This story is the fourth in a series, Unrequited Innocence, that looks at cases where people were sentenced to die and have not been exonerated despite significant evidence of innocence.
Two U.S. Environmental Protection Agency investigators were on their way to dinner in October, 1988, when a man armed with a handgun suddenly emerged from between cars parked in a Houston lot and robbed them.
Investigator David Delitta pulled a gun from his ankle holster and exchanged fire with the gunman, who fled. Injured in the exchange, Delitta died the next day.
Police drew a composite sketch based on the description from Delitta’s companion, James Sullivan, who depicted the robber as a dark-skinned white or Hispanic man, age 45 to 55, weighing about 160 pounds, standing five-eight or five-nine, with medium-length dark hair, a thin mustache and wrinkled forehead.
A detective noted that the sketch resembled Anibal Garcia Rousseau, a 47-year-old drug addict who supported his addiction by committing armed robberies. Sullivan identified Rousseau from a photo array and, after police announced that he was a suspect, Rousseau turned himself in to police.
Rousseau was charged with capital murder. Months later at trial, and though Rousseau, at five foot, six inches tall and 125 pounds, was considerably smaller than the man Sullivan described, he was identified in court as the killer. Sullivan testified that he was certain the murder weapon had been silver, chrome or nickel.
Three witnesses testified that they had seen the incident and testified for the defense that Rousseau was not the killer they saw – one said Rousseau was too short, another swore the killer was black, and the third said his face was markedly different. Assistant District Attorney Lorraine Parker shrugged off those witnesses, telling the jury that Sullivan, an investigator for the EPA, had “practically a photographic memory.” The judge refused to allow Rousseau’s lawyer to call a forensic psychologist who could have cast doubt on Sullivan’s identification.
Though no physical evidence linked Rousseau to the crime, the jury found him guilty. He was sentenced to death.
What the jury never knew: Two months before Rousseau went on trial, witnesses to a drunk driving car accident saw the driver, Alfredo Guerrero, throw a weapon into a field. Ballistics testing showed the black .39 caliber Rohm revolver was the gun that had killed both Delitta and a second man, Leo Williams, whose body had been found in a ditch days earlier.
A second ballistics report reaffirmed that the Rohm revolver was the weapon that killed both Williams and Delitta.
It was black, contrary to Sullivan’s description.
Guerrero was charged with Williams’ murder, to which he pleaded guilty in 1992 and was sentenced to 12 years in prison.
In early 2001, Rousseau’s appellate lawyers discovered the ballistics tests in a file at the district attorney’s office. Though those tests had linked Guerrero’s gun to Delitta’s murder before Rousseau ever went on trial, the defense was not told of that evidence at the time. Parker later said she had not been told of the ballistics tests before Rousseau’s trial.
In June 2001, Guerrero admitted he committed the Delitta murder to an investigator for Rousseau’s appeal, the investigator said. But he denied it after learning Delitta was a federal agent. Eight months later Guerrero was paroled and deported to the Dominican Republic.
In February 2002 — more than a decade after the trial — Lorraine Parker said that she would not have prosecuted Rousseau if she had known that the Rohm revolver had been used in both killings. That September the Texas Court of Criminal Appeals remanded Rousseau’s case to be retried.
Four years later, with his case still pending, Rousseau died in prison at age 65.
Parker’s experience in the case turned her into an opponent of capital punishment.