Episode 2: Pleas For Mercy Fall on Deaf Ears

Episode 2: Pleas For Mercy Fall on Deaf Ears

Rene Guzman and Leonardo Lopez are on trial for the murders of three sheriff’s deputies in 1971, and the death penalty is on the table. What were the arguments for and against capital punishment? What monumental flaw did the District Attorney make that led to a review of the case? And what was the shocking turn of events two decades later? The script for episode 2 follows.

While serving an arrest warrant on February 15, 1971, 5 deputy sheriffs were kidnapped at gunpoint by two men, and taken to the Trinity River near downtown to be killed. 3 of the 5 were; two escaped. Deputy AD McCurley and Wendell Dover lived, helping investigators identify the killers. The two men were identified as Rene Guzman and Leonardo Lopez, both of whom were indicted for Murder. Although a Dallas County Grand Jury returned those indictments, the Judge moved the trial to Bell County, Texas, about 150 miles South of Dallas. Trial began in the 27th Judicial District Court in Belton, Bell County on June 28, 1971, Judge RT Scales presiding. If convicted, Lopez and Guzman could be sentenced to death.

The decision to seek the death penalty was ultimately made by Dallas County District Attorney Henry Wade. Not only would his office prosecute the case, he would personally participate in the trial. He was no stranger to the courts. His father had been a Judge in Rockwall County. He went to the University of Texas for undergrad, and played football. He stayed at UT for law school, and was the president of his law school class. He worked for the FBI in Boston, Washington D.C., and Baltimore. He also gathered intelligence in an undercover capacity against the Nazi’s in South America. He became the district attorney of Dallas County in January 1951, a position he would hold until 1986. 12 years later, he and Bill Alexander led the prosecution against Jack Ruby, the man convicted and sentenced to death in March, 1964 for killing Lee Harvey Oswald, the man responsible for assassinating president John F. Kennedy. Wade was beginning his 20th year as DA when he traveled to Bell County for this trial. Although he would participate, he appointed a young prosecutor named Doug Mulder to be the lead.

In 1989, D Magazine Reporter Sally Giddens interviewed Henry Wade about Doug Mulder. In it, Wade described Mulder like this: “He’s a very detailed man, and all business. He devotes all his energies to the case at hand. Most cases are won in preparation prior to trial. That’s what Doug is best at. I feel like he was the best prosecutor we ever produced.” Mulder came from Iowa, went to Drake University for undergrad, and then to SMU for law school. When he graduated, Wade hired him at the Dallas County DA’s Office. He became Wade’s first assistant within 7 years, a very meteoric rise to being the number 2 man in charge. Over the next 30 years, if there was a huge trial in Dallas, Mulder was involved in one way or another. He prosecuted Darrell Cain, a Dallas Police Officer, for killing a 12-year-old boy named Santos Rodriguez. He secured a murder conviction – the only one of its kind for nearly half a century. When he left the DA’s office, he became a defense attorney, and would go on to represent very high profile defendants such as Walker Raleigh and Darlie Routier. But in Bell County, in the 27th judicial district court on June 28th, 1971, he hadn’t done all that yet. He was the lead prosecutor in the State of Texas vs. Leonardo Lopez and Rene Guzman, charged with securing a conviction and death sentence. They two men were to be tried together – at the same time, in the same courtroom.

Don Metcalfe was the lead defense counsel for Mr. Lopez, who was assisted by Florentino Ramirez. He grew up in Dallas, a graduate of Highland Park high school where he was the district batting champion and State runner up in baseball. He thereafter graduated from SMU law school in 1960. Like his opponent Mr. Wade, his father was no stranger to the criminal justice system. He was a lawyer and journalist in Chicago who participated in cases involving John dillinger and Baby face nelson. He would become the Judge of Criminal District Court Number 2 in Dallas in the mid-70’s, the beginning of a judicial career that lasted for decades, culminating in his service as Senior District Judge for the 1st administrative judicial region.

Frank Holbrook, a graduate of Baylor Law School, was admitted to the Texas Bar in 1958. His job was to keep Rene Guzman off of Texas’s death row. He was a criminal defense attorney in Killeen back then, and was when he retired in 2003. He was assisted in defending Mr. Guzman by John Solon.

And so it was on the morning of June 28, 1971. All 3 sides announced ready and the jurors were sworn. Neither side gave an opening statement. Doug Mulder presented the case for the State, calling a total of 12 witnesses. The first witness was very short – a County Auditor for Dallas County, called for the purpose of introducing and explaining a floor plan of 2810 Ingersol, the scene of the crime, and of 4627 San Jacinto, the scene of the arrest. Next up was Wendell Dover. He was AJ Robertson’s partner. Dover gave Bell County jurors his firsthand account of the crime – all of the events from when he and Robertson followed a good lead on a Burglary case to Dallas up through and including how he played dead and tried to quit breathing after being shot from what he said was point blank range. His testimony reads like something out of a movie. His direct examination ended by him identifying and introducing for the jurors the wire that was tied around his wrist.

Let’s talk about accomplices and trials involving co-defendants, whether they are tried at the same time in front of the same jury like Lopez and Guzman or whether tried separately but jurors learn that they are an accomplice. A few common trial strategies are employed by the defense; one of which was on full display for the Bell County Jurors in this trial. This defense is rooted in the idea that although it may be proven that a person was at the location of the crime when it was committed, the person claiming this defense argues that he did not have the intent to commit the crime at all, and that the other person was the real criminal. In order to do this, lawyers use the witnesses to clearly delineate the roles of the parties, focusing on their actions, words, demeanor, who and whether each possessed and or used weapons, their proximity to the crime, the nature/extent and causes of the injuries sustained, and any actions indicating an intent to abandon the crime. Don Metcalfe’s cross examination of Wendell Dover made very clear right out of the gate that Lopez’s defense was going to be that Guzman was the leader, Lopez was just following along. Metcalfe pointed out that Lopez never spoke english at all, and was taking directions from Guzman. He also pointed out that although Lopez shot him, he only shot him once and left. He could have shot him more times to kill him, but did not. John Solon’s cross examination for Guzman focused on the fact that Dover did not see Guzman fire at Robertson at all. Instead, it was Lopez who fired at Robertson and Robertson went down.

A total of 10 witnesses testified on the first day, piecing together the story and the evidence collection you’ve heard about on the first episode. The second day, June 29th, 1971, a firearms examiner testified as to origin of some of the bullets recovered: Robertson was shot with his own gun; other bullets were recovered during Robertson’s autopsy that matched the bullet fired into Wendell Dover, all of which matched the same .45 caliber gun; all of the other bullets were either not recovered or damaged beyond repair. Although no .45 caliber gun was recovered, the jurors had information that different guns were used, a fact consistent with – though not definitively so – with more than one shooter, or that both men were in fact shooting.

In presenting their case, lawyers try as best they can to finish strong – a plan carried out by Mulder perfectly when he called as his final witness the second surviving Deputy, Dallas Sheriff’s officer A.D. McCurley. McCurley recounted his journey from driving those consent forms to Ingersol with Deputy Reese as requested by Sam Infante; how he secretly and loosely tied Reese’s hands, and how he was constantly trying to figure out how to stop what he knew was coming. He let the jurors know what his thoughts were on that drive, and some of the surreptitious communications he had with his friend Don Reese. With silent looks and subtle gestures, the two men were planning mutiny: “Deputy Reese whispered over to me that he had got his hands untied, and I told him to hold up and let me try to get mine loose before we jumped them. About that time, Guzman seen we was murmuring something and he jumped and said, ‘Shut up!’ And waived his guns at us.” As they turned off Westmoreland, driving down a dirt path, removed from sight, removed from the watchful eyes of the public, on the way to the trash dump, Reese asked Sam Infante – What are they going to do to us? Infante replies – this is it, they are going to kill us. That’s when they made Sam Infante stop the Ellis County cruiser. All of the men are made to get out of the car. Guzman with the .32 and the .45 in his hands, and the 9 millimeter in his front belt; Lopez with a .380 and a .38 snubnose. Deputy Reese still pleads with Guzman, “Man you don’t want to kill us. You’re not in no trouble at all now what you will be if you kill us.” It’s at this point Guzman laughs and reveals his intent and motive: “You think we’re going to let you all live and be witnesses?” According to Deputy McCurley, That’s when Reese swung and missed. That’s when the deputies scattered for their lives. And that’s when Sam Infante, Don Reese and A.J. Robertson were killed. 

Mulder did not put in the Defendant’s confessions – neither of them – a move most likely made to use to cross examine Lopez or Guzman in the event they decided to testify. And with that, just before lunch on June 29, 1971, Mulder and Wade rested their case. Confident that McCurley and Dover convinced the jurors, they waited to see what the defense was going to do.

The Defense put on the record that although they had mental health professionals examine their clients, for strategic reasons, they were not going to call those professionals or any witnesses. The two men also declined to testify, invoking their right to remain silent. And so it came to be that after 12 witnesses, and 1 1/2 days of testimony, the jury came back with a very quick verdict of guilty on both counts. The punishment phase would begin immediately. And it was very short. The criminal records of both defendant’s were shown to the jury, the same that you heard about in the first episode.

From the very beginning, this case was not a who-done-it. It was not even really about whether one accomplice was guilty and the other not. In this case and in others like it where the guilt of the defendants is not an issue, the lawyers craft their case, their cross examination and their arguments with a view towards lessening the punishment – and specifically in this case – to avoiding a death sentence. In 1971 in Texas, the range of punishment was about as broad as I can possibly imagine – from 2 years to Life to Death.  The lawyers in this case were charged with making the arguments for or against the ultimate punishment, a monumental task. We haven’t covered a death penalty argument in detail on A Murderous Design, so we will here. We’ll go over brief excerpts from each lawyer to give you an idea of how these types of arguments were made. And, to be sure, some of the same themes remain, echoing in death penalty trials today.

Opening the arguments for the State would be Assistant District Attorney Jon Sparling. Here is how he summarized his argument for imposing the death penalty against both Lopez and Guzman: From the very outset, the only goal of these two defendants was to take those three or five officers at that time and kill them. There was never any questions about it, never any other purpose in their activities. It was goal-directed to the one thing of killing them…from the very outset: get inside the house. I’m going to kill you…Poor Sam Infante knew all along because he could speak Spanish…Now you sit here in this well-appointed well-lit courtroom and you heard the facts of the trial under the laboratory conditions of a jury trial. You cannot understand, you cannot comprehend the absolute terror that must have gone through those officer’s minds. They knew when they turned down that river bottom they knew they were going to be killed…You hear the names of A.J. Robertson, Sam Infante and Donnie Reese and you don’t realize that they were living, breathing, feeling humans, just like we are. They laugh when they’re happy, and cry when they are sad. They look forward to growing old because they have an absolute right to grow old, and when they pin on that badge, it doesn’t say that anybody with a gun can go out and kill them. That’s all we are asking you to do. Have you thought to yourself, “well I see what’s happening around us, see and hear about these terrible crimes. Why doesn’t somebody do something about it? And the fact of the matter is that you 12 are the only ones anywhere that can do anything about Guzman and Lopez.” Sparling concluded by thanking them for their service and for their kind attention.

Frank Holbrook stood on behalf of Rene Guzman: Once you decipher these words, you will see what the State is asking you to do. They are asking you to take Rene Guzman and put him in Huntsville on Death Row. I’ve seen Death Row and the Death Chamber. It’s a room not much larger than the room you’ve been waiting at back there during the trial. And there’s one big wooden chair, one big bar right across here. They are asking that you take Rene Guzman, have him strapped in that chair, in front of witnesses standing room only, and have electricity shot through his body until the odor of his burning flesh makes everyone sick in that room. Any way you put it, that’s what they are asking you to do. I’m not here to say to defend Rene Guzman. I’m not here to defend his character. I’m not here to say there is a place in society for him. But I am here to say that putting him to death is not going to bring A.J. Robertson back. If it would bring A.J. Robertson back to life to burn Rene Guzman every day for a solid year, I would have no quarrel with it. But it won’t. I think letting a man live in prison for the rest of his life is more punishment  than putting him to death. He will never have the right to see a son, should he have one, play Little League Ball. He will ever have the right to see his children graduate from high school, or to fish or hunt in the fall or go to the football games, or go out in the morning and get the morning papers. All these rights that we all take for granted he will never have again.

Holbrook finished with a story. Someday I’ll find where it came from, but I’ve heard this story delivered over and over in one form or another – once even from the Great American Trial Lawyer Gerry Spence in the famous Ruby Ridge Trial against Randy Weaver. Holbrook continues: “Now in closing, just one little story. It’s a story I heard in a Courtroom long ago, but it exemplifies the situation well. It’s a story told about in a small community, much like Bell County, where there was a very, very wise, intelligent man, known for his wisdom. Everyone came to him for advice. There was also in this town a young man. He was a nobody, but wanted to be a somebody. So he decided he could make his reputation if he outsmarted the old man. So he caught a small sparrow and held it in his hand, and went to the town square where the wise old man could normally be found. He confidently approached the wise old man and said, ‘I have a small sparrow in my hand. Tell me whether that bird is dead or alive.’ The wise old man thought, and knew he had been had: if he said alive, the boy would crush the bird. If he said dead, the boy would open his hand and let the living sparrow fly away. So the wise old man said, “As you will it, my son, it will be.” Ladies and gentlemen, whether or not he lives or dies is as you will it. I say punish him, and punish him strongly, give him a thousand years, fifteen hundred years, but I ask you to spare his life.”

Doug Mulder argued next on behalf of the State: They ask you for mercy, but you in your own hearts know that these men don’t deserve any mercy. I can put myself down in the Trinity River bottoms and I can imagine how these pleas for mercy on behalf of the lives of Donnie Reese, A.J. Robertson and Sam Infante would have fallen on deaf ears. They tell you that the death penalty for Guzman and Lopez would not bring them back – and I couldn’t agree more. But I’m telling you the death penalty will prevent them from causing this sort of grief and ultimate sorrow to victims yet unidentified. I tell you that every jury verdict, big or little is a monument – big or little to something or someone. Yours is not an ordinary case, nor should your verdict be an ordinary monument. Let your verdict be a monument to duty, honor and justice, and more importantly, a monument to the value of innocent human lives. We ask for full, complete and final payment for the lives of these fallen officers. I will leave you with this parting thought: When mercy and sympathy replace justice in this or any community, your streets will run red with the blood of your loved ones.

Don Metcalf on behalf of Leonardo Lopez: When Mr. Mulder talks about the deterrent value, you at least understand that we no longer have public hangings on the Courthouse square, but we execute in the dead of night by law, and that no inmate in the Texas Department of Corrections may witness that execution. The very people that might need to witness that execution are, by law, prohibited from so doing. You and I will undoubtedly never know the appointed date and time of our death and as most people, it will come to us when it does. The man with the death penalty knows thirty days to the date and minute he’ll die, by law, and I have often thought it must be a horrible feeling to know as each minute passes by and each day passes by that you are twenty-eight, now twenty-seven, now twenty-six days away from your appointed date with death. And remember, Guzman the leader, Leonardo the follower. You’re trying Leonardo for the death of A.J. Robertson – and the man that put three bullets in the body of A.J. Robertson is not Leonardo. The law says punishment is what you twelve people say it is. When you go back to your respective homes and as we talked about during voir dire, this is something you may think about for the rest of your life. May your verdict be one that causes you to hold your head up and know that you did what you thought was right. If I was a juror and returned a verdict on my emotions and not on my reason or common sense, I don’t think I’d be able to feel in the future what I did was right. I ask you for a life sentence for Leonardo Lopez.

Dallas County District Attorney Henry Wade was up next, the final lawyer called upon to argue the case. He stood to deliver the final message on behalf of the officers and on behalf the entire law enforcement community. But in so doing, he made a significant legal mistake, one that would be dealt with by the Court of Criminal Appeals: Lopez and Guzman don’t look like they did out there on the 15th of February. They’re dressed a little different, but they have the same black heart. They have the same malice. They have the same thing that they exhibited from the minute this all started – a heart regardless of social duty and fatally bent on mischief. When Wade said, “I am concerned about the open season that is coming on police officers. I believe the same week these officers were killed there were eleven killed in America. Did you see when we arraigned the two defendants – arraigned Lopez, Guzman, asked them what their plea was? They said not guilty. You heard their lawyers say not guilty. Well, lady and gentlemen of the jury, you know they were lying to you at that time.” The lawyers for both Guzman and Lopez immediately jumped out of their chairs, and objected. Judge Scales sustained it, a significant ruling in the eyes of the future Appeals Court. Wade concluded: “I am concerned about the situation of law enforcement in America. I  want you to tell their widows, their mothers and their families that. To return a verdict less than that, you are telling the same people that no matter how aggravated the killing, a jury will just send them to the penitentiary.”

It wasn’t much time after Henry Wade sat down that the jurors returned their verdict condemning both men to death. They were taken to Texas’ Death Row, and awaited their fate. They joined hundreds of people on death rows in States all across the country. One of those men was William Henry Furman, a man on Georgia’s Death Row, whose case formed the basis for a landmark decision by the Supreme Court of the United States that would affect every person on death row in this country, including Charlie Manson, Charles Tex Watson, and for our purposes on this episode: Rene Guzman and Leonardo Lopez.

When the United States Supreme Court ruled that the death penalty was unconstitutional,1See Furman v. Georgia, 408 U.S. 238 (1972). this trial was pending in the Court of Criminal Appeals, the highest criminal appeals court in Texas. On October 23, 1973, the Judges on that Court overturned the death sentence for Guzman and Lopez, based not only on the ruling by the Supreme Court in Furman that the Death Penalty was unconstitutional, but also based on the comments by Henry Wade in the last 5 minutes of the trial. Here’s what the Court wrote in reversing their conviction: “The argument that 11 officers were killed the same week was not based on evidence in the trial. The entry of a plea of not guilty is not testimony under oath, and unnecessarily inflames the minds of the jury, and can not be condoned. The Judgements are reversed and causes remanded.”2Lopez v. State, 500 S.W.2d 844 (Tex. Crim. App. 1973). About a week later on 11/1/1973, Lopez and Guzman were sentenced to Life in prison.

Many people believed that a Texas prison is where the two men would remain for evermore. But those people were only half right. (Audio Clip). Wendell Dover, the first of two surviving Deputies who testified in the trial, told Newsweek in 1991 that, “This is the most horrible miscarriage of justice that ever walked.” Many were outraged that the system allowed Lopez to be free, and Texas lawmakers eventually stepped in and increased the amount of time murder or capital murder convicts would have to spend before they became eligible for parole. This case, and others like it, also uncovered scandalous dealings within the board of pardons and paroles. If you are interested in reading more about that scandal, look up Robert Riggs on YouTube. Riggs was a reporter with Channel 8 here in Dallas and has uploaded an enormous amount of news footage about this whole scandal. I’ll put a link to the page on my social media.

Lopez went free. Although I am not sure exactly what happened to him thereafter, I can tell you that he is not listed as a prisoner on the Texas Department of Criminal Justice inmate locator tab. Rene Guzman, however, is still alive and is still in prison. His application for parole was denied in December, 2015. He will be up again for parole in December 2025. If he makes it until then, he’ll be 88 years old.

That is the story of what has been dubbed the Trinity River Massacre.  From Slate Rock Road in Belton, to the warm radiator of a Ford in the driveway of 2810 Ingersol in Dallas to the banks of the Trinity River, we have this, the murderous design of Rene Guzman and Leonardo Lopez.

First, in considering who the victims were and what they represent, the motive in this case is that of self-preservation. Lopez and Guzman knew they were caught for the burglaries they ostensibly committed in Belton. The killings of the officers reveals their own guilty conscience about the burglary first, and second, that they were willing to kill in order to evade capture and imprisonment. The men were compelled to pick a different location for the murder in order to accomplish it without being interrupted, to avoid detection, and to facilitate their own escape. The house on Ingersol was in a regular neighborhood, and a flurry of gunshots would have drawn a lot of attention, increasing the possibility that the men would be seen leaving. Also, if they carried the killing out in the house, they risked leaving a huge clue as to who they were in the event that they got away. They both had ties to the house, and would have been persons of interest for that reason. These prospects were so risky to the men, and the desire to take the victims to a secret location so strong, that they were willing to take the extraordinary risk being caught in a squad car in public in broad daylight with 5 deputies tied up. But they didn’t take a very long trip, and they took a trip directly to a place that was removed from the eyes and ears of the public: the Trinity River. We can discern from this that the two men knew well ahead of time that there were going to be gunshots, and lots of them. This also reveals that they were familiar with the area of the killing, indicating that they must have lived or worked near the killing location.

In considering the fact that the victims were law enforcement, the number of shots, and the words of the men leading up to the killing, the amount of ammunition and guns that they secured and the handicapping of their victims, we see that to Lopez and Guzman, there was no way that the officers, if released and allowed to live, would let Lopez and Guzman off the hook for burglary and kidnapping of the officers. We can therefore see that the men desired to permanently silence the victims by killing them. 

The design for this murder, however, given the circumstances and it’s genesis, was made in haste. Although the men succeeded in escaping and avoiding capture for a few days, they left Dover and Robertson alive to tell their story not only to officers that day in order to catch the killers, but in the trial a year later to convict them.  

End of Episode–