Bad Boy From Rosebud (85 page)

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Authors: Gary M. Lavergne

Tags: #Biography & Autobiography, #General, #Law, #True Crime, #Murder, #test

BOOK: Bad Boy From Rosebud
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Page 318
cause of a clerical error. McDuff's attorney filed to dismiss all pending charges against McDuff because of a denial of a speedy trial. McDuff had been down that road before. A death sentence is not a certainty. David and Buddy would see to it that history was not going to repeat itself.
That he was already under a sentence of death seemed to "liberate" McDuff to behave the way he wanted to in the courtroom. He must have figured he had nothing left to lose. For example, during pretrial hearing arguments over evidence, the owner of Big Boy's Wrecker Service testified that he had purchased McDuff's Thunderbird for $675 at an auction. "I had that much worth in tires," shouted a shackled and enraged killer. It was vintage McDuff, unmoved at allegations of rape, torture and murder, but furious at the underestimated value of an old car he would never drive again. His court-appointed attorneys, Chris Gunter and a gifted criminal defense lawyer named Andy Forsythe, had even more problems with him throughout the trial. Gunter and Forsythe provided an expert defense, in spite of their unruly client. A typical exchange went:
McDuff: "Let's go at it again."
Forsythe: "No, you wait. I am going to ask the questions."
McDuff: "No, wait a minute. . . . No, I insist on this."
Forsythe: "I will ask if you will wait."
Gunter: "We will ask all your questions. Promise."
9
During the pre-trial questioning of Mike Goins, McDuff got impatient. Again, he did not understand that the purpose of the questioning was to determine the admissibility of the witness's testimony before a jury, not a determination of whether Goins was being truthful.
"I am more familiar with this witness and the testimony than my attorneys are. I would like to ask some questions. I think it is very important to clear up. May I do so?" asked McDuff.
"No!" answered Judge Flowers.
"I don't look like a thirty-year-old, five-foot-seven, 150 pounds. I am almost fifty-two, [and weigh] 255 pounds, this is stupid. I would like to clear these questions up. You ask those questions I wrote down. I would like to ask these questions."
Chris Gunter then requested, and got, a recess for a few minutes.
10
"We have advised him to stop speaking out in court. It interrupts the flow," Gunter said in vain.
In court, even the patient Judge Flowers had had enough. Only two days later, during the testimony of Austin Police Detective Don Martin,
 
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McDuff seriously disrupted the proceedings. Andy Forsythe was finishing up the questioning about the taillights of the Thunderbird when McDuff blurted out, "Let me finish here."
"Mr. McDuff, if you want to testify in this hearing, you have that right, but you are going to have to [stop your interruptions], because we have heard too much of this," asserted a stern Judge Flowers.
"What I want to show . . ."
"You listen to what I am saying. You can whisper and talk to your lawyers. I have told you that I think your lawyers are excellent, but none of this apparently matters," continued the Judge.
McDuff would not shut up. Maybe the rabidly racist McDuff refused to take directions from the distinguished African-American Judge Flowers. Who knows? But Flowers had had enough.
"Sheriff, take him out of here," ordered Flowers.
Don Martin sat silently in the witness chair as deputies and bailiffs wrestled McDuff out of the courtroom. "You could have heard a pin drop in that courtroom it was so quiet," Don remembered. Immediately after pushing McDuff through the first door, everyone in the courtroom and in the halls heard a deputy say, "Don't you do that shit!" followed by loud thuds sounding like a body slamming into a wall. Television cameras stationed in the hallway taped McDuff's unceremonious removal. The deputies picked him up by his ankle and wrist chains and dragged him on the floor and out of the courthouse. All the television audience could see was a bald head going down the stairs.
11
The next day McDuff addressed the court. "I would like to make a notation for the record. Yesterday after I requested my attorneys to ask questions I wanted to ask, they refused. You had me taken [out of the court]. I walked from the courtroom and your bailiffs here attacked me right out here and inflicted serious injuries to me." He wanted what is called a hybrid representation. He wanted to be able to ask the questions while his lawyers did the legal work and filed the motions. Judge Flowers told him he had no right to such representation.
12
The next day another issue, almost as bizarre, came up in court. The defense questioned the competency of a witness named Brandon. Rule 601 of the Texas Criminal Code supports a notion that when someone takes an oath to tell the truth, the seriousness of the oath awakens, or motivates a person to be truthful. The assumption, of course, is that someone giving testimony is smart enough to appreciate the seriousness
 
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of the oath and the consequences of lying. The rule protects the very foundation of jurisprudence, that the oath assures the truth. Andy Forsythe may have inadvertently demonstrated Brandon's incompetence.
Forsythe: ''Do you feel that you may have suffered some sort of brain damage from the result of drinking as much as you have been?"
Brandon: "I'm not sure what you mean by the question."
13
Brandon never became much of an issue at the trial. It did not take David and Buddy long to realize that they did not want to vouch for this guy.
14
A similar witness was Morris, who testified about the day that he met McDuff in the H&H Lounge. He, Billy, and McDuff drove to Del Valle to try to score speed at his cousin Beverly's trailer. Tim Steglich had been assigned to drive to Davilla, Texas, to pick up Morris and take him to Seguin. He arrived in Davilla the morning after a serious ice storm hit Central Texas.
"Morris, come on, we've got to go," shouted Tim from his car.
"I'll be there in a minute after I finish prying up the chickens," Morris said.
"What?" Tim asked.
Morris had a number of fighting cocks in his yard that had been frozen to the ground. Using a flat-nosed shovel, Morris began scooping up the birds from the dirt. Tim tried to help. David remembers Tim wondering if he had pulled the legs off a couple of the roosters.
15
For periods, the trial moved faster than most had expected, but after the testimony of yet another intellectually-challenged witness, court adjourned, and as he walked out of the courtroom, Judge Flowers looked at David Counts and said, "Boy, you guys really know how to kill that momentum."
Other witnesses included Billy, Harrison, and One-eyed Jack, chained together because they had been brought from prison. Billy had his parole revocated for domestic violencehe had slapped Janice. While seated in the hallway of the Guadalupe County Courthouse, Billy and Harrison mouthed off at Tim. It did not last longTim got in their faces. He made the guards very nervous.
16
And the guilt/innocence phase of the trial had not even started yet.
 
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Image not available.
The prosecution team for the Colleen Reed trial. Travis County Assistant District
Attorneys Buddy Meyer (1) and David Counts (r).
Author's Collection.
II
On February 10, 1994, opening arguments commenced in the guilt/innocence portion of the trial. "The evidence is going to show you the only thing that can link Colleen Reed to Kenneth McDuff's car is five hairs," said Chris Gunter. Later he said, "In the words of Ms. Bible, Colleen Reed's sister, Alva Hank Worley is a worthless human being, and he implicated Kenneth McDuff after all that. The problem with Alva Hank Worley is that he is a liar." The defense very cleverly tried to use Lori Bible's statements and actionsspecifically, putting pressure on the Austin Police Departmentto show that APD was desperate to solve the case.
17
Since Mike Goins's positive identification of McDuff as the driver of the Thunderbird at the corner of Powell and Sixth Streets was so crucial to corroborate Hank Worley's statements and forthcoming testimony, Gunter tried to discredit the identification. He asked Goins to look directly at McDuff.
 
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"He's got a pretty good set of ears, doesn't he?"
"It looks like the other set of ears on your side of the table," Goins answered.
"Now, that hurts my feelings. My ears are not as big as Kenneth's," Gunter laughed.
18
The big question, of course, was the testimony of Alva Hank Worley. Hank indicated that he might not testify unless he had an approved plea agreement. The district attorneys responded with an indictment for capital murder. Buddy Meyer pointed out to the press that even if Hank refused to testify, information he gave authorities and his testimony during the Northrup Trial could be presented to the jury. Worley's attorney, Dain Whitworth, indicated that Worley would testify for a plea bargain and a twenty-five-year sentence. For a time, however, it seemed as if Worley might be forced to testify in self-defense. McDuff's attorneys had suggested that Worley was the real killer. If so, Worley knew he had better get on the stand and tell all. He ended up testifying with the same grant of conditional immunity he had during the Northrup Trialnothing more.
19
Like it had at the Northrup Trial, hair became a central issue. A Texas Department of Public Safety forensics expert testified that a total of five hairs found in the Thunderbird matched Colleen's hair samples. The strands of hair had been forcibly removed. And again, a great deal of time was spent arguing about the extent to which hair should be used to identify an individual. The stains and the hair did not prove, to the exclusion of all others, that Colleen had been in the Thunderbird, but they supported testimony that she was there.
20
The jury would have to decide whether that was enough.
On February 17, 1994, Alva Hank Worley arrived to testify before the jury. The grant of immunity compelled his testimony. He repeated the horrifying story of Colleen's mistreatment. "Worley described the night in chronological order, using the same grammar and street expressions of a man who said he can't remember whether he dropped out of school in the ninth or tenth grade," wrote an
Austin American-Statesman
reporter.
Predictably, Gunter went after Hank's inconsistent statements, and suggested strongly that Hank's real motivation for testifying was to save himself. Gunter's questions repeatedly suggested that a deal had been made. "Man, these people ain't done nothing for me. I can tell you that right now," Hank insisted in a quiet courtroom. Hank turned out to be a
 
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credible witness. When Gunter asked him about prisoners who said Hank told them he had participated in crimes against Colleen, Hank said, "That's bull. You need to go find some more witnesses because the ones you got ain't worth a nickel." When Gunter talked to Hank about lies, and it could hardly be denied that Hank Worley was a liar, Hank rose to the occasion.
Gunter: "My question is, you will lie if you think it'll help Alva Hank Worley."
Worley: "Where have I benefited from it?"
21
Francis, McDuff's Kansas City roommate, turned out to be less productive for the prosecution. McDuff grinned and waved at Francis, who testified that all of his conversations with McDuff were more or less prison talknot to be taken seriously. "Hell, he was just shooting old penitentiary stories or something, you know." He claimed not to remember other items in a statement he had given to ATF agents in Kansas City. Francis, and a few of McDuff's former TSTI schoolmates, ready to testify about McDuff's conversations about disposing bodies, were not allowed to take the stand before the jury. Gunter and Forsythe won that battle on grounds of relevance and hearsay.
22
Some of the most powerful testimony came from Dr. Hubbard Fillinger, the coroner of Montgomery County, Pennsylvania. In a courtroom stunned into silence, he testified that Worley's statement that Kenneth McDuff had hit Colleen so hard that she bounced off the road, could be descriptive of the moment of her death. In a scholarly fashion, Dr. Fillinger also supported the "tree breaking" sound Hank claimed to have heard by stating that "a blow of a great deal of force . . . makes a cracking or snapping sound. That tells me that something major has broken. . . . The loud cracking noise, the fact that the person is limp thereafter would be consistent with brain and/or spinal cord damage." He continued, "That leads us to believe that the neurological pathways that sent the message up, 'ouch,' are damaged to the point where we don't have any possible recovery. And that is an indication that life is going to be lost very quickly."
23
On February 23, the
Austin American-Statesman
reported that Gunter and Forsythe had persuaded McDuff not to testify on his own behalf. Surely, they did their client a great service.
Closing arguments in the Reed Trial held no surprises. Not much more could be said. The verdict came down to whether Hank Worley

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