CHAPTER 12

Thursday, July 23, 2009—Rogers County Courthouse

The murder trial of Scottie Pinkerton was held in the largest courtroom in the Rogers County Courthouse.

In the not-too-distant past, the county jail was housed on the third floor. But shortly after the turn of the century, a new detention facility was built across the street from the courthouse. Once the new jail was completed, District Judge Rodney McClintock remodeled the penthouse to accommodate a new courtroom. No expense had been spared to make it one of the finest courtrooms in the state.

The entryway consisted of two large and finely handcrafted oak doors with the scales of justice carved into the wood of each door at eye level. Upon opening the doors, one could see the jury box on the far left with twelve of Rogers County’s citizens sitting inside. Panning right, there were two ornately carved wooden tables on each side of the main floor; both tables were surrounded by leather office chairs, all occupied. After walking through the doors, the large area at the back of the room, containing pews for spectators and the press, became more visible. At the front of the room was the judge’s bench where the Honorable Judge Rodney McClintock sat high above the fray.

The table closest to the jury was the prosecutor’s table where attorney Ian Battel sat in the first chair. Battel was the Rogers County first assistant district attorney, acting as the lead attorney for the trial. Battel was born to an Irish mother and a German father. Both were first-generation immigrants, and Battel’s father taught him German as a child. Consequently, Battel sometimes drifted into German curse words when he was extremely irritated.

Battel had been a prosecutor for more than twenty-five years and had tried hundreds of cases in front of a jury. A salt-andpepper Fu Manchu adorned his upper lip, and he was rarely seen outside of the courtroom without a cigarette in his mouth. The local defense bar respected Battel’s intellect, trial skills, and, more importantly to some, his willingness to laugh at himself just as easily as he could laugh at them.

Next to him was Randall “Buck” Reynolds. Reynolds was the Rogers County District Attorney. He was a handsome man in his early fifties, who had held the office for several years. Since the position was determined by a county wide election, Reynolds was more of a politician than a trial attorney. On the weekends, he ran a cattle ranch in the northeastern portion of the county.

Reynolds sat at counsel table in a bolo tie, with his black felt cowboy hat resting on the table in front of him throughout the entire trial. Occasionally, he would lean over and feign giving advice to Battel, but even the jurors quickly figured out this was Battel’s trial to win or lose.

The only reason Reynolds chose to be there was the local news cameras waiting in the hallway. Whenever the court took a break, he always led the prosecution team out the door. Thus, he made himself front and center and easily accessible for interviews with the TV stations in the hallway. Of course, he always wore his hat on TV.

The third person at the prosecutor’s table was Deputy Andrew Blackburn, dressed in his brown deputy uniform and with his Carl Grimes-style hat sitting in front of him. Battel had chosen Deputy Blackburn to represent law enforcement because he was the first officer on the scene and the lead investigator on the case.

At the defense table sat two men: Scottie Pinkerton and James Hixon, Scottie’s court-appointed attorney.

Hixon was in his late forties, overweight, with a balding dome that he tried to comb over with four long strands of hair. He was wearing a suit similar to the JC Penney’s special that Scottie’s mother had bought her son to wear during the trial. Hixon did not exude the aura of a great defense attorney to the jurors, or to anyone else in the courtroom for that matter. He had been a public defender in Rogers County for as long as anyone could remember, and if you asked Hixon, he was a great trial attorney. However, his record wouldn’t support that boast and neither would the other lawyers, who considered him arrogant and lazy.

Sitting on the bench was the Honorable Judge McClintock. Judge McClintock was a dark-complexioned man of Italian and Native American heritage, sporting a completely bald head and a chiseled jaw. He was known to occasionally lose his temper when attorneys didn’t act appropriately in his courtroom, but he was always spot on with his legal rulings—both when he had time to review written briefs and when he had to make the spur-of-themoment decisions required of a judge during trial.

Judge McClintock spoke first, addressing the jurors. “Ladies and gentlemen of the jury, now is the time for the attorneys on each side of this case to give their opening statements. Please remember that their opening statements are not evidence; after the opening statements, each side will be allowed to present evidence. At this point, each attorney will provide you a synopsis of what they believe the evidence will show. The actual evidence will come from the witness stand, through testimony, and other documents or photos admitted throughout the trial. Once again, please do not consider anything that either one of these fine attorneys says as evidence. Thank you.” He then turned to the prosecution table. “Mr. Battel, you may begin.”

Battel stood up, grabbed his notepad, and adjusted his blue pinstripe suit. He began by introducing himself to the jury. He then introduced the other two gentlemen sitting at the prosecutor’s table. Next, he approached the jury box. Once he stood in front of the twelve jurors, Battel read the charge against Scottie Pinkerton: “Murder in the First Degree resulting in the death of Ashley Pinkerton.”

He paused a few seconds before saying, “Ladies and gentlemen, I would like to thank you for being here. I know plenty of people in today’s society do not wish to ever sit on a jury panel, much less a panel for a murder case that could result in the death penalty. So, I myself, Mr. Reynolds, the judge, and even the defendant all appreciate your willingness to participate in this case. Without jurors, our judicial system could not work. You are an indispensable part of the American criminal justice system.” Battel smiled graciously at the attentive jury.

“As I said earlier, my name is Ian Battel, and I am the attorney for the State of Oklahoma. Right now, we are at the first stage of trial. If you find the defendant guilty of first-degree murder, then there will be a second stage. At the second stage, you will decide the appropriate punishment for the crime of first-degree murder. As you know from the voir dire questioning, the state will be asking you at the second stage to sentence the defendant to death. However, before we can ever get to that point, you must first consider the guilt, or innocence, of the defendant. Hence, the first stage will be purely about whether I, on behalf of the State of Oklahoma, can prove beyond a reasonable doubt that the defendant murdered his wife, Ashley Pinkerton, with premeditated malice in the first degree. At the conclusion of all the evidence of this first stage, I believe the State of Oklahoma will have proven its case, and I will ask you to return with a verdict of guilty against Mr. Scottie Pinkerton.”

Steve could imagine Battel pacing slowly while making eye contact with individual jurors, shifting his attention to a different one after four or five seconds, rotating through the jury to let them know of his sincerity but also to eye up which members were paying attention. They would be key when deliberations came.

“I expect the evidence in this case to tell the story of an abusive husband who finally, tragically, went too far. You will first hear testimony from Brent Whitmore, the victim’s brother. Mr. Whitmore will tell you that he talked to his sister on the telephone the morning she was murdered. He will tell you that the defendant was not home during this phone call because the defendant played golf every Saturday morning. Mr. Whitmore will tell you that during this phone conversation, the victim informed him that she had recently discovered that her husband, the defendant Scottie Pinkerton, was having an affair. Mr. Whitmore will further testify that the victim told him she planned on confronting the defendant when he got back to the house after his golf game. Additionally, Mr. Whitmore will tell you that he never liked the defendant and always felt like the defendant mistreated his baby sister.”

“Next, you will hear from Heather Walters, a close friend of the victim. Ms. Walters will tell you that she and the victim had been friends since they first met as kids at the Justus-Tiawah School just outside of town. Ms. Walters will tell you that Ashley told her she was not happy in her marriage, that the defendant was mean to her. She will tell you that she saw the defendant yell at Ashley on many occasions and that she felt the defendant couldn’t control his temper. Ms. Walters will tell you that she never really trusted the defendant or thought he was right for the victim.”

“After Ms. Walters’s testimony, you will hear from the victim herself. Obviously, Ashley Pinkerton will not be walking into the courtroom because she was found dead on her living room floor on August 9, 2008. What you will hear is her voice on a recording of the 911 call she made just five and a half minutes before Sheriff Deputy Blackburn arrived at her home to find her bleeding from thirty-eight total stab and slash wounds to her chest, back, arms, hands, and torso. In the 911 call, you will hear the victim, Ashley Pinkerton, screaming for help. You will hear the victim, Ashley Pinkerton, telling the 911 operator that her husband, the defendant, had just hit her. You will hear the victim, Ashley Pinkerton, say that she had escaped the defendant’s clutches and rushed to the bedroom and locked the door behind her.” Battel’s voice began to rise, and his tempo of speech quickened as he continued, “You will then hear the victim, Ashley Pinkerton, scream that the defendant was in a violent rage and had just broken through the locked door!”

Battel paused for two seconds, meeting the eyes of the jury. “You will then hear the line go dead.” He stood silently for a minute after this last statement to let the information sink in.

“Next, you will hear the testimony of Rogers County Deputy Sheriff Andrew Blackburn. Deputy Blackburn was the first officer on the scene that fateful morning. Deputy Blackburn will describe how he found Ashley lying on the floor in a pool of blood. He will testify that he immediately radioed for an ambulance and more help as he began to search the home to ensure that whoever had done this to the victim, Ashley Pinkerton, was not still present. Deputy Blackburn will tell you that the only other person he found in the home was seven-month-old Gabriel Scottie, the couple’s baby boy. Deputy Blackburn will then testify that, once he secured the home for his safety and the safety of young Gabriel, he went back to the victim, Ashley Pinkerton, and attempted to wrap towels around her body to slow the bleeding. He will state that he performed CPR in hopes of keeping her alive until the paramedics arrived. Unfortunately, the victim’s wounds were too severe and the victim, Ashley Pinkerton, passed away while Deputy Blackburn tried to save her. Deputy Blackburn will also testify about the seven-inch butcher knife he found covered in blood beside the victim, Ashley Pinkerton. This is that very knife.”

Battel held up a sealed plastic bag containing a large butcher knife with a wooden handle. Through the bag, the jurors could see the blade was covered in blackish-red stains. The knife itself was the kind found in any common kitchen block set.

“As the first deputy on the scene, Deputy Blackburn was assigned to investigate the murder. After he explains what he experienced first-hand that morning, he will walk you through his investigation. You will see pictures that he took of the crime scene and the victim. In those pictures, you will see bloody footprints near Ashley’s body. He will tell you that the shoes which made those prints were found in a field nearby and that they belonged to the defendant. In sum, he will explain to you how all of the pieces fit together, pointing to the one man who killed Ashley Pinkerton.” Battel turned from the jury to point at Scottie Pinkerton and, with a raised voice, said, “That man, the defendant. Scottie. Wayne. Pinkerton!” Battel stood for a few seconds more with his arm outstretched and finger pointing, glaring at Scottie, before he continued.

“After Deputy Blackburn’s testimony, Dr. Pendleton, the state’s medical examiner, will take the stand. Dr. Pendleton will tell you that the victim, Ashley Pinkerton, suffered thirty-eight different knife wounds to her torso and upper body. He will describe several slashes to her hands and arms that are what medical experts generally consider ‘defensive wounds.’ They are wounds that, through proper investigation and training, a medical examiner can testify occur when a victim tries to stop his or her assailant from stabbing or cutting them with a knife. Dr. Pendleton will testify that he is medically certain that the victim, Ashley Pinkerton, attempted to defend herself during the knife attack. This evidence, proving she was alive and conscious during the assault, will be more important at the second stage when you consider whether or not the death penalty is warranted.”

“He will also tell you that in addition to the defensive slashes, there were twenty-three actual stab wounds to her body. Dr. Pendleton will testify as to the depth of each wound and the amount of force it took to make said wounds. He will tell you, based on his experience, that it took great force to make these wounds—that this was no accident. Of the twenty-three stabbing points, he will tell you that eight were lethal. Due to the high number of penetrations, he will not be able to tell you which exact wound was the cause of her death, but he will tell you he is medically certain Ashley Pinkerton’s death was caused by the stabbings.

Lastly, Dr. Peterson will testify that he found skin tissue from another human under Ashley’s fingernails.”

“Next, you will hear from Dr. Feinstein, a DNA expert. He will testify that the skin found under the victim, Ashley Pinkerton’s, fingernails belonged to the defendant, Scottie Pinkerton.”

“The last witness the state will call to the stand will be Officer Glen Matthews. He is the officer who arrested the defendant. Officer Matthews will inform you that he apprehended the defendant roughly forty-five minutes after the original 911 call. The arrest occurred at a local hotel, an approximate ten-minute drive from the murder scene. He will further state that when he arrested the defendant, the defendant had visible scratches on his face and neck. You will see pictures of the defendant taken when he was booked into jail. The pictures will show these marks. Moreover, Officer Matthews will testify the defendant had just showered when they arrested him, which is why the police were unable to find any blood on the defendant.”

“These are the witnesses you will hear from in the state’s case in chief. The defense may call additional witnesses; that is up to them.”

Battel kept his attention on the jury, sparing no glance toward the defendant at this point. “Regardless, ladies and gentlemen of the jury, after you have heard the testimony of all the witnesses and seen all of the evidence, I believe the evidence will show beyond a reasonable doubt that, on August 9, 2008, the defendant, Scottie Pinkerton, attacked his wife with a kitchen knife, slashing and stabbing her over thirty times, resulting in her death! At that point, based on all you have seen and heard, I will ask that you find the defendant, Scottie Pinkerton, guilty of first-degree murder. Thank you.”

***

Steve stared down at the transcript. He was beginning to think it was clear Scottie killed his wife. He was only hoping, at this point, the judge or Battel made some constitutional error egregious enough to require a reversal.

But then, he remembered the challenge Scottie had given him— to find a way to believe Scottie was innocent.

Steve reminded himself that opening statements were not evidence; he needed to read the entire transcript and review all of the evidence before making any decisions. Moreover, he remembered from trial practice class that, sometimes, attorneys made statements in opening that they failed to prove later. Steve reread the prosecution’s entire opening statement again and again. If Battel had said something he later failed to prove, it might give him an argument for prosecutorial misconduct.

Next came the opening statement of court-appointed defense attorney, Jason Hixon.

***

Jason Hixon stood up and buttoned his ill-fitting jacket. His tie was loosely fastened around his neck and the bottom of it peeked out below the edge of his coat. Hixon began his opening statement by thanking the jurors, then said:

“Obviously there is a great deal of evidence against my client at this stage. I just ask you remember the state must prove beyond a reasonable doubt that my client murdered his wife. After you find him guilty, I ask that at the second stage you pay a great deal of attention to the mitigating evidence showing why my client should not be given the death penalty. In all honesty, this case is undoubtedly about the second stage. Thank you.”

***

Finally, Steve thought. A little something for me to argue in the brief. There may be an ineffective assistance of counsel claim here.

Steve knew that it was every attorney’s duty to defend their client, no matter how much evidence may be stacked against them. In his opening statement, Hixon had essentially conceded Scottie was guilty of murdering his wife.

The appellate court might find this to be constitutionally ineffective representation. However, to succeed on a claim of ineffective assistance of counsel, the petitioner must be able to show Scottie would have been acquitted if not for Hixon’s poor representation. Although the issue may not be a winner, he thought it was still worth arguing.

Steve tore off a new sheet of paper from his notepad and labeled it “Claims for Relief.” He then wrote “1. Ineffective assistance.” Steve remembered that most capital habeas briefs at the federal district court level would contain fifteen to twenty claims for relief. He went ahead and numbered to twenty, hoping the empty spots would magically spur him on to decipher more claims.

After the opening statements, as Battel had foretold, came the first two witnesses—Brent Whitmore and Heather Walters. Each fulfilled their role of establishing Scottie as an abuser, and each stated they never trusted Scottie. Next was the tape.

Rather than read the transcript, Steve found the zip drive containing the defense copy of the recording and played it for himself. He wanted to hear what the jury heard.

***

(August 9, 2008, 9:57 a.m.)