Trial and Error
(by Ian Zack, The Daily Progress, Charlottesville, VA, January 21, 1996)
Someone slashed Derek Haysom so many times that his head hung from his neck by strands of flesh. His wife, Nancy, died from at least two knife wounds in her chest and throat.
On that, everyone agrees.
But did Jens Soering, a bookish, German-born University of Virginia freshman, grip the knife that killed the Lynchburg-area couple nearly 11 years ago? Or did he implicate himself to cover for their daughter, Elizabeth Haysom, his charismatic and troubled girlfriend?
At least one prominent Virginia attorney is convinced that Soering is an innocent man.
Gail Starling Marshall, an adjunct professor at UVa and former state deputy attorney general, thinks a Bedford County jury wrongly convicted Soering for the March 30, 1985, killings that stunned the rural region and captivated many other Virginians with six years of legal drama.
Marshall, recently a candidate for a federal judgeship, is so sure of Soering's innocence she is willing to stake her considerable reputation on it.
"I'm just convinced beyond any doubt that he did not commit the murders," Marshall said of Soering, now 29 and serving two consecutive life terms at the Keen Mountain Correctional Center in Southwest Virginia.
Marshall believes the evidence supports the story told by Soering during and since his sensational, televised 1990 trial: Elizabeth Haysom, and possibly an accomplice, killed her parents at their Boonsboro home without Soering's knowledge; Soering is guilty only of trying to protect Haysom from the electric chair.
In an appeal filed in December before the Virginia Supreme Court, Marshall claims:
Soering's original defense attorney was suffering emotional problems and failed to attack key evidence, including a bloody sock print prosecutors needed to place Soering at the murder scene.
A biased judge and a prejudiced jury violated Soering's constitutional rights.
Investigators coerced a false confession from Soering, which the judge never should have admitted at trial.
The state attorney general's office plans to respond by Feb. 26.
In asking that the justices overturn Soering's conviction, Marshall will have no help from authorities in Bedford County, where the killings occurred.
Sgt. Ricky Gardner of the Bedford County Sheriff's Department was the chief investigator of the Haysom murders. Almost six years after Soering's trial, Gardner is unwavering in his belief that Soering is guilty.
"Definitely," he said in a recent interview. "You have to know the case from start to finish."
"No doubt that [Elizabeth] manipulated him into it," he added.
James Updike Jr., the Bedford County commonwealth's attorney who prosecuted Soering, is now a general district court judge. He declined to comment on any aspect of the case, saying he is forbidden to as a judge.
Haysom, 31, pleaded guilty in 1987 to helping plan the murders. She never admitted to participating in the slayings.
She is now serving a 90-year sentence at the Virginia Correctional Center for Women in Goochland County. In May, a parole board denied her first request for freedom.
Haysom declined, through prison officials, to answer questions for this story.
When Jens and Elizabeth met
Soering and Haysom, both Echols Scholars at UVa, met in 1984, their freshman year, according to court testimony.
Haysom, older by two years, was brilliant, charismatic and untamed. She ran away from a European boarding school with a lesbian lover as a teen-ager and the two traveled around Europe getting high on heroin. A psychiatrist later diagnosed her with a "borderline personality." She also admitted hating her parents, who disapproved of her relationship with Soering.
Soering, the son of a German diplomat, had lived in the United States since age 9. He was quiet and intellectual, and wore large, thick glasses with plastic rims. He preferred poetry to socializing and never had a serious girlfriend before Elizabeth. He didn't smoke or use drugs, rarely drank, and had no prior run-ins with the law.
In a telephone interview from prison, Soering said that during their first months together he and Haysom enjoyed reading, talking about philosophy and going to shows.
"She told me that she had given up drugs for me, and I believed her," said Soering, who retains a slight German accent despite his largely American upbringing.
But on March 30, 1985, the undergraduate romance took a desperate turn.
What happened that day depends on whose story you believe.
No one disputes that Haysom and Soering rented a Chevrolet Chevette on Pantops Mountain near Charlottesville the day before the murders and drove to Washington.
At about the time the Haysoms died the next evening, either Elizabeth Haysom or Jens Soering sat in a movie theater 400 miles away in Washington. The other probably committed murder.
Haysom testified in court that she bought six tickets and attended three movies alone that day to establish an alibi. She said Soering drove the rental car to Lynchburg, single-handedly killed her disapproving parents, and returned, wearing only his underwear and a bloody sheet.
Though no witnesses corroborated the story, Haysom claimed Soering found her on a Georgetown street at 2 a.m. without anyone seeing him.
Soering says he and Haysom drove to Washington because she told him to buy heroin. He went to the movies alone. He said the movie tickets were an alibi to protect Haysom from her parents, who were suspicious of her behavior ever since her boarding school escape.
At some point on the day of the murders, Soering also signed and cashed a $50 check at the Marriott hotel at which they stayed in Washington, but authorities could not determine when that occurred.
When Haysom returned to the hotel after midnight, according to Soering, she told him she had killed her parents and that the drugs were to blame. Her arms were smeared with what looked like washed-over blood, he said.
"My first reaction was horror and shock and terror and fear," Soering said. "I did not want her to be executed."
"I considered myself guilty because I remained in Washington.and set up an alibi," he added.
Authorities did not dispute that the movie tickets established a solid alibi for one suspect because some tickets were purchased around the same time the Haysoms died.
A neighbor found the bodies.
Derek Haysom, a 71-year-old retired steel executive and his wife, Nancy, 52, had been dead several days in their home, Loose Chippings, a mile and a half outside Lynchburg. Someone had hacked them to death.
Police found Mrs. Haysom lying on the linoleum kitchen floor, her husband in a doorway between the living room and the dining room.
In the attack, Derek Haysom suffered 25 stab wounds, apparently from a single-edged knife, while Mrs. Haysom was stabbed at least six times. Both were virtually decapitated.
Both of the Haysoms, who according to testimony at trial were heavy drinkers, had blood alcohol levels of 0.22 when they died, almost three times the current legal limit for intoxication.
In October 1985, seven months after the killings, Bedford County sheriff's investigator Chuck Reid told Soering he was "99 percent sure" Soering was not involved in the killings, according to a transcript of the interview played at Soering's trial.
"Why not go on and just cooperate the full 100 percent? You know you didn't do it," Reid says, adding: "You've got a good, convincing story."
But when police several weeks later closed in on Soering and Elizabeth Haysom, they fled the country. Haysom had given blood, footprint and fingerprint evidence. Soering had not, a fact that prosecutors later would point to as proof of guilt.
Soering and Haysom tried to live under assumed names in England, but British police arrested them in London in 1986 for passing phony checks at department stores.
British authorities extradited Haysom, and she pleaded guilty in 1987 to helping plan the killings. In court, she pointed the finger at Soering, who reluctantly had confessed to the crime during interrogations with English authorities.
Soering unsuccessfully fought extradition for four years.
At his trial, he vehemently maintained his innocence and said he confessed to protect Elizabeth form the electric chair. As he has done since his trial, Soering still maintains that he thought his status as a diplomat's son would save him from prosecution in American courts.
"I thought at most I would be deported to Germany, where there is no capital punishment, and tried as a juvenile, for which the sentences are relatively light," Soering said.
"I thought five years in prison for myself was something I was willing to do to spare Elizabeth's life."
Soering works in the prison library and has earned no demerits since his conviction six years ago, according to Marshall.
But Marshall claims he probably would not be in prison were it not for the blunders of his lead defense attorney, Richard Neaton.
"It's a legal issue; it's not a matter of opinion, whether I did or didn't [provide adequate counsel]," Neaton told a newspaper recently.
But in 1993, the state of Michigan suspended his license to practice law following charges that he lied to a client and misused another's money, according to Soering's appeal.
In answering the charges before the Michigan Bar Disciplinary Board, Neaton wrote that his "ability to practice law was materially impaired by an emotional or mental disability" from January 1989 to Nov. 2, 1992, which encompasses Soering's original trial and two subsequent direct appeals, both of which failed, according to court documents.
"I felt like [Soering] got a fair trial," said Gardner, the Bedford sheriff's investigator. "He had two lawyers, two real good lawyers," referring to Neaton and Roanoke attorney William Cleaveland.
But had Neaton been competent, Marshall believes, he would have called witnesses to rebut one of the prosecution's most important - and shakiest - pieces of evidence: a bloody sock print found on the oak floor in the Haysoms' living room.
At Soering's trial, state forensic investigator Robert Hallett, using a transparent overlay of Soering's foot, testified that the bloody print showed "correspondences," evidenc ethat at least one juror said was critical in placing Soering at the crime scene.
In fact, examiner Rick P. Johnson, who performed the forensic tests on the print for the state's Bureau of Forensic Sciences in April 1985, concluded that the impression "corresponds to a size 6½ to 7½ woman's shoe or a size 5 to 6 man's shoe." Soering wears a size 8½ men's shoe, according to testimony.
But Neaton never called Johnson to testify.
Two forensic experts corroborated Marshall's contention in affidavits, including Russell W. Johnson, a retired forensic specialist for the Hackensack, N.J., police.
Johnson, who has since died, said in an April 1995 affidavit that the sock print is of such poor quality that it "provides no evidence whatsoever that Mr. Soering was at the scene of the crime."
"I felt, and feel, that an injustice might well have been done," Johnson said in the affidavit.
Johnson also examined Elizabeth Haysom's footprint - not the version the prosecution chose to show in court, however,
"I can state that the crime scene print matches in size only with Ms. Haysom's print," the affidavit said. "Here too, however . the evidence does not prove 100 percent that the blood impression on the floor belonged to Ms. Haysom."
Two of the 12 jurors who convicted Soering confirmed that the bloody sock print was crucial to deliberations. One, Jake Bibb, also provided an affidavit to Marshall.
Bibb said in his June 26, 1995, affidavit that the jury was split 6-6 when it began deliberations, and "had it not been for the sock print and the testimony concerning it, I for one would have found it more difficult, if not impossible, to place [Soering] at the scene of the crime."
In 1990, days after the trial ended, Bibb said, "If it had not been for that footprint, I would have found him innocent."
Shortly after the trial, juror Mack Coleman also said the print "definitely gave [Soering] away."
Reached by telephone at his Roseland home last week, Bibb said he still believes in Soering's guilt, despite the unintroduced testimony.
Among other evidence he prosecution used to implicate Soering, the most compelling, Gardner said, was the trace of Type O blood police found on the front door handle and in the master bedroom of the Haysom house.
The blood matches Soering's type, and that of 45 percent of the population. Police did not find sufficient quantities to subtype it.
Police found also a damp cloth in a washing machine feet from Nncy Haysom's body that contained small amounts of Type B blood, which matches Elizabeth Haysom's type, according to trial testimony. Only 10 percent of the population is Type B.
Of the two suspects, police found only Elizabeth Haysom's fingerprints at the crime scene, on a liquor bottle not far from the bodies, according to court testimony. They also recovered her father's fingerprints on a shot glass along with another set of prints belonging neither to Elizabeth Haysom nor Jens Soering. The prints were never identified.
The blood evidence is now destroyed. In another of the few physical clues left at the crime scene, police found a bloody sneaker print in the living room.
According to a 1985 Bedford County Sheriff's Department report, the print measured 9½ inches and "would be a woman or a small man or boy . a 6½ to 7½ shoe."
If that estimate is accurate, the shoe would be at least a size too small for Soering.
No eyewitnesses to the crime ever came forward and no murder weapon or bloody clothing ever turned up.
Gardner, the sheriff's investigator, testified at Soering's trial that Soering confessed and acted out the killings in an untaped interview with him in England; and that he confessed again in a taped interview with German authorities.
"That was the time for him to say that he was innocent," Gardner said of the German confession in an interview.
Soering maintains that German lawyers advised him to make the second confession - six months after American authorities charged him with murder - so they could pursue moving the trial to Germany, which does not have capital punishment.
Marshall argues that the confession to Gardner violated Soering's Fifth Amendment rights and never should have been admitted in court.
Police interrogated Soering six times about the Haysom murders in London in 1986, after his and Haysom's arrest in the check fraud scheme. In all three of the taped interrogations, conducted by Gardner and British authorities, Soering repeatedly refused to answer questions about his alleged role in the killings without the advice of an attorney, according to transcripts.
And in an untaped interview, confirmed by police at Soering's trial, Soering declared, "I know something about my involvement or non-involvement in this case that I have not told Mr. Gardner and I will only discuss it first with my attorney and then if my attorney suggests, with police."
Soering says he was a naïve 19-year-old trying subtly to shift blame from Elizabeth. Several times on tape he mentions that he was at the Haysom home and "saw bodies." But at another point during a taped interview, he declares that "I did not kill Mr. and Mrs. Haysom and commit some sort of act of voodoo on them."
Marshall contends that according to the Fifth Amendment, American police should have halted the interrogation as soon as Soering invoked his right not to answer a question. But they did not.
Gardner denies Soering's confession was coerced, but Marshall says Neaton could have called to the stand Soering's British solicitor, who would have testified that he asked to witness the interrogations but was denied.
"They kept promising [Soering] an [American] attorney and never gave him one," Marshall said. "H was worried about Elizabeth so he gave them what they wanted."
The Virginia Court of Appeals ruled in 1991 that Soering did not qualify for Fifth Amendment protection because he was under interrogation in Great Britain by British authorities on British charges.
"The court got it wrong," Marshall said, because the interrogations were predominantly about a U.S. crime. And she further argues that the violation occurred not in England, where the interrogations took place, but in Bedford County, when the trial judge admitted them at Soering's trial.
Marshall also pointed out that in his confession, Soering got details of the murder wrong, such as telling police that Mrs. Haysom was wearing blue jeans when in fact she had on a flowered housecoat.
Elizabeth Haysom also confessed to the killings in a taped London interrogation on June 8, 1986, according to trial testimony.
In court, she declared that she was speaking sarcastically when she said, "I did it myself. I got off on it."
Marshall believes a biased court prevented Soering form getting a fair trial.
Soering's attorneys argued from the outset that the judge should recuse himself and that the trial should take place outside the Lynchburg area, where potential jurors had watched news coverage of the murders and of Haysom's trial, during which she implicated Soering.
Although Judge William Sweeney acknowledged that he had known Nancy Haysom's brother, Risque Benedict, for 40 years, had attended high school and the Virginia Military Institute with him and also had attended a retirement party for Derek and Nancy Haysom at their home, he declined to recuse himself from the trial of either Elizabeth Haysom or Jens Soering.
Although he said when he ruled against recusing himself that he could be impartial, the judge already had granted an interview to Albemarle Magazine, published on June 1, 1990, the day the trial began, in which he expressed an opinion that Soering was guilty.
"As far as the acts themselves, I don't think [Elizabeth Haysom] planned all that out," the judge told the magazine. "It was like double-dare-you. I think she was shocked he took the dare."
Judge Sweeney ruled against Neaton's motion for a change of venue for the trial, agreeing only to import jurors from Nelson County.
Marshall argues that Nelson County jurors experienced the same media saturation about the Haysom murders from the Charlottesville media as did Bedford County residents from Lynchburg and Roanoke news outlets.
According to the appeal, 15 out of the 38-member pool of Nelson jurors - an unusually high number for an out-of-town case - said they believed Soering guilty before the trial began and said the burden was on him to prove his innocence.
Six years after the trial, some still believe it.
"I'm afraid he was there - I sleep very comfortably," said juror Bibb, a 44-year-old iron foundry maintenance mechanic. "No doubt she [Elizabeth] manipulated him. She just blew him away."
The evidence points Marshall to a different conclusion. Now she must convince the Virginia Supreme Court to reconsider the question of who killed Derek and Nancy Haysom.
It is a question, Marshall said, "whose answer spells the difference between freedom and consecutive life sentences."
Her client, who has spent his last nine birthdays in prison, is hopeful. But as a 19-year-old in 1986, he seemed already to comprehend that justice is elusive and difficult to grasp, let alone predict.
"I don't think that courts and trials are necessarily about guilty or innocence or truth," Soering told his interrogators. "They are more a consensus on what is possible and what is not."
Gail Starling Marshall has never met Jens Soering. But the University of Virginia adjunct law professor has lavished her time and effort - and reputation - on winning the release of the man convicted of killing Derek and Nancy Haysom.
Marshall insists an attorney doesn't need to see her client face to face if the facts of his case, and his integrity, speak loudly enough.
"I am representing him on a reduced fee because I feel so strongly about his case," Marshall said during an interview at her Rapidan law office, a wood frame structure that sits on the farm property she shares with her husband.
A petite woman with short gray hair, Marshall, 54, heard about Soering's case more than a year ago from a friend of a friend of his family. After poring through testimony, police evidence logs and court records, she decided to take the case.
Soering's appeal is jammed into a busy schedule. Marshall teaches motions and appellate practice as an adjunct professor at the University of Virginia School of Law. She also is the full-time attorney for the Town of Orange.
To save the time and money it would cost to drive six hours to see Soering at his Buchanan County prison, Marshall said, the two communicate by telephone and letters several times per week.
A lawyer familiar with Marshall said her reputation in Virginia is well-established.
For six years, Marshall served ad Virginia's deputy attorney general in charge of civil litigation under Mary Sue Terry. In 1993, the Virginia State Bar gave her its Pro Bono Publico Award for work on behalf of the public. Last year, U.S. Sen. Charles S. Robb considered her as a candidate for a seat on the U.S. District Court, Western District.
"She is as thoroughly honest and professional an attorney as I know," said U.Va.'s Virginia Constitution scholar A.E. Dick Howard, who taught Marshall at UVa's law school more than 25 years ago and has followed her career ever since.
Howard, who said he did not know Marshall was representing Soering, added that she is not an attorney who takes a case lightly.
"It is totally implausible that she is doing this to advertise herself," Howard said. "My guess would be that she thought very somberly about the merits of the case."