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Carolyn Wall
416 N.W. 92nd Street
Oklahoma City, OK 73114
(405)848-3096
CarolynWall@sbcglobal.net
Bleak December: The Wrongful Conviction of
Rafael Vasquez
By Carolyn Wall
In
The following morning, he awoke to a baby screaming in the adjacent apartment. A woman named Paula lived there with her five children. Apparently, Paula’s estranged boyfriend, Rod, was the father of one or more of her children. He had hitchhiked from
Vasquez opened the doors and windows while he listened to music and cleaned the Fisher’s Christmas clutter. Once an integral part of this family, Vasquez had checked the girl’s safe passage to and from school, monitored homework and grades. On weekends, he had helped them catch minnows or bake cakes. They watched TV together.
Across the grassy courtyard lived another woman named Sherryl Cloud. She also had five children. It was his caretaking of the Fisher girls that had led Sherryl to ask Vasquez to baby-sit. Thus, he sometimes tended Sherryl’s three-year-old daughter, Hannah, and six month old son, David, while she worked at a local bar -- or when she and her live-in boyfriend went out drinking.
Even then, however, Sherryl lied, telling welfare officials that all five children lived with her, and that she had no job or resident boyfriend. The truth was that, until that day, Vasquez had never seen her older girls because they stayed with their grandparents’.
While Vasquez straightened the Fisher apartment, two of Sherryl’s older three, nine-year-old Melanie, and eight-year-old Anne, appeared in his doorway. They told him their mother had locked them out while she showered, and they had come looking for the Fisher girls.
When he reported that the girls were not there, the Cloud girls ran in and out of the apartment anyway, hoping Vasquez would play with them. Before long, he sent them home and closed the door.
Now absolute silence came from next door – unusual for five children confined in a small apartment. From a phone booth in the courtyard, Vasquez knew he would be able to see Paula’s and Rod’s big living room window. Fom there he watched a partially clad Rod slip into the apartment of a female tenant two doors down. It was
Vasquez knocked on Sherryl’s door, and asked to use the phone book. While she heated food at the stove he told her about the crying child and that Paula’s children were now unattended. As he was leaving, she suggested that he come back later to discuss further babysitting.
At
Then Officer Vega betrayed the confidentiality of Vasquez’ call by walking next door to tell Vasquez of his findings. Now Paula and Rod knew who had called the police.
That afternoon in the courtyard, Paula and Sherryl were seen talking together, shortly before the arrest.
Rafael Vasquez is a forty-five year old college graduate, honorably discharged from the United States Navy, with a Navy Expeditionary Medal and Unit Commendations for his part in the battle in
When he complains or compiles a case against guards, he’s bussed off to another unit. “In
But the Texas Department of Criminal Justice has not broken him. In the visitation room at Michael Unit, he sits down, rubs his eyes, and folds his hands on the table. In front of him is a piece of chocolate. “I don’t remember the last time I had a candy bar,” he says.
He draws a long breath. “History points a finger at unspeakable truths --
At
“Sherryl had accused me of raping her two daughters who had come earlier to the Fisher apartment, and her infant son. She said this happened in her apartment, while she was present – not when I was actually alone with the kids. In fact, she told police it had happened ‘twenty minutes ago.’
“Using explicit, adult wording, the two girls told the officers identical stories – that I had performed oral sodomy and had penetrated one of them. Officer Cannon later testified that the girls’ wording sounded to him like adult language.”
The officers handcuffed Vasquez and took him to the SAPD’s Night Utility. His account of the day’s incidents would never be alluded to in court. Based on the girls’ allegations, he was booked on three counts of aggravated sexual assault – rape.
Vasquez gave consent for the police to search his bedroom at his mother’s house, where he’d been living. They found nothing there to suggest his guilt.
Meanwhile, the three children were transported to
Forensic scientist Dr. Garon Foster would testify that he had seen nothing unusual in his examination. Based on that testimony, either the presiding judge or Vasquez’ attorney should have advised the jury that they might now consider the lesser offense of Indecency With a Child, rather than rape. It was the first of many times the jury would be kept in the dark.
Judge Mary Roman, slated to preside over Vasquez’ case, was behind on her docket. Because he could not afford to post bond, or hire an attorney, Vasquez sat in the
The court appointed a defense attorney.
Research shows that
Compounding these tragedies are electoral and financial pressures within the system.
“The county pays lavishly for the prosecutor to use police, special investigators, and forensic experts,” Vasquez says. “But the courts push attorneys to cut costs while defending the indigent.”
Judge Mary Roman, 175th District Court, was the first Hispanic woman elected to the bench in
Vasquez’ appointed defense attorney was William Michael Orbelo. On Vasquez’ behalf, Orbelo filed some twenty motions. He hired investigator Richard Millican who produced evidence that the complainant, Sherryl Cloud, was under psychiatric care, and had previously charged another man with the same false allegations. Orbelo requested that Cloud take a psychiatric exam.
However, without warning, Orbelo filed a motion on
Orbelo says now, “I was a year out of law school with a family of five. A job opportunity presented itself, and I had to clear my docket. I knew the case wouldn’t go to trial for months, so I handed Ralph’s case over to attorney Jose Guerrero because Guerrero was experienced with high profile cases. In fact, at the time, he was handling Victoria Dalton’s case, which was very similar.”
Roman agreed to the attorney switch.
Vasquez says, “I never saw Orbelo again. I was frantic. The November trial date was approaching, and in the last six months, I had seen Guerrero for less than two hours. He had a long history of professional misconduct and was practicing law under his second probated suspension.”
Vasquez filed fourteen State Bar complaints against Guerrero. Ultimately, Guerrero hired an attorney to defend himself against Vasquez, his own client.
When it becomes apparent that a judge has appointed an inappropriate defense counsel, he or she is bound by law to order new counsel. In Vasquez’ case, the judge did just the opposite.
“What I believe happened,” Orbelo says, “is that Guerrero became involved in the Dalton case, and Ralph’s slipped through the cracks.”
Vasquez sent letter after letter: “To The Honorable Judge Mary Roman. Greetings….”
“When she consistently ignored my pleas, I filed three complaints with the State Commission on Judicial Conduct. I wrote to Roman’s boss, Administrative Regional Presiding Judge David Peeples.
“I told Guerrero he was fired, and instructed him to turn over the files. He would not. Judge Roman refused to grant me a hearing.
“On November 17, 1995, I went to trial. Although Guerrero had six months to prepare, he claimed that he forgot to obtain the police report showing I had first called the police on Paula’s boyfriend, the very reason for their retaliation.”
For a decade, it seemed to Vasquez that Guererro had not obtained Orbelo’s findings. But Orbelo says, “I turned the entire file over to Guerrero.”
Often, Judges may prefer attorneys who create the fewest waves and bolster their courtroom conviction rate. Still, at the time of trial, an attorney is bound by law to produce all material evidence in his possession. Guerrero suppressed it.
“On the first day of trial,” Vasquez says, “one Jesse Sanchez showed up as Guerrero’s assistant. It created the appearance that they had done considerable legwork on my case when neither had done anything at all.”
Not only were the judge and prosecutor women, female jurors outnumbered the men, two to one.
At the end of the first day of trial, Juror #12 stood and begged to be excused. She was taking English language classes, and if she did not appear on the following day to take her final exam, she would receive a failing grade. She said had not understood the jury card, and believed she would have be able to explain that to the judge. During the swearing-in, Juror #12 admitted she had raised her hand, but not spoken the words. She also had not understood what had transpired in the courtroom that day.
Judge Roman had neglected to choose alternate jurors. She reduced the young woman to tears, badgered her into being sworn in, and told her to sit down or face contempt of court charges. Judge Roman ordered the jury selection cards sealed.
At the District Attorney’s table was Cynthia Franklin, prosecuting attorney.
“We are convicted by anger rather than evidence,” Vasquez says. “Franklin spent three days ranting and inflaming the jury. She ignored the Motion in Limine that Guerrero had filed, claiming I had also assaulted one of the Fisher girls.”
When the jury heard that, due process was denied.
Franklin brought the Cloud girls into court.
“They were dressed in frilly dresses,” Vasquez recalls. “They wore big hair ribbons and carried new teddy bears.
As the girls’ rehearsed lines began to fall apart,
On the stand, each girl contradicted herself, then overrode her sisters’ testimonies. The oldest daughter, Melanie, claimed that during the attack she had kicked and screamed, but had not wakened her mother who was a few feet away. The second sister said Vasquez had done “nasty stuff” to her across the room from where her mother lay on the couch. Yet another sister claimed she had seen nothing, then something, and finally stated that Rafael had just “left to go to the store and get food.”
Neither did Franklin or Guerrero told the jury about Sherryl’s instability or her previous false allegations against another man.
Then Sherryl Cloud took the stand.
“She wasn’t competent enough to be a good witness,” Vasquez said, “so she just cried. Even her former father-in-law testified that Sherryl was ‘known to exaggerate.’”
Vasquez remembers repeatedly urging Guerrero to object.
“But he just sat there. Sometimes he’d say ‘not now, not now,’ leading me to believe he had a trial strategy.”
With his silence, Guerrero worked to convict his own client.
“When I realized he had no plan, I was frantic. I took the stand to try and defend myself. But it was too late.”
Now understanding the lengths to which the judge and Guerrero would go to deny him a fair trial, Vasquez raised his hand and asked Judge Roman if she would consider his objections to having only eleven jurors throughout the first day of his trial.
“Not at this time,” she said, then rose and walked away from the bench.
Judge Roman’s Charge to the Jury –instructions on what they may and may not consider -- was rewritten three times during trial. From the deliberation room, the jurors sent a request to the judge.
The only evidence
He says, “At that point, my only hope was to expose the overt acts of Guerrero and Judge Roman on appeal.
“On
Thus, Judge Roman insured that no outside attorney would step up to expose orchestration. In January of 1996, Vasquez was transferred to Garza West Unit. There, because of frequent and condemning media accounts, he was recognized and badly beaten.
*
Of the 154,000 men and women incarcerated in
In the visitation room, Vasquez’ hands shake. He clasps them together to keep them still. He says, “I’m so tired.
“On
“Three months later, Guerrero prepared my Appellate Brief – a government document in which he lied, hiding serious irregularities about the trial. I ordered him to cause my Appeal Brief to speak the truth. I threatened to have him disbarred. In writing, he refused.
“I advised Judge Roman that her forced counsel had falsified a government document and asked her to stop the appeal. I begged her to assign different counsel.”
In writing, Judge Roman also refused.
On
Finally, in September of 1998, Vasquez compiled a state civil lawsuit against Guerrero. He asked for a hearing, and for documents needed to prove claims of malfeasance. But Judge Roman attached these civil issues to Vasquez’ criminal trial records, thus killing the lawsuit, and again silencing the records.
Vasquez remains indigent. He spent more than ten years begging to merely borrow a copy of his trial records and asking Judge Roman to set, hear, and rule upon his motions. To no avail.
For raising issues of conspiracy within the lower courts, the State of
He keeps, on the shelf in his cell, his college degree, a copy of his Honorable Discharge from the U.S. Navy -- and a relatively new document. He studied for and received his Paralegal/Legal Assistant Certificate, most of which he accomplished during a six-month solitary confinement for filing complaints.
Now Vasquez works in a kitchen where the heat is over 110 degrees. In
He believes that his innocence, and mockery of a trial, will come to light. Meanwhile, he serves two concurrent life sentences for aggravated sexual assault. While incarcerated, he has written two play scripts lauded by a writers’ organization in
“I advocate for Veterans and disabled prisoners, and I write articles against gang warfare for an at-risk kids’ program sponsored by a
In that manuscript, he writes:
“Justice is no longer an issue of guilt or innocence. It’s force-feeding eleven-and-a-half unsuspecting citizens a decaying amount of psychobabble and legaldegook. It turns my stomach that the jury is expected to regurgitate something appropriate when they have been so misled.”
Today, prosecuting attorney Cynthia Franklin is an assistant district attorney in the less-populated
Vasquez says, “Thanks to her, I am to die in prison for crimes that never even occurred.”
Author’s Update
There was an apparent honesty and respectfulness in his letter that I could not ignore. I sent a note, and finally lessons. He studied with me for nearly two years before I looked up from his manuscript and realized it was time I knew more. Why was he incarcerated, and for how long?
His reply was twelve hand-written pages, and told approximately half this story. Almost immediately I knew where I was headed: he’d been thrown to the lions, and I needed to right that wrong.
I visited Rafael, wrote letters, made phone calls, tracked down the TV news reporter who had once spoken with him at the county jail. I talked with his original attorney Michael Orbelo, and learned that Richard Millican, the investigator he’d hired, had passed away. Orbelo told me both he and Millican were “disgusted at the way Rafael’s trial was handled.”
He admitted, “Ralph’s case is the tip of the iceberg.”
I am in possession of a copy of the trial transcript, and I have located all the players in the case. In this transcript is much of the evidence he needs to be granted a new trial and to ultimately be set free.
When I last visited Orbelo in
Both girls have passed the age of eighteen, the younger one with a criminal history of assault. Sherryl Cloud, herself, is serving out a sentence in a
In this transcript is much of the evidence Rafael needs in order to be granted a new trial, and then to be freed. In this story, I quoted from those pages. Reading them, I cannot understand how Franklin, Guerrero, or Judge Mary Roman sleep at night.
But I’m a journalist; what do I know of the law?
What indeed. I recently came upon these two sentences penned
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes;
and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable,
than to right themselves by abolishing the forms to which they are accustomed.
But when a long train of abuses and usurpations,
pursuing invariably the same Object,
evinces a design to reduce them under absolute Despotism,
it is their right, it is their duty, to throw off such Government,
and to provide new Guards for their future security.”
In more than two centuries, these truths have not changed. When our system goes haywire and a lamb is led stumbling to the slaughter, those with the ability to take action have the responsibility to do so.
When they do not, and lives are sacrificed, history records yet another unspeakable truth.
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