TARGETED: A Deputy, Her Love Affairs, A Brutal Murder

by M. William Phelps

  What’s missing in the affidavit is a very important comma after “(GBI).” The GBI, Sperry clearly states, is the civic body performing the autopsy, of which he is the Medical Examiner. Sperry, as Chief Medical Examiner, oversaw the duties of his pathologists. Sperry is in no way claiming to have done the actual work.

  I mean, seriously: Why would he, after all? You look at the accompanying documentation from Tracy’s trials, including the testimony of pathologist Jeffrey Smith, who physically performed the autopsy, and it clearly proves Sperry himself did not conduct Doug’s autopsy. To believe Tracy, you’d have to consider that Sperry thought he could get away with lying on a public document, when all of the accompanying public information about that same autopsy proved otherwise.

  That is ridiculous. It’s beyond reaching.

  This is a good example of what I mean when I say that Tracy argues her case to me, shows me a document, or points me to testimony, and the air begins to deflate out of her argument. I see what she is trying to say. I understand where she is coming from. Yet it does not mean what she is saying can be considered fact.

  Place a comma where it belongs, I told Tracy, and then read the line again. Sperry is saying—quite clearly—he was the M.E. for the GBI, the body of government “who performed the autopsy.” Medical Examiner is a title; pathologist is a job. The M.E. is the boss. He or she generally writes most of the affidavits (after the fact). Dr. Smith unmistakably states at trial he was the pathologist who conducted Doug’s autopsy. Why would Sperry ever think he could say he performed the autopsy if there is a record of Smith doing it? Makes no sense. Also, every autopsy for any M.E.’s office is performed under the M.E.—the M.E., in other words, is responsible for each autopsy.

  Moreover, many medical examiners testify in cases in which they have not performed the actual autopsy, but might have been present when one of the pathologists working under them has. Or they studied the documentation pertaining to the autopsy, maybe watched videos and/or listened to recorded notes from the pathologist. All part of the practice.

  Tracy is trying to take what was written and make it adhere to her case. She’s trying to turn what is a grammatical error into a nefarious act of lying.

  Another one of Tracy’s core arguments was that some of the evidence was contaminated, “based upon the pathologist’s report.”

  Here, she might have a case.

  During the course of autopsying Doug’s body, the pathologist (as Sperry states in his affidavit—once again excluding himself, by the way, from conducting the actual autopsy) was present when “an individual poured Clorox bleach over pieces of the shattered concrete due to the smell of decompositional fluid that had soaked into the concrete.” In the following line, #6, Sperry states, emphatically, “To the best of my knowledge and belief, nothing of evidentiary value would have been affected by the action of pouring bleach over the concrete.”

  That is his opinion. We can argue his opinion, but he is the expert weighing in on this particular matter. To counter this, you would provide your own expert.

  “He claimed that the action of pouring Clorox on the cement evidence would not have an effect on possible biological evidence that may have been present within the cement fragments,” Tracy argued to me. “I have a letter from the GBI that verifies that Dr. Sperry had no part in my case. Dr. Geoffrey (sic: Jeffrey) Smith was the medical examiner (who) performed the autopsy which is reflected in the Medical Examiner’s Report as well as in trial testimony.”

  Again, this is wrong and shows Tracy’s ignorance.

  Jeffrey Smith testified: “I am employed at the State Medical Examiner’s office … I am a forensic pathologist,” before saying, “Yes,” he performed Doug’s autopsy.

  Again, there’s only one Medical Examiner: the pathologist works under him or her.

  Pouring bleach on evidence, well, that’s another argument. Could it contaminate or destroy crucial evidence?

  Hell, yeah, it could—and likely would.

  Tracy needs her own expert to contend as much.

  In reading her emails to me after I asked questions about missing commas and bleach and titles, I sensed an urgency, an anxiety she exuded in getting me to recognize her argument. As if I weren’t getting it. Or, rather, I wasn’t understanding what she was trying to say.

  “Dr. Sperry lied when he said pouring Clorox on the cement would not have destroyed anything of evidentiary value. Anyone, including a lay person, would know that Clorox is caustic/corrosive and will destroy anything it comes into contact with, especially something like DNA. But, just to confirm it, (a family member of mine) contacted … a medical examiner from Oakland, California, and he said, ‘Yes, pouring Clorox over that cement would have destroyed potential evidence such as DNA.’ Whoever killed Doug and placed him in that container of concrete would have left some sort of DNA behind, but that would have been destroyed with no possible way to recover it once Clorox was poured on it.”

  I concur with part of this statement. But “lied”? That’s quite a leap. Sperry is speaking his opinion from his professional position, however biased it might be. Moreover, what does Tracy’s opinion about it prove? Incompetence? A frame-up?

  In his affidavit, Dr. Sperry, after studying the case, gave his opinion that “the bleaching of certain pieces of concrete to remove the smell of putrefied discharge from the body of Doug Benton would not have destroyed anything of evidentiary value and was therefore not exculpatory.”

  It wasn’t as if they doused the entire watering trough and Doug’s body in bleach. “Certain pieces” of concrete only.

  Big difference.

  Was it not the smartest thing to do? Of course. But Sperry never lied, as Tracy suggests. That word is inserted into her argument to add power to what she is trying to sell. Sperry gave his expert opinion as a professional who had knowledge of the case. To call him a liar is beyond being uninformed.

  Now, all that being said, I cannot imagine how frustrating it would be if I am Tracy and I know I have been framed. I sympathize with her in that respect. If she is telling the truth, I would certainly understand her attitude toward me and others erring on the side of the record.

  Tracy then talked about how, in 2015, “Dr. Kris Sperry was investigated … and resigned from the GBI because he was claiming hours for working at the Crime Lab when he wasn’t there. He had his own independent forensic lab and was being paid to testify as an expert witness. In (an) Atlanta Journal Constitution article,” Tracy went on, “Dr. Sperry was said to be a ‘hired gun who tailored his testimony to suit his paying customers.’ ”

  The article she references said a lot more than that. A feature by Constitution writer Alan Judd, it delved deeply into Sperry’s work outside his job as Medical Examiner. He had made double his $184,000 state salary, according to Judd, testifying all over the country as an expert witness. Counterparts of professionals called Sperry “irreproachable” for being a paid expert who would say what his employer, whoever it might be, wanted him to.

  In that same article, then GBI Director Vernon Keenan called Sperry “a doctor of national reputation and accomplishment … (who) operates on an extremely high plane of expertise.”

  Keenan went on to note that talk from others was nothing more than banter, or common water-cooler “back and forth” from professionals in a chosen field who agree and disagree with what others in the same field.

  I have seen and heard this myself.

  Do some of these doctors stretch their opinions and take a side for a paycheck in a court of law? Absolutely. Do they get paid enormous sums of money for their often-biased opinions? Yes. Does it change the facts of a case?

  Juries make that call.

  Judd’s in-depth article points to credibility issues with Dr. Sperry.[1] Yet, when I take into consideration what this information means in the scope of Tracy’s case and the work—minimal as it was—Sperry did in her case, it means nothing. Sperry did not lie, as Tracy contends, to cover up for cohorts framing h
er. There’s not any chance (and certainly no evidence) that accusation holds any weight whatsoever.

  [1] Read it here: http://www.myajc.com/news/special-reports/outside-work-challenges-medical-examiner-credibility-judgment/OJXPFLpsmGGq1CT4EY00CI/

  69.

  As Tracy and I spoke heatedly about her case through email in late 2016 and into 2017, I tried to explain that, regardless what she thought of me and what I do, I was giving her a chance to tell her story, in long form, once and for all. I wasn’t going to censor what she had to say. I wasn’t going to cut what she said to fit some sort of agenda. I wasn’t going to use some of what she said and toss whatever didn’t fit with what I wanted in the book. Although I could not obviously include every word she had written to me, I would get those core arguments for innocence she wanted into the public arena.

  “I am just trying to speak in the facts,” I explained. “Books and TV are different things. TV, as I said, pays me for my opinions; book work is about journalism and facts. Right now, on paper, you are a ‘convicted murderer.’ I can’t change that. It’s not a label; it’s a fact generated by the court.”

  I should note here that those I did speak to about Tracy, friends and family, came at me with an attitude, as if I were part of the problem. It was as though I walked into this wanting to make sure Tracy remained guilty, just for the sake of writing a book. One person in particular, who probably had some rather cogent and important things to say about Tracy, attacked me personally and professionally right out of the gate, pointing a finger in my chest, calling me names, etc.

  I can take it. Yet, as I told Tracy, there is no way I could ever allow this person a voice in my book.

  As we exchanged email, I explained to Tracy that if she wanted to continue, she had my ear, but she needed to “prove to me that you are innocent. Your ‘observations’ and ‘opinions’ won’t matter to my readers or to me. They (my readers) want undeniable proof. You need to share with me ‘ah-ha’ moments from your case. … Saying that COP A set fire to (Doug’s) house and COP B planted blood (not that you have) doesn’t matter. Your opinion does not count in this. Showing me evidence where (your case) can be proven is what you need to do. Don’t (be) defensive—stay offensive. Back up what you believe with the documents and point me in the direction of interviews that can support what you say.”

  Her response was to send me back to that Extraordinary Motion, an 85-page document, and the alleged cover-up a family member discovered during that recorded phone call with a witness long after her second trial.

  The document is, as the title suggests, rather extraordinary with regard to accusation and speculation. Take, for example, this excerpt from page 9:

  (One source) states in a recorded telephone conversation that he had been told, “We have who we want. Keep your mouth shut and stick to the plan.” (This source) also stated that (he or she) had tried to obtain the original statement that (he or she) had given law enforcement during the investigation where (he or she) had stated “if anything happened to Doug(,) Ray Sanders did it,” and found that the report had “disappeared. …” (He or she) stated that both (he or she) and (another source) were coerced, intimidated and influenced by law enforcement officials prior to their testimony at trial.

  Those are serious allegations. The problem is, neither source was willing to then back up his or her allegation with a signed affidavit (or go on record with me). For all we know, that recording could be somebody portraying the source.

  Is it likely?

  No.

  Is it possible?

  Yes.

  We do not know because the source fails to acknowledge the call or sign a document stating it was him or her on the other end of the line.

  Further along in her Extraordinary Motion, Tracy alleges how the same source “also stated that (he or she and the second source) were placed in an enclosed room with Oglethorpe County Sheriff Ray Sanders in an attempt to intimidate them, after they had told the District Attorney and Investigators that they believed Ray Sanders was responsible for Doug’s death. Both (sources) were in fear for their (lives). It was implied to them that they both could end up like the victim, Doug Benton.”

  Thus, what Tracy is saying in her motion dispels the argument made by the prosecution that the source’s trial testimony was of no consequence; what Tracy contends is that had both sources not been intimidated and “coerced,” they could have testified “freely” and “openly” and given exculpatory evidence favoring Tracy’s theory of a so-called frame-up.

  “These people continue to lie even now,” Tracy told me. “The current District Attorney … was not in office at the time of my trial and conviction, yet he continues to carry out the same kind of justice as the others.”

  I don’t understand a statement like that. I mean, why wouldn’t the DA strive to uphold a conviction by his predecessor?

  Her next argument within the Extraordinary Motion is quite compelling—but again, only if it can be substantiated. Tracy focuses on ballistics, beginning her argument, once again, with those same two sources, noting their conversations with police early into the investigation led to the search of Tracy’s house, where the weapon used to kill Doug was ultimately recovered. Tracy alleges a consistent cover-up chain of events taking place during this part of the investigation.

  Both source interviews—early into the investigation—pushed law enforcement into searching Tracy’s house. While there, they of course uncovered the murder weapon.

  In Tracy’s version, it all makes perfect sense—one piece of erroneous information leading to the next, which ultimately leads to her arrest and conviction.

  In her Extraordinary Motion, Tracy writes, “Firearms examiner Bernadette Davy resigned from the Georgia Bureau of Investigation after admitting to falsifying a test report in an unrelated case.”

  That sets the previous allegation in motion. It is the basis from which she begins this argument that the bullet taken from Doug’s body was part of the conspiracy. In support of that, Tracy’s Extraordinary Motion goes on to say:

  Bernadette Davy, of the Georgia Bureau of Investigation, testified for the state that she had examined the fatal bullet recovered from the victim, Douglas Benton, and determined that the bullet was a small caliber consistent with a .22. Upon further testimony, Davy stated the following: 1) the class characteristics on the bullet are identical to the class characteristics on the Stevens .22 rifle.

  This particular rifle was uncovered after that search of Tracy’s home (the search based on what those two sources, according to Tracy, had to say), as the OCSD and GBI zeroed in on Tracy as a potential suspect in Doug’s murder.

  Comparison of State’s exhibit 40, lead bullet from Benton, to representative samples of ammunition of different manufacturer (from the crime lab), and the most consistent things that matched up were between a CCI Stinger .22 long rifle bullet. Davy’s conclusion that the fatal bullet was consistent with a CCI Brand Stinger helped to seal the fate of Fortson since testimony of law enforcement officers that conducted the search of Fortson’s residence stated that two types of 22 bullets were found, CCI Brand Stinger and .22 Long Rifle.

  As Tracy’s argument continues, she makes a case for, perhaps, even more shady business by law enforcement. In the initial report from the GBI’s Crime Lab pathologist, Tracy points out, the “recovered bullet” from Doug’s body was “too distorted to make an identification of the type of bullet or what type of gun it was fired from.”

  The problem with that argument is that it had been discussed already during both trials.

  In April 2009, Tracy and her camp made an official open records request for “all information pertaining to the ballistic report by Davy.”

  That’s a legit request, for sure. And might clear up what seemed to be some confusion.

  Tracy’s Extraordinary Motion continues:

  (I) obtained the Official Chain of Custody Evidence Report from the Forensics Division of the GBI regarding all evidence received fr
om the arresting county, Madison County Georgia. The Official Chain of Custody Evidence Report did not list bullets taken from Fortson’s home—.22 CCI Stinger or otherwise. Therefore the testimony as to comparisons made by Davy with bullets taken from Fortson’s home is not credible.

  Tracy then asked for a report indicating the weight of the bullet in question.

  GBI Special Agent Lisa Harris wrote back, saying the bullet itself had never been weighed.

  This ballistics argument is interesting in that a report generated on Aug. 4, 2000, from the Division of Forensics Sciences, GBI, details all of this evidence: “On 6/27/00, the laboratory received the following evidence from the GBI … Remington .22 rifle … and .22 cartridge; on 7/11/00 … sealed package labeled ‘Douglas B. Benton…’ containing .22 lead bullet.”

  As for the “results and conclusions,” the document concluded, “the bullet … was not fired from the weapon.”

  Who signed that document?

  Bernadette Davy—cc’ing the GBI Medical Examiner, Madison County DA and the Oglethorpe County Coroner.

  70.

  Since her second conviction in 2004, a lot has happened in Tracy’s legal life (including the filing and dismissal of her Extraordinary Motion), yet none of it has had the effect Tracy has strived for since Day One. She is still in prison as of this writing. She is still fighting every day for her innocence. She is still sticking to the same story of being framed.