An Absolute Maybe

Rosenberg argues that fleeing is suspicious behavior. But Elliott says Reynoso left the country because he was afraid Bernal would kill him.

Elliott says he doesn't believe Bernal's story because he doesn't think the boys have the collective brain power to frame Bernal. "These people are not capable of coordinating that depth of a lie and perpetuating it," Elliott says. "You're asking for a complete, instant conspiracy that these people are not capable of carrying out. They're not smart enough."

Plus, Elliott says, when he arrested Bernal, Bernal "made an admission" to him about the shooting. Since Bernal asked for an attorney, Elliott couldn't officially take a statement, and this alleged admission could not be used in court.

"You're asking me to ignore that, because he's lying now," Elliott says. "And I can't personally do that."

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At a March hearing before State District Judge Mike Anderson, Rosenberg said that Reynoso matched the original witness description of a short, thin Hispanic with a fade and a round face -- and he looked far more like the composite sketch than Bernal, who is tall, beefy and bald. But Bernal was older than Reynoso -- and Rosenberg says he is "entirely convinced" that since Reynoso was too young to be eligible for the death penalty, Bernal was "a more attractive defendant."

Rosenberg requested an evidentiary hearing and argued that there was "no real reason" to believe that Bernal was the murderer. He presented an affidavit from Monica Sauseda, who has a child with Bernal's younger brother. In the affidavit, Sauseda says Sutton came to her job at Party City on FM 1960 and "repeatedly threatened" to take her baby if she did not testify that Bernal had been the shooter on the night of a drive-by and had purposefully shot into a dark home. On the stand, Sauseda was asked if she was threatened in any way. She said yes.

Sutton says he was "shocked and upset" during the trial when she made that statement. "I would never threaten and did not threaten her with anything like that," Sutton says. "I wouldn't do it and didn't do it."

In the state's official response, prosecutors said Sauseda testified that she was telling the truth as Sutton had instructed her to. And when cross-examined, she said she was "not sure if it was a threat" when she said Sutton told her he would take her baby.

"What else could it be but a threat?" Rosenberg asks.

Rosenberg says that the other hole in the state's case is the gun. Baldwin testified that he fired the 11 bullets the police recovered from Bernal's bedroom and they didn't match. He then used an additional 14 bullets of his own before obtaining a match.

Midway through the process, Baldwin applied solvent to the barrel to remove heavy lead deposits. Rosenberg presented an affidavit from Fort Worth forensics ballistics consultant Richard Ernest that says that it is "astronomically improbable, if not impossible" for the bullet to match after the weapon was cleaned.

"I don't believe there was ever a bullet that matched," Rosenberg says.

Cleaning the weapon alters the pistol's signature, Ernest says, since the marks left on the bullet are caused by the lead deposits in the barrel. "Your best chance of making a match is actually on the first two or three rounds," Ernest says. "If you should clean the weapon, then you're actually removing the material that marked the original evidence bullet."

Ernest questions why it took 25 tries to match a bullet with a Smith & Wesson model 66. Unlike cheap Saturday-night specials, the Smith & Wesson, Ernest says, is a very reproducible weapon that typically makes exactly the same marks on every bullet fired.

In fact, Rosenberg and Bernal now contend that the .357 Bernal brought home was not the gun used in the shooting and that there was another gun in the car. It is Rosenberg's theory that the murder weapon was really the .38-caliber gun that Reynoso admitted owning during cross-examination. This gun would have been an even better fit for the .38-caliber bullets that killed Dilley, Rosenberg says.

The state doesn't dispute that the Smith & Wesson was fired 25 times before a match was made. But a match wasmade, says Metzger, the assistant district attorney who authored the state's response to the writ. Ballistics examiner Baldwin declined the Press's request for an interview, but in an affidavit, he said he performed three test fires, then fired the weapon using each of the gun's six cylinder positions. He wrote that removing the lead fouling didn't alter the "individual imperfections in the rifling which produce the unique, striated pattern which is the basis for firearm identification."

"He's the expert," Metzger says.

Metzger wrote that Ernest is not qualified to judge Baldwin's testing methods and that his findings were "speculative and conclusory."

Pedro Sanchez, the driver of the car, was charged with capital murder. He pleaded guilty to the lesser, included charge of aggravated robbery and is serving a 35-year sentence in the Estelle Unit, 15 miles north of Huntsville. The other three teens in the car were not charged.

The state did not call Sanchez to testify at Bernal's trial. "They didn't need him," Metzger says, because of all the other witnesses. Rosenberg alleges that the state did not disclose leniency agreements granting the guys in the backseat immunity and special treatment in exchange for their testimony. "In '95 they were putting gang members away right and left," Rosenberg says. "For these three boys to walk out of the courtroom with no charges is just weird. The D.A.'s office doesn't work that way here. They're going to convict as many people as they possibly can."