The Prosecutor, September-October 2014

No body, no murder? Not necessarily.

Williamson County prosecutors recently tried the estranged husband of a woman who disappeared more than 20 years ago for murder—even though her body was never found. Here’s how they did it.

In October 1991, Vicki Lynn (Johnson) Nisbett and her three sons, ages 7, 5, and 3, left her high school sweetheart and husband of about 12 years, Rex Nisbett. Vicki and the boys moved into their own apartment, she opened a separate bank account, and in November 1991 she filed for divorce to escape years of Rex’s physical abuse and drug use. She began dating other men and by all accounts was moving on with her life. Then the holidays rolled around, and Rex needed a place to live, as he was not fond of working. Vicki offered to let him stay at the apartment through Christmas for the sake of the boys.
    On Friday, December 13, Vicki got paid, deposited her $807 paycheck in her bank account, and paid her rent. On Saturday the 14th, she was getting ready to go to her company Christmas party when the arguing began. Rex did not want her to go to the party; he had already thrown away or hidden two different outfits that Vicki had planned to wear. Vicki’s friend and co-worker, Julie Coen-Tower, called around 2:30 that afternoon to make sure that she and Vicki were still on for the party. Vicki said, “Yes,” but she added that she and Rex were arguing about it.
    Julie called again at around 5:00 p.m. to find out what time Vicki would be picking her up. Vicki was very upset, saying that she and Rex were still arguing and that Rex had “just choked her, and that she hoped he had left bruises so she could use it against him” (presumably in the divorce and custody case). Julie told Vicki to hang up and come to her house to finish getting ready. At around 6:00 p.m., a man named Wayne Castleberry, whom Vicki had just recently met and was dating, called to inquire as to their plans for that night after the party. Rex answered the phone downstairs and Vicki picked up the extension in the upstairs master bedroom. Rex began yelling and proceeded upstairs screaming at Vicki to “hang up the phone.” She did. Wayne was the last person to speak to Vicki.
    Julie called back at around 6:15 to check on Vicki, and Rex answered the phone. He told Julie that Vicki had already left and was on her way to come get her. The party was scheduled to start at 7:00 p.m. at the Driskill Hotel in downtown Austin, about a 45-minute drive from where Vicki and Julie lived. Julie waited for her friend and called back between 6:30 and 6:45 to check on her whereabouts. Rex answered again, but this time he told Julie that Vicki was running late and had decided to go straight to the party without picking up Julie first. Remember that this was before cell phones, so the only way Rex would have known that Vicki had changed her plans was if Vicki stopped at a pay phone and called Rex to tell him. (And it makes much more sense that if Vicki had decided to drive straight to the party instead of picking Julie up, she would’ve called Julie to tell her, not Rex.)
    Vicki never showed up to the Christmas party. She did not meet Wayne afterward. No one saw her that next day, Sunday, and she did not go to work on Monday. Late Monday, Vicki’s supervisor called the police to report her missing, and he urged Rex to do the same (which he did).

The investigation
Officer David Proctor, who took the missing person’s report, noted at trial that when he arrived at the apartment it was “immaculate.” He recalled this only because he had been called to the apartment twice before in the two and a half short months that Vicki had lived there, and both times he had noted that Vicki wasn’t the tidiest housekeeper. The first call, in early November 1991, came when Vicki had a man over at her apartment and Rex had been watching through the windows. When Rex saw the two on the couch, he broke the window, crawled through it, and proceeded to assault the new guy. The second call was when Vicki had asked for assistance in getting a protective order to keep Rex away from the apartment. The officer gave her the information and advised her not to be alone with Rex Nisbett—advice she did not take, as only a few weeks later, she let Rex move back in for Christmas. On both occasions, the officer noticed that the house was messy, but as he took down information for the missing person’s report, he noted how clean the place was.
    Rex’s story was that Vicki had “run off” with some other man or that she had “run” to a friend’s house to “take a break.” He insisted that she did this all the time and that she would be back. Five weeks after her disappearance, there was still no word from Vicki. By that time, Rex had been evicted from the apartment because he was not on the lease, and immediately after he moved out, Captain Richard Elliott from the Williamson County Sheriff’s Office called Department of Public Safety Crime Scene Investigators to the apartment. Vicki’s disappearance, the lack of activity on any of her bank or credit card accounts, and the information he had gained earlier from Julie and Wayne convinced Elliott that if there had been an altercation between Vicki and Rex the night of the 14th, it probably occurred in the master bedroom where Vicki had been getting dressed for the party. That’s where law enforcement started their investigation.
    Devane Clarke, DPS’s Crime Scene Investigator, sprayed Luminal across the bedroom to reveal a pretty horrific scene. Two large areas lit up with the presence of blood, showing where the struggle likely started and ended. One was on the carpet near the entrance to the bedroom, and the second was in one of the closets. Although Clarke could not see any blood with the naked eye, he cut the carpet in the closet and found that blood had soaked down into the padding underneath. There was also a bloodstain on the drywall near the entrance to the bedroom (above the other carpet stain), and near the light switch there was a faint bloody handprint. Both tested positive for human blood.
    All three of the boys were in the apartment the afternoon Vicki disappeared. CPS interviewed the boys and they all repeated the same answer about their mother’s whereabouts: They all said, “Mommy went to a party.” When asked if they saw her leave the apartment, they replied that they did not see her leave but that “she went to a party.” Rex never allowed investigators access to the boys so they were not interviewed by police. 

Testing the evidence
When I first looked at this case, I was in awe of the handprint. How many times in the life of a prosecutor does she get a case with a handprint in human blood?  In 1991, DPS did not do DNA testing because authorities there were not equipped for it, so the first DNA tests were done by what is now the University of North Texas (UNT) Health Science Center. The right index finger and right palm print came back as a match to Rex Nisbett’s prints. The blood tested positive for being human blood, type A-positive. Both Vicki and Rex have that blood type, so it was unclear at first whose blood it was.
    Pieces of the carpet and padding from inside the closet were submitted in early 1992 to UNT for DNA testing. Because there was no way to collect DNA from Vicki, investigators collected blood from Vicki’s parents to do reverse parentage testing. The tests came back that the probability of Earl and Carol Johnson being the parents of the contributing “un-known female” was 99.999999 percent for the stain on the carpet and 99.82 percent for the stain on the padding. Earl and Carol had three children, two daughters and one son. The other two children besides Vicki were excluded (because the lab had their DNA samples to compare), leaving Vicki as the contributor of the blood. Due to the sheer volume of blood in the bedroom, it was clear to investigators that Vicki had been gravely injured in that room.
    Although investigators were confident that there was sufficient evidence to move forward, the two previous district attorneys did not agree, so the case was never presented to a grand jury. When I took office in 2013, I was contacted by Julie Coen-Tower, Vicki’s friend and co-worker, and asked to reopen the case. I met with Detective Robert Key and Chief Elliott and decided pretty quickly that the case was as good as it was ever going to get, so it was time to present it to a grand jury. Rex was indicted in March 2013.
     Over the last 23 years, Captain Elliott, now Chief Elliott, never let this case fall by the wayside. He reopened it about every five or six years (in 1992, 1997, 2003, 2007, and 2013). In an attempt to get more definitive DNA results, each time the case was reopened, pieces of carpet and padding from both areas in the bedroom were submitted to DPS or UNT. Each time that new testing was requested, new samples of either blood or saliva from Carol and Earl Johnson were also resubmitted.  
    In 2013, when I decided to reopen the case, I contacted Jane Burgett, fondly known as “DNA Jane” at DPS (who is fabulous to work with) and asked her if there was any evidence left worth testing. She went digging and found that Devane Clarke had taken the piece of drywall from the bedroom (which could not be tested in 1992 because testing was not sophisticated enough) and had frozen the entire sample. Jane also found that another technician had taken scrapings from the drywall with the handprint and had frozen those samples in 1997, along with some pieces of the carpet from the closet. She found that the carpet padding had been completely depleted by previous testing, but other than that, she felt that she had plenty to work with.
    The piece of drywall (which in March 1992 tested positive for human blood) came back in March 2014 with 99.9999999999 percent of the population excluded as a biological child of Carol and Earl, meaning that the “unknown female” contributor of that blood could not be excluded as their biological child. (It should be noted here that UNT and DPS use different terminology to explain their testing results, which complicates things a bit when you are presenting to a jury. Maybe someday we will get to a point where all agencies can simply say, “The blood belongs to Vicki.”)
    The scrapings from the drywall with the handprint (which also tested positive for human blood in 1992 and was a positive match to Rex’s right index finger and right palm) were found, in March 2014, to be a mixture of DNA. Rex, according to DPS, could not be excluded as a contributor, and the same “unknown female” from the other piece of drywall (the same biological child of Carol and Earl) also could not be excluded. In other words, the drywall stain was a mixture of Vicki’s and Rex’s DNA. The carpet from the closet, which had been frozen in 1997, also contained Vicki’s DNA.
    So people might read all of this and think, “What was the problem? Why wasn’t Rex ever arrested and tried for his wife’s murder?” Captain Elliott and his team did an amazing job investigating this case from the beginning, and it was never a question of “whodunit.” The problem has always been that Vicki’s body has never been found and Rex never confessed. And some prosecutors believe that with no body and no confession, there can be no conviction. After all, Vicki Nesbitt could have run off to California or Mexico, right? Well, that’s what Rex has been telling people for 23 years. But Chief Elliott and his team have known differently all along.
    Rex told the police that after Vicki “left for the party,” he stayed home all night with the boys. But three weeks after Vicki’s disappearance, a neighbor, Morris “Bubba” Smith, came forward and told police that Rex (whom he barely knew) had asked him to babysit his boys for an hour or two the night Vicki disappeared. Rex also asked to borrow Bubba’s car. Bubba said he thought it was odd that someone he barely knew would ask that he babysit three little boys and want to borrow his car, but he agreed. Bubba’s sister and roommate at the time, Lana Faye Reed, went to the video store to rent movies for Bubba and the boys to watch that night.
    Police were able to retrieve the receipt from the video store to verify that Lana Faye rented the movies on the 14th, the night of Vicki’s disappearance. Bubba said Rex was gone for about an hour to an hour and a half. He later added that when he saw his car the next morning he was upset, as some of the chrome pieces on the front end of his ’69 Chevy Nova had been knocked off and were sitting in the backseat. Also, the lock on the trunk had been broken. Rex had no explanation as to why the car looked as though it had been “four-wheeling” or why he so desperately needed to get into that trunk.
    One of the best moments in the preparation for trial was when I was searching through old photos of Vicki’s car, which was found abandoned in an HEB parking lot two months after she “ran off to California” (supposedly in her car, at least according to Rex). I came across a grainy photo of a checkbook on the passenger seat; it had been taken out of the glove compartment when DPS was processing the car. I got a magnifying glass and looked really closely at the checkbook but could make out only two numbers. Rex had admitted that he had written a check (check No. 698) from Vicki’s personal account five days after she “left,” and Vicki’s bank records revealed that she had been using the pad of checks that started at No. 651 and ended at 675. I contacted Chief Art Acevedo with the Austin Police Department and asked if his forensic photo lab techs could enhance the negative of this photo with only a few days’ notice. He agreed to help without hesitation. I sent the negative over, they enhanced it, and amazingly, it was the pad of checks numbered 676 to 700. So how could Rex explain writing a check from a checkbook that was in Vicki’s car that Vicki was supposedly driving on her way to California? That this book of checks was in Vicki’s glove box put Rex in his wife’s car after she “ran away” in it.

Admissions by omission
The one thing that seemed very revealing to me from the beginning was that Rex never professed his innocence. In a press conference when we first indicted Rex, I made the mistake of calling him “homeless” (as he was a drifter and difficult to locate). For the 14 months between his arrest and trial, I listened to Rex’s phone calls and visits from jail, and for 14 months I listened to Rex whine and complain and call me every name in the book about the fact that I had humiliated him by “lying” and calling him “homeless.” But never once did he call me a liar or complain to anyone that I also called him a “murderer.” He spent many hours on the phone with one of his brothers who helped Rex with everything he needed: procuring his medications, contacting witnesses, getting clothes for court, talking to his lawyers—but he never once asked his brother for help finding Vicki.
    If I were in the Williamson County Jail facing many, many years in prison for a crime I did not commit—and I knew that my spouse was out there somewhere—the only thing I would say to every person I encountered would be, “Please find my spouse!” And I would add something like, “I didn’t kill my spouse; I don’t deserve to be here!” The last thing I would say is what Rex said many times: “Well, if it’s God’s will that I go to prison …” Really? I don’t know about you, but I would be cursing God if I were truly innocent and sitting in jail falsely accused of murder. I would eventually call Rex’s brother to testify at the trial that in the 14 months that Rex was in jail, Rex had asked his brother for help with many things, but he never asked his brother to find Vicki. I made sure to emphasize all of these issues to the jury.

The plea offer
From the beginning, this case was about getting Vicki’s body back to her family. Her parents were not out for vengeance—they were not asking to see Rex go to prison for life; they just wanted their daughter’s remains. We made an offer of 15 years for manslaughter in return for Vicki’s remains, but Rex refused to give up Vicki’s body. He even said in one phone call to his brother that he would take 30 years, but that he just couldn’t give us what we wanted. I believe that he wouldn’t give us what we wanted, not that he couldn’t.
    
After Stobaugh
We went into this case shortly after the Second Court of Appeals overturned a Denton County murder conviction against defendant Charles Stobaugh that had gone to trial without recovering the victim’s body, so we had some idea of what we were facing. (Read about the Stobaugh case here: www.tdcaa.com/ journal/vanished-without-trace.) But we felt that our case was easily distinguished from Stobaugh. In the Stobaugh opinion the court noted, “There was no body, no murder weapon, no direct evidence, no witnesses, no blood, no DNA evidence, no incriminating statements by the defendant, and no evidence that a murder had occurred.”1 In our case, we had evidence that Rex and Vicki were arguing, that he had choked her during a fight the night of her disappearance, and that he lied and said he was home all night with the boys when he had actually left the boys with that neighbor for an hour or two. He also never explained why he returned with damage to the trunk lock and front end. More importantly, we had evidence of a struggle that caused Vicki to bleed all over the master bedroom; her blood and DNA were on the drywall, carpet, and carpet padding, and Rex’s bloody handprint was nearby. The best evidence? Testing proved that the DNA from the handprint was a mixture of Rex’s and Vicki’s DNA.

The jury trial
Our biggest hurdle in trial was that each time new DNA testing was conducted, new samples of blood or saliva were collected from Vicki’s parents. Twenty-two years of DNA testing made for quite a nightmare of chain-of-custody issues, and the defense team put us through our paces and did not miss a step. That was a rough day in court. But Paul Davis in my office created five wonderful charts, each about 4x6 feet, that outlined the 23 years of DNA tests and their results (see one of them below); they explained with color coding what evidence was submitted and when, along with the testing results.
    The defense strategy was to convince the jury that there really was not “that much” blood in the bedroom and to mention the other things that react to Luminol (such as horseradish and animal blood). The defense also stressed that Vicki could have just run away, but our witness from the DPS Missing Persons Clearinghouse did an excellent job detailing all of the efforts to find Vicki over the last 23 years, to no avail. There was no evidence that Vicki was alive and well, living it up in California or anywhere else. After they got the case, the jury deliberated for 22 hours and sent several notes saying they were stuck, 7-to-5.
    Once the judge read the Allen charge, the jurors went back into the jury room and started from scratch. They laid out all of the evidence and went through the timeline of the night of the 14th piece by piece. They looked at the charts that we had created that spelled out the results of 23 years of DNA testing and examined the pictures of the crime scene. (We were fortunate to get a really great jury.) They finally made their unanimous decision: Rex was guilty.
    I thought it was odd that the defense attorneys did not ask for a lesser included of manslaughter in the charge, as I had already decided that I would not fight them on it if they requested it.  But they didn’t ask. And the jury came back with a question after a full day of deliberation about whether they could convict Rex of a lesser charge than murder. Obviously, the jury was ready to compromise, but due to a judgment call on the part of his defense team, it was all or nothing.
    In punishment, we offered only two prior assaults: the one in 1991 just before Vicki’s murder and another in 2012 where Rex swung a bag with a brick or a large rock in it and smacked his neighbor across the face, causing a large laceration across the man’s cheek. In closing, I didn’t ask the jury for a specific number of years. How do you put a number on leaving three young boys motherless? I asked only that they consider what a mother is worth. The jury came back with 42 years. I did not ask them how they came up with that number, and I didn’t care; the message from the jury was clear enough.

The jury
When we spoke to the jury (10 jurors stuck around to meet with us), we found out the split was seven for guilty, four “wafflers,” and one staunch not guilty. (The “not guilty” juror had been on two previous criminal juries where the defendants were convicted and both cases had been overturned on appeal, so he had lost much of his faith in the justice system.) The “wafflers” got hung up on various things, such as one eyewitness testifying that he saw Vicki 15 days after her disappearance in the parking lot of the apartment complex. None of the jurors said that they had trouble with the fact that we did not have Vicki’s body.

The boys
Rex never allowed Vicki’s family to visit the boys alone (he said he “had to protect himself”) so Vicki’s family has had little to no contact with them in the last 23 years. Rex was and is an admitted crack cocaine addict who moved from place to place, and his boys were scattered to the wind most of their lives. He told these boys for 23 years that their mother abandoned them. The oldest son, now 29, has had a long history of mental illness and is currently in prison in the psychiatric unit. I sent a copy of a newspaper article about the conviction and a note detailing facts that I had learned about Vicki, Rex, and the boys to his psychiatrist in the hope that it might help his patient heal. The middle son, now 27, seems to be doing OK, considering his chaotic upbringing. The youngest son, now 25, moved to Colorado and works at a ski resort. None of the boys have contact with their dad, and as far as I can tell, none of them have ever spoken about that night.

Conclusion
Because of the dedication of Chief Richard Elliott, who never gave up on his promise to Vicki’s parents that they would see justice for their daughter, and with the help of three very special men, First Assistant Mark Brunner, Investigator Randy Traylor (who, incidentally, was a young sergeant who worked on this case 23 years ago), and one of my staff members, Paul Davis, we pulled a 23-year-old case out of the mothballs and breathed new life into it.  Mark helped me immensely when I struggled (after being out of the courtroom for so many years). Paul spent hours and hours unraveling the DNA testing web (with the help of Jane Burgett from DPS and Farah Plopper from UNT). Randy Traylor spent countless hours finding witnesses from 23 years ago and getting them here from all over the country.
    After my first meeting with Chief Elliott, I knew that he and Vicki’s family and friends would never be at peace until this case was resolved, one way or the other. We had all of this amazing evidence that a murder had occurred, yet Rex was still free and Vicki was still gone. Sadly, we did not accomplish our main goal, which was to bring Vicki’s remains back to her family. Instead, we will just have to be satisfied with a “guilty” verdict and a 42-year sentence.

Endnote

1 See Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014).