Routier files appeal for a new trial
Handling of alleged attorney conflict cited
By Holly Becka / The Dallas Morning News
Attorneys filed an appeal this week for convicted killer Darlie Routier,
arguing that she deserves a new trial because the judge didn't properly
handle her lead defense counsel's conflict of interest in representing the
only other suspect in the crime – her husband.
Ms. Routier's appeal, sent to the Texas Court of Criminal Appeals on
Monday evening, has been held up for four years by a faulty transcript.
The appeal says that no record exists of whether the trial judge conducted
a pivotal pretrial hearing after prosecutors filed allegations identifying
Darin Routier as a suspect in the June 1996 killing of the couple's sons.
Her conviction should be reversed because of the conflict-of-interest
issue and 13 other claims of trial error, the appeal says.
Chief felony prosecutor Greg Davis, who handled Ms. Routier's case, said
he didn't recall whether a conflict hearing was conducted. He said that
the point is moot because no conflict of interest existed because Mr.
Routier was "never developed as a suspect."
Ms. Routier was convicted and sentenced to death for killing 5-year-old
Damon Routier. She also was accused of killing 6-year-old Devon. She
insists that an intruder fatally stabbed her sons and then stabbed her in
her Rowlett home.
Appellate attorneys Stephen Cooper and Steven Losch said in the appeal
that because lead defense attorney Doug Mulder had represented Ms.
Routier's husband in a gag-order hearing related to the criminal case, the
court should have addressed the matter on the record.
The hearing on whether Ms. Routier waived any conflict concerning her
husband and Mr. Mulder is not found in the transcript. The appeal says the
hearing is noted in a docket sheet as having occurred and that attorneys
are quoted later in the transcript as saying it had happened.
"A defendant has a right to make a knowing and intelligent waiver of her
right to have conflict-free counsel," Mr. Cooper said. "But any waiver of
that right has to be on the record."
Without a record of what was covered in that hearing, it is unknown
whether she was properly admonished under the law about the nature of the
conflict, Ms. Routier's appeal says.
Mr. Routier maintains that neither he nor his wife committed the crime. He
could not be reached for comment Tuesday evening.
Mr. Davis said that "under oath, Darlie testified that Darin was not the
supposed intruder. ... To this date, we have no evidence to indicate he
killed the two children or took an active role in the crime. ... I don't
really think it's a point to be taken seriously."
Ms. Routier's direct appeal doesn't blame the crime on Mr. Routier but
notes that the conflict may have prevented Mr. Mulder from raising with
jurors the issues about "inconsistencies" in Mr. Routier's account.
The document says that Mr. Routier made "suspiciously inconsistent
statements" about his bluejeans. At the hospital, when police noticed
blood on them and a tear, Mr. Routier said he tore the jeans while working
on the backyard gate the previous day.
"According to the police report, he didn't explain how blood got on his
jeans because he said he came down the stairs naked and got blood on his
stomach and bare knees while trying to give CPR to Devon," the appeal
He later told police that he rushed downstairs naked when he heard Ms.
Routier scream and then went upstairs to dress after he gave first aid to
the children. At the bond hearing, Mr. Routier testified that he took the
time to put on his jeans before he rushed downstairs to find out why Ms.
Routier was screaming.
Mr. Mulder said Tuesday that he doesn't believe he had a conflict of
interest since his representation of Mr. Routier was limited to the
gag-order issue. Still, he said, he believes the case should be reversed
because of the faulty trial transcript.
"The thing that confounds me, she's entitled to an accurate record of the
things that went on and she doesn't have it," Mr. Mulder said. "I don't
know why they won't buck up and give her a new trial."
He said he's unsure when or how state District Judge Mark Tolle, who is
now retired, handled the issue. "That's why we have records," he said.
Mr. Cooper said his appellate brief wouldn't come as a surprise to Mr.
Routier because "Darin will be the first to admit he has been a suspect in
this case." However, he said, his citing the "facts which draw suspicion
toward Mr. Routier is a far cry from accusing Darin of committing this
crime. That's the same thing the state did to Darlie."
What is important, Mr. Cooper said, is that the trial court was aware of
the prosecution's suspicions of Mr. Routier, which would have made the
judge's resolution of the conflict issue crucial.
"Everybody in the trial was saying there was a hearing, and when you read
this record or the previous record, there's no hearing," Mr. Cooper said.
Ms. Routier's appeal also contends that the reconstructed version of her
transcript is illegal and irreparably faulty because it was created from
unauthenticated audiotapes. The trial court instructed an independent
expert to reconstruct that record after it found the original version
untrustworthy and filled with errors.
"Obviously, I disagree with that," Mr. Davis said. "The only portion they
don't have is the first 50 pages. I've read through them, and they
accurately detail what occurred on the first day of jury selection, and
I've already signed an affidavit to that effect."
Ms. Routier's appeal also says that the trial judge made an error by not
allowing a defense investigator to testify about how the prosecutors'
blood-spatter expert had previously told the defense team something
completely different than what he told jurors.
Ms. Routier's attorneys say the refusal amounts to reversible error
because the defense expert, Lloyd Harrell, had not known in advance that
prosecution expert Tom Bevel would change his story. Mr. Bevel told jurors
how droplets of Ms. Routier's and her sons' blood ended up on her
"It's one of the most critical mistakes during the trial that actually
prevented her from having a not-guilty verdict," Mr. Cooper said Tuesday.
"That not only built up the state's version but it knocked down the
defendant's theory of the case."
Mr. Davis, the prosecutor, said there's no evidence to show that Mr. Bevel
told the defense anything different than his testimony.
The Dallas County district attorney's office has 30 days to file its
response, though the Court of Criminal Appeals generally allows extensions
of up to six months for responses in death-penalty cases.