By Alan Prendergast
www.westword.com | February 2010
[Clarifications and Rebuttal Comments by Anny Narat]
Seven years ago, after an emotional murder trial that was rich in incriminating circumstantial evidence but short on motive, a Denver jury found Hal Hebert guilty of shooting his wife Carol in 2001 in their Belcaro home. A key witness for the prosecution was an oddball named Richard White, who testified that he sold a gun to a friend of Hebert’s — a gun that Hebert allegedly acquired six weeks before the murder.
[Carol Hebert was killed by a shot fired from a .22 gun. The prosecution’s theory that Hal Hebert purchased such a weapon “six weeks prior” (thus falsely establishing possession and premeditation) was completely dependent on Richard White’s pivotal testimony. Why would White lie? As was later discovered, Mr. White was something more than a mere “oddball”. Before Hebert’s trial, White’s testimony was developed and refined in interviews with lead Detective Vigil and Deputy District Attorney Stephanie Villafuerte. These law enforcement professionals apparently never wondered why Mr. White so readily cooperated, and agreed to testify (as he later stated) to “whatever the police and prosecutor wanted to hear.” From the moment an unidentified woman’s body was found in Carol Hebert car, and before they knew whether the victim was married, police fixated completely on convicting “the husband” — to the exclusion of all other leads and possibilities. They started with a theory and shaped the facts to support it. Even so, the interviews’ circumstances should surprise ordinary citizens: Vigil and Villafuerte, two law officials of great self-regard, spent hours shaping White’s statements to allow them to falsely convict Hebert — while apparently never detecting a hint of Mr. White’s astounding criminality. (A.N.)]
The murder weapon was never found. But a few weeks after Hebert’s trial, White was arrested and charged with homicide in Arapahoe County. White soon began telling investigators about five women he’d sexually assaulted and killed, including three prostitutes he’d picked up on Colfax. Two bodies were exhumed from his back yard in Park Hill, another from a grave in southern Colorado.
White cut a deal with prosecutors to avoid the death penalty and is now serving multiple life terms in the state supermax. And Hebert — who, like Richard “Fugitive” Kimball, has always insisted that an intruder killed his wife — now claims to have evidence that the serial killer who testified against him is the man who shot his wife in the back of the head, put her in the trunk of her car and abandoned the vehicle several miles away.
“Mr. White presents as a credible alternate suspect in the death of Carol Hebert,” Hebert wrote from prison in a motion to the court, seeking to overturn his conviction. “He was a convicted burglar. He had robbed and killed numerous times before and, despite the state’s version of the case against Mr. Hebert, there was evidence that Carol Hebert’s jewelry was stolen during her homicide and never recovered.”
[The statements were not written by Hebert “from prison in a motion to the court,” but rather by attorney Jessica West, in a Rule 33 Motion submitted on January 31, 2008. (A.N.)]
Hebert claims that a girlfriend of White’s knew his wife and had been in his home. He also has produced two affidavits, allegedly from inmates who’ve celled with White (the names are blacked out in the copies sent to Westword), stating that White bragged about killing more people than authorities ever knew about. The affidavits claim that White told each man separately about a planned kidnapping of a woman that went awry when his gun went off accidentally.
“He killed a woman and put her body inside her own car trunk and drove it far across town to confuse authorities, and he thought it would be a good joke on the cops,” one of the affidavits states.
At trial the prosecutors insisted the evidence pointed at Hebert, not an intruder. A Listerine bottle that had been used as a silencer was found in the trunk with the victim’s body; police recovered a similar bottle from a makeshift shooting range in Hebert’s basement. There were traces of a hasty attempt to clean up the crime scene but no signs of forced entry or a struggle. Hebert was spotted backing his wife’s car into the garage, trunk first, and later acting strange at the Campus Lounge, his favorite bar, while complaining that his wife was missing.
[The Listerine bottle from the trunk of the car was assumed by police to “have been a silencer,” even though an expert testified at trial that it “would not have worked as a silencer”. A confirmed fact about the bottle was that no physical evidence (DNA, fingerprint, etc.) linked it to Hebert.
The second “similar” bottle was apparently missed by ten or twelve police officers who searched the Hebert home throughout the night of April, 12th. Two days later, Lead Detective Vigil returned alone and reported finding a “Listerine bottle with a bullet hole in the bottom of it” (he admitted that he had “posed” the bottle after finding it “in a different place”), and then brought in a police photographer to take pictures.
The bottle was the most important piece of physical evidence against Hebert — but still was of only inferential value. It was the only item taken from the house in breach of rigid Police chain of custody evidentiary procedures. These procedures are in place for an important reason: detectives are tempted to lie in order to gain convictions. Some detectives lie more often than others. There are regular reminders of this fact.
Prosecutors never attempted to explain why Hebert would have fired a shot through that bottle — discovered it “would not have worked as a silencer” — and then left it right in the middle of his firing range where it was sure to be found. No physical evidence (fingerprint, DNA, etc.) linked the second bottle to Hebert.
If “traces of a hasty attempt to clean up” had actually existed, they would have pointed to an outside intruder. Had Mr. Hebert committed the crime, there would have been no need for haste. He had essentially an entire day to carefully clean, whereas a “hasty” effort at cleaning (i.e., evidence destruction) points to a non-habitant of the home. But in fact, while prosecutors made dozens of misleading references to repeated applications of the blood-trace detecting chemical “Luminol” in the home, they omitted the fact that NO traces of otherwise unseen blood were actually found by the chemical anywhere inside the house.
The neighbor who observed Hebert backing the car into the garage also testified as to the reason: he knew Mr. Hebert had been having car trouble and assumed the white car was simply being positioned to conveniently jump-start the other family automobile.
In the frantic late hours of April 14th, 2001, as Hebert worriedly asked after his wife, his behavior would have been “strange” indeed if he had acted normal. (A.N.)]
Other witnesses testified that Hebert made incriminating statements after being arrested about his wife’s death being a “terrible accident” or unintentional, and that he’d once owned a copy of a Lawrence Block novel in which a murder victim is placed in the trunk of a running car in the hope that the car will be stolen, casting blame on the thieves.
[Two witnesses recalled “incriminating statements” allegedly made by Hebert. In a new trial, evidence now available will show their recollections were conceived under coercion during interviews with Detective Vigil, whose interrogation techniques have already resulted in reversal of other murder convictions. Hebert himself made no such statements.
In the spring of 2001, Mr. Hebert’s friend Mike Davis was dying of cancer. Hebert frequently brought books to Mike’s house. Mike’s wife Linda testified that after his death, she found a distressing novel in Mike’s collection. She never testified that she had seen Hebert with the book, or that she had ever heard Hebert talk about the book. She said the book had been in a “bag full of books”. Linda was directed by the prosecutors to read an extremely inflammatory passage from the book. Mr. Hebert’s attorneys objected on the rational basis that there was no evidentiary foundation to show that Hebert had ever read the book or even knew of its existence. Trial Judge R. Michael Mullins overruled the defense lawyers, saying that Linda’s testimony was that Hebert had brought “that” specific book. Linda then read the passage which was so prejudicial that some jurors were brought to tears. Linda knew that numerous friends had brought books to Mike. She also knew more than one had brought “bagfuls”. A reading of the trial transcript shows Judge Mullins’ determination was incorrect. Linda never said Hebert brought “that” book. (A.N.)]
The day he sentenced Hebert to life in prison for first-degree murder, Judge Michael Mullins called the evidence of his guilt “overwhelming” — even though no one could explain why he would kill his wife. Hebert insisted that he “cherished” Carol, with whom he’d reconciled after an affair in 1999.
Hebert claims that police and the Denver District Attorney’s Office distorted or manufactured evidence against him. He’s complained that the prosecution team, which included recent (now former) U.S. attorney nominee Stephanie Villafuerte, had a legal duty to notify him of White’s conviction and failed to do so. And in his legal filings he now includes Judge Mullins among those allegedly abusing their authority, since Mullins sat on his motion to vacate his conviction for more than a year, finally denying the motion after Hebert filed a complaint with the Colorado Supreme Court about the lack of action.
[Ms. Villafuerte had an undeniable ethical duty to divulge to Mr. Hebert’s defense facts of the startling revelation of star witness Richard White’s actual background, as the U.S. Supreme Court delineated in Imbler V. Pachtman, n. 25, 1976.
But she had difficulties with ethics, as exemplified in later reporting by the Denver Post’s Karen Crummy, which revealed questions about Villafuerte’s very close relationship with her boss/benefactor, District Attorney Bill Ritter. After she helped Mr. Ritter’s successful run for governor, and became his Chief of Staff, he nominated her for the prestigious position as United States Attorney. Ultimately, however, public awareness of Ms. Villafuerte’s actions regarding campaign financing and covert accessing of restricted law enforcement information forced her to withdraw her nomination (blaming “political” attacks) and retreat from the public spotlight (A.N.)]
In denying Hebert’s motion, Judge Mullins — who also presided over White’s case — opined that Hebert would probably have been convicted without White’s testimony. “The evidence produced at trial does not suggest an alternate suspect,” he wrote.
[The referenced motion was based on “Witness Perjury and Newly Discovered Evidence”. Judge Mullins’ denial proves that he does not understand, or that he simply contemptuously swept aside, the plain legal concept that the sole purpose for bringing newly discovered evidence is precisely that it was not, and could not have been, “produced at trial (to) suggest an alternate suspect”. (A.N.)]
White didn’t respond to a request for comment on Hebert’s accusations. Hebert recently filed a brief with the Colorado Court of Appeals, contesting Mullins’s ruling.