“I soon got off the phone with him,” Captain said.
The next time Captain called, a few days later, to see how Schiess was doing, Barbara answered. When he asked to speak to Schiess, she told him that he had checked himself into an alcohol and drug treatment program and was not there.
“I asked her if he was still drinking and taking pills, and she said he was. ‘Well,’ I said, ‘maybe a treatment program is where he needs to be.’ We talked a little longer, then ended the call.”
In Captain’s third phone call to Schiess, a short time later, Schiess said that he had sent his mother a shotgun, which Captain said that he believed was a birthday present.
In the August phone call, Barbara answered and told Captain that Bob was out. Barbara told Captain that she had her preliminary hearing, then told him that the investigators were looking for Darlene’s son, Benji, who had been missing, she claimed, for the past few weeks. She said that Benji and his mother had been arguing before the murder, and she thought that he had committed the murder.
“We shortly ended the phone call,” Captain told the officers, “and I have not contacted Bob or Barbara since.”
Captain told the officers of several other statements Schiess had made to him at various times. He said on one occasion that his father would not give his weapons back to him because he was afraid that he would hurt someone or himself. Schiess said that he told his father, “What makes you think I don’t have a weapon now?”
Schiess also told Captain that Barbara was the weakest link in the case against them.
In early May, Captain said that Bob called him and wanted him to go to North Carolina and pick up some equipment and a riding lawn mower at a residence while the homeowner was at church. Schiess said he would have to force open the garage door and take the equipment, and that Barbara would stand watch at the end of the road while he did it.
“I did not meet or go with him,” Captain said. “He called several times on that Sunday morning and left a message saying he was waiting for me to arrive.”
Schiess told Captain that the reason for taking the equipment and lawn mower was that this person owed him money for a land deal that fell through, and the individual would not return his deposit that Schiess had put down.
One of the most telling comments Schiess made to Captain came during a conversation about a news event that included mention of the death penalty.
“I said, ‘I believe in the death penalty,’” Captain said.
“Bob got quiet, then said, ‘Jim, I may face that one day.’”
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During the October 2006 term of the grand jury of Cherokee County, Alabama, many cases were sorted through and dealt with, either by indictments or by being no-billed, but none had received the publicity and public attention of the charges brought against Barbara Ann Roberts and Dr. Robert John Schiess. Newspapers, television, and radio news had followed the case of Darlene Roberts’s murder, the arrest of Barbara and Schiess, the charges against them, and their extradition from Georgia to Alabama. Now it would be up to a group of seventeen Cherokee County citizens to determine whether the two would be tried on the charges recommended by District Attorney Mike O’Dell.
When Barbara received a plea bargain offer from the district attorney’s office, prior to the grand jury session, offering life with eligibility for parole in exchange for a guilty plea, instead of the death penalty, attorneys Steve Lanier and Rodney Stallings were very much in favor of her giving it some serious consideration. But for some reason, Barbara expressed very little interest in the offer, which might have amounted to the difference between life and death for her.
Lanier, Stallings, and Barbara met to discuss the offer, and both attorneys were dismayed to learn their client was so disinterested in such an important opportunity to better her situation.
The two attorneys believed that Barbara would be expected to testify against Schiess in the event she decided to accept the plea bargain.
“What if she takes the plea, then totally exonerates Bob?” Lanier asked Stallings. “I think they’re relying on the statements you’ve previously made,” he added to Barbara, “but if you do a one-eighty on them, saying he wasn’t involved in any shape, form, or fashion, then I’d think all bets are off.
“I think they’re expecting full cooperation to testify against Bob. If you play a ‘stand by your man’ kind of thing, then they’ll probably say—”
Stallings interrupted to tell Barbara, “That’s what worries me about you having all this contact with Bob.” Stallings had been concerned for some time that Barbara and Schiess were continuing to live together after they had been released from the Cherokee County Jail on bond pending the grand jury indictments that were very likely about to be issued.
“I think she’s somewhat locked in by her prior statements,” Lanier told Stallings. He then told Barbara, “They’ve got enough right now to indict on capital and get a conviction on capital on you and Bob, based primarily on evidence at the scene and witness statements. What they’re wanting is if you’ll testify against Bob, then they’ll offer you a life with eligibility for parole. Just let me know tomorrow. Think about it, pray about it, and let me know tomorrow.
“There’s been very little death penalty litigation in Cherokee County, Alabama, and there are not many lawyers locally that have even done a death penalty case. The death penalty is an all-or-nothing war. If they ask for the death penalty, you have to go all out because there’s so much at stake, and the alternatives are not pleasant. You have an opportunity. You know what the options are.”
Lanier and Stallings were concerned that Barbara did not understand that if indicted by the grand jury for capital murder, she and Schiess would be rearrested and most probably held without bond for quite some time until the lengthy trial process was completed.
“Vernon Roberts is extremely upset about the way this case is being handled,” Lanier told Stallings, “specifically, them being out on bond. So you’ve got a victim’s husband disgruntled, applying pressure. I’ve never known of a death penalty defendant being out on bond.”
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A grand jury motion had been filed by Barbara’s attorneys prior to the session asking that the evidence introduced before the grand jury be recorded and transcribed, with the defendant agreeing to pay for the employment of a court reporter to record and transcribe the minutes and testimony.
The motion also asked that prior to considering the charges against Barbara, the grand jurors be asked several questions, starting with whether any of the grand jurors were related within the sixth degree to the prosecutor, the accused, or the deceased. The other questions dealt with whether any of the grand jurors had expressed or formed any opinion as to Barbara’s guilt or innocence, and whether or not any of them had any prejudices or biases either for or against Barbara, or if they could be perfectly impartial.
The defense asked that any grand juror answering any of the foregoing questions in the affirmative be excused from the grand jury room during the consideration of Barbara’s case. The attorneys also asked that before any state witness testified, the prosecutor would ask them if they had ever been convicted of any felony or crime involving moral turpitude. It was requested that all answers to the questions and all votes of the grand jury be recorded and a copy delivered to the defense.
The defense asked the court in a separate motion to question each of the grand jurors individually on pretrial publicity. The motion claimed that prior to, and after, Barbara’s arrest, there had been extensive, intense, and prejudicial publicity by the local and national news media concerning the investigation of Darlene’s alleged murder and the facts surrounding Barbara’s alleged involvement in it.
Prior to the grand jury’s vote, the motion said, the court should question them individually on whether they had a preconceived opinion against Barbara because of the publicity preceding the indictment proceedings. This action, the motion said, would protect the defendant’s due process of law a
nd her right to a fair and impartial, qualified grand jury. Those jurors who had formed an opinion against her due to the publicity, the motion said, should be disqualified, and if there were less than twelve remaining qualified grand jurors, the court should not permit them to consider or vote on an indictment in the case.
Another motion was titled “Motion for the Recordation of the Entire Grand Jury Proceedings and for a Copy of the Grand Jury Minutes.” In support of the motion, the following was stated:
1. The district attorney of the Cherokee County Superior Court had informed the attorney for the defendant that the charges against the defendant were being presented to the grand jury.
2. The investigation of the defendant’s alleged involvement in the murder of Darlene Roberts and other alleged offenses was conducted by local, state, and federal law enforcement officers. These police agencies conducted numerous scientific tests on particular evidence, which, based on information and belief, was being presented through expert witnesses to the grand jury.
3. The district attorney’s presentation of the case against the defendant was based solely upon circumstantial evidence. Various witnesses would testify, based on information and belief, before the grand jury, as to numerous details that described these circumstances.
4. The defendant had a due process right to have the testimony of the witnesses recorded so that she might, through her attorney, subsequently examine that testimony to prepare her defense in the trial of her case.
5. The law of the state of Alabama did not preclude the recordation of the grand jury proceedings. The recordation of the entire proceedings would not interfere with the proper functioning of the grand jury. (Recordation is the most effective restraint upon prosecutorial abuse of the grand jury process.) The stenographic transcription of the grand jury proceedings would improve the administration of criminal justice.
6. Recordation of the grand jury proceedings would not violate the secrecy of those proceedings. Upon a proper showing by the defendant, the grand jurors might be required to disclose everything that occurred in their service. The minutes of the grand jury proceedings might be sealed by the court until such time as the present grand jury’s term had expired, prior to the defendant’s trial.
7. The defendant had a right to examine the grand jury testimony of the state’s experts who testified concerning the results of scientific tests that allegedly connected the defendant to the crime(s) charged. The defendant also had a right to examine the testimony of the state’s witnesses who testified to details of the circumstances that allegedly connected the defendant to the crime(s) charged.
These points, the motion claimed, would need to be addressed in order for Barbara’s defense to prepare for her trial.
In a separate motion filed the same day, it was requested that Barbara’s bond funds should be released upon either indictment or no bill by the grand jury. The funds, the motion said, should be immediately remitted to the law offices of Coggin & Stallings, attorney Rodney Stallings’s office.
As the grand jury was convening, Rodney Stallings received a letter from Barbara’s psychologist, who had spoken to him on October 30, saying that Barbara was in dire fear of being indicted and jailed until her trial. She was afraid that she would not have her medications or get psychological support, the letter said.
The psychologist said that Barbara’s condition was fragile due to multiple physical and mental problems, and said that Barbara had stated in the past that she would rather die than spend years in prison. The psychologist told Stallings that she did not believe that Barbara could survive in such an environment. In the psychologist’s professional opinion, to place Barbara there would be an act of gross negligence and disregard of human life.
Barbara’s psychiatrist also wrote that she was concerned that Barbara would not be able to get adequate medical and psychiatric treatment at her current level of need from the prison system in Alabama, which could be permanently detrimental to her health. Barbara took five medications on a daily basis, the doctor stated, and saw a psychiatrist or a psychotherapist every week. The doctor asked that the court consider Barbara’s special needs when making their disposition toward her.
Another of Barbara’s doctors saw her regularly for her back pain, which followed surgery due to the many injuries she had received through the years in multiple auto accidents. He wrote detailing her genuine need to sleep with a pillow, which evidently had not been provided by the jail.
These letters and recommendations were duly furnished to the court, attached to a notice to the court of medical issues, which Stallings immediately began preparing.
After much legal maneuvering and preliminary work, the grand jury got down to the serious business of reviewing the case against Barbara Ann Roberts.
There were three counts listed on the indictment. In the first count, murder committed during a robbery, Barbara was alleged to have intentionally caused Darlene’s death by shooting her with a shotgun during the time that Barbara was in the course of committing a theft of property, namely Darlene’s purse. Barbara was accused of having used force or threatening the use of force against Darlene in order to escape with the property, while armed with a deadly weapon or dangerous instrument.
The second count charged that Barbara caused Darlene’s death by shooting her with a shotgun during abduction, or attempted abduction, with the intent to inflict injury on Darlene or to violate or abuse her sexually.
The third count found that Barbara caused Darlene’s death by shooting her with a shotgun during her abduction with the intent to terrorize her or another person, to wit: Vernon Roberts.
On November 2, 2006, Barbara Ann Roberts was indicted by the state of Alabama on the three counts, one count of murder during robbery and two counts of murder during kidnapping. The grand jury foreman signed the true bill released by the grand jury, and Circuit Judge Randall L. Cole ordered Barbara and Schiess, who was also indicted, picked up by law enforcement and returned to jail, to be held with no bail until the time of their trials.
To keep both defendants in this sensational case from being housed in the same facility, Barbara was transferred to the DeKalb County Jail in Fort Payne, Alabama, the adjoining county in the Ninth Judicial District of Alabama, and Schiess remained housed in the Cherokee County Jail.
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As soon as her indictment came down from the grand jury, and Barbara was ordered to be held with no bail, attorney Rodney Stallings was ready with a motion to set bond for Barbara. Attorneys for Schiess, who was being charged and tried separately, also filed a similar motion on his behalf, both of which would be considered by Judge Cole.
In Barbara Ann Roberts’s motion, Stallings told the court that Barbara, having been indicted by the grand jury, had previously been out on a cash bond since April 27. She had surrendered her passport to the Cherokee County Clerk’s Office, as ordered by the court, on May 2. She had been available to be contacted at all times since then, Stallings said, either by his office or the court.
“The defendant has at all times abided by the conditions of her bond and orders of the District Court of Cherokee County, Alabama,” Stallings claimed, a statement that might not have rung true if more mention had been made of Barbara’s attempts to get messages to Vernon.
Stallings also claimed that Barbara was not a flight risk and had proven this by her actions since being bonded out in April. He also pointed out that Alabama law stated that in order for a defendant to be held without bond, the judge must be of the opinion that the proof of Barbara’s guilt should be evident, or the presumption great, that she was guilty of murder in the degree punishable capitally, with clear and strong evidence of such guilt.
“The evidence presented does not meet the requirements of ‘being clear and strong,’ or the presumption great that the defendant is guilty of the offense in the degree punishable capitally,” Stallings stated.
“The burden of proof rests on the state to prove the crime, to prove that it was of the
highest degree, and to convince the judge that upon final trial, the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty.”
Stallings then pointed out that the recommended range for the crime of which Barbara had been indicted under the applicable bail schedule could be as low as $10,000, and the recommended range for a charge of murder was as low as $5,000.
On receiving Barbara’s motion and a similar one from Schiess’s attorneys, Judge Cole set a hearing date for November 16, and both motions, by mutual agreement, were consolidated for the hearing.
When Judge Cole issued his order following the bail hearing, he said that the defendants had been charged with the noncapital offense of murder initially. Bail was set by the district court, and both defendants paid the bail and were released. Then, when the grand jury returned three-count indictments against both Barbara and Schiess charging the capital offenses of murder during kidnapping and murder during robbery, the court ordered that they be arrested and held without bail. In order to be entitled to bail, Cole said, a person accused by indictment of a capital crime must overcome a presumption of guilt.
At the bail hearing, Cole said, the state relied upon the indictments and a portion of the preliminary hearing transcript to justify the “no bail” order. The defendants offered evidence of their educational backgrounds and professional achievements, and the fact that they had appeared for their preliminary hearings and, otherwise, complied with the conditions of their bail. Schiess also offered the testimony of family members, who testified to his good character attributes and his reliability.
“While the evidence shows that the defendants have had distinguished professional careers, and that they have complied with previous bail conditions, the court, upon consideration of the indictment, the evidence, and the law, finds that bail is due to be denied,” Judge Cole ruled.
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