By Camilo Smith
By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
Scheduled to testify, Tracey sat in the hallway fingering the worry stone Dani bought her. Her blood was racing so fast she felt like her veins were constricting. She prayed and prayed and prayed. Tracey worried that she would stumble during her testimony; if she messed up, Kevin could get off. "I wouldn't feel like I could go outside if he was loose," Tracey said. She'd move to Alaska. "I've got on my Jesus dress and my sandals; I'm ready to rock," she said. "Lord be with me."
At 4:25 p.m. Tracey took the stand; on the projector, Wisner laid a picture of Tracey in Paris five years ago, her head thrown back as she stood on the Champs-Elysées. Now Tracey looks down and shuffles when she walks to keep from falling; the confidence and joy have left her eyes.
A half hour into her testimony, just before Tracey reached the point where the boys shot her, the judge dismissed the jury for the evening.
Tracey sat in the witness room Friday morning trying to breathe deeply and reminding herself that she was the victim, not the one on trial. The D.A. said she forgot things said in the last trial. The other attorney had a copy of that testimony, and Tracey was afraid he was going to nail her. "I don't remember yesterday," Tracey said. "I'm not lying, I don't remember."
Her dad stuck his head in the door. "The circus is about to start," he said. "The animals are getting into position."
"Oh, good," Tracey said. "I need to pee."
She squeezed the bloodstone and closed her eyes. Dani, a licensed professional counselor, silently stroked Tracey's thigh. A few minutes later Wisner handed Tracey the pistol she had been shot with and told her they were going to role-play. "You be the gunman, I'll be you." Wisner put the picture of Tracey in Paris on the projector. Beside it he laid pictures of Tracey bloody and bandaged at Ben Taub.
Arnold asked Tracey if she could identify the gunman. When she said no, Arnold moved to dismiss the case since there was no evidence connecting his client. Tracey never saw the gunman's face, and there were no fingerprints on the weapon. But Kevin's prints were found on the car, and there were confessions from Robert Hidalgo and Kevin himself. Arnold's motion was overruled.
Arnold grilled both Smith and Sergeant L.D. Foltz about whether they had employed a "good cop, bad cop" routine to get his client to confess. "I've seen it on television," Foltz said, but he said he had never used it or seen it used at HPD.
Arnold tried to impeach Tracey's testimony because during her first statement she was confused and thought the shooter was a "colored kid." Kevin isn't black. Considering the morphine and the trauma Tracey had been through, Foltz said, her temporary memory loss wasn't unusual.
Kevin's mother, Mayra Guerrero, testified that her son borrowed her van and left the house at 10 p.m. Saturday and didn't come home until 6 a.m. Sunday. She didn't know where he went.
Monday morning Kevin clasped his hands in his lap, looked straight at his lawyer and said that he did not shoot Tracey Deel. Under oath, Kevin said he went to Jack In the Box with a girl named Theresa (who never surfaced to support him) and then stayed at Beatriz Cantu Gonzalez's trailer until about 5:45 a.m. This was the first time Kevin had mentioned an alibi.
Kevin maintained that he was framed. He said Foltz beat him on the head ten or 11 times, burned his arms with electrical wires and told him he'd never see his baby, Brianna, again. "So he could have gotten you to confess to the Oklahoma City bombing or the Jon-Benet Ramsey murder?" Wisner asked. Yes, Kevin said, he would have said anything in order to get home to his child. "Any father would." Kevin said Foltz framed him just to close the case. "He's gotten sick of convicting guilty people, so now he convicts innocent people?" Wisner asked. Yes, Kevin said, the officers gave him a script and he recited it. "Are you really that smart?" Wisner asked.
Wisner played the 19-minute confession tape, stopping to ask Kevin who told him to say what and why. "Have you taken any acting classes?" Wisner asked. "You're doing a fabulous job of acting like someone who shot her." Kevin nodded, saying, "My mom said I should've been in theatrics. This looks like the perfect statement."
But the confession is peppered with details Kevin could not have known unless he had been there. How did he know Tracey drank Bacardi? In court she just said rum and Coke. How did he know she had a Harley Davidson billfold? How did he know the gun was at Robert's house? How did he know that Robert had kept Tracey's credit card but had burned Tracey's driver's license?
"I should have been an actor," Kevin repeated. He said the police told him they had found the gun, the card and a smoky-smelling wallet at Robert's house.