Almost Midnight (26 page)

CHAPTER ELEVEN

M
AYBE HE DIDN’T
need it, maybe it was redundant, but Jim Justus wasn’t taking any chances. He already had Darrell’s confession, he already had the murder weapon, and he already had the statement Mary had given Jack and Chip in Arizona. But there was one more thing he wanted. He wanted Mary’s trial testimony. With her testimony the case would be a mortal cinch—no way in the world could it slip away.

The case looked like a cinch anyway, but you never could tell. You’ve got what looks like a sure thing on your hands but then some sharp defense lawyer starts chipping away and, before you know it, you’ve lost the confession, you’ve lost who knows what else, and the sure thing isn’t so sure anymore. It’s suddenly up for grabs, anybody’s game. It had happened to him before; it had happened to
every prosecutor he knew. There was no guarantee it wouldn’t happen here. Especially now that Bill Wendt was involved. Wendt was a guy who knew his way around the law, knew how to take charge of a county courtroom. Wendt wouldn’t be content just sitting back, waiting for the prosecution to play its hand. He’d be going on the attack, dealing out some cards of his own. And that’s why Jim wanted Mary’s testimony. Make a deal with Peter Rea; immunity for Mary in return for her taking the stand against Darrell. Not even Bill Wendt would have an answer for that.

For now the deal could wait. Jim knew that he had plenty of leverage when the time was right. Hindering prosecution was one thing, but Peter Rea surely realized Mary could be facing additional and more serious charges if she didn’t cooperate. There was no need to spell it out. Rea wasn’t stupid. Accessory to first-degree murder: Jim had been dropping hints in this direction and he’d continue dropping them until he got what he wanted.

Jim Justus was the kind of guy who took people by surprise. A local product, born and raised in Branson, he’d first been elected prosecuting attorney of Taney County in 1977, when he was just twenty-six and fresh out of law school. Even now, twelve years later, he still had a boyish, wide-eyed look about him. Check him out, slight of build, soft-spoken and earnest, you’d figure him for a college intern in the prosecutor’s office maybe, certainly not the guy who actually called the shots. Even the beard he’d taken to wearing in recent years accentuated his youthful appearance, making him seem a young guy in a big job trying to come across as older than he really was. But this was where he’d catch you by surprise. Jim was tough—and experienced. In his twelve years on the job, he’d prosecuted close to forty murders and gone to trial in twenty. He’d also won a grueling battle with testicular cancer during his early thirties and then sealed the victory by impregnating his wife with their third child. Peel away the boyish wrapping, here was a guy that definitely bore close watching.

Peter Rea, Mary’s attorney, knew better than to take Jim Justus lightly. What Rea didn’t know was that Jim really had no intention
of bringing more serious charges against Mary. He’d been dropping hints about accessory to first-degree murder because he wanted to coax Rea into doing a deal. There wasn’t much chance, however, of Jim actually following through. He didn’t want Mary; he had no interest in digging up any more dirt on her. If anything, he regarded her as a victim in the whole affair. He was convinced that Darrell had manipulated and controlled her. “I didn’t want Mary. I didn’t care what she did,” he would recall years later. “I wanted Darrell—just Darrell.”

There was another, more personal reason why Jim wasn’t interested in pursuing more serious charges against Mary. Living in Branson, he knew Barbara and Fred Epps pretty well and as a parent his heart went out to them. Jim’s oldest daughter was close to Mary in age, and she’d recently been going through some rough, rebellious times of her own. She hadn’t gone so far as to run off with a local outlaw but maybe this was because she hadn’t yet met an outlaw as charming as Darrell.

Jim wanted Darrell, and he wanted him all the way. Not long after the arraignment he’d decided to shoot for the death penalty in the case. As the elected prosecuting attorney of Taney County, he had considerable discretion in such matters. Support for capital punishment ran strong and deep in the Ozarks, but Jim wasn’t known for playing to the crowd. Only once before in his career had he gone for the ultimate penalty. This had been in the David Tate case. Tate was the white supremacist who’d killed Trooper Jimmie Linegar during a traffic check south of Branson in 1985. Jim hadn’t gotten what he wanted on this one; Tate was sentenced to life without parole. Jim was determined this time around not to fall short.

A cynic might argue that Jim’s motivation in seeking the death penalty for Darrell wasn’t as pure as the driven snow. He was coming up for reelection the following year, and a fresh notch on his belt certainly wouldn’t hurt his chances. Jim was insistent, however, that self-interest had nothing to do with it. If ever there was a case that cried out for the death penalty, he believed, this was surely it. Indeed, Missouri’s revised Capital Murder Law, in effect since 1977,
seemed to have been written with precisely a case of this sort in mind. The law spelled out fourteen aggravating circumstances, any one of which qualified an offense as a potential death-penalty case. Jim hoped to prove at trial that Darrell’s offense included at least two of these aggravating circumstances. Darrell had committed
three
homicides, not just one, and then he had demonstrated “depravity of mind” and rendered the offense “outrageously and wantonly vile” by blowing his victims’ heads off.

Blowing their heads off
 … For most people this was the shuddering perplexity of the case. Why had Darrell gone so far? Why the overkill? To those who knew him—friends, family members, even people in law enforcement—there seemed no easy answer. This wasn’t Darrell, they’d say. Darrell at his very worst was utterly incapable of such a thing. Jim Justus believed he had the answer. It had been a drug hit, he claimed—pure and simple. Darrell had been intent on taking over Lloyd’s crank empire. Killing the main man wasn’t enough. Darrell had wanted to deliver a message, make a dramatic point.
There’s a new boss in the hills and if you don’t believe it, just check this out
.

An interesting thesis, but anyone who’d had contact with Darrell in the months leading up to the killings would not likely have been convinced. Simply getting through the day in one piece had been challenge enough for him and Mary. Setting himself up as the new drug kingpin of the Missouri Ozarks? This hadn’t been Darrell’s ambition; it wasn’t even a distant fantasy. His one and only ambition at the time was surviving.

B
ILL WENDT WASN’T
catching many breaks. In early spring he found out that Greene County circuit judge Tom McGuire had been assigned to the trial. Judge McGuire could never be accused of trying to blend in with the woodwork. Off the job he was known for big-time partying, world-class drinking, and a fondness for guns. (Several years after Darrell’s trial, in fact, he would get into trouble for allegedly going on a drunken shooting spree.) On the job he
kept a billy club and a loaded pistol under the bench—not always, apparently, completely hidden from view. He had a well-deserved reputation as a prosecutor’s judge. In close calls, having to do, say, with the admissibility of evidence, he’d generally give attorneys for the state the benefit of the doubt, letting them push their cases to the limit. Wendt knew he wouldn’t be getting many favors from Judge McGuire.

One thing Judge McGuire did early on—though it could hardly be termed a favor—was to uphold Wendt’s request for a change of venue, moving the case from Taney County to the Circuit Court of Greene County in Springfield. Wendt had been hoping for a more neutral location than Springfield, where the case had already kicked up a sandstorm of publicity, none of it favorable to Darrell. They probably would have been no worse off staying put in Forsyth.

Wendt didn’t fare any better at an evidentiary hearing held in Judge McGuire’s courtroom on September 6. The hearing had been called in response to a motion Wendt had filed with the court to suppress Darrell’s confession and admissions of guilt. Wendt’s principal argument was that Darrell hadn’t confessed voluntarily; rather he’d been tricked, manipulated, and coerced into doing so. After he had invoked his right to an attorney in Arizona, Jack and Chip had allegedly subjected him to implicit interrogation, in clear violation of the Supreme Court’s
Innis
ruling of 1980. The investigators had permitted him to steal a glance at their notes, and they’d traded on his concerns for Mary, even to the point of promising that if Darrell gave himself up Mary would “walk away with just a slap on the wrist.”

The hearing went pretty much as Wendt had anticipated. He knew coming in that trial judges were disinclined to sustain motions of this sort, and that Judge McGuire was even more disinclined than most. Darrell testified that the investigators had been on him “like vultures on a dying animal,” ripping his natural defenses to shreds, tearing the confession out of him. Jack and Chip insisted that they’d played it by the book, advising Darrell of his
rights at every turn, applying no untoward pressure. At one point Mary took the stand, but nothing came of it beyond a momentary brightening of Darrell’s day. She exercised her Fifth Amendment privilege and refused to testify. In the end the affair hinged on credibility, and in the credibility department Darrell was clearly no match for Jack and Chip. In his order overruling the motion to suppress, McGuire stated that the court “finds beyond reasonable doubt that [the] defendant was lawfully arrested; that he was properly advised of his rights; that his statements were given freely and voluntarily; and that they were not the result of force, threats or promises.”

There was more bad news to come. Sometime prior to the hearing Wendt had arranged for Darrell to be examined by a psychiatrist, Dr. William Clary, and a psychologist, Dr. David Reuterfors. Both men were regarded in local legal circles as “defense-friendly” medical professionals, willing to go the distance in finding evidence of mental illness. In the crunch, it was rumored, they’d be capable of finding a medical excuse for a traffic light stuck on red. This was what Wendt was counting on—a diagnosis of mental illness for Darrell. That way he could mount a psychiatric or diminished-capacity defense and hopefully persuade the court that his client shouldn’t be held criminally responsible for his actions. Maybe sneak him out the back door. But it wasn’t about to happen. The medical reports, which Wendt received shortly after the hearing, weren’t even close to what he’d been hoping for. While conceding that Darrell tended to be paranoid, Clary and Reuterfors concluded that it wasn’t likely he was suffering from any mental disease or defect at the time of the killings. As best as they could determine, he had been capable of conforming his conduct to the requirements of the law. Wendt didn’t see much point in shopping around for another opinion. If Clary and Reuterfors couldn’t deliver the goods, it was probably best to pursue another avenue of defense entirely.

Whatever avenue of defense this might be, Wendt wasn’t likely to get much help from Mary. In early January 1990, he tried taking Mary’s deposition at his law offices in Springfield. It was like squeezing water from a stone.

“What is your name, please?” Wendt asked once they got started.

“I plead the Fifth.”

“Mary, your name is Mary Epps, is it not?”

“I plead the Fifth.”

“Okay. Don’t be embarrassed. Where do you live?”

“I plead the Fifth.”

Seven more questions, each one receiving the same response. All Wendt could do was smile and call it an afternoon. He had a pretty good idea which way this was headed.

In early March, Wendt swung another pretrial hearing, this time so he could challenge the legality of Darrell’s arrest. The two felony warrants Darrell had been picked up on in Arizona? Child support and carrying a concealed weapon? No question about it, Wendt argued, these were “pretextual” warrants, bad-faith numbers, issued for the ulterior motive of getting Darrell in custody so investigators could grill him about the Lawrence killings. Were Jack and Chip and Jim really interested in nailing Darrell for nonsupport? Or for a two-bit weapons violation? Forget about it—not a chance in the world. Darrell had been living on the road with Mary for months prior to the killings. Where was the posse then? How come there was no paper out on him all this time? The warrants came when they did because investigators suspected him in the Lawrence homicides and were looking for an excuse,
any
excuse, to lasso him for questioning. The arrest was invalid under the Fourth Amendment, Wendt argued, and all evidence procured as a result of it must therefore be ruled inadmissible.

A good sales pitch, but Judge McGuire wasn’t buying. He ruled here just as he’d ruled previously: the arrest was valid and so was the evidence stemming from it. If Wendt were going to get his client off the hook, it would have to be through some other means.

D
ARRELL WASN’T MUCH
troubled by these setbacks. He had a difficult time even seeing them as such. Ultimate victory, after all, was already assured. The only thing that troubled him about all this pretrial fuss and bother was Mary. Not her stonewalling of Wendt;
he didn’t mind that a bit. He just wished everyone would give her some breathing space, back off, loosen the vise. He wanted her out of the torture chamber.

Aside from his concerns for Mary, Darrell was actually faring pretty well in the Taney County jail. The food was a disappointment (“your basic slop”), but he didn’t mind the company. Sharing the maximum-security unit with him these past several months were a couple of unruly cons named Tom and Henry, and Darrell got a kick out of some of their shenanigans. Tom and Henry would sometimes get plastered on jail-brewed buck—made from tomatoes, yeast, and sugar—and then squabble and fight like an old married couple before one of them passed out or maybe got knocked out by the other with a sucker punch. The next morning, regardless of how it had turned out, they’d always be the best of buddies again.