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"If it matches, it matches," Rosenberg says. "You don't get one out of 12 or one out of 25. You get 25 out of 25. It just doesn't make sense."
During the capital murder trial, the gun was the state's strongest evidence. Without the gun, Rosenberg says, there is no solid evidence against Bernal. Rosenberg says that the state's eyewitness testimony was seriously flawed. Of four witnesses, two were teens in the backseat of the Buick who testified that they were high on paint fumes and not entirely awake when the shooting occurred. The other two witnesses, Dilley's friends Matt Iwama and Richard Mitschke, testified that they had their backs turned at the time of the murder because they were running away. They admitted in court that they didn't see Bernal fire the gun.
"One of the prosecutors said, 'Even if you throw out the testimony of Matt and Richard, we still have the gun. We know the gun matches. And that's all we really need,' " Rosenberg says. "Well, the gun doesn't really match. So what evidence do we even have?"
The state took three years to file a response. Assistant District Attorney John Metzger, who authored the state's answer, says Rosenberg is attempting to retry the case. "He's arguing facts," Metzger says. These facts were already brought before a jury, who made a decision that was upheld by the Court of Criminal Appeals, Metzger says. The objections Rosenberg is making, he says, should have been made during trial.
Rosenberg insists he isn't trying to retry the case. He says he simply wants to discover what happened.
Mary Ellen Dilley told the Pressthat her son excelled in football and soccer and was voted "Most Athletic" his senior year, before she broke down into tears and said she was unable to talk about him further.
Dilley was one of 52 seniors in the 1993 graduating class at Lutheran High North, a private parochial school on 34th Street in the Heights. "He was a fine, fine athlete," says Principal Bruce Shaller. "A great young man."
His senior year, Dilley, No. 80, led the Lutheran High North Lions football team onto the field and tore through the spirit sign at the homecoming game. Football coach and athletics director Dana Gerard says that later that season Dilley made a "really amazing, spectacular jump" to share a pass that won the game against archrival Mt. Carmel High School and led the team to the state play-offs.
Dilley was co-captain of the baseball team and played both basketball and soccer. As the left forward, Dilley broke the school's scoring record, says soccer coach Detlef Kemnitz.
There are no disciplinary reports on Dilley's record, and his transcript shows he took upper-level courses such as precalculus, physics and computer programming. Lynn Eickenmeyer, the school's academic dean, says Dilley was an "above average" student who didn't make many As "but he caught on easily."
Dilley earned a scholarship to Concordia University in Seward, Nebraska. But he turned it down and attended Stephen F. Austin for a year. His father, Buddy Herbert Dilley, told the Houston Chronicle that Dilley planned to transfer to a Houston community college his sophomore year.
"Whenever I picture Lee, I picture him laughing," Gerard says. "He's the kind of kid we miss."
Bernal says he read fantasy books about dragons and knights and spent his evenings playing Street Fighter and Mortal Kombat video games. The grades on his report cards from Eisenhower High School hovered around 80, except for a 92 in history and a 55 in typing. Disciplinary reports show minor infractions such as talking in class, refusing to remove an earring and not dressing out for gym.
After he was expelled for excessive tardiness, Bernal enrolled in a word-processing, spreadsheet-operator program at The Polytechnic Institute. He applied for a student loan but was denied, so he couldn't afford school. Since he didn't have a car (or even a driver's license), he couldn't get to school either. Plus, he says, he enrolled in school to be with his girlfriend and he didn't want to be in class with her after she had an abortion without telling him and they broke up.
When he was 16, Bernal started sneaking out of the house. His stepfather tried to keep a tighter rein on him than the teen liked. Bernal hung out with a gang called the Northwest Mafia, who dubbed him Big Puppet. Once a chubby kid, he grew into a muscular man, nearly six feet tall, who didn't talk much. His size, he says, intimidated people.
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