Under cover of the night, p.12

Under Cover of the Night, page 12


Under Cover of the Night

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  She wrote in summation: “This is a case of justice gone wrong. We must help Wesley; he is innocent. He did not, he would not, he could not have killed Jocelyn.” She urged everyone to contact Judge Updike. “Ask him to set aside the jury’s misguided and preconceived verdict of guilty.”

  • • •

  Although the defense was working on the possibility of entering an appeal in the case and Wesley’s mother was desperate to see one, everyone else thought it was all over. And it was—until one day in early July when Laura Rogers was browsing through the website of the Lynchburg News & Advance and saw a comment posted back on April 11 from someone self-identifying as “bedfordresident.” The anonymous writer claimed to have been a jury member on the Earnest trial and was defending the panel against critics who insisted that they had convicted an innocent man.

  The author argued that they had seen lots of evidence—including the journals written by Jocelyn—before finding Wesley guilty. “There was not a doubt in my mind that Wesley Earnest committed murder . . . I personally would have voted for [the] death penalty if it had been a choice we had, but it was not. For anyone to say that we did not give Wesley Earnest a fair trial is absurd.”

  Laura called Wes Nance and delivered the news that she knew might call the guilty verdict into question. Nance said, “It was a punch in the gut—my heart hurt for the family—it will be devastating for them to have to go through the trial again.”

  Nance called Investigator Mike Mayhew. “We’ve got a problem.”

  “What is it?” Mayhew asked.

  “I don’t know what to do about it.”

  “What’s going on?”

  “Somehow, the journals got into the jury room.”

  • • •

  Wes Nance contacted Joey Sanzone and informed him of the latest development. Wesley Earnest had already been scheduled to appear before the judge on Thursday, July 8, for his formal sentencing. Nance and Sanzone delivered the news to the judge, who immediately postponed that day’s hearing until September.

  The first item on the court’s agenda was to discover if “bedfordresident” was, in fact, an actual member of the jury. Updike ordered the Lynchburg News & Advance to disclose the name of the poster, stirring up the question of whether one person’s right to a fair trial trumped another’s right to free speech.

  The Roanoke Times sent an email to the News’s city editor Caroline Glickman asking what the newspaper would do. She responded: “Lawyers are reviewing it and will respond as appropriate, as we would with any subpoena.”

  In less than a week, they did respond, sending a letter to the court identifying the anonymous author, who told the court that the jurors believed they were allowed to see the journals. “They brought them in on a table of evidence while we were deliberating . . . Some of us picked up a journal and went through it. As we found something interesting, we would read it out loud,” adding that before they looked in them, “there were a couple of people on the fence because they didn’t want to convict without a smoking gun.”

  • • •

  The investigators worked hard to prepare for the second trial. They set up a situation room in the emergency EEOC room at the sheriff’s department. They reinterviewed a number of witnesses, including Wesley’s former co-workers, his landlords in the Tidewater area, Rick Keuhne at Kramer Tire, and Shameka Wright.

  On Monday, July 26, Judge Updike tossed the guilty verdict and set a new trial date for November 8, 2010. Sanzone announced his intention to file for a change of venue.

  The prosecution team faced the direst consequences in this new trial. If the Commonwealth prevailed, the defense would be no worse off than they were before a mistrial was declared. If the outcome was different from the first trial, the prosecution would not only lose the justice they thought they had secured for Jocelyn, her family, and her friends, they would also look like bumblers. In life, as in football, the person with the most to lose is the one who made the last mistake.


  The prosecutors wanted the trial to remain in the Bedford County court system. The defense wanted the trial moved to another less media-saturated area but were concerned that bringing jurors from another locale to the trial site would taint their performance in the courtroom.

  Neither one of them got what they wanted. Judge Updike moved the trial to the north side of Lynchburg, Virginia, to the Amherst County Courthouse. He also ordered that the jury pool be selected from Nelson County, a greater distance up Route 29 and even farther from Bedford.

  • • •

  On November 8, 2010, the second trial began, just like the first, with Wesley Earnest pleading not guilty and the first group of potential jurors entering the courtroom. Judge Updike introduced the lawyers and the defendant and read the indictment against Wesley.

  Choosing a jury from the pool was more of a challenge this time around—in addition to the usual issues of unavailability and bias, many potential jurors had heard varying amounts about the case and previous trial. Two exchanges during the selection process spotlighted the deep roots of the agricultural culture in the rural county in contrast to the creeping presence of progressive sensibilities.

  When Sanzone asked if anyone’s Thanksgiving plans would be disrupted if the trial ran long, one of the prospective jurors said, “We usually kill hogs Thanksgiving week. It’s when I take my week vacation, but that’s the only thing. If the weather’s cold enough to kill [ . . . ] It’s about a week’s process time to get up the mess and everything.”

  When Sanzone threw in a question asking about their attitudes regarding Wesley’s adulterous heterosexual affair and Jocelyn’s romantic relationship with another woman, he got a blunt answer from one of the candidates. “To be very honest with you, Joey, I don’t know. I am a lesbian, and I’m not sure how hearing the information would affect me given the circumstances.” Definitely not an answer the defense expected to receive from a Nelson County resident.

  But eventually, they were able to find twelve individuals to serve on the jury, plus two alternates. After sending them out of the room, names were drawn for the designated alternates. As usual, no one on the jury would know who those two people were until the end, in order to keep them focused on the trial.

  This jury contained two nurses, an RN and an LPN, a civil engineer, a financial specialist, a retired thirty-year Air Force veteran with a degree in psychology, and two people with moderate hearing difficulties. At 6:10 P.M., the jurors were sworn and the players were all ready, waiting for the curtain to rise on a new day.

  • • •

  Before the jury got to work on the first actual day of trial, Judge Updike heard arguments concerning testimony and questioning that pointed to third-party guilt as presented in the first trial. Commonwealth’s Attorney Randy Krantz claimed that all that the defense had presented the first time around was suspicion, suggestion, and conjecture. He argued that legal precedent indicated the evidence introduced must point directly to the guilt of a third person and the defense was unable to do that previously.

  Defense attorney Joey Sanzone fired back that the presence of unidentified DNA from blood found at the scene, the stories the defense defined as “peculiar” from people who spent time with Jocelyn in the hours before her death, and the fact that the body was discovered by a person whom the defense claimed had an “odd explanation of what she did that day” clearly pointed to the possibility of a perpetrator other than his client.

  The judge responded, “Considerable time was spent dealing with two women. And I never saw any evidence of motivation or ill will on the part of either woman towards the victim in this case [ . . . ] And I never saw the connection.”

  Krantz cited a ruling in another case saying that “proffered evidence that merely suggests a third party is not admissible.”

  “I didn’t see any evidence that suggested that either woman committed
it,” the judge said, “other than some evidence that because they found the body that there was some opportunity, Mr. Sanzone.”

  The frustrated defense attorney said, “They’re with the dead body.”

  “Right,” the judge said. “Well, so were the police officers when they found her. I mean . . .”

  “But the police officers didn’t call friends before they called the police,” Sanzone objected. He went on to mention Maysa’s legal problem in Amherst on the day of Jocelyn’s death and the erasure of Jocelyn’s BlackBerry while in custody, saying that could only be done through the Genworth computer system and therefore had to have been accomplished by one of their employees.

  “So you’re intending to go through all that again, obviously?” the judge asked.

  “I intend to go through it, yes, sir,” Sanzone said with a nod.

  “[ . . . ] I’m just being candid with you when I state I never understood that and I still don’t,” Updike said. “And it seems to me saying that that was a stretch is expressing it mildly.”

  The defense’s case for reasonable doubt had hinged on the fact that someone else killed Jocelyn, but now it appeared as if the judge were about to shut that door. The defense team attempted to set that disappointment aside and focus on the opening statement of the Commonwealth.

  The jury filed into their seats and the judge explained that they could take notes if they wished but that their notebooks would be collected each evening and returned to them the following morning. At the end of the trial, all of their writings would be destroyed. “Now, we’re ready to begin with the opening statements. As for the Commonwealth, Mr. Nance . . .”

  “Yes, sir. May it please the court,” Wes Nance began. “Good morning, ladies and gentlemen.”

  “Good morning,” the jurors responded in the manner of a well-behaved classroom on the first day of school.

  “Wesley Earnest attempted to deceive law enforcement. He attempted to make the murder of his wife look like a suicide. He laid down a fake suicide note, and he left behind the gun that took her life . . .

  “First, I’m going to prove to you, this was no suicide. Witness after witness, piece of evidence after piece of evidence will prove she did not take her own life. It was snatched from her by her estranged husband, Wesley Earnest.”

  Nance explained the discovery of the body by Marcy Shepherd, the findings of the medical examiner Amy Tharp, and the conclusions drawn from the blood analysis by Marjorie Harris. “So, ladies and gentlemen, we’re going to prove this wasn’t a suicide. And then we’ll turn our attention to identifying the killer as Mr. Wesley Earnest. And there will be four main points in the Commonwealth’s evidence identifying him as the killer. First of all, Wesley Earnest and Wesley Earnest alone is linked to the fake suicide note left at the scene. Wesley Earnest and Wesley Earnest alone is linked to the firearm, the handgun that took her life.

  “Wesley Earnest will identify himself as the killer through his acts, his deeds, his statements, his lies, and even an inadvertent confession. And finally, Wesley Earnest is the only person with a motive to kill Jocelyn Earnest, a person who saw her as a problem or an obstacle that had to be eliminated.”

  Nance discussed the anomalies in the “suicide note” and Wesley’s purchase of the handgun that caused Jocelyn’s death. “At the time of his arrest at the home that he often shared on the weekends with Shameka Wright, law enforcement finds the gun box, the gun box that goes to the firearm that took his estranged wife’s life.”

  Nance said that in December 2007, Wesley Earnest “was working at a school called Great Bridge High School. That school was a three hour and forty minute drive to Jocelyn Earnest’s house. Now, on the weekends, he would often commute from Chesapeake to Shameka Wright’s house near Concord or to the lake house. It was a trip he was used to taking.

  “He had a new set of friends in Chesapeake. They knew some things about Wesley Earnest or thought they knew some things about Wesley Earnest. But there were some things that they had no idea about. His friends in Chesapeake didn’t know that he was married, didn’t know that he was going through a divorce. And it wasn’t that he just didn’t tell them. He actively denied it to them.”

  Nance noted Earnest’s reaction to the condolences offered from those who’d heard about his wife’s death. “Wesley Earnest responds by saying, ‘I don’t know what you’re talking about’ or ‘how many times do I have to tell you I’m not married?’ What did his friends know about him? They knew about that large lake house on Smith Mountain Lake. They thought that . . . he was independently wealthy. He told some of them that he was worth five million, others that he didn’t have any debt, and that he didn’t even need this job because he was independently wealthy.

  “But when he is alone away from bragging to his friends you’ll hear that he took a very different tone. He asked for spousal support from Jocelyn Earnest. He wrote one time that he was worth only one hundred and twenty-seven dollars. He had to borrow five thousand from his mother and twenty thousand from retirement just to pay his bills. What you’ll find out is that he blamed one person for his financial problems, for his financial strife: Jocelyn Earnest. You’ll see that he accused her of hoarding her higher income, of stealing tax returns and having one hundred thousand dollars in Genworth stock stored away somewhere.

  “See, during the course of this divorce Wesley Earnest had been ordered to pay 75 percent of the mortgage on the lake house because that’s where he was residing . . . So his financial crisis was looming. And there was a deadline looming. He had been unable to sell the lake house . . . And he even tried renting it for thousands of dollars a week without Jocelyn knowing. But at divorce . . . the house would have to be sold not a price that he wanted but at whatever the market would take . . . and have to split whatever was remaining, if there was anything remaining, with Jocelyn Earnest.

  “So in December of 2007, specifically the week before Christmas break, the same week that Jocelyn Earnest dies, you will hear that he borrows a pickup truck from David Hall . . .” on December 17 and returns “. . . it on December twentieth, the day after Jocelyn is killed.

  “. . . Another unusual thing about Wesley Earnest on December nineteenth, the day that his wife is killed, is he was going to get his car cleaned before Christmas break by a fellow by the name of Jesse McCoy. Wesley Earnest tells him, ‘I’m going to be out of town on December nineteenth, we can make it December twentieth, but I needed to be a little bit later in the morning because I’m not sure when I’ll be at work.’

  “Now, ladies and gentlemen, very early on in my opening statement I told you about an inadvertent confession by Mr. Earnest. And that’s what you’ll hear about. You see, law enforcement didn’t tell anyone about the suicide note that they found or the details of it, the line about new love who would not leave the family. And they certainly didn’t tell Wesley Earnest prior to his interview—or even during the interview—on December twenty-first, 2007, when he speaks to Sergeant Babb and Investigator Mike Mayhew. Wesley Earnest calls his boss, the principal at Great Bridge High School, Dr. Andrejco, who you’ll hear from. She will tell you that she got a call from him—that ends up being about half an hour to an hour before he speaks to the police—and it’s the first time she learns that he’s married. And he said it looks like my wife killed herself based on a failed relationship. Ladies and gentlemen, he knew . . . how that crime scene was staged before he has any innocent reason for knowing it.

  “I thank you ahead of time for your attention to this case. It will last several days but during the course of those days we will prove Jocelyn didn’t take her life. And will prove that Wesley Earnest alone is tied to that fake note, is tied to that gun, is the only person with a motive to kill Jocelyn, and is the only person who identifies himself through his statements and actions as the killer of his wife.”


  After a brief recess, defense attorney Joey
Sanzone stepped in front of the jury to deliver the opening statement from the defense. “Ladies and gentlemen, thank you for your time and attention to all of us . . . In every endeavor in life, you need to know a little bit about boundaries. And let me say something about the boundaries of this case, because you need to know how to evaluate the evidence and sort over what we’re trying to accomplish here. The first thing—the way we sit in the courtroom is important. The Commonwealth is nearest you because they have the burden of proof. And that’s a very important concept. It’s their job to put on evidence to prove their case to the proper legal standard.

  “We have several legal standards. A civil case has a preponderance of the evidence standard, which is basically 51 percent of the evidence, the evidence it’s more likely than the other. That’s not the standard in a criminal case. And we can’t put [ . . . ] a percentage on that, but it’s a much higher standard than the civil standard because the standard is beyond a reasonable doubt. It’s the highest standard that we have, because these are constitutional rights to be free in a free society [ . . . ] The Commonwealth [ . . . ] gladly accepts their burden of proof, but their burden of proof is a high one, and they have to prove their case beyond a reasonable doubt.

  “. . . There are two types of cases: there is a direct evidence case and then there’s a circumstantial evidence case. A direct evidence case is: I saw Joey Sanzone run into that bus down there, he was the guy driving the car, I know him [ . . . ] There’s no question about it, you saw what happened. This isn’t a direct evidence case. This is a circumstantial evidence case. So instead of going straight to the point [ . . . ] this case is made up with a lot of little circumstances, a chain, if you will. And it’s not enough in a case like this to have just two or three circumstances out there—things maybe you didn’t like—they all have to be connected. All of the evidence has to be connected. All of the evidence has to be consistent with guilt and inconsistent with innocence, not just something standing alone. And that’s where the problem comes in this case.

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