So the pathologist who performed the autopsy and state crime lab technicians swiftly concluded that the bullet entered Ernestine’s back and broke into two pieces when it smashed her spine. The fragments then passed perfectly horizontally through her abdomen, piercing her aorta, liver, kidneys, diaphragm, bowels, and spleen before exiting her belly. Two large chunks of the bullet’s core and jacket lodged in the bedroom wall. The bullet’s path was parallel to the floor, suggesting the rifle had been no more than twenty inches above the floor when it was fired.
Given the path of the bullet and the distance to the wall, state experts deduced Ernestine had been kneeling or squatting when she was shot, and her shooter had also been very low to the floor.
So Platte County’s coroner—a quirky, gabby funeral director who campaigned for the job saying he was the only guy in town with a vehicle large enough to haul a dead body—ruled Ernestine’s death a homicide.
Martin’s fingerprints were found on his rifle’s stock and the ammunition box, and Ernestine’s prints were on the rifle scope and barrel, but neither of their fingerprints were found on the trigger, the bolt, or anywhere else on the big gun. Vegetable oil and graphite particles were found on Ernestine’s left hand and the rifle barrel.
But no blood or human tissue showed up on the muzzle, and the state crime technicians found no gunshot residue anywhere on Ernestine’s shirt, suggesting the shot had been fired from at least three feet away.
Martin swore he never heard a gunshot, even though he slept just down the hall in the little trailer. Impossible, the cops said. He must be lying. That .300 Weatherby Magnum—a small elephant gun, really—would awaken the dead.
Friends told the cops that Martin and Ernestine had a stormy, booze-fueled relationship. Her mother told them how Ernestine was threatening to leave him. But for every circumstance that hinted at Martin’s guilt, another contradicted it.
Yes, Ernestine had flirted with suicide maybe a dozen times before—several unnatural scars on her wrists were casually noted in her autopsy—but she had been in a happy mood just hours before, partying that day with male friends. After all, Martin had seen her playfully wrestling with one of them in the park hours before the shooting. She didn’t seem suicidal to friends who saw her that day.
Yes, Martin had been sleeping on the couch after an argument a few days before, but his newly broken arm in a sling made loading, cocking, and firing a high-powered rifle unlikely.
Yes, cops had been called to domestic disputes at the trailer a half dozen times before, and Ernestine had even begged them to seize Martin’s hunting rifle, but time and again in brutal interrogations after the shooting, Martin had steadfastly insisted he didn’t kill her. He’d been as helpful as he could the whole time, and the usual liars’ tells were missing.
So it didn’t add up perfectly, but investigators and prosecutors believed they had enough to prove Ernestine died in a homicide, not a suicide.
Their theory, completely circumstantial: A jealous Martin and a drunken Ernestine had quarreled in their bedroom. He’d grabbed her violently enough to rip the zipper and pop the button off her jeans, then thrown her to the floor. As she rose with her back to him, he grabbed his rifle from beneath their bed and shot her in the back from his kneeling position, spraying blood and gore onto the wall. Ernestine then twisted as she fell onto her back, they contended. Martin then placed the rifle between her legs to make it look like a suicide and called police.
Five days after a single, fatal shot in the dark, Martin Frias was arrested for the first-degree murder of his common-law wife Ernestine Perea, and the State of Wyoming seized his children. He was jailed on an impossible half-million-dollar bond.
* * *
Court dockets in Wyoming aren’t long. Martin Frias went to trial five months later, barely understanding what everybody was saying about him.
His court-appointed lawyer, Robert Moxley, had just passed his bar exam a few years before and was assigned to the sleepy little public defender’s office in Wheatland, where murder cases were rare. When his own investigator bought into the prosecution’s theory that Martin had shot Ernestine in the back, things looked grim. Moxley threw his entire effort into a reasonable-doubt defense: Without witnesses or solid forensic evidence that Martin premeditated Ernestine’s murder and pulled the trigger, the tiniest shred of doubt existed. Moxley crossed his fingers and hoped the jury would acquit.
Moxley miscalculated.
The prosecution put on a convincing case, even though it was entirely circumstantial. Witness after witness painted stroke after stroke on the emerging portrait of Martin Frias as an angry, jealous boyfriend who was capable of a rage killing. The only other people in the trailer that night were three preschoolers. And Frias’s undocumented status only made him look more guilty.
Prosecution witnesses also described how a test-firing of the big rifle inside the trailer sounded like a car horn or a jackhammer, casting serious doubt on Frias’s claim that he never heard a shot.
Moxley could only parry. He had no reason to dispute the state’s autopsy, and he didn’t have much of a budget, so he had no medical experts to refute it. About the best he could offer was a vain attempt to cast blame elsewhere.
A therapist who met with Ernestine’s four-year-old daughter reported that the child first claimed she shot her mother.
“I shot her in the back. I shot her in the back. I shot her in the back,” the child reportedly told the therapist.
“Did you talk to your grandma about what we talked about?” the therapist asked later.
“Uh-huh.”
“What did Grandma say about that?”
The child just said, “Shhhhh!” then left the office to buy a soda from a machine in the hallway, chanting, “I can’t tell you, I can’t tell you, I can’t tell you, I can’t tell you, I can’t tell you.…”
Chillingly, a psychiatrist who also examined the child described her as very aggressive with symptoms of deprivation and split personality. At one point in the examination, the child took a notepad and ran it across the psychiatrist’s neck several times. “I cut your neck off,” she said each time.
A crime technician testified that Martin’s hands had been swabbed for gunshot residue, but inexplicably the swabs that could have helped prove his guilt or innocence were never tested.
Other defense witnesses testified that it would have been nearly impossible for Martin to have fired the big rifle, especially from a kneeling position, because his wrecked arm was in a sling and nearly useless. A crime technician admitted that he’d tried to cock and shoot the big rifle with one arm, but couldn’t. The prosecution quickly countered with a doctor who said Martin could have fired the gun.
Finally, the former director of the state crime lab testified that, based on his evaluation of the state’s forensic evidence, no substantial inculpatory or exculpatory evidence had been found. He found nothing that would prove (nor disprove) what happened that terrible night.
In the end, nothing stuck for Moxley.
After seven days of testimony, the seven-man, five-woman jury took less than five hours to convict Martin Frias on the lesser charge of second-degree murder. Just before Christmas 1985, the judge sentenced him to twenty-five to thirty-five years in the Wyoming State Penitentiary.
His children and his freedom were taken away, his lover was dead, and Martin Frias would be an old man when he got out. He couldn’t understand most of what happened.
America hadn’t turned out to be what he expected.
* * *
As Moxley prepared for his appeal in the dead of Wyoming’s winter, he got an unexpected break. A crime lab tech happened to mention over coffee with Moxley’s investigator that infrared photos of Ernestine’s bloody tank top might show something they’d missed. Surprising everyone on the defense team, the subsequent images showed what nobody had seen with their naked eyes: a huge flare of powder residue from the contact gunshot … on the blouse’s front.
All at once, new evidence suggested Martin Frias might have been telling the truth.
The dogged Moxley didn’t stop there. He sought out the experts he now knew he should have called before the trial. He asked prominent blood-spatter expert Judith Bunker to take a look at the evidence, and she in turn suggested Moxley call me, too. He did.
It was the sort of call I got routinely as the Chief Medical Examiner in Bexar County: A despairing but earnest young defense lawyer with a futile case, grasping at forensic straws that didn’t exist. The way he described his case, it sounded like a desperately slim chance.
I discouraged him about his chances of finding a forensic absolution for his client, but I mentioned that, as luck would have it, I was scheduled to speak to a law enforcement convention in Cheyenne, Wyoming, in just a couple of weeks. Maybe I’d take a look but I was busy and I didn’t have much time to waste.… In his Wyoming way, Moxley left all the details loose, and hung up.
I never expected to hear from the poor guy again.
* * *
January in Wyoming is beastly. I flew from San Antonio to Denver and rented a car for a wind-blown, icy, two-hour drive to Cheyenne to talk to a bunch of cops about gunshot wounds. I was cold the whole way.
The workshop planners put me up in the same hotel where I spoke. After a day of convention food, I craved something more substantial, so I went down to the hotel’s Old West–themed restaurant, where I expected they’d know how to cook a nice, big steak. I sat alone in a booth and a waitress took my order. I ate my salad, and after a few minutes, she delivered a thick, sizzling steak. I was just about to cut into it when I sensed somebody standing at my table, and it wasn’t the waitress.
“Dr. Di Maio?”
I looked up to see a young guy, prematurely balding, wire-rimmed glasses, more rumpled than he should have been for his age. He held a manila folder.
“Yes.” Maybe my reply was more question than answer.
“I’m Robert Moxley. Martin Frias’s attorney. We talked on the phone.…”
It took a bit but I remembered him. The desperate lawyer who’d lost his case. He’d found me. I admired his persistence, but I was more focused on my steak at the moment.
Still, he flopped his manila folder on the table.
“These are the crime scene photos. I just want you to look at them and tell me if you see anything. Anything at all.”
Over dinner?
“I’m not sure if I can help you.…” I told him. Again.
“If you’d just take a look, Doctor, I’d really be obliged.”
I picked up the folder and thumbed through the full-color photographs. In my career I’d seen thousands, maybe millions, just like them. A bloodied corpse on a floor. A gun nearby. Closeup photos—intimately close—of wounds, torn clothing, dead fingers. All the violent colors of death.
I paused a little longer over one image of a large, tattered wound in a young woman’s belly.
“She was shot with a hunting rifle. That’s the exit wound,” Moxley informed me.
I looked closer, just a few seconds. But I’d seen more bullet holes than a battalion of M*A*S*H surgeons. I’d written the premier textbook on gunshot wounds. I knew exactly what I was looking at.
“No,” I said. “That’s not an exit wound.”
He looked at me funny, as if I’d just told him he was adopted.
“Sorry, but that’s not your exit wound,” I repeated. “That’s an entrance wound.”
* * *
It’s one of the great myths of forensics that bullets always make smaller holes when they go in and bigger holes when they go out. It’s perpetuated by our media, which almost never portrays gunshot wounds authentically.
For example, when a human is shot in Hollywood, he is almost always blown backward sensationally, sometimes several feet, sometimes through a plate-glass window, sometimes through walls. In real life, though, a streamlined bullet focuses its awesome kinetic energy into a very tiny area at its tip, so it doesn’t have the power to drive a human body backward. It penetrates, it doesn’t punch. The bullet is going so fast when it hits a reasonably inert mass of flesh that it simply zips through and the body crumples on the spot. The victim drops straight down.
Then there’s the myth of small entrance wounds and big exits. Fact is, it’s generally true that a bullet often makes a smaller hole when it enters a body; then it tumbles and fragments inside, making a large hole when it exits in a surge of metal, blood, and tissue. But it’s certainly not true in every case.
And in Ernestine Perea’s case, it wasn’t true at all. And the clues were all hidden in plain sight in Moxley’s photographs.
When you fire a gun, it’s not just a bullet that comes out of the barrel. There’s a flame that burns up to 1,500 degrees, followed by hot gases, soot, burning gunpowder, and the bullet, of course.
If you press the muzzle of a gun against the skin, then that flame burns the skin, the soot is deposited around the rim of the wound, and the gases have their own effects.
There in Moxley’s photos of what he believed was an exit wound, I saw it all. Burns and soot on the edges of her abdominal wound. That meant the muzzle was against her skin when the gun was fired. Those small but unmistakable signs told me this was an entrance wound, not an exit.
By the same token, the little wound in her back showed none of the searing or soot. It was clearly the exit path of a bullet (or piece of bullet).
And there was another thing. The torn zipper and missing button on Ernestine’s jeans had been presumed by investigators to be the sign of a struggle. But they weren’t.
Remember all that hot gas from the muzzle? With the barrel against her skin, it all blew into her, temporarily inflating her abdomen with enough force to rip her jeans and tear open the entrance wound. The muzzle gases had briefly expanded her abdominal cavity with a force of three thousand pounds per square inch, so forceful her jeans were torn open and the waistband was imprinted on her skin.
Poor police work and a bad original autopsy by a doctor with little or no forensic training had led to the wrong conclusion. Their erroneous leap to the conclusion that the entrance wound was always smaller than the exit supported a flawed prosecution theory that sent a man to prison.
Did it mean that Martin Frias didn’t put the gun against Ernestine’s belly and pull the trigger? By itself, no. But Moxley’s other experts were examining other pieces of evidence and quickly coming to the conclusion that Ernestine had committed suicide—just as it had appeared at first glance to investigators, and consistent with Martin’s account.
The prosecution claimed Ernestine had been shot from behind, then twisted around to fall onto her back. But blood-spatter expert Judy Bunker saw no way Ernestine could have twisted around with a smashed spine. And even if she had, she would have slung blood in a semicircle as she fell. There was no sign of that.
Using a scanning electron microscope, forensic chemist Dr. Robert Lantz determined that gunshot residue had traveled from Ernestine’s front, through her abdomen, and out her back … not the reverse. The prosecution argued that the residue on the front of the shirt might have been deposited there after blowing through Ernestine’s body from the back.
And prosecutors thought it preposterous that if Ernestine had shot herself, Martin would not have heard the hunting rifle’s blast. But Dr. Harry Hollein, an acoustics expert, showed how Martin might have missed the Weatherby’s thunderous boom. A similar rifle fired into the body of a dead horse from several feet away emitted up to 120 decibels, equal to a live rock concert or standing within three feet of a power saw. But when the muzzle was placed against the skin and fired, there was only a muffled thump, akin to somebody kicking the side of a trailer house. All the sound was absorbed by the body, which acted like a silencer.
A thump.
Exactly what Martin Frias said he heard in the dark that night.
It all made more sense now, at least to Moxley. The forensic facts were consistent with Martin’
s story, and Ernestine most likely killed herself by sitting or kneeling on the floor of her bedroom, pulling the muzzle of the upside-down Weatherby against her tummy, and pushing its trigger with her thumb.
Four months after interrupting my steak dinner in Cheyenne, Robert Moxley was convinced he’d found the truth that would set Martin Frias free. He asked the trial court for a new trial, based on his discovery of new evidence, supported by a string of forensic scientists who’d examined the evidence.
The judge rejected his appeal.
So he took his case to the Wyoming Supreme Court with a unique, gutsy argument. Martin Frias, he said, should get a new trial because new evidence proved Ernestine’s shooting didn’t happen the way the prosecution said, and because Frias clearly had a bad lawyer.
The state’s Supreme Court justices refused to grant Moxley’s motion on new evidence. Why? He’d had every chance to gather it before Frias’s trial. It’s not “new” evidence if he merely failed to look for it at all.
But ironically, his failure to look for that evidence in the first place proved that Martin Frias’s lawyer—Robert Moxley—had been ineffective. Because of that, they said, Frias should get a new trial.
* * *
With a new trial granted, Moxley had one last chance to save Frias and he didn’t want to screw it up again. This time he’d collect all the medical evidence that he’d missed the first time.
The first order of business: exhume Ernestine. I wanted to attend the second autopsy myself, but my schedule wouldn’t allow it, so in my place, the defense hired my friend, the renowned forensic pathologist Dr. William Eckert, to observe the new autopsy instead. Eckert already agreed with me that Ernestine’s bullet wounds had been misinterpreted.
Dr. Eckert was a New Jersey–born forensic pathologist who’d made his bones as a deputy coroner in New Orleans and Kansas before becoming a much-sought-after consultant in retirement. When Bobby Kennedy was assassinated in 1968, Los Angeles county coroner Thomas Noguchi sought advice from Eckert, who knew the jurisdictional issues that plagued JFK’s death investigation five years before. He told Noguchi not to let Washington steal the case, and he didn’t.
Morgue Page 17