One

                       THE BREAKING POINT KILLING

 

AN ANTSY EARL MCCOY STEPPED into his front yard,

paused and listened intently for vehicle sounds as he eyed the

Wayne County, West Virginia, two-lane that ran past his home. The

silence provided Earl with a temporary rest from his unrelenting

worry about what Emmett Brooks would do next. Brooks had bul-

lied Earl for six years, with little letup.

 

Earl stood there a while longer as he listened to the comfort

of silence along his stretch of State Route 37, a strip of blacktop

that meandered along the valley floor in either direction before

him, low among steep hills in the community called Kiahsville.

It was late summer. The oak, sycamore and maple stood in

defiance of the coming fall’s polite request that they shed their

summer garb, even as each tree understood that autumn soon

would dispose of good manners and insist that her preferred

tints of gold, red and brown must replace September’s deep

green. Along with the turn of the trees, a bizarre phenomenon

would paint a new color onto the pallid canvas that was Earl

McCoy’s life.

 

The day September 28, 2002 had begun badly for the slight-

ly built, 26-year-old McCoy. After a frustrating morning of

work on his ailing truck, he had walked the road’s berm to the

home of a neighbor in hopes he could catch a ride to an auto

parts store. Disappointed at finding the neighbor not there, he

began the trek home.

 

He had walked for a few minutes, then paused, listening,

then hurried his pace as he perceived the approach of a vehicle.

Someone in the vehicle shouted at him. Tires screeched and gravel

flew up like a startled quail as the vehicle swerved, lost control

and slid into a ditch. Earl McCoy saw Emmett Brooks get out.

Brooks’ emergence sent Earl’s nerves to the same plane of fear that

had haunted him for years. Evidently uninjured, Emmett Brooks

eyed Earl and walked to the vehicle’s trunk. Was Brooks reaching

for a gun? Earl escaped into the woods and made his way home.

 

                                   * * * * * * * * *

 

Earl McCoy and Emmett Brooks had known each other since

their grade school days. They had been neither close nor per-

petually at odds. Around the sixth grade, Emmett Brooks had

moved away. Later, when Brooks returned to Kiahsville around

age eighteen, he weighed nearly two hundred pounds, dwarf-

ing the short, rail-thin Earl McCoy whose frame nudged the

scale to register a mere hundred and thirty-five pounds. The

two became friends. They got along. Earl occasionally provided

Brooks with a lift and once in a while worked on his vehicles.

But something soured. On a morning in early March, 1996, the

two newly acquainted pals met up as Brooks asked Earl to give him

a ride on some now forgotten errand. That done, the two parted,

although the relationship between the two men had taken a very

bad turn.

 

That afternoon their paths crossed again in an incident

that remains a mystery to those – the police, family members, at-

torneys and to me, in my role much later as a forensic psychologist

– who would attempt to piece together the scene that played out.

This much is known. A few hours following their parting,

Earl, with his wife Kristie and Earl’s father, Earl McCoy, Sr.,

sat in Earl’s truck in front of Emmett Brooks’ home where Earl

talked with Brooks. For reasons never disclosed, talk turned

ugly, then threatening. As Earl described it to me later, the

encounter escalated until Brooks became so agitated that Earl

sped away in fear for his life and the lives of his wife and

father. Brooks, with a high-powered assault rifle in hand, fol-

lowed them a few paces, stopped and opened fire at the

fleeing truck in an attack that riddled the truck with bullets.

Several pierced the seatback, narrowly missing Kristie and

Earl, Sr. Two rounds hit Earl in the back, another grazed his

head. Earl McCoy’s truck slid off the road and came to a stop.

 

The era was pre-cellphone and Earl was twenty miles from

a hospital. Fortunately, a neighbor had heard the disturbance,

knew it was bad and called for help. Earl was airlifted to St.

Mary’s Hospital in Huntington, West Virginia. By a combination

of luck and medical expertise, Earl survived, although surgeons

had to remove sections of his large intestines, small intestines and

colon. Nine days later he was released with a slug still in his belly.

 

Earl’s healing process was beyond arduous. At home, both

Kristie and Earl’s mother, Julia McCoy, nursed him constantly.

Several times each day they packed the hole in his back with

gauze, pushing it into the wound and then soaking it with a saline

solution. An infection sprang up and set back the recovery process.

 

What could have transformed the two men’s relationship from

friendship to hate? Only Earl, his wife and father knew details of the

dispute for certain, and they weren’t talking. It is possible that neither

Kristie nor Earl, Sr. fully understood the roiling soup of enmity that

erupted in gunfire that day. And, although it was unlikely, Earl’s phys-

ical trauma may have compromised his memory of salient events.

 

Brooks was apprehended and soon struck a deal with the Wayne

County prosecutor. Initially, he was charged with one count of mali-

cious wounding, three counts of wanton endangerment and one

count of shooting from the center of the road. In a strange twist, the

charge of shooting Earl McCoy was dismissed. Brooks was allowed

to plead guilty to two counts of wanton endangerment, one on

Kristie McCoy and one on Earl’s father, neither of whom had been

hit.

 

When a perpetrator appears before the court for sentencing,

it is not unusual that his victim is in attendance. But in this case,

family passions ran high. Prior to Brooks’ plea hearing an official

met Earl, by then healed sufficiently to be up and about, and

Kristie at the courthouse door. The man advised Earl to remain

outside. Wisely, Earl agreed, while Kristie entered the building and

attended the proceedings. When Kristie emerged she described

Brooks’ sentence to Earl. Brooks would spend two years on home

confinement, to be followed by probation and no jail time. That

was it.

 

However, despite his assault on Earl McCoy, Emmett Brooks

was not content to lay low and abide by the court’s instruc-

tions. Instead, Brooks amped up his overt animosity toward Earl.

Seven months had elapsed since the shooting when, in Novem-

ber, 1996, during a chance meeting on the road, Brooks intentionally

had rammed Earl’s truck, immobilizing both vehicles. Petrified,

Earl McCoy hunkered in his truck while Brooks first smashed the

vehicle’s window, then reached for a two-by-four. Earl raced to a

neighbor’s home and called the West Virginia State Police. Later,

both Earl and his farther complained to the East Lynn Sheriff’s

office. When the two were told that nothing could be done, Earl, Sr.

became so agitated that he was arrested and spent the remainder of

the day in jail for his own protection. No charges were filed against

Brooks.

 

Later, in my role as forensic psychologist, Earl told me that

in the years after the shooting he had simply been attempting to

stay out of Brooks’ way. This was a difficult task in a small com-

munity where chance encounters were likely. Despite his efforts to

avoid Brooks, there were more encounters. As weeks and months

trudged by, Earl’s anxiety grew to full-blown maturity. Sleep

deserted him. He became hypervigilent, constantly scanning the

landscape when away from home. Even his home felt less secure.

 

As the weeks rolled by following Brooks’ release from home

confinement, “It became an everyday thing...harassing me...” Earl

told me. Brooks frequently drove by Earl’s home, shouting, tossing

beer cans into the yard, escalating the animus. On one occasion Earl

photographed Brooks and took the picture to the Wayne County

probation office, which was still responsible for Brooks. Instead of

finding relief, Earl was accused of following Brooks, despite the

fact that the photograph had been taken at Earl and Kristie’s home.

 

Little wonder that Earl and Kristie soon lost faith in the authorities.

Increasingly unable to sleep, Earl’s found his nerves breaking.

He moved several miles away to the community of Branchland

where his father lived, with the result that Earl and Kristie’s lives

improved — temporarily. At Branchland Earl felt more at home,

more relaxed. Sleep was less a stranger. He began work at the IGA

grocery store, then took a second job at the Wal-Mart on Rt. 60 in

Huntington, a town of fifty thousand. Should the worst happen,

Huntington meant shorter police response time, usually just two

or three minutes, as compared to the forlorn isolation of rural

Wayne County where it often took law enforcement 30 minutes

or more to reach the scene of a disturbance. By March, 1998, two

years had elapsed since the shooting. Earl had worked at both

jobs for about six months and things were improving for

him and Kristie.

 

It was then that Emmett Brooks, still on probation, re-emerged

into Earl’s life. On the job at the Wal-Mart store that day, Earl inched

backward as he pulled a large skid of dog food. He moved care-

fully through the store as he edged closer to the pet aisle where he

would unload the merchandise. The skid was stacked head high

so that Earl could not see the area behind the skid as he pulled

it forward. Without warning, suddenly the skid began to move

rapidly toward Earl, much faster than Earl pulled it, as if an unseen

person on its other side entertained visions of either overrunning

Earl or pushing some of the one-ton skid’s weight onto him. As

Earl darted to avoid being run over, he saw behind it, pushing

hard, the forms of Emmett Brooks and Brooks’ uncle, Doug Porter.

Earl ran. A co-worker had seen the two men push the skid

dangerously close to Earl and had called the store’s security.

Brooks and Porter flew for the exit but were detained by store

security until Huntington city police arrived. The two men were

carted away by the officers. Earl remained on the job for another

ninety minutes but, with his nerves frayed to the breaking point,

went home. Brooks was charged with battery and convicted, but

he remained on the loose, sentenced only to additional probation.

 

Earl began to drink heavily. Alcohol very shortly became his

only means to feel relaxed or gain sleep. With steady deteriora-

tion in his nerves, the months that followed found Earl unable to

shake the thought that Emmett Brooks might appear at the store at

any moment. In psychological terms, Earl had undergone a

classically conditioned aversive reaction to the sight of his

place of employment.

 

Now Earl worked in constant fear of

what Brooks might do next. Psychologically, Earl’s thoughts

and feelings paralleled those of the abused woman who

enters her workplace every day asking herself whether this

would be the day the abuser took his act “over the top.”

When not at work, Earl remained at home, petrified with

worry about what Brooks was capable of. His nerves frayed. He

took a leave of absence from Wal-Mart. Finally, his anxiety

and drinking had advanced to the point that he needed help.

And he knew it. He went to the emergency room at St. Mary’s

Hospital in Huntington. The doctor referred him to a local

substance abuse center, Parkwest, which operated a thirty-day

treatment program. In a Catch-22, Earl was unable to work,

which meant his Wal-Mart health insurance was dropped. Earl

was discharged from Parkwest after three days, although the

staff arranged an appointment for an out-patient visit at the

Prestera Behavioral Health Center. Earl never followed up.

 

Over the next couple of years things failed to improve for

Earl McCoy. In June, 2001, Kristie McCoy came home shaken

following her shopping at the local Save-A-Lot. She described

how Emmett Brooks and another man had shadowed her and

called her names as she shopped. Much later, when I examined

Earl, I asked why no police report had been filed regarding that

incident. He replied simply that any lingering grain of faith

he’d had in the authorities’ capacity to rein in Brooks had dissolved.

 

Brooks’ intimidation had taken another turn. Now, late at

night, it had become the man’s habit to sit in his car in front of

Earl’s home as if to say, “I am here. I am watching you.” And

when that occurred, the anxiety in Earl McCoy crept closer to the

red line. Earl had become nightmarishly nervous, awash with the

sort of distress felt by a combat soldier. Earl’s fear had ripened

to a level that made him dangerous. He began to carry a gun.

 

Another year passed until a pleasant June day in 2002 when

Earl’s look-alike brother, Luther McCoy, and another man

encountered Emmett Brooks on a back road. Brooks peered into

the truck and mistaking Luther for his brother, pulled Luther

from the truck and shouted, “I’m going to kill you, Earl!”

Brooks called for a buddy to get his gun which, as a convicted

felon, it was illegal for Brooks to either own or possess. Terri-

fied, Luther escaped into the woods, arriving home covered

with scrapes and cuts from barbed wire and brambles.

The last thing Luther had seen was Brooks retrieving a gun.

 

For Earl, that summer crept by like a thief that was deter-

mined to rob him of all hope for relief from fear. His trips out

of the house grew less frequent. His hypervigilance and tension

continued unabated. June turned to July, and then summer in

southern West Virginia slid into the dog days of August. These

were the days when the heat and humidity went to sweat

lodge intensity. Standing still in the shade took effort. Thirty

minutes in the sun soaked a man’s clothes to drenching wet.

 

It was on such a day that a friend, Tony Mayberry, asked Earl

for a small favor. Mayberry explained that he and his girlfriend,

Teresa Ramey, had split up. Some of Mayberry’s belongings re-

mained at Ramey’s home and he asked Earl to help him retrieve

the items. In sight of Ramey’s home, Tony Mayberry suddenly

told Earl they should turn back. They could come back another

time, Tony said. Teresa Ramey had begun dating Emmett Brooks

and Tony could tell that Brooks was in the house. Mayberry knew

of the harassment, the years of intimidation, the shooting, and had

heard Brooks threaten to kill Earl. Wisely, the two men withdrew.

Days later, Mayberry confided something else to Earl. He

had learned from Teresa Ramey that Brooks had seen the men’s

approach and sudden departure. Brooks had told Teresa that he

would kill them both. Aware of that, Earl and Tony discussed

whether to call the police. Earl advised against it. History sug-

gested that the police were unlikely to be helpful. Moreover,

Earl reasoned, any visit to Brooks by the authorities would ac-

complish little more than to further infuriate the volatile bully.

 

August turned to September with a slight break in the

weather in the month’s third week. Earl continued to drink heavily.

He became increasingly sick to his stomach due to the one-two

punch of alcohol and raging anxiety. By now, however, the drink-

ing didn’t help much when it came to Earl’s need for sleep. He

kept watch day and night, looking for the presence of Emmett

Brooks. Sometimes Brooks was there, out front. And even when

Brooks wasn’t there, Earl’s mind imagined him lurking there.

 

                                       * * * * * * * * *

 

September 28, 2002 — the day that would alter forever the

meager existences of both Earl and Emmett had arrived. This

was the day that Earl had watched as Emmett Brooks’ vehicle slid

off the road, the day that Emmett, cursing at Earl, had reached

for something in the trunk, the day that Earl had escaped into

 

the woods and made it safely home. That afternoon Earl sat

on the porch, watching. Was Brooks coming? He drank several

beers. His mind was stoked with a clutter of fears, fluttering bats

that had haunted him for six years. Three-quarters of an hour

elapsed. Brooks had not appeared. Earl tried to relax. Maybe he

was safe...

 

Cautiously, Earl walked to the home of a friend, Bobby

Napier. Would Napier give him a ride to his grandmother’s

home? Maybe Earl’s Uncle Larry was there and would help

Earl work on the truck. Napier couldn’t help him. Earl in-

quired similarly of several other people in Napier’s neigh-

borhood. Still, no success. Disappointed, he walked home.

Kristie would soon be home from work. He would take her

car and get the part for his truck. In the meantime, Earl would

wait for Kristie, and sip a couple more beers. Maybe his tension

would ease off and the day would turn out OK after all. Upon

Kristie’s return, Earl left the house in her vehicle, not knowing

that the next time he would see her, his life would be turned on

its head. He drove along the two-lane, constantly scanning, on

edge, in hopes that he would not encounter Emmett Brooks.

 

                                        * * * * * * * * *

 

Earl McCoy’s perambulation had taken him just across

the county line, from Wayne County into Lincoln County, when

he saw people ahead at the edge of the road. It was not unusual

to see a laid back crowd “partying,” drinking beer, at a wide spot

in a country back road. Earl slowed, then halted the vehicle so as

not to hit the one man among the partyers who was in the center

of the road. Emmett Brooks leaned forward and peered into Earl’s

windshield. Recognizing Earl, Brooks bolted for his vehicle a

few strides away in which two loaded shotguns lay on the seat.  

 

Earl’s panic exploded. Should he fly straight ahead, again

to expose his back? Would Brooks be given another chance to

shoot him as he fled? Brooks approached his truck. Earl raised

his gun to the window, aimed at Brooks and fired. Brooks fell and

Earl drove away. Brooks’ father Bobby Swimm was present, and

would testify later that he was able to tell his son that he loved

him, a moment before Emmett Brooks drew his final breath.

 

Profound shock gripped Earl. He drove to the home of his

grandmother and sat frozen in his car, his mind a blank. Earl’s

memory of what happened next was vague, jumbled. The sound

of his uncle’s fists as they pounded the car’s window brought Earl

to himself. News had travelled fast. Police arrived and arrested

Earl and jailed him. Later he told me that he had only the vaguest

memories of the incident, but based on statements of witnesses,

he had no doubt that he had shot and killed Emmett Brooks.

 

Brooks’ death had occurred just across the line into Lincoln

County. Thus, his trial would take place in the county seat of

Hamlin, a close knit hamlet whose best known export had

been Brigadier General Charles “Chuck” Yeager. Yeager had

left town for the military soon after high school and in 1947

had become the first person to fly faster than sound. As the

next decades eased by, Yeager returned mostly for quickie visits

as he buzzed the occasional “Howdy” over the home of his parents.

Such little places as Hamlin are integral threads in the fabric

of America. They are the towns where everybody knows every-

body and tribalism reigns. Earl’s trial on the charge of first degree

murder was set and, with family animosities at a boil, authorities

dared to hope that there would be no courtroom outbursts. They

wanted no incidents that approached the volatility of an episode

of a few years prior when a woman had given testimony about the

grisly rape and murder of her granddaughter. At the conclusion

of her testimony, the grieving grandmother stepped from the

witness box, reached into her purse and produced a pistol with

which she opened fire at the defendant as he sat with his attorney.

In an irony not lost on bystanders, the defendant was saved by

ducking behind a stack of law books, one of which took the slug.

A courthouse wag postulated that perhaps this had been the only

occasion that the injured tome had been of any perceptible

help to a defendant.

 

Earl McCoy’s appointed lawyers were two highly capable men,

James Spurlock and Vic Navy. Spurlock practiced in Huntington

but had been raised in Lincoln County, where the shooting had

occurred. He knew the culture. Navy, like Spurlock, was a native

West Virginian. He too understood the enmeshed nature of the rural

landscape. The two lawyers considered the facets of the case and

concluded the obvious – they would argue that, having endured

years of bullying, assault and general terrorism, and with two loaded

guns on the seat of Brooks’ truck, Earl had killed in self-defense.

However, to the stunned chagrin of both Spurlock and Navy,

trial judge Jay M. Hoke refused to allow a plea of self-defense.

Judge Hoke had reasoned that because he had not actually seen

the guns lying on the seat of Brooks’ vehicle, Earl could not

claim self-defense. With that, Earl McCoy’s primary defense

evaporated.

 

Attorneys Spurlock and Navy suspected that the judge

had made an errant decision, one serious enough that a higher

court well might overturn any conviction. The lawyers knew

that in order to make a successful claim of self-defense, West

Virginia law required only that an individual feel that he or

she was in imminent danger of coming to serious harm. Such

a defense had been used successfully on many occasions.

Despite having been dealt a severe judicial blow to Earl’s

chances, the lawyers pushed on with their next line of defense

– that Earl McCoy had suffered a mental illness, perhaps post-

traumatic stress disorder, brought on by years of abuse by the

deceased. If Earl had suffered PTSD or another disorder so severe

that he had been unable to conform his actions to the requirements

of the law, an expert witness in the mental health field would

need to describe that to the jury. Thus, Spurlock and Navy asked

me to examine Earl, to determine whether their argument had

merit.

 

My examination of Earl took place on March 4, 2004. As is

my practice, prior to the examination I sifted through numer-

ous documents. They included the statements of seventeen wit-

nesses who could confirm the history of bullying. Two other

witnesses who had been at the scene of the homicide, Terry

Dean and April Ramey, had seen Emmett Brooks illegally han-

dling shotguns prior to the shooting. Their testimony would, I

thought, be compelling evidence of Brooks’ general disregard

for the law. I reviewed Brooks’ criminal records, which con-

firmed the 1996 shooting as Earl, his dad and Kristie attempted

to flee in Earl’s truck. They also confirmed the Wal-Mart incident

and other episodes of Brooks’ relentless terrorism of Earl. The

toxicology and autopsy report showed Brooks’ blood alcohol

level was 0.15 when he died, far above the state’s legal limit.

I reviewed a report co-authored by psychologist Andrew Riffle

and psychiatrist Teodoro Sablay, who had examined Earl McCoy in

spring, 2003, eight months after Brooks’ death. They had concluded

that Earl’s mental functioning was consistent with post-traumatic

stress disorder. But they equivocated on whether the disorder had

played a significant role in Earl’s actions at the moment he took aim

at Emmett Brooks. Perhaps it had, perhaps not, they concluded.

Additionally, Riffle and Sablay had administered to Earl the

Minnesota Multi-Phasic Personality Inventory (2nd ed.), prob-

ably the most widely used of the objective tests of psychologi-

cal disorders. Their interpretation of Earl’s responses showed

that Earl exhibited excessive concerns about his physical well-

being, that he was somewhat depressed, quite anxious and suf-

fered low self-esteem, among other issues. But those findings

failed to reveal whether Earl had been that way all his life, or

only since the bullying had begun, or only since the killing.

 

Equally important were the MMPI’s validity scales that

showed that Earl was not faking his symptoms. Riffle and Sablay

concluded, in part, that Earl “may have been experiencing

symptoms of post-traumatic stress disorder” at the time of

the shooting. But they demurred on whether PTSD thus would

be a suitable defense. They said it was about equally likely

that Earl either experienced a flashback or was acting “of his

own volition” when he shot Emmett Brooks.

 

Having reviewed all of that, and as with the case in any

forensic examination, I advised Earl that I would examine

him and would send my report to his lawyers. I said

further that anything he told me might find its way into

my written report or into my testimony at his trial. Once he

knew that, Earl agreed to undergo my forensic examination.

Earl told me about his history with Emmett Brooks, from

their nondescript childhoods to the events that surrounded the

shooting. He left me with the impression that he was an indi-

vidual who would avoid trouble rather than seek it. He was

non-assertive and constantly wrung his hands. I asked myself,

was his anxiety the result of years of bullying by Brooks, or

had it been brought on in anticipation of his trial and the

possibility of life in prison? As well, I had to consider the possibility

that Earl had been that way since his childhood or adolescence.

That is, I had to consider the possibility, however unlikely,

that Emmett Brooks’ activities had no causal role in Earl’s

PTSD, which I diagnosed.

 

Earl described how, following the 1996 shooting and his painful

recovery, he had become increasingly anxious. He couldn’t sleep,

at least not without drinking. The possibility that Brooks would

kill him gnawed at his thoughts like a hungry rat. When able

to sleep, his nights were consumed with dreams about Brooks.

In his daytime hours he had become jumpy, always watchful.

Sometimes he cried. His appetite was nil and concentration had

become difficult. Mostly, the full-blown fear of Emmett Brooks had

become a cancer with little hope for a cure. To calibrate his ner-

vousness I administered the well-known Beck Anxiety Inventory.

Earl’s score was 21, another clear indication of extreme anxiety.

 

As a forensic psychologist, I am routinely wary of the possibil-

ity that an accused individual such as Earl McCoy, who is faced

with the possibility of life in prison, may feign mental illness. I

thought that was unlikely given Earl’s well documented history

of abuse at the hands of Emmett Brooks and in light of the

examination by Riffle and Sablay that had shown Earl was not

pretending. However, to be certain I administered two additional

tests that are designed to catch those who fake a mental illness.

Both showed that Earl was not malingering. His debilitated

mental status was real.

 

It also is common that a forensic psychologist will interview

other individuals beyond the defendant, as part of the overall exami-

nation. This strategy may allow for crosschecking numerous events

described by the defendant. Thus, I discussed Earl’s behaviors with

his wife Kristie, all the while alert to any effort she might make to ma-

nipulate the interview process with stories rehearsed or unnatural.

Kristie and Earl had married about five months after Earl

was shot, but had lived together for a year before that. Thus,

Kristie was in a position to note any changes in Earl that fol-

lowed the initial and continuing series of assaults and intimida-

tion by Brooks. Her husband had gone from easy going and

fun loving to irritable and tense, she said. She told me how an

exhausted Earl fell asleep only to awake and get up fearful. She

had looked on as he peeped out the windows, evidently hope-

less as his thoughts tumbled over and over, consumed with

worry about where Brooks might be and what he might do next.

 

Although Emmett Brooks was dead now, Earl’s worries had

transferred to Brooks’ family members. His anxiety grew in propor-

tion to the proximity of the next court appearance as he worried

whether the dead man’s family would be there, Kristie said. He

had become convinced that they might attempt a reprisal on him

for having ended Emmett’s life, as if Brooks’ family members were

somehow unaware of the role that Brooks himself had played in

his own demise. She recalled the Save-A-Lot incident in which

Brooks followed her through the store, cursing and calling her a

bitch. She summed up Earl’s mental status; “It’s an awful

way to live your life.”

 

I concluded my examination, dictated my report and

sent it to Jim Spurlock and Vic Navy. I wrote, in part, of

Earl’s state of mind at the moment he pulled the trigger:

“In my opinion, Earl experienced a flashback to one or more of the previ-

ous incidents with Emmett Brooks, and it was triggered by seeing Brooks

in the road and Brooks’ moving toward his car...Earl exhibits the classic

history and signs and symptoms of post-traumatic stress disorder....Earl

McCoy, Jr. experienced a substantial diminished capacity to either appreci-

ate his actions or to conform his actions to the requirements of the law on

September 28, 2002, at which time he shot and killed Emmett Brooks...”

I added that Earl was not responsible for his actions due to post-

traumatic disorder and a flashback episode. I concluded my written

report with a caution. “Although a psychological diagnosis such as

PTSD is not necessarily causal in any given individual’s criminal act,

...that is not such a case as we have here. Rather we have a tight

connection between the events that gave rise to the post-traumatic

stress disorder and the subsequent shooting of Emmett Brooks.”

 

                              * * * * * * * * *

Earl McCoy, Jr. stood trial for first degree murder. Numerous

members of the Brooks family attended each day, as did several

members of the McCoy family. Earl, Kristie and Earl, Sr. testified, as

did I and the first psychologist to have examined Earl, Andrew

Riffle. In their testimony, Earl and Kristie described for the jury

the litany of events from the time Earl had been shot by Brooks

in 1996, up to the day six years later when Earl killed Brooks.

 

Psychologist Andrew Riffle’s testimony was equivocal as to

Earl’s mental state at the time of the shooting. He would not

state definitively that Earl’s deadly actions were linked to PTSD.

My testimony paralleled my written report and I was more

certain than the other mental health expert. I described how Earl

indeed suffered from post-traumatic stress disorder and that the

disorder had been caused by the actions of Emmett Brooks. I added

my conclusion that Earl’s history with Brooks had brought about

a PTSD-related dissociative reaction. When he had seen Brooks

quickly stride toward his vehicle, Earl had been unable to discern

right from wrong. All he knew at that moment was cascading

fear for his life, a fear brought on by six years of Brooks’ relent-

less efforts to kill him. Under such a burden Earl had collapsed

emotionally and cognitively, a man for whom the law could

not have had meaning. If causing Earl such anguish had been

Brooks’ goal, he had succeeded, but only at the cost of his own

life.

 

I then underwent lengthy cross-examination by prosecutor Jack

Stevens. I saw Brooks’ family members, their gazes fixed on me as

I sat in the witness box. As Stevens peppered me with questions, I

wondered whether any among the Brooks family ever had quietly

engaged Brooks in a “Dutch uncle” conversation, whether they had

counseled Emmett that he was playing a dangerous game, whether

any among them had suggested to Emmett that Earl McCoy might

break and become dangerous. I concluded my testimony with

this: “Emmett Brooks didn’t know it, but every time he bullied

Earl McCoy, he was driving another nail into his own coffin.”

The testimony was done. There were no additional witnesses. I

walked out of the courthouse and drove home, asking myself what the

jurors might have thought as they listened to the lawyers’ summations.

 

The jury was rightly skeptical of the validity of testimony by

Earl, Kristie and Earl’s father. After all, Earl was facing a charge

of first degree murder and may have concocted a fictional story of

bullying and terrorism. Moreover, jury box skepticism probably

bled over to my own testimony, given that I had based my opinions

in part on events as Earl and Kristie had described them to me.

How was a jury to know whether Brooks had shot Earl in 1996,

or attacked him at Wal-Mart, or threatened to kill Earl’s brother

(thinking it was Earl himself), or whether Brooks had bluntly

told Tony Mayberry’s former girlfriend, Teresa Ramey, that

he would kill Earl?

 

In a curious second ruling, Judge Hoke had refused to allow

testimony from any of the more than a dozen additional individu-

als who would have confirmed the history of assault, intimida-

tion and bullying. To my thinking, as well as to that of Spurlock

and Navy, there was no reasonable justification for a judge to

bar witnesses who could verify the defendant’s side of the story.

Had the judge not prohibited them from doing so, Jim Spur-

lock and Vic Navy would have produced witness after witness

to verify Brooks’ history of terroristic bullying toward Earl

McCoy. The importance of such witnesses could not be over-

estimated. Judge Jay Hoke, himself a Lincoln County native,

had deprived the jury of its only means to erase their concerns.

 

Among the potential witnesses to whom the judge refused

entry into the witness box were doctors who would have de-

scribed the extent of Earl’s injuries and treatment as a result

of the 1996 shooting; members of the Wayne County Deputy

Sheriff’s Department who could have verified that it was Emmett

Brooks who had perpetrated that near-fatal shooting, as well

as the incident in which Brooks rammed McCoy’s truck; wit-

nesses who could have described how Brooks had stood in the

road and, on recognizing Earl, had gone for his shotguns; those

who would have told jurors that Brooks had shotgun shells in

his pocket when he died and had been handling guns prior to

the shooting and that those guns were only a few steps from

Brooks’ reach. Nor was Wal-Mart manager Brent Hagen permit-

ted to describe Brooks’ attempted assault on Earl. Nor would

Teresa Ramey be permitted to tell the jury that she had listened

as Emmett Brooks bluntly told her that he planned to kill Earl.

 

Without witnesses who would have removed jurors’ doubts

about the scope of Brooks’ assaults, harassment, threats and in-

timidation, it came as no surprise that prosecutor W. Jack “Jackie”

Stevens hammered away to convince the jury that Earl could

not be trusted to tell the truth. Stevens asked Earl on cross-

examination, “You only remember things that benefit you in

this trial, don’t you?”Following the trial, Lincoln County Journal

writer Lee Arnold wrote of Earl’s testimony:

“McCoy repeatedly claimed that Brooks, along with his friends,

harassed him and threatened him up until the day of the fatal shoot-

ing...McCoy claimed Brooks attacked him on one occasion at his

job at Wal-Mart, and also at various other times in public places.”

Unfortunately, Earl’s attorneys were not permitted to call

witnesses who would have verified the awful

history for the reporter and, more importantly, for the jury.

 

The testimony concluded and the lawyers gave their sum-

mations. The jury deliberated and found Earl guilty of first

degree murder, with a recommendation of mercy. Earl would

spend a minimum of fifteen years in prison and, most likely,

several additional years beyond. Strangely, in the sentencing

phase of the case Judge Hoke had reversed field and allowed

testimony by several of the corroborating witnesses, a factor

that likely accounted for the jury’s recommendation of mercy.

What motivated the judge’s change of heart remains unknown.

 

                                * * * * * * * * *

 

When it was over, I came away with the uneasy feeling that

justice had not been served. An appeal to the West Virginia

Supreme Court might succeed. Earl’s lawyers had not been allowed

to call witnesses who easily would have verified the years of

bullying, assault and intimidation and, thus, would have bol-

stered his testimony as well as my own. Also, I was nagged by

the thought that it was improper for Judge Hoke to have denied

Earl the opportunity to claim self-defense. I had been around

the court system long enough to understand that a jury, rather

than a judge, ought to decide whether a defendant had acted in

self-defense.  Jim Spurlock and Vic Navy also believed that the Judge

had erred. They appealed Earl’s conviction to the West Virginia

Supreme Court of Appeals, which agreed to hear the case. Spur-

lock was invited to appear before the state’s highest court and

he invited me to observe the session. It remains the only time I

ever sat in as an attorney argued a case before the state’s highest

court. As Spurlock laid out the facts of the case, the five jus-

tices took on quizzical looks, as if they were having difficulty

grasping the reality that Judge Hoke had ruled as Jim Spurlock

described. They questioned Spurlock for clarification after clari-

fication. Some of the black-robed jurists grew wide-eyed, leaned

forward and peered down at Spurlock as one asked, in essence,

“Are you saying the trial judge disallowed a plea of self-

defense, even though the deceased had repeatedly threatened,

even had shot the defendant?” Astonished glances went up and

down the huge oak-paneled bench as Spurlock replied, “That’s

correct.” As I listened, it became clear to me that the members

of the West Virginia Supreme Court were about to decide

that Judge Hoke had made a reversible error.

 

And that is precisely what happened. Ultimately, the jurists

also concluded that Judge Hoke’s decision to bar corroborat-

ing witnesses had been equally improper. Although Earl by

then had been imprisoned for nearly two years, the West Vir-

ginia Supreme Court rendered an overwhelming decision.

Judge Hoke’s errors were substantial. By a five to nothing

margin, Earl McCoy’s conviction of first degree murder was

overturned.

 

The practical implications of the reversal of Earl’s murder

conviction were clear. If prosecutor Jack Stevens wished to re-try

Earl McCoy, he would be faced with a new jury that would be

permitted to consider both whether Earl McCoy had acted in

self-defense, and the testimony of witness after witness who

would describe six years of assaults, threats and intimidation.

And a new jury would consider whether all of that had driven

Earl McCoy over the edge.

 

Each side now had a decision to make. The bar would be

set much higher for prosecutor Jack Stevens to get a conviction.

Earl’s chances for acquittal now rose, should he insist on a re-trial.

But as Jim Spurlock and Vic Navy knew, a trial always

involved a roll of the dice.

 

What would be Earl’s most favorable course of action?

What would be Jack Stevens’ best direction? Would either

risk a re-trial, or ought they make the best possible plea deal?

 

Following negotiations among Spurlock, Navy and Stevens,

Earl pleaded guilty to second degree murder with the un-

derstanding that he would not go back to prison. Rather, he

would be placed on probation and would return to his home.

 

It was finished. A few months following the start of Earl’s

probation, Judge Jay Hoke released Earl from it. Earl

now is employed in his home county of Wayne. He and Kristie

are now parents of a daughter.