“If you had any conscience at all, think how difficult that would be. And think why it was that even after his arrest—that it was December of 1989 before he ever told his mother. He denied it right up until then.
“He got what he wanted. Half of what he wanted. That was the death of Lieth Von Stein. But once he got what he thought he wanted, he found that he didn’t want it at all. When he went up and hugged his mother and kissed her and saw the tears running out of her body, as he says, ‘On another level, I was disgusted with what I had done.’
“So, there’s denial, and there’s the drugs. He was smoking marijuana three times a day; every week he takes cocaine; he’s taking acid, some seventeen hits of acid. Chris Pritchard, because of drugs or whatever other problems that he has, just got the times and the places disjointed. It’s a wonder he remembers as much about it as he does.”
And the lack of physical evidence? Norton tried to put a reverse spin on that, too. “There was no evidence to connect Neal Henderson to it, either,” he said. “And yet Neal Henderson, on the ninth day of June, without any promise, threat, or reward, gave a statement which put his own head in a noose. That sure is a funny way to put it off on somebody else, when you are not even a suspect: to confess your own part in a murder.”
Besides, he added, there was one piece of physical evidence: the green canvas knapsack that belonged to no one in the Von Stein family. No, it could not be proven beyond a shadow of a doubt that Upchurch had brought that knapsack to the house, but there had been testimony that he’d owned one just like it, testimony that he’d used it to carry around his Dungeons & Dragons books, and further testimony that the day John Taylor showed up in Raleigh with it was the day Upchurch said he was getting out of town.
But then, having derided opposing counsel for suggesting that the case contained “supernatural” elements, Mitchell Norton concluded his argument by getting positively mystical.
“What was it,” he asked, “that caused Noel Lee to be leaving the hog farm that day? What was it that caused the map to be saved from the fire? Was it luck? Was it fate? Was it some other power that saved that map out of all the things in the fire? The one thing that kept the investigation going, which put them on the trail of Pritchard and Henderson and Upchurch, was the map.
“Now, like I said, I don’t know what saved this map. I don’t know if it was luck or fate or whatever you want to call it. This map survived fire. And out of all the burns there was on it, the Von Stein house was saved, and the other major portions. Now something did that. Something or somebody wanted this case solved.
“That map kept the case going. I don’t know what to say. I don’t know what saved it from the fire. Was it luck? Was it fate? Or, was it some other power?
“They want to talk to you about supernatural things? Look at the map closely. Look at the burn marks on the map. Are you looking at the face of death? Or, when you reverse it, are you looking at something more sinister?”
Here Mitchell Norton turned the map upside down and held it to his face like a mask. He looked at the jury through two holes that had been burned through the map.
And as he held the map in that position, pressed close to his face, two diagonal edges jutted above his head, as if they were the horns of Satan.
* * *
From studying the jurors’ faces, Bonnie could not tell what they thought. But she did believe that were she a juror, she would have had no choice but to find James Upchurch not guilty.
To Bonnie, it all came down to proof. And proof, to her, meant physical evidence. Not the uncorroborated statements of two coconspirators who had made deals in order to save their lives—even if one of them was her son.
In the absence of a single piece of physical evidence that linked James Upchurch to her house, Bonnie felt she would have had no choice but to acquit the man accused of murdering her husband and of trying to kill her.
* * *
The jurors began deliberations at nine fifty-five A.M. on Tuesday, January 23. After two and a half hours, they went to lunch. At one-fifty P.M., they resumed deliberations. Shortly after five P.M., Judge Watts sent them home for the night, with no verdict reached.
As Bonnie was leaving the courtroom, she was approached by Wayland Sermons. He had an unusual request. It was, of course, uncertain what the jury’s finding would be. But if—if—the verdict turned out to be guilty, then both prosecution and defense would be permitted to offer testimony in a further proceeding relating to punishment. The jury would then engage in a new deliberation about whether or not James Upchurch should be put to death.
The natural thing, the obvious thing, the thing that happened in almost every death-penalty case heard in any court anywhere across the land, was for grieving relatives of victims to want to take the stand and plead, implore, or demand that the jury sentence the convicted murderer to death.
Sermons asked Bonnie if she would do the opposite. Would she, if it came to that, take the stand and ask the jury to spare the life of the man convicted of killing her husband, convicted of trying to kill her?
Without a moment’s hesitation, she said yes.
Bonnie believed the death penalty to be wrong. It was wrong in all cases. And if it was wrong in all cases, then no exception could be made here.
Still, she could have replied that while she personally believed the death penalty to be wrong, she could not find it within herself to plead for the life of the man who had so brutally taken the life of her husband, and who had tried to take her own.
But it never occurred to her to say no. If Upchurch was convicted, he should be punished. That would be fair. But no one, under any circumstances, should be put to death by the state.
Bonnie knew a lot of people—Wade Smith among them—who held this belief as strongly as she did.
But who had ever been put in her position? Asked to intercede with a jury on behalf of the man convicted of entering her home in the middle of the night, walking up the stairs and into her bedroom, and beating and stabbing to death the man she loved?
Under such circumstances, many people, regardless of their personal feelings about the death penalty, undoubtedly would have declined such a request.
In this way, however, as in so many others, Bonnie was unlike many people. If she believed in something, if she thought it was the fair, the just, the proper thing, she’d fight for it as hard as she could—whether it was the innocence of her son or the life of a stranger found guilty of having tried to murder her.
* * *
It was just after four P.M. on Wednesday, after ten and a half hours of deliberation, that the jury returned its verdict.
James Upchurch was guilty on all counts, including murder in the first degree.
39
Two days later, after a high school teacher had said he was smart, after a court-appointed psychologist had said he did not seem psychotic or prone to violence, and after his weeping mother had said he was a loving and church-going young man, Moog’s lawyers approached the bench and said the next witness they wanted to call, in an attempt to persuade the jury not to sentence their client to death, was Bonnie Von Stein.
Judge Watts temporarily excused the jurors from the courtroom. Once again, Bonnie took the stand. It was during this brief appearance that she was most openly emotional.
Tears filled her eyes and her voice was unsteady as she said she did not want Upchurch put to death because “I just simply don’t believe that taking another life could make amends for the loss of Lieth.”
Mitchell Norton, her adversary once again, quickly established that Bonnie’s opposition to the death penalty was total and absolute and was a feeling she’d had for many years.
After hearing legal argument about the admissibility of Bonnie’s testimony, Judge Watts made his ruling.
“First of all,” he said, “I respect Mrs. Von Stein’s opinion and her b
eliefs. It took considerable courage for her, in this case, to go on the witness stand and say those things.” Then he turned to speak directly to Bonnie.
“I commend you for speaking,” he said. “For backing up your beliefs with the force of your words. And I certainly appreciate and sympathize with the difficult circumstances in which you have found yourself throughout this entire thing.”
Then he turned back to the lawyers and said, “But it strikes me, gentlemen, that to permit this evidence to come in would invite this jury to render its decision upon the basis of passion, upon the basis of emotionalism, upon the basis of bias or prejudice.”
Therefore, he said, he would not allow Bonnie to testify. Ample case law supported Judge Watts’s ruling: ironically, it arose from instances in which a victim’s family wanted to speak in support of, not in opposition to, the sentence of death.
* * *
On the morning of Monday, January 29, unaware of Bonnie’s feelings, the jury heard arguments for and against sentencing Upchurch to death in the gas chamber.
Mitchell Norton delivered a ninety-minute talk that was interrupted thirty-four times by objections from Frank Johnston. Nine of the objections were sustained.
Norton stressed that the murder was premeditated, committed in the hope of monetary gain, that Upchurch “was not somebody who came from a slum neighborhood, somebody who was mentally defective, somebody who never had a chance in life.” Thus, he said, the murder was not the act of a “deprived” person. “Depraved, maybe, but not deprived.”
He mocked Upchurch’s well-groomed appearance at the trial, urging the jurors not to be misled by it. “Trying to put his best foot forward. He’s got his hair cut. Looks like a little choirboy.” But this man, Norton said, “sliced through the rib cage like you would cut up a chicken.”
And, he said, as he had in his earlier summation, that no one should look upon the murder as being “a case of Dungeons and Dragons out of control.” He said, “Dungeons and Dragons didn’t cause this. The game helped develop the mind-set of killing dragons and other people in this imaginary fairy-tale land, got them accustomed to thinking of killing, brought them together, but that’s the only connection Dungeons and Dragons has with this case, no matter how people want to look at it.”
Toward the end, Norton said, “Sometimes lawyers like to tell the story about the old wise man, the oracle up on the mountain, the one who knew the answer to every question. These two men decided they would trick the oracle. They wanted to prove him wrong, so they captured a small bird, put the bird in their hand, and went up to the old man and said, ‘Master, I have within my hand a bird. Can you tell me, is the bird dead or alive?’
“You see, they had planned that if the old man said the bird was dead, they would open their hands and the bird would fly away. But if the wise man said the bird was alive, they would then crush the bird to prove him wrong.
“And a lot of times, lawyers like to stand here and say to you that the life of the defendant is in your hands, like the bird. James Upchurch, however, is not like the bird, because the bird in that case was truly innocent. The bird in that case was like Lieth Von Stein, asleep in his own house.
“And James Upchurch is like the two men that went to the oracle. He had premeditated. He had deliberated. And he was the one who had the option to determine whether the bird lived or died. And instead of crushing the bird, he took a baseball bat and crushed Lieth Von Stein’s head.
“And he took a knife, like you would cut up a chicken.”
“Objection.”
“Overruled. Well, sustained.”
“And the only way you can be assured that he won’t do it again is to impose the sentence of death.”
Then, Norton offered some of his own more general philosophy of life. “Part of what’s wrong with society today,” he said, “is nobody wants to take responsibility. Over the last twenty years or so, our society has become one of excuses, quick fixes on drugs and alcohol, and instant gratification in a me-centered world. Society is pervaded by a lack of responsibility, people who seek to avoid responsibility. But I say to you that you ought to hold him responsible for what he did.”
And what had he done? Once more, Norton reminded the jurors of just how awful a crime it was. “Covered in dark clothing, head to foot, he entered the Von Stein residence while Lieth was asleep in his bed. Asleep in his bed, away from the world and tribulations. Safe in his own home, just like you or I, when you leave this courtroom and go home to wherever you live, whether it’s an apartment, a mobile home, or a tent—the most important place on the face of this earth, where you ought to be able to feel safe and secure. And to be awakened in the nighttime by the swish of a bat and the slap of it, crushing the skull. And the knife, as it came down through the rib cage.”
He granted that “yes, yes, Christopher Pritchard is more morally responsible, guiltier, perhaps, than the others, because he planned the execution not only of his stepfather, but his own mother.” However, Norton added, “when Chris Pritchard was in Raleigh, James Upchurch—that man right there—had the bat in his hand, knife in his bag.”
And because he was speaking to a jury in Pasquotank County, in fundamentalist-Christian eastern North Carolina, he closed with a quote from the Bible:
“If you look at the Old Testament, and even some parts of the New, you will see that not only is the penalty of death enacted by the state, but in biblical terms, and in our spiritual existence, it’s commanded!”
* * *
In response, Wayland Sermons spoke first, and spoke softly. “You have decided the case. I am not here to quarrel with you over that. But is it fair for James Upchurch to die?
“Chris Pritchard said he wanted to buy a house in north Raleigh so he could lay up and play Dungeons and Dragons all he wanted to. They were playing Dungeons and Dragons every day. Doesn’t that tell you something? Doesn’t it tell you about the blur of reality and fantasy? And I think it should tell you that money wasn’t exactly what it was done for—that this game of Dungeons and Dragons led them into the swords, and led them into the clubs, and led them into thinking it was all a fantasy. I would contend that it goes a long way toward explaining how such a horrendous act could be done.
“Neal Henderson said, ‘It was just like in the game.’ Just like in the game. I contend to you that you can reasonably infer that this powerful fantasy role-playing game goes a long way towards explaining how these three intelligent young men would find themselves in such a sinister affair.”
Then he asked the jurors to consider James Upchurch’s youth as a mitigating factor. “Mr. Norton would have you believe that at age nineteen you are equipped for everything, the world throws at you. I think all of us were nineteen at one time. And probably, while we were not doing drugs and playing Dungeons and Dragons and living in a fantasy world, we certainly had misgivings. We certainly had immaturity.
“You’re just out of high school. Where you’ve been living on a farm. Where you’ve just gotten through walking the halls and signing the yearbooks, and your lives are all of a sudden changed. You are no longer in the high school cafeteria. You are thrust out into a community the size of Raleigh. North Carolina State University. Twenty-some thousand students. And all of a sudden, rather than being a big fish in a little pond, you’re a tiny fish in an ocean. And at nineteen, you are not developed mentally. You are not mature. You are impressionable.”
Then Sermons said if anyone did deserve the death penalty in this case, it was Chris. “Is it just and appropriate that Chris Pritchard only face life plus twenty, and now Mr. Norton is asking you to return the penalty of death against Mr. Upchurch. Is that fair?
“Chris Pritchard is the most culpable here. He is the Ayatollah. Mr. Upchurch is only the guard over the hostages. Chris Pritchard is the Manuel Noriega. Mr. Upchurch is just the soldier with a rifle in his hand. I contend to you that were it no
t for Chris Pritchard, we would not be here today. James Upchurch would never have done what you have convicted him of.
“So, is it fair that Chris Pritchard entered into this agreement only five days before trial, when he was the one who started this whole mess, and is not facing the death penalty? Is that fair?”
* * *
Frank Johnston spoke last and went right to what Bonnie believed to be the heart of the question. How could this have happened? How could this be?
“You look at these young men,” Johnston said, “and you say, how, how could this happen? I don’t know. Mr. Norton has presented a picture to you that it’s a cold, calculated murder. Certainly, it’s a bad situation. There’s no question about that. We have never contended it was not. But how do you explain it? There has got to be an answer. There has got to be an explanation. But I don’t know what it is.
“If it’s a case of greed, where is all the discussion and the bickering and the fighting afterwards about ‘Where is my money? I want at least a portion of it, because I did the act. I want part of the money.’ But there’s never any mention of money again.
“If you can go into that jury room and say, ‘I am convinced beyond a reasonable doubt that this act was committed for pecuniary gain and for no other reason,’ then, yes, vote for the death penalty. But I don’t believe you can do that in clear conscience.
“What does the culmination of using drugs, using alcohol, playing Dungeons and Dragons, have upon a young person’s mental stability? I don’t know. But is there any other answer?
“You know, it’s strange that Mr. Norton says to you that this is not a case of Dungeons and Dragons going wild. Because he also says it’s a case where Dungeons and Dragons teaches people how to kill and use swords and talk about ancient times of swords and sorcerers. So, obviously, even Mr. Norton thinks that Dungeons and Dragons had some effect upon these young men. And I think it did.