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The three teens in the backseat were witnesses who didn't do anything, not accomplices, Metzger says. And no deals were cut, Sutton says. "Even though those kids were bad kids, there was not any evidence that they encouraged or participated in that capital murder," Sutton says.
Rosenberg says the testimony of Dilley's friends should have been suppressed, because they didn't actually see the shooting. He points out that Matt Iwama, Dilley's college roommate, originally said that he couldn't describe the shooter, and said that he thought the gunman was speaking English but he couldn't understand what was being said. Yet at the trial he positively identified Bernal and clearly remembered exactly what the gunman said.
The state answered that Rosenberg is right, Iwama did testify that he didn't see the shooting. But Metzger wrote that Iwama testified that he got a good look at Bernal when he pointed the gun out the window. "It is logical to assume that the person who aimed the gun was the same person who fired it seconds afterward," Metzger wrote.
Metzger says that if the defense had a problem with witnesses' testimony, the lawyers should have objected during the trial.
But the trial lawyer's failure to make "proper objections" is part of Rosenberg's argument that Bernal's attorneys were ineffective.
In a seven-page affidavit, one of Bernal's trial lawyers, Don Cantrell, wrote that since the state withheld the results of the ballistics test during pretrial discovery, he was "not able to afford Mr. Bernal the effective assistance of counsel he has a right to under the Sixth Amendment."
If the state had informed him of the "unconventional manner in which the gun had been tested," Cantrell said he would have "vigorously pursued" a request for a weapons examiner to "challenge and discredit" Baldwin's testimony that a match was made at all.
Cantrell wrote he did not hire a ballistics expert to verify Baldwin's work because at the time, both he and Bernal believed that the gun found in Bernal's bedroom was the murder weapon. He said that Baldwin's inability to immediately match the weapon actually "bolsters Mr. Bernal's consistent claim that he was not the shooter." Had Bernal been the shooter, Cantrell said, "he would have known that the weapon found at his house was not the murder weapon and could have advised us to have it examined by an independent weapons examiner knowing that it would have made a significant hole in the state's case against him."
After reviewing Ernest's affidavit, Cantrell wrote that he should have challenged the veracity of Baldwin's test results and pursued a different line of defense. "We could have bolstered Mr. Bernal's testimony that he was not the shooter, but that Mr. Reynoso was using the .38 caliber pistol he testified he owned," Cantrell's affidavit stated. "The great weight of evidence would have clearly pointed to Mr. Reynoso as the shooter."
Because of Bernal's prior criminal record, and Cantrell's own doubts about Bernal's "credibility and truthfulness," Cantrell advised Bernal not to take the stand. During the trial, the only evidence supporting Bernal's claim that Reynoso was the shooter was the discrepancy between the original witness description of the killer and what Bernal looked like, Cantrell wrote.
Had he known about Baldwin's testing methods, Cantrell wrote, he would have employed an entirely different line of defense. He said he feels certain that the jury would not have reached a guilty verdict. "Mr. Bernal would not have been convicted of killing Lee Dilley," his affidavit stated.
Just because the game plan failed, and in hindsight Cantrell would have done things differently, doesn't mean he was an ineffective attorney, Metzger says. "You can't come back and say, 'This didn't work. I should have tried something different,' " Metzger says.
Rosenberg asked the court to order that Bernal's conviction be set aside and his death sentence vacated. He argued that because of the "destruction of evidence of the alleged murder weapon through improper testing and the irreversible tainting of witnesses there is insufficient evidence to retry Mr. Bernal. He is to be immediately released from custody and all charges against him dismissed."
At the end of June, visiting Judge Burdette, who presided at Bernal's capital murder trial, crossed through Rosenberg's order with two neat lines of a black ballpoint pen. He scribbled out Judge Anderson's name and signed his own.
"I'm delighted," Rosenberg says. "He can't do that."
At press time, the order had not been officially entered with the court clerk. Rosenberg plans to file a motion for a rehearing or reconsideration since Burdette didn't hear the argument for why Rosenberg needs an evidentiary hearing.
He was arrested shortly after his 18th birthday, and his 26th birthday is this month. He says it's hard to tell the days apart. He flips back and forth between the Buzz and Spanish-speaking stations on his radio. He's reading creative writing how-to books because he'd like to write short stories, or maybe a novel. He doesn't know what he wants to write about, he says, but he wants his brother and sister to know him.