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 excl