The Case of Preston Hughes III: Part 1 of 2

[Addendum, 16 November 2012: Preston Hughes III was executed yesterday. He was innocent. Previously, the author of this guest post requested that his last name be withheld. He now asks that I identify him by his full name, Al Fontova. Given that he helped in the effort to save Preston Hughes, even as the execution drew near, I am pleased to act on his request.]

I have a standing offer to make this blog available to anyone who wants to present a well-reasoned analysis of a criminal case. While a number of people have expressed interest, Al [last name withheld by request] is the first person to actually do the research, analysis, and writing necessary to submit a presentable post. Without further ado, I offer the case of Preston Hughes III as prepared and presented by Guest Blogger Al.

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PART I

Preston Hughes III has been on Texas’ death row for the last 23 years, convicted of a double murder in 1988 of a 15 year old girl and her 3 year old cousin.

For your consideration, the case against Preston Hughes III - 

During the night of September 26th, 1988, two patrol officers were flagged down by a man frantically searching for his missing wife in a wooded lot located in West Houston.  The man and his wife were traversing the lot using a trail that residents of several nearby apartment complexes use on a regular basis in their travels to get to and from their apartments and the businesses nearby.  As the pair walked across the lot, they felt the presence of a stranger in the tall grass that they believed was stalking them, they became spooked, ran down the trail, out of the wooded area and became separated. The man had been searching for some time for his wife when he spotted the two patrolmen.

The officers began to search the area, and as they entered the parking lot of a Fuddruckers restaurant near the lot where the woman was last seen (this is the address of the crime scene per the police report: 2475 S Kirkwood Rd Houston, TX 77077), an employee of the restaurant, ran up to the policemen yelling, “she’s back in there in the woods”.  The policemen entered the wooded lot, walking down a well worn path in the grass, finding a young female, down face first in the grass, and unconscious.  The young woman was bleeding but still alive.  The policemen continued to walk down the path searching for a suspect, and 10-15 yards away from the young woman they found a small boy, three years old, bleeding from multiple stab wounds to the chest and neck. Resuscitation efforts failed, the boy was dead.  The time was approximately 11.30pm on September 26th, 1988.

The young woman found in the wooded area was not the wife of the man who had flagged down the police officers who it turns out, had hitched a ride with some friends after becoming separated from her husband. The young woman was 15 year old Shandra Charles and the three old boy was her cousin.

More police officers were dispatched to the scene to search for the perpetrator. Sgt. Hamilton, who would play a key role in identifying a suspect, arrived on the scene soon after the victims were found. Hamilton states in the report that he felt the young woman was having trouble breathing and asked her if she would like help turning over onto to her back. The woman said she would, so Hamilton helped her do just that.

At approximately 11.43pm Hamilton held the following conversation with the victim paraphrased from Hamilton’s police report:

Hamilton: “What happen?”
Charles: “He tried to rape me”
Hamilton: “Who tried to rape you?”
Charles: “Preston”
Hamilton: “Do you know him?”
Charles: “Yes”
Hamilton: “What is the name ..?”
Charles: “Preston”
Hamilton: “What is his full name?”
Charles: “Response is unintelligible to Hamilton”
Hamilton: “Where does he live?”
Charles: “Lakeside”
Hamilton: “What is your name?”
Charles: Hamilton hears:  “LaShandra” or possibly “LaShanda”
Charles: “My Cousin..!”  Charles is visibly upset & distressed.
Hamilton: He picks up she is talking about the boy found nearby who must be her cousin.
Charles: “Marshell” or “Marcell”
Hamilton: He understands this is the boy’s name.

At 11.55pm, an ambulance arrives on the scene. A paramedic on the ambulance would be the only other person listed in the police reports documented to hear Shandra speak that night, stating that her heard her say “…my cousin”.  It is unclear if the paramedic heard her speak at the same time as Hamilton or if this occurred possibly later in the night on the way to the hospital. Shandra Charles is pronounced dead at the local hospital sometime between 11.55pm and 12.54 am.

Two homicide detectives, Gafford and Bloyd, arrive on the scene sometime just after midnight.  Based on Hamilton’s conversation with Shandra, the detectives make the decision to focus their efforts in searching the Lakehurst complex. The detectives, interview two part-time security officers from the nearby Lakehurst apartments (not to be confused with the LakeWood Village apartments which the police reports lists as also being close to the crime scene) who happened to be at the crime scene after noticing all the commotion near the complex.

The Lakehurst security officers provide the Detectives with a current list of tenants and by 2.30am the officers are knocking on the door of the only “Preston” on the lessee list. After waiting at the apartment door for 8 minutes or so, a man answers the door, confirming his first name as ‘Preston’, last name as ‘Hughes’. Hughes answers a few more questions, and voluntarily agrees to accompany the detectives to the police station for further questioning.

At 4.30am,on the morning of September 27th, Gaffordarrests Hughes after discovering the following: (1) Hughes knew Shandra Charles and had some kind of relationship with her, (2) Hughes was at this time, serving a sentence of 10 years probation for the sexual and aggravated assault of a 13 year old girl in 1985; and (3) Hughes’ proximity to the murder scene since his apartment was located about 150 yards away from the crime.

Two Confessions

Detective Gafford begins questioning Hughes at 4.10am at the police station. Hughes repeatedly states he is innocent of these crimes and tells Gafford he has not seen Charles in two months. At 5.30am Hughes signs a voluntary consent form to have his apartment searched by the police stating, “I told you, I don’t have nothing to hide.” The interrogation continues and within an hour Hughes breaks down and confesses to the double murder.

A summary of Hughes’ first confession based on the police report:

On the night of the murders, he was walking on the path between the Lakehurst apartments and the Fuddruckers.  At the time, he was carrying a knife on his belt as protection against the family of a woman who claimed she was recently sexually assaulted by Hughes.

The statement continues noting that as he was walking across the dark, wooded lot, he was tapped on the shoulder by someone standing behind him. Fearing it was the family of the fore mentioned woman he panicked, pulled the knife from his belt, turned quickly, stating that he ‘stabbed high and low a couple of times’ before realizing it was Ms. Charles. Hughes goes on saying that he was now ‘scarred  and crazy’ and kept stabbing Shandra ‘6,8, possibly 10 times’, after which he ran to his apartment.

Along with signing each page of this three page confession, the police report details that Hughes would also go on to sign a form to voluntarily provide blood and urine samples before leaving the interrogation room to go to the county jail for processing.

At 11.45am that morning, less than six hours after the confession, Sgt. Yanchak, and Sgt. Fergusson, two homicide detectives working the day shift and conducting a follow-up investigation, check Hughes out of the Men’s jail for further questioning.  The two detectives had  noted while reviewing Hughes’ prior statement that he had failed to provide any details surrounding the death of the second victim, Marcell Taylor.

At 1.15pm, the two detectives take the following statement from Hughes summarized from their police report:

Hughes states he was walking across the wooded lot when he met Shandra on the trail, noting that her cousin was with her at this time. Shandra made sexual advances towards Hughes, sex occurred after which she asked to borrow $50.00 from Hughes. Hughes declined to provide any money. She then became angry and threatened to go to the police to claim she had been raped by Hughes. The confrontation escalated as Shandra became angry and hit Hughes with her fists.  Hughes says fought back, striking her in the throat.  Angered, he pulled his knife from its sheath on his belt, and began to stab Shandra repeatedly.  As he was stabbing Shandra, the boy ran between him and her; and it was at this time that he stabbed the child.  Hughes then says he went home to his apartment.

The police report makes no attempt to reconcile these two remarkably different accounts of the crime.

Evidence Gathered from Hughes' Apartment

• Pair of prescription silver rim glasses found between cushions of couch (the glasses are alleged to belong to Ms. Charles)
• Pair of blue jeans
• 1 blue short sleeve shirt
• 1 blue short sleeve shirt with gold wrist watch in pocket
• 1 U. S. Army knife and sheath. The knife was found in a cardboard box at the bottom of a closet, the knife and sheath were separated.
• Maroon pullover shirt
• Small clear plastic bag containing green leafy substance, probably marijuana. Interestingly, the police reports are inconsistent, some officer’s report makes mention of marijuana, other reports do not list this item of evidence.

The police also took possession of Hughes’ white tennis shoes according to the police report when he was at the station.  These shoes were allegedly worn during the crime.

From the crime scene:

• The victims’ clothing including shorts, shirts, panties
• Jewelry from the victims
• Finger nail clippings and a vaginal swab
• A Busch beer can found near the victims which appeared to be recently left there
• Small amounts of money from the victims and a piece of paper with a phone number
• White shoulder strap which was used as a belt by Ms. Charles
• Palm prints from the victims

What else do we know in this case:

• Shandra Charles was last seen alive by her friend at 9.30pm on the night of the murder while visiting the LakeHurst apartments.
• Ms. Charles was found with her shorts unbuttoned, and lowered off her hip. Her belt, originally believed to be a white strap to a purse was found away from her body, at the feet of Marcell Taylor.
• The victims both died of injuries to the aorta and jugular veins.  Based on the police reports, Ms. Charles had a one stab wound to the left side of her chest as well as one stab wound to the neck. Marcell Taylor had 2 wounds in the left side of his chest and one more possibly in the neck, or ear.
• The bodies were found approximately 10-15 yards apart.
• Shandra Charles died sometime between 11.55pm and 12.54am on the night of September 27th based on information in the police reports.
• Time of the crime is not assessed in any of the police reports. A coroner’s report if it exists, is unavailable online.
• Forensic research found online related to knife wounds indicates that there is a wide variance in the time victims can live after being stabbed. One study noted that victims suffering wounds to the heart can live for up to an hour and can be capable of vigorous activity.  A loose guess at the time of crime using the one hour time window stated above and Shandra’s time death would place the time of the murders sometime near 11pm.
• Hughes has no alibi.  He had been drinking that night with his friends after work from 6.30 to 8pm.  He then caught a bus and cab to get home, and though there is no documentation in the police report, it’s likely he arrived at his apartment near 10.30pm. that night.
• Shandra and Marcell suffered no defensive wounds to the hands or arms. Interestingly, one study found online, notes that only 46% of stabbing victims suffer defensive wounds during an attack.
• Alternative suspects: The police did not pursue any investigation outside of Hughes.
• Motive per the police report was the sexual assault of Ms. Charles.
• Hughes’ criminal record suggests he has a history of violent crime towards young girls.  
• Hughes has repeatedly claimed he is innocent of these crimes over the years.

The Trial

Documentation related to Hughes’ original trial is sparse. Based on the appellate documents and testimony listed on Hughes’ web site, Hughes recanted his confessions, stating that he had involuntarily signed the statements because he was in fear of his life at the time.

Despite the numerous articles of evidence collected, the hard evidence presented at trial was meager. James Bolding from the Houston crime lab, tested the knife along with one of Hughes’ tennis shoes, in the court room, while the jury was excused from the room.  These tests were inconclusive, finding possibly animal but no human blood on the knife.  It’s unclear if the sheath was tested as well. In responding to the forensic testing of evidence in his courtroom, the judge chastised the prosecution for their ‘cavalier attitude’  but none the less, allowed the knife to be entered into the trial and presented as the murder weapon.

The remaining evidence gathered in the case was either not tested (finger nail clippings from Shandra Charles, the victims’ clothing, the suspect’s clothing, a vaginal swab) or the tests proved inconclusive. About this situation, the prosecutor, in his closing arguments remarks: “Where's the scientific evidence? Where is it at?" We did the best we could. It's inconclusive, I agree.”

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Guest Blogger Al requested that I present his article in two parts. I will therefore temporarily withhold Part 2 in which he provides his analysis. For now, comments are open for your observations and for your deliberation of the case.

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The Impending Execution of Nicholas Tate

Nicholas Tate sits on death row awaiting execution by the people of Georgia on 31 January 2012. Though he pleaded guilty to murdering a mother and her child, he appealed the resulting death sentence on technical grounds. The appellate courts upheld the sentence. Though Tate has appeals still available to him, he now declines to pursue them.

From the appellate decision in Tate v. State of Georgia, I offer the following pieced-together summary of the crime.

Chrissie Williams and her three-year-old daughter, Katelyn Williams, were found dead in their home. Chrissie Williams was found bound to a bed with handcuffs and duct tape, and she had a bullet wound to her head. Katelyn Williams was found naked on the floor of another room, and her throat had been slit. Nicholas Cody Tate pleaded guilty to both murders and to related crimes, and he waived his right to a jury trial as to sentencing for the murders. At the conclusion of a bench trial on sentencing, the trial court found the existence of multiple statutory aggravating circumstances and sentenced Tate to death for each of the murders. ... 

Tate argues that his guilty pleas to the two counts of kidnapping and the one count of child molestation were not supported by a showing of a sufficient factual basis ... 

The factual basis shown to the trial court for Tate's guilty pleas, including Tate's videotaped interrogation, correlated sufficiently with the definition of kidnapping ... 

The strongest portion of the factual basis for Tate's guilty plea to child molestation was his own statement in the plea hearing that he himself had undressed Katelyn Williams for the purpose of his sexual arousal. ... 

The trial court denied Tate's pretrial motion to suppress his videotaped interrogation. Despite the fact that the videotape is marked in the record as an exhibit of the State, a review of the sentencing trial record reveals that the videotape was actually introduced by Tate during his cross-examination of a witness for the State. Accordingly, we conclude that Tate has waived the right to complain on appeal about the introduction of the videotape as evidence at his sentencing trial. 

The evidence showed that Nicholas Tate directed Chad Tate, his 15-year-old brother, to silence Katelyn Williams, who was only three years old. Chad Tate emerged from the room where he had strangled the child with a telephone cord, likely with his hands showing obvious signs of what he had done. When the child regained consciousness and began screaming again, Nicholas Tate, who had initially sent Chad to silence the child, allowed Chad Tate to take his knife and to return to the room where the child was. The evidence also showed that Nicholas Tate had been intent upon eliminating potential witnesses and that Katelyn Williams had recognized him and had called him by name. Both Chad and Nicholas Tate's pants were shown to have been stained with Katelyn Williams's blood. The trial court, acting as the finder of fact, was authorized to find that Nicholas Tate directed his young brother to murder the child. As we have held, one "who directs a follower or lackey to commit murder" is guilty of the statutory aggravating circumstance addressing persons who cause or direct another to commit murder as an agent or employee.

Note that the police in this case did indeed record their interview with Tate, and they did preserve Tate's confession with that recording. Kudos to them. Given the preserved, unchallenged confession, there is no doubt that Nicholas Tate is factually guilty of the crimes for which he is scheduled to die.

In cases where factual guilt is clear, I neither oppose nor support the death penalty. Instead I stand mute.

With respect to the impending execution of Nicholas Tate, I stand mute.

The Execution of Rodrigo Hernandez

Though it is likely that Rodrigo Hernandez was factually guilty of the crime for which he was executed, I nonetheless opposed the execution. I opposed the execution because Hernandez was convicted in part on a disputed confession which the police failed to record. I'm weary of our justice system condoning such failure to preserve evidence and / or the willful manufacture of evidence.

One commenter provided a link to an article about Hernandez that I had not read. The article provided some additional information regarding both the alleged confession and the DNA evidence. First the DNA info:

With no sign of Verstegen or her 1991 Pontiac Firebird, a massive search began:  ... Susan Verstegen's brother-in-law and her boyfriend, Douglas Kirchner, found the Firebird. A handprint was on the driver's side door and “dragging finger marks were on the inside of the back window,” made by “smaller fingers,” according to police records. A wet spot was on the back seat.

Police cut the wet fabric and filed it as evidence, along with soil samples from beneath the car, cigarette wrappers, latent fingerprints, vacuum samples, the drum, nail clippings and swabs from Verstegen's body. ...

Four years later, when the national DNA system was established, the evidence was submitted. Monney would continue to get letters from SAPD detectives informing him they'd reopened the case. Four investigators took it up at different times.

Though they still do not make clear the nature of the DNA link to Hernandez, one might guess that they found Hernandez's DNA on the vaginal swab taken from the victim. This guess could be reinforced by Hernandez claim that he and the victim had consensual sex but that he did not kill her.

Hernandez now says he and Susan Verstegen had a months-long casual sexual relationship after they met at an H-E-B where he worked ...

It's the additional information about the alleged confession that most attracted my attention.

Almost by chance, Hernandez was linked to Verstegen's death in 2002, eight years after her half-naked body was found stuffed in a 55-gallon drum at a church.As a condition of his parole for an assault in Grand Rapids, Hernandez had to submit a DNA sample for a local, state and national database called CODIS, the Combined DNA Index System. When a match was found,George Saidler, then a San Antonio Police Department cold case detective who had reopened the probe in 2000, visited Hernandez in a Michigan jail. 

After about 20 minutes, Saidler recalled, Hernandez asked a Michigan officer to leave the room, then confessed to killing Verstegen, a single mother interested in photography who worked for Frito-Lay. 

“He gave me the facts of the case that only the killer had known,” said Saidler, now an investigator with the Bexar County district attorney's office. 

“He gave (the confession) up pretty easily to me. He had some tears, but I couldn't say if he was shedding tears for himself or for the victim.”

Not only did the Texas Rangers not record the interview, a Michigan police officer left the room just before Hernandez allegedly confessed. I find it extremely odd that Hernandez would insist a Michigan police officer leave the room as a condition of confessing to capital murder to two Texas Rangers. It sounds fishy. Of course I don't know if it is fishy, because no one bothered to preserve the evidence. That's the whole point.

Now I read this article about Rodriguez's execution that says he finally confessed to killing both woman in Texas and the woman in Michigan he was linked to by his DNA.

Right to the end, death-row inmate Rodrigo Hernandez – suspected in a 1991 killing in Grand Rapids – hoped for a last-minute reprieve. 

When it became apparent that wouldn't happen, Hernandez, who once lived here, admitted he shot and killed Muriel Stoepker, 77, near Grand Rapids Community College campus, and raped and strangled Susan Verstegen, 38, whose killing in San Antonio led to his execution Thursday. 

“I can tell you, Mr. Hernandez did not want (the execution) to happen,” Michigan State Police detective Sgt. Sally Wolter said Friday. 

Just minutes before his execution Thursday night, Rodrigo Hernandez confessed to the 1991 killing of Stoepker and 1994 killing of Verstegen, police said. He was put to death in Huntsville, Texas. ... 

Police in 2010 tried to talk to Hernandez, but he refused pending the outcome of appeals. After appeals were exhausted, police again tried to talk to Hernandez. He admitted to having sexual relations with Stoepker, but said he did not kill her. 

Wolter said Stoepker’s family took comfort in knowing that the person who killed her finally took responsibility. Police were confident based on the scientific evidence, but also wanted to rule out the possibility any others were involved. 

Wolter said police are confident Hernandez acted alone. She said that once Hernandez realized that the execution would occur, he consented to an interview with Texas Rangers and admitted to the killings. He told police that he had a gun that accidentally went off, killing Stoepker. 

“I think for the Stoepker family, and also for the family in Texas, the Verstegen family, he has now admitted responsibility for the crimes. That was their hope, for (the killer) to take responsibility and show some remorse,” Wolter said. 

She said it helps families to know “they have the right guy.” 

The Metro Cold Case Team, comprised of Grand Rapids police, Kent County sheriff's deputies and state police, also took satisfaction in the confession. Between his statements and physical evidence, police have determined he alone killed Stoepker and can close the case.

Hernandez, 38, maintained his innocence through it all. 

“It still doesn't seem real. I did not commit this murder; I'll take that to the grave,” he told the San Antonio Express-News recently.

Now Texas claims to have two confessions from Hernandez. They have the unrecorded confession, in the handwriting of a Texas Ranger, taken after Hernandez asked the Michigan police to leave the room. They also have a confession, apparently unrecorded, taken just before Hernandez was executed and soon after Hernandez claimed he would never confess.

I figured since Hernandez had finally decided to confess, he would mention it in his final statement, the one that is recorded. He might apologize to the victim's family. He might ask for forgiveness. But he did not. As best as I can find, here are his final words.

I want to tell everybody in the world I love everybody. Keep your heads up. We are all family, people of God Almighty. We're all good. I'm ready. This stuff stings, man.

So we have yet to hear Hernandez confess. We have only heard him say that he didn't do it, that he didn't confess, and that he would never confess. We have, however, been assured by the Texas police that he did confess, twice, to them and them only. And now they can magically close the other case as well, which they couldn't do if Hernandez had not conveniently and temporarily confessed.

Record the damn interviews.

Preserve the damn evidence.

I maintain my objection to the execution of Rodrigo Hernandez.

I Oppose the Impending Execution of Rodrigo Hernandez

Rodrigo Hernandez sits on death row awaiting execution by the people of Texas. Unlike most other death penalty cases, most of the appellate decisions regarding his case are not available on Google Scholar. I will therefore construct a summary of his case from bits and pieces. I begin with the standard media advisory from Texas Attorney General Greg Abbott.

The record reflects that in the early morning hours of February 18, 1994, victim Susan Verstegen was re-stocking snack products at a San Antonio grocery store from the storage bin in back of the store. While working at the storage bin, Verstegen was attacked, sexually assaulted, and strangled by Hernandez. The offense remained unsolved until 2002 when the results of DNA testing of evidence that had been collected from the crime scene, and that had been entered into a national database, matched the results of DNA testing on a sample that had been collected from Hernandez by the State of Michigan and entered into the same national database. After the reported match, another sample from Hernandez was tested, and the DNA pattern was found to match the DNA pattern from the sample collected from the crime scene. Hernandez’s written statement, which detailed his actions in attacking, sexually assaulting and killing Verstegen, was also introduced into evidence.

Though not mentioned in the advisory, it seems as if DNA has linked Hernandez to another murder. From mlive.com:

GRAND RAPIDS -- When Rodrigo Hernandez was about to be sentenced to prison in 1998 for severely beating a Grand Rapids man, he asked a judge for mercy because he had become a reformed "family man." 

"I have been living an honest life and staying out of trouble," he wrote in a letter. "I consider myself a family man. So I appreciate it if you would give me one more chance to be able to continue my life with my family, better my life and help the community." 

What Hernandez failed to tell the judge, police now say, is that he committed two as-then unsolved rapes and murders: the 1991 brutal beating, rape and shooting of 77-year-old homeless woman Muriel Stoepker in Grand Rapids and the 1994 killing of a 38-year-old San Antonio woman. 

Stoepker was known as Mary or the "bag lady" in downtown Grand Rapids because she carried her belongings in plastic bags. 

Evolving DNA evidence helped police link Hernandez to both crimes, the latest revelation coming Thursday as police announced they believe he was responsible for killing Stoepker. 

Hernandez, 37, has been on death row in Texas for six years, with his DNA part of a national database since Michigan prison officials took a mouth swab upon his 2002 parole for the 1998 assault. He was arrested six months later in Grand Rapids for the DNA match to the Texas homicide. 

Stoepker's case took longer, police say, because the semen sample was too small at the time to make a good profile. 

This year, the Kent County Metro Cold Case Team decided to resubmit the sample from her case, knowing the standards had changed. 

"Before it would have taken something the size of a bottle cap," said state police Detective Sally Wolter. "Today, it's the size of a pin head." 

Police have looked at whether Hernandez might be responsible for other unsolved murders in the Grand Rapids area from the 1990s, but they have no further DNA evidence to link him to any other crimes. And Hernandez is not cooperating. 

Cold case team detectives recently visited him in prison but could not get him to speak about Stoepker or anyone else.

I now include a segment from a post by Mike Farrell. Recall that Farrell played B. J. Hunnicutt on Mash. He is now an ardent death-penalty abolitionist. [Errata: My bad. The post was by a different Mike Farrell who is also an ardent abolitionist. See the comments.]

Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum. 

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder. 

On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since. 

In light of the confession, DNA and the absence of any evidence that  the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Despite the seemingly overwhelming evidence against him, Hernandez refuses to confess to the murder of Susan Verstegen. I don't know whether or not he affirmatively maintains his innocence.

I've found no one who seems bothered by the quality of either the DNA evidence or the confession. Even Mike Ferrell writes "there is nothing suggesting the conviction was unsafe." I guess I might be the first to suggest otherwise

I cannot actually object to the DNA evidence any more than I can accept it without question. While we are told Hernandez is linked to the Verstegen murder by his DNA, we are given no other details. Apparently the simple mention of DNA is sufficient proof for most readers.

I can and do object, however, to the confession evidence. Regarding that confession, I found the following from a U.S. Fifth Circuit decision.

The state trial court held an evidentiary hearing to determine whether Hernandez's written confession should be suppressed. The two officers who interviewed Hernandez testified that after he was given his Miranda warnings, he confessed to his involvement in Verstegen's death, claiming that he had raped her but had not intended to kill her. The officers also said that although Hernandez agreed to give a written statement, he asked one of them to write it for him because his hands were shaking too much. According to the detective who took the statement, Hernandez read it before initialing each page and signing the last page. Hernandez's attorney argued that the confession should be suppressed because it did not comply with Michigan law. The state trial court concluded that Texas and not Michigan law applied and that under Texas law the confession was proper, so it was admissible. 

Hernandez now asserts that it was unreasonable error for his attorney not to put him on the stand to testify during the hearing. Hernandez contends that he would have testified that he had signed a blank form and that his initials were forged. The lawyer testified during the state habeas proceeding, however, that Hernandez was extremely nervous and had an extensive criminal record, so his credibility likely could be impeached. It would have been Hernandez's word against that of two officers. The attorney did suggest at the proceeding that the confession may have been forged, but he chose to raise that argument during cross-examination of the officers.

I'll concede immediately that Hernandez's claim he signed a blank sheet of paper sounds bogus. I note, however, that it sounds less bogus than the claim of Texas death row inmate Cesar Fierro. Fierro, you may recall, claimed he signed a confession only after Mexican police, who were cooperating with the El Paso police, arrested his parents and threatened to torture them with a cattle prod.

In the more bogus case, the Fierro case, it turns out Fierro was telling the truth. Even the Texas Court of Criminal Appeals finally accepted his claim as true and accepted that the police had perjured themselves to help secure the conviction. Fierro remains on death row, however, because the TCCA declared the extorted confession and subsequent perjury to be "harmless."

Johnny Frank Garrett provides another sad example. He was probably innocent but certainly executed. He too was convicted based in part on a confession he claimed he never made. From the most popular post I have written for this blog, Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant:

Garrett confessed, at least according to the police, without being recorded, after asking for an attorney, but then refused to sign the confession they had typed up, and denied making the confession.

The problem in these cases, and in innumerable other cases, is that the police failed to properly secure the confession evidence by recording the interview / interrogation. It is unconscionable that police continue to conduct interviews and interrogations without recording them. The DNA equivalent would be to have the police merely assert that the DNA matched rather than taking the bother to document and preserve the test results.

The Fierro case (and possibly the Garrett case) proves that some police will go to extremes to extract a confession if unmonitored. They will be undaunted by any thought that their victim will claim coercion or falsification. Even the Fifth District Court laughed off such a concern. They noted that had Hernandez decided to testify, "his credibility likely could be impeached. It would have been Hernandez's word against that of two officers."

The appellate courts are party to coerced and falsified confessions because they don't insist that the interview evidence be preserved, because they automatically believe the police rather than the defendant, and because they declare even proven cases of coerced confessions to be "harmless."

While I suspect that Rodrigo Hernandez is factually guilty of murder, I nonetheless oppose his execution. Given the egregious police behavior regarding the confession, I refuse to stand mute.

Addendum: This story becomes even more troubling. See my follow-on post The Execution of Rodrigo Hernandez.

Seeking an Absolute Pardon for Byron Case: Rejoinder #2

According to The Free Dictionary, a rejoinder is "a reply or response to a question or remark, esp a quick witty one; retort." This post will be a rejoinder but not especially so, since it will be neither particularly quick nor witty.

In a string of comments to my series Seeking an Absolute Pardon for Byron Case, reader Anonymous eventually claimed that the first 3 of my 12 time-of-death indicators were false. In my previous post, I presented his comments and rejoined his claim regarding the first time-of-death indicator. In this post, I will rejoin his claim regarding the second time-of-death indicator.

For convenience, I include yet again my time-of-death summary in graphical format.

As you can see, the second time-of-death indicator consists of the recollection of  Sulaman Saulat, the owner of the Dairy Queen where Anastasia waited for Justin, Byron, and Kelly. Mr. Saulat independently reported to the police the same evidence that Dawn Wright reported to the police: Anastasia WitbolsFeugen was alive well after dark. This is critical because the story of Byron's sole accuser, Kelly Moffett, demands that Anastasia was murdered near sunset.

I rejoin the claim that the second time-of-death indicator is false by presenting first what I wrote to Governor Nixon followed by the entire police statement of Dairy Queen owner Sulaman Saulat.

My Summary to Governor Nixon Regarding Sulaman Saulat

Sulaman Saulat also was working at the Dairy Queen as Anastasia waited to be picked up. He too was interviewed just 2 days later by Detective Kilgore. Once again, Detective Kilgore recorded and transcribed that interview. From the transcription, I offer the following.

Well she came to my Dairy Queen Wednesday night or Tuesday night, or Wednesday night, the evening. ... I think it was about 7:00 when she came in: 7:00, 7:30, somewhere in there. ... Well, she was here for a long time, ... over an hour, an hour or hour and a half. I asked her was she expecting somebody to come pick her up? And she said yes. And I said are you sure they're coming? She said if they don't, then I'll be really really mad at them if they don't. And then I asked her if she needed anything, because I was going to ask her if, I mean, if she needed a cab or something, I'd call a cab for her, you know. She said she didn't have any money, and that's the whole conversation I had with her. ... It was between 8:30 and 9 :00 I would say. ... Saw two guys and a girl came pick her up.

Sulaman Saulat was not called to testify. The jury did not know that he corroborated Dawn Wright's testimony that Anastasia was alive long after sunset, well beyond dusk. 

As did Dawn Wright's statement and testimony, Sulaman Saulat's statement places Anastasia's death more likely near midnight than near sunset. 

And as did Dawn Wright, Sulaman Saulat's statement absolutely impeaches Kelly's testimony by placing Anastasia alive more than an hour after the end of civil twilight.

Sulaman Saulat's Police Statement

I now present Sulaman Saulat's police statement in its entirety, as recorded and transcribed by lead investigator Sgt. Gary Kilgore. The ellipses are in the original. It seems as if Sgt. Kilgore used the ellipses to indicate an interruption or a pause, rather than an exclusion. The ellipses do not indicate that I excluded anything from Sulaman Saulat's statement.

STATEMENT GIVEN BY: SULAMAN S.M. SAULAT

CASE NO.: 98-11829

The following is an interview with Sulaman interview was conducted on 10/24/97 starting at 1635 hours. 

Q. Would you state your name, please?

A. Sulaman Saulat.

Q. And your date of birth, Mr. Saulat?

A. It's 12/7/69.

Q. And your home address?

A. [Redacted]

Q. And a home telephone number, please?

A. [Redacted]

Q. And who are you employed by, Mr. Saulat?

A. Self employed.

Q. And what might that be?

A. I own the Dairy Queen.

Q. Okay, and the address of the Dairy Queen you own?

A. 9338 Winner Road. It's in Independence, Missouri 64053.

Q. When I first contacted you this evening, I showed you a photograph of a young lady and asked if you recognized her and you immediately responded yes, you did. Where do you recognize this young lady from?

A. Well she came to my Dairy Queen on Tuesday night, or Wednesday night, the evening.

Q. Do you remember about what time that was?

A. I think it was about 7:00 when she came in. 7:00, 7:30, somewhere in there.

Q. Did you have conversation with her?

A. Yes, I did.

Q. And would you tell me about that conversation?

A. Well she was here for a long time, so . . .

Q. What's a long time?

A. Uh, over an hour, an hour or hour and a half. I asked her was she expecting somebody to come pick her up? And she said yes. And I said are you sure they're coming? She said if they don't, then I'll be really really mad at them if they don't. And then I asked her if she needed anything, because I was going to ask her if, I mean, if she needed cab or something, I'd call a cab for her, you know. She said she didn't have any money, and that's the whole conversation I had with her.

Q. Did she order anything?

A. No. She said she just didn't have any money. She asked me if she could use the restroom. We don't have a public restroom, but I did let her use my restroom. She went in the back and used it.

Q. Okay, but she never did order anything, did you give her anything to eat, or drink?

A. No.

Q. Did you see anybody pick her up or anything?

A. Yes. Yea, I did. I saw two guys . . .

Q. And about what time was that?

A. It was between 8:30 and 9:00 I would say.

Q. Okay, and what did you see?

A. Saw two guys and a girl came pick her up.

Q. Did you see how they arrived?

A. They arrived in a car, but I didn't pay any attention.

Q. Did you see the car pull in and park?

A. No. No, actually I just saw them walking up to the door.

Q. Okay, and where did you first see them at?

A. I was standing by the front door, by the window, the big window back there.

Q. Okay, and they were where?

A. They were by the door.

Q. Do you remember where they parked or anything, or what  direction they came from?

A. No, I didn't pay much attention to that.

Q. Can you describe these three individuals that you saw?

A. I think the guy she was talking to because I was looking at him, I had a good look at him, the rest of them I probably didn't. He was tall, I mean good looking guy. Probably about close to 6, 5'9, 6, around in there. A white male.

Q. Could you tell about how much he weighed?

A. Weighed I would say about 160 -170.

Q. What about his hair style?

A. Hair style? Short hair.

Q. Do you remember what color it was?

A. Uhm, probably the same color as hers. Could be, but I 'm not, I could be wrong.

Q. And do you remember what he was wearing?

A. Dark colored shirt and a jacket over it, like a leather jacket, could be wrong, but I have very vague memory of, I mean I can remember the face, but if I can see a picture of it I can pretty much, pretty sure I can say this is the guy.

Q. Okay, did they come into the Dairy Queen here?

A. No, they didn't. They just met her out , she just went outside as soon as they were walking towards the door.

O. Did you hear any conversation or anything?

A. No.

Q. Could you tell what they were doing outside?

A. Well I mean, uh, she just talked to them for a minute and then they just walked back towards the car. And I saw them walking back and that was the end of it.

Q. Did you see the car leave?

A. No.

Q. Anything else at all that you can remember?

A. Well, she was on her period.

Q. And how do you know that?

A. Cause she asked Dawn for a tampon.

Q. Did she tell you that?

A. Well, I went in the bathroom after she used it, I guess she didn't flush it for some reason and there was blood there.

Q. Did you have any more conversation with her than what you've already told me? I mean, did she tell you anything about her life or her name or anything about her personal relationship with her boyfriend or anything at all?

A. That night she told me what she had told Dawn at that point, she didn't really, I mean not now, but Tuesday she told me or whatever the conversation was those two had.

Q. Dawn told you ...

A. About the conversation they had.

Q. ... but you personally?

A. No.

Q. You didn't have any conversation about what her personal life, or her boyfriend or anything like that?

A. No. That's correct.

Q. Anything else then?

A. No , not that I know of.

Q. Are you aware our conversation is being tape recorded?

A. Yes.

Q. End of interview.

Sgt. Gary M. Kilgore #18

And that, ladies and gentlemen is that.

Astonishingly, Byron's public defender did not call Sulaman Saulat to testify. No one did. Other than his police statement, I am aware of no claim by Mr. Saulat regarding the time he witnessed Anastasia WitbolsFeugen to be alive. His recollection substantiates that of Dawn Wright. Both are reported that Anastasia was alive well after sunset. Both statements falsify Kelly Moffett's version of events.

If anyone can find any evidence in Sulaman's police statement that he did not claim to see Anastasia alive between 8:30 and 9:00 PM, please point that out.

If anyone can find any other Sulaman Saulat statement that shows Sulaman Saulat did not see Anastasia alive between 8:30 and 9:00 PM, please point that out.

Since Kelly's timing of events demands that the murder occurred around sunset (she even testified to that effect), then Sulaman Saulat's police statement contradicts Kelly's claims. Since a sequence of events had to take place before Anastasia died after she left the Dairy Queen, Sulaman Saulat's police statement more likely places Anastasia's time of death closer to midnight than to sunset.

To minimize confusion, I ask that comments be limited (for the time being) to the accuracy of my representation of Sulaman Saulat's police statement. I will invite comments regarding other Anonymous challenges to my time-of-death indicators as I rejoin each of them, one at a time.