Two Truths and a Lie

by Ellen McGarrahan

  “I wish I’d never started this,” I told Peter this morning, on the porch. Before this year began, Jesse Tafero had been a ghost whose presence was just a vague feeling of foreboding. Now I’ve met his friends and his lover and a man who’d been the boy who idolized him. I know about his dreams and his drugs and his brutal assaults. I know everything, it seems, except what actually happened at the rest area. Which was the only thing I’d wanted to find out.

  All that time in the rainforest, I told myself to give it up. Okay, maybe I won’t ever know. I guess I am going to have to figure out how to live with that. But as soon as I got back home, I realized: no. If I stop now, things will never get better. All I will have done is free up the ghost. Even now it is so much stronger. Swaggering, in full living color. Viscerally painful. Bringing with it my own terrible memories too—that’s something I never expected, starting out. And me, without my defenses. I guess that was always a risk. The downside of trying. I just didn’t realize it until right now.

  I have never once lost a case I’ve worked on. Never. I have always, before this, been able to put my feelings in a box and get things done. I once sat for hours with a man who had been shot four times in the head and left for dead by my client. I got that man to talk to me. But now, in the one case that really truly matters in my life, I’ve come up empty. Weak. I’d had that moment of lightness in Ireland, when I thought I could leave it all behind me, but then the facts of the case caught up with me again. I feel deeply depressed.

  Sunny and Eric both say they didn’t see the shooting. They both say Walter made Jesse take the murder weapon, but they didn’t see that happen either. Eric says Walter shot the officers from the front of the Camaro. Sunny says Walter shot from behind the Camaro. When they looked up after the shots stopped, both of them, they saw Jesse standing right there at the open Camaro door, and Walter with a gun, telling them to get in the police car.

  Sunny said she didn’t recognize the name Ricky Cravero. Did not recognize the name Marianne Cook. She did know Jack Murphy, but when I asked why a guy like Murphy—a celebrity both in and out of prison—had taken an interest in Jesse’s case, I got that flat stare again. “Jesse was special,” was all she said.

  And the Taser. Sunny and Eric knew nothing at all about a Taser. They were, both of them, very definite about that.

  The Taser dart in the police car is a critical piece of the tragedy. The catalyst—for the murders and everything after. Either Sunny or Eric not knowing about the Taser? Could be. A quick detonation in the backseat, obliterated by the chaos that followed. But could you really fire a Taser and not remember? Seems unlikely. So possibly Sunny or Eric lied to me. I get that. But to make sure I understand all the angles, I am going to take it as truth that both Sunny and Eric did indeed have “no clue,” as Sunny put it, about the Taser. In that case, who did?

  Walter Rhodes. He was standing at either the front or the back of the Camaro. He had his hands in the air, dropped them, fished the Taser out of its hiding place, fired the dart into the patrol car, dropped the Taser, then found and fired the gun.

  Jesse Tafero, pinned up against the cruiser. Jesse broke free, got hold of the Taser, fired it, dropped it, then got hold of the gun and shot some more.

  But what were Phillip Black and Donald Irwin doing while this was going on? Watching?

  After the murders, officers found the Taser and its expended cartridge in the stolen Cadillac. But the Taser’s holster—its black plastic carrying case—was still in the Camaro, in a denim handbag behind the driver’s seat. Where Sunny had been sitting. Or maybe Eric. Because when we talked down there in Australia, Eric told me he’d been sitting right inside that open door himself.

  * * *

  •

  Into all this come ten boxes of files from Walter Rhodes.

  One day about a week after we get home from Australia, I come back from the farmers market and find the boxes in the garage, stacked there by the delivery guy.

  This past spring, Walter mentioned these files to me in a letter. During my travels, I’d been in contact with Walter’s friends about them. But there was never a point I was certain I was going to get them. Or that I wanted them. I didn’t want to appear to be on Walter’s side, and I didn’t want to be indebted to him. Also, I did not want the files in my house for the simple reason that the trip I took to see Walter in 2003 still freaked me out.

  But I needed them. The Broward County Circuit Court files were a mess; I’d looked through everything that the Broward State Attorney’s Office had given me but I knew it wasn’t every single piece of paper they had; Jesse’s trial attorneys no longer had their files; and I am still—after half a year now—tracking down the rest of the court exhibits in the case. And I have not been able to get prosecutor Michael Satz to agree to an interview with me.

  I stand for a moment looking at the boxes. Then I get down on my hands and knees and start cutting the tape. It takes me fewer than five minutes to find what I’d been hoping might be in here somewhere: the attorney-client files of Ralph Ray, the lawyer who represented Walter Rhodes in 1976.

  Attorney-client files are confidential. It’s not a negotiable concept. The client may waive confidentiality and allow the disclosure of information he provided to his attorney, but the attorney may not, period. We work with attorney-client materials all the time in our investigation practice, always when the client has given us permission to do so. Walter has waived confidentiality in giving me these files, so it’s fine for me to read them. And I am very interested in what Ray’s files might have to say. It would be information that Walter told to his attorney in confidence. It might be the closest version to the truth of anything that I’ve found thus far.

  The Ray files are a thick stack of manila folders with xeroxed papers tucked inside—billing records, handwritten time slips, handwritten case notes. Some of the handwritten case notes appear to have been taken by Ray during his attorney-client conferences with Walter Rhodes in the days immediately after the murders. Those are what really get my attention.

  I take the Ray files into the kitchen and start reading, standing up. I take the first few pages pretty casually, just a few more of the tens of thousands of pages I’ve read so far on this case. But then suddenly I’m in a frenzy, flipping forward, flipping back, turning the files clockwise and counterclockwise to get at all the little scraps that are stapled in there, leaning close. Because I feel all of a sudden—again—like the world is upside down.

  * * *

  •

  Walter Rhodes testified, under oath, at two trials—at Jesse’s trial and at Sunny’s—that he was standing with his hands in the air at the front of the cars when he heard gunshots, turned around, and saw Sunny in the backseat holding a gun in her hands. Then, he said, he saw Jesse rush over, grab the gun out of Sunny’s hands, and continue firing at the police officers. This testimony was the crux of the state’s case.

  But here, right here on my kitchen counter, I am reading a handwritten note from Ralph Ray’s files that says:

  Conf w/Rhodes

  he doesn’t think Sonia shot—thinks

  maybe Jesse fired all shots—

  The note is not dated, and it’s not initialed or signed, so there’s no way to know for sure when it was written, or by whom. But the note references a doctor who, according to Walter’s medical records, treated him at Jackson Memorial Hospital on February 25, 1976, five days after the murders. That’s the day that Ralph Ray was appointed to represent Walter, according to Ray’s billing petition in the case. The billing petition states specifically that Ray and Walter conferred on that date, and the handwriting on the note about the “Conf w/Rhodes” looks the same as the handwriting on the telephone and time slips in these files for Ray. At the time he took Walter’s case, Ray was close to forty and had been in private practice in Fort Lauderdale for about four years; prior to that, he had spent most of
his career working as a lawyer for Broward County, including as an assistant state attorney in the prosecutor’s office. After Jesse’s and Sunny’s trials, Ray rejoined the State Attorney’s Office and worked as Michael Satz’s chief assistant for the next three decades, a move that both Sunny and Walter later challenged in court as a conflict of interest.

  Another note in the file, in different handwriting, accompanies a drawing of the crime scene.

  After 1st tussel cop called

  1st shot he thinks was troopers.

  thinks Jessee fired all shots.

  So, Walter Rhodes told at least two people in his attorney’s office that he thought Jesse Tafero fired all the shots.

  This was not the only scenario for the murders included in Ray’s files. One day later, on February 26, 1976, Ray had a telephone call with prosecutor Michael Satz. According to Ray’s case file notes, Ray learned in the call that the “girl said she fired 1 shot—threw gun out and Trafero [sic] grabbed it and fired.” That is exactly what detective Angelo Farinato claimed Sunny had confessed to in his handwritten “Statement from Sonia in Vehicle Feb 20 1976.” That same day, Ray spoke again with Walter, and this time Walter told him Sunny fired one shot and then “Jess” shot five times. Then, on February 27, 1976, Ray spent two hours at Satz’s office and learned that Walter had told police Sunny fired “at least two times.”

  But according to these notes, the first thing Walter told his lawyers was that he did not think Sunny fired at all.

  How then did Walter end up testifying to two juries under oath that he heard gunshots, turned around, and saw Sunny with a gun in her hand? Was it because that is in fact what Walter saw? Or was his memory “refreshed,” as the saying goes, to fit the police or prosecution theory of the crime?

  Walter’s testimony was a key part of the prosecution’s case, and helped send Jesse and Sunny to death row. But now I see that when Walter first spoke with his attorney under the protection of privilege, he had something completely different to say.

  24

  Shattered Glass/Shiny Gun

  “Now, obviously, she fired this first shot at the trooper.”

  On the old cassette tape, Walter’s voice is deep, and raspy. Gravel mixed with honey. After reading Ray’s notes, I rifled through my files to find the tapes of my interview with Walter in 1990. I’m listening to it now in my basement, surrounded by the boxes Walter sent. I want to know what he told me—what I once completely believed.

  “Her bullet, from her gun, went through him, right here, through his body,” Walter is saying, on the tape. “It slammed into this car that I’m leaning against like this. I heard it hit.” He sounds so confident that, even in this moment, I halfway believe him again.

  I called attorney Ralph Ray to ask him about Walter, and about the notes from his case files that contradicted what Walter testified to at trial. Ray flatly refused to talk about any of it. “It is what it is,” Ray told me. No, he wasn’t interested in talking about Walter. No, he did not want to look at his notes. No, I could not change his mind about that. “I’m not real comfortable agreeing or disagreeing with anything Walter Rhodes had to say, or with anything he may or may not have said,” Ray told me.

  In my basement, Walter is still talking. “Tafero breaks away, and he jumps over there to where the woman’s got the gun like this, and I see him clearly grab this gun by the barrel. And he says something like ‘You stupid goddamn bitch,’ or something like that. I don’t recall exactly what it was, but he was cursing at her. And I don’t know whether he was cursing at her because of her shooting, or cursing at her because she stopped.”

  I reach over and shut the tape player off.

  * * *

  •

  This winter, before I left Florida, I met with the man who in 1976 hooked Walter Rhodes up to a lie-detecting machine.

  Carl Lord. Police polygrapher. Built like a drinking straw, and friendly. Amused. He had a wet bar in his Space Coast living room, and we sat there on barstools side by side with his polygraph report in front of us on the granite countertop. In 1976, at the prosecution’s request, Lord strapped Walter to the polygraph apparatus and asked him four questions about the murders of Phillip Black and Donald Irwin. Then Lord wrote up the test results in a memorandum that the federal court later ruled the prosecutor should have turned over to Sunny’s defense attorneys. It was one of the main reasons the court threw out Sunny’s murder conviction. Why? Because Carl Lord reported that Walter Rhodes “could not be certain whether or not Sonia had fired at all.”

  In news stories about Sunny and Jesse, this polygraph has a special status. Sunny’s lawyers learned about the polygraph report shortly after her trial in 1976, and they used it as a main argument in her appeals from that point forward. But in the popular mythology of the case, the polygraph is depicted as a long-hidden piece of evidence that, once discovered, set Sunny free. When The Exonerated was presented at the Edinburgh Festival Fringe in 2005, for example, the festival’s newspaper reported:

  Despite these efforts, though, Tafero was executed. Then, two years later, Jacobs was freed, in large part based on the theory that Rhodes was actually the lone killer. It emerged that evidence in the couple’s favour had been held back, including a polygraph test taken by Rhodes, which had been falsified.

  Actually, Sunny’s attorneys did not argue that Walter’s polygraph test had been falsified. Exactly the opposite. Carl Lord’s polygraph report stated Walter “could not be certain whether or not Sonia had fired at all,” and her attorneys told the court that Walter must have been truthful on the test—because it meant the difference between life and death to him. Passing the polygraph was a condition of Walter getting a plea deal, and if he flunked, he too faced the electric chair. That’s what Sunny’s attorneys wrote: “His life literally depended on the results of the tests. It is hard to imagine a stronger motivation to recount the events in a manner consistent with what he considered the truth.”

  With the polygraph report on the counter in front of us, I asked Carl Lord about it.

  “Why did you guys polygraph Walter Rhodes?”

  “Because he was the one who squealed,” Lord said. “Do you know how a polygraph works?” It’s an interrogation, Lord explained. The machinery records the subject’s body friction when you ask questions. It’s not about surprising someone. You take it very slow. You make them feel comfortable. You tell them how the instrument works, and you go over the test beforehand and make sure they understand exactly what the questions will be. There are control questions and test questions. You instruct them to tell the truth on the control questions, and on the test questions too. Then you compare the way the answers look on the chart.

  Control questions, from Lord’s notes: Were you born in Alabama? Do you live in Florida now? Did you ever go to school? Are you wearing a blue shirt? Is your first name Walter? Have you in the last two years committed an undetected crime?

  That last one, it’s a control question, but it’s a trick too. Its purpose is to find out what someone looks like on the graph when they lie, Lord said. Because everyone lies on that question. Everyone strapped to a machine for a law enforcement polygraph, anyway.

  Test questions: Did you see, for sure, Jesse shoot both police officers on February 20, as you told me? Did you, yourself, fire at either officer on February 20? Did you help anyone in the shooting of the two officers on February 20? Did you tell the truth on the statement that you gave to Captain Valjean, to the best of your knowledge and memory?

  “What did you find?” I asked Lord.

  “There was no question. He was not the shooter.”

  I looked at the list of test questions again.

  “Hold on,” I said. “I’m not seeing a question about Sunny on this list. Did you test Walter about Sunny?”

  No, Lord said. But before hooking Walter up to the polygraph machine, Lord int
errogated him—that’s standard procedure. And in that pre-test interview, as Lord called it in his report, Walter said “he saw Tafero struggling with Trooper Black, heard a loud report, and then saw Tafero go to the backseat of the Camaro, take out a gun, and fire four times at Black and two times at Irwin. He could not be sure whether or not Sonia had fired at all.”

  I asked Lord to explain.

  “I said to him, ‘Did you see Sonia fire?’ He said, ‘I don’t know if she did one of the shootings.’ ”

  “So Walter couldn’t be sure,” I clarified.

  “That’s what he said,” Lord told me. “He wasn’t sure. I tried to tell that to the nitwit who was going to try the case. Michael J. Satz.

  “He’s an asshole,” Lord added, about Satz.

  “Should Satz have turned your report over to the defense?” I asked Lord.

  “He definitely should have,” Lord replied.

  * * *

  •

  According to Ralph Ray’s files and the appeal brief filed by Sunny’s lawyers too, the plea deal that Walter made was predicated on Walter passing the polygraph. And about two weeks after Carl Lord wrote a report saying there had been “no deception” on the test, the Florida Department of Criminal Law Enforcement issued a new finding in regards to the gunshot residue tests. Its previous finding had been that tests on Walter’s hands were consistent with him “having discharged a weapon.” Upon reconsideration, the crime laboratory found that the elevated levels of antimony and lead found on the back of “Mr. Rhoades’ ” left hand were not from firing a gun but from having been wounded there by a lead projectile during the gunfire at the roadblock.

  The department now was of the official scientific opinion that the gunshot residue results for Walter Rhodes “are consistent with his having handled an unclean or recently discharged weapon.” And Walter Rhodes now had a deal. In return for testifying against Jesse and Sunny, Walter would not face the electric chair.