If You Only Knew (37 page)
Authors: M. William Phelps
CHAPTER 91
ON AUGUST 15, 2012,
Newman filed her brief with the U.S. Supreme Court on Vonlee's behalf. This set off a host of filings and responses from the court that went on and on, for months and months. Her argument was detailed. It covered every single beat of Vonlee's case, leaving nothing out. One of the most telling pieces of factual information she presented:
In an affidavit, Ms. Titlow's first attorney, Richard Lustig, stated that “Mr. Toca did not pick up the discovery materials from [Lustig's] office, nor discuss the facts of the case with [Lustig] until January 10, 2002.”
This meeting was months after Vonlee had withdrawn her plea-bargaining agreement from the court.
Newman filed her brief with the U.S. Supreme Court on Vonlee's behalf. This set off a host of filings and responses from the court that went on and on, for months and months. Her argument was detailed. It covered every single beat of Vonlee's case, leaving nothing out. One of the most telling pieces of factual information she presented:
In an affidavit, Ms. Titlow's first attorney, Richard Lustig, stated that “Mr. Toca did not pick up the discovery materials from [Lustig's] office, nor discuss the facts of the case with [Lustig] until January 10, 2002.”
This meeting was months after Vonlee had withdrawn her plea-bargaining agreement from the court.
Newman said Toca “recklessly advised [Vonlee] to withdraw a favorable plea and proceed to trial where she faced a possible life without parole.”
The Supreme Court argument was set in front of the Supreme Court justices for Tuesday, October 8, 2013, those seemingly stagnant wheels of justice once again moving with the mountain stream.
“At its core,” the attorney explained, the argument she presented focused on whether Frederick Toca's performance was “deficient, and if so, did the deficient performance prejudice Vonlee?”
In Newman's and Vonlee's opinions, Toca had failed to investigate Vonlee's case and thus “talked her out of a favorable plea deal and into a trial that was unwinnable.”
All for a chance to sell her story to Hollywood!
The battle here for Newman was that the recordâall of the previous appeals and Vonlee's original court casesâdid not reflect that argument in a carefully detailed manner. This was the reason why she had been so focused on studying the record; she was trying to find that one piece of it she could use to Vonlee's advantage.
What's more, the prosecutor claimed “no deficient performance because,” you guessed it, “there was no record as to what Toca did or did not do.”
As Newman argued before the justices, the prosecutor was correct, she said, since “a precise factual record does not exist. However, Toca was disbarred due to a myriad of ethical violations so serious that his ethical violations in this case were merely a footnote. . . .”
The other part of it working in Vonlee's favor was that the timing of Toca's involvement was never in dispute. He had not spoken to or obtained the trial counsel's files until well
after
Vonlee withdrew her plea. That alone was effectively enough to seal Vonlee's fate.
after
Vonlee withdrew her plea. That alone was effectively enough to seal Vonlee's fate.
“And, perhaps most telling,” she went on to argue, “he tried to renegotiate the sentence deal prior to her plea withdrawal, and only when that was unsuccessful did he state that Vonlee would not testify against Billie. And so the prosecution withdrew its deal.”
Luckily, for Newman and Vonlee, that final part had all been done on the record.
A decision came in about a month later, on November 5, 2013.
Justice Sonia Sotomayor's written concurrence did a fair job of explaining the justices' collective opinion:
In my view, this case turns on Vonlee Titlow's failure to present enough evidence of what Frederick Toca did or did not do in the handful of days after she hired him and before she withdrew her plea.
This had been Val Newman's exact concern from the get-go: not enough record to reflect Vonlee's argument.
As our opinion notes,
Sotomayor added,
she bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled correctly. She failed to carry this burden. We need not say more, and indeed we do not say more.... Had respondent made a better factual recordâhad she actually shown, for example, that Toca failed to educate himself about the case before recommending that she withdraw her pleaâthen she could well have prevailed.
In my view, this case turns on Vonlee Titlow's failure to present enough evidence of what Frederick Toca did or did not do in the handful of days after she hired him and before she withdrew her plea.
This had been Val Newman's exact concern from the get-go: not enough record to reflect Vonlee's argument.
As our opinion notes,
Sotomayor added,
she bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled correctly. She failed to carry this burden. We need not say more, and indeed we do not say more.... Had respondent made a better factual recordâhad she actually shown, for example, that Toca failed to educate himself about the case before recommending that she withdraw her pleaâthen she could well have prevailed.
Vonlee had lost. All of the justices agreed.
Nine to zip.
“We would have won, had the record been better developed to support the argument,” Newman explained later. “Of course, I was not the lawyer until the U.S. Supreme Court, and she had gone through various lawyers throughout the appeal. There could be legitimate reasons why the record below was left undeveloped, but there was nothing I could do about that insurmountable problem by the time I got into the case.”
One had to consider if Newman's prior win (
Lafler
v.
Cooper
) in this same house of justices had worked against her. Was that a possibility?
Lafler
v.
Cooper
) in this same house of justices had worked against her. Was that a possibility?
“I don't think the prior case worked against us at all. This was a tough case because of the condition precedent in the pleaâVonlee having to testify against Billieâand that condition being nonexistent as this case wound its way through the appellate courts.”
Another issue that hurt Vonlee was Billie Jean's acquittal.
“Most folks assumed criminal agency in Donald's death,” Newman concluded. “Despite the medical examiner's testimony at Vonlee's trial, I'm not entirely convinced that Donald died from any criminal activity. It's possible, but to me it is just as likely he died of natural causes. I think that is why Billie was acquittedâcause of death unclear and portraying Vonlee as a nutcase not to be believed.”
What's interesting and strikes perhaps at the heart of Vonlee's case in its totality is the fact that the United States Supreme Court was willing to say that Frederick Toca was unethical and that he unequivocally behaved in an unethical manner, but that alone was
not
enough.
not
enough.
Final score: Justice 8, Vonlee 1.
It was over.
Exhausting all of her appeals, Vonlee Nicole Titlow would continue to serve her sentence and be eligible for parole in 2021, the earliest she could possibly be released. The maximum date of her release is 2041. Vonlee would be seventy-four years old if she served her entire sentence.
“I think Vonlee is likely to be paroled at her earliest release date,” Valerie Newman concluded. “Even assuming the worst about her actions, she did not kill Don Rogers or do anything that actually contributed to his death. I think Billie would have done what she did with or without Vonlee.”
ACKNOWLEDGMENTS
THERE IS NO EPILOGUE
to this book because there is no more story to tell. A crime story that began with a death in 2000 ended thirteen years later in 2013 in the U.S. Supreme Court. Vonlee awaits her first parole hearing in 2021 so she can argue to be released. Based on the mishandling of her case by Fred Toca, something tells me it just might happen. But who knows?
to this book because there is no more story to tell. A crime story that began with a death in 2000 ended thirteen years later in 2013 in the U.S. Supreme Court. Vonlee awaits her first parole hearing in 2021 so she can argue to be released. Based on the mishandling of her case by Fred Toca, something tells me it just might happen. But who knows?
I dedicated this book to Cherry, my black Lab. She died while I was working on the book and the loss was more devastating than I could have ever imagined. Funny that an animal could bring so much joy, love and goodness into my life. I understood, in those empty days after Cherry's death, what writers such as Dean Koontz have gone through dealing with a similar loss. I miss Cherry immensely. I want to thank Cherry (wherever she is) for all those years of unconditional love she gave to me and my family.
I received an e-mail one night from a friend, Dave Lane, a producer for a Jupiter Entertainment series on Oxygen,
Snapped.
Dave and I go back a number of years. We look out for each other when it comes to great true-crime stories. If any of my longtime readers have read through to the acknowledgments section of my books, you'll know that I have thanked Jupiter and many of the people at this wonderful company for the stories they've suggested to me.
Snapped.
Dave and I go back a number of years. We look out for each other when it comes to great true-crime stories. If any of my longtime readers have read through to the acknowledgments section of my books, you'll know that I have thanked Jupiter and many of the people at this wonderful company for the stories they've suggested to me.
Under the e-mail subject line “Your next book?” Dave wrote,
I just worked on a [case] that might be of great interest to you. What a story!
He sent me a bullet-pointed list of facts from the Vonlee Nicole Titlow case. I was on the story that night, making calls and sending e-mails the next day. I need to thank Dave Lane, and everyone at Jupiter, for the years of friendship and business.
I just worked on a [case] that might be of great interest to you. What a story!
He sent me a bullet-pointed list of facts from the Vonlee Nicole Titlow case. I was on the story that night, making calls and sending e-mails the next day. I need to thank Dave Lane, and everyone at Jupiter, for the years of friendship and business.
With special gratitude, I also want to acknowledge Erin Althaus, cameraperson extraordinaire, who I have worked with at Jupiter on many occasions, but have failed to mention in previous acknowledgment pages. I apologize, Erin. I actually thought I had been thanking you, but had confused your name with someone else (sorry again). I know that sounds weird, but, in my defense, there are so many people I come into contact with throughout the course of a year, it's hard to keep track sometimes.
Vonlee Titlow was always available and willing to talk about anything, and I thank her for her time. She is a genuine person, a Southern gal to the core, and I don't feel she participated in this crime the way in which she was convicted and sentenced. Vonlee's crime is not saying anything, not turning Billie Jean in and not testifying against her. Yes, these are serious, felonious acts, but murder? I don't feel she knew there was a murder taking place until it was too late.
Did Billie Jean murder her husband, Don Rogers?
I can only say, in my opinion, I believe Vonlee's narrative of what happened.
Valerie Newman was extremely helpful in understanding this entire case. I could not have written this book without the documents, interviews and e-mail responses she provided. Bill Cataldo was also very helpful, as were many sources that would rather go unnamed.
My fans are the reason I write. I owe all I do to each reader. I put my heart and every bit of passion I have into these books every morning as I begin because my readers deserve it. I wish I could thank each one of you personally.
I want to extend a thank-you to my
Dark Minds
fans: I am honored by your dedication and willingness to watch the series and support it. We managed to make three seasons before a decision was made to end it. I am indebted and grateful to Investigation Discovery for allowing me the opportunity to make the series and profile victims of crime. We have new projects to focus on now, but I want to say that making
Dark Minds
was an experience I will never forget. It was a gift to be able to produce this series.
Dark Minds
fans: I am honored by your dedication and willingness to watch the series and support it. We managed to make three seasons before a decision was made to end it. I am indebted and grateful to Investigation Discovery for allowing me the opportunity to make the series and profile victims of crime. We have new projects to focus on now, but I want to say that making
Dark Minds
was an experience I will never forget. It was a gift to be able to produce this series.
My publisher, Steve Zacharius, and the entire team at Kensington Publishing Corp.âespecially Michaela Hamilton, my editor, Morgan Elwell and Vida Engstrand, from publicityâall of whom deserve my utmost respect and gratitude for the passion each puts into the books I write. These are great people who love what they do. To be part of Kensington's continued success as an independent publisher is an honor. I am lucky. I tell myself this every morning as I awake and go to work. I never take for granted that what I do is a blessing.
I would like to also give my sincere appreciation to everyone at Investigation Discovery and Beyond Productions involved in my work on television, both past and present. I've said this before many times, but it needs repeating. It takes an army of devoted people to produce a television series. Among those I want to personally thank:
Dark Minds
show runner and series producer, Andrew “Fazz” Farrell, and also SVP Production: Content, Geoff “Fitz” Fitzpatrick. Fitz and I have worked closely over the past year together on a lot of television projects and I have learned so much. I cannot thank Fitz and development head Anita Bezjak enough, both of whom have been mentors and great teachers of all things cable TV.
Dark Minds
show runner and series producer, Andrew “Fazz” Farrell, and also SVP Production: Content, Geoff “Fitz” Fitzpatrick. Fitz and I have worked closely over the past year together on a lot of television projects and I have learned so much. I cannot thank Fitz and development head Anita Bezjak enough, both of whom have been mentors and great teachers of all things cable TV.
Each of the following, in his or her own way, has taught me everything I know about making quality-grade, great nonfiction television: Alex Barry, Colette “Coco” Sandstedt, John Mavety, Peter Heap, Mark Middis, Toby Prior, Peter Coleman, Derek Ichilcik, Jared “Jars” Transfield, Jo Telfer, Claire Westerman, Milena Gozzo, Geoff Thomas, Cameron Power, Katie Ryerson, Inneke Smit, Pele Hehea, Jeremy Peek, Jeremy Adair, Geri Berman, Nadine Terens, Samantha Hertz, Lale Teoman, Hayden Anderson, Savino (from Onyx Sound Lab in Manchester, Connecticut), David O'Brien, Ra-ey Saleh, Nathan Brand, Rebecca Clare, Anthony Toy, Mark Wheeler, Mandy Chapman, Jenny O'Shea, Jen Longhurst, John Luscombe, Debbie Gottschalk, Eugenie “Jeannie” Vink, Sucheta Sachdev, Sara Kozak, Kevin Bennett, Jane Latman and Henry Schleiff.
For my entertainment lawyer/business manager, Matthew Valentinas, a big thanks for this past year. We've only just begun, my friend!
I would also like to thank Deb Allen, Donna Dudek, Mike Rogers, Maggie Sharbel, Elizabeth Strickland, Jasmine Fox, Katie Harrington and everyone else at Jupiter Entertainment for your willingness to always help me and answer my e-mails.
Mathew, Jordon, Regina and Aprilâthanks.
Special Bonus for True-Crime Fans
Â
Keep reading to enjoy the exciting opening chapters
of the next real-life thriller by
M. William Phelps
of the next real-life thriller by
M. William Phelps
DON'T TELL A SOUL
Coming soon from Kensington Publishing Corp.
CHAPTER 1
SHE HAD THAT SOUTHWESTERN
charm people adore: a calm disposition, obvious Texas twang in her accent, a generally carefree, relaxed outlook on life, and Christian manner. Since 2002, sixty-eight-year-old Rueon had been married to eighty-three-year-old Gethry Walker, a man who was pretty much set in his ways. Gethry was a gentle spiritâone of those rare men that listened more than he talked, an old-school, churchgoing Texan who wore suspenders, a dress shirt and slacks, subtle, elegant tie, almost every day. When Gethry did have something to say, in fact, he spoke it at the altar behind a lectern during services at the Greater Love Temple Church in Tyler, Texas. Both Gethry and Rueon were, first and foremost, God-fearing people; they believed in Jesus Christ, redemption of the cross, penances paid for wrongs committed, justice, andâbeyond perhaps most anything elseâfacing demons and coming to terms with who you are as a human being under the guidance, influence, and faith of God.
charm people adore: a calm disposition, obvious Texas twang in her accent, a generally carefree, relaxed outlook on life, and Christian manner. Since 2002, sixty-eight-year-old Rueon had been married to eighty-three-year-old Gethry Walker, a man who was pretty much set in his ways. Gethry was a gentle spiritâone of those rare men that listened more than he talked, an old-school, churchgoing Texan who wore suspenders, a dress shirt and slacks, subtle, elegant tie, almost every day. When Gethry did have something to say, in fact, he spoke it at the altar behind a lectern during services at the Greater Love Temple Church in Tyler, Texas. Both Gethry and Rueon were, first and foremost, God-fearing people; they believed in Jesus Christ, redemption of the cross, penances paid for wrongs committed, justice, andâbeyond perhaps most anything elseâfacing demons and coming to terms with who you are as a human being under the guidance, influence, and faith of God.
When Saturday, June 19, 2010, came to pass, and Gethry or Rueon had not heard from Gethry's daughter, thirty-eight-year-old Cherry Walker, they felt something was wrong. It was that paternal instinct kicking in.
Where is Cherry?
Still, after thinking about Cherry in a more positive light, they considered that perhaps she had simply decided not to call. Cherry was entitled to her own life. Plus, she could be absentminded like that once in a while. Cherry had suffered from “learning disabilities” all her life and had just gone off to live on her own. She was almost thirty-nine, her birthday four months away. Clinically classified as MR, “mentally retarded,” by her doctors, with all the progress she'd made recently, what was the big deal with a missed call home once in a while?
That Sunday morning (which also happened to be Father's Day), as Gethry and Rueon, Cherry's stepmother, got ready for church, Rueon started to wonder once again why Cherry had not called. She would always call before church to check in or ask what time the van was coming to pick her up. But as the morning wore on, there had still not been any word from Cherry. Almost two full days now and not a peep.
Totally out of character for Cherry.
Rueon fixed her hair and figured the church van, which Cherry's brother drove, had picked her up for services and they'd meet Cherry at Temple Love. She told Gethry not to fret. It would all be okay. They'd go to church and run into Cherry there. No worries. Rueon could kindly scold Cherry and tell her she had forgotten to call not only the day before, but that morning, and she was well aware that calling Rueon and Gethry once a day, if not every other day, was what they expected from her. They could talk about it, remind Cherry she needed to take responsibility, be done with it, and enjoy Sunday service praising Jesus.
Gethry and Rueon looked for Cherry as they walked into Temple Love, but they did not see her. Cherry had her favorite seat down in the front row of pews, her name on it. But when Rueon reached the front of the building by the altar, she looked around and Cherry was nowhere to be found.
Rueon sought out Cherry's brother. “Where's your sister?” He had driven the van.
“I thought she was with y'all,” he said.
“No, we thought she was coming with you.”
Throughout that Sunday service, as anxiety turned more into a genuine concern for Cherry's well-being, Rueon started to call Cherry at her apartment and on Cherry's cell phone.
“We got no response,” Rueon said later.
If there was one thing about Cherry that Rueon and Gethry, and anybody close to Cherry knew, the girl did not go anywhere without two things: her money purse and cell phone. These two items were part of her, attached.
For Rueon and Gethry, it was easy to write off any fears or bad feelings by telling themselves,
Cherry probably just went to church with someone else.
Cherry probably just went to church with someone else.
“She sometimes did,” Rueon explained later.
When Rueon and Gethry got home, Rueon called Cherry several more times, but there was no response.
“You know,” she told Gethry, “I'm going to git her.”
It was so unusualâthe not knowing. Cherry had struggled, but worked hard, and she'd managed to overcome many difficulties and disabilities to carve out a life for herself with a small studio apartment across town in Tyler, not far from Rueon and Gethry's home. She'd had help from an aide, who came to see her every day, but Cherry was living on her own, doing things for herself. There was no explanation they could think of that would put Cherry in a position of not calling them for this long a period of time. It just did not make sense.
“Call her again,” Gethry suggested.
There was no answer.
“Let's go eat, and if we don't hear from her by the time we're done, then we can stop by Cherry's apartment and check in on her,” Rueon suggested.
Gethry nodded in agreement.
They ate lunch and still had not heard a word from Cherry. Leaving the restaurant, they stopped back at home to grab the spare key to Cherry's apartment and headed out to West Houston Street in Tyler, the Citadel apartment complex.
Rueon walked in first. She couldn't believe it. The place was in “disarray,” which was entirely unlike Cherry, who was a neat freak and was even fixated on cleaning and cleaning supplies in an obsessive-compulsive manner. She'd never, under her own will, leave her apartment with “everything” all over the place. “Her ironing board was up. . . . Her bed was unmade . . . and things were just kind of scatter-y,” one source later recalled.
“This is not Cherry, ain't it, Gethry?”
“Sure ain't,” he said.
In addition, Cherry would have never walked out of her apartment without taking a bath, changing her clothesâall of which needed to be ironed before she'd wear themâor tidying up. Just wasn't in her DNA. Everything in her apartment had its place, and there was a place for everything. That was how Cherry lived her life.
Structure.
Focus.
Detail.
“This was the first thing I noticed,” Rueon later explained. “And you just kind of get a feeling, you know.”
A sense. That sinking pit in your gut. A parent's intuition that something, as horrible as it felt to admit, was off.
Rueon looked in Cherry's closet. In her kitchen. All over. She searched for Cherry's cell phone or that specific coin purse Cherry always carried with her. Not finding either gave Rueon a bit of comfort, actually, because there was no chance Cherry would ever leave the house without either of them. With both being gone, there was a bit of relief in knowing that she wasn't whisked away in some sort of home invasion or kidnapping.
Still, walking around the apartment, Rueon couldn't shake the feeling:
Something's wrong.
Something's wrong.
Indeed, comb on the vanity counter, mouthwash there by the faucet, spray bottle of tile cleanser on the floor by the shower, where Cherry always left it, the smiling kitty cats on the ironing board apron underneath a pair of socks waiting to be ironed, two cases of Pure Life and Ozark water on the floor by the waste basket can, a roll of paper towels on the kitchen table, Cherry's favorite posterâfrom the horror film
Shutter
âtaped to her wall, her velvety red chair against the wall, stacks and stacks of DVDs, mainly horror or soft-core porn (
Beyond the Busty Stags
and
Night of Perverted Pleasures
and
Experiment in Torture,
among them) around the television, the TV remote sitting on the bed.
Shutter
âtaped to her wall, her velvety red chair against the wall, stacks and stacks of DVDs, mainly horror or soft-core porn (
Beyond the Busty Stags
and
Night of Perverted Pleasures
and
Experiment in Torture,
among them) around the television, the TV remote sitting on the bed.
Everything in Cherry's life was there waiting for her, but she was missing.
Rueon didn't see it then, but on a calendar on Cherry's wall, two dates in particular stuck out: June 18, the previous Friday (which had passed), and the following Wednesday, June 23 (which had not come to pass). Somebody had written
Babysit
in pen on both days.
Babysit
in pen on both days.
Cherry was babysitting? Who would hire her? Who was she babysitting?
This was odd.
One other possibility existed here, Rueon thought as she walked around the apartment on that Sunday afternoon. One of Cherry's closest friends or even her caseworker, Paula Wheeler, a woman who saw Cherry almost every day, had come by and picked her up to go out to eat or shopping. Rueon had been getting on Cherry lately, in a motherly way, “Girl, you know . . . you're [thirty-eight years old] now, and, you know, you need to grow up.”
They had been trying to show Cherry what Rueon called “hard love,” based partially on the idea that Rueon and Gethry could not be with Cherry foreverâshe'd need to spread her wings and go off on her own. Was this Cherry doing that very thing: going it alone? Had she taken Rueon's advice? You look at Cherry's collection of DVDs and it was clear she was growing up rather quicklyâthat is, if she had led a sheltered life Rueon and Gethry had supposed she had while under their roof back at home.
There was another side of Cherry that Rueon and Gethry worried about, however. Cherry might have been thirty-eight; she might have watched soft porn and gruesome horror films, such as
Saw, The Texas Chainsaw Massacre,
and her absolute favorite,
Paranormal Activity,
but she also played with children's toys and could not read or write much more than her name and a few numbers and letters. She was very much a child in an adult's body.
Saw, The Texas Chainsaw Massacre,
and her absolute favorite,
Paranormal Activity,
but she also played with children's toys and could not read or write much more than her name and a few numbers and letters. She was very much a child in an adult's body.
Rueon and Gethry decided to go home and wait (and hope) for Cherry to call. It was early afternoon, Sunday, June 20, 2010. Why grow sick with worry now, they decided. After all, wasn't the entire point of Cherry renting her own apartment and moving out of the house was so she could become a responsible, independent woman?
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