Confessions of an Innocent Man

by David R. Dow

  Five days a week at nine A.M. guards shackled me up and took me to a room where I met with my lawyers or members of their team until midafternoon. When I got my dinner tray at night, it also held the sandwich I had not eaten for lunch. By the time my trial finally began, I had lost sixteen pounds and grown flabby at the same time. During my thrice-weekly showers, I would look down at my concave chest and rounded belly and wonder how that was possible.

  I was allowed to buy newspapers or books, but I did not have the concentration to read. I did purchase a spiral notebook and made notes of things I needed to tell my lawyer. I slept a lot. Escaping into unconsciousness is how I avoided fixating on how suddenly and without warning my entire life had gone from privileged to bereft.

  My legal team wanted to delay the trial so they could talk to people who had known my family in Mexico, but I said no. Nothing my aunts or uncles or cousins might have to say had anything to do with my case. I didn’t even know if any of them were still alive.

  Given the circumstances, my complete confidence might surprise you. But I knew the truth, and I still had faith in the system. I was positive the jury would find me innocent, because I didn’t do it. So when my lawyers suggested a three-month delay, I said, Not a chance, or you’re both fired. Let’s get this show on the road.

  * * *

  • • •

  Early one Monday morning, after I’d spent more than thirteen months in jail, a female guard brought me a suit and a tie and told me to be dressed in fifteen minutes. It was not yet dawn. Two heavyset deputies carrying Mace and armed with holstered .45s came for me and walked me through the same set of underground tunnels I’d been through before. In the holding cell I practiced looking worried yet confident. I’d heard jurors form an impression about guilt or innocence right away, merely by looking at the defendant, before they have heard even a single shred of testimony. I wanted them to see an innocent man when they looked at me—scared and uncomprehending, but innocent. I opened my eyes wide, then narrowed them a bit. I rubbed them until they were swollen and red. My palms were wet and I wiped them on my wool trousers. The suit was navy blue and off-the-rack. Whichever member of my legal team picked it out had done a good job.

  By the third day of jury selection I worried I was looking bored. Here’s the way it worked: Sixty people with Harris County Juror stickers affixed to their shirts or blouses packed the courtroom’s benches. The judge talked to them first, then the prosecutor, then my lawyer. They asked questions like, Are any of you related to the defendant or the victim in this case? Have any of you or a member of your immediate family been convicted of a crime? Have you served on a capital murder jury before? Questioning went on like this for half a day. Before court ended that afternoon, the lawyers stood whispering in front of the judge, and a few minutes later, the judge called out the numbers of eight of the potential jurors and told them they were released, and all the others should return the next morning at eight.

  On day two, jurors came into the courtroom one at a time. They were individually questioned at great length by the lawyers and the judge on topics ranging from their attitude toward the death penalty to what television shows they watch. The lawyers asked them what books and magazines they read, which websites they visit, where they go out to dinner, how often they attend church, whether they follow sports, and how they felt about defense lawyers and police. They could have been filling out online applications for a dating site. You might be surprised to learn that many Americans think someone is guilty if he gets arrested and the prosecutors take him to trial. My side didn’t want those people on our jury. Their side did. They were looking for people who trust that the police get it right. My side preferred jurors who are skeptical of government. Their ideal jurors were people who demand an eye for an eye. We wanted women and men who know couples consisting of very different social and economic backgrounds. They wanted people who support building a border wall. The prosecutor would try to identify jurors who were against the death penalty, and then corner that juror into saying she could never sentence someone to death, the result being she was disqualified from serving on the jury. My lawyers would try to get the same person to admit she could listen to all the evidence and evaluate it impartially, and sentence someone to die if the circumstances warranted that punishment. It was a verbal chess match between the lawyers, who were manipulating potential jurors like pawns on the board. For part of the first day I marveled, but soon it became tiresome, and then I grew alarmed my future depended entirely on guessing right.

  The scripts did not change. By the time the prosecutor was asking the fifth potential juror whether he could sentence a defendant to death if that defendant had never before committed a crime but had bludgeoned his wife to death to collect an inheritance, I was already losing the battle to keep an engaged expression on my face. And yet we were just getting started. These individual colloquies lasted three and a half weeks. I actually looked forward to going back to my jail cell at the end of the day. I wondered what the jurors would think if I fell asleep at my own trial.

  Then, midday on a Thursday afternoon, the judge banged his gavel and we had a jury: six white men, four white women, one black woman, and one Latina, ranging in age from twenty-eight to sixty-four. When they took their seats, the black woman stared straight at me. The other eleven looked away. The judge gave them some instructions, told them he had some technical matters to go over with the lawyers the following day, wished them a pleasant weekend, instructed them not to watch the news or read the paper about the case, and directed they be in their seats first thing Monday morning. They murmured among themselves as they filed out. Heidi watched them leave. Jonathan looked at her and said, So? She said, It’s rare I find myself counting on the men. But all we need is one. They were not talking to me, but I offered an opinion anyway. I said, I think three of the women looked sympathetic. Heidi said, Maybe so. She was just being polite.

  Whatever my lawyers were doing that weekend to prepare for Monday’s start apparently didn’t require me, so the jailers left me in my cell. I lay on the bunk, stared at the wall, and had the first of what would become many fantasies of escape. I wondered what the guards earned in a year. Twenty-five, maybe thirty thousand dollars? What could I offer one to bring me jeans and a shirt and turn me loose? How could I transfer the money? How could I be sure they’d do what they promised once I had paid? If I did escape where would I go? Are there some countries that would refuse to send me home? On Sunday afternoon, with a local pastor preaching on TV, I said out loud, This is ridiculous. There is no way the jury won’t know I’m innocent. I finally fell asleep and didn’t wake until the guards came for me on Monday morning at half past five.

  Jonathan reminded me to keep my face open and warm, especially if anyone said anything untrue. Heidi said, The jury will watch how you react. They’ll know if you’re faking. Their advice made me self-conscious and nervous, but once the witnesses finally started to testify, it was easy to be sincere. Tieresse’s housekeeper, Stella, was first to take the stand. She explained she had been working for Tieresse for almost fifteen years, that she usually arrived at work shortly after nine and stayed until five thirty or six, that she did housekeeping and laundry, ran errands, and sometimes cooked. She said Tieresse was an early riser who had already gone to an exercise class at the gym by the time she got to the house but that I would usually still be sleeping when she arrived. She spoke with a heavy Latvian accent and the judge kept reminding her to speak up and slow down. She said she was confused the day of the murder because Tieresse was not there and the door to the parlor was ajar. Sometimes, she told the jury, Tieresse and I would be swimming. She kept the water heated all year round. But the pool was empty. The coffeepot was on a timer, and the carafe was full, with not a single cup gone. Usually there was freshly squeezed grapefruit juice in a carafe with ice, but the pitcher wasn’t on the counter, and there were no fruit rinds in the sink. At first she thought the exercise cla
ss had run late, or that Tieresse had stopped to buy bagels on the way home, but she went into the garage and saw Tieresse’s car parked and empty. That was when she began to worry.

  The prosecutor showed Stella a photo of Tieresse, with her head resting in a pool of black blood, and asked whether that was how my wife had looked when Stella found her. Stella choked up and looked straight at me. She said I was there most mornings but not that day. A buzzing started inside my head. I concentrated on maintaining a neutral face. I glanced quickly at the jurors. They were all focused on the witness. One man and two women were leaning forward in their chairs. I saw Stella’s lips moving and two jurors nod, but I could not hear what she was saying. Then the prosecutor sat and my lawyer stood, and it was quiet again. Heidi asked Stella whether she ever witnessed us fight. Stella said, You mean like did he hit her? My lawyer said, Yes, did you ever see my client hit his wife or even raise his voice to her? Stella said, Mr. Rafael? No, ma’am. Never. He love her. Heidi asked her whether Tieresse was happy, but the prosecutor objected, and the judge would not let her answer, even though she had already started to vigorously nod. When it was the prosecutor’s turn again she asked whether I ever had strange women over to the house, and Stella looked at the judge, confused. The prosecutor said, I want to know whether you ever saw the defendant at the victim’s house with another woman. Stella said no, never. The prosecutor said, You understand that I am asking you because the defendant has admitted to having sexual affairs with at least four women during the time he was dating or married to your employer. I am trying to learn whether you witnessed any of these liaisons. Jonathan objected, and the prosecutor withdrew the question, but it was too late for me to hide the shame that had spread across my face. When Stella stepped down, she left without looking my way. I felt jurors staring at me, but could not force myself to return their gaze.

  Three police officers testified next. Two were the lead homicide detectives, Cole and Pisarro. The other was the patrol officer who had been the first to arrive at the house in response to the 911 call. He recounted how he checked to make sure the victim was dead and upon finding no pulse secured the crime scene and called for support. He described finding the candlestick next to the body and said it was covered with blood, strands of hair, and pieces of Tieresse’s scalp. My lawyer objected and the judge said, Sustained. The prosecutor showed him photographs he had taken of open jewelry boxes scattered on the closet floor and asked if that was how he had found them. She asked him, Officer, have you investigated robberies before? He said he had. She said, Did this look like a robbery to you? My lawyer objected but the judge said, Overruled, and told the officer he could answer. The policeman said, No ma’am. Usually a thief makes a mess. In this case, except for the jewelry boxes, the rest of the house was pristine. She said, No more questions for this witness, Your Honor. Thank you, Officer.

  It was my lawyer’s turn. Jonathan established the officer was a six-year veteran who had investigated a dozen home robberies or burglaries and had testified previously in eight trials. He said, Do you consider yourself skilled as a robbery investigator? and the officer said he did. My lawyer asked, Officer, if a thief was planning to steal a butcher knife, would you expect him to make a mess in the bedroom? The policeman said probably not. My lawyer said, And if the thief was looking to steal a shoe, would you expect a mess in the kitchen? The police officer looked at the prosecutor. She remained seated. He said, Probably not. Jonathan took a swallow of water then said, Are you married, sir? The prosecutor objected. My lawyer said, I will get to the point quickly, Your Honor. The judge told the policeman to answer. The policeman said yes he was, that he had been married for eleven years. My lawyer asked, And does your wife have any jewelry? He said, Yes, her wedding ring, a couple of others, some earrings, a few necklaces. My lawyer said, Where does she keep it? The police officer looked at the prosecutor again, but she did not stand up. My lawyer said, You may answer, sir, and the policeman said, In our closet.

  Detective Cole was next, followed by Pisarro. They confirmed that crime scene photos shown to the jury reflected the way Tieresse’s body looked when they found her. Cole described how he and two crime scene technicians had dusted for fingerprints in various locations, including the doorknobs, desktop, bathroom, and closet. Pisarro said they had made a mold of a shoe impression in the flower bed adjacent to the front door, but the impression turned out to belong to a yard worker. The most damning testimony came from Cole. Earlier, Stella had said she assumed Tieresse had already gone to and returned from her exercise class because the house alarm was turned off. Cole testified that after he and Pisarro had interviewed Stella, and she had told them the alarm was off when she got to the house that morning, they examined it and found it to be in working order. The prosecutor asked, What conclusion do you draw from that, Detective? Cole said, Well, ma’am, it means someone who knew the code turned it off. She said, Do you know who had the code? Cole said, The homeowner, the housekeeper, the alarm company, and the defendant.

  Before the prosecutor had a chance to sit down, my lawyer was already on her feet. Heidi said, It is possible, isn’t it Detective Cole, the alarm was never turned on. Cole said, The housekeeper told us the victim always turned on the alarm before retiring. My lawyer asked, But it is possible she didn’t that night, isn’t that true? Cole said, I suppose. Almost anything is possible. My lawyer said, And what time did the victim retire the night before she was killed? Cole said he didn’t know. She said, Well, Detective, if the victim turned on the alarm before retiring, and the thief broke in before she went to retire, you would expect the alarm not to be set, isn’t that so? Cole said, I do not think the homeowner pulled all-nighters. My lawyer objected and the judge said, Sustained. My lawyer said, Please answer my question, Detective: If the thief was already in the house before the victim got ready for bed, the alarm would be off in the morning, isn’t that so? He said, Yes ma’am. My lawyer nodded, as if to say, Exactly, and she sat back down.

  The prosecutor asked, Did the defendant have the alarm code, Detective Cole? Cole said, He told my partner and me he did, and the housekeeper confirmed as much, so I assume so. She said, Thank you, Detective.

  Opening day’s final witness was the coroner. He testified that Tieresse had died from blunt trauma. Her skull had been fractured and showed evidence of at least thirteen blows. I held my head in my hands. He said that Tieresse’s left wrist and right hand were shattered, indicating she had tried to fight the intruder off. I inhaled sharply, and for the first time since her death, I felt unable to control my rage. I gripped the arms of my chair. My lawyer said, Look at me, and when I did, she whispered, I need you not to look angry. I need you to relax. I dropped my head into the crook of my right arm and squeezed shut my eyes. I felt Jonathan touching my arm and Heidi’s fingers on my back. It was the first sign of affection anyone had shown me since the day of my arrest. I felt the black juror staring at me, but I didn’t look back. The prosecutor asked the medical examiner approximately what time Tieresse had died. The coroner said, Based on the temperature of the liver as well as indicia of rigor and livor mortis—essentially, the color and rigidity of the body—death appears to have occurred between ten at night and three A.M.

  I do not know how the jury reacted to this testimony because I was not watching them. I was not concentrating on my expression. I think Jonathan was asking him questions, but I was not listening any longer. Instead, I was thinking to myself. I was thinking how Tieresse was fighting for her life at the very moment I was in bed with a waitress, and I didn’t care anymore what the jury decided. Nothing they could do to me would be punishment enough. Maybe I hadn’t killed her, but I hadn’t saved her either.

  The judge reminded the jurors not to watch the news or read the paper, and he sent them home for the evening. The lawyers sparred over some technical issues about jury instructions. The two deputies came over with their handcuffs. Before they took me back to jail, I told my lawyers I wanted to chan
ge my plea to guilty.

  * * *

  • • •

  Instead of taking me to my cell, the deputies put me in a room where I would meet with members of my legal team. A moment later, Heidi walked in. She said, You are in charge. If you want to change your plea you can. Did you beat your wife to death?

  Everything I had been doing to hold myself together failed at once. I sobbed so violently I could neither catch my breath nor speak an answer to her question. I shook my head, and Heidi said, Don’t worry about it. I know the answer to that question. She placed her hand on top of mine, banged on the door to let the deputies know we were through, and said, See you in the morning, Rafael.

  The prosecutor had told the jury before even a single witness was called that the case against me was entirely circumstantial. There were no eyewitnesses, no damning calls to 911, no videotape, no physical evidence. She said, It was a case of the dog not barking. Whoever killed Tieresse knew the code to turn off the alarm. Whoever killed her knew exactly where she kept her jewelry. Whoever killed her knew when she would be alone. Whoever killed her knew that what looked like a delicate antique candlestick was actually a rock-hard potential murder weapon. She said, There is only one person in the world who has all those characteristics, and he is sitting there in front of you. She pointed at me and let her arm float in the air as she walked backward to her chair.