Routier files appeal for a new trial

Handling of alleged attorney conflict cited

07/25/2001

By Holly Becka / The Dallas Morning News

Attorneys filed an appeal this week for convicted killer Darlie Routier, arguing that she deserves a new trial because the judge didn't properly handle her lead defense counsel's conflict of interest in representing the only other suspect in the crime – her husband.

Ms. Routier's appeal, sent to the Texas Court of Criminal Appeals on Monday evening, has been held up for four years by a faulty transcript. The appeal says that no record exists of whether the trial judge conducted a pivotal pretrial hearing after prosecutors filed allegations identifying Darin Routier as a suspect in the June 1996 killing of the couple's sons.

Her conviction should be reversed because of the conflict-of-interest issue and 13 other claims of trial error, the appeal says.

Chief felony prosecutor Greg Davis, who handled Ms. Routier's case, said he didn't recall whether a conflict hearing was conducted. He said that the point is moot because no conflict of interest existed because Mr. Routier was "never developed as a suspect."

Ms. Routier was convicted and sentenced to death for killing 5-year-old Damon Routier. She also was accused of killing 6-year-old Devon. She insists that an intruder fatally stabbed her sons and then stabbed her in her Rowlett home.

Appellate attorneys Stephen Cooper and Steven Losch said in the appeal that because lead defense attorney Doug Mulder had represented Ms. Routier's husband in a gag-order hearing related to the criminal case, the court should have addressed the matter on the record.

The hearing on whether Ms. Routier waived any conflict concerning her husband and Mr. Mulder is not found in the transcript. The appeal says the hearing is noted in a docket sheet as having occurred and that attorneys are quoted later in the transcript as saying it had happened.

"A defendant has a right to make a knowing and intelligent waiver of her right to have conflict-free counsel," Mr. Cooper said. "But any waiver of that right has to be on the record."

Without a record of what was covered in that hearing, it is unknown whether she was properly admonished under the law about the nature of the conflict, Ms. Routier's appeal says.

Mr. Routier maintains that neither he nor his wife committed the crime. He could not be reached for comment Tuesday evening.

Mr. Davis said that "under oath, Darlie testified that Darin was not the supposed intruder. ... To this date, we have no evidence to indicate he killed the two children or took an active role in the crime. ... I don't really think it's a point to be taken seriously."

Ms. Routier's direct appeal doesn't blame the crime on Mr. Routier but notes that the conflict may have prevented Mr. Mulder from raising with jurors the issues about "inconsistencies" in Mr. Routier's account.

The document says that Mr. Routier made "suspiciously inconsistent statements" about his bluejeans. At the hospital, when police noticed blood on them and a tear, Mr. Routier said he tore the jeans while working on the backyard gate the previous day.

"According to the police report, he didn't explain how blood got on his jeans because he said he came down the stairs naked and got blood on his stomach and bare knees while trying to give CPR to Devon," the appeal says.

He later told police that he rushed downstairs naked when he heard Ms. Routier scream and then went upstairs to dress after he gave first aid to the children. At the bond hearing, Mr. Routier testified that he took the time to put on his jeans before he rushed downstairs to find out why Ms. Routier was screaming.

Mr. Mulder said Tuesday that he doesn't believe he had a conflict of interest since his representation of Mr. Routier was limited to the gag-order issue. Still, he said, he believes the case should be reversed because of the faulty trial transcript.

"The thing that confounds me, she's entitled to an accurate record of the things that went on and she doesn't have it," Mr. Mulder said. "I don't know why they won't buck up and give her a new trial."

He said he's unsure when or how state District Judge Mark Tolle, who is now retired, handled the issue. "That's why we have records," he said.

Mr. Cooper said his appellate brief wouldn't come as a surprise to Mr. Routier because "Darin will be the first to admit he has been a suspect in this case." However, he said, his citing the "facts which draw suspicion toward Mr. Routier is a far cry from accusing Darin of committing this crime. That's the same thing the state did to Darlie."

What is important, Mr. Cooper said, is that the trial court was aware of the prosecution's suspicions of Mr. Routier, which would have made the judge's resolution of the conflict issue crucial.

"Everybody in the trial was saying there was a hearing, and when you read this record or the previous record, there's no hearing," Mr. Cooper said.

Ms. Routier's appeal also contends that the reconstructed version of her transcript is illegal and irreparably faulty because it was created from unauthenticated audiotapes. The trial court instructed an independent expert to reconstruct that record after it found the original version untrustworthy and filled with errors.

"Obviously, I disagree with that," Mr. Davis said. "The only portion they don't have is the first 50 pages. I've read through them, and they accurately detail what occurred on the first day of jury selection, and I've already signed an affidavit to that effect."

Ms. Routier's appeal also says that the trial judge made an error by not allowing a defense investigator to testify about how the prosecutors' blood-spatter expert had previously told the defense team something completely different than what he told jurors.

Ms. Routier's attorneys say the refusal amounts to reversible error because the defense expert, Lloyd Harrell, had not known in advance that prosecution expert Tom Bevel would change his story. Mr. Bevel told jurors how droplets of Ms. Routier's and her sons' blood ended up on her nightshirt.

"It's one of the most critical mistakes during the trial that actually prevented her from having a not-guilty verdict," Mr. Cooper said Tuesday. "That not only built up the state's version but it knocked down the defendant's theory of the case."

Mr. Davis, the prosecutor, said there's no evidence to show that Mr. Bevel told the defense anything different than his testimony.

The Dallas County district attorney's office has 30 days to file its response, though the Court of Criminal Appeals generally allows extensions of up to six months for responses in death-penalty cases.