Denver Murder Trial
by Anny Narat
On April 12th, 2001, an unidentified woman’s body was found in the trunk of a car registered to Carol Hebert. 1Khalid Adkins and Adam Peoples (local residents of the area at 16th Avenue and Valencia Street) noticed that a white Toyota Camry sedan had been parked at the corner for several hours with the engine running. At about 4:30 in the afternoon,
they investigated. Mr. Adkins searched the car in order (he said) to identify its owner. He found a woman’s purse on the floor of the backseat, with its contents strewn over the back seat and floor. He opened the trunk so that Mr. Peoples could search that compartment. Mr. Peoples screamed, “There’s a body in here!” He later described the victim as a blond woman, about 40 years old. The men decided to call police. While awaiting their arrival, the two men neatened up the car. Mr. Adkins picked up the purse, replaced all its miscellaneous contents, and set it neatly on the console between the front seats. [Adkins’ police statements and trial testimony] Police immediately ordered the arrest of Carol Hebert’s husband — even though they didn’t know if she was the victim — nor did they know whether Carol Hebert even had a husband. 2The first detective to arrive at the scene was Sergeant Fetrow. He determined that the car was registered to Carol Hebert at 655 South Monroe Way. He observed the victim and believed she was about 40 years old (Carol Hebert was 55) . She was fully clothed, except for one missing shoe, so he reasoned that there had been no sex crime. He looked inside the car’s cabin, but did not enter while waiting for a warrant, and saw, “the woman’s purse, not spilled” but neatly “just sitting between the two seats. He concluded there had been no robbery or car (Khalid Adkins and Adam Peoples had already been taken by uniformed officers to Police Headquarters, so Sargeant Fetrow wasn’t aware that they had straightened up the disorderly mess in the interior). He then decided a “family member” did it, even though he “had no idea” who the victim was (see trial testimony). He radioed for uniformed police officers to go to the South Monroe Way address and arrest the husband. The car registration was to Carol Hebert (only) and did not indicate her marital status; and the unidentified victim had no rings, so there was no indication she was married. Thus Sergeant Fetrow had ordered the arrest of Carol Hebert’ s husband not only before there was evidence to implicate him, but also before he knew whether there even was a husband. [Sgt. Fetrow testimony and police statements]
Police located and arrested Carol Hebert’s husband. The arrest was later ruled lacking probable cause.3At a November 2001 hearing, Hebert’s attorney argued that his initial arrest had lacked probable cause, and that the ensuing police search of the Hebert residence was unconstitutional. The trial court agreed there had been no probable cause for arrest (police and prosecutors had claimed that there had been no arrest, and Mr. Hebert had merely been “invited to police headquarters,” and was chained up solely for his own protection).
Judge Gilman also held that the first entry into the Hebert residence (which had been unwarranted) invalidated a search later the same evening which had been conducted after acquisition of a warrant. At that point there was no viable basis for prosecution of Mr. Hebert, who was released on bond.
The Denver District Attorney then filed an Interlocutory Appeal to the Colorado Supreme Court. In May of 2002, The Court (based largely on misleading evidence purposefully submitted by the D.A.) overruled the trial court on the search issue. Mr. Hebert was re-arrested (by bail bondsmen). But the false arrest determination was never overturned. The case was assigned to Detective Martin Vigil, a detective known for intimidation, deception and subornation of witnesses.4Detective Vigil’s policing tactics have caused reversals of at least two other convictions in murder cases. He is currently the target of Denver’s largest-ever lawsuit for malicious prosecution (Montoya V. Vigil, Fed. Dist. of Colo., 16-CV-01457-RPM).
The Denver Police Department’s Internal Affairs Bureau maintains a file on Detective Vigil, with a record of Department disciplinary actions. The Police Department, the Police Union, and the City Attorney aggressively shield the file from public scrutiny.
See: www.westword.com/news/how-to-convict-a-fourteen-year-old-of-a-murder-he-didnt-commit-8134479 . See also: People V. Steven Anaya, 02CA1410.
Detective Vigil’s methods included routinely manipulating and suborning prosecution witnesses, while at the same time harassing and frightening defense witnesses. One day, for example, during Mr. Hebert’s trial the defendant’s son (Beau Hebert) sat quietly with two other young men on a marble bench in the hallway just outside the court. The courtroom doors suddenly opened and Detective Vigil, along with D.A. Investigator Jeff Watts emerged to confront the trio on the bench. Detective Vigil knew Beau Hebert on sight, so he ignored him, but he demanded identification from the other two men. One of them was Ray Byzee, who lived in Costa Rica and was Mr. Hebert’s good friend. Detective Vigil recognized Mr. Byzee’s name from the defense’s witness list. He pushed close to Mr. Byzee and told him to “Be very careful” with his testimony because, if the detective didn’t like it, he would investigate Mr. Byzee for complicity in Carol Hebert’s murder.
Mr. Byzee, shaken by the encounter, did not testify but instead returned to Costa Rica. He immediately released false information to news media.5
The evening of April 12, 2001, after Mr. Hebert had been booked for First Degree Murder, Detective Vigil immediately began releasing information to news media. He said police were sure they had “the right man” because the defendant, Hal Hebert, had “not asked any questions,” had “lawyered up” at once, and his clothes were “bloody.”
None of the information was true and Detective Vigil (and his supervisor, Lieutenant Jon Priest) knew it. Detective Vigil’s false disclosures resulted in publication of sensational headlines such as:
WIFE’S BODY FOUND IN TRUNK
HUSBAND’S CLOTHES BLOODY
Thousands of potential jury members were thereby purposely exposed to the false information. But the only real evidence Vigil and Priest had was the exculpatory result of a GSR (Gun Shot Residue) test which had been immediately administered on Mr. Hebert’s skin and clothes. It instantly had revealed the absence of GSR. This evidence was never publicly announced.
The respected veteran Denver journalist Vincent Carroll (in a short opinion piece regarding another high-profile case) wondered, in 2002: “If official character assassination ever becomes acceptable can planting evidence be far behind?
In fact, character assassination of defendants was a routine tool for Denver police and prosecutors. Evidence planting, and subornation of witnesses were commonly utilized tactics. One example in Mr. Hebert’s case was the “practice silencer” from the basement of the Hebert residence:
On April 12th, police observed a plastic Listerine bottle, with a .22 caliber sized hole in its bottom, in the trunk of the Toyota Camry next to the victim’s body. Later in the evening, numerous officers searched the entire Hebert house for several hours. Many items were removed as possible evidence. No officer noticed a Listerine bottle in the basement firing range area. The next day, April 13th, Detective Vigil attended the autopsy of Carol Hebert where he learned that she died as a result being shot with a .22 bullet. A few small chips of clear plastic were snagged in her hair near the bullet wound.
The day after the autopsy (April 14th) Detective Vigil returned to the Hebert home to again search the Hebert’s firing range area. Alone, he descended into the basement where he reported finding spent .22 caliber shell casings and a “Listerine bottle with a bullet hole in the bottom of it.” He brought in a police photographer who shot pictures of the bottle, directly at the front of the target range in plain sight, saying it had somehow been overlooked by the numerous police officers who had participated in the original warranted search. Later, however, at Hebert’s trial, Detective Vigil conceded in cross-examination that he had “posed” the bottle after having found it “in a different place.”
When entering premises and seizing items for potential later use as evidence, police are required to maintain the integrity and custody of the material. All articles removed from a search site must be listed on a “Return & Inventory” (R&I) sheet. Each R&I must be signed by the policeman who found the article. The R&I must then be validated by an endorsing signature of “Another Officer or Credible Person.” Of the numerous such R&I sheets produced during searches of the residence, only the R&I which recorded the removal of the Listerine bottle was not authenticated by the required second signature.
Throughout the investigation and at trial, prosecutors referred to the Listerine bottle found in the Toyota Camry as a “silencer,” and the bottle allegedly found in the basement as a “practice bottle.” No fingerprint or DNA was found on either bottle. There was no proof that Mr. Hebert had ever touched either bottle or knew of their existence. Police purposely ignored information that could have led to other suspects.6
The Toyota Camry containing the victim’s body was discovered in the late afternoon of April 12th, 2001, near 16th Avenue and Valentia Street. Police canvassed residents and nearby businesses in the evening and in the following morning. At least three dozen interviews were conducted. Police were focused exclusively on finding witnesses who could connect Hal Hebert to the area of the car’s discovery or the nearby neighborhood. They found no one who had seen any person who resembled Hal Hebert.
Determined to link Mr. Hebert to the Toyota location, police contacted all taxi companies and reviewed April 11th evening logs of fares in the area. Only one passenger pickup drew scrutiny: the dispatcher for Yellow Cab reported two white males had summoned a taxi in order to depart from the 16th and Valencia area. Police contacted the driver and showed him a photo of Hal Hebert. The driver advised that Hebert could not have been one of the two white men, because they were much younger than Hebert. Because police were single-mindedly seeking only evidence that would help in their effort to incriminate Hebert, they made no effort to identify the two young white males or even to determine their destination.
For the Hebert residence at 655 South Monroe way, police were granted a legal search warrant (based on their false affidavit) at 9:55 pm on April 12th. Numerous officers and forensic technicians entered the home and searched until about 3:30 am of April 13th. Detective Vigil was appointed “lead” Detective on the case. He issued orders to police personnel at the scene. He instructed forensic technicians to refrain from testing or “dusting” for fingerprints on the door knobs or windows. He told the technicians to seek fingerprints only where blood was found. Efforts were therefore made to find prints only “actually in the blood…” and not to “process the whole” scene because Hebert would have had “prior legitimate access…” Detective Vigil’s limitations on the technician’s efforts effectively eliminated the possible discovery of any “stranger” evidence or fingerprints that might have complicated his investigation, even though courts have found that “Intentional failure of law enforcement officers to investigate other leads violates due process rights of the arrestee.”
More than five miles to the northwest of the Toyota Camry’s location, in the gray early light of April 13th, Rebecca Bell walked to the corner where she customarily waited for a friend to give her a lift to work. As she waited, at the edge of the parking lot of Mr. A’s Bar at 4oth Avenue and Steele Street, she noticed a zebra-print wallet on the ground. When her friend Gertrude Thames arrived and picked her up, they took the wallet to work. There, they tried calling the wallet’s owner (whom they had determined was Carol Hebert) but got no answer. They mentioned their discovery to their office manager who immediately advised that TV news had reported that morning that Carol Hebert had been found murdered in east Denver.
The ladies called police. Hours later, past three o’clock in the afternoon, Denver Detective Gurule arrived. In the meantime, Ms. Bell had contacted the owner of Mr. A’s Bar, Joe King, with whom she was acquainted, to ask whether anything unusual had occurred during the night prior to her finding the wallet.
Mr. King told her that two young white males had entered the bar at about 11:00 pm which he considered “unusual” because ordinarily his customers were 100% African-Americans.
All of this information was provided to Detective Gurule who relayed it, along with the wallet, to Detective Vigil who ordered that no further efforts be made to follow up on any of these leads. No fingerprints or DNA testing was done on the wallet to determine who may have handled it or its remaining contents. No officer was ever dispatched to Mr. A’s to look around at the location of the wallet’s discovery, or to interview Joe King, or even to telephone him. No attempt was ever made to talk to any of the many regular patrons who had been in the bar on the night of the two young men’s visit.
Years later, a regular customer still remembered that the two men who had momentarily come into the bar had each been about 30 and were not memorable in appearance. Except that one of them had the brightest red hair he had ever seen. They tampered with, fabricated and planted evidence.7In the early evening of April 12, 2001, Sergeant Fetrow (while still at the 16th and Valentia location of the Toyota’s discovery) ordered the arrest of “the husband” of Carol Hebert. He then drove to the Hebert residence, arriving at about 6:25 pm. Hal Hebert had already been arrested and taken away.
Sergeant Fetrow immediately entered the residence, without a warrant, accompanied by Sergeant Smith and Sergeant Archuleta. They looked in every room and closet. The search was later ruled (in district court in December 2001) to be unconstitutional.
Detective Sgt. Fetrow then crossed the street and knocked on the door of a neighbor, Mr. Anderson, who invited him inside. Fetrow recorded a statement from Mr. Anderson, who said that, between 4:30 and 4:45 pm the day before, he had noticed Hal Hebert backing Carol’s car into their garage. He said he didn’t think much about it because he knew Hebert had been having trouble with his car (Mr. Anderson had helped to jump-start Hebert’s car the week before), so he assumed that Hebert was “putting Carol’s car in a position so he would be able to jump-start his car in the morning”.
Sergeant Fetrow asked: “was it unusual for Hal to put the car in the garage?” Mr. Anderson replied, “The white car was almost always put in the garage.” At police headquarters, Detective Dale Wallis (after the illegal 6:25 pm first search of the Hebert home) was preparing a request for a legal search warrant. He received the following information from Sgt. Fetrow:
“…while officers were near the (Hebert) residence…Mr. Anderson of 670 S. Monroe way approached them and related that on 4/11/01 at approximately 5:00 pm he saw Hal Hebert backing the white Toyota into the garage…Mr. Anderson believed that these actions of Hal Hebert were unusual because Hal Hebert did not drive the white Toyota. Mr. Anderson said that Carol Hebert usually drove that vehicle. He also believes it was unusual for Mr. Hebert to back the car into the garage.”
Detective Wallis immediately incorporated Fetrow’s falsified account into his Affidavit for a search warrant. Within an hour (at 9:28 pm), Judge Bowers granted the police request for warrant.
At the Hebert residence, officers quickly acted. Ten to twelve officers entered and searched the entire premises for several hours into the early morning hours of April 13th.
Police released information to the media regarding their Affidavit. Reporters seized on remarks attributed to Mr. Anderson and published his supposed statements such as: “Carol Hebert was the only one he’d seen driving the Toyota,” and it was “unusual because Hebert never drove his wife’s car,” and “the neighbor thought [Hebert’s actions] were odd because he never drove the Toyota.”
Annoyed and troubled by the misrepresentations of his words, Mr. Anderson telephoned the homicide squad on two occasions to ask that the police correct their news release. He wanted to clarify that he had not “approached” officers, nor had he said Hebert’s actions were “unusual” (the word “unusual” was used only by Fetrow) nor did he ever say that Hal Hebert did not drive the white Toyota. Police advised Mr. Anderson that the information would be corrected.
But not only did the police allow the falsehoods to stand, they presented them as factual evidence at Hebert’s preliminary hearing (June 2001) in order to help support their argument that probable cause existed to bind Mr. Hebert for trial.
Exasperated by reading this news, Mr. Anderson phoned the Denver District Attorney’s Office and demanded that a D.A. representative meet with him in his Cherry Creek office. On June 21, 2001 D.A. Investigators listened to Mr. Anderson’s concerns. They assured him that District Attorney records would be corrected “internally,” and the incorrect information would not again be used against Mr. Hebert.
Early in 2002, however, the Denver prosecutors found themselves pleading to the Colorado Supreme Court to overturn a district court ruling that favored Hebert. The prosecutors did not hesitate to revive the tampered passage from the search warrant Affidavit and present it to the state’s highest court as factual and reliable information. Relying largely on that manipulated information, the Court (in a “close question”) overturned the lower court’s ruling. False evidence was presented as fact at Mr. Hebert’s arraignment.8In June 2001, police and prosecutors presented evidence at a preliminary hearing to determine whether Hebert should be brought to trial. Their evidence was insubstantial and largely false. The tampered statement of Mr. Anderson was relied on as though factual. Detective Vigil testified under oath that a witness had related to him that he had seen Hebert “sit in his backyard and shoot at small animals.” But in fact, no such event had ever occurred and no witness had ever observed Hebert shooting at any animals anywhere at any time. Hearsay evidence, however, is allowable in preliminary hearings, and Detective Vigil was comfortable in making up evidence and witnesses as he went along. He stated that evidence in the house showed that the body was dragged from the office to the garage; but there was no evidence of dragging in the home. Vigil further testified that when arrested and taken to police headquarters, Hebert had blood on his pants. The Denver police crime lab, however, had tested the clothing and determined there was no blood of any kind – but test results were not released to Hebert’s defense lawyers until, coincidentally, the day after Detective Vigil’s testimony. Mr. Hebert was bound over on a first-degree murder charge. He pleaded not guilty.9Denver prosecutor Kerri Lombardi said evidence against Hebert was “overwhelming,” citing “the trail of blood throughout the house, ” and “blood on the soles of Hebert’s shoes.
In actuality, there was no trail of blood, and there was no blood on the shoe soles. Police chose to hold the evidence and therefore these facts could not be determined until much later. Still, Hebert’s attorney pointed out that there was no direct evidence that linked Hal Hebert to the demise of Carol Hebert, and that the case should be dismissed.
District court judge Raymond Satter ruled Hebert should face trial on the charge of First-Degree Murder and granted Ms. Lombardi’s request that he be held without possibility of bond.
The Denver District Attorney Kerri Lombardi laid out the core theory to the jurors: “Six weeks prior to his wife’s death, Hebert purchased a .22 caliber weapon [thus establishing that he possessed a .22 gun at the proximate date of the crime] and he planned and practiced with that gun [thus demonstrating premeditation] before shooting his wife.”
The prosecutor’s statement was profoundly inflammatory; but it was a lie and she knew it as she spoke.10Testimony by Richard White at Hebert’s trial was the indispensable support for Ms. Lombardi’s theory of the prosecution’s case-in-chief. He related information about his sale of a gun which Ms. Lombardi emphasized to the jury was the murder weapon. The timing of Hebert’s supposed purchase of “that .22 caliber gun” was the only viable evidence of premeditation (which is a necessary element of a First-Degree Murder conviction) that was presented in the entire trial. But Mr. White was lying. He had been told what to say, and coached, by Detective Vigil and co-prosecutor Stephanie Villafuerte.
Ms. Lombardi, as does each prosecutor in any criminal case, had a duty to know (and disclose) all impeachment and exculpatory evidence known to other prosecution team members (including police). See Kyles V. Whitley, 514 U.S. 419, 437 (1995). Subornation of witnesses is, manifestly, impeachment evidence; and knowing reliance by the prosecution on perjured testimony violates due process. See Jackson V. Brown, 513 F.3d 10557, 1071 (9th Circuit 2008). Her theory was wholly dependent on the testimony of key witness Richard White. Mr. White, after interviewing with Detective Vigil and co-prosecutor Stephanie Villafuerte, agreed to say whatever the police and prosecutors “wanted to hear.”11Prosecutors never divulged information to Hebert’s defense regarding a complaint (a few weeks before Hebert’s trial) against Mr. White in Pueblo, Colorado. In the spring of 2003, Mr. White resided in Pueblo with a woman (C. Garcia). In late April, she reported an incident involving kidnapping/ false imprisonment/ menacing with a weapon to Pueblo police. Ms. Garcia was sufficiently terrified by Mr. White that she fled to the state of Pennsylvania before lodging her complaint against him. In early May, the Pueblo District Attorney’s office decided not to pursue the charges.
Some years later, after Mr. White’s true background had been revealed and he was in prison, he bragged to another inmate that he had falsely testified in Denver against “an old guy” who was on trial for murdering his wife. Mr. White related that he extracted the promise of a “big Denver detective” and a female Denver District Attorney to intervene, on the basis of professional courtesy, with the Pueblo D.A.’s office resulting in termination of Mr. White’s Pueblo criminal charges.
Mr. White, however, secretly had even more compelling motivation to cooperate in the prosecution of Hal Hebert. Only after the trial would the stunning reason for his cooperation and willingness to provide perjury be exposed.12Mr. Hebert’s trial concluded on June 28, 2003. In early September, the prosecution’s key witness, Richard White, committed a murder in Arapahoe County, and was captured a few days later. Under interrogation, he admitted that he had killed a number of people over a period of years in several jurisdictions. In Denver, Mr. White was investigated by the same homicide squad that had investigated Mr. Hebert’s case. Mr. White’s prosecutor was Kerri Lombardi who, just months before, had utilized him as her star witness against Mr. Hebert. She arranged a plea bargain which allowed Mr. White to avoid a death penalty trial in exchange for his confession to various previously unresolved murders around the state, including the two victims who had lain secretly buried in the flower garden of his former residence on North Albion Street in Denver, even as he was testifying against Hal Hebert.
Mr. White’s Albion St. home was in easy walking distance to Mr. A’s Bar and Lounge at 40th Avenue and Steele St. None of this information was ever divulged to Mr. Hebert’s defense by the prosecution.
Other witnesses as well were manipulated, frightened or suborned into false testimony.13Mr. Hebert was a regular “happy hour” patron at his neighborhood bar and grille (the Campus Lounge). Police contacted bar employees shortly after Mrs. Hebert’s death in April of 2001. No employee reported having noticed any unusual actions or behavior of Hal Hebert.
In December of 2001, the district court ruled that Mr. Hebert’s arrest and the subsequent search of the Hebert residence were unconstitutional, and he was released from jail on bond. In January of 2002 Detective Vigil wrote (and hand- delivered) a letter to the bar’s manager, Christie Wilburn, advising her that he believed Hal Hebert was planning to kill her. The letter was completely baseless and totally untrue. Mr. Hebert had never made any threats, written or oral, against any person. But the detective’s letter served his desired intent: the women employees of the bar reasonably assumed that such a police warning could only be true and they were terrified into near-hysteria. Christie Wilburn immediately asked for an emergency grant of a permanent restraining order against Mr. Hebert. At the hearing on January 17, 2002, Ms. Wilburn and another bartender (Skye Smith) broke into fearful sobs when Mr. Hebert walked into the courtroom. Based on no other evidence than the false Vigil letter, the judge granted the restraining order. The women thereafter received many visits at the Campus Lounge from Detective Vigil before Mr. Hebert’s trial. Their testimony at trial was factually almost inconsequential (e.g., “…he was a little sweaty…”) but was infected by their perceived self-interest in helping to convict Mr. Hebert. Their entire testimony was a conflation of hearsay and their own shared gossip; but due to Detective Vigil’s manipulation, their delivery was so emotional as to be clearly influential with the jury. A woman (after interrogation by Detective Vigil) said Mr. Hebert had written to her and said Carol Hebert had died in an “accident.” But no such letter had ever existed.14Mr. Hebert had been initially arrested and placed in Denver County jail in April 2001. A few weeks later, he received a letter from Carrie Blake who had once been a bartender at his local bar. He had not seen her in more than two years, but she wrote in an attempt to cheer him up and they exchanged six letters over the summer of 2001. None of the letters contained incriminating information of any kind.
In October 2001, Detective Vigil (tipped off to the correspondence by jail staff) showed up at Carrie Blake’s place of work and demanded that she go with him to police headquarters for an interview. She at first resisted, calling her lawyer who advised her not to go. But she relented after Detective Vigil assured her that he just needed her help to clear up a few loose ends and she had no need at all for her lawyer’s presence.
Upon locking Ms. Blake into his police car, however, the detective immediately threatened her. He told her that unless she provided some detail, some bit of information to help him convict Mr. Hebert, he would charge her as accessory to murder. He would have her barred from working in any licensed establishment, and he would arrange that she would lose visitation rights to her daughter (of whom her ex-husband had custody).
At police headquarters, Vigil handcuffed her to a bench and recited her Miranda rights (which ironically included her right to be represented by her lawyer), thus causing her to break down crying because she knew only “suspects” are Mirandized. She later said she had never been so scared in her life.
Thus began a long interview with Vigil making suggestions for her statements, lying to her about other information he had, and about supposed statements from other witnesses. When she remembered the letters, all of which she had saved, she thought of a way to extricate herself from Vigil’s entanglement: she invented one additional letter in which, she fancied, Mr. Hebert had written that Carol Hebert had died in an “accident.” Later, at trial, these circumstances allowed the prosecutors to wave a fan of letters in front of the jury and tell them that a letter contained the defendant’s “confession.” What was never made clear to the jury was that the one supposedly inculpatory letter was also, vexingly, the only letter that was missing.
The most telling part of Ms. Blake’s testimony at trial occurred when Hebert’s defense attorney accused her, in cross-examination, of lying in the case. She replied: “Not a lot.”
Ms. Blake will participate in future proceedings only on condition that she is assured by an official restraining order against contact by Detective Vigil, and that he not be present in the courtroom. (During Mr. Hebert’s trial, Detective Vigil was designated by the Denver District Attorney as their “Advisory Witness”. He sat prominently at the prosecution table throughout the trial and intimidated and influenced witnesses with hand gestures and facial expressions. Between witnesses, he hurried out to the hallway to brief the next prosecution witness on the testimony of the previous witness).
A bail bondsman (after an interview with Detective Vigil) stated that Mr. Hebert had confessed to murder during a five-minute automobile ride, but after the trial a second bondsman, (who had actually sat next to Hebert during the ride) confirmed that no such conversation ever took place.15In December of 2001, a Denver district court ruled Mr. Hebert’s arrest had lacked probable cause, and the police search of the Hebert home was unconstitutional. Mr. Hebert was released on bond.
The Denver District Attorney filed an interlocutory appeal of the lower court’s ruling to the Colorado Supreme Court. Based largely on false information included by the D.A.’s office in their brief, the Court found that the search of the house was not a Fourth Amendment violation (the false arrest ruling was undisturbed). The Court’s opinion issued on May 22, 2002, and Hebert’s bond was revoked. A team of five bond people immediately went to the apartment Hebert had temporarily rented in Capitol Hill. Two of the bondsmen (David Widhalm and Jesse Quesada) placed Mr. Hebert in a new PT Cruiser automobile and drove a few blocks to custody at Denver police headquarters.
One of the bondsmen (Mr. Widhalm) was interviewed a few days later by Detective Vigil. From that interview, a statement was developed which Mr. Widhalm delivered at Hebert’s trial. He said that Hebert told him, during the car ride, that he had loved his wife very much and “did not mean to intentionally kill her.” That tangled-syntax statement became the inflammatory foundation for the prosecution’s inference that Hebert had confessed to murdering his wife. Listening to Mr. Widhalm at trial, Mr. Hebert sat stunned and mystified. He knew he had never said anything at all to the bondsmen.
Years later, in preparation for filing of his 2014 35(c) appeal, Mr. Hebert sent an investigator to re-interview the bondsmen. Mr. Widhalm’s memory of the entire episode was hazy, but he believed he had never before been contacted by any member of Hebert’s defense. Mr. Widhalm told the investigator that “about a week” after Mr. Hebert’s re-arrest in 2002, “someone called, and then (Widhalm) went in to talk to Vigil.”
Mr. Hebert’s investigator then visited the second bondsman, Jesse Quesada, who remembered the incident quite clearly and provided surprising details:
1. No one with Mr. Hebert’s defense had ever attempted to contact him before.
2. He was astonished that he had known Mr. Widhalm for 27 years, but Widhalm had never said anything to him about testifying in court against Mr. Hebert.
3. Mr. Quesada remembered that he had just purchased a new PT Cruiser and Mr. Widhalm wanted to drive it. After they arrested Mr. Hebert, Quesada handed the keys to Mr. Widhalm for the drive to police headquarters.
4. Mr. Quesada was the one who handcuffed Mr. Hebert, and he sat next to Hebert in the backseat during the subsequent car ride, as Mr. Widhalm drove.
5. Mr. Quesada is certain that Mr. Hebert “didn’t say nothing” during the car ride – he “kept his mouth shut the whole time.” There was no talking whatsoever in the car and Mr. Hebert never said anything about his case.
6. A Denver detective came and interviewed Mr. Quesada. The detective became angry when Mr. Quesada refused to deviate from the actual facts that he had observed on the day of the re-arrest.
7. Mr. Quesada is willing to testify to his statements in any evidentiary hearing or re-trial proceeding.
Detective Vigil (and other officers) falsely testified about blood on the defendant’s shoes.16Carol Hebert was a fastidious housekeeper. She did not allow shoes to be worn in the home. Just inside each entry door, small cloth mats were set out on which removed shoes were placed.
At Mr. Hebert’s 2001 preliminary hearing, Detective Vigil testified that an old pair of Hebert’s shoes, found on one of the cloth mats, had “blood on the soles.” This highly incriminating evidence could only have occurred if someone wearing the shoes had walked through fresh blood. Mr. Hebert told his defense lawyer that “blood on the soles” was impossible because he hadn’t worn the shoes in weeks. The lawyer contacted the Denver Police Crime Lab (which held the shoes) and requested test data that supported the police testimony. The lab reported (but only after the hearing’s conclusion) that there was no blood on the soles of the shoes.
In the June 2003 trial, Hebert’s jurors learned about blood “spatter,” which occurs when a victim suffers a very high-impact trauma (such as from a bullet) and very fine droplets spray out from the wound. The spatter will deposit on surfaces within short range (two or three feet) of the traumatic event. Detective Vigil, who had previously testified under oath that he was an expert in blood spatter evidence, surprised Hebert’s defense lawyers by stating that Hebert’s old gardening shoes had “high force blood spatter on top of them”. Two other police officers (Lt. Priest and Sgt. Fetrow) testified similarly.
If the blood had actually been “spatter,” it would have indicated the shoes had been immediately near the victim when she was shot in her office; and jurors logically assumed that someone (namely Mr. Hebert) had been wearing them at the time. The testimony was inflammatory and incriminating, but false. As was finally shown later in the trial by Mr. Hebert’s defense expert witness, there was indeed blood on the shoes which consisted of one drop of blood on the upper of one shoe near the laces. The blood (which was difficult to see on the unfinished red-brown leather of the “Topsider” boating style shoe) was a full-sized “passive” drop, which meant it had fallen onto the shoe with no more speed than the simple force of gravity.
This information, had it been accurately and promptly conveyed from the Crime Lab to the defense team, would have been powerfully exculpatory. The blood was a passive gravity drop which had simply fallen on the shoe. The only way that could have occurred would have been if the victim’s body had been carried over the shoes. Carrying the victim would have been beyond the ability of the defendant (59 years old at the time) and would certainly have required the efforts of two perpetrators; and it is unsurprising that a falling blood drop would have struck one of the shoes since they were stored right next to the outside door.
Detective Vigil well knew the difference between “spatter” and gravity drops. Even so, he did not hesitate to double down, a few minutes later in his testimony, repeating that the “shoes have high force blood spatter on the top of them.” A person (or police officer) who deliberately makes “false or misleading statements while under oath” (according to Black’s Law Dictionary, 7th edition) commits perjury.
[Although the prosecutors knew that two people were responsible for this crime, they presented the case to the jury as though only one person was culpable. Immediately at the end of the trial, however, assistant District Attorney Stephanie Villafuerte assembled an impromptu news conference and informed media that “we know someone had to have helped…” (See Rocky Mountain News, June 28, 2003)].
Prosecutors purposely misrepresented results of forensic testing for blood evidence throughout the trial.17At the June 2003 trial, Detective Vigil informed the jury that police used a liquid chemical (“Luminol”) as “…a test to reveal blood evidence not visible to the naked eye” (the Chemical reacts to certain metals and vegetable proteins; iron and other materials in blood will cause a Luminol reaction which is manifested by a luminescence or glowing).
Detective Vigil stated he and other officers sprayed Luminol “throughout the house,” from the office into the hallway to the entry foyer; he described ‘“a big pattern not visible to the naked eye, through the living room, the dining room, to the four seasons porch.” The chemical “illuminated a path that we could physically walk through. (In) the dining room there was a large blob with trailing drip blobs… we took pieces of the rug that had luminesced”. There was an “approximate trail, from the office, to foyer, to the four seasons room, to sidewalk, to garage”.
Prosecutor Villafuerte carefully crafted her questions of the police officers. She never asked where they found blood. She asked only whether the chemical had reacted” or “illuminated” or “luminesced” at the various locations- as in her exchange with Detective Jerry Baruch, who explained, “…we used Luminol in the residence…for detection of blood….”
Ms. Villafuerte: “…did anything illuminate in the home?”
Detective Baruch: “In many, many locations…a trail leading from the office area, living room, through the dining room out to the back door.”
Ms. Villafuerte: “Did you remove certain items that illuminated?”
Detective Baruch: “A runner (rug) from the entryway, a cut of a large dining room rug, a green indoor/outdoor carpet from inside the garage.”
Ms. Villafuerte asked Lieutenant Priest whether he had observed Luminol “reactions.”
Pointing at a floor plan of the Hebert home, Priest replied that there was a “…luminescing event in the hallway on this carpet…the dining room floor… a large area rug….”
These (and other) repeated references to Luminol “evidence” were clearly parts of a picture that the prosecution wished to fix in the minds of the jurors: that the defendant had “dragged” the victim (necessarily, because he was a sedentary 59 year old) through the home, leaving a “bloody trail”. And the trail was invisible to the naked eye because he had thereafter cleaned up all the blood (and he was the only person who would have had time in the home to complete such a big job).
The prosecution’s misleading depiction of the supposed blood evidence and “dragging” was clearly successful. The trial judge (R. Michael Mullins) later recounted the evidence:
“Chemical testing of the (house) showed the residue of a substantial amount of blood showing a trail…resulting from the dragging of the victim…(the) suspect (cleaned up) the large amount of blood left on the wall and desk (and) floor resulting from the shooting and dragging…to the garage…the evidence strongly suggests that the only suspect was Mr. Hebert.”
The prosecutor never informed the court and jury that Luminol is almost certain to react to vegetable oil and juices and cleaning solutions and metallic compounds that are commonly present in every home. Ms. Villafuerte artfully avoided asking the police witnesses whether the Luminol had revealed the actual presence of blood at various locations, but inquired only whether there was a “glow” or “reaction” or “luminescence.” In fact, the Luminol spraying did not reveal the presence of any blood or blood traces (as would be left even after cleaning) anywhere in the house that were otherwise invisible.
No “trail” existed. There was no evidence of “dragging” (but there was evidence that the victim had been carried, which would have required the efforts of two people). The prosecutors and police witnesses knew, as they testified, that all of the samples they had removed (the dining room rug, the entry foyer runner, the hallway carpet, etc.) contained no unseen blood or traces. The Prosecution supported their misleading presentation of forensic evidence in the home with continuous repeated mention of the chemical Luminol. The word “Luminol” arose during the trial more than 100 times. But not even once had the chemical revealed otherwise unseen blood.
In Miller V. Pate, 386 U.S. 1 (1967), the United States Supreme Court held that where “the prosecution deliberately misrepresented the truth about a crucial element of the circumstantial evidence against (the defendant)” by referring repeatedly to forensic blood evidence which would have “a gruesomely emotional impact upon the jury” but which they “had known at the time of the trial was false, the Fourteenth Amendment cannot tolerate a state criminal conviction.” See also: Mooney V. Holohan, 294 U.S. 108; Napue V. Illinois, 360 U.S. 264.
The judge allowed the prosecutors to introduce a highly prejudicial passage from a mystery novel even though there was no proof that the defendant had ever read the book or even heard of it.18In the spring of 2001, Mr. Hebert’s good friend, Mike Davis, was terminally ill with cancer. Mr. Hebert regularly visited Mike and brought books of various topics to him (as did other friends).
In April, Carol Hebert was murdered in her home and Mr. Hebert was jailed. Mike Davis passed away in July.
At Mr. Hebert’s June 2003 trial, Mike Davis’ widow Linda testified that she found a mystery novel in Mike’s collection with a passage which seemed to reflect an aspect of the crime that took Mrs. Hebert’s life. Mrs. Davis said the book caused her concern because “It was a book where somebody had been killed, the two guys who did the killing said, ‘Let’s just put the body in the trunk and leave it in a bad neighborhood.’ “
Mrs. Davis testified that Mr. Hebert “came very often to bring books.” She did not testify that she had seen the book in Hebert’s possession; nor did she see Hebert give the book to Mike; nor did she have knowledge that Hebert had ever read the book, or handled the book, or even knew of the book’s existence.
Mr. Hebert’s defense lawyers pointed out to the judge that no direct connection existed between Mr. Hebert and Mike Davis’ book, and therefore the information from the book was irrelevant and inadmissible because it was extremely inflammatory, but lacking in necessary foundation for introduction. The trial judge (R. Michael Mullins), however ruled that Mrs. Davis had stated that Mr. Hebert had brought that book and ruled in favor of the prosecutors, allowing them to direct Mrs. Davis to read aloud from the book, without regard as to whether Mr. Hebert had actually read the book.
In an emotional voice, Mrs. Davis then read the prejudicial passage, clearly causing visceral reactions amongst jurors.
Reference to the trial transcript reveals, however, that regardless of the judge’s insistence, Mrs. Davis never specifically said that particular book had been brought by Mr. Hebert. Judge Mullins’ faulty recollection of testimony was one of his several in-trial rulings that abetted the prosecution’s presentation of misleading evidence. The prosecution enjoyed a congenial relationship with Judge R. Michael Mullins (the District Attorney’s office referred to him in internal memos as “Judge Mikey”).
There was never a past instance of violence between the Heberts (no one had ever so much as heard him raise his voice to her). Mr. Hebert had no criminal history. There was no direct evidence, and no eyewitness. No actual murder weapon was ever produced. No motive was ever established.19Police never had a prior contact with the Hebert household and there are no records of any domestic violence between Mr. and Mrs. Hebert. Denver Police Lieutenant Jon Priest told media, “We talked to neighbors and lifelong friends. None of them knew of a problem between them, no financial problems, no domestic issues.” Prosecutor Villafuerte admitted they were unable to determine any motive, telling the jury, “we don’t know why…” The prosecutor lamented, “we don’t know why.” Still, a jury found Mr. Hebert guilty, albeit with lingering doubt: during deliberation, the jury asked the judge for clarification on the difference between First and Second degree murder. Their request can only mean that they weren’t sure the essential element of premeditation had been proven. The only viable evidence presented during the trial regarding premeditation was the gun purchase testimony which depended entirely on the credibility of the prosecution’s witness, Richard P. White.
Judge R. Michael Mullins flatly denied the jury’s request, despite holdings from extant precedent law (“Request from jury for additional instructions raises possibility that jury was confused as to the essential elements of the crime… trial court’s error in refusing to give further instructions was not harmless.” U.S. V. Walker, 557 F. 2d 741 C.A. 10 (Colo.) 1977).
Mr. Hebert was immediately sentenced to life in prison.
A Startling Discovery;
Ten weeks after Mr. Hebert’s trial, the key witness, Richard White, committed a murder in Arapahoe County with remarkable similarities to what happened to Carol Hebert.20Mr. Hebert’s jury returned a guilty verdict on June 28, 2003.
On September 10, 2003, Richard White entered a victim’s home in Arapahoe County (as someone had entered the Heberts’ residence on April 11, 2001), and shot the victim in the head (as Carol Hebert had been shot), and robbed the victim (as Mrs. Hebert had been robbed of her jewelry), and drove off in the victim’s vehicle (as someone had driven off in Carol Hebert’s car). In custody of suburban law enforcement officers, Mr. White admitted to having killed at least five other victims over the past years, in Denver, under the noses of the same officials who had used him to present a false narrative at Mr. Hebert’s trial.21Mr. White admitted several Denver murders to Arapahoe County law enforcement officials. He was then turned over to Denver police. Acting on information provided by Arapahoe County, Denver police dug up the flower garden of Mr. White’s 2001 residence at North Albion Street, and found corpses of two of his victims. They also found remains of at least one other victim in southern Colorado. Detective Martin Vigil led the investigation into Mr. White’s Denver crimes.
Prosecutors reported that Mr. White claimed to have killed several other people but couldn’t remember how and where he had disposed of their bodies (although, as part of his plea agreement, he led bizarre searches for their remains in various locations).
Richard White’s ensuing investigation was handled by the same Denver Homicide squad which had earlier investigated Mr. Hebert’s case. In order to avoid a trial (and possible death penalty), Mr. White accepted a deal offered by the same Denver prosecutor who had relied on his prosecution-induced perjury to support her false theory of the crime in Mr. Hebert’s trial. Mr. White was sentenced to multiple life terms by the same judge (R. Michael Mullins) who had presided over Hebert’s trial.22Richard White accepted a plea deal formulated by Denver District Attorney Kerri Lombardi which exempted him from the death penalty in exchange for the cooperation he had extended to Denver police and prosecutors. It is not clear whether this recognition of his assistance and cooperation included his earlier service of testifying falsely at Mr. Hebert’s trial. The Denver District Attorney’s Office has declined a request for details of the agreement.
On November 29, 2004, Mr. White was sentenced by Judge R. Michael Mullins of Denver district court to two consecutive life terms plus an additional 144 years. Mr. White had previously been sentenced to one life term without possibility of parole by an Arapahoe County court. All of these officials are under ethical obligations to divulge such exculpatory information to Hebert’s defense team.23The Supreme Court of the U.S. has noted that the prosecution has an ethical obligation to disclose exculpatory information; and such obligation extends to at least the defendant’s direct appeal (Imbler V. Pachtman, 424 U.S. 409 n. 25 (1976)).
If Mr. Hebert’s defense had been ethically advised of the authorities’ discovery (ten weeks after Hebert’s 2003 trial) of Richard White’s actual background as a serial murderer, Mr. Hebert would have been able to utilize the material in his direct appeal. Hebert’s defense would also have been able to investigate the information for additional exculpatory evidence, which would almost certainly have revealed that Mr. White’s testimony at Hebert’s trial was not merely perjurious, but was false testimony given at the direction and behest of Lead Detective Vigil and Deputy District Attorney Stephanie Villafuerte. In Napue V. Illinois, 360 U.S. 264 (1959), The Supreme Court held that “a conviction obtained through the use of false evidence, known to be such by representatives of the State, must fall” under the Constitution.
The prosecution’s failure to divulge also prevented Mr. Hebert’s defense from further investigation and discovery that not only did Richard White perjure under direction of State actors, but that he was actually responsible for the crime for which Mr. Hebert was tried and found guilty.
Mr. Hebert, lacking the revelation of Richard White’s real background and involvement, was forced to submit his direct appeal without any of the information which would have comprised what would have been his strongest argument. By failing to divulge manifestly exculpatory evidence, the prosecution purposefully deprived Mr. Hebert of a meaningful direct appeal proceeding. None did.
Hebert’s Post-Conviction Efforts;
Mr. Hebert knew Richard White was the crucial witness in his case, and he knew White had lied. Hebert searched continuously for Mr. White for four years before discovering White’s astonishing crimes and his location… in prison!
A lawyer (Jessica West) filed a January 2008 Motion to Vacate Mr. Hebert’s conviction because of the revelation of White’s true background, and his admission. His testimony at Hebert’s trial was composed solely of “what the police and prosecution wanted” him to say.24In late May of 2007, by his own diligence, Mr. Hebert discovered Richard White’s actual background and location.
On September 20, 2007, Mr. Hebert’s investigator Vivian Liao interviewed Richard White at Canon City.
Mr. White stated that he had testified as a prosecution witness in a case in which a man was accused of killing his wife. At the time he was being asked to testify, he had killed “a lot of people” and was afraid of being caught. On being interviewed by police in spring of 2003, he was afraid that it was a trick to catch him. He was also afraid of the police attention and being in the “spotlight,” but after a few meetings with the Denver detective he came to believe the officer was too slow to represent a threat to him. He remembers talking with a female Assistant Denver District Attorney, as well as the police officer. He did not want to testify but he was pressured to do so. The police and D.A. told him what they wanted to hear. When he testified in Hebert’s trial he just went along with what they told him so that he could get out of there.
(sworn to by Vivian Liao on January 8, 2008). She also complained that the Denver District Attorney had failed to divulge the information of Mr. White’s actual background to Mr. Hebert’s defense.
The Denver district court (Judge R. Michael Mullins) took nearly a year and a half to render a denial,25Attorney Jessica West filed Mr. Hebert’s (Rule 33) Motion to Vacate Conviction on January 31, 2008. Under Colorado State Law (Title 13-5-135) “Every motion which is submitted to any district court of this state shall be determined by the court within ninety days.”
After more than a year had passed, no ruling had been rendered. Requests from Mr. Hebert regarding expedition of the motion (or even its whereabouts) went unanswered and unacknowledged. There was no indication that Denver district courts had any intention of ever issuing a determination.
Constrained by these circumstances, Mr. Hebert had no option but to file a (Colorado Appellate Rule 21) request to the Colorado Supreme Court, begging the Court to order the Denver district court simply to obey the plain state law and rule on Mr. Hebert’s Rule 33 motion. This action is tantamount to suing the lower court judge from whom the defendant had hoped to receive a reasonable ruling; it is not conducive to eliciting a favorable determination. But Mr. Hebert had no other pathway in which to move his case forward.
The Supreme Court request resulted in the Denver court finally (in late May, 2009) issuing a finding. As it happened, the motion had fallen onto the docket of Judge R. Michael Mullins (who had presided over Mr. Hebert’s trial). Predictably, his ruling was unfavorable. It was also manifestly angry, disingenuous, and sarcastic [See COURT’S ORDER RE:DEFENDANNT’S (sic) MOTION TO VACATE CONVICTION BASED UPON WITNESS PERJURY AND NEWLY DISCOVERED EVIDENCE].
When a district court judge ignores Title 13-5-135, Colorado law (by the next statue, Title 13-5-136) provides a penalty: “If any judge fails or neglects to give judgment within the time limited by 13-5-135,such judge shall not receive any salary for the quarter in which such failure occurred.” The imposition of this penalty is by the authority of, and is the responsibility of, the Commission on Judicial Discipline. The Commission declined to act in this case, saying that certain mitigating factors may have inhibited the district court’s ability to respond. There is, however, no provision for consideration of “mitigating factors” in Title 13-5-135; and there is no known record of the Commission, in any event, having ever imposed the penalty on any dilatory judge in any case.
When protection is needed from judges who flout statutory law and who are sexual predators, people have no other recourse than to rely on the regulatory agencies which have been created by the State Supreme Court. But when citizens request help, the agencies close ranks with an accused judge like R. Michael Mullins and protect him from the complaint (See Denver Post Guest Commentary of October 7, 2018, by Suzanne Staiert, Colorado Deputy Secretary of State).
The Attorney Regulation Counsel, and the Judicial Discipline Committee are at least remarkably egalitarian; they are just as disdainful of a high-ranking government official, such as Ms. Staiert, as they are of a prison inmate. finding that other evidence beside Mr. White’s testimony was enough to support Mr. Hebert’s conviction; but refusing to grant attorney West’s request for an evidentiary hearing in which the other evidence would have been shown to be false, as well.26In Mr. Hebert’s trial, the prosecution used testimony of Richard White to introduce evidence of a .22 caliber pistol into the proceedings. They told the jury that Mr. Hebert had used “that gun” to plan, practice, and shoot his wife. Mr. White’s testimony was false and the prosecution knew it because they had formulated what he should say and then coached his delivery.
In 1977, The United States Court of Appeals for the Tenth Circuit reversed a conviction (U.S. V. Warledo, 557 F.2d 721) where evidence of a firearm was admitted, although it was not used in the crime. The Court said that introduction of dangerous weapon evidence is so inherently prejudicial that it “can only serve to arouse passion and unfair prejudice” and establish that the defendant “was a wicked or dangerous individual.” Therefore, a new trial was required even where there had been other evidence to support a conviction – and even if such other evidence had actually been true (as in Warledo).
In Mr. Hebert’s case, Judge R. Michael Mullins not only denied a new trial because of other supporting evidence, but also denied even an evidentiary hearing wherein Mr. Hebert could have proven the prosecution’s other evidence was false as well. The American Bar Association’s Standard for Criminal Justice states “A plenary hearing to receive evidence… is required whenever there are material questions of fact which must be resolved….”
Hebert therefore asked the Federal District Court to grant relief on the basis that the D.A. had violated his due process rights by withholding the revelations about Richard White. The Federal court ruled, incorrectly, against Hebert on a procedural (Standard of Review) point.
Hebert appealed to the 10th Circuit Court of Appeals for a correction on the Standard of Review error — but the Court found another reason on which to deny, saying that a change in federal law (AEDPA) prevented it from relying on its own precedent rulings (e.g., Smith V. Roberts, 1997).
In 2012, because the 10th Circuit’s determination conflicted with rulings of other Federal Circuits, Hebert asked the Supreme Court of the United States for resolution of the disagreement between the Circuits, which is its supervisory responsibility. The Court chose not to consider and the question remains un-clarified.
In 2014, Hebert presented a 35(c) Motion to Denver district court asking for an evidentiary hearing in order to present arguments of ineffective assistance of trial counsel, and newly discovered evidence. The court (Judge William D. Robbins) abused its discretion by making an unreasonable assumption that counsel’s errors were intentional. The court also ignored completely the substantial new evidence discovered in 2009 through 2014 of Mr. Hebert’s actual innocence (which included Richard White’s bragging and repeated confessions of his responsibility for the murder of Carol Hebert).27At Mr. Hebert’s June 2003 trial, Richard White testified as a prosecution witness regarding his sale of a .22 pistol. He was a well-groomed and well-spoken 30 year old whose most notable feature was his extremely bright red hair. He described the .22 caliber weapon in detail, even managing to remember and recite its factory serial number. There was no indication that, as he spoke, Mr. White secretly had bodies of several victims hidden in graves located around Colorado including two in the backyard of a Denver home on North Albion Street.
As Hebert listened, he knew that Mr. White was lying but had no inkling why. Mr. Hebert was sure he did not know the witness and he was unaware of any connection between Mr. White and himself or his household. But then Mr. White remarked off-handedly that, at the time of his gun sale, his girlfriend was Cammy Nelson.
Mr. Hebert recognized Cammy Nelson’s name and was mildly surprised. She had been a barmaid at Mr. Hebert’s favorite bar and had been well-known to Mrs. Hebert as well. Cammy was one of the women employees of the bar who had been invited to the Hebert residence from time to time by Carol Hebert to learn knitting and other needlework [see testimony of Skye Smith and Christy Wilburn] and just to have friendly “girl lunches.” This information, however had no particular significance to Mr. Hebert until years later when Richard White’s actual background emerged and information from some of the un-investigated leads (the two young men in the Yellow cab; the two young men at Mr. A’s Bar where Mrs. Hebert’s wallet was discovered; the witnesses who remembered that one of the men had bright red hair; the location of Richard White’s residence on Albion Street) coalesced with facts gathered by Mr. Hebert’s investigators including affidavits from several people who related Mister White’s own bragging and statements regarding Carol Hebert’s death…all of which caused Mr. Hebert to remember that Cammy would have known the layout of the Hebert residence, as well as the location where Mrs. Hebert kept her favorite possessions and, importantly, Cammy would have known that Mr. Hebert was invariably out of the house in the late afternoon every single day.
Mr. Hebert always believed (and still does) that Cammy was a good, kind person. But still she might have divulged her information about the Hebert house- hold in ordinary conversation with her roommate Richard White. And there is the additional fact that, while Cammy worked at the bar in evenings, she also had a job at a pawn shop on Colfax Avenue at Fillmore Street. *See inmate Kevin B. affidavit (ahead).
Richard White lived for some time at 2885 Albion Street in Denver. Sanders Nelson (no relation to Cammy Nelson), his across-the-street neighbor, provided an affidavit to Hebert’s investigators wherein he recalled the last time he saw Mr. White:
“I had assumed that he moved out in 2001 or 2002 because I had not seen him for a while. In the summer of 2003, Richard came to look for me because he was looking for some drugs. He stated that he had been living in southern Colorado, and the reason he was in Denver was he had to testify against this old man in a murder trial. Richard said he thought the police were looking at him for the murder, so he cooperated to keep their attention off of him, and he perjured on the stand because he knew who really killed the old man’s wife. He said he would never tell on a friend. He said he wished he could have seen the faces of everybody in the courtroom if they had realized he was the only person there who knew what really happened to the woman.”
Mr. Nelson clearly remembered the conversation with Richard White because:
“About a month later is when the police found those bodies in his backyard and it created a foul odor through the neighborhood for days such that you can’t ever forget.”
[Note: for this article, inmates are identified by initials. The inmate affiants quoted are willing to testify to the accuracy of their statements but prefer anonymity until called into court because the peculiar culture of detention could put them in danger if other inmates should mistakenly believe they were preparing to help prosecutors against another inmate]
An inmate (“J.S.”) provided information relating to his conversation with Richard White while at the Arapahoe County Jail in 2004:
“Richard White stated that he had confessed to several murders for the purpose of avoiding the death penalty.
He felt he had beaten the system because he had actually committed numerous more murders than he had admitted to authorities.
He committed murder with another man, but he never named any co-perpetrator to authorities.
They unintentionally killed a woman in her house. He knew her husband would come home soon, so they took her body away in her own car so that police would be investigating a missing person instead of a murder and they would gain two days for the crime to cool off.”
Inmate “Steven A.” talked with Richard White at Limon Correctional Facility in approximately June or July of 2006:
“Richard White was proud that he had more felony charges on him than anybody else he had ever heard of [note: the Denver D.A. had charged White with more than fifty felonies, including kidnapping, most of which were dropped by terms of the plea agreement the arranged for Mr. White], but he mentioned there were other crimes the authorities had never caught-up to on him….
God has told him to never confess to crimes he did with help from accomplices because God tells him he must protect his friends and if he does then God will protect him from the Death penalty.
He says that he testified at the trial of Hal Hebert and even had news clippings about the case. He says he was scared to testify because the fact of the matter was that he had gone with a friend to the Hebert house and they accidentally killed the wife when all they were trying to do was make some money. Voices in his head told him to cooperate with the police and he would be okay. The voice was right because the police told him exactly what to say.”
Inmate “Kevin B.” related conversations with Richard White at Colorado State Penitentiary:
“I listened to Richard White brag about his murder count. He said he confessed to just enough to get a deal that would keep him from lethal injection….
He had a friend who worked in a pawn shop* so he had help in selling stuff. He planned a kidnapping for ransom but the plan fell apart when his gun accidentally fired when he approached with his buddy and she was killed….
Sometimes he took “collectables.” He took one shoe from a woman [note: when Carol Hebert’s body was found, she was fully clothed except for one missing shoe. Police were so sure they would find the missing shoe at the Hebert residence that they listed it as the object of their proposed search when they applied for a search warrant. But the shoe was never found.] He (said) he killed a woman and put her body inside her own car trunk and drove it far across town to confuse authorities and thought it would be a good joke on the cops.”
Inmate “V.A.” attested:
“Mr. White told me about how he avoided the death penalty… He said that he had a friend went to kidnap a woman in Denver to hold her for money, but they ended up killing her by accident because they were both high on cocaine….
He said he was contacted by a detective who wanted him to testify against the woman’s husband who got charged with the murder…. The District Attorney told Mr. White what they wanted White to say, and how to say it [See affidavit of defense investigator Vivian Liao], and after the trial the detective told him he was the star witness….
Mr. White said he’s never confessed to authorities about being involved in the murder. He did not want to bring trouble to his buddy who still sometimes helped him by sending him letters and money.”
Ex-prisoner Richard Fluharty (who is out of the Colorado Department of Corrections system) stated that:
“Mr. White told me he had killed at least nine more people that he had not gotten caught for, and that he even managed to get someone else convicted for some of his other crimes….
He said he and another person planned to kidnap a woman. They knew the old man would be out of the house for a few hours in the afternoon so they sneaked into the house to grab the woman but his partner accidentally shot the woman. They quickly went through the house and found some jewelry to sell and almost $6,000.00 [note: Carol Hebert was killed on April 11, 2001. Her fine jewelry was stolen, including her rings. Her engagement ring was a large solitaire diamond. On May 19, 2003, Mr. White pawned a lady’s ring at the EZ Pawn Store in north Pueblo, Colorado. The EZ Pawn ticket includes a “Declaration of Ownership” with Mr. White’s signed statement that he owned the ring for two years]….
He knew this couple had money because his girlfriend had been inside the house and it was full of nice things… but his partner accidentally shot the woman with a little revolver [note: the empty shell casing from the .22 “short” cartridge that killed Carol Hebert was never found. This fact indicates that, if the lethal weapon was a semi-automatic pistol as the prosecution had asserted to the jury, the shooter must have carefully searched for and picked up the spent casing. But if the murder weapon had been instead a revolver as Richard White told Mr. Fluharty, the shell casing would have remained inside the gun’s chamber after firing, and then been carried away with the weapon]….
They put the body in the trunk of a car at the home and planned to take her out east toward Limon but his partner refused to go farther than Aurora, so they left the car on a side street east of Denver….
Mr. White laughed about how a Denver detective got him and asked him to testify against the woman’s husband. He said he thought the detective was trying to trick him. He didn’t know what to say but wanted to keep the cops off of him so he cooperated… a female D.A. and the detective told him everything he needed to say at the trial… he was amazed the cop never suspected him of doing the crime.”
In 2015, Hebert appealed the district court’s denial to the Colorado Court of Appeals. The Court declined to affirm the district court’s ruling (thus tacitly acknowledging that the lower court (Judge Robbins) had ignored precedent and misapplied the law); but then found different grounds of its own on which to rule against Mr. Hebert:
The Court (Judge Hawthorne) intuited, then formulated, a new procedure; then applied its new rule (in its unpublished August 2016 opinion) against Mr. Hebert’s 2008 Motion to vacate the conviction. Thus, even though Mr. Hebert’s 2008 lawyer would have had no way of anticipating the new requirement, her failure to follow procedural law (not yet developed at the time) assures, by Judge Hawthorne’s reasoning, that Hebert will be forever barred from any hearing in which the facts and merits of his case could be examined (even the newly discovered evidence, which the court ruled should have been included in the 2008 motion, although the bulk of it was discovered in 2009 through 2014).
In December 2016, Mr. Hebert asked the Supreme Court of Colorado to reverse the Court of Appeals and order an evidentiary hearing for presentation of facts which are now clearly sufficient to result in acquittal at a new trial. On July 31, 2017, the Court denied Hebert’s petition.
The result of the post-conviction rulings in this case is that Hebert (and others wrongfully convicted in Colorado) will be forever barred from a fair hearing to establish their innocence even when newly discovered evidence is overwhelmingly favorable to the appellant.
The courts, when faced with proof of outrageous conduct by police and prosecutors, including evidence tampering, witness subornation, misrepresentation of evidence, perjury, and failure to divulge exculpatory evidence, have the option and the inherent authority to serve the interest of justice. They instead have chosen to protect the system, and its denizens, with arcane impenetrable procedural rules rather than to examine the facts and deliver justice on the plain merits of an appellant’s case.
Colorado Citizens Should Consider;
Is it the proper role of the courts to seek out or devise pretexts on which to uphold spuriously achieved convictions at any cost? Or should citizens expect the elected and appointed Judges in this state to be held accountable to their first responsibility: protecting the constitutional Due Process rights of every person accused in a criminal action?