Posted on Tue, Feb. 19, 2008

Chapter 10 | The legacy of the Garcia case: missteps, disputes and regret

By Tim Madigan, With Deanna Boyd and Melody McDonald

Star-Telegram staff writers

This series contains explicit language and graphic descriptions of violence.

Editor's note: To Catch a Killer is the true story of killer Andy James Ortiz, his young victims, and the Fort Worth police and Tarrant County prosecutors who brought him to justice.

The story so far

Detective Joe Thornton was in the middle of an investigative nightmare trying to prove that Andy Ortiz had killed 15-year-old Armida Garcia. He had high hopes for a break in the case from Ortiz's friend Michael Botello, who first claimed that Ortiz told him he had killed the girl but who later changed his story.

CHAPTER 10

On a September morning in 1997, more than a month after the murder of Armida Garcia, Detective Joe Thornton carried a summary of his investigation to the Tarrant County Criminal Courts Building across the street. There, in a fourth-floor office, Assistant District Attorney Robert Foran reviewed the file and delivered the bad news: Although Andy Ortiz had been arrested in connection with Armida's death and was still being held on an unrelated parole violation, Thornton's case was not strong enough to take to a grand jury for a capital murder indictment, much less to trial.

It was a difficult moment, and for years afterward, both Thornton and Foran were haunted by what might have been. If a young girl named Ann had come forward to testify that she had seen Ortiz fleeing down the alley near Armida's home, Foran's decision might have been different. Cooperation from Michael Botello, who let Ortiz stay at his place after Armida's killing, might also have made the difference.

And there was more: A crucial piece of evidence that could have provided a definitive link to Armida's killer instead sat ignored in a freezer in the Fort Worth Police Department crime lab.

Armida had been a demure teenage girl, but clearly, given the bruises on her arms, she had fought desperately against her attacker on the night she was killed. It would not have been surprising if her killer had left a deposit of flesh beneath her fingernails. Nail clippings were taken from Armida during her autopsy and carefully preserved for DNA testing. But three long years would pass before the tests were done.

Blame for the oversight remains a matter of speculation but likely lies with the crime lab, which was understaffed and poorly managed at the time and was described by one former worker as "a train wreck." Staff training and scientific methods were later found to be so dubious that in 2003, the Tarrant County district attorney launched a criminal investigation into the lab. No charges were filed, but testing of all DNA evidence was suspended and outsourced to private laboratories. (That is still the case today.)

Despite the operation's shortcomings, in 1997 Fort Worth detectives still relied on crime lab technicians to screen evidence and suggest whether costly DNA analysis might yield valuable clues. In Armida's case, Thornton said, the crime lab advised against testing her fingernails for Ortiz's genetic material, though a decade later he could not remember why.

"I wish I could remember what it was, but there was some reason at the time they did not want to do them," Thornton said. "They were the experts. If there was a reason they didn't want to test them, I was going to go with their reasoning."

According to crime lab records and Thornton's case notes, the fingernails were examined once, but by a crime lab specialist looking for "trace," or microscopic, evidence. (That testing found cloth fibers, which were later compared, without success, with articles of Ortiz's clothing.) But different scientists in the same lab were assigned to do DNA analysis, and apparently, the fingernails were never called to their attention.

"It's clear, at this time, it should have been tested for both trace and for DNA," said William Watson, one of the nation's leading forensic scientists, who worked in the Fort Worth crime lab at the time. Watson was one of the scientists who worked on the Garcia case, but he did not remember it specifically. He reviewed the files at the Star-Telegram's request.

"There was a disconnect between trace and DNA," he said. "It was packaged as a trace item and examined as a trace item. I don't think there was a conscious decision not to test them [for DNA]. I think it was more along the lines of, 'Well, these have already been looked at.'

"It's not a great explanation."

Trying every angle

As a result, Thornton was forced to try to prove his case against Ortiz in other ways. After the debacle with Botello, the best he could come up with was a series of jailhouse snitches who claimed to have overheard Ortiz admit to killing the girl. The problem, according to Foran, was a lack of credibility that would make the snitches' testimony almost worthless. Thornton continued to run new leads past the prosecutor, and the two, who became close friends during the long investigation, brainstormed new strategies. When Thornton needed help penetrating the backlog and bureaucracy of the crime lab, he turned to Foran, who arranged for the district attorney's office to pay for private DNA testing on hairs taken from the victim's body. (Those tests ultimately showed that none of the hairs belonged to Ortiz.)

"He said I could call him any time of the day or night," Thornton said. "Without any question, we were on the same page. He didn't feel like we had enough evidence, but he went above and beyond trying to help me with the case."

Foran remembered Thornton's dedication and intensity.

"He simply didn't stop thinking about it," the prosecutor said. "He pursued one avenue of proof, and if that didn't work out, he'd pursue another. He didn't want to be stymied. He would step back and think outside the box."

But the prosecutor's basic position never changed. Foran still insisted he needed more solid evidence to move forward. And Thornton, who was relatively new to the homicide unit, deferred to the more experienced lawyer.

"I think they were hoping we'd get DNA ... that we would have something to link him to her body," Thornton said. "My feeling was, 'You're the expert on the case as far as accepting it and taking it to trial, so I'm going to go with whatever you say.'"

Not all of Thornton's colleagues were so inclined.

Diverging viewpoints

In the universe of American law enforcement, tension between detectives and prosecutors is inherent, friction based on widely varying working conditions, education levels, perspectives and often-conflicting job descriptions. Homicide detectives colorfully describe the fissure.

"We're out here walking around up to our ankles in blood, and they're sitting behind desks," said Curt Brannan, Fort Worth's senior homicide detective.

Put another way, detectives believed that prosecutors didn't appreciate the gritty challenges of the street and how they made evidence-gathering difficult. Prosecutors, on the other hand, said detectives often failed to grasp legal nuances or appreciate what it took to prove a case beyond a reasonable doubt to 12 jurors.

"When we take a case, we don't take it simply so we can say it's filed," said Alan Levy, chief felony prosecutor in the district attorney's office. "We're looking at it in terms of ... Is the case prosecutable? Not whether [a suspect] probably did something, but whether a jury is going to believe that they did it.

"The criminal justice system is designed for a kind of short-term analysis by law enforcement agencies, a different analysis by prosecuting agencies," Levy continued.

The murder of Armida Garcia is still remembered as a dramatic case in point.

"Do I think they made a mistake? Yeah, I do," said Sgt. Paul Kratz, who was a homicide investigator for more than 20 years and was Thornton's supervisor at the time of the Garcia case. "I think it should have been prosecuted. But they had their set of rules and we have ours, and they don't always mesh that well."

To Kratz's way of thinking, Thornton had established Ortiz's motive for killing the girl. (She had rebuffed his sexual advances.) They could also prove that the suspect had opportunity. (The victim's cousin, Roberto Jordan, saw Armida and Ortiz together at the Garcia home about two hours before her body was found.) The credibility of jailhouse snitches was less than stellar, Kratz conceded, but criminals such as Ortiz didn't tend to talk to model citizens. There were times, Kratz believed, when prosecutors needed to move forward with the best available evidence. And he thought that was certainly the case with Ortiz, who had terrorized the north side for a decade.

Kratz said recently that he's sure he made a passionate argument for prosecuting Ortiz.

"We felt real strongly this guy was the one, that we needed not only to put him in jail but to take him to trial and keep him there. When it's something like that, I'm a real black-and-white kind of person. If we went on a 'guaranteed hundred percent we can convict this person,' we would never take any case to trial."

Foran bristled when he was told of Kratz's comments.

Kratz "can be exasperated all he wants," Foran said. "First of all, a jailhouse snitch is not reliable, standing alone. And the eyewitness they are so happy about [Jordan] saw him [about two hours] before all this occurred. That would be like you and me being seen at a 7-Eleven an hour before it was robbed. That doesn't mean he did it.

"If we had gone forward on such an inadequate case and he had been found not guilty, when information did become available, he wouldn't have been able to be retried" because of double-jeopardy laws, Foran said. "I just don't understand that position, and I still don't agree with it.

"Police officers have their opinions about what is a good case and what is not a good case," Foran said. "We have our courtroom experience about what is provable and not provable to 12 everyday citizens. What seems patently obvious to them [the police] is not always obvious to citizens."

A decade after Armida's death, Kratz would not be swayed. "Even though we all don't look so great, this is the kind of thing that needs to be brought to light if, for nothing else, so that people who really have the power to fix the system make sure it doesn't happen again," he said. "I don't think anybody did anything intentionally or didn't do anything to let this piece of crap out. By the same token, could we have done a better job of selling it to them? I think we could have.

"There's not a cop in the world who agrees with every decision the DA's office makes," Kratz said. "Most of the decisions they make are right. Sometimes they make a wrong one. And when they make a wrong decision in a case like this, it's real human suffering we're talking about. We're not talking about credit card theft."

Etched in his memory

Almost every day for two years, Joe Thornton took the long way to his job, detouring through Fort Worth's north side to drive past Armida's house before heading south toward his desk at police headquarters. Though busy investigating other murder cases, Thornton often drove by the house again at the end of the day, just to remind himself of what had happened -- as if he wouldn't have remembered otherwise.

"At that point, I pretty much figured it wasn't going to be solved," Thornton said.

Ortiz had been arrested on a capital murder warrant within days of Armida's 1997 murder. When Thornton's investigation fizzled, Ortiz was not freed but was returned to prison for unrelated parole violations.

In the spring of 1999, Thornton was promoted to sergeant and transferred to the SWAT team. His file on Armida's murder went into a cabinet with other cold cases.

In July 1999, Ortiz was released by the state parole board.

A year later, another young girl turned up dead.

Next: A big surprise and a short marriage.

TIMELINE

1984: Detective Curt Brannan joins the homicide unit of the Fort Worth Police Department.

Nov. 25, 1990: Andy Ortiz is arrested in the burglary of a car, the first of his many arrests as an adult.

Sept. 4, 1991: Ortiz is accused of kidnapping a 13-year-old girl. An aggravated-kidnapping charge is dismissed as part of a plea bargain when Ortiz agrees to a nine-year sentence for earlier burglaries. He is paroled after nine months.

Aug. 8, 1993: Ortiz is accused of sexually assaulting a 15-year-old girl, but there isn't enough evidence to go to trial. He is returned to jail on a parole violation and is released after serving one year.

Early 1995: Ortiz first meets 13-year-old Armida Garcia at a convenience store and gets her phone number.

1995: Ortiz begins corresponding with and calling Garcia from jail, where he is doing time on a theft charge.

December 1995: Ortiz is released from prison.

Summer 1996: Nineteen-year-old Brenda Salazar moves to North Texas to pursue a job in the airline industry.

1997: Detective Joe Thornton joins the homicide unit.

May 26, 1997: Salazar's roommate returns from out of town and discovers Salazar's body in their apartment just after 5 p.m. She was killed either late on May 25 or early on May 26.

July 9, 1997: A 12-year-old girl is raped by a man matching Ortiz's description; fearful of reprisals, she decides not to pursue the case.

July 19, 1997: Ortiz tries to kiss Garcia and is rebuffed by her; they don't speak again for two weeks.

Aug. 3, 1997: Garcia is strangled in her parents' bedroom on Fort Worth's north side.

Aug. 4, 1997: A caller tips off Thornton that Ortiz might be her killer.

Aug. 5, 1997: A warrant is issued for Ortiz on a charge of capital murder.

Aug. 8, 1997: Ortiz is arrested in the killing; Thornton tries to get a confession from Ortiz but is unsuccessful.

Fall 1997: The Salazar murder case grows cold.

January 1998: Thornton gets a tip that someone may have seen Ortiz fleeing from Garcia's home the night of the killing, but he's unable to find the witness.

On TV: A Star-Telegram documentary about Andy Ortiz's crimes will debut at 8 p.m. March 9 on KTXA/Channel 21.