call's trial, prosecutor Horner used the tire impressions found in the field as evidence that Call's truck had been there.
"You know, the tire impressions, the tread, they match up pretty good, don't they?" he said, showing the images to the jury. He said the tires were smaller than the tracks, and tried to explain away the size discrepancy by saying the impressions had expanded in the sandy field, where it had been raining.
The problem with that argument is that the tires on Call's truck were 3 inches larger than the impressions found in the sand, not smaller. So if the impressions had been expanded by rain, there would have been even more of a size discrepancy.
After Horner's mistake, the best that Lynch could do was point out the reality in his own closing argument.
The tire marks represented the most compelling physical evidence found at the crime scene. Whose truck they actually came from remains unknown.
Remembering the fear
Call, in telling his story today, spoke frequently of the fear he felt the night of Aug. 24, 1995, and how he did whatever he was told. Coincidentally, both Horner and Baker in the prosecution's closing remarks took time to explain the many discrepancies in Varden's testimony by blaming it on fear.
Horner argued that Varden was "scared to death'' after Call came to him and told him what he'd done. Likewise, Baker said in his closing argument that Varden "was in a state of shock that night.''
Who was the scared one and who was the killer -- and perhaps whether the system gave a second culprit a free pass -- may never be known in the Call case.
Mark Rabil, an assistant capital defender best known for representing Darryl Hunt in Winston-Salem's most notorious wrongful-conviction case, said he believes that the judicial system's biggest weaknesses are directly at play when a defendant's life is on the line.
"Both sides are appealing to the emotional parts of the brain in trying to get people to make decisions despite the fact that the Supreme Court says what we're supposed to be doing in death-penalty cases is have a reasoned, moral response,'' Rabil said.
"Anything that can be done to get the jury riled up, the prosecutor does, otherwise he's not going to get a death penalty,'' Rabil said. The opposite is true for defense attorneys. "Am I necessarily going in there with a completely rational presentation of evidence? I'm trying to appeal to the compassionate nature of the jury.''
"So when you get into fighting for death or fighting for life, you're by nature getting into the realm of emotion,'' he said. "When you get into the realm of emotion, you start to be less mindful or careless about the truth.''
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The closing arguments
By prosecutor Tom Horner
Mr. Lynch, I imagine, is going to talk to you a little bit about these tire impressions. You know, the tire impressions, the tread, they match up pretty good, don't they (shows photographs to jury). They really do.
But he made a point of the fact, that when you convert this to this (referring to photographs), that the tire is actually smaller than the impression.
Well, I want you to think about something else. How many of you have gone to the beach and walking on the beach, you stepped in sand, wet sand, and you lifted your foot back up and you looked down? And you say 'My goodness. That couldn't be my foot. That's much bigger than, than my foot.' The reason is that the sand forms and shapes to your foot, but when you lift it out, the impression is much bigger because the sand has spread. It has to be bigger than the actual thing.
By defense attorney Anthony Lynch
But they came forward with this evidence, and, you remember, Mr. Horner and Mr. Cabe actually stood and held, held like this (shows photograph to jury) and by god that is persuasive, isn't it. I mean, you look at this, and you say, 'Wow! That's the same tire.' Well, it ain't.
This, first of all, by the testimony that was given you, this is a 21-centimeter tire track, 21 centimeters. By testimony that was given you, this is an 11-inch tire. You multiply 11 times 2.54 and you get 27.94. Do it. Go back there.
A 21-centimeter track. The tire is 7 centimeters larger than the track. Larger, not smaller.
They blew up two pictures and the pictures happen to look like they match. … How dare they. How dare they, in a case this important, in a case where Eric Call's life is on the line, make a mistake like this?
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