From
The State Newspaper, article written by
JIM DUPLESSIS and GINA SMITH -
jduplessis@thestate.com,
gnsmith@thestate.com
Kenneth Glenn Hinson started his rape trial demanding the court replace his lawyer, Rick Hoefer, but the Florence attorney accomplished what few expected: clearing a previously convicted child rapist of new charges that he raped two 17-year-old girls last year and left them to die, bound in duct tape, in an underground bunker.
Ken Gaines, a law professor at the University of South Carolina, said the case seemed like a slam dunk from early, sometimes sensational accounts in the local and national media.
So, what went wrong for S.C. Attorney General Henry McMaster, who made the case a high priority in his campaign against sexual predators?
And what went right for Hoefer, a court-appointed lawyer from Florence who worked alone on the case?
McMaster might have been overconfident, while Hoefers genius might have been his relentless focus on each piece of physical evidence put forward by the prosecution, say legal observers.
Or it might just have been, as McMaster says, that jurors set too high a bar for what the court calls reasonable doubt.
Jurors found Hinson not guilty on all charges: two counts each of kidnapping, criminal sexual conduct and assault and battery with intent to kill.
Jury foreman Thomas Williams said he and others believed Hinson lied, but they felt they couldnt believe the girls either.
DEFENSE, DEFENSE
Hoefers tactic to focus on each piece of evidence helped stretch the trial over eight days. But lawyers said his questioning drew the jurors attention to small pieces of evidence that added up to the reasonable doubt needed to clear the 48-year-old former welder and carpenter.
The little things had to become big things, Gaines said. Hoefer was very successful in creating that mountain of reasonable doubt the jury couldnt get around. He did a good job.
Some elements of the girls story didnt make sense or failed to match evidence jurors examined closely while deliberating, two jurors told The State newspaper after the verdict.
Juror Dana K. Lewis and Williams, the foreman, said jurors seized on several points:
Sleeping through a kidnapping. The girls testified they both were asleep in a small bed when Hinson entered their trailer and grabbed one of them, threatening to kill her if she made a noise. The other girl said she did not wake up until Hinson returned for her.
Not noticing the bunker. The girls testified they had not seen the chamber before Hinson raised the table hiding the entrance hole. Hinson said the girls knew of it, but his girlfriend and his girlfriends teenage son did not; the jurors thought everyone would have known about the bunker.
Drugs. One of the girls testified she bought drugs last summer from someone a defense witness said sold crack. We all know people who smoke crack will do just about anything to smoke crack again, Williams said.
Socks. A pair worn by one of the girls was dirty but had no wear marks, pine-needle fragments or tears some jurors expected to see from running about a mile through the woods after escaping the bunker.
Feet. The other girl said she ran barefoot. But the pictures showed no scratches, no abrasions, Lewis said.
Duct tape. The girls said one bit through the others tape binding her wrists. We went over all of the duct tape and couldnt find any chew marks, Lewis said.
An odd comment. A dispatchers logbook shows one of the girls noted in her 911 call that Hinson was on a sexual offender registry. Williams, who directed Georgetown Countys 911 emergency response system in the 1990s, thought that was an odd comment for someone who had just been raped.
THE PROSECUTION: NO SLAM DUNK
The Hinson case was McMasters first active participation in a criminal case as attorney general. The case was led by S.C. Assistant Attorney General Jennifer Evans, but McMaster made opening arguments, questioned some witnesses and was at the prosecution table for the entire trial.
McMaster said the case was well presented and the evidence was strong. We are absolutely confident the rape took place as described by the girls.
Gaines, the professor, said the prosecution probably felt they had strong enough evidence to seal his fate but apparently it wasnt.
Hoefer said prosecutors didnt cast a critical enough eye on the evidence.
Law enforcement and others made up their minds early on, Hoefer said. If youve already made up your mind that this man is guilty, you lose your objectivity and dont question your own evidence.
Gaines said prosecutors might not have focused enough on weaker evidence or withheld evidence that would have been embarrassing to the girls.
You have to know where your weaknesses are, and you have to deal with them head on, because otherwise, the defense will take full advantage of it, Gaines said.
McMaster, who had sought a life sentence for Hinson on the rape charges, might be a winner in the end, though.
Hours after the verdict, the U.S. Attorneys Office in Columbia charged Hinson with felony possession of a firearm. If convicted, Hinson could face a life sentence. He was carrying a 9 mm automatic pistol when he was arrested March 17, 2006. He said he carried a gun because he lived in the woods and was scared of big animals.
THE JURY: MOUNTAIN OR MOLEHILLS?
But lawyers interviewed said the bottom line was that McMasters case was too weak to convince jurors the girls story was true beyond a reasonable doubt.
Hoefer, who was appointed to the case, introduced, then helped focus, that reasonable doubt.
The courts appoint an attorney to hold the state to that standard. Hes just doing his job, said Vance Cowden, a USC law professor.
But McMaster said the jurors might have employed too high a standard. He recalled the statement of one juror in an article published in The State newspaper on Wednesday that jurors couldnt say for sure, couldnt bet our lives that he had done this.
If thats the standard they were using, theres no way we could convict anyone, McMaster said.
McMaster said that standard exceeds the courts standard in criminal cases that evidence must support a charge beyond a reasonable doubt. A reasonable doubt is often described to jurors as doubt strong enough to cause a person to hesitate to act.
I think the evidence was overwhelming in favor of conviction, McMaster said.
Jay Hodge, 4th circuit solicitor for Darlington, Dillon, Chesterfield and Marlboro counties, said jurors deliberate with unclear instructions.
We have such an unwieldy definition of beyond a reasonable doubt, said Hodge, who has practiced law for 30 years. The language says it has to be a reasonable doubt, not a fanciful doubt. What does that mean? Who uses the word fanciful today? The court needs to come out with clear language that regular people understand.
Prosecutors hands were tied in introducing what might have been an overwhelming piece of evidence Hinsons prior conviction for rape of a minor.
The judge knew about the conviction first hand.
S.C. Circuit Court Judge James E. Lockemy presided over the 1991 trial that put Hinson in prison for 18 years reduced to nine for good behavior for raping a 12-year-old girl in a van, holding a knife to her throat and threatening to kill her if she told.
Mr. Hinson, youre very fortunate regarding this jurys decision, Lockemy said after the verdict was read and the jury left the room.
JURORS DOUBTS
Socks
Prosecution
Any debris was likely to have fallen off during the more than four hours between reporting the crime and their collection as evidence. The soil in the Pee Dee is sandy, not rocky, said S.C. Assistant Attorney General Jennifer Evans.
Defense
Attorney Rick Hoefer didnt bring up the issue at trial.
Jury
A pair worn by one of the girls was dirty but had no wear marks, pine-needle fragments or tears some jurors expected to see from running about a mile through the woods after escaping the bunker.
Feet
Prosecution
The photos showed the girls ankles and tops of their feet. There were no photos of the soles of their feet.
Defense
Hoefer didnt bring up the issue at trial.
Jury
No scratch marks were shown in photos of girl who ran barefoot. They expected to see that.
Sleeping through kidnapping
Prosecution
S.C. Attorney General Henry McMaster said some people sleep heavily. The first girl taken is about 5-foot-3 and weighs about 130 pounds. She said Hinson grabbed me up and covered my mouth and carried me out the front door. He said, Dont say a word, or Ill kill you. She said she didnt resist because she was afraid. I wasnt about to do nothing; he told me he would kill me.
Defense
This was among the first issues Hoefer addressed in his closing arguments: These two girls slept together in a twin bed. If you believe these women, (one girl) was physically and forcefully removed from that little twin bed without disturbing (the other girl).
Jury
The two girls slept together in a twin bed. The jurors could not understand how someone could grab one without waking the other.
Duct tape
Prosecution
McMaster said the jurors misunderstood how the tape was removed: One girl used her mouth to unwrap the tape binding the second girls wrists, not bite through it, McMaster said. The second girl testified that the first girl started biting the tape off my hands. The rest of the tape was removed by hand.
Defense
Hoefer told jurors none of the duct tape appeared to be chewed. They taped themselves and staged this scene, Hoefer said.
Jury
Jurors examined the duct tape collected from the scene during deliberations and saw no teeth marks or other evidence that the girl chewed that off.
911 call
Prosecution
I dont see that as odd because they were trying to find the man, McMaster said. Even assuming that is an odd comment, is that enough to support an acquittal? Also, Evans said the girls were well aware of Hinsons history and stayed together for protection. Passages referring to Hinson being a sex offender were cut from the recording played for jurors.
Defense
Hoefer didnt bring up the issue at trial.
Jury
Mention of anything connected with Hinsons previous rape conviction was barred from testimony to prevent the jury being swayed against Hinson. But jurors learned of it from an oversight in admitting a 911 logbook that says: (One girl) STATES WAS RAPED BY MOTHERS BOYFRIEND AT (address) HE IS FORMER SEXOFFEDER(sic) KENNETH HENSON(sic). Rather than helping the prosecution, it raised doubts in the mind of jury foreman Thomas Williams, a former director of a 911 system, because he said rape victims dont usually mention the history of their attacker in their first call to police.