Author's Notes by Don Davis

by Don Davis, Hush Little Babies

This was a disturbing case. As an author, I have come to learn that each book presents a set of unique, circumstances, and this one was in a class of it's own.

A courtroom is not necessarily a place where truth emerges. It is a place of firm rules, mutual agreements, and written law in which opposing arguments are made before a jury that doesn't necessarily hear everything related to the people and situations involved.

One of my decisions was to let the trial unfold on its own, allow the lawyers to do their jobs and let them stand on the results. I found out that would be impossible, for what was happening around and beyond the courthouse became central to the story.

Is Darlie Routier guilty of murdering her children? Certainly the prosecutors solidly convinced the jury of her guilt, and played by the rules in so doing. Legal appeals of the verdict, automatic with a capital murder conviction, are in process.

But in covering the case, arriving in Rowlett the week that Darlie was arrested and making several subsequent visits to Rowlett and Dallas prior to the trial, I formed opinions that run contrary to the public perception of two very important questions:

Did she deserve the death penalty? No

Was her trial really fair? Probably not.

The reasons are the same for both of these personal conclusions. The prosecutors played to fear and emotion with a jury that was very conservative, drawn from a pool in a small town that has now seen its last four capital murder cases end with death penalties. After the trial, one juror appeared on national television and said she voted to convict because the defense didn't prove that Darlie was innocent, directly contrary to the "innocent until proven guilty" maxim of American law.

The jury should have been sequestered, because the tight confines of the courthouse and the physical smallness of Kerrville made it impossible for jurors to be divorced from outside influences. One was often seen reading newspapers, others dined at tables adjacent to trial participants or family members, and, worst of all, they constantly overheard comments from observers at the courthouse while they moved to and from the courtroom without a shepherd.

They were also the product of their surroundings, and in Kerrville that means a staunchly conservative political viewpoint and deeply fundamentalist religious belief. So when prosecutors had Darlie admit she didn't regularly go to church, watched male strippers on Mother's Day, bought jewelry at a pawnshop, and let her kids listen to African-American rap music, the jurors were jolted, although none of that had anything to do with murder.

The constant mention of "Gangsta's Paradise" was particularly questionable and obviously tuned to racial prejudice. It was an unfair portrayal of a song that begins with a Bible verse. "As I walk through the valley of the shadow of death ...," points out the dead-end life of an urban street tough, and contains not a single obscenity. Instead of being a bad influence on children, the popular song is a cry to end gang violence. It was unlikely any of the jurors ever listened to it, and the tactic was akin to preachers four decades ago railing against Elvis Presley and rock-and-roll. Norman Kinne calling Darlie Kee "trailer trash" was totally out of line and indicative of a narrow mindset within the District Attorney's Office.

The same conclusion can be reached with the unexpected mention of marijuana in the early part of the trial. The police officer who made the statement had been taken through his testimony repeatedly in practice sessions.

Rowlett police issued a news release after the trial, praising the work of its investigators and other officers. Actually, the work was very questionable in many aspects from the very start. In a thirty-year career in which I have reported on hundreds of trials, it is very rare that the lead investigator, his partner and his boss are not called as the primary witnesses by the prosecution, for they know the case best of all. Or should. Patterson, Frosch, and Grant Jack were shelved in favor of paid experts from out of town. One prosecution witness described the Rowlett police in the waiting room at the trial as "arrogant."

Of equal importance was the way that police notes either were updated, vanished, or were never made at all. Law enforcement agencies around the country usually insist on clear notes and, in many places, the use of tape recorders to assure valid statements in court. That is not the case in Rowlett.

Had they kept adequate notes, however, they might have been in the same awkward position as Baylor hospital staff members, whose comments on the stand directly contradicted what they had written about Darlie's condition months before, when they thought she was the victim of an attack.

Police efficiency was a sometime thing, from Sergeant Tom Dean Ward saying an alley gate was closed and locked when it actually stood open, to evidence collection specialist David Mayne not logging the pictures he shot and then choosing, seemingly at random, which documents and rags to collect and how to preserve them. That question could be mitigated by the fact that a representative of the Dallas County District Attorney was not on the scene to guide the earliest stages of the investigation, also a routine procedure on high-profile crimes in many states.

The very important moment of when Darlie became a suspect was another troubling point, and the prosecution argued that perhaps more than a week had passed after the June 6 murders before that decision was made. Countering that was Jim Cron's testimony that he decided at dawn of the first day, after only thirty minutes on the scene, that there was no intruder, and had told police that. Cron made his decision without knowledge of the bloody sock and incorrectly assuming that Darlie did not bleed on the sofa, because he did not see the blood-splotched pillow that had been knocked to the floor.

The following decision to withhold the 911 tape would confirm they thought pertinent information was on it, which would point to Darlie. And police had Darlie sign a Miranda warning on June 8 as soon as she got out of the hospital, meaning that, if not before, she was certainly a suspect at that early point.

After the June 26 preliminary hearing, it was plain that prosecutors didn't want to pin their case on the testimony of Patterson and Frosch. Instead of relying on the Rowlett police, the investigation went for outside specialists for more and better evidence and for witnesses who would not crumble under the questions of defense lawyers. DNA expert Judith Irene Floyd, Oklahoma forensic specialist Tom Bevell, and FBI profiler Allen Brantley started work not in the summer of the crime, but rather in September. Charles Linch was back at the house looking for clues as late as November 21, and forensic expert Robert Poole was brought on board only a month before the start of the trial.

And still there was no explanation on how the sock stained with the boys' blood was found so far from the crime scene, or why it had a deer hair on it. The experts blandly said the sock was planted there, without explaining how it might have been done, or even proving whose sock it was.

Likewise, the reason that Darlie may have killed her children remained so elusive that prosecutors just waved it off, with Toby Shook saying they didn't have to prove motive. Their scenario of money problems and depression was an extreme attempt to force facts to fit an idea. That left the state in the ironic position of trying to demonstrate Darlie's state of mind at the time of the murders without calling an expert psychiatric witness of their own. I spent many hours interviewing the members of the Routier family and found not a single instance of Darlie being violent.

Nevertheless, most of Darlie's problems were self-inflicted. She talked to police too much without legal advice; she wrote too many letters, not realizing they would be read by her jailers; she disregarded Mulder's advice not to testify; and she tried to argue with Toby Shook, a skilled attorney, who shattered her on the witness stand.

The jury simply didn't like Darlie, and so disregarded much of what was said in her defense and ignored the holes in the prosecution's case. The conviction was a surprise to many, possibly even the judge. However, the die was cast. They barely listened to testimony about the death penalty. Even if Darlie was totally guilty of everything and every instance alleged by the prosecution and the witnesses, nothing was said to prove she posed a continuing threat to society and deserved a death sentence instead of a lengthy, even a life, prison term. The Routier family said post-trial interviews showed that four jurors originally voted in Darlie's favor. If true, that makes the shift to a unanimous death sentence even more extraordinary.

It is unfortunate that this trial was decided by emotion, not fact, and was lost when it was moved from Dallas to Kerrville.