Free Darlie

By Mike Powers

If you’ve spent any time in jail at all and have any social skills whatsoever, it’s likely that you have heard it all. Moreover, there’s an old prison adage that is remarkably true, even if quite cynical, “Believe nothing that you hear and half of what you see.” This is especially true for us writ-writers. Hearing the woeful “somebody done somebody wrong” songs day after day can get you jaded in a hurry even if the tales are heart-breaking. But every now and again, along comes a story of injustice so amazing that the hardest heart wants to weep.

Most of the men who have sat across my “desk” in the law library - actually a six-foot-long folding table - are in prison dead to right. I’m reminded of one fellow who asked me if I would come down and hear what he had to say. He felt like the time he’d received for his conviction was too high, and he wanted to see if I might be able to get him a rehearing on sentencing or a time reduction from the governor.

I took my notepad and paper and listened in fascination as he spilled his guts. His girlfriend, he thought, was cheating on him. To catch her “in the act”, he decided to hide in her closet and see who she brought in to her bedroom. Turns out, she didn’t bring anybody at all, which was an unfortunate turn of events for her. If she would have, she might be alive today. While undressing, she used her cellphone to call the man she was cheating with on the side. Aha! She WAS being unfaithful. My “client” waited until she hung up the phone, and went out to “talk to her”. Of course, she was livid that he would hide in her closet and spy on her, and things quickly deteriorated. He resorted to physical violence, and sometime during the tussle, retrieved a belt from the closet and choked her to death. Panicked and struck by the enormity of what he had done, he left the scene of the crime. It wouldn’t be the last time.

A half hour ticked away as he drove around considering what he had done. Thinking of the events over and over, he soon concluded that he had probably left some evidence at the crime scene, and that wouldn’t do, so he went back. The first time, he tried to wipe down any place his fingerprints would be and get rid of the belt. Did you know that a garbage disposal won’t handle a leather belt? Neither did he. He left again.

Coming back a second time, he decided to try and position the body as if his dead girlfriend was engaging in autoerotica and asphyxiated. This accomplished, he left again.

While driving away, he realized that there was a good chance that during the fight, she had probably scratched him, thus leaving his DNA under her fingernails. Going back again, he tried several methods of removing the DNA before deciding on the ultimate alternative. He cut off her hands with a kitchen knife. Having created more evidence by using a kitchen knife. He now had to get rid of that, too. He continued for some time trying to remove all clues of who had done the nefarious deed. Thankfully, it didn’t work.

I hope you can appreciate how I was feeling as I heard this story. I was appalled, yet fascinated. It was like reliving the movie classic, “Fargo”. Would I burst out laughing or begin to wretch as the next sentence came from his mouth?

In Texas, a jury can give a murderer a lighter sentence if they find that the crime was committed in the heat of “sudden passion”. To secure such a finding, the jury must agree unanamously during sentencing that the defendant acted in a fit of passion, with no premeditation or malice of forethought. My client had tried arguing just such a defense, but the whole hiding-in-the-closet and staging-the-scene-of-the-crime-over-the-course-of-three-return-visits thing didn’t do him any favors. Not one juror voted for sudden passion. Something must have clicked for them, however. When I could overcome my speechlessness I asked him, “How much time did they give you?” He replied, “Thirty-five years,“ as if it was a death sentence.

I was stunned. This man would have been a prime candidate for OL’Sparky not too long ago, and he was seeking a sentence reduction from 35 years when he murdered a girl in cold blood and went back to cut her hands off the body. He was a very large man, so I tried to break it to him gently. “Frankly, sir, I think you are pretty lucky that the jury let you live, much less get 35 years. After all,” I wanted to finish on a positive note, “you’ll be eligible for parole in 17 and a half.” That’s more than fair, I’d say.

It would be nice if all cases were so cut and dried. Unable to sleep the other night, I was watching TV and came across the story of Darlie Routier. There have been so many exonerations now in Texas, it would be hard to say that there is only one “poster child” for the abolition of the death penalty, but Darlie would be a great candidate for the cause.

Darlie has spent 21 years on death row at the Mountain View Unit in Gatesville. She was sentenced to die by a jury of her peers for the unspeakable crime of murdering her own two, little sons with a knife from the family’s kitchen. In an attempt to cover up the crime, prosecutors said, she took the knife and slit her own throat just enough to make it “look like” the imaginary perpetrator had tried to kill her, too. When the bodies were discovered, she was rushed to the hospital, alive, but life dramatically altered forever.

Police in Rowlett, Texas, where the woman, lived in a nicely appointed home in suburbia with her husband and three sons couldn’t possibly fathom that an outsider could have done such a terrible thing to this poor family, so they quickly focused on the family and Darlie became their prime suspect. In a textbook case of not trusting your soul to Texas justice, she was pushed right along through the system until the verdict finally came in - death by lethal injection. The innuendo, misogyny and faulty evidence that brought the jury to this verdict created a tragedy where a loving mother of three was torn apart from her one remaining son, and hatefully accused of killing her two younger ones. Her lawyer, much to his credit, fought for her tooth and nail, but even on appeal, he couldn’t overcome the illusion we keep down here in the Lone Star State that prosecutors just want justice and juries never err. But on their way to this verdict, some key pieces of evidence were conveniently ignored or shunted aside. These should prove to be the salvation of Darlie's life.

I say “should”, because the legal team that took Darlie’s case in order to fight for her life has presented at least two crucial pieces of evidence that have remained untested in some evidence locker somewhere for the last NINE YEARS waiting to be processed. One was a bloody sock that once belonged to Darlie’s living little boy. It wasn’t found in the house next to his dead body, nor was it found just outside the house. Instead, it was discovered several houses away in an alley behind the neighborhood. It’s resting place just inches away from the storm drain led these new investigators for the defense to surmise that the true culprit of this family’s murder tried to get rid of the sock by throwing it in the storm drain, but missed it and took off unawares. The prosecutor’s case can’t seem to account for how this sock managed to travel down the alley by itself while the supposed murderer was slitting her own throat with a kitchen knife.

Even more damaging to the prosecution is a fingerprint that was found at the scene of the murders. It is a partial print. The D.A. dealt with it at trial by bringing in an expert who argued, incorrectly it turns out, that because the print was small that A) it must be a child’s print, and B) it couldn’t be used in a points-comparison test. My friends, please, PLEASE, don’t tell me that this mother of two precious little boys that were brutally murdered with a knife is sitting on death row right now, accused of this terrible crime, because these people don’t have enough time or resources to run a single fingerprint. And how can they possibly justify NOT testing this print after nine years when a woman’s freedom and very life are at stake?

Ladies and gentleman of the jury, the evidence has been presented, and the verdict is in. The Texas justice system is chronically and terminally broken. This case could not have been prevented by making a new law. The law is already clear. The District Attorney has a legal and moral responsibility to seek out the TRUTH, not a conviction. The only way to fix this through a change in legislation is to make a new law that requires the prosecutor and the District Attorney in any case where evidence is available to exonerate the convicted and ignored to be personally responsible for the sentence. In other words, if Darlie is going to be executed based on misleading evidence, and the prosecutor knows that there is evidence that might free her, yet does nothing with it, that prosecutor ought to take her place on death row. Too radical, you say? Are you kidding me? At least whoever killed the little kids didn’t keep them locked up on death row for over 21 years before putting them out of their misery. These officers of the court are directly responsible for: tearing a family apart through lack of investigation and presupposition, keeping an innocent woman confined in a cell for at least 23 hours a day the last 21 years of her life, seeking to kill her by injection at the earliest opportunity, and, worst of all, letting a murderer of two little kids and an attempted murderer of their poor mother keep walking the streets a free man. Guilty. Guilty! GUILTY!

On the other hand, just imagine the benefits such a law would bring with it. First of all, no one would want to bring a death penalty case unless it was absolutely certain that the accused was guilty of the crime. In other words, it would be like you are innocent until proven guilty in a court of law. Moreover, the party in any criminal prosecution that has the vast weight of resources on its side - the government as a prosecutor - would desire, not a conviction, but a thorough collection and evaluation of evidence that would yield the truth of the matter. In other words, it would hold the D.A. strictly accountable for seeking the truth, just like the law says he or she should. You ask, "Who in their right mind would want to take this job if their life was on the line?” Answer: Someone with enough courage and integrity to ignore the lynch mob and seek the truth of what happened at the scene of a crime. You ask, ”Yes, but even the death penalty? You would kill these prosecutors for a wayward verdict?” Answer: If we can’t be absolutely, 100% certain that the death penalty is being applied ONLY to those who are unquestionably guilty of the crime, we shouldn’t even have that sentence on the table. I’m not saying eradicate it from the books. I believe that there are crimes that merit the death penalty. But since it is, in every way possible, the ultimate penalty, it should be applied with the gravity and deliberation that ending a human life deserves, certainly not with the same wanton disregard that the murderer showed in committing the crime in the first place. If it costs too much, if the consequences to the responsible party are too great, then it shouldn’t be used anyway. I want to end this article with a plea. To those empowered by law and justice to get the evidence in Ms. Routier’s case tested, do whatever you have to do to make it happen. Don’t let these life-saving articles spend one more day in the closet.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez