By Jim Rix
[Editor’s Note: Blurb from the dust jacket: “Jim Rix has written an astonishing memoir about his cousin Ray Krone’s wrongful conviction for a 1991 Arizona murder. Rix meticulously details every aspect of police corruption, prosecutorial misconduct, defense incompetence, expert witness tampering and jury shenanigans that led to Ray’s decade-long nightmare. But Rix doesn’t stop there. He dissects each problem, then with careful research explains how it is not an isolated incident but part of a larger pattern of problems in the criminal justice system. Rix’s wry humor and occasional sarcasm reveal the depths of his despair at realizing that the justice system, which he once trusted, is so deeply flawed. Scariest about this true story is that if Ray Krone, an honest, law-abiding person, could end up on Death Row, it could happen to anyone.”
–Rachel King, author of Don’t Kill in Our Names and
Capital Consequences, teaches legal writing
at Howard University School of Law ]
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| Rendering for possible cover by artist Rob Esmay |
Arizona’s Death Row inmates reside at the state prison in Florence, a small town halfway between Phoenix and Tucson. When not in their cells or a secure exercise yard, these inmates always have their hands cuffed and shackled to a leather belt secured around their waist. Once an inmate is spirited and locked into the visitation cage, his handcuffs and belt are removed and collected by the guard through a small window in the door to the cage.
Ray kept his smile during this process. We were separated by thick glass. Communication was via telephone.
We became acquainted by reminiscing about family. But Ray was more interested in my visits with Dr. Campbell. He listened intently, asking few questions, mostly shaking his head as I detailed what I’d learned from Campbell.
I assured Ray, “I expect Dr. Campbell to exclude you as the source of the bite as soon as he is able to get a look at the cast of your teeth.”
“You know,” said Ray a bit naïvely, “I couldn’t understand how it was possible for the murderer and me to have the same teeth pattern.”
He, too, had been impressed with Dr. Raymond Rawson and his videotape. Until my visit, it never dawned on him that Rawson might have made a mistake. Ray really believed that it was just his bad luck that his dentition also fit the bite mark.
Ray listened as I speculated on whose bite mark it might be. The police reports contained several references that named Trish, the former bar manager, and her girlfriend Lu as suspects. Arredondo, the bar’s owner, reported that the talk around the bar was that it was a homosexual homicide and that Trish and Lu possibly killed Ancona. Lu was described as “Indian female, former military.” She was also on the list of suspects whom Dr. Campbell could not exclude and the one Campbell liked the best.
“What do you know about Trish and Lu?” I asked.
“Not much—just from the bar,” Ray answered. “Trish is very good looking. I asked her for a date one time. It was after Amy and I broke up. I was having a lasagna party at my house. I called Trish at the bar and asked if she wanted to come over. She wasn’t interested, but said Kim might be. But I wasn’t interested in Kim.
“I shot darts against Lu a few times at the bar and in tournaments. At first, I thought she was a man and worked at the bar, because she was always there and seemed to do whatever Trish asked.
“It was disappointing to find out they were gay.”
I could attest to the fact that Trish was attractive. I’d had a chance encounter with her on one of my early visits to Phoenix. While waiting for my return flight, I had ordered a beer from a waitress whose name tag read TRISH. When she returned with the beer, I attempted to find out if she were the Trish. Removing my half-height reading glasses and flexing my abdominal muscles in an attempt to elevate the mass that over the years had succumbed to gravity, I gave her my best move—but to no avail. My ego wanted to conclude that the reason this attractive waitress wasn’t interested in having a conversation with me was that she was gay. Reality suggested other reasons. Trish is a reasonably common name, this waitress was too busy and it was probably not her anyway, I rationalized.
Mike Pain, at my request, was making inquiries into the case. He’d located Trish. She was a bartender at Sky Harbor Airport. A copy of her driver’s license picture confirmed that I had indeed been served a beer by one of my suspects. Mike saved Trish for last to be questioned. Before the intended meeting, Trish left town.
“When you shot darts with Lu, did you notice whether she shot left-handed?” I asked Ray, continuing my “investigation.”
Ancona was killed by a single well-placed stab in the back. Since there were also knife injuries to the neck, I theorized that the victim had been held from behind at knifepoint to the neck before being fatally stabbed in the back—not unlike a combat soldier taking out a sentry. If so, I reasoned, the assailant was most likely left-handed, because the knife had entered the left side of the back and penetrated the left lung. Ray was right-handed. But what about Lu?
Ray thought for a bit. “I don’t remember. But I do remember,” he volunteered, “that she wore Converse shoes.”
The murder weapon was determined to have been taken from the knife rack in the kitchen. The kitchen floor had been mopped around 9:00 p.m. by cook David Torres. A single set of footprints was found on the kitchen floor leading to the knife rack. These footprints were easily determined to have been made by Converse brand tennis shoes. The trademark CONS is clearly visible in the photographs taken of the footprints.
Why, I wondered, would Ray, some two years later, be able to remember Lu’s shoes and not be able to remember with which hand she shot darts? I asked him.
“I always watched for foot faults” was the simple explanation.
When shooting darts, a player is required to stand behind a line some nine feet from the dart board. Should the player’s foot cross this line, the player’s shot is foul and doesn’t count. Early in his dart playing career, Ray had gotten into the habit of watching his opponents feet when they were shooting. This fact was confirmed by one of Ray’s friends, who described Ray’s dart playing as “intense.” Ray never hesitated to call foot faults, especially when there was a prize riding on the outcome of a game.
It would have been easy for Ray, in his situation, to encourage his cousin who was “investigating” his case. Knowing that his cousin had developed the theory that the murderer was left-handed, he could easily have speculated, “I think so,” regarding Lu’s suspected left-handedness. I learned from this visit and many others that Ray and I have very similar values, which is not surprising, as the source of our formative training was the same, Grandma and Grandpa. For me it was passed on through one of their children, my mother. Ray had the additional benefit of being able to learn directly from Grandma and Grandpa, having grown up on their farm.
If Ray didn’t know something, he would say so, which added to his credibility when he did say something. Ray confirmed that Lu wore Converse tennis shoes. It would be some time before I would find out whether Lu was left-handed or not.
Lastly, we discussed his options. As everyone knows, there is a lengthy legal process between conviction and execution. Ray was at the first step, his appeal to the Arizona Supreme Court. An appeal focuses on errors that occur at trial. That’s one reason why good defense attorneys frequently object during trial. Each time the judge overrules an objection the possibility for error under the law is introduced. The appeal process is essentially a check by a higher court on the performance of the trial judge. Factual innocence supported by new evidence is not an issue at the appellate level. Should an appeal fail, as most do, the next step is post conviction relief, known in Arizona as a “Rule 32,” whereby any and all new evidence is presented to a superior court judge, usually the same one that presided over the trial. The judge, at his discretion, may then order a new trial.
Since it would be at least a year for Ray’s appeal to be decided, I suggested that he consider proceeding with a Rule 32 right away. The appellate issues, the late discovery (or release of evidence) of the videotape and the hearsay testimony of Kate Koester, did not seem as promising as did the new bite mark evidence. By proceeding with a Rule 32, Ray might win a new trial sooner. But there was a risk—should both fail, his execution would occur sooner. It was his call.
“Let’s do it!” he said without hesitation.
I left this first visit liking him. My friends tend to be honest, intelligent people. Ray Krone was in that category. But a Maricopa County prosecutor had successfully convinced twelve people that he was a shady person and had murdered Kimberly Ancona. This prosecutor would soon discover another shady person poking his nose into the Krone case to try to change this perception of Ray Krone.
John Antieau would continue with Ray’s appeal. A different attorney would be retained for the post conviction relief. I volunteered to find one. Ray accepted. To be safe, we would wait for Dr. Campbell’s report to be issued.
At the time Ray was going through his trial, I was also having an unpleasant experience involving attorneys, although of minor consequence compared to Ray’s ordeal.
Shortly after moving to the Lake Tahoe area, I acquired a boat. I traded a car for it, a Camaro IROC-Z, which I had repossessed from my younger son. Marlon had been allowed to use it while going to college, but he had decided to do something else and would have to make do with a lesser vehicle.
The boat was a well-constructed aluminum craft designed to pull parasailers, but it needed some refurbishing and repair. Before the trade, I contacted its manufacturer in Tacoma and was assured that four thousand dollars would make it shipshape. The boat originally sold for thirty-five thousand and in good shape would be worth thirteen thousand. A good deal, I thought. I delivered the old boat to the manufacturer, visited some friends I’d made during my Seattle days, then returned to Tahoe and impatiently waited.
The invoice I eventually received was a shocker. Not only had the hourly labor charge escalated from the quoted forty dollars an hour to sixty dollars, the total bill was within one hour’s labor of thirteen thousand dollars.
I retained a Tacoma attorney, who arranged for me to take possession of the boat provided I deposit thirteen thousand dollars with the court. The money would be distributed at a later date pending arbitration to settle the matter. At the arbitration hearing, attorneys outnumbered litigants. In addition to my attorney there were two attorneys for the defendants (one for each defendant present) and a fourth attorney acting as the arbitrator. Somehow I, the plaintiff, became the defendant and was subjected to a barrage of questions. My attorney responded by asking the real defendants only one question, “What’s a hose barb?” The invoice had noted numerous “hose barbs,” each requiring an hour’s labor to install. Hose barbs, it turned out, were simply hollow bolts screwed into the bulkhead and the engine to which a water hose is attached for the purpose of cooling the engine.
The arbitrator awarded the defendants seven thousand dollars then announced the zinger, “I’m inclined not to award attorney fees.” I was coincidentally facing six thousand dollars in attorney fees. Seven plus six equals thirteen. Hmm…I left the arbitration feeling as if I’d just been examined by an army of proctologists.
All was not lost, however. Under Gene’s tutelage, I instructed my attorney not to accept the results of arbitration and to request a jury trial. When this was done, I discharged him and, acting as my own attorney, settled with the defendants. The court returned six thousand dollars directly to me. Yes, I stiffed my attorney. I had the strong suspicion that this guy was subtly in cahoots with the other attorneys for the purpose of divvying up my money among them.
In the well-crafted [with Gene’s help] letter that relieved my attorney of his duties, I strongly suggested that he was incompetent. When a collection agency contacted me about this matter, I forwarded a copy of this letter to them. They were never heard from again.
I am living proof that the two happiest days in a boat owner’s life are the day he gets the boat and the day he gets rid of the boat. Gene’s assistance between these two happy days proved to be invaluable. When it came time to locate an attorney for Ray, I recalled how, after hearing my version of the arbitration, Gene had appropriately verbed a noun, “They really hometowned you!”
Gene advised that Ray should have an attorney experienced with death penalty cases and recommended three Phoenix attorneys for consideration. All three were highly qualified. However, recalling the “hometowning” and having learned that Jones, the prosecutor and the trial judge had at one and the same time all been Maricopa County prosecutors, I was reluctant to consider a Phoenix attorney. I looked elsewhere.
During my meeting in San Antonio with Homer Campbell he had said, “There’s someone I want you to meet.” We strolled about the convention center until he spied an individual loitering outside a meeting room smoking a cigarette. He was wearing faded blue jeans and a wrinkled blue shirt. I wouldn’t have guessed him to be a member of the forensic science community, but his badge read “Christopher J. Plourd, Jurisprudence.” Campbell introduced us and left us to get acquainted. I learned that Plourd was a criminal defense attorney from San Diego and he specialized in DNA cases. Asked about my area of interest, I introduced him to the Krone case and told him that Dr. Campbell had expressed serious reservations about the bite mark evidence.
I asked him how he knew Campbell.
“Homer? We’ve worked on a few cases together. Good man. When he renders an opinion, you can pretty much take it to the bank.”
Before Chris Plourd left to attend a lecture on serology, I got his business card. Then I caught up with Dr. Campbell at a seminar on odontology.
On the first Sunday after receiving Dr. Campbell’s written report I met with Chris Plourd at his office, which was located a mile or so from San Diego’s Pacific Beach. Obviously unshaven since Friday, he was even more casual than in San Antonio, this time wearing tennis shoes, shorts and a Chargers T-shirt. We moved to an outside patio so that he could enjoy a cigar while we talked.
I’d already done some homework on him. He grew up in El Centro, the seat of California’s Imperial County. After school he spent many hours at the county courthouse observing his father, a respected and accomplished criminal defense attorney, try cases. In 1978, while Plourd was attending law school, his father passed away. With a bachelor’s degree from Indiana’s Butler University and a jurisprudence degree from San Diego’s Thomas Jefferson School of Law, Plourd followed in his father’s footsteps by going to work for his father’s former law firm. Soon he was recruited by the Imperial County Public Defender’s Office, rapidly rising to the position of assistant public defender. In 1986 he accepted a position with Defenders, Incorporated, a private San Diego law firm specializing in criminal cases. By then he was accepting only the most complex death penalty cases. For a death penalty attorney, success is measured by the number of clients saved from execution. None of Chris Plourd’s clients had received the death penalty. Several had been set free. A notable case was that of Jim Wade, a San Diego man accused of raping his eight-year-old daughter. The Wade case gained national attention in 1993 when it was profiled on PBS television’s NOVA program. Plourd’s expertise with DNA evidence lead to the dismissal of all charges by the district attorney and to the factual finding of innocence by the court, as well as to the arrest and conviction of the actual rapist.
Self-taught on the intricacies of DNA analysis, Plourd was a nationally recognized expert on forensic serology. A long-time member of the American Academy of Forensic Sciences, he frequently gave seminars to instruct colleagues on the techniques of presenting and cross-examining expert witnesses as well as to instruct expert witnesses on what to expect when they venture into court to testify. Plourd was also experienced with cross-examining bite mark experts. In one case, without calling an expert witness, he successfully challenged the scientific validity of the bite mark evidence and won freedom for his client.
The interview went well. I was most impressed by Plourd’s unpretentious air. Before our meeting ended, Ray Krone had counsel for his Rule 32. Should Ray win a new trial, Plourd was more than qualified to try the case.
Plourd went to work immediately. Quickly he became familiar with Arizona v. Krone, especially with the evidence collected in the case. Soon he traveled to Florence to have his “heart to heart” talk with Ray. It’s a talk he has with every new client. After explaining the benefits and drawbacks of DNA testing, he itemizes each piece of evidence that could produce results. He then asks which items should be tested. Most clients are selective. However, Ray’s instructions were simple and unequivocal, “Test it all!”
An out-of-state attorney must first have permission of the state’s supreme court to represent a client within the state. On the application to appear pro hac vice a member of the state bar must be named as local contact. Gene Burdick volunteered for this duty.
Without the usual hello, Gene said anxiously, “I just learned that someone has been furtively viewing the Krone evidence.”
“Why are attorneys being used for laboratory experiments instead of rats?” I asked, attempting to change the subject, knowing that Gene always enjoyed a good attorney joke.
“Aha! Why did I know it was you?”
I confessed it was me and asked, “Don’t you want to know why?”
“Okay. Okay. Why?”
“Like rats, there’s an abundance of attorneys, lab technicians don’t become attached to them and there are some things a rat won’t do.”
After a brief chuckle, Gene went on to say that he’d just finished a conversation with an official from the county attorney’s office who said that someone was observed possibly tampering with Krone evidence.
I had viewed the Krone evidence on several occasions, but the event in question occurred the day before Dr. Campbell’s visit to the evidence room. In previous meetings with Campbell he had taken time to offer instruction in the art of bite mark analysis. If Ray Krone were innocent, someone else was guilty. Maybe the real biter was one of the other suspects whose Styrofoam impressions Campbell would soon evaluate? Maybe Campbell would be able to identify the real killer? I would help. I selected the plastic bag containing the Styrofoam bite impression of my suspect. Then I removed a staple from the plastic bag and slid out the impression. Using a ruler, I compared it with several bite mark photos before putting it back into the plastic bag.
“You unsealed an exhibit!?” I could almost hear Gene’s hand hitting his forehead.
“You can’t do that?” I asked naïvely.
Gene then expressed his concern that his friend might soon become his client. I whimsically assured him that nothing could be pinned on me because I’d been careful to remove my fingerprints from the telltale staple before discarding it. As calm returned to the conversation, I further assured Gene that I would make it easy for him by pleading “guilty by reason of insanity.”
He chuckled again. “That would work.”
The renewed interest in the Krone case that summer of 1994 obviously had not gone unnoticed.
Chris Plourd filed the notice of post conviction relief with the superior court. The law calls for post conviction relief to be automatically provided to every Death Row resident once his appeal is decided. However, no Arizona convict had ever asked for post conviction relief from a death sentence while his appeal was pending. The county prosecutor argued that since no one had, no one could, and filed a motion to dismiss notice of post conviction relief.
Plourd had also filed a motion for release of evidence for independent analysis. The state responded with a motion to seal the trial exhibits, arguing in part that the evidence should be under the control of the court to prevent “potential exhibit tampering by a ‘Mr. Rix,’ an apparently shady person, who cannot be located.”
These issues would be decided by the same judge, the Honorable Jeffrey A. Hotham, who presided at Ray’s trial. I was present for the oral arguments in case there was a need for me to be “located” to explain the “tampering.”
The hearing was held in the judge’s chambers. After listening to the arguments, Judge Hotham dismissed the notice of post conviction relief as “premature,” denied discovery and sealed the evidence.
In short order the Rule 32 was thwarted, the evidence was off-limits and Ray Krone would have to wait for another summer to arrive for the outcome of his appeal.
Gene was relieved to know that being branded “a shady person” was all that was going to happen to his friend for the alleged tampering, but he said of the prosecutor, “He’s pretty smart. He figured out right away what it’s taken me thirty years to figure out.”
[Editor’s Note: Jingle Jangle is still in print and can be ordered through Amazon. (The author’s Amazon vendor’s name is “The Book Abides.”) Autographed copies can be arranged. Let us know.]
| Copyright © 2015 by Jim Rix |
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