Tijdens één van mijn reizen naar Texas ben ik in de rechtbank het hele dossier van Daryls rechtszaak gaan kopiëren. Meer dan 2000 bladzijden nam ik mee naar België om me te verdiepen in zijn zaak. Daryl had zelf nooit een kopie ontvangen van zijn eigen dossier, hoewel dit zijn recht was. Ik kopieerde de hele stapel en stuurde hem zijn dossier in kleine pakketjes op. Wat je hieronder kan lezen is een weerslag van wat er is gebeurd, waarvoor Daryl veroordeeld is en welke elementen in zijn dossier mij hebben overtuigd dat hij wel degelijk onschuldig is. Het document is opgesteld in het Engels. Voor een Nederlandse versie van de feiten is het nog even wachten.

I. Summary of the facts

On December 13, 1990, around 11.15 pm, Mr. And Ms. Fitgerald were found dead in their home. Mr. Fitzgerald was found laying on the ground; Ms. Fitgerald was sitting in a recliner. Both had shotwounds in the head and were killed between 10 and 11 pm. The victim’s son, James Junior, had been shot too, but escaped from the house before his parents got killed and called the police. He recovered from his injuries.

Mack Henry Terrell was arrested first on December 15. He showed the police where to find the murder weapons and supposedly implicated Daryl who was arrested later that day.

Daryl states the following occurred on the night of December 13, 1990:

Terrell knocked at my door between 10.30 and 10.45 pm asking for a place to stay. He had stayed at my place the night before as well so I told him he could stay. The last time I saw Terrell was around 6 pm that same evening. Terrell told me he had just killed two people in a robbery over money and drugs and he was concerned about the victim’s son whom he had shot as well, but managed to get away. He stated that a crack head woman told him that during intercourse with Mr. Fitzgerald, he told her that he held large amounts of drugs for a drugdealer. This woman asked Terrell to go with her to rob Mr. Fitzgerald, but Terrell refused. Instead he went with a street associate he ran into whose name was Mark. After dividing the money and dope, Terrell came straight to my house asking for a place to stay. I found it hard to believe as he didn’t had any money or dope on him. One hour later Terrell and I went to the crime scene. As we walked down Crestridge Street, I saw Rayfield Ben sitting in a driveway. From the corner of Southford Street, I saw a lot of activity was going on in and around the house of the Fitzgeralds. There were police cars and a white investigation van.

Confirming all that Terrell had told me as we walked back to my home, we walked past a woman on the opposite side of the street. Virginia Robertson and her son were walking the dog who was very spirited and playful. The dog carelessly ran near us. Ms. Robertson said ‘don’t worry, he won’t bite’. Terrell, frightened by the dog, pulled out his pistol, stating angrily ‘you damn right he won’t fuck with me’. When we turned around the corner, out of Ms. Robertson view, Terrell stopped, going to the side of the road and began searching for something hidden inside the grass. He removed a large bag. Back at my home, I discovered the bag contained drugs, money and a .22-caliber weapon. I made it clear to Terrell that if he wanted to stay for the night he should get rid of the weapons. Terrell agreed to sell them and asked me if I knew someone who would be interested.

We went out to sell the pistols. Terrell sold the .22-caliber to two guys, sitting in a truck that he knew. While he went in the house, I remained outside. Later he sold the .32 in front of a drug house.

When Terrell was arrested, he confessed that he had loaned fifty dollars to Fitzgerald to pay for a prostitute, claiming he met this woman along with Fitzgerald at Daryl’s house. Terrell stated that Fitzgerald promised to return his money once he got home. Terrell stated he walked Fitgerald home around 10 pm, waited outside the house 20 minutes for Fitzgerald to return with his money, but he never did. So he knocked on the door and Terrell was told by the son that his father wasn’t home. Then Terrell claimed he returned to Daryl’s house and that it was Daryl who encouraged him to go back to get his money.

Briefly, what appears to have happened at the Fitzgeralds: Terrell knocked at the door around 10.20 pm. The son opened the door. There was a conversation and Terrell went away again. After some time he returned with another guy, knocked at the door again, showed his pistol at the son and asked to see his dad. They went into the house. James called his father who was sleeping. His mother appeared as well. She had a gun. In one way or another Terrell managed to get the gun away from her. So he had two guns at that time. The five of them went to the dining/living room and sat around the table to discuss the money issue. At some time James Junior got up to get money in the room of his parents. The co-defendant stayed in the room with the parents. In some way, in the bedroom a struggle started between James Junior and Terrell. Junior got shot and tried ot get out of the house. Terrell chased him throught the hall and the doorway while shooting at him. Junior managed to get away as it was very dark outside, in front of the house. He didn’t move and Terrell couldn’t see him anymore. So Terrell went back in the house and Junior started to run to the end of the street to get help. The police found the Fitzgeralds killed in the living room and the house had been searched. The offenders were obviously looking for something.

II. Guilt/Innocence Phase

· Daryls conviction is based solely up on the testimony of the co-defendant Mack Terrell and of the victim’s son, who wasn’t an eyewitness to the murder of his parents. There is no physical evidence that places Daryl at the crime scene.

· The testimony of both James Fitzgerald Junior and Mack Terrell changed several times.

· Mack Terrell withdrew everything from his written statement made to the police when he first witnessed at trial, saying that it was all a lie. This was crucial for the prosecutor as his initial statement didn’t match with that of James Junior. Mack stated initially that while he was chasing James Junior and shooting at him in the hall and through the doorway he heard 6 or 7 shots coming from the living room. He changed this at trial saying he heard these shots while he was going back in the house. But this was not enough for the prosecutor as she wanted Terrell to testify that he had actualy saw Daryl shoot the Fitzgeralds. So Terrell changed this again at trial. Devein Keith Stephens, who was waiting in court in the holdover cell to go to trial himself, testified before the jury that he had heard a conversation in the holdover cell between Mack and prosecutor Huffman. He heard Huffman telling Mack ‘that he had to say that he had seen Daryl shoot the Fitzgeralds; otherwise he wouldn’t get his 50 years but death instead’. He also saw her illustrating to Mack how Ms. Fitzgerald was moving with her arm in the act of getting shot. Mr. Stephens reported what he had heard and seen to someone from the court.

· Mack Terrell heard parts of James Junior’s testimony at trial prior to his testimony. The defense asked him:

Q: Do you remember hearing James Fitzgerald Junior’s testimony in part while you were in the holdover cell?

A: Some parts

Q: And that was prior to you giving your testimony in this case, is that right?

A: That’s correct.

The defense asked the judge to strike the testimony of Terrell as the rule had been invoked but the judge denied it.

· Mack Henry Terrell got 50 years and walked free in October 2005.

· James Junior changed his version 5 times. Even what he testified to before the judge at the identification hearing and at trial differ in very crucial details. Junior testified at the identification hearing that he had seen Terrell going back into the house and that it took at least 30 seconds before he heard the shots while he was runing down the street, meaning that there was enough time for Terrell to take the .22-caliber that he had left with his co-defendant and shoot the Fitzgeralds himself. The prosecutor didn’t want this. 30 seconds was too much as she wanted Terrell to testify he saw Daryl kill the Fitzgeralds. So Junior’s testimony needed to be changed. And so at trial, one week after he had testified before the same judge that it was at least 30 seconds, he refused to answer the defense question to estimate the time between seeing Terrell going back in the house and the shots he heard. The defense asked him at trial:

Q: And you also discussed this (refering to the length of time) with Ms. Huffman, is that correct?

A: There’s nothing wrong with talking to the prosecutor? I talk to her every day.

· James Junior added more details for the first time at trial. Initially he testified that Terrell’s co-defendant during the whole time hadn’t said anything except, ‘nobody is going to get hurt, my cousin here just wants his money back’. Terrell did all the talking and was carrying his gun and the gun he took from Ms. Fitzgerald. But than at trial he testified that Terrell gave the gun he had taken from Ms. Fitzgerald to his co-defendant and that he loaded it and said ‘someone has to do something’ while ‘he had this look at his face’ and pointed it at Mr. Fitzgerald. The defense asked him at trial:

Q: Last week you did not testify that anybody touched your dad or that anybody pionted the gun at your dad other than Mack Terrell, is that correct?

A: Well, I didn’t specify that…

· These are only a few examples of how the truth has been twisted many times.

· James Fitzgerald Junior was convicted in August 1989 of possession of cocaine and placed on 10 years probation. He had enough reason to work with the prosecutor as the police initially thought he had something to do with the death of his parents and as Daryl had testified that Mack had stolen cocaine from the Fitzgeralds house.

· The police drawing of Mack Terrell made with the help of James Junior seemed almost like a picture of Mack. The description he gave of the co-defendant was much more vague.

· The police records show that James Junior told the police that his family told him that Daryl Wheatfall killed his parents. At trial he testified that his family had never told him anything.

· Vernon Hines testified at trial that Mack sold him the .22-caliber pistol and that Mack also had a .32-caliber pistol in hands. He testified that Daryl stayed outside the house the whole time and didn’t say anything. This matches with Daryl’s story.

· Denise Mills testified she bought the .32-caliber pistol outside, at the corner. But at trial she changes her testimony and said she bought it inside the house and that some guy named Joseph McGowen was present as well. McGowen than testified he heard Daryl say, ‘I just popped a couple of people’. Denise Mills was in Harris County Jail and McGowen was on probation for aggravated robbery. During cross-examination of Denise by the defense, she failed in testifying to the same story as McGowen and it became clear that both stories didn’t match anymore.

· The defense called Kenneth Wayne Jenkins. He was in jail waiting for his murder trial. He testified he heard Terrell bragging about the murder: ‘he said that some guy owed him some money and that he and a guy named Mark or Marcus went to the house and Mack said he had shot a couple of people’. He also said that Terrell pointed Daryl out to him in the rec yard saying that he had run to his house after the murders. He testified that he had been in jail waiting for his trial for 2.5 years and that he never had said anything about this to Daryl. He said; ‘it was only 7 days ago when I saw Daryl crying in his cell that I told him what Terrell had told me once’.

Following witnesses were never heard by the jury:

· The defense called prosecutor Joan Huffman as a witness. The jury was removed from the court. The defense explained that they wanted the jury to know that the DA’s office had information there was someone else who looked like the composite and that they had a name (Michael Radford) and an address. The defense wanted the jury to know this. But Huffman argued that it was inappropriate for her to take the witness stand and so the court decided to go on the record but outside the present of the jury. It appeared that the DA’s office never had investigated this information any further, nor was a picture of him put together with Daryl’s in a photospread. The jury never knew this.

· Anita Martins, who lived at 5867 Southford Street, told the police she had seen Mr.Fitzgerald together with Terrell walking towards his house around 10 pm. Ms. Martins was never called to testify. If she had testified it would prove that there was no way that Terrell could have waited outside the Fitzgerald’s house for 20 minutes, knock at the door to ask if Junior’s father was home, than return to Daryl’s house (which takes 15 minutes), go back to the Fitzgerald’s house and stay there for at least 30 minutes (according to James Junior testimony) and stay another 10 minutes after James Junior got away to rob the place without running into the police who arrived around 11.15 pm. She was never called to testify. The jury didn’t know about this.

· Tammy Watson also lived at Southford Street (5823). She told the police she heard ten shots. If she had testified, she could have given a clear picture on how fast these shots came and correct James Junior and Terrell’s testimonies. She was never called to witness.

· When Terrell and Daryl went back to the crime scene at around 11:45 pm, they saw Rayfield Ben, sitting in a driveway on the corner of Crestridge Street and Southington Street. He could have testified seeing Terrell and Daryl only one hour after the murders took place.

· Virginia Watson, who lived at 6702 Crestridge Street, told the police that on the night of the murders, between 11.30 and 12 pm, she had seen two men, Terrell and Daryl, when she was walking her dog together with her teenage son. She told the police that Terrell took out his gun when the dog was appoaching them. If she would have been allowed to testify it would have shown it was more than one hour later after the murders that she had seen both men.

· Daryl testified during the punishment phase that there was a girl with him named Sheree Clark when Terrell arrived at his house around 10.45pm. This girl could have provided an alibi for Daryl. She never testified.

· Daryl’s neighbor, Ms. Elenora Jones, an eldery lady who was a reputation witness for Daryl during the punishment phase, told investigator Jackson that she had seen Daryl at home around 10 pm. She could have provided an alibi for Daryl but she wasn’t heard during the innocent/guilt phase of the trial.

· Ronald Walker, who lived in the neighbourhood and knew both Daryl and Terrell told investigator Jackson that he knew Terrell as a man who’s carrying a gun and that he knew Daryl for a long time and that he didn’t believe Daryl would do what he was charged with. He told the investigator he knew a guy named Mark Carter who looked a lot like Daryl and lived in the neighbourhood. This matches with what Daryl stated Terrell told him (a guy named Mark)

· Daryl himself didn’t testifiy during the innocent/guilt phase of the trial, so the jury never heard his version of what happened any sooner than during punishment phase.

When I was in Houston in October 2005 I was able to get a hold of the cell phone number of James Fitzgerald Junior (281-757-3331), the victim’s son through Ronald Walker with whom I became friends with during the last years. Ronald called him for me and explained him honestly who I was, that I was a friend of Daryl Wheatfall and that I actually believed he was innocent. He told him I’d like to talk with him to find out what really happened on December 13, 1989. Instead of saying there was nothing more to tell about it, he asked Ronald to give him 15 minutes to think about it. He called Ronald back after 15 minutes and said he was sorry but that he didn’t want to meet me because he wanted the past to rest. To me this proved that he had something to say, otherwise he wouldn’t have asked 15 minutes to think about it.

III. Punishment Phase

· During punishment phase the DA discussed in length every crime Daryl had ever been convicted of since he was a teenager ‘till the moment of trial by calling police officers who investigated these crimes and/or arrested him. One of the exhibits given to the jury before deliberation was a summary of all these crimes. Along with this, several guards from the Harris County Jail witnessed against Daryl about his behaviour in prison. A video was shown to the jury that showed how a five-man team geared up to respond to Daryl’s violent behaviour.

· Besides this, the DA introduced a new offense - the murder of two people in a crack house on December 10, 1990, a few days prior to the Fitgeralds’ death - trying to convince the jury Daryl had done these murders. They showed pictures of the crime scene and the victims to the jury. The three eyewitnesses to this crime, who failed twice after the murder took place to identify Daryl as the offender in a photospread and who actually gave other names to the police of who committed these murders, suddenly one year later all testified at Daryl’s trial to recognize him as the shooter. All three eyewitnesses were either on parole or escaped from the state under a false name. This was an unadjudicated offense. Daryl never got charged nor convicted for these murders.

· The defense only called a few character witnesses: the guard who escorted Daryl from prison to the court and back every day during trial, both his parents and Daryl himself to witness during punishment phase.

· On October 1996, five years after Daryls conviction, and while not being his laywer anymore, Donald Davis, Daryl’s trial lawyer wrote an affidavit saying:

“…I was appointed first chair and it was my obligation to decide strategy and tactics for the trial. Daryl had a long criminal history, and a long and difficult history of mental instability, substance abuse and emotional disturbance. We had knowledge of and evidence to support an extensive history of psychological problems, but we never had Daryl psychologically evaluated. At the time, I believed that the most fruitful avenue to pursue was to explore the facts we had that made us think that Daryl did not participate at all in the shooting, that he was not there. We had testimony that Daryl did not go with Terrell to the house, and severe doubts about the credibility of the two primary witnesses for the State, Terrell and the Fitgerald’s son, Junior. We pursued that avenue aggressively, but I believe now that I failed Daryl in an important way. In my inexperience (3 capital trials both as DA and defense lawyer) and naivete regarding the importance of psychological evidence for mitigation and punishment, I neglected to conduct an independent evaluation of Daryl. As a result, I had no evidence to offer at the punishment phase regarding his decreased judgement, his long history of emotional and psychological problems that probably developed from his horrible childhood combined with an accident he had as a teenager and long-term drug abuse. We had specific evidence of emotional problems at school, a juvenile psychological evaluation that indicated psychotic tendencies and a sociopathic personality, long-term damaging drug addiction, and a severe head injury when he was approximately 17. That kind of information could have helped a jury to come to a determination that Daryl might have had a lessened moral culpability for his actions, and could have resulted in a decision for for life or a hung jury which would have resulted in a sentence of automatic life. I won’t ever know because I did not explore those possibilities, and I did not present evidence of those circumstances to the jury on Daryl’s behalf. Looking back on this case, I have come to the conclusion that I failed to effectively represent my client during the punishment phase of that trial because I did not give the jury information that might have permitted them to exercise a reasoned moral decision regarding Daryl’s case. If I had the case to try again today, I would do it differently and I would have pursued the psychological evidence further.”

· Although the defense asked during pretrial motions for the jury to be given a special issue question in which they fully could consider mitigating evidence, the judge denied it and instructed the jury the ‘nullification’ option, to answer ‘no’ to one of three special issue questions although they thought the right answer would be ‘yes’, in order to be able to give a life sentence instead of death, based upon mitigating evidence. Daryl witnessed as a child a lot of violence between his parents. Eventually his mother managed to get away from his father, taking the four children with her when Daryl was 6. She was never home as she worked two jobs and tried to get her degree in the mean time. Daryl went to 6 different elementary schools because they were moving all the time. He was placed in special classes for emotionally disturbed children, suffered a lot because other children were laughing ât him as he was a short kid, and started to steal food at a very young age as they were often hungry. He suffered psychological problems and received counselling for it. He seemed to have ADHD and a borderline personality. He started to use drugs at the age of 13. There was a lot of mitigating evidence that could have been taken into consideration.

10-10-2008 om 14:04 geschreven door Marjan  

09-10-2008 om 18:09 geschreven door Marjan