An Absolute Maybe

There's little doubt that Johnnie Bernal was not a really good guy. The question remains, though, how bad was he?

Lee Dilley spent an hour shooting pool and drinking beer at a Berry Road icehouse with a couple of guys he'd known since kindergarten. It was a mid-August Friday evening the summer after Dilley's freshman year at Stephen F. Austin University, and they were hanging out at Nick's Drive Inn in northwest Houston. After the midnight closing time, Dilley ran into the owner's daughter, Debra Nicholson -- the girl he had taken to the senior prom -- in the parking lot.

The four stood around chatting for about ten minutes before a white-topped dark blue Buick Regal pulled up.

A Hispanic teen pointed a pistol out the window and demanded their money. Dilley's prom date ran toward her house, located behind the bar, and jumped over the fence.

Attorney Rosenberg says Bernal did not receive a fair trial.
Monica Fuentes
Attorney Rosenberg says Bernal did not receive a fair trial.
Dilley led Lutheran High North's football and soccer teams to the playoffs.
Dilley led Lutheran High North's football and soccer teams to the playoffs.

The gunman said that the next person who ran would die. All three boys started running, and four shots rang out. One hit Dilley's left earlobe, another went into his back, punctured his lung and pierced his heart. He staggered, struck his head on a picnic bench and fell to the ground. The 19-year-old was dead on the spot.

Eleven days later, the Houston Police Department received an anonymous Crime Stoppers tip that led them to Johnnie Bernal. The police knew the 18-year-old as a suspect in an aggravated robbery in Houston that May; in June, he had been charged with robbery and serious bodily injury at a Montgomery County Stop N Go, says HPD Homicide investigator C.E. Elliott. Bernal was caught on the store's security camera striking the clerk with a 12-pack of beer.

Wearing a black police raid jacket, Sergeant Elliott kicked in Bernal's bedroom door at 6 a.m. on Wednesday, August 31, 1994. Bernal was sleeping face-down on the floor -- the detective says he recognized him from his rap sheet photos. Elliott says when he yelled, "Police," Bernal reached toward the nightstand drawer. Inside were a .357 Smith & Wesson and 11 .38-caliber bullets wrapped in a rag.

During Bernal's capital murder trial, on April 10, 1995, prosecutor Johnny Sutton said HPD ballistics experts made an "absolutely positive match" with the gun found in Bernal's room and the bullet found in Dilley's body. Sutton says it was a rock-solid case. "This defendant's guilt is overwhelming," says Sutton, now U.S. attorney for the Western District of Texas. "We had fantastic evidence."

Bernal was convicted of capital murder and sentenced to death by lethal injection.

"Johnnie Bernal was a vicious, violent guy," Sutton says. "He shot at other people. He should die."

The Houston Chronicle reported that at the end of the trial, visiting State District Judge Bob Burdette allowed Dilley's parents to address Bernal. His mother, Mary Ellen Dilley, said she hoped Bernal would suffer for the rest of his life. And she hoped his life would be short.

Both the state and Bernal's attorney agree on the same basic version of the story: Dilley and his friends were hanging out in the icehouse parking lot when a car filled with five Hispanic gang members drove up; someone pointed a gun out the window, attempted to rob the group and murdered Dilley.

There is a discrepancy, however, as to who conducted the robbery, who pulled the trigger and what gun was used in the shooting. Bernal says he didn't do it. His attorney alleges that prosecutors coerced testimony, falsified evidence and convicted the wrong man. Bernal and his attorney say police should have taken a closer look at another passenger in that car.

Houston attorney Robert M. Rosenberg has handled death row cases for 14 years. A civil rights attorney, he has represented several clients on behalf of the American Civil Liberties Union, such as the nationally reported case of Rodney Hulin, a 17-year-old who hung himself after prison officials ignored his complaints about repeated rapes, which resulted in then-governor George W. Bush cutting a $215,000 settlement check from his office's discretionary funds.

Rosenberg wears Hawaiian shirts, smokes light menthol cigarettes and claims to be the man Dilbert's boss was modeled after. He speaks in a deep deadpan voice and has spent three years telling Houston Press reporters that they need to investigate Bernal's case. He has three clients on death row. Although he acknowledges one of them killed a man, Rosenberg says the gun went off accidentally and technically his client might not belong on death row. The second guy, Rosenberg doesn't know if he committed the crime or not. Bernal's case, he says, is different.

"Johnnie is actually innocent," Rosenberg says.

Rosenberg says the state rushed to catch and convict Dilley's killer, and in its haste, he says, it put the wrong man on death row.

In a searing application for postconviction writ of habeas corpus, Rosenberg declares that Bernal did not receive a fair trial and that the state violated both his Sixth and 14th Amendment rights. Rosenberg writes that the state "ignored facts inconsistent with the premature conclusion that he had committed the crime." Rosenberg also accuses prosecutor Sutton of telling a 15-year-old girl that he would contact Children's Protective Services and take her baby if she didn't testify against Bernal.

Rosenberg alleges that the gun recovered in Bernal's bedroom was not the murder weapon, especially since HPD ballistics examiner Robert Baldwin testified that he had to fire it 25 times before being able to match the bullet found in Dilley's body. Since Baldwin cleaned the gun midway through testing, Rosenberg says, the evidence was altered and he doesn't believe a true match was made.

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