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"I had the impression that just being there made me guilty," he said.

On cross examination, District Attorney Guy James Gray never seemed to get beyond the argument that Berry was guilty of remarkably poor judgment and possibly an immoral degree of cowardice. "You clearly knew that Bill King is no sweetheart," Gray admonished the defendant. "You knew that if you ran with Bill you'd get into trouble. Still you chose to hang out with him."

"I thought it was the same ol' Bill," Berry told the jury. "You can ask anyone that ever knew Bill if he'd back up what he said, and they'd all say no -- I just let it go."

Earlier this year, Gray won death sentences for both King and Brewer the murder. But unlike Berry, both were easy convictions in a brutal attack that had all the hallmarks of a racially motivated hate crime. Both sported racist tattoos and had overt ties to white supremacist groups, in and out of prison. Gray had the evidence -- and the motive -- to walk in and nail both men as easily as if he were swatting flies.

In some ways, Berry would seem to be equally easy to convict. The vehicle that dragged Byrd to death, a gray pickup, belonged to Berry. Tools bearing his name and initials littered the route the killers drove. His DNA appeared on cigarettes at the scene of the beating and on Byrd's blood-stained jeans and shoes. Moreover, unlike either King or Brewer, he confessed to being at the scene of the crime. A 24-year-old with a reputation for law-scraping fuck-ups and a documented history of domestic abuse against his beauty-queen girlfriend, Berry has cleaned up beautifully for the courtroom.

But in trying the case, the prosecution has made a big mistake by entirely ignoring the need to tell the jury a coherent story about how and why the crime was committed and what motivated the defendant to suddenly move from being a sometime girlfriend-slapper -- a charge documented with two affidavits signed by his girlfriend, Christy Marcontell -- to a raving lunatic capable of tying a live man to the back of a truck and dragging him to his death. Instead of worrying about creating a coherent narrative, the prosecution, led by Gray and assisted by Hardy, a jujitsu-jousting, bolo tie-wearing caricature of a Texas lawman, simply dumped a mound of evidence in the jury's lap, seemingly without art or attention to doing anything that might fairly be called "building a case."

Having dumped its load -- a succession of photos depicting footprints and "expert" testimony proffered by sometime deer-hunting investigators with minimal training in fingerprinting techniques and sexual assault -- the prosecution rested its case on Friday. The telling of the story of the crime was left entirely to the defense team.

Where the prosecution relied on a mountain of poorly contextualized evidentiary information before resting its case Friday, Hawthorn's stroke of genius has been to humanize Berry. Day after day, Berry has sat sandwiched between Hawthorn and Marcontell, a would-be Nicole Kidman look-alike who has stood by her man to the point of ardently testifying that when a man like Shawn slaps his woman, he's not beating her, even if she ends up on the floor.

Witness after witness, Berry has turned his broad Campbell's Soup-kid face attentively to the jury. Monday, some 16 witnesses -- black and white, young and old, male and female -- testified that Berry would avoid fights unless provoked, and was often driven to tears at the prospect of them. Others attested to the fact that Berry had plenty of black friends and that he often picked up pedestrians he didn't know, both black and white. Still others testified that Berry, like any good East Texas citizen, spent countless hours swilling beer and off-roading. All swore that he was neither racist nor hateful.

In the end, Gray has succeeded only in getting Berry to admit to tampering with evidence, which he has testified to doing when he took the truck and chain used in the killing to the car wash. But it seems clear that capital murder is beyond the prosecution's grasp. Monday afternoon on the courthouse lawn, the district attorney seemed to lack all sense of conviction or direction about the case. In an off-the-cuff remark to the press, Gray directly echoed the 16 defense witnesses who, to a person, asserted that Berry is not and has never been a racist.

"That boy is not a racist," Gray mused. "Or at least he wasn't before this crime. What you have here is a motiveless crime."
salon.com | Nov. 17, 1999

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