A death-row story - Ashe County man's case raises questions

Now, he talks.

Now, when his appeals have run out, death-row prisoner Eric Call finally wants to tell what he says is the real story of the night of Aug. 24, 1995 -- the night that Macedonio Hernandez, a 24-year-old migrant farm worker, was bludgeoned to death in a field, his body hastily covered with cornstalks.

Back then, Call kept his mouth shut to the police, prosecutors and even, he says on their advice, to his own attorneys. But now he is finally talking, saying that he screwed up the life he had made for himself cobbling together work on an Ashe County tree farm, odd jobs, and taking care of his boss's horses at the house that he and his wife, Virginia, rented.

The question is how much of where he stands is a result of his own failures, how much the failures of his defense team's strategy, and how much a failure of the system?

From the start, the authorities suspected Call in the killing of Hernandez.

Gabriel Gonzalez, Hernandez's 18-year-old nephew, told police how Call had picked up his uncle and then later come back for him, drove him to a field, and took a whack at him with a baseball bat. Gonzalez escaped and hid by the river for hours. Then there was Call's wife and their friend Alan Varden. They told investigators how Call had come home freaked out that night and talked about having messed up something, and how he started packing his bags. They told authorities that Call talked about heading toward Monroe, where he grew up. Less than two days later, that's where he was found, in a motel under an assumed name.

Today, the story Call tells puts him in the middle of the crime, and raises the kind of questions that for years have given fodder to opponents of the death penalty.

Among the questions:

□ Why didn't Call tell his full story to either authorities or his attorneys so it might have been used during the investigation?

□ How could fresh tire tracks found in the cornfield be used as evidence that Call's Toyota was there when his pickup's tires were significantly larger than the imprints that were found?

□ Although Call was a logical suspect, should authorities have done more investigating after a couple of key warning signs about problems with Virginia Call and Varden as witnesses?

The fact that such questions remain unanswered, people in the legal profession say, is the nature of the adversarial justice system, in which the accused are judged by a jury of their peers. The full truth doesn't always come out in a trial, even when the accused's life is on the line. The hope is that enough of the truth emerges for a jury, beyond reasonable doubt, to reach the correct verdict.

In this case, there is one other question that was never definitively answered despite the jury's decision: Did Eric Call kill Macedonio Hernandez?

Investigating the crime

To Steve Cabe, an SBI agent who investigated the Hernandez killing and who's now chief of detectives for the Wilkes County Sheriff's Office, the Call case stacked up pretty simple.

Hernandez left his house about 9:30 p.m. to move some furniture with a man in a pickup who was identified by Gonzalez as Call. At 11 p.m., the same man came back and asked if Gonzalez wanted to make some money by helping move some furniture, too. They sat in the truck in a field, and then, Gonzalez said, Call eventually asked him to get out, saying that there was something wrong with the truck. That's when Call hit him with the baseball bat, striking a glancing blow to his shoulder and head.

Gonzalez escaped and then told authorities what had happened. Sheriff's deputies went to the field and found Hernandez's body. They developed Call as a suspect after learning that he worked with Hernandez.

At Call's home, the deputies found Call's wife and Varden.

"They both pretty much told us that Call came in late the night before in a very nervous, panicky state, grabbed a bag and packed some clothes and was kind of telling them he had really messed up or something of that nature,'' said Lt. Steve Houck of the Ashe County Sheriff's Office, who investigated the case. "Anyway, we developed enough information from them to know that he had taken off and was apparently trying to flee the area. And he had told Varden so much about what had happened.''

It took a day and a half, but investigators tracked Call to the motel in Monroe, where he was arrested without incident.

The investigators, meanwhile, began to gather evidence that would support the stories told by Gonzalez and Varden. They searched the crime scene, where they found a shovel handle, taped on one end that they thought might be the murder weapon. They found tire tracks that they decided belonged to Call's pickup. They did not find any blood, hair or other evidence that might yield DNA, and the shovel handle had no fingerprints on it.

After Call's arrest, they searched his pickup. Nothing in the vehicle, which had not been cleaned, yielded any links -- blood, hair or fiber -- to Hernandez or Gonzalez.

A key witness

Cabe said that one of the key reasons investigators focused on Call was the fact that he fled, behavior typical of someone who is guilty.

Neither Houck nor Cabe said it bothered them when they learned that from the night of the crime, Virginia Call was sleeping with Varden.

"That don't implicate them being involved in the murders, though, just because they're cheating,'' Houck said.

The affair lasted about six weeks before Virginia Call took out a restraining order against Varden, saying he'd beaten her up. He wound up making a police complaint against her, too, and they both spent time in the Ashe County jail. She was never interviewed by authorities after the incident with Varden.

By December 1995, Virginia Call took off. Nothing she said to police was used at Call's trial, and neither side called her to testify.

Virginia Call, who now uses the name Virginia Cox, gave a statement to Call's appellate attorneys in 2002. In it, she says that on the night of Aug. 24, 1995, while she remained home, her husband and Varden went out, individually and together, several times before her husband came back and told her that he had done something bad. She and Varden followed him to the Wilkes County line, and Call gave her $20, she said.

She could not be found for this story.

Varden was the witness who proved invaluable to the investigators.

"We got one guy on the run. And we got one guy that's right here.... And every time we talk to him, he's been there. He's not trying to run. He's not trying to get away,'' Cabe said.

On Aug. 30, 1995, six days after the crime, investigators gave Varden a polygraph examination with three key questions: "Did you strike Macedonio?" "Were you present when Macedonio was beaten?" "Did you see anyone beat Macedonio?"

Varden answered "no'' to all three questions. The results of the test were inconclusive. No follow-up was ever done.

At the trial, it was Varden who said that Call had broached the idea of robbing Hernandez; Varden said Call told him that Hernandez was known for carrying a wad of cash.

Varden testified that Call admitted to him that he had beat Hernandez, and said that on the night in question, Call later gave him a $100 bill before he left town. Call had little money on him when he was arrested.

Varden also testified that a baseball bat found in the bed of Call's pickup and identified by Gonzalez as possibly being the weapon used to strike him, was his own. He said that Call had borrowed it, but sometime during the night of Aug. 24, he had gotten it back. He said that he wiped it clean with a sock and turned it over to investigators. Varden said he feared that the bat might come back and be traced to him.

Call's story

In two interviews totaling more than three hours at Central Prison in Raleigh, Eric Call told his version of what happened on Aug. 24, 1995.

It's the story that he said he never told to his original attorney, Anthony Lynch of Marion. Lynch, he said, would ask him questions in a roundabout way, beginning with phrases such as, "So, is it safe to assume …" Presumably, Lynch took that approach to avoid being put in the position of having to lie in court.

Call said that his attorney believed that the state didn't have enough evidence to convict him. He said that Lynch and his father, Lawrence Call of Wilkesboro, convinced him that it would best if he didn't testify, because that way Lynch could present the closing argument to the jury.

Call's story is not that different from what Cabe believes, except that there's another person in the mix -- Varden.

Call said it was Varden's idea to rob Hernandez, and Varden was broke and being thrown out of his apartment. Call said it all began shortly after he took Varden to his job at Shatley Farms to introduce him to his boss a couple of weeks before the murder, hoping to get cash-strapped Varden work there. It was after that meeting -- a meeting acknowledged by Varden during his testimony at Call's trial -- that Varden began to talk about robbing Hernandez, Call said.

He said that on the night in question, Varden threatened to kill his wife if Call didn't help him rob Hernandez. He said he believed the threat; Varden was larger than Call by several inches and 40 pounds.

So when Varden told him to go pick up Hernandez and meet him at the remote field, he said, he did. He said that Varden attacked Hernandez as soon as he stepped out of Call's pickup, and that Call didn't even have time to get out and walk around because it was over so fast. Call said he was so scared that he urinated in his pants.

When they drove back to Varden's apartment and later his own, Call said, Varden told him that he would have to kill Hernandez's cousin, Gonzalez, a possible witness. Call said that Varden wanted him to share in the crime so that neither would rat the other out. Call said he was scared for his wife and himself.

He said he was unaware that his wife might have been involved with Varden. In fact, he said he didn't become aware of his wife's affair with Varden until she, too, wound up at the Ashe County jail, after the domestic violence incident with Varden.

Call said it was on Varden's order the night in question that he went back and persuaded Gonzalez to come with him to the field, striking him a glancing blow with the bat before Gonzalez ran off. Call said he then listened to Varden one last time, agreeing to leave town to let things cool off.

As he told his story about the death of Hernandez, tears formed when Call was asked why he simply didn't drive to the sheriff's office, rather than lure Gonzalez out after he saw what had just happened with Hernandez.

"When a man comes to you and says he's going to kill your wife, what can you do?'' asked Call, now 41. "I didn't have a telephone. I couldn't fight the man, I couldn't protect my wife myself."

"I wish I'd of went to somebody when Alan started talking crazy, but most of all I wished I could save Macedonio. I was just too scared. I didn't want to die, too.''

lgura@wsjournal.com
727-7234

Coming Monday: The legal system's shortcomings in discerning truth, and why death-penalty cases are particularly challenging.