In re FitzGerald
By: Ember Tilton
On May 11, 1993, Amy FitzGerald was found dead in Vermont and the autopsy showed she had been asphyxiated a few days prior. The same day in Texas, Denise O’Brien saw a scratch on Gregory FitzGerald’s arm and he said to her, “Amy was dead, and that everything went okay but it wasn’t as easy as he thought it would be. She fought him all the way.” Prior to that, FitzGerald told O’Brien of a plan involving rental cars and plane tickets to avoid being caught. FitzGerald had even asked O’Brien, in April of 1993, for her help killing his wife Amy.
On May 14, a Detective Higbee (what a great name! you couldn’t make this stuff up better if you tried) spoke with FitzGerald. FitzGerald immediately did the thing all lawyers will advise you never do. Yup, you guessed it, he talked to the police. Then he did the next thing you should never do while talking to the police – he lied. He said he wanted to fly to Vermont but there were no plane tickets. This lie is easy to disprove, because airlines actually keep records of those things. On May 16, FitzGerald goes to Amy’s funeral, but not until after he tells his cousin, Robert, that he “done it.” But don’t face-palm just yet, it gets better. FitzGerald tells Robert to tell the police that Amy was killed in the bedroom and then dragged into the bathroom; this is something only the murderer could know. And last but not least, he then goes and tells his brother, Leo, that he had been there but that Amy was already dead.
Needless to say FitzGerald gets arrested and charged with murder. At trial, the jury hears from Leo, Robert, Denise, and Higbee. Additionally, they hear from an FBI agent, Agent Oakes, about hair samples from the murder scene which he identified that were likely matches to FitzGerald’s hair. Again, needless to say, the jury convicted him. He was sentenced to life in prison. But as usual, here’s where it gets interesting … well I mean, if you’re a lawyer or part of our usual readership.
FitzGerald’s first appeal from the conviction was not successful and his conviction stood. SCOV even noted there had been “strongly probative and abundant evidence of petitioner’s guilt.” But almost immediately after that, he and his appointed counsel filed for post-conviction relief (PCR). And oh boy, did they ever! Yup, no less than 30 claims of defects in the trial which SCOV arranges in to 4 major categories, 1) prosecutorial misconduct, 2) ineffective assistance of trial counsel, 3) ineffective assistance of appellate counsel , 4) and sentencing errors. This PCR case must have been eating its whole grain oats because it survived for 10 years as an active case in the trial court. Finally, the judge had enough, and granted the States’ motion for summary judgement. The judge concluded there was no evidence sufficient to warrant a trial on the claims. That decision was appealed and SCOV affirmed except on three specific claims of ineffective assistance of counsel for failure to “1) conduct a pretrial investigation, 2) prepare a defense, or 3) interview witnesses.”
Back with the trial court, the case goes to evidentiary hearings, where a highly experienced defense expert testified that the murder trial lawyer did a poor job. In fact, so poor that his performance fell below the standards for competence. He testified that specifically, trial counsel started off with a terrible jury draw and disparaged his own client in hopes of taking the sting out of the bad evidence to come. The expert thought this was a bad decision since any defense lawyer should know that you want to show how your client is innocent, not just give them advance notice he’s a bad guy. Next, he testified that trial counsel failed to create a theory of the case. A theory of the case is a general theme or set of circumstances which if believed in whole or in part by the jury would return a favorable outcome. For example, “twas the who butler done it” might be a viable theory of the case. Finally, the expert testified that the trial lawyer had failed to adequately explain FitzGerald’s trial rights and the state’s plea offer to him. The trial court says that’s concerning but the evidence was still too strong and it really wouldn’t have made a difference. Or at least, FitzGerald hadn’t shown how it could have made a difference had a better lawyer represented him, so the judge again granted summary judgment for the State and the case is appealed to SCOV again.
BUT WAIT! Stop everything! Hold the presses! Remember that FBI agent? Agent Oakes? Remember those hair samples? Well. The U.S. Department of Justice, in collaboration with the Innocence Project, issued a letter regarding hair sample science. The Vermont Defender General asked SCOV to wait just a minute! Based on that letter, there was good reason to believe the hair comparison was, as they say, totally bogus. The Department of Justice admitted that in 1994 microscopic hair comparison analysis was, essentially, “junk science.” Specific things Agent Oakes had testified to as an expert were just not right – even his opinion that there was something of a match. So in 2017, SCOV puts the appeal on waiting status and lets the PCR court conduct further proceedings to investigate this new finding. Wow, right? Ya, it’s looking better for FitzGerald right? Nope, not even close.
In April 2019, the PCR court grants summary judgment for the State again saying that it was clear beyond a reasonable doubt that the jury would have reached the same verdict even without the testimony about the hair.
Now finally, SCOV takes up the case again, and again affirms in the decision which is the basis of this whimsical summary. SCOV says that:
1. The PCR court did not err when it decided the plea deal was inaccurately relayed but the evidence showed FitzGerald would have rejected it anyway. The PCR court’s findings of facts will not be overturned unless they were clearly erroneous, which SCOV says they weren’t.
2. The PCR court did not err when it decided that even though the cross-examinations of Higbee and Leo weren’t up to snuff, that it would not have changed the outcome if there had been a better cross-examination.
3. The PCR court did not err when it decided that the other issues did not affect the outcome. Remember the bad jury draw and the lack of a theory of the case? Well, those things weren’t a big deal either.
SCOV spends a good deal of time explaining why these errors do not require a new trial. First, the law requires that SCOV “take into account all of the evidence before the jury.” And thus, the strength or weakness of the evidence is a relevant consideration. The burden is on the Petitioner, in this case FitzGerald, to show that had the errors not occurred that the outcome would have been favorable to him. FitzGerald failed to do that. One of SCOV’s bigger issues is that trial counsel’s failure to create a theory of the case wasn’t really that much of a failure because it would be hard to imagine a defense that could have explained away the evidence. Sure, O’Brien may have been influenced by the potential for a book deal, but the other witnesses weren’t. Then there were the lies to the detective. Why would he lie if he was innocent? Even the defense expert when asked what a good theory of the case would have been, had no answer. FitzGerald tried to create a new theory on appeal but it too falls apart. There just wasn’t any explaining it away.
It is fairly safe to bet that the verdict would turn out the same way if it were tried again – even if the lawyer tried a different strategy and even if the hair evidence was excluded. There was just too much other evidence. However, the timeline here is a little bit startling. The PCR took 10 years… and then 5 more. After 17 years of litigation, could this be the end of the road for this case? Only time will tell…