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Forensics expert disagrees with state’s version of events in Routier case

October 31, 2012

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Forensics expert Terry Laber was poised to challenge the state’s expert blood spatter witness — a man whose credibility has since come under question. But Darlie Routier’s lead defense attorney never called him to testify. Fifteen years after a jury sentenced Routier to die, the public can read the viewpoint the jury never got to hear.

In August of 1996, as Darlie Routier sat in a jail cell at the Lew Sterrett Justice Center in Dallas, former Fort Worth cop Warren Horinek went on trial in Tarrant County for allegedly killing his wife with a .38-caliber handgun – a charge he denied.

Even though problems with alcohol led to him leaving the force and there were claims that he was abusive to his wife, the key players in Bonnie Horinek’s death investigation believed Horinek’s story that it was she who had pulled the trigger. Even the Tarrant County district attorney’s office believed that the evidence supported Horinek’s version of the events, and refused to seek an indictment.

But Bonnie’s parents believed otherwise. They hired an attorney, and the attorney convinced a grand jury to issue an indictment against Horinek. He was taken to trial on circumstantial evidence.

The jury foreman said that the jurors were going to acquit Horinek – until they heard from the state’s final witness, according to the Texas Observer and CNN. The jury sentenced Horinek to 30 years in prison, the media reports said, because of the testimony of a lone forensic expert.

That forensic expert, Tom Bevel, has since been linked to several wrongful convictions, or to convictions that are widely questioned – like Horinek’s.

“I’m troubled that (Bevel’s) was the only testimony that led to this conviction,” blood spatter specialist Anita Zannin of Syracuse University told CNN’s Gary Tuchman about the Horinek case.

Bevel’s testimony in that trial is under scrutiny by others as well. Just days after the Fort Worth Star-Telegram published a story in early October about lingering questions in the case and a pending ruling on Horinek’s writ of habeas corpus, Bevel told the Texas Center for Community Journalism (TCCJ) that he stands behind his testimony that specks of blood on Horinek’s T-shirt prove he was in the room that night when the fatal shot was fired.

Other authorities believe the specks got there when Horinek frantically attempted CPR on his dying wife as he simultaneously communicated with a 911 operator. A still-alive Bonnie can be heard moaning on the recording, as her husband pleads for help.

Shortly after Horinek was convicted and sent to prison, Bevel, a sought-after trial witness whose home base is Oklahoma City, traveled to Kerrville, Texas.

He had been hired to testify for the prosecution in the capital murder trial of Darlie Routier.

Fatal mistakes?

If Bevel’s incriminating testimony against Routier was wrong – as two other blood spatter experts believe it was – there were a series of seeming missteps that compounded the damage, putting Routier on a collision course with the state’s needle.

Routier and family members say they were overwhelmed when Routier’s young sons, Devon and Damon, were stabbed to death in the family’s home. The family quickly became entangled in a web of law enforcement and media.

The sensational crime occurred shortly before 2:30 a.m. on June 6, 1996. Darlie Routier, who sustained cuts to her shoulder, arm and throat, had been sleeping on a nearby sofa in the family’s downstairs living room while Devon, 6, and Damon, 5, slept on the floor in front of the television. Darin Routier and baby Drake were asleep upstairs. Darlie Routier claimed she had awakened to an attack from an unknown intruder, who fled through the utility room to the garage.

Within minutes of being summoned to the scene by Rowlett police, crime scene investigator James Cron said he determined that the murders had been an inside job. Attention was quickly focused on Darlie Routier, and she was arrested days after the boys’ funeral. She and family members claim that police never thoroughly investigated other possibilities, even though several neighbors had reported seeing a suspicious black car near the family’s home on several occasions just prior to the murders.

After her arrest, Routier was given two court-appointed attorneys, Doug Parks and Wayne Huff. Friends advised the family that the court-appointed lawyers should be replaced with a high-powered attorney with a reputation for winning big cases.

At that time in Dallas, there was perhaps no lawyer with a bigger reputation than Doug Mulder. Three years earlier, Mulder had won a stunning courtroom victory – an acquittal for Dallas pastor Walker Railey, accused in the attack that had left his wife, Peggy, comatose. That case, too, had made national headlines and, as with Routier, public opinion was strong that Railey was guilty.

Convinced that Mulder was the man who would save her daughter, Routier’s mother, Darlie Kee, scraped together $94,000 to hire him.

“We got money from everybody that we possibly could,” Kee said.

The deal that Kee and her son-in-law allegedly cut with Mulder may have ultimately helped seal Darlie Routier’s fate.

As part of the alleged bargain, Mulder agreed to deviate from Parks’ and Huff’s defense strategy in one key area: he would not raise reasonable doubt for Routier by casting suspicion on the only other adult known to have been in the house when the attacks occurred: Darin.

The alleged agreement to protect Darin is detailed in the writ of habeas corpus filed as part of Routier’s appeals process. The writ refers to affidavits by Kee and Darin Routier claiming that there had been such an agreement. “As a result of this promise, Darin and Kee asked Mulder to represent Ms. Routier at trial,” the writ states.

Mulder denies that there was any such arrangement.

“In fact, (implicating Darin) was the first thing that made sense to me,” he said. “But (Darlie) was adamant in her position that she saw the man from the back and that it wasn’t her husband. I couldn’t pursue it on my own.”

Parks later signed a sworn affidavit confirming that his defense strategy had been to implicate Darin in the crime. He also stated for the record that he had conveyed to Mulder that he felt that Mulder had a conflict of interest with Darin stemming from his representation of him when Darin and Kee had been accused of violating a gag order.

Kee explained why protecting her son-in-law had been part of the deal she claims was made with Mulder: “I saw what the justice system was doing to Darlie,” she said. “And I didn’t want it happening to another family member.”

Darin Routier has denied any involvement in the murders of his children. However, in July 2002 – five years after his wife was sent to death row – he signed a sworn affidavit admitting that in the months before the murders, he told “multiple people” that he wanted someone to burglarize the family’s home as part of an insurance scam. He further stated in the affidavit that Mulder had agreed not to implicate him as part of his defense of Darlie.

Another key error may have occurred when Parks and Huff were booted. The pair had enlisted forensics and crime scene experts Terry Laber and Bart Epstein of the Minnesota Bureau of Criminal Apprehension. The men flew to Texas, where they examined evidence, met with Rowlett police investigators and inspected the Routier home.

Prosecutors with the Dallas County District Attorney’s office were preparing to claim in Routier’s upcoming capital murder trial that the injuries she incurred had been self-inflicted – a ruse to disguise the fact that it was she who had killed the children.

Laber and Epstein came to a different conclusion.

Laber, whose early career involved investigating the infamous Jeffrey MacDonald murder case, said he met with Mulder to discuss his and Epstein’s findings. He said it was the last time he ever heard from Routier’s lead defense attorney.

“They had already paid us several thousand dollars to do the work,” Laber said, referring to the court-appointed team. “Having us come testify would have been a day’s travel and a day of testimony – like $4,000, something like that.”

This, too, is something Mulder disputes. He said that he paid Laber himself, and that Laber wasn’t particularly cooperative.

“I didn’t think they brought anything to the party,” he said of Laber and Epstein, adding that the two wouldn’t have known ahead of time what Bevel’s testimony would be.

But Stephen Cooper, a Dallas attorney who has been representing Routier in her appeals, isn’t buying it.

“There were a bunch of things that the Mulder defense team didn’t follow up on,” he said. “It’s basic trial dynamics to refute the state’s evidence. To say that they didn’t know what Bevel was going to say, well, you will never know what the state’s expert is going to say until they testify. Part of being a defense attorney is being prepared for the what-ifs.”

Cooper also noted that Mulder and other members of the defense team had met with Bevel prior to the start of the trial. When Bevel made claims from the witness stand that the defense team believed was counter to what he had said in the meeting, the defense team’s investigator, Lloyd Harrell, was put on the stand, but without the jury present. The judge ruled that Harrell would not be allowed to testify before the jury about what Bevel had allegedly said in the pre-trial meeting because Harrell had been in the courtroom during other witness testimony.

Laber said that, while he was never told why he did not hear from Mulder after that meeting, he has seen lawyers scrap expert testimony as a way to save money, thinking they can cover adequate ground through cross-examination of the state’s witnesses.

“That’s exactly what happened (in an Ohio case),” he said. “They didn’t want to spend the money. It was more (money) for them. I know it has been a reason in other cases.”

Whatever Mulder’s reasons, the two forensics experts from Minnesota did not appear in the courtroom at the Kerr County courthouse.

Bevel, however, did.

Same crime, different findings

When Bevel took the stand in Routier’s capital murder trial in January 1997, he provided painstaking detail about his deductions regarding bloodstains and a staged crime scene.

He told the TCCJ that he continues to stand by his testimony in that trial.

Under questioning by prosecutor Greg Davis, Bevel had stated that blood stains on Routier’s Victoria Secret nightshirt were “consistent with” cast-off blood spatter that likely occurred as she plunged a knife, again and again, into the bodies of her little boys.

Bevel told the TCCJ that “cast-off” stains on the front and back of Routier’s nightshirt indicated that she could not have been lying on the couch when her sons were attacked, as she had claimed. He was travelling to give scheduled testimony in a trial, but responded via email to the TCCJ’s inquiries.

“In experiments … I have only been able to create consistent stains in a stabbing motion with a bloody knife held in the right hand,” Bevel wrote. “This is consistent with what I found on the front and back of Darlie’s gown.”

Laber disagrees.

“First off, there’s not enough to say it was cast-off, and it doesn’t make sense that (the boys’ blood) would be mixed with her blood if it was cast-off. The pattern wasn’t sufficient to say it was cast-off,” Laber said. “Second of all, it was a mixture of all three people’s blood mixed together.”

Laber said that some of the blood stains “could have gotten there from paramedics, or when they (Darin and Darlie) were trying to treat their children.”

“Just the implication that it was cast-off shouldn’t even have been made,” Laber continued. “I didn’t think there was anything on Darlie’s (nightshirt) that indicated that she was involved.”

As for Routier’s claims that she had been lying on the sofa asleep when the attacks occurred, Laber said: “There was an implication that there wasn’t enough blood on the couch to substantiate that that’s where (the attack) happened. There was blood on the couch. The wounds are in front, so her shirt is going to absorb all of that. There was all sorts of dripping blood and handprints – all sorts of blood in that living room.”

Evidence photos of the front of Routier’s nightshirt indicate that it was almost completely blood soaked.

“If she’s stabbed, she gets up. There’s blood all over there, but it’s just not right where she was laying,” Laber said. “That doesn’t bother me. What bothers me is that somebody would say she wasn’t there.”

The slash across Routier’s throat missed her carotid artery by two millimeters and the necklace she was wearing had to be surgically removed from the wound, according to trial testimony.

As part of Routier’s alleged staging of the crime scene, Bevel gave detailed testimony regarding bloodstains on and under a vacuum cleaner.

In his email to the TCCJ, Bevel stated that there was blood evidence that should not have been there if the vacuum cleaner, as Routier claimed, had been knocked over by an intruder. The writ of habeas corpus says that a bleeding and dizzy Routier had used the vacuum to steady herself.

“Bevel implied that that was staging of the crime scene – wheeling that thing around – which I didn’t understand at all,” Laber said.

Debris consisting of microscopic rubber dust particles and a microscopic fiberglass rod fragment that were found on a knife from the Routier kitchen were consistent with material from a garage window screen that was found cut after the attacks, according to prosecution witness Charlie Linch, who at that time worked for the Southwest Institute of Forensic Sciences (SWIFS) in Dallas. Prosecutors said it was evidence that Routier had cut the screen in her staging of the crime scene.

Laber and Epstein said that the microscopic material could have easily been contamination carried by the fingerprint brushes since the screen was fingerprinted before the knife rack was, and before the microscopic material was found. In addition, the experts said, there was nothing unique about the fiberglass rods that were found, and fingerprint brushes frequently contain fiberglass rods.

In an affidavit signed by Linch in July 2002 — the same day Darin Routier signed his — Linch stated that the butcher block and knives from the Routier house had been dusted for fingerprints before they were presented to him for testing two days after the boys’ murders.

“That evidence was pretty flaky, but it was powerful evidence in this case,” Laber said, referring to the impact on the jury.

Laber also disagrees with the state’s claim that Routier deliberately broke a wine glass to bolster her claim of a struggle.

“The wine glass was not thrown on the floor,” said Laber, adding that he and Epstein broke “a number of those” when conducting tests. “It had to have been broken by being knocked out of the rack and hitting something in the air before it hit the floor. There were glass shards that landed in an ice bucket on top of the table. (The shards) couldn’t have gotten that high from the glass hitting the floor.”

Laber said that he and Epstein have testified in a number of trials opposite Bevel, and that a dominant theme for Bevel is that a crime scene was “staged.”

“He’s always got this staging of the crime scene. And there have been all these cases where he’s been proven wrong,” Laber said. “All these implications add up that should never have been made, and I don’t know why people would make them unless they want to win the case. They want to get a conviction.”

Bevel said that he has been involved in cases with Laber and Epstein 14 times and only four of those cases involved issues of staging. He told the TCCJ that staging was raised as an issue in only “.01%” of the more than 3,000 cases he has worked.

That blood spatter experts can often have polar opposite views may highlight the fact that blood spatter analysis is far from an exact science, and testimony from only one such expert could unfairly imperil the accused.

Even Linch, who had testified for the state against Routier, indicated as much in his affidavit.

“It is my professional opinion that if Bart Epstein and Terry Laber were released from their retention as expert witnesses for Darlie Routier’s defense,” Linch’s affidavit reads, “such release constituted a grave error on the part of Darlie Routier’s defense counsel.”

The die is cast

If Routier is innocent, as she claims, then she could end up paying the ultimate price for things not within her control. What happened to her could conceivably happen to anyone. The following issues have surfaced since her conviction:

The credibility of Bevel, the state’s lone blood spatter expert, has been called into question;

Routier’s then-husband admitted planning a burglary of their home, yet neither prosecutors nor Routier’s defense attorney put him under the microscope;

The defense put no witnesses on the stand to challenge Bevel, nor was an adequate level of DNA testing requested, according to Routier’s appeals attorneys;

A juror later expressed regret, stating that there were photos of Routier’s injuries that he never saw during the trial, and that he had felt coerced by other jurors to find her guilty;

And the court reporter later acknowledged that she had lied to cover what she feared was a reversible error that would have gotten Routier a new trial.

The court reporter ultimately lost her license but was granted immunity from prosecution by the DA’s office, which would have had to retry Routier if she got a new trial.

None of these things have resulted in a new trial for Routier or even, according to Kee, captured the attention of the current administration at the Dallas County District Attorney’s office, which now boasts a conviction integrity unit.

“The system is completely rigged against somebody who has been convicted,” said Jeff Blackburn, founder of the Innocence Project of Texas. “The view of the system is to never question the conviction, and to stand behind it at all cost.”

Kathryn Kase, executive director of Texas Defender Service, said that despite the fact that issues with Bevel did not surface until years after Routier’s conviction, his testimony in her trial may be of little interest to the Texas courts. Kase said this is due largely to the Anti-terrorism and Effective Death Penalty Act, signed by President Bill Clinton the same year Routier was charged with capital murder. The Act “tightened up the process for review of capital cases,” she said.

“If they (Routier’s appeals lawyers) didn’t get this stuff in the record early on, then they’re out of luck,” said Kase. “The number of people who are concerned about innocence is much smaller than the number of people who are concerned about the amount of time it’s taking to execute people on death row.”

Add to that bad news Mulder’s alleged ineffective assistance of counsel that, according to Houston-area defense attorney Richard Burr, is “broad and deep,” and there may be reason to question the level of justice within the Texas justice system.

Families that, like Routier’s, empty out retirement, savings and college fund accounts and hold estate sales in order to afford an expensive lawyer have no guarantee that the lawyer will do everything possible on behalf of his or her client.

Since Routier’s 1997 trial, Epstein and Laber have gone on to testify in many other cases. Epstein said that their testimony would have been “favorable” to Routier, if only they had been summoned to testify.

“Any time someone is wrongfully convicted,” he said, “it’s a travesty.”

Toby Shook, a member of the prosecution team who is now in private practice in Dallas, said that the evidence against Routier was “overwhelming” and that he has no qualms about her someday being given an execution date. Of Bevel, he said: “I think Bevel’s testimony was fine. It’s been reviewed by the court.”

Although Laber retired in 2000, he does consulting work and continues his research into the tricky science of blood spatter evidence. Currently, he is conducting a stain interpretation study with the “top 30 blood spatter people in the world.”

Tom Bevel is not one of them.

Kathy Cruz is a staff writer for The Hood County News in Granbury. She can be reached at [email protected]

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A PERMANENT SCAR: Darlie Routier’s throat still bears the scar from June 6, 1996, when she said an unknown intruder attacked her and her two sons as they slept in the living room of the family’s Rowlett home. Routier’s attorney, Stephen Cooper of Dallas, said prosecutors told the jury that her injury was “superficial,” twisting doctors’ meaning that the injury did not kill her.

 

 

 

 

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Category: Justice for All