April 20, 2002, 8:38PM Reasonable doubt Death row inmate's trial may have had fatal flaw By MIKE TOLSON

Anibal Rousseau

As murders go, it was the sort guaranteed to fetch modest attention.

Two men were held up at gunpoint in a restaurant parking lot on the south side of Houston. One resisted by pulling a gun from an ankle holster. Shots were exchanged, and he was mortally wounded, dying the next day in a hospital from massive internal bleeding.

The city in 1988 was hardly a stranger to violent encounters. David Delitta's murder in late October was one of 463 homicides in the city that year, and the next day's news contained little beyond the barest outline of facts.

But because Delitta was an agent with the Environmental Protection Agency, the police investigation was quick and aggressive. Federal agents were brought in to assist. The surviving robbery victim helped authorities work up a composite drawing of the assailant. When a robbery detective thought he recognized the face, police had a solid lead.

A month later, a Cuban immigrant named Anibal Garcia Rousseau was in custody. His trial the following May was brief and unremarkable. Only two jurors suggested that the charge had not been proved, and they didn't fight for long. The verdict was guilty, the sentence death.

There was not the slightest hint that within the bare-bones outline of this simple case lay the makings of any sort of injustice. Thirteen years later, however, it looms as the sort of nightmarish conviction that supporters of the death penalty fear.

Today Rousseau's death sentence might be seen as a textbook example of the risk that comes from basing such a decision on a single eyewitness. Or it could be cited by critics of Houston's capital-punishment mill as another instance of an inadequately prepared defense attorney matched against overeager prosecutors.

The one thing it was not is the kind of case of which the state's criminal justice system can be proud. Whether innocent or guilty, Rousseau never had the chance he should have.

The first step of Rousseau's last legal journey was a thing of no particular moment. He was a typical defendant, a rough guy with a criminal history and a known drug problem. He seemed to fit the profile of a robber who would stick a gun in somebody's face.

A Cuban defector who arrived in Houston in 1962, Rousseau was an immigrant story gone wrong. He married in 1963 and had five children but did nothing to redeem the promise of opportunity in his new life. His uninspired work ethic and periods of heroin addiction led him into marginal jobs, small-time drug dealing, resultant prison terms and, in the summer of 1988, a brief career as a bank robber.

"I come here too young," Rousseau, 62, said last week in an interview on death row in Livingston. "I got involved with the wrong company and made some bad decisions."

And then one day in November 1988 he saw himself on television. He knew he was a wanted man. His confederate in three local bank robberies had been caught and gave police his name right away. But they were saying on TV that he had killed a federal agent.

On Dec. 9, after a month on the lam, Rousseau surrendered to Houston police to face charges of capital murder. As he tells it now, he did so to clear his name. He knew he would also have to contend with the robbery charges, but he said he had grown scared that police incensed over the murder of a law-enforcement colleague might shoot him if he were caught.

"I was told by my lawyer I was going to be found innocent," Rousseau said. "I didn't do it, simple as that. How are they going to find me guilty?"

Within six months, Rousseau found himself on death row. The case against him was as slight as his 5-foot-5 frame, with the state relying almost solely on the positive identification by the surviving robbery victim. Nothing physical tied Rousseau to the crime. There was a wisp of circumstantial evidence but barely enough to notice. A jury was convinced nonetheless, at least in part, one juror said later, because there was nothing to convince them otherwise. The punishment phase of the trial, in which Rousseau's criminal history was outlined, seemed only to confirm their verdict.

But from the time of his arrest, Rousseau had professed his innocence. He said he had never robbed anyone in a parking lot or killed anyone he had held up. Nobody paid him any mind.

Today, there may finally be reason to believe him. Among those who have become convinced his conviction is fatally flawed is the prosecutor who sent him to death row, Lorraine Parker.

"It bothers me tremendously," said Parker, now a civil trial attorney in Denver. "I'm terribly afraid the wrong guy is in jail."

Rousseau's case has haunted her for the past year, after she learned that vital ballistics information never made its way to her or to the defense attorney before the trial. The information might have resulted in the dismissal of charges. At the very least, it would have forced more investigation.

In a turn seldom seen in Texas capital cases, the former prosecutor says the trial was unfair and is calling for a new one.

"I would hope everyone would be interested in the right man being convicted, even if it means reopening the case," she said.

At its heart, the story of Rousseau and his 13-year quest to prove his innocence is a tale of two guns. His legal appeal, currently back before the Texas Court of Criminal Appeals, turns on a simple matter: The weapon used to kill David Delitta on Oct. 29, 1988, was not the one Rousseau was known to have used during a string of holdups over the summer of 1988.

It was not the gun prosecutors tried hard to tie to Rousseau during his trial.

It was not the chrome- or nickel-plated revolver that the state's eyewitness described in emphatic detail as the one used in the fatal holdup.

The actual murder weapon, as established by the Houston Police Department's own firearms specialists, was a black revolver of different caliber and manufacture found five months after Delitta's slaying in the possession of a Dominican drug dealer named Juan Guerrero, who ultimately confessed to using it in another murder.

Had there been a connection between Rousseau and Guerrero, the prosecution of Rousseau might still have made sense. But if there was one, it was not obvious.

"There is no case at all," said Bryce Benjet, Rousseau's current attorney. "I don't disagree there was a chrome revolver that could have been tied to Rousseau. The problem is, this 9mm chrome revolver had nothing to do with these murders."

Nevertheless, at Rousseau's trial, police officers testified about a possible trail by which a weapon used by Rousseau could have ended up in Guerrero's hands. They had gone to considerable effort to track the ownership of a silver revolver used by Rousseau in his bank robberies and, presumably, the robbery outside of Randall's Restaurant and Club in which Delitta was killed.

Interviews with several people revealed that the silver pistol, a 9mm Ruger Speed 6, belonged to a friend of Rousseau's, Sam Malone, and that Rousseau gave money to Malone when he needed to use it. Malone's son and an acquaintance told police they later sold the gun to a drug dealer for $60 and some cocaine. The Ruger was never recovered by police, however.

In trial testimony, Officer Jaime Escalante said he had personal knowledge of what happened to Rousseau's gun. He said it ended up in the hands of "black Dominican" drug dealers; Guerrero was not mentioned by name. Presumably, Escalante had not seen the black Rohm .38-caliber revolver found with Guerrero, which eventually was determined to be the gun that killed Delitta. If he had, he would have known his testimony was irrelevant.

In short, the murder committed by Guerrero and the ballistics tests done in support of his prosecution all but torpedoed the theory of the state's case against Rousseau. If you could not tie Rousseau to the weapon that was in police custody, how could you be sure he was the killer?

But Rousseau's attorney never knew to ask that question. The reason is simple, he says today. Prosecutors never told him about the other murder, the other murderer or the ballistics tests conducted on his gun. By law, prosecutors must disclose all material potentially beneficial to the defense.

As Frumencio Reyes prepared for trial in early 1989, the key issue -- in fact, the only issue -- that he was dealing with was the positive identification of his client by the surviving robbery victim, David Sullivan.

From the time police began working with him, Sullivan had been calm, clear-headed, the complete professional. He was quite sure about what he saw. Rousseau was the man who had pointed a gun at him that night and the one who had shot his colleague. The parking lot was brightly lit. He had seen his face clearly from about 10 feet away, and he had seen his gun, a large-caliber silver revolver.

At trial, prosecutors later would bolster their case with bold claims of Sullivan's ability to recall events. They cited courses he had taken to sharpen his eye for detail and even asserted that he had a photographic memory.

The defense brought forth two eyewitnesses who insisted Rousseau was not the man they saw that night. Reyes emphasized the failure of another eyewitness to pick Rousseau out of a lineup. He pointed out that a fourth witness had described a robber much darker in complexion than Rousseau. But the jury chose to believe the witness who was closest to the crime.

Sullivan was wrong, however, at least with respect to the gun he saw.

Today, Reyes has no doubts about what the ballistics report would have meant for his case.

"If that report had been made available to me, a motion to dismiss the case would have been warranted," Reyes said. "There's plenty of precedent along those lines. I believe Judge (Carl) Walker would have taken a very strong position and strongly considered kicking the case out."

The first of the two ballistics reports was finished April 15, while Rousseau was in jail awaiting trial. It showed that the bullets taken from the bodies of Delitta and Leo Williams, who was killed March 1, 1989, were fired by the same weapon.

The second test was performed on the black Rohm revolver seized when Guerrero was arrested March 14, 1989. The testing was requested by Sgt. C.S. Arrington on April 19, three weeks before the start of Rousseau's trial. But according to the report, the test was not completed until June 27. It concluded that this revolver had fired the shots that killed Williams and, therefore, Delitta.

Bryce Benjet, Rousseau's current attorney, said he found both reports, years later, in the district attorney's case file. He said there is no apparent explanation for why the reports were not given to the defense.

The second report might have come in a month after the trial, but its conclusion was so pertinent to the conviction that he believes prosecutors had an ethical obligation -- not to mention a moral imperative -- to bring the matter to the attention of Rousseau's attorney.

Former prosecutor Parker sheds no light on what happened. She kept a thorough log of all the material turned over to defense. No ballistics reports are mentioned. She said she does not recall knowing the results of any tests, or even that police had recovered the murder weapon.

"I'm sure I did not know the gun had been recovered," Parker said. "If I had, we wouldn't have used an exemplar. We would have used the actual weapon. This is something I should have known."

Of course, using the actual weapon instead of a chrome look-alike would have made it difficult to proceed against Rousseau, at least without further police investigation. It was not the gun Sullivan described and, more important, it was found in possession of a known drug dealer and suspected killer.

"If (Rousseau) can be linked to the gun, the right man was convicted," Parker said. "If he can't, then the wrong man was convicted."

Parker is troubled by many aspects of the case, including her own questioning of Escalante, one of the Houston police officers who had worked on the Delitta murder. She said she has no recollection of what prompted her at one point to ask him what happened to the gun.

Escalante's authoritative response suggests that somebody in the district attorney's office was aware of Guerrero's arrest and knew the importance of tying Rousseau to him or the gun found in his possession.

"We traced it down to a black Dominican that had been involved, or that same group that had been involved, in three murders," Escalante testified. "And I filed charges on one of them, and all of them have outstanding murder warrants, narcotics, out of New York and Houston."

Escalante's testimony did not get very far. Objections by Reyes stopped it as hearsay. Still, Parker was surprised when told about it recently.

If, as she says, she had been unaware of the connection between Guerrero's gun and Delitta's killing, then somebody who was aware of it likely suggested bringing it up. It's not the sort of question prosecutors ask without a good idea of the answer.

"Somebody knew something," she said.

Parker stops well short of accusing her co-counsel, Chuck Rosenthal, of sandbagging her. Considering that the second ballistics report had not yet come back, perhaps the failure to bring forth the gun was inadvertent. In response, Rosenthal said there was no deliberate suppression of evidence that Rousseau could have used to prove his innocence. Timing, he said, was the likely explanation.

Regardless, the prosecution benefited by not producing the test or the murder weapon. No more investigation of the case was necessary. And Sullivan's credibility, which was all the state had to rely on, would remain intact. He insisted right after the robbery and again at trial that the gun he saw was silver. His misidentification could have been argued to be the result of bright lights in the parking lot shining off the metal surfaces of the gun, but an element of doubt would have been introduced.

With the murder weapon kept away from the trial, the prosecution of Rousseau could proceed smoothly.

"Why wasn't the (ballistics) report generated?" Parker said. "You can see why I am very bothered by this. It just doesn't meet the smell test. There could be a very innocent explanation for everything, but until you look into it, you don't know."

Benjet is not inclined to pass the oversight off as innocent.

"The smoking gun in the case is the examination that was asked for April 19 was not reported until June 27, 1989," he said. "It was asked for several weeks before Rousseau's trial. It's awfully suspicious.

"This is the report that shows Juan Guerrero was in possession of a gun involved in both crimes. With this, they have some guy who's a murderer in possession of a murder weapon, who fits better some descriptions of the gunman in the Delitta killing, and whose gun shoots down the description of the state's eyewitness to that killing."

Rosenthal, who succeeded Johnny Holmes as Harris County district attorney in 2000, said he does not specifically remember whether he saw the first weapons report.

"I would assume if we got the report before we concluded testimony, I would have seen it," Rosenthal said. "We're usually looking out for these things."

He also said that if he had seen the report, it would have been passed on to the defense. As for the second report, he said it did not come in until the trial was over and ultimately was placed in the file. At some point early during his appeal, Rousseau's attorney should have seen it, Rosenthal said.

Rosenthal does not share Parker's concern about the conviction. He said he believes Rousseau is guilty and that any confusion about the gun could be cleared up.

"I don't have any trouble reconciling in my own mind how it could have happened," he said of the murder weapon's transition from Rousseau to Guerrero. "There was information from Sam Malone's girlfriend that Rousseau was selling everything he had. I think it's very possible that the gun could have been used in any number of nefarious acts."

As for the lead prosecutor's belated misgivings, Rosenthal is charitable.

"If that's what she believes in her conscience, she should follow it," he said. "Understand, if there's somebody on death row who is not supposed to be there, that's not supposed to happen."

Attempts to reach Escalante, who is still with HPD, were not successful.

Rousseau, not surprisingly, said he never owned or used a black revolver.

One of the few other bits of evidence offered by the state against Rousseau was testimony suggesting he was on the run immediately after Delitta's killing. Prosecutors insisted Rousseau, who lived near the scene of the crime, never returned to his apartment afterward. They brought the manager of the apartment complex to the stand to say as much.

Benjet, however, insists this is not true. According to an apartment lease he uncovered during his investigation, Rousseau's wife had rented a new apartment on Oct. 7, three weeks before the Delitta killing. The couple did leave all their possessions in the old apartment, including their clothes, but there was a simple explanation for that, Rousseau said.

Rousseau's partner in the bank robberies, Danny Blackburn, had been picked up by police in early October and quickly gave them Rousseau's name. To return to the old apartment would have been too dangerous.

An HPD offense report from Nov. 8, 1988, appears to confirm Rousseau's story. Detectives from the robbery division had received an anonymous tip that Rousseau and his wife were staying at the Tascott Apartments in Pasadena. They weren't there when police showed up, but interviews with neighbors and the apartment manager indicated the couple had been there for several weeks. This contradicted the other apartment manager who testified Rousseau left his old apartment right after Delitta's murder.

The final, and perhaps most tantalizing, piece of evidence that Benjet has mustered is a statement from his private investigator, Richard Reyna, who interviewed Guerrero in prison. After his arrest, Guerrero had been extradited to New York to serve time on drug charges. In 1992 he was returned to Houston and pleaded guilty to Leo Williams' murder in exchange for a 12-year sentence.

Reyna spoke with Guerrero last June at the Ramsey 3 Unit in Rosharon. In an affidavit given to Benjet, Reyna stated that Guerrero admitted shooting Delitta, offering pertinent details of the incident without prompting. Like Rousseau, Guerrero lived relatively close to Randall's Restaurant.

"Guerrero stated he didn't intend to kill anyone," Reyna said in the affidavit, "but that (when) the man reached for his gun, it left him no other choice. While he was describing that the man reached for his gun, Mr. Guerrero reached down toward his ankle demonstrating how the man had reached for his gun. He then stated that he is sure the man would have shot him. I asked him if he knew what happened to the man. Mr. Guerrero stated that he did not know the man had died."

A few minutes later, Reyna said, Guerrero became nervous and started disavowing his impromptu confession after Reyna told him the dead man was a federal agent.

Reyna did not ask Guerrero about the gun he had when arrested. It's unlikely he'll be giving any more statements about it. He was paroled in January and deported to the Dominican Republic.

Regardless, Rousseau is still hopeful that appeals courts have plenty of evidence to overturn his conviction.

"I have started to sleep much better," he said. "Sometimes I used to dream that I am taken to the death chamber and there is nothing I can do. Now there is hope that somebody will believe me."

Recovered gun may give inmate a second chance

Nov. 7 -- Houston police announce that Anibal Rousseau, 47, is their prime suspect. A robbery detective looking at the composite drawing makes the connection.

Dec. 9 -- Rousseau calls television reporter Elma Barrera and, through her, arranges his surrender to authorities. He said he feared that if he surrendered directly he might be shot.

1989 March 1 -- Leo Williams, 37, is found shot to death and tossed in a ditch in southeast Houston.

March 14 -- An intoxicated Juan Guerrero, 38, is arrested following a traffic accident. A witness tells police that Guerrero threw a weapon into a field, and police retrieve it.

April 15 -- A test done by the Houston Police Department firearms laboratory establishes that the bullets from Delitta's body and Williams' body were fired from the same weapon.

April 19 -- The black .38-caliber revolver recovered with Guerrero is submitted for testing.

May 8 -- Testimony begins in Rousseau's trial.

May 17 -- Having been found guilty, Rousseau is sentenced to die.

June 27 -- HPD examiners conclude that the bullets found in Williams' body were fired from Guerrero's .38.

2001 June 5 -- In an interview with private investigator Richard Reyna, Guerrero allegedly admits, then denies, killing Delitta. He describes how Delitta went for his gun in the parking lot.

2002 Jan. 28 -- Guerrero is paroled from the Texas Department of Criminal Justice and deported to the Dominican Republic.

Feb. 15 -- Former prosecutor Lorraine Parker signs an affidavit calling for a new trial for the man she sent to death row, saying that important ballistics information should have been provided to Rousseau's lawyer. She said the ballistics reports should have prompted further investigation of the Delitta murder.