Kristi, it seemed, was the only bright spot for the family. Now a cheerful toddler, Kristi would make her way throughout the house humming and gurgling and babbling words that couldn’t quite be understood. Because she never knew her older brother, she was too young and too innocent of the facts to grieve like the others.
Still she could tell when her mother was upset, and sometimes she would tilt her head and stare at the tears in Faye’s eyes as if to offer some childlike comfort. Faye was grateful for Kristi and knew that in part the reason she was surviving the nightmare was because of the little girl.
The Barbers found themselves dealing with Daryl’s death somewhat differently. Because their other children were grown and had moved out of the house, they tried to resume life as it had been before Daryl was killed. There were times when Marian simply could not and did not want to talk about Daryl. It was the only way she could go on. But there were other times, especially at night, when she would pull out pictures of Daryl and cry for hours at a time for her youngest son.
Throughout 1979, regardless of how they dealt with their grief, both couples had determined one thing for certain. No matter how many delays the defense was given, they would attend the trial and see Spider Smith convicted for his part in killing their sons. If necessary, they would testify as to the character of their sons, although the prosecutor had told them that they would probably not have to do so.
But they would be in the courtroom when Spider Smith received his punishment. The way they saw it there were two reasons to punish Spider: first, for killing their sons; and second, for insisting on a trial and thereby forcing them to relive their sons’ final, terror-filled moments. They knew Gene White was going for the death penalty and they wished him luck.
FINALLY, THE NUMBER OF DELAYS THE DEFENSE COULD file ran out and on Monday, January 14, the trial of the State of Florida versus Earl Lee Smith got underway in Judge James Foxman’s courtroom. A jury of nine women and three men had been selected and promised by both attorneys that the trial would not take up much of their time.
The Barbers and Bouchers had arrived over the weekend and were some of the first people to show up in the courtroom that morning. In addition, the press filled the courtroom. Since the boys’ skeletons had been found and since it had been learned that the governors of two states had been pushing for this case to be solved, the trial had received national attention. If the prosecutor did not intend to tell the story of a mild-mannered private investigator who stumbled onto the deadly path of Snake and Spider, the newspapers had already done so. Bob Brown had become something of a local hero for his efforts, and the reporters intended to cover the trial daily to see the story through.
Much to the delight of the press, Bob Brown was also in the courtroom. He had taken personal time away from his other investigations to see the fruition of his labor come to pass at the capable hands of prosecutor Gene White.
When Spider walked into the courtroom he looked toward the boys’ parents, seated in the front row of spectators, and glared at them.
“My God,” Faye whispered to her husband. “Look at his eyes.” But Roy had already noticed them. He had seen the way those brown eyes were flat and lifeless as if the person behind them did not possess even one bit of remorse or guilt or any other kind of emotion.
The jury was seated and by 10:15 that morning Gene White rose like a man intent on stopping a serious injustice and began to deliver his opening statement. He told the jury that the state would first prove that the Michigan teenagers had been murdered. Then they would prove how the investigation—and here he did not even mention Bob Brown’s name—had been conducted and how police in Tampa had impounded Daryl Barber’s car after finding it at Snake Cox’s trailer. Finally he told them how this investigation led to Cox himself taking detectives to the site where the boys’ bones were recovered and how Snake’s confession had in turn led to that of Spider Smith.
“You will see the photographs,” White said, pacing in front of the jury and sounding as if he was talking about something that had happened to his own two sons. “You will see the bones and the condition of the bones.”
He stopped a moment and shook his head sadly. “This will be the evidence the state will present to you. A double murder was committed for money and to cover up the act of robbery.
“Spider and Snake,” White waved toward the spot where Spider was sitting, “these cold-blooded men, were responsible for the deaths of those boys. I will appreciate your time and your perfect attention while we go about proving this to you.”
It was time for Bevis to take the floor and he did so with as much enthusiasm as he could muster. As Gene had been talking he had seemed to be nodding along in agreement. There was no denying any of the assertions the prosecutor had made, and for the hundredth time Bevis must have wondered why his client hadn’t simply agreed to a plea bargain. Even if it meant serving a life term in prison.
Bevis introduced himself to the jury and told them that everything was not always as it seemed. Yes, there had been a double homicide and, yes, someone was responsible. But the unanswered question, the question the jury was mandated to answer, was who that responsible party was. More importantly, Bevis reminded them, it was up to them to determine who that responsible party was not.
He spent nearly thirty minutes alluding to the fact that sometimes, on occasion, a person might do something that is completely out of character, completely against their nature because of coercion by another person. This was the case, he said, in the incident that August night involving his client, Earl Smith.
Gene White was not surprised that during his opening statement Bevis never referred to his client as Spider, the name that even the defendant preferred to use. The rationale was obvious. Perhaps if the jury could get a picture of Earl Lee Smith, the poor little young man who had been forced to commit a crime against his will, then they would have a shot at an acquittal.
Because it said a great deal about the twenty-one-year-old defendant’s character, calling him by his nickname could do nothing but damage his case.
Of course, it didn’t really matter what Bevis called his client since Gene White had long since decided that Spider was the only name he would use to represent the defendant.
The trial lasted just four days.
During that time Prosecutor White presented only seven of the fifty witnesses he had subpoenaed. The reason for this was simple. The case against Spider was so perfectly sound there was no reason to waste further time boring the jury with needless testimony.
Among the seven witnesses were forensic specialists who had examined the skeletal remains of the boys in December 1978. Their testimony proved that Daryl had been severely beaten before his death and that he had been stabbed on the left side. Then Deemer had taken the stand and given vivid details of Spider’s confession which matched up with the physical evidence in a way that left no holes whatsoever. When he was finished testifying, the tape of Spider himself talking about the murders was played for the silent courtroom.
So sound was the state’s case that when it came time for the opposition to present its case, Bevis stood up and announced that the defense would not be calling any witnesses.
This came as a surprise to the Barbers and Bouchers, seated in the courtroom and taking in every detail of the trial. But Gene White knew what Bevis was doing. Since there truly were no witnesses who could undo the damage done to the defendant, the only way to win was to convince the jury to convict Spider of a lesser charge than first-degree murder. He would do this during his closing argument by replaying the same lines he had fed the jury during his opening remarks. Still, Gene White was not the least bit concerned.
White went into his closing arguments like a man driven to win a race in which he was the only participant. He rehashed the evidence that had been presented over the past four days and then stopped for a moment, turning his attention fully on the boys’ parents.
The jurors, all
of whom had been hanging on his every word and intonation, followed his gaze and saw that the boys’ mothers were crying. Since the jury was made up primarily of women, most of whom were mothers themselves, there was no estimating the effect the boys’ grieving mothers left on the jurors.
White next turned his attention toward Spider and began to recount the story of what happened to the boys as it was told by Spider during his confession. The prosecutor knew the story by heart and he told it now with feeling.
When he was finished, he looked at the jury.
“Is there any chance that Spider fabricated this?” he asked. “No! I’d rather a hundred times have a confession like this given to officers than have to rely on an identifying eyewitness who may have only seen a suspect for a couple of seconds. This is a hundred times more reliable than any eyewitness.”
Finally the prosecutor talked about whether a person could be guilty of first-degree murder even if he hadn’t been the ringleader.
“If you participate in a robbery and the victim dies,” White’s voice rang through the courtroom passionately, “if you do that and the victim dies and if you’re present at the scene participating, you are guilty of first-degree murder. Whether you intended to kill them or not.”
He concluded his argument as zealously as he had begun it.
“Your duty is clear,” he said, his voice lower now and his gaze intent on the eyes of each of the jurors. “Not pleasant by any means but clear. First-degree murder. Any other verdict, any other verdict at all, would be a mockery.”
At 11:02 A.M. Bevis took the floor and straightened his glasses. His argument was lengthy since there were no defense witnesses and what Bevis was about to say would have to provide his defendant’s entire case. At first Bevis focused on the incredible responsibility of a jury to return a fair verdict.
“Right now you have more power and you possess more power than you will ever possess for the rest of your life. You virtually hold the life of a fellow person, a human being, in your hands. . . . That is why it’s so critical. That is why there are two sides. And now you will hear the defendant’s side of the story.”
Then Bevis launched into an attack on the facts in the case, drilling in the idea that Snake, or John Cox as Bevis called him, had been the guilty party. In this way he recreated the entire set of events, focusing entirely on Snake’s role in the murders and completely ignoring Spider’s.
“The state proved that John Cox made the decision to rob the boys after he saw the money that was exposed at the service station. The state proved that John Cox decided how this was to be done,” he said, his voice rising.
“The state proved that John Cox gathered the tape, gathered the hose.
“The state proved that John Cox inserted the hose into the exhaust pipe, inserted it into the trunk, and taped the trunk.
“The state proved that John Cox did these murders!” Bevis turned and pointed dramatically at Smith. “Ladies and gentlemen, no other evidence links that man to this crime except for his own statements.”
With that, Bevis delved into an area that Gene White had not expected him to discuss. He said that not only had Smith gotten caught up in the atrocious acts of John Cox, but that Smith had never intended to make the confession to the sheriff’s deputy.
“The defendant was psychologically coerced into making a confession to investigators and for that reason it should be wholly disregarded.
“Don’t penalize Earl Smith for not testifying in this case, for not giving evidence in this case,” Bevis said before sitting down. “He has nothing that he needs to prove to you. The proof must come from the state. And the proof that the state has given has proved only that John Cox is guilty of first-degree murder. They did not prove a single thing against Earl Smith. Consider that when you deliberate on their verdict.”
The jury received its instructions at two o’clock that afternoon, and whatever its members did consider it did not take much time. They reached a unanimous decision in less than an hour.
When the boys’ parents, who had been waiting out in the hallway, heard that the verdict was in after so little time, they were thrilled. Gene White had told them that the more quickly the jury returned the better the chances that they had earned a conviction.
When everyone had filed back into the hushed courtroom, Judge Foxman asked the jury foreman to read the verdict.
The woman held the slip of paper steadily in her hands and began to read.
“This court finds the defendant, Earl Lee Smith, guilty of two counts of first-degree murder. . . .”
Instantly, both sets of parents embraced and began crying. The judge tapped his gavel on the bench several times and called for order so that the other counts could be read. Spider was also found guilty of two counts of robbery and two counts of kidnapping. Sentencing was set for the following day, Friday, January 18.
Gene White stood up to leave and as he did he caught Spider’s glance. For the first time since the trial had begun, Spider looked something other than sure of himself. Now, in light of his conviction, Spider actually looked afraid.
White turned away and headed toward the Barbers and the Bouchers and congratulated them.
“Of course, it’s not over yet,” he added. “There’s still the sentencing.”
“What do you think, Mr. White?” Roy asked. He looked thin and pale and Gene could see the damage the ordeal had done to him. He felt for the man and for the others who missed their sons so badly. But justice had been served and he would do his best to see that it was done again in the morning.
“About the death penalty?” White asked with a grin. “Honestly, I think it looks pretty good.”
CHAPTER 41
On the morning of January 18 the courtroom was more full than it had been at any time during the trial. The news had hit the papers and television stations that Earl “Spider” Smith had been found guilty of first-degree murder. Now everyone wanted to know if the prosecutor would successfully argue in favor of the death penalty.
The arguments began only moments after Judge Foxman took the bench. Prosecutor Gene White spoke first and immediately began discussing the obligation of the jury to send Smith to the electric chair “because that is how our law in this state works.”
He quoted Jesus as saying, “Render unto Caesar what is Caesar’s,” and he spoke of civic responsibility.
“This is a duty,” he said, his face contorted in emotion. “Like people who go off to war. A sacred duty and one which we must fulfill. You as a jury do not sit there as individuals. You sit as a representative of the community. You cannot sit there and think, well, what do I personally feel? You are a representative faced with a duty.”
He took a breath and looked sympathetically toward the boys’ parents. “If you will recall, during the whole course of this trial we had to carefully avoid any mention of the parents and their feelings, the boys and their feelings, so that we could give you the cold, hard facts.
“And this is the only time you will ever hear a consideration of the victim.”
He spoke in a gentle voice now, one that would be appropriate in, say, a funeral parlor during viewing hours. He was compassionate and caring and completely aware of the parents’ grief. And where the jurors were concerned his emotion was contagious.
“These people,” he said softly, “are not a technicality. They are not a name by which we prove simply that they did live and they did die at the hands of another. Take Jim Boucher, for instance. He lived. He had a family. He had feelings.
“And Daryl Barber, he was a human being. He had feelings and a family. Consider these things. The facts now face the defendant squarely and on an equal basis with the emotions of the case. And when we consider what the boys suffered, it is clear that Spider Smith should receive the ultimate penalty.”
White talked about Snake and how, yes, he should deserve to die, too.
“But he’s remorseful at least. He has shown some sig
ns of rehabilitation by leading authorities to the site where the boys’ bodies were left to rot.”
He stared at Spider angrily. “Spider, on the other hand, has shown us no remorse whatsoever. When he gets out in twenty-five years or maybe in fifty years, couldn’t it happen again? I ask you to consider this. Couldn’t it happen again, to someone like your family or mine?”
White shook his head and looked gravely serious.
“I wouldn’t want to take the chance,” he said. “Is it worth putting another family through what these poor people have had to go through this past year? I think not. You weigh the facts and I suggest that there is not one reason, not one single reason why the defendant should not receive the penalty of death.”
Bevis looked crushed by the prosecutor’s argument. He stood up slowly and faced the jury. There was only one way to argue on behalf of Spider Smith now. He would have to beg for mercy.
“This is not a pleasant task for me,” Bevis began honestly. “And I am sure it is not pleasant for you, either. But you must know something now. Your hand is on the switch. And it’s a big, electrical switch.”
The jury looked disinterested in whatever Bevis was about to say, their expressions hard and firm. Unmoving, White would say later, as if their minds had already been made up.
Bevis could read this as surely as if they had said as much themselves, and he decided not to waste any time. He went right for the heart of his message, insinuating that everlasting guilt would fall on any juror who would vote for the death penalty.
“When you vote to send this man to his death, you pull that switch just as surely as that executioner will pull it four or five or six years from now when that man walks down that last corridor to the electric chair.”