Guilty, guilty, guilty, guilty, guilty.
The worst possible outcome. It was like a burst of reality rushing through her all at once.
The jury believed every argument the prosecution put forth, every witness, every bit of information presented. Within an hour and 50 minutes, 30 of those minutes likely to settle in and grab some coffee, 12 men and women deciphered all of that evidence and convicted Tracy.
On each count.
Tracy’s legs turned to rubber and she sat down.
Each juror was named publicly and asked for an oral confirmation of his or her vote.
Each affirmed.
The judge took a 10-minute recess and told everyone to be back promptly so he could render Tracy’s sentence.
Before that could take place, however, the judge asked if the lawyers wanted to speak.
Lavender said, “We think the evidence shows, and I think the verdict shows, the jury found this to be premeditated murder with the intent to hide that fact and we, of course, would ask the Court for a stringent sentence.”
Tom Camp reminded the judge that Tracy had “no prior felony record.”
The judge paused. Looked down at his notes. Cleared his throat. Then sentenced Tracy to double life plus 50 years. After that, he asked that everyone leave the room in an orderly fashion. As that took place, the judge collected his belongings, banged his gavel, and walked away into his chambers.
The trial and sentencing were over.
At least for right now.
Part III
“Innocence is a kind of insanity.”
― Graham Greene, The Quiet American
60.
My email conversation with Tracy Fortson began during the summer of 2016. Tracy had been down 15 years by then, give or take. Although she’ll have a problem with this description, she was a hardened con by now. She’d had time to consider her life and her case. I was essentially just stepping into it then. I had done some preliminary research, but nothing all that investigative. The first several emails we shared did not go well.
A bit of backstory first.
That same year, I had consulted on-camera for an episode of Investigation Discovery’s long-running series “Deadly Women,” which included a segment about Tracy. “Deadly Women” is a series I have been a part of for almost as long as Tracy has been in prison. I had read through the documents, looked over some of the court record, consulted with producers, and sat down for an interview, armed with the simple and most dramatic public facts from Tracy’s case.
As the red light turned green and my producer said go, there I sat, talking about—some might even say trashing—Tracy Fortson. I dug right into her. Gave my usual sarcastic, entertaining (factual) commentary, all based on the court record left behind.
Tracy had been convicted of a violent crime. There is no other crime on the books more egregious, more inexcusable, or more atrocious, than the crime of murder. As I have said many times, there are those in this world who place very little value on human life.
Writing to Tracy via prison email, I knew she was going to bring up my consulting on “Deadly Women.” On a website—tracyfortsondefensefund.com—dedicated to her innocence is a disclaimer targeted, I suppose, at TV people like myself:
“‘Docu-Dramas,’ such as the one made by the producers of ID Channel, EXAGGERATE public records of a case to capture viewers. The ID Channel did no investigation whatsoever of the case they are portraying. They have no regard for innocence or guilt of the people involved nor what impact it may have on the ongoing case the families of everyone involved. … This site is for those interested in the facts and the truth.”
I could tear that description to shreds, of course. But for now I’ll leave it be.
I had come right out of the box, in my first email to Tracy, asking what evidence she has to prove her innocence. Not just words on a website or a broad-brush claim of a frame job. I’m interested in evidence. Impartial facts of which speak for themselves. What is it you can show me to back up what it is you are claiming?
“Mr. Phelps … where to begin,” Tracy wrote back. “I suppose your questions. Evidence? The greatest evidence I have to prove my innocence, to me, is the fact that the prosecution had to lie, coerce and intimidate just to convict me.”[1]
You see, that response in and of itself is what I am talking about. Tracy’s opinion is not evidence; it is speculation and accusation. There is no objectivity in any part of it.
“As far as tangible evidence,” Tracy continued, “there is the unidentified DNA of a male at the scene of the crime. Then there is (a key witness, who) admitted he (said some things out) of anger, then went along with ‘the plan’ to convict me. I wish (my daughter) Elise had been able to record the first conversation she had with him, but she had no idea that he would tell her any of that.”
Those are serious allegations. Tracy props up her latter argument on a former foundation of an unidentified piece of DNA found at Doug’s house (the blood on that closet doorknob) and Key Witness’s so-called subsequent recanting of an earlier accusation against her—to only Tracy’s daughter—while testifying in court.
For one, every single home in this country has a plethora of unidentified DNA all over it. That is not evidence of someone creeping into Doug’s home to murder him.
Then we come to Key Witness’s claim?
“Elise originally contacted (Key Witness) because several people, including Doug’s mom,” Tracy went on, “had told us that (this person) no longer felt the same as (he or she) once did and did not believe that I had killed Doug. So, based on that, Elise contacted (Key Witness) when I came up for parole to see if (this person) would be willing sign a letter of support. When (this person) finally returned Elise’s call, (he or she) talked for two hours non-stop, telling Elise everything that had happened during the investigation, bond hearing, and (in court). (Key Witness) told her things I suspected, but couldn’t prove, as well as things that I never knew. (I wish you could talk to [this person].) Elise asked (he or she) to sign an affidavit, but (he or she) wouldn’t.”
Key Witness talked about having a family, according to Tracy, and coming forward would place them in danger.
“The second time Key Witness called, Elise recorded the conversation, but of course (he or she) didn’t give near the details as in the first phone call. In the second conversation Key Witness admits being afraid. Key Witness wants to do the right thing, but won’t name names. Key Witness is afraid that (certain people) will find out, which would put (he or she and family) in danger. Fear was the issue from the beginning. Fear of ending up like Doug. Key Witness learned the hard way of the corruption within our system.”[2]
The problem with all of this is that Key Witness will not stand behind what Elise and Tracy claim he or she has said. Nor sign an affidavit. Nor go on record in any way to support a conversation recorded without his or her permission. This makes what Key Witness has allegedly said entirely suspect and placed into the hearsay category. Beyond that, even if he or she did go on record, what does it prove? That someone else, besides Tracy, is making spurious claims of corruption and framing? Where, still, is the hard evidence backing any of it up? All the evidence in this case, as you have read, points to one person.
Tracy Fortson.
“The majority of the people in the great State of Georgia want to believe in our justice system,” Tracy continued, building a case for her argument, “and the people who work within the system. No one wants to believe that the system is corrupt in any way.”
That is untrue. Time and again, we all have seen the system failing people. We have all heard the lies many public and professional civic leaders promote. In addition, we have seen people sprung from prison after spending decades behind bars.
“That is,” Tracy added, “until something like this happens to them. We trust the police to abide by the rules and enforce the law by making legitimate, valid arrests. We trust the investigators to gather the vital evidence, not j
ust some, but all of the evidence. We trust the experts and lay witnesses to testify truthfully to what they know, based on experience, education, training and methodology, rather than what they are paid to say. We trust the lawyers to defend to the best of their ability. We trust the integrity of the prosecutors and expect them to be honest. Actually, we expect integrity and honesty from all who participate in the case from beginning to end. We trust the judge to oversee the trial with a neutral and non-biased attitude to ensure fairness, to make sure that both sides follow the rules, that due process of law, as guaranteed by our constitutional rights, is not violated. We expect the jury to be fully informed of their duties, rights and abilities, and consider all of the evidence and make a decision based on the evidence presented.”
I read that statement several times. It is an astounding—and astonishing—reprimand within the context of this case, made by a woman who has been found guilty of murder. It flies in the face of what sounds like something a murderer who has been caught and convicted might say. Is Tracy saying in this statement that everyone involved in her case—each officer, deputy, GBI agent, lawyer, juror, witness, dozens of people—is railroading her or looked the other way when he or she realized what was going on?
Tracy was found guilty, as we have seen through her trial, based on some rather hard, factual, seemingly undisputed, unimpeachable evidence. If she has been set up, as she has claimed, the coincidences of circumstances and what had to take place in order for this to take place are insurmountable.
“However,” Tracy continued, “our system is flawed and the accused is guilty until proven innocent. The rules of court and the rules of evidence are cast into the wind and a trial becomes a game. There are rules for the defense, but the prosecution has none. The truth is no longer the objective; conviction is. And it’s ‘anything goes.’ Fairness and due process are flushed down the toilet.”
That is simply not true. Tracy knows this. Our system in this country works. It works because it is fair. It is not always accurate and is not 100 percent foolproof. Innocent men and women are put to death and placed in prison for life. But it’s the best system in the world to protect those who are innocent of a crime. There is no better system available. There are anomalies, of course. And people lie on the witness stand, no doubt, every single day. But juries are an incredibly resilient body of people and generally get things right inside a courtroom. I have looked at scores of trials, studied every nuance and every legal maneuver, and I find the system to work on all levels. Have prosecutors and lawyers and cops manipulated the system to their benefit? You bet your ass they have. Is it widespread? Not a chance.
Tracy continued. And forgive the redundancy of this next exchange, for you have seen some of it play out within my earlier narrative, but it bears repeating here.
“Investigators are not interested in finding evidence that supports the innocence of the accused,” Tracy explained. “The case becomes a puzzle, but rather than the pieces fitting together as they should if the accused committed the crime, they try to put together pieces of a puzzle that don’t actually fit. If it doesn’t fit, force it. ‘Stick to the plan,’ get the conviction, make the evidence, lie if you have to.”
My question to Tracy after these statements was simple: Why would these cops frame you over a sexual harassment case? One could argue that with the sexual harassment case still unresolved when Tracy was arrested for Doug’s murder, the sheriff didn’t want any trouble. Still, would a sheriff, I have to ask, risk everything he has, the men and women of his department, and a prosecutor risk all of the sheriff’s prior cases that resulted in conviction, go ahead and murder a member of the community because of unemployment compensation and perhaps a monetary settlement? As it were, when you look at the facts, Tracy’s sexual harassment suit was not that strong of a case. If something were going to be “fixed” or framed, wouldn’t it have been easier to rig the system in the sexual harassment case? Why not have the good ol’ boys club get together and lie about the sexual harassment suit?
Tracy responded: “I had audio tapes of the sheriff making lewd, sexual comments to me on the job. Doug notified the newspaper and made it public. This was highly embarrassing to the sheriff. He is a very proud man. He never took embarrassment well. … I never considered the consequences or repercussions of filing the claim.”
I pressed Tracy on this.
“It was after Doug’s death and my arrest that I found out there was more to the story than I knew,” she claimed. “(A source close to Doug) told me there was evidently a history between Doug and Ray Sanders. I believe it was (a friend of Doug’s who told my source) that Doug wanted retribution for something that had happened between them (Sanders and Doug) in the past. I never found out what that was and wasn’t aware that Doug knew Sanders prior. Whatever happened between them is what caused Doug to want retribution. There are just too many gaps that haven’t been filled. Too many unanswered questions.”
I never came across those gaps or unanswered questions. Further, I never came across any evidence to support such a statement about Ray Sanders.
Still, all that being said, I don’t see how, if true, it could lead to a sheriff having Doug killed and then setting up his girlfriend for the murder. How could any of the evidence against Tracy—the concrete mix she bought, the paint from her truck, the paint in her garage, the note on Doug’s truck and on and on—be known to the sheriff? How could the sheriff time everything to coincide with Tracy making those purchases? It just doesn’t seem possible. If it is, it becomes one of the most elaborate and well-planned frame-ups in American criminal history. And remember, all for a motive of a sexual harassment claim and a rift between a sheriff and Doug nobody else but a few are, allegedly, aware of.
I made several attempts to contact Key Witness, along with all of the major law enforcement players involved in this case. Incredibly, at least where law enforcement is concerned, none of them would respond.
A few days after that email exchange, Tracy wrote again. By now I had considered the idea that maybe she hadn’t seen me on “Deadly Women,” or she didn’t care—that all she wanted was for someone to tell her story. But then I opened my email one morning and there it was: The questions about my comments on “Deadly Women” and how I had trashed Tracy as a convicted murderer.
I read the first few lines and thought: Oh, boy …
[1] I am going to present this exchange as a conversation for a more pleasurable reading experience, but please understand that this was an email exchange between the two of us.
[2] I want to apologize here for the ambiguous “he or she” and “Key Witness” and “certain people” descriptions in place of actual pronouns. But I cannot, without any proof whatsoever, begin to name people in this situation because Tracy Fortson and her camp say so. It’s just not fair to all of those involved. Furthermore, I asked for this tape several times, but was never given a copy of it.
61.
On Aug. 13, 2001, tracy appealed the verdict to the Superior Court of Madison County, Judge Lindsey Tise, the same court and judge who had overseen her trial. Her lawyers filed a motion for a new trial. It seems rather disingenuous to make an appeal, which often calls into question what went on inside a courtroom, to the same judge who supervised your trial and sentenced you, but there you have it: The American justice system at work. Tracy’s fate fell into the hands of the same man who had sealed it.
Her main argument was that the court had failed to change the venue or sequester the jury and because of that reason, Tracy had not gotten a fair shot at proving her innocence. Clearly, Tracy was saying the judge did not do his job and had made an egregious error.
Months went by.
No word.
Tracy then amended her request for a new trial, adding to it a second argument that jury commissioners manipulated numbers in racial and gender groupings to, as she put it, “balance the box.” Was Tracy claiming reverse racism? Was she trying to say that her conviction was based on the
court not convicting enough white people?
It was clear that Tracy was trying to find any window in which to break through the system in order to get another crack at convincing a jury she had been framed.
Two more months went by.
Nothing.
In July 2002, Tracy filed a second amended request for a new trial, this time claiming ineffective assistance of counsel.
The court’s decision took seven more months. In the end, Judge Tise denied Tracy’s motions for a new trial.
“I was disappointed, of course,” Tracy explained to me in May 2017. “But I soon realized that a motion for new trial is a formality, the first step in the appeal process. Unless there is new evidence that wasn’t available at trial or an error from the trial that could have changed the outcome, the motion is always denied. The next step is the direct appeal. If I had known then what I know now, things would have been different. I’ve learned so much over the years.”
What bothered Tracy “after all of these years,” she said, was that “my lawyers never challenged the indictment. They just accepted it. That was the first mistake. The indictment, by law, must be perfect in form and each charge must have all elements of the alleged crime, including the exact date of the alleged crime, or narrowed down as close as it can be so the accused person can form a defense. No one could ever determine the date Doug was killed. The indictment said ‘between the third and fourth day of June,’ yet Doug’s neighbors saw him on the third and fourth. I saw him on the fifth and Doug left a message on my voicemail on the sixth. So how can they say he was killed on the third or fourth? That never made sense. All they had to do was check Doug’s phone records and pull the voicemail from my phone company.”
TARGETED: A Deputy, Her Love Affairs, A Brutal Murder Page 22
