An Absolute Maybe
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.
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 hehad 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 alteredand he doesn't believe a true match was made.
"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.
Lee Dilley grew up in Spring Branch off I-10 and Wirt Road. He lived on a circular street in a neighborhood of one-story 1950s-style box houses that vary only in the color of the shutters and vinyl siding. Glourie Drive is a street of neatly trimmed lawns, wrought-iron front-porch posts and driveway basketball courts. Dilley lived in a squat brick house with white siding that has peach roses planted by the front door.
Mary Ellen Dilley told the Press that 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 asprecalculus, physics and computer programming. LynnEickenmeyer, 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."
Johnnie Bernal's father, an alcoholic ex-marine, was stabbed more than 30 times and died in a bar fight in Corpus Christi when Bernal was about two years old. Bernal's mother, Isabel Bernal, testified that her son was basically a good kid who came straight home from school, played with his little brother and sister, and helped out with housework.
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. Oncea chubby kid, he grew into a muscular man, nearly six feet tall, who didn't talk much. His size, he says, intimidated people.
The summer of 1994, Bernal says, his stepfather kicked him out of the house. Bernal spent three months sleeping on friends' couches until his mother talked his stepfather into letting Bernal come home for his 18th birthday, the day after Dilley's death.
On Friday, August 18, Bernal spent the evening cruising and looking for girls with four friends: Pedro Sanchez, 20, Ronald Rozelle, 17, Juan Reynoso, 14, and Eric Schaefer, 18. "We were finding trouble, and getting thrills," Bernal says. Sanchez drove, Bernal sat in the front passenger seat, and the three others sat in the back seat. They went to Wal-Mart and bought a can of gold spray paint and a 12-ounce can of Coke. They poured out the Coke, sprayed the paint into the can and got stoned inhaling the fumes.
Bernal says when they pulled up at Nick's Drive Inn, they were just planning to mess with the people standing outside. Bernal says Reynoso, whose nickname is Little Gangster,was sitting in the seat directly behind him.He says Reynoso bent forward, stretched over the backseat, leaned out the window and pointed the gun at the group.
He says Reynoso started screaming at the people to hand over their money and demanded that the woman give him her gold chain. "Me, I'm just trying to stay out of the way," Bernal says. "The last thing I expected him to do was start shooting."
But then Debra Nicholson started running, and Reynoso opened fire, Bernal says. He says he ducked down in the seat to keep from being hit himself. "He shot the gun right by my face," Bernal says. After four shots were fired, Bernal says, Sanchez hit the gas and the boys sped off. Bernal says he cussed out Reynoso for almost killing him. Then the gang members went to the bayou and walked down a trail into the woods.
Bernal says he and Sanchez decided to scare Reynoso, as punishment for what he had done. Bernal took the .357 magnum from Reynoso and said that the Midnight Colors, a gang Reynoso was afraid of, was nearby. Reynoso ran.
Bernal says he took the gun home because he lived closer to Reynoso than Sanchez did. He says he called and paged Reynoso several times and left messages for him to come get his gun. But Reynoso never called him back.
He had fled to Mexico.
Sitting behind a glass wall during death row's weekly Wednesday media day, Bernal insists that the gun wasn't his. He says Rozelle, one of the guys in the backseat, had stolen it. (The gun was reported stolen two weeks before the murder, Elliott says.) After receiving the anonymous tip, the police first contacted Rozelle, a tenth-grade Westfield High dropout who had previously been arrested for both burglary and evading arrest. Rozelle told Detective Elliott that Bernal was the shooter.
The bullets, according to police reports, were supplied by Schaefer, who invoked his Fifth Amendment rights when the state refused to grant him immunity. Rosenberg says in his writ that the state had an interest in suppressing Schaefer's testimony because Schaefer reportedly recanted his statement to police that Bernal was the shooter, and told Bernal's parents that Reynoso had been the gunman. The state maintains that Schaefer's attorney said it was in the defense's best interest that Schaefer not testify.
Bernal says that Reynoso, who was on probation for weapons possession and evading arrest, fired the gun. According to Rosenberg's writ, Reynoso admitted owning both a .25-caliber handgun and a .38, and at the time of the trial was in boot camp for violating his probation with the possession of a nine-millimeter semiautomatic pistol.
Bernal says the group framed him because they didn't know him that well -- he was the new guy, whereas they had all grown up together.
"That's his story," says HPD Officer Elliott, with clear disbelief and disgust.
Bernal says that Reynoso was seated directly behind him, but Elliott says that Reynoso was sitting on the opposite side of the car behind the driver's seat. The detective says it's improbable that Reynoso, who was only about five foot six, was able to stretch himself across two guys in the backseat and then hang out the front passenger-side window.
Reynoso testified that after the murder, Sanchez and Bernal said they didn't want any witnesses. Reynoso said he was afraid they were going to shoot him to keep him quiet, so he ran out of the woods straight to a sheriff's deputy working at the Chevron station at Imperial Valley and FM 1960. He told the officer that someone was trying to kill him and he needed a ride home. The officer gave him a quarter and told him to call a cab.
"You don't go to a cop with your shirt off if you've got a gun on," Elliott says. "You're not gonna go up to a cop with a pistol stuck in your pants."
And Reynoso was back in Houston by the beginning of September, Elliott says. He says he can't remember if Reynoso returned of his own volition or because the police told him to. Reynoso could not be reached for comment by the Press.
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."
At a March hearing before State DistrictJudge 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, Sausedasays 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 was made, 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."
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 hadinformed 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'sprior 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 aboutBaldwin'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.
Bernal spends 23 hours a day in his cell. His neighbor was executed a few weeks ago. And tonight the man who has been his best friend since he arrived is scheduled to die. Bernal says he's trying not to think about it, but death is the only thing on his mind.
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.
Bernal talks in a soft, even voice. He has long eyelashes, a shaved head and a small cursive L tattooed on his right hand for his ex-girlfriend, Leticia. He says he wishes he'd stayed in school. He wishes he had used his father's social security checks to pay for college. "I wish I could make a future, have a future," he says.
He's frustrated that the state took three years to file a response to Rosenberg's writ. But Rosenberg explained to him that the delay works in his favor and keeps him alive. "If I complain, it'll speed up the process," Bernal says. "I'm tired of being here. But I don't want to go easy because I know I didn't do it."
He wears a chain with a gold cross on it that his grandmother gave him. Like many inmates who find Jesus, he's been reading the Bible. He says God endorses the death penalty, and he quotes from the Old Testament about wrath raining down and eliminating evil. But he says he doesn't believe that he himself is evil.
He likes to think that he's going to heaven.
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