Her therapist made her sign a release for liability if she committed suicide. She killed herself, but Walker pays for it.
The State of North Carolina vs. Tony Walker... The crime that wasn't.
Written by G. M. Larkin, MD with comments by Tony Walker
Editor: Barbara Jean McAtlin
Rarely is a case so contrary to physical reality as the case of Tony Walker. A reasonable person would not choose to convict based on the absolute physical evidence presented in court, as well as the highly questionable behavior of both the prosecutor and the judge in open court. This is a scathing report of the law going awry and convicting a defendant for a crime that never was. Tony Walker was tried and convicted in Guilford County, North Carolina, for the first-degree murder of his lover, a married woman named Mary Sue.
Walker, also married, wanted to break off the affair and had a last rendezvous with Mary Sue at a local motel. When Walker told her of his wishes to break off the affair, she took his legally registered revolver that was lying on a bed-table, pointed it to her head and shot herself before he could react. Walker immediately called the police and waited for them.
Tony:
"I was convicted of the murder of a married woman with whom I was trying to break off an affair. She grabbed my revolver, in its holster on a night table, and shot herself when I told her this was our last encounter.
When the paramedic crew arrived, they took Mary Sue to the hospital where she was pronounced dead. Mary Sue had a long psychiatric history. (1) She had also threatened suicide several times. Her therapist at a mental health clinic had her sign a release of liability, "a suicide contract," stating that if she did kill herself, as she had told the therapist she intended to do, the therapist would not be held liable. If a psychological autopsy had been done, it would have clearly indicated that Mary Sue had the inclination, ability and, in the motel room, the sudden opportunity to impulsively carry out the act. (2)
The uncontested physical evidence also pointed to a self-inflicted wound. The wound was a contact gunshot wound to the right temple area. Both forensic pathologists who testified in court, Dr. Radisch, currently Deputy Chief Medical Examiner, and Page Hudson, former Chief Medical Examiner Emeritus of the State of North Carolina, opined in no uncertain terms that the cause of Mary Sue's death was a self-inflicted gunshot wound. Indeed, they both stated under oath that in all their years of practice, they had never seen a homicide where the gunshot entry was in the location that was presented in this case.
To discount these opinions seriously jeopardizes the ability of the Medical Examiner's Office to make a determination of the manner of death, even if such determination is an administrative decision. There is no evidence to suggest that Walker fired the gun.
Even the time of the shooting is questionable. The state relied on a witness who had a room above the room of Walker and Mary Sue. The witness claimed that he heard "some noise" -- but not a gunshot -- at approximately 8:30 p.m. The state relied on this testimony to estimate when the shot was fired. Walker was out of the room at an ABC (Alcoholic Beverage Control) store at that time. He produced a receipt with a time stamp on it proving his whereabouts at 8:30 p.m. Therefore he has an alibi for the time the state claims the shot was fired. There is no reliable estimate of the time the gunshot occurred other than Walker's estimate, which was discounted by the jury.
Walker's first trial was declared a mistrial when an investigator admitted to lying about some of the evidence that had been presented. Even though there were grounds for the mistrial due to the prosecution's case, double jeopardy was waived because of "manifest necessity." Walker was retried in front of the same judge and the same tainted evidence was admitted for the jury's consideration.
Tony:
"The results of the "'Trace Metal Test"'was testified to in open court before the jury. It wasn't Repeat: was not ever written down in an official report by evidence specialist Noah of the Greensboro Police Department. Noah did testify to this fact in open court. I have news articles to back this. This testimony was one of the main reasons my attorney called for another mistrial and dismissal in my second trial."(3)
Apart from the usual ineffective counsel and prosecutorial hiding of some exculpatory evidence from the defense, endemic in virtually all criminal trials, the judge left the courtroom for about twenty minutes while the trial was in progress. Before defense counsel could voice an objection, he immediately recessed when he returned. When the lawyer attempted to object, the objection was overruled because it was not contemporaneous.
The physical evidence deserves more comment because it shows a clear and total disregard of reality. As you will see below, there is no argument that a contact revolver bullet caused death by suicide (4).
When a gun is fired, it discharges a bullet and several other passengers exit the barrel of the weapon. With a revolver, gas escapes from the space where the cylinder and barrel meet, causing a "blow-back" of gunshot residue onto the hand that holds the weapon. In a case of suicide, some of this residue remains on the skin, limited to what is called an abrasion collarette, circumscribing the wound. There is usually no residue on the skin in the immediate external area around the wound. However, the gases now under the skin attempt to exit by taking the path of least resistance by blowing back. This frequently peripherally lacerates the entry wound , causing a stellate laceration with one or more radially aligned lacerations, as was found in this case. Soot and burned or unburned gunpowder are frequently found in the wound track, especially around the perforation in the skull. Char is also often found due to the transfer of heat from the bullet and the tag-along gases.
Gunpowder residue would be found on the hand holding the weapon -- a mixture of burned and unburned particles, and if performed properly, in proper time, either a neutron activation analysis or an atomic absorption analysis should be positive. Its pattern would suggest if the test person fired the weapon.
Typically, there is a deposit of this blow-back residue on the posterior surface of the web space between the thumb and the index finger of the shooter. The index finger (typically the finger that grips the trigger) will have some of this deposit along its lateral surface. This gunshot residue can be washed off or can be undetectable after a period of 2-3 hours in a live person, but it remains present on a cadaver. No evidence has been brought to this author's attention that such a test was ever done on the dead woman's hand in this case. This is a simple, clear-cut test that would have resolved the issue of exactly who fired the weapon. If a typical powder residue was found on the woman's hand, Walker could not have fired the weapon -- period, end of case. Even if Walker had gunshot residue on his hands, it would only mean he had held the weapon at some point. After the gun was fired, the residue on his hands would have had a different pattern and intensity. The gunshot residue test that was performed on Walker's hands tested negative.
Currently, there are three different tests used to detect gunshot residue. These are neutron activation, atomic absorption, and trace metal testing. The most specific of these tests is atomic absorption, while the least specific, but most sensitive, is the trace metal test. "Positive" testing depends on the detection of several metallic ions -- barium, lead, and iron in certain ratios. The metallic ions detected are dependent on the type of powder used. It is the mixture of metallic residue and its pattern that is proof-positive. Certain elements in certain concentrations determine if the residue detected is in fact due to holding and firing a pistol or due to turning a door knob. It appears that neither of these more specific tests were performed or, if they were, the results were not revealed to the defense and it must be constructively assumed that the test was proof positive for Walker.
In both the neutron activation and atomic absorption tests, the hand is wiped with a dilute nitric acid solution and the swabs are sent to a crime lab for evaluation. Trace metal testing involves painting the hand with a reagent and shining a special light on the hand. The special light will cause the hand with metallic particles to glow. Trace metal testing detects the deposit of metallic ions left when a metallic object is held. It is not diagnostic of holding or firing a gun. A trace metal test can be positive after holding a key, a spoon, a paper clip, or any other type of metallic object. Depending on the degree of contact, some or all trace metal can be washed off or some trace metal can remain even after washing. This test can be "positive" for as long as 2 days, and is not specific for the handling of a gun. Unless the outline of the weapon is clearly defined, this is a purely subjective test. While not proof-positive, certain generalizations can be stated as background.
A person intent on shooting himself or herself in the head shoots in one of three elective sights: the temple, forehead, or in the mouth. The "handedness" of the person has no probative value as some hold the weapon barrel with their dominant hand and shoot with the other hand. Therefore, no conclusions can be drawn from this. The old statement about finding fingerprints on a gun handle is the invention of the mystery novel writer. Fingerprints are rarely found on a weapon. No fingerprints were found on the weapon in this case; the gun simply cannot with any certainty be placed in Walker's hands. A suicidal gunshot wound to the temple is invariably directed "upward" with the mistaken impression that the cerebral cortex is the critical part of the brain to hit. This is also typical of shots in the mouth that are invariably directed "upward" toward the frontal area. These wounds are not always fatal. In this author's 30-years of practice, I have never -- repeat, never -- seen a homicidal gunshot wound directed upward at that location. This agrees with the experience of both Drs. Radisch and Hudson.
Assuming this assertion to be correct and the woman shot herself, there was no criminal act on Walker's part. He does not appear to have even touched the weapon after the fact. It is a major deficiency that Walker's lawyers did not understand this or chose not to pursue this avenue for an acquittal. Add to this the profile for suicide -- again not realized by the defense counsel -- and the case turns into a cloud of foul smoke.
To counteract this exculpatory evidence, the state countered that Walker was abusive toward this woman -- a woman who was at best only marginally stable. Her surviving family suggested that he "was abusive" to her on several occasions. He shot her in the head and then changed the scene to make it look like a suicide.
Tony:
"I was accused of abuse toward Mary Sue, but never accused of abuse toward my wife, Cathy. This was the hearsay testimony used against me from mainly family members and friends of Mary Sue."
According to Walker, the detectives deliberately lied on the stand to secure a conviction. The number of men who abuse their wives physically and verbally is incalculable, but abuse does seem to be relatively widespread. The number of men who kill their wives would be miniscule in comparison.
To equate abuse with murder is an erroneous equation. Even if these accusations were true and Walker did abuse his wife, this connection is tenuous and absent of any other linking evidence. I understand that the prosecution used previous spousal abuse as an element of predilection for violence in an attempt to show a pattern.
A man who allegedly beats his spouse or significant other does not necessarily murder her; a simple search through the records of any police department would reveal that more men abuse, rather than kill, their significant other by a huge margin. One does not equal the other.
The results of the negative trace metal test performed on Walker was never reported, never written down, and never told to the jury. This alone meant that the jury did not deliberate with a full deck. Knowledge of this negative test result would have resulted in a different decision by the jury without a doubt.
Walker has consistently claimed complete innocence. There is compelling evidence to suggest that this is so. At the least, the evidence raises more than reasonable doubt. The evidence even meets the Murray v. Carrier and Schlup v. Delo criteria for reversal.
The short notes below relate to the ridiculous theory proposed by the state and then accepted by the jury. The prosecutor cannot make pigs fly no matter how hard he tries. It cannot be done, and the defense attorneys did not know how to refute this assertion relative to the gunshot residue.The other errors concerning this case are out of my area of expertise.
Mary Sue's family members have stated to many people that if Tony were acquitted they would kill him. Tony does not indicate who said what to whom and when, or how he got this information.
Police Evidence specialist Noah stated that he and Detective Hill discussed his findings (concerning the gunshot residue) on several occasions.
After nine years, Tony finally received a transcript of his second trial from (name not legible). He had been told previously that this person did not possess the transcript. (4)
Fourteen pages of the 1600-page trial transcript are missing. These fourteen pages contain the critical testimony about the trace metal evidence.
Tony:
"I have only received 425 pages of my second trial transcript out of 1600 pages, of which 14 pages are missing: These fourteen pages contain the critical testimony about the trace metal test. This was from the "appellate defenders office" that did my appeal."
It is just too convenient for the state that critical parts of a trial transcript get lost. Unfortunately, this is a common happening in North Carolina. If we have laws in a free society designed to protect the innocent citizen -- to keep him or her out of prison because of a false charge and to separate the guilty from the innocent -- the jury in this case did not fulfill its mission. If our Justice System deteriorates to an Injustice System, we all become law unto ourselves resulting in anarchy. There will be no sense of fair play and vigilantism will abound. Walker is a victim of a miscarriage of justice and his case cries out for revision.
Footnotes
(1) Mary Sue had a lively mental health record, and was considered a suicide risk by the therapist who was treating her. There was a real not contested potential suicide risk. [back to story]
(2) This is a detailed procedure used in some medical examiner's offices to attempt to determine if a death is in fact a suicide. It is a study performed by psychiatrists, psychologists forensic pathologists and other investigators that tries to discover what the person was doing, and how he/she felt during the last days of life. It can help the medical Examiner make the determination of the manner of death.[back to story]
(3) The physical evidence as stated by both Dr. Hudson and Dr. Radisch also indicated with no ambiguity that the gunshot wound to Mary Sue's head was self-inflicted. Having known Dr. Hudson, I believe he would not have been so strong in his opinion without cause. Dr. Radisch was equally certain that this was a self-inflicted wound. Unfortunately, the doctors' statements were a gift to the defense that was not appreciated. [back to story]
(4) A complete trial transcript is necessary to perfect an appeal. "Lost" portions of the transcript should always suggest some evidentiary problem with the case that the state is trying to hide.[back to story]
Tony A. Walker #0421609
PO Box 310
Polkton, NC 28135
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