“Have you ever seen this pink spiral notebook before . . . the shooting happened on December 13, 2001?” Hammerand asked, holding up the notebook.
“No.”
“Did you see it within the two to three years after the shooting?”
“No.”
“Do you recognize the handwriting at the top of the page?”
“Yes.”
“Whose handwriting is it?”
“It’s Dustin’s.”
There was a report. Hammerand asked Mona about it. “It says,” Hammerand then read, “‘Mona had just purchased notebook for school, had similar at house.’” Hammerand paused briefly. Then: “Had you purchased notebooks for your kids?”
“Yes.”
“And had you had spiral notebooks at your house?”
“Yes.”
“Did you have any pink spiral notebooks at your house?”
“I don’t think we ever had a pink spiral notebook.”
It was 4:28 p.m. The judge recessed for the day.
81
ON TUESDAY, NOVEMBER 1, 2011, Mona Wehde was back in the box answering questions about Jeremy Collins and various searches law enforcement conducted at her house. After that, Doug Hammerand indicated he was done.
Scott Bandstra said he was sorry for Mona’s loss. He could not imagine her pain. He sounded sincere.
But then this: “In a previous deposition, you indicated that you would do whatever it took to protect your children—correct?”
“Correct.”
“You still think that way today?”
“Yes.”
From that point, Bandstra moved on to Dustin’s mental abilities and medical record. This all led to Bandstra asking Mona about any “threats” Dustin had made in the past to family members. He was trying to set the groundwork for an argument that Dustin had a tendency to be violent; his life showed a precedent. Yet nowhere in Dustin’s medical history did it speak of the boy displaying violent behavior.
Whenever Bandstra seemed to make a little bit of headway while reading from medical records, referring to what Mona and Dustin’s doctors might have said about him being aggressive years ago, Mona shot it down, saying her comments were spurious, made in haste when she was upset.
“Okay,” Bandstra said at one point. “Dustin was punching holes in the walls, wasn’t he?”
By itself, in a report, this might have come across as the child displaying anger issues, or show a propensity to commit violence. But when Mona put context around it, the truth was that Dustin was responding to how life affected him.
“He punched one hole in the wall when his dad was going to take his puppy away,” Mona clarified.
“And you were concerned Dustin had suicidal idea-tions or he had been contemplating suicide, correct?”
“One time he brought a magazine to me and said he was depressed.”
They went back and forth; at times, Mona broke down, crying, rubbing tears from her eyes with a Kleenex, her voice cracking. In the end, what became clear through Mona’s cross-examination testimony was that she had dealt with a special-needs child for twenty years. If anyone sitting in the courtroom or on the jury had had a similar experience, he or she would realize that Bandstra was actually defining the term “special needs” by example.
* * *
The state concluded its witnesses with Rodney Englert, a crime scene reconstructionist with forty-four years’ experience, who had been hired by Ben Smith’s predecessor, Earl Hardisty. Englert had reconstructed the entire scene, studied every piece of available documentation. He talked coagulation and trajectory, fingerprints and positioning of bullet fragments. He discussed blood spatter patterns on walls and where the furniture was in terms of the victim. The gun safe location, lights on or off.
By the end of his direct and cross, close to four hours of extremely tedious, detailed, clinical testimony, Englert drew some rather shocking conclusions. One was that Tracey had likely shot Dustin Wehde in the back of the head while he was standing up. And although Englert found that Tracey could have fired several shots from behind her bed, he concluded it was impossible for her to have fired several of the other shots from this same position. Englert’s findings proved that Tracey was standing up near the end of the bed and tracked Dustin’s body as it fell to the ground. The final shot (from the .357 Magnum) was fired when Dustin’s head was lying flat on the ground—at least ten to fifteen minutes after those first shots to the back of Dustin’s head had been fired. How? According to Englert, Dustin wasn’t rising up off the ground when Tracey fired this last shot, and the last shot wasn’t fired just minutes after the first round. He was able to determine this because some of Dustin’s blood, which had spattered on the wall from the final shot, was coagulated when it hit the wall. Finally, Englert also concluded that Dustin had a shored wound close to where the .357 slug exited his skull.2
“An ex-Navy Seal . . . told me that was good shooting for a SEAL, let alone a helpless housewife who was being attacked by two men,” Trent Vileta later said.
* * *
As the defense got its case going, Bandstra called a forensic psychologist to talk about people who display a violent childhood and go on to later commit violence. Basically, this was the defense’s hired expert claiming Dustin Wehde’s record showed a person capable of the crime Tracey claimed he had committed. Hammerand fought it, objecting periodically, yet the doctor was able to make his points.
The problem with this expert and the next several witnesses Tracey’s defense called was that you had to believe Tracey in order to believe her experts.
At one point, Bandstra called a registered nurse who lived near Tracey and Michael to make a claim that she saw a truck—like the one Jeremy Collins drove—parked near her house on the night of the crime, somewhere near seven-thirty.
Hammerand said “no questions” when asked if he wanted to cross-examine the woman.
Then Bandstra put on a local bank employee to show that law enforcement, in the days after the crime, never asked for the bank’s video surveillance footage.
Thus, they were back to arguing that Michael Roberts was behind the crime. More testimony fraught with desperation.
When the banker said she did not recall seeing Michael in the bank on the day of the crime, Bandstra called the doctor who had reported seeing him. He said, “Yes, I did.... He came into the bank and he was very much in a hurry. . . .”
The state passed on the witness.
82
TRACEY’S DEFENSE CALLED HER MOTHER, Anna Richter, when the trial resumed on November 3, 2011, zipping right through its list, having nine witnesses testify in a little over one day.
Anna lived in Omaha these days. She and Tracey’s dad, Bernard, a retired Chicago detective, had been married for forty-seven years. She said she first heard about the incident from Bert, who had called, “crying hysterically,” saying, “Someone was shot and someone was running from the house.”
In that one answer, Anna was able to get across two very important points for her daughter: the second intruder theory and Bert being terrified.
Then, with her next answer, Anna explained how Tracey reacted to the incident: “There were squad cars all over and an ambulance,” Anna testified, before adding how she “jumped out of [her] car” and ran toward the house to find her daughter. Anna was desperate for information. She wanted to go into the house, but a cop said she couldn’t. “And then I’m not sure if it was an officer or the man next door told me that she’s going to be okay, they’re working on her. She was having a hard time breathing.”
Here was, once again, exactly what the defense needed: Tracey was full of anxiety from what had just occurred.
The problem was that these comments were in total contrast to what law enforcement had described as a calm woman, standing on her porch when they arrived, scolding her child, telling him to be quiet and let her explain, unafraid that a second intruder might be hiding in the bushes or behind a tree.
Anna discussed the hospital scene next.
“Well, she was crying and she was shaking and she had a mark from this part of her neck,” Anna said, showing jurors where she meant, “going over here, and it was a really deep red color.”
Hammerand had two inconsequential questions for Anna.
* * *
Next up was Jeremy Collins’s ex-wife, who explained when he quit his frozen-food delivery job. But what the defense probably did not expect was Jeremy’s ex-wife actually talked about how she and her then-husband had discussed him quitting the job. So it was not some sudden, rash decision made before he broke into a house, as the defense had been insinuating.
“On December 13, 2001, you were expecting Jeremy Collins home for supper that night?”
“Yes.”
“You had some beef stew in the Crock-Pot?”
“Yes.”
“Were the kids at home with you that night?”
“Yes, they were.”
“Okay. And did Mr. Collins ever show up for dinner that night?”
“No.”
* * *
This might have hurt the state if Jeremy hadn’t been in the throes of a hot and heavy affair at the time—and if Doug Hammerand had passed on questioning the woman. But when Hammerand asked Jeremy’s ex-wife how she could recall that night so long ago with exact detail, the state got a gift.
“We had several calls back and forth and he was downtown at the bar and I just wanted him home. He asked me a couple times to come down there to meet him. I wouldn’t come [to the bar]. I was very angry, so I took the kids and my Crock-Pot and went to my mother’s.”
And on her way, the ex explained, she did something else.
The calls began at 5:30 p.m. Jeremy wanted to hang out with his wife at a bar in Ida Grove. He invited her there. Ida Grove was a half-hour drive, on a good day, from Early. Jeremy’s ex said it took her forty-five minutes to get there after doing several things at home. She wound up going by the bar on her way to her mother’s house—and saw Jeremy’s truck parked out front.
It was after 7:00 p.m.
* * *
Bandstra’s next witness was somewhat of an odd, calculated move. Earl Hardisty, a college peer of Bandstra’s, had been the prosecutor in the case before Ben Smith. He had pooh-poohed the idea of charging Tracey. And here he was, on his way into the courtroom to testify on Tracey’s behalf.
For the first half hour of Hardisty’s testimony, he focused on the Jeremy Collins thread, which was about the only thing left for Tracey to hang on.
It didn’t take long after that to see that Earl Hardisty was here, basically, to fall on his law enforcement sword. Bandstra lobbed a softball in the heart of the strike zone: “Do you have an opinion regarding the law enforcement investigation that was done initially regarding the December 13, 2001, shooting?”
“Yes,” Hardisty answered. “The initial investigation done by the sheriff’s office in 2001, 2002, and the DCI in 2001, 2002, I felt that there were a lot of things that were not followed up on and not done in those investigations.”
Bandstra asked for specifics.
“Yes, I thought somebody should have tried to confirm that Tracey actually fired all the shots that were fired because it was clear that they were fired from two different locations.” He then added how he also “thought” that a “trajectory analysis of the bullets to pinpoint the locations they came from” should have been done; and an “analysis that the blood spatter—to try to confirm or not the story that was told.”
Hardisty gave no reason why he never expressed this opinion to law enforcement as the chief officer driving the investigation.
He said he had “concerns” that no one took Tracey’s clothes and that no fingernail scrapings were done, beyond the fact that no one questioned Tracey about a so-called secret door in her closet that went into another room.
Then Bandstra asked about Dan Moser, the original DCI investigator.
“The general nature of the conversation [I had with Moser] was . . . that he didn’t feel any further investigation was warranted, that . . . it was a home-invasion situation and Tracey had defended herself.”
As the day continued toward late morning, Hardisty, time and again, questioned just about every aspect of an investigation he had overseen himself as prosecutor.
By the end of his testimony, Hardisty said he believed Michael Roberts was a major suspect, mainly because of a million-dollar life insurance policy taken out on Tracey, which provided a motive.
* * *
Doug Hammerand was in a tough position on cross. Here was a former colleague, one of them, per se. And Hammerand’s job was now to rip apart the argument Earl Hardisty had just presented.
So that’s what he did. Hammerand brought up the fact that Michael Roberts was on a business trip, and Jeremy Collins’s ex had just verified a timeline for him.
Neither man had the opportunity to commit the crime.
Hardisty said he knew that.
Hammerand moved on to the idea that if Hardisty wasn’t happy with the investigation, he could have, as the chief law enforcement officer, ordered more to be done.
“After reading the file, if you wanted to follow up on things, you could ask them to follow up on things, right?”
Hardisty once again attacked Dan Moser, answering, “DCI was not willing to reinvestigate the matter, per Moser.”
“You could have law enforcement or the DCI laboratory, you could have the criminalist, do an examination at any time that you request, correct?”
“We eventually did.”
From there, they got into a back-and-forth of Hammerand saying you could have done this, but did that; and Hardisty saying, I did this, though DCI did that.
It went nowhere. The point of Hardisty’s testimony was unclear. It was as if Hammerand, with his tone and questioning, was saying: Why in the hell are you here, exactly—just to bash the former regime?
After Hammerand finished, Bandstra asked Hardisty a few questions on redirect and finished.
* * *
Following that, there was some discussion about Tracey testifying. Her lawyers—perhaps knowing her history—wanted it put on record that they had discussed with their client the opportunity she had to testify and she was given all the information she needed to make an educated decision. This simply covered them. If Tracey was found guilty and tried to come back and say they never discussed her options, here it was as part of the record that they had.
With that out of the way and Tracey undecided, Bandstra called his next witness: the best alternative to Tracey’s voice the defense had.
Bert.
83
BERT PITMAN WAS TWENTY-ONE years old. He had a boyish charm he’d carried most of his life. He wore a white dress shirt and tie, a dark-colored sweater, and tried to project some sort of Ivy League fraternity persona. As he walked in and toward the witness-box, Tracey “bawled uncontrollably,” one source inside the courtroom later told me, pouring on the emotion, trying to show jurors how much she loved her boy. It was another open demonstration of over-the-top, crass, and preposterous hysterics. Many jurors disliked this woman already. They did not need another reason.
Bert explained that he was a full-time student at Loyola/New Orleans, majoring in film and English. Of course, after being asked, Bert gushed over his mother, painting a picture of a saint, the one woman in the world he looked up to.
Then, right on cue, Bert bashed Michael Roberts.
As one juror would later tell NBC, “When [Bert] took the stand, when he started giving his account . . . the way he was presenting himself, the first thing that came to mind was ‘he’s well-coached.’”
That polished performance came through in many of the answers Bert gave, showing how far Tracey was willing to go: ten years after the crime and she still told her son what to say.
When Bert finished assailing Michael’s tenure as his stepfather, he described the layout of the house. As he did this, Bandstra worked
in, as many times as he could (it became so utterly obvious), that Bert was eleven at the time. Remarkably, Bert was able to recall detail as though the incident had taken place the previous week. As he talked about Dustin, for example, Bert said Dustin was one of those people who overstayed his welcome in the Roberts household whenever he visited. He didn’t know when to leave.
How an eleven-year-old could pick up on this was never discussed.
When asked how much time Dustin and Michael spent together, Bert said, “Pretty frequently.”
Then, laying the groundwork to trash the villain in Tracey’s fairy tale, Bandstra asked: “Can you tell the jury what your observations were regarding Dustin’s moods?”
“He had definite mood swings, but he didn’t show much emotion other than anger. And then if it was anger, it was pretty severe.”
Here was another extraordinary piece of insight from a boy who had not yet reached puberty.
“And what do you mean by ‘pretty severe’?”
“I mean you didn’t want to be around it.”
Bandstra asked for an example.
“Well, when we went paintballing, I caught him cheating. I shot him and he took dirt and wiped it off and it was like, ‘Why did you cheat?’ And he didn’t like that I confronted him about it and it was very threatening, and I got out of there pretty quickly.”
Bert called Dustin “intimidating.”
Followed by “Loud.”
Then: “Much bigger than me.”
None of which he had ever said to law enforcement.
Bert was next asked to describe a paintball outing—and, wouldn’t you know, he wound up giving jurors a clear, dramatic re-creation of the crime, while showing where Dustin could have gotten the idea for the home invasion.
Bert testified that Michael called the paintballing exercises “invade the house”—once again bringing new information into the case. As he explained this, Bert said, “A team would be inside the house and there would be a team outside the house, and the team outside the house had to go inside the house and kill the team inside the house.”
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