Again, it’s important to note that since none of that was done during the investigation (which is odd, by the way), we’re left with Tracy’s word regarding the voicemail.
With only one option left, Tracy and her team put all of their resources into one petition and, by March 2003, filed an appeal with the Supreme Court of Georgia.
It was longest of long shots, but, of course, Tracy’s only chance at seeing a courtroom again and being able to fight for her innocence.
Tracy called home on Oct. 6, 2003. It was a casual, routine call. “Hello, mother.”
As Tracy’s mother began to talk, Tracy said later, she could “hear excitement in her voice” and knew “something had happened.”
“Have you heard?” her mother asked excitedly. “Tracy, have you heard?”
“Heard? Heard what?”
“You won your appeal! You are coming home.”
Tracy explained how she felt hearing those words: “My knees buckled beneath me as I stood against the wall on that prison phone. Tears burned my eyes and I couldn’t see. It felt as if my breath had come out of my lungs. I cried, then laughed at the same time, and I could hear the elation in my mother’s voice as she kept saying, ‘You’re coming home! You’re coming home!’ ”
On Oct. 6, 2003, the Supreme Court of Georgia ruled in Tracy’s favor. Incredibly, against all odds, “(W)e find that Fortson was denied the effective assistance of counsel when her attorney unnecessarily used a peremptory strike on a juror that had already been excused for cause by the trial court. We reverse and remand for a new trial.”
Tracy read those words over and over.
She’d done it. Granted a second trial, Tracy was going back to court.
As far as going home, however, that wasn’t going to happen.
“Since the day I was arrested,” Tracy told me, “I have never returned home. After I won my appeal, the Georgia Department of Corrections had to call Madison County to make them come and get me. It was October when the decision came down, the day before Thanksgiving when they finally picked me up. The original bond, which was $500,000 cash ($1 million in property), was reinstated. There was no way my family could make that bond. We didn’t have the resources. So, I stayed in the county jail in Lincolnton, Georgia, until my second trial since Madison County did not house women.”
62.
Honesty is something I do not take for granted. Whenever I sit down for a television interview to talk about a murderer or serial killer, I stick to the facts as we know them. That’s all we have, really. We expect (and rely on) our courts to carve out the facts of a case. The allegations made on a website dedicated to Tracy’s innocence are, truly, contemptuous, unfortunate and, quite honestly, in my opinion, dubious.
“Deadly Women,” like so many other (nonfiction) television series, is a straightforward, cookie-cutter true-crime show. There is no “investigating,” as Tracy contends, going into making this type of programming. It’s a series, like so many others on television today, based on the facts of a case. Nothing more. Definitely nothing less. Moreover, “Deadly Women” makes no claim to this side of “infotainment,” which most nonfiction television can be defined as today.
That said, quite ignorant as to what goes into making a television series, Tracy ripped into me regarding my “Deadly Women” appearance about her case: “Mr. Phelps, I suppose I should have asked this prior to sending you any of my information, but frankly it didn’t cross my mind until I saw you last night. I just happened to see an episode of ‘Killer Women’ on TLC and you were one of the consultants. (Not so sure about ‘Killer Women,’ never heard of an American series by that name and have never sat down for an interview with a series by that name, but anyway.) … Don’t take it personal, but I was disappointed. You were the typical, biased, ‘heckler on the sidelines,’ the one that hypes up the story. I guess that is what you do (?) I’m not sure what I expected you to be, but that wasn’t the mental image I had. You just seemed so different from the person who wrote the letter, more critical and judgmental. And if you are that critical and judgmental, why me? What got you interested in my case? How did you find me?”
I might add here that those are the top two questions I get asked by convicted murderers after reaching out to them. Maybe not so much in Tracy’s case, but it says a lot about who they are as human beings, I believe. For one, it tells me that their defenses are up. Two, it tells me they have something to hide—or they would not care about anything else but getting their story of innocence out.
I began my response this way: “In reply to your email about my work, life, ‘Deadly Women,’ etc. Look, Tracy, every convicted murderer I have ever interviewed or considered for a book/story has claimed to be innocent. As you know, there are a lot of ‘innocent’ people in the jails walking around, decrying how the system has railroaded them. That said, I do understand there are actually innocent people locked up. I’m not ignorant. Nor naive. I’ve written about one (Bobbie Jo Smith, my book about her is titled ‘Bad Girls’). And I stand behind her to this day! I secured her a high-profile appellate attorney.”
Tracy continued: “There is another show that creates dramatizations called ‘Deadly Women.’ As a matter of fact, Investigation Discovery aired a segment on ‘Deadly Women’ called ‘Forever and a Day,’ which just happened to be about my case. Were you affiliated with that? Although I never saw the show, I felt the effects of it. From what I’ve been told, the producers made me out to be a monster and never once contacted me to hear my side. Then there were those who evidently watched the show and decided to express their opinion of me by sending maliciously, cruel emails to my daughter. What about Doug’s mom, Carol? I guess no one cared or even considered how it might affect her.”
The producers made me out to be a monster, was what I focused on, putting aside for a moment the fact that I now knew she had no idea I had appeared on “Deadly Women” and commented on her case.
It is an interesting statement. The producers are mandated to stick to facts. All scripts need to be annotated—in other words, you write a line for a series and you need to source where you pulled the information from. Producers do not create monsters; crimes and convictions do.
Tracy forgets that she is a convicted murderer. Guilty or innocent, that is who she is in a court of law and the eyes of the public. There is no way to sugarcoat or get around this simple, inarguable fact.
I took my time responding to Tracy. I needed to think about how to answer her insults and accusations; that outward aggression in her last email was coming from a deep place of being repeatedly let down. She was incredibly defensive. Obviously, angry and bitter and, as I have learned in talking to convicted murderers, frustrated beyond belief by not being able to control what is going on in the outside world about her case.
“I go into every case I consider for a book with a slight bias, obviously, but also an open mind,” I explained to Tracy some time later. “With regard to your story, someone I respect highly saw me on ‘Deadly Women’ talking about your case and handed me your case files to look at and told me that he/she believed you might be onto something and I would be stupid not to look into the idea that you were framed. … Moreover,” I continued, ruffling my feathers, stepping high atop my soap box, “to answer one of your questions specifically: I am journalist. I don’t have to explain to anyone why I do what I do for work. If you are not interested in my … investigative skills then I will gladly stop contacting you and look into doing the book without you. But I will never explain to you why I do what I do, nor do I have to prove my integrity to you. I am a well-respected journalist. You are a convicted murderer. The facts in your case as they are right now support your conviction. That’s the end of that story. You need to prove to me you’re innocent. I don’t need to prove to you how or what process I go through to try to uncover it.”
I felt a strong need to defend and explain myself to all of the Tracys of the world who have ever attacked me. We—the true-crime writing com
munity and those who speak about true crime on television—do not need to rectify or justify our comments about convicted murderers.
Ever.
Backed into a corner, my fists up, I brought up “Deadly Women” again: “I have commented on about 80 ‘Deadly Women’ cases over the past 12 years, including, as I said, yours. I have commented on about 200 TV cases overall. I don’t ‘hype’ cases, as you say. That’s a ridiculous statement. Again, for you to judge me on what I do on TV is your mistake. You don’t ‘get’ TV—not many convicts would. Also, on TV we are strictly in the business of sticking to the facts as they are rendered by the court, and interpreting them. I am paid for my opinions based on the facts I have at the time. Period. You don’t like what I say on television, that’s tough shit. That’s your issue. I don’t have to prove anything to you about my TV work. I’m the crime analyst and expert; you are the suspect/perpetrator, until proven otherwise.”
I mean, for shit’s sake: What am I supposed to say to this woman? Take her word for granted that a sheriff’s department, with the help of the GBI, framed her for a murder because of a sexual harassment case? Or that Doug Benton was murdered for turning in a drug dealer and then Tracy was framed for it? On face value alone it all sounds ridiculous, like some sort of Orson Welles Hollywood plot. Then, after the fact, there’s this contention—without any proof whatsoever—that the murder victim had a history with the sheriff and that had something to do with his murder? Again, where is the damn evidence to support such wild, over-the-top claims?
The statement Tracy made about Doug’s mother, Carol Benton, struck at the very core of what I do. I am a staunch victims’ advocate. I pride myself and my work in telling the victims’ stories on television and in books. I support families of crime victims. The idea that a woman who was supposed to uphold the law was convicted of a murder and is trying to school me on victims’ advocacy, well, I found it beyond disingenuous, distasteful and insulting. Tracy had no idea what she was saying. She does not know me or my work. She was speaking from a self-centered pulpit—albeit, from the inside of a prison!
“I also know how to deal with victims’ family members,” I wrote. “I am very much known for my victims’ advocacy work and portrayal of victims in the thirty-three books I have written. And yes, I know Carol supports you. Still, when, where and how I approach Carol Benton is my business. I don’t allow convicted murderers to dictate to me how I go about working on my projects. I do that on my own. I promised you—in my letter—a voice; an avenue to tell your story alongside everyone else and prove to the world that you are innocent. You don’t want that opportunity. Fine.”
Tracy wrote back: “Thanks for reminding me that I am a convicted murderer.”
She then asked me for a biography, outlining my career, which I had first offered to send, if she wanted.
“You want a bio,” I said now, “have your daughter go on my website and send it to you.”
A bully from behind bars.
Fuck that.
“So, to sum this up,” I concluded to Tracy, “I don’t need to explain, nor will I ever, why I think you might have a good case, and I can maybe help to expose it, nor anything else about my choice of profession or my work on TV. I also will never allow someone to tell me how to operate my business. Finally, you asked: ‘Does it actually matter to you that I have spent half of my daughter’s life in prison for a crime that I did not commit?’ ”
There was the familiar guilt-trip. I had been waiting for it. I hear this all the time. Many convicts have written to me in a similar fashion. They try to call you out by making you feel as though all you care about is the story. The God’s honest truth of the matter is, it does not matter to me that Tracy has spent 15 years in prison. All I have are the facts. I cannot take a side based on allegations, without any proof to support them. And so I explained this to her.
“Right now, all I have is a convicted murderer telling me she has been set up. I have no facts to support that argument. No proof. Only her opinions—and mine. Bottom line: Forget about the drama and judging: prove to me you are innocent. Show me. Talk is cheap. Being in prison, you understand that. If we don’t speak again, good luck, Tracy.”
I left it there. In truth, I expected to never hear from her again. Or, actually, I did expect a return email, because my experience tells me that convicts need to have the last word. Always. So I thought perhaps a nasty email would arrive in a day or two and that would be the end of our correspondence.
Tracy surprised me, however.
63.
I will not bore you, my trusted reader, with the tedious, redundant testimony of a second trial. Tracy’s second trial started on March 22, 2004, and was moved to Effingham County, yet (remarkably!) Judge Lindsey Tise, from Madison County, sat on the bench again.
The witness list read like a facsimile of the first. Bob Lavender and Marsha Cole were at the helm for the state, with a new lawyer, Bill Crecelius, Jr., bringing 15 years’ experience with him, sitting next to Tracy. Helping Bill out was his father, Bill Sr., adding an additional 20 years of courtroom practice to the team.
Over the course of several days, Lavender and company brought in the same set of witnesses, in nearly identical order to the first trial. There were no surprises here. If you’re Bob Lavender, why try to reinvent the wheel. It worked once. Why wouldn’t it work a second time? Evidence is evidence, right? It should never change. Interpretation and opinion of it might vary, but the evidence itself—like truth—should stand on its own.
Tracy had several problems throughout the second trial as DA Lavender paraded his witnesses into the courtroom and asked each the same set of questions he had three years prior.
“Look at Dr. Geoffrey Smith’s testimony,” Tracy encouraged in an email. Smith, if you recall, was the medical examiner. “Go to where he is talking about the entrance wound of the bullet. He is talking about the fracturing of the skull and how much damage is done by the bullet. Now go on to where he says that the bullet recovered was small. The last sentence he says he would not have expected this much damage from a small caliber bullet.”
Smith actually said, “So, for a small caliber bullet, I would not have expected to have seen this sort of damage that occurred to this individual.”
I absolutely get how Tracy could hang her cap on this statement, or a similar discrepancy, but it doesn’t change the fact, for me, that the bullet caused those fractures in Doug’s skull. We can argue which gun fired the bullet, yet the injuries to Doug’s skull remain unchanged.
Tracy went on, noting again that Bernadette Davy’s testimony during the second trial was obviously questionable. Yet, once again, she is looking at Davy’s testimony in the context of Davy having been disciplined and leaving her job for falsifying reports in the years hence. At the time of Tracy’s second trial, Bernadette Davy was still considered to be a credible witness.
“Look at … Bernadette Davy (during) the second trial,” Tracy said. “She says she was ‘unable to make a conclusion as to whether or not the bullet was fired from that particular rifle.’ She was talking about the .22 rifle from my home. Now look (ahead). Davy says that her comparisons showed that the bullet recovered from Doug is consistent with a .22 CCI Stinger, which just happens to be one of the brands of bullets I had at my home. Yet she did not compare that bullet to actual bullets from my home. She used bullets on hand at the lab. Not the same.”
Tracy is correct here. Her point valid.
When I took trial testimony from the first trial and matched it up to the second trial, there were a few anomalies and minor inconstancies (basic human error), but overall I found all of it to be pretty much a mirror image. Witnesses were sticking to their testimony from years before. Many had, likely, re-read (the transcripts) from what they had testified to during the first trial. In the end, the truth is absolute: one does not have to recall it; fundamentally speaking, it lives and breathes inside of them.[1]
The one major difference between the two tria
ls was the fact that Tracy’s new lawyer called his own set of witnesses. In fact, Bill Crecelius’s first witness, Kelly Fite, a firearms examiner and former supervisor of ballistics at the GBI, having worked in the GBI Crime Lab for 31 years, stepped up and totally contradicted the DA’s expert.
Fite had gone over to the GBI lab in February 2004 to compare the bullets with the firearms involved in the case.
“I test-fired bullets with the two rifles and compared the test bullets with the State’s Exhibit 40,” Fite explained after Crecelius asked.
And what did those tests reveal?
“The Remington rifle could not have fired State’s Exhibit 40.”
“So, far as State’s Exhibit 28 and .22 rifle taken from Tracy Fortson’s house, what was your finding in regard to that rifle?”
“I found that bullets from this rifle were similar to the class characteristics of State’s Exhibit 40, however, there were no individual characteristics to say that rifle fired State’s Exhibit 40.”
What Fite meant was that the lands and grooves on the flattened bullet fragment taken from Doug’s body did not match those on the bullets fired from Tracy’s guns. Fite was challenging Bernadette Davy’s testimony.
Jurors would have to decide who they believed.
Bill Crecelius called a document examiner next, W.A. Robinson, a member of the National Association of Document Examiners, who boasted a specialty in fraudulent documents, certified through the Fraud Examiners Association.
Robinson had written on the subject and was also a certified peace (police) officer. He was more than qualified to testify as an expert in his field.
TARGETED: A Deputy, Her Love Affairs, A Brutal Murder Page 23
