A Trial in Tulia
“After nine years there’s not a lot of physical evidence. It’s pretty much all circumstantial. But in Texas you can get a conviction on circumstantial evidence.”
-Texas Ranger Aaron Dewayne Williams, quoted in the Lubbock Avalanche-Journal, June 9, 1998
“We already know they’re deciding one way or the other to convict you or me of it . . . and the main reason I think it’s me is because I’m a black man . . .But I know I didn’t kill Tony . . . I loved him as much as I love my daughter . . . I feel guilty because I wasn’t back in time enough to save him . . . but I wasn’t the reason for his death.”
– David Johnson, speaking to Ronda Fore, as recorded by Ranger Williams, September 21, 1998
Following the now-infamous drug bust of 1999, the name Tulia has become synonymous with drug war misconduct. More than 10 percent of the tiny Panhandle town’s black population was arrested for allegedly selling cocaine to an undercover cop, who was later revealed to have a questionable record himself. The arrests did not hold up under scrutiny, though the local district attorney, Terry McEachern, continues to stand by the convictions he obtained in more than two-dozen cases. Thanks to widespread coverage in the national news media, the plight of those arrested in the sting is now known to thousands across the country and an organized effort is underway to free the 13 defendants still in prison. Less well known is another Tulia drama that unfolded just as the drug sting cases were being prosecuted: the case of David Earl Johnson. Johnson was paroled earlier this month after serving almost four and one half years for manslaughter. If anything, Johnson’s case is even more confounding than the cocaine sting that caught the national media’s attention.
In June of 1998, Johnson was arrested and charged in the 1989 death of Anthony Culifer, the infant son of Johnson’s former girlfriend. Because Johnson could not make his $500,000 bail, he was forced to wait in jail for nearly two years, while District Attorney Terry McEachern plowed through the Tulia drug cases. How McEachern obtained an indictment, let alone a conviction, for a death that occurred nine years previously–and was pronounced death by pneumonia at the time–reads like a bad tabloid tale. The principal witness for the prosecution, the child’s mother, claimed to have remembered in a dream years after her son’s death that she had seen Johnson kill her baby. Anthony’s older sister also testified against Johnson, claiming to have witnessed the crime as well. She was two years old at the time. The authorities had Anthony’s body exhumed, although they knew the baby had not been embalmed. Not surprisingly, they found no tissue to examine–but they did manage to persuade a Florida pathologist to come to Tulia and testify that Anthony might have been smothered. When the trial was over, barely a week after it had begun, the jury gave Johnson the maximum sentence for involuntary manslaughter: 10 years in prison.
Johnson grew up in Tulia, the first son of Thelma and David Johnson, Sr. David’s father left the family when he was seven. Thelma’s own parents were migrant cotton pickers who died when she was young, leaving Thelma in the care of siblings who brought her to Tulia. She met and married David’s father in Tulia while she was still in her teens. Thelma settled in Tulia and did her best to take care of her two boys, working as a cook and a waitress at local restaurants. David enlisted in the army reserves in tenth grade. After graduating from high school, he worked as a mechanic. He had a daughter, Sheena, with a girlfriend, though the relationship did not work out. When it became apparent that Sheena’s mother could not care for her, David fought for and won custody of his daughter, whom he raised with Thelma’s help. Now 16 years old, Sheena stayed with Thelma while David was in prison.
Johnson met Ronda Fore through mutual friends in the late 1980s. She was working odd jobs, but with three small children she wasn’t making enough to live on. She told Johnson that she was living in her car with her kids, and he let her move in with him. Their relationship was rocky. Often Ronda would go to the police after a fight and accuse David of abusing her and her children, though he was never prosecuted for any of the complaints. Ronda herself was repeatedly investigated by Child Protective Services, and at one point temporarily lost custody of her children.
On March 20, 1989 Johnson and Fore brought Anthony to the emergency room in Tulia. Anthony was not breathing when they arrived, and he could not be revived. Dr. Ralph Erdmann, the medical examiner for much of the Panhandle, examined Anthony and concluded he had died of pneumonia. After Anthony’s death, Johnson and Fore’s relationship deteriorated. In 1993 the couple fought over Johnson’s refusal to take Fore and her children on a weekend trip he had planned for himself and his daughter Sheena. Shortly thereafter Fore had her dream about Anthony’s murder.
She first spoke to Tulia police about the dream in June of 1993. Fore told them that the dream helped her recall what really happened when Anthony died. He had been too sick to go to daycare that day, she now remembered. Instead, Anthony had stayed with Thelma, as he often did, until Fore could pick him up in the evening. When Johnson arrived home from work later that night, he found Anthony lying on his back on the living room couch, crying loudly. Fore said she watched quietly as Johnson grabbed a pillow and held it over Anthony’s face for two minutes. She made no attempt to stop him. Instead, she went into the kitchen and did the dishes until her four-year-old son came to tell her something was wrong. She said she found Anthony on his back, not breathing. She screamed for help, and Johnson, who was outside, came running in and began performing CPR on Anthony, but to no avail.
District Attorney Terry McEachern had Fore tell her story to a grand jury in 1993. But Fore’s testimony, along with that of her then six-year-old daughter, and photographs from Erdmann’s autopsy, were not enough to secure an indictment. Fore and Johnson went their separate ways and most people in town eventually forgot about the case.
But the case was still alive to Tulia Police Chief Jimmy McCaslin. In 1998, McCaslin showed the autopsy pictures to Texas Ranger Dewayne Williams, and told him he had always wondered how the baby really died. There had been no new developments in the case over the previous five years, but there had been quite a bit of tumult concerning Ralph Erdmann, the area medical examiner. Erdmann had been investigated several times during his tenure as medical examiner for the Texas Panhandle, during which he had allegedly cut corners and made mistakes on autopsies. Things fell apart for him in 1992, when he was accused of faking an autopsy. Families of murder victims began to sue and he eventually lost his license.
Williams was sure that Erdmann had somehow botched Anthony Culifer’s autopsy. In an interview, Williams said he examined the photographs and saw a small red blister over the baby’s lip and a clear substance, like mucus, on his face. He also noted two small scratch marks on his forehead, which he interpreted to be defensive wounds from a struggle. Williams also claims to have seen adult finger marks on the baby’s neck, though he had difficulty making these out. The pictures, available to the Tulia Police Department since 1989, had not been enough to convince the grand jury to indict Johnson in 1993. Still, Williams understood the usefulness of Erdmann’s now-infamous reputation. He found a Lubbock pathologist, Dr. Marc Krouse, who agreed that the photos looked suspicious. Williams convinced a justice of the peace in Tulia to sign an exhumation order and, with McEachern’s help, assembled a team of pathologists and anthropologists to examine the remains.
After this new autopsy Johnson was charged with murdering Anthony by “smothering him with a pillow or by means unknown.” Williams complained that he had a tough time persuading McEachern to take the case, especially since McEachern had previously failed to indict Johnson. Once he was convinced, however, McEachern prosecuted with gusto, supplying local reporters with sensational quotes until the trial judge was forced to issue a gag order.
“The motive was anger . . . the baby was crying too much. The mother was in the house but didn’t witness the suffocation . . . there was actual physical injury to the child but Erdmann just wrote it off. If I could seek the death penalty I would.”
-McEachern in the Plainview Daily Herald, June 18, 1998
“[A] team of six or seven pathologists and an anthropologist were brought in to look at the baby’s body, and the results were conclusive — there were no signs of pneumonia, but there were signs of suffocation.”
-McEachern in the Amarillo Globe-News, June 8, 1998
-“The boy’s body was exhumed Feb. 27th . . . after evidence surfaced that the infant might not have died of natural causes but could have been murdered . . . McEachern says lungs still intact . . . McEachern was also quoted in a Sunday Lubbock Avalanche-Journal front page article as saying that if the boy had died of pneumonia ‘he must have caught it in about three hours.'”
-Tulia Sentinel, March 19, 1998
McEachern’s announcements were stunning considering that Anthony’s body had not been embalmed when it was buried nine years earlier. The second autopsy was conducted well before McEachern’s revelations to the media, but the “conclusive” results he cited were nonexistent–due to decomposition there were only bones left to examine. The examining forensic anthropologist, Dr. Robert Paine, had noted in his written report to McEachern that “no conclusion can be made from the skeletal remains in assessing a cause of death.”
As the time for trial neared, Thelma Johnson still thought the case was absurd. She believed David was being targeted because he had dated white women. Fore was willing to say anything about David when she got angry, Thelma said, and officials were all too eager to believe her. (Fore could not be reached for this story.) The indictment, Thelma figured, was meant as a message to David, but not something that would go to trial. McEachern must have had his misgivings, too. After reviewing the evidence, he decided to add a new charge of involuntary manslaughter to the original murder charge, making a conviction more likely.
Court records and interviews with observers at the trial would also be laughable, if not for the trial’s result. Because he was the primary examiner, Dr. Paine was called to the stand, but he only testified that he could make no conclusions from his belated autopsy. McEachern had to rely on other experts to support the prosecution’s theory. He called Lubbock pathologist Marc Krouse to the stand. Although Krouse wrote that “extreme decomposition” made remnant tissues “not identifiable grossly,” he was still somehow able to conclude that Anthony was killed by suffocation. He combined the small facial abrasions visible in the original autopsy photographs with witness statements and what he termed “a lack of antecedent history of pneumonia” to draw a conclusion of homicide. In addition McEachern flew in Dr. William Anderson, a pathologist from the Orlando Medical Examiner’s Office. Anderson examined the remains and the photos, and testified that Anthony likely died of “something other than pneumonia.” Of the tiny blisters visible in the autopsy photos, he said, “This type of injury would be consistent with something, among one of the possibilities, something being placed over the mouth [and] nose area.” This may not have been resounding evidence of murder, but it was enough to convince the jury.
The only materials that might have actually shown whether Anthony had pneumonia when he died were the original lung tissue slides made by Erdmann, and those were nowhere to be found. In an interview, Erdmann said that after his forced retirement he told local officials that they could have any slides they wanted. He is sure that no one ever asked him for the slides from Anthony’s autopsy, or even about what really happened to Anthony, not even McEachern.
Erdmann said he personally believes that Anthony probably died of S.I.D.S., but since he had found small traces of pneumonia in his lung tissue, he wrote that down in his autopsy report. He does not remember anyone suggesting murder at the time of the autopsy and he did not look for signs of it.
The eyewitnesses, on whom the rest of the state’s case relied, proved to be as problematic as the missing physical evidence. Ronda Fore gave many statements about what happened the day Anthony died and each was different from the others. On the day that Anthony died, March 20, 1989, she told emergency room staff that he had spent the day at the Tulia Day Nursery and seemed well except for a runny nose. She had put him down for a nap that evening and soon after she checked on him. She found him not breathing and called out for help. David rushed in and attempted CPR until it was clear the baby was not responding and they then brought him to the hospital.
Even after Fore changed her story to one of murder, she could not seem to settle on a set of facts. When Fore first went to the police in June of 1993, she told them Johnson smothered the baby with a pillow. In a statement given one month later, however, she said Johnson put his hand over Anthony’s mouth and nose. He held it there until the baby stopped moving, she said. In both versions Fore said she made no attempt to stop Johnson.
In 1998 Williams interviewed Fore once again. In both of the statements Fore gave in 1993, Anthony had been too sick to go to daycare, but Fore now told Williams that Anthony was perfectly healthy the day he died. He had indeed spent the day at daycare, she said. Thelma Johnson picked him up in the afternoon and watched him until Fore could come get him. David arrived home from work to a crying Anthony, who was preventing him from watching television, Fore said. He tried to quiet Anthony by smothering him with a pillow. He did this at least twice. Fore tried unsuccessfully to pull the pillow away from Johnson. She went back into the kitchen and when she returned to the living room Johnson was bent over Anthony doing CPR.
Fore contradicted herself repeatedly during her testimony:
Q: [By McEachern] Did you see the Defendant place a pillow over the face of Anthony Lynn Culifer?
A: [By Fore] No, sir, I did not.
. . .
Q: Now I am going to show you this [a 1998 statement Fore made to Williams] to see if it refreshes your memory. Now I am going to ask you the same question: Did you see [Johnson] place a pillow over Anthony Lynn Culifer’s mouth and face?
McEachern then asked Fore how many times she saw Johnson do this, and she answered “once.” He asked her again, with the same result. Fore only agreed that she saw it happen twice when McEachern showed her the 1998 statement again.
A few minutes later Fore was questioned by Johnson’s attorney, D’Layne Peeples:
Q: I asked if you saw [Johnson] put a pillow over [Anthony’s] face and you answered no, didn’t you?
Q: And I asked you if you witnessed him put–smothering him with a hand and you answered no, didn’t you?
Fore also vacillated about Anthony’s health on the day he died:
Q: [By McEachern] Had [Anthony] had a physical by a doctor just the week before?
A: [By Fore] Yes, sir.
Q: And was he healthy?
A: Yeah, he was real healthy. . .
. . .
Q: [By Peeples] [Was Anthony] [s]ick enough to where he couldn’t go to the daycare?
A: [By Fore] Yeah, because they wouldn’t let him go because they thought he was sick.
The defense was not granted access to Anthony’s pediatric records until just before trial. These records show that from December 1988 to March 1989, Anthony visited his pediatrician seven times. Fore reported to the pediatrician that Anthony suffered from fevers, coughs, difficulty breathing, and vomiting. On March 13, one week before Anthony’s death, the doctor noted drainage from his right ear and put him on a 10-day course of antibiotics.
The prosecution had a second less-than-reliable eyewitness in Fore’s 13- year-old daughter. Though she was barely two years old at the time her brother died, she said she remembered Johnson smothering Anthony and then attempting CPR on him. Ranger Williams had also questioned one of Ronda Fore’s sisters in 1998, who claimed that the then-two-year-old girl had come to her in 1989 and told her that David had killed Anthony. At the time, the sister said nothing about what the girl had told her; the first she spoke of it was when the Tulia police came to interview her in 1993.
Despite these irregularities, the questionable reliability of the witnesses, and the lack of physical evidence, it took the jurors only a few hours to convict David of involuntary manslaughter.
At sentencing the state presented witnesses found by Williams who testified to David’s history of violence. Johnson had been arrested and charged with assault of a police officer in 1998. Williams also cited a long list of domestic violence complaints against David–but all were filed by Ronda, her sisters, or her close friends, and none was ever prosecuted. In a later interview, Williams admitted that Fore herself was a violent mother, but he did not doubt her reports that Johnson was abusing her children. David was given the maximum sentence for involuntary manslaughter, 10 years.
McEachern declined to comment on the case, as did the local sheriff, Larry Stewart. Ranger Williams remains proud of his work. When asked if he was surprised that Fore’s daughter remembered so well what had happened when she was two, he said he was not, noting that his own 16-month-old daughter was beginning to talk. Williams said the case would have been stronger except that a “weak” judge prevented important evidence from reaching the jury. Some of that evidence Williams had secured himself. While Johnson was in jail awaiting trial, Williams put a wire on Fore and sent her in to talk about Anthony’s death. This tape was withheld because Johnson was never told he was being taped. On the tape, Williams pointed out, Johnson confused the times at which events occurred the night Anthony died, though his account only differed from the police and hospital reports by a matter of minutes. But Johnson never wavered on the tape in his assertion that he had nothing to do with Anthony’s death. He was frustrated that he had not been able to save the child, he said, but he had not killed him.
As a potential witness, Thelma Johnson did not get to watch much of the trial, though she does have one strong memory. As Erdmann left the courtroom for the last time he stopped by her, leaned in, and said, “You had better get some legal help, because they’re railroading your son in there.” Thelma cried when she got home that night, but she didn’t cry as they read David’s sentence. “I felt a chill in my blood that they were doing what they knew was wrong,” she said. But she was not surprised. “I had been to all the drug trials and saw what was happening. No black man was coming out of that courthouse without a sentence.”
Former Panhandle resident Liliana Ibara is currently studying law in Massachusetts.