Careful observers of the criminal justice scene in my part of the world note that Federal prosecutors file and pursue a lot more conspiracy prosecutions than do their State court counterparts. Many assume, I believe, that this is because conspiracy prosecutions require special investigative talents found only in the Justice Department and the various Federal investigative agencies.
“It ain’t so.”
A Texas prosecutor cannot convict anyone on the uncorroborated testimony of an accomplice; Federal prosecutors can. That’s the difference.
The rule followed in Federal Court allows a jury to convict solely on the testimony of a person who was himself a part of the criminal enterprise—if the jury believes the testimony. The jury is instructed that they should weigh such testimony very carefully, but they may believe it and base their verdict on the accomplice testimony alone. In a Texas court, on the other hand, the jury is instructed that it may not convict on the testimony of an accomplice, standing alone. They must find that there is other, additional evidence independent of the testimony of any accomplice that tends to connect the defendant to the commission of the offense.
The Federal court rule assumes that the jury will be able to sort it out, while the State rule emphasizes the fact that a good liar could not only shift his own blame to his associates, but could also involve entirely innocent persons for reasons of his own.
The Federal rule better enables the prosecutor to ferret out crime, while the State rule better protects innocent citizens from criminals who would implicate them in order to gain some advantage for themselves.
In another story published in the Voice for the Defense, a situation in which a murderer and the man who hired him to commit the murder were able to obtain substantial benefits to themselves by offering testimony implicating jail guards in the killing is described in detail. That case exemplifies what is wrong with the Federal rule, in my opinion.
The occasional case in which only an accomplice knows of a criminal’s complicity in a serious crime illustrates what’s wrong with the State rule.
The State rule ends up requiring better police work than the Federal one. The State law enforcement officer who wants to prosecute a criminal conspiracy must penetrate the circle of criminal confidants with a non-criminal witness who will not require corroboration. A DEA agent who can turn one member of a drug cartel, or an FBI agent who can turn one member of a computer fraud conspiracy or an interstate auto theft ring, can obtain indictments, and the U.S. Attorney can obtain convictions, on the testimony of that one witness. Moreover, once the prosecutor is able to prove that any overt act was committed in furtherance of the alleged conspiracy, all statements in furtherance of the conspiracy alleged to have been made by any member of the conspiracy become admissible against all other alleged conspirators, as an exception to the hearsay rule. (The overt act can be as simple as making a phone call, and need not in itself involve illegality.)
The State prosecutor—who must get past the threshold requirement of showing that there was a conspiracy and the defendant was part of it in order to take advantage of this rule—must do so with non-accomplice testimony.
I have dilated a bit on the subject of corroboration of accomplices so that you can more readily understand why a Texas peace officer would have done what my client did in the case I’m about to describe.
Without further ado, then, the story of Will Flowers.
Milt Musgrave spent some of the ’50s, virtually all of the ’60s, and a good portion of the ’70s in California prisons. I lost track of him after the trial I’m about to describe and can’t tell you how he spent his time since (though both of us could guess with a high degree of probable accuracy). He drifted into Dilley, Texas, a dusty little Texas town just south of San Antonio, one day in the late ’70s. He was headed to Mexico, but came up about 100 miles short because he ran out of bus fare.
He hung around Dilley looking for some sort of work. He made no bones about having just been paroled, and told everybody he just wanted to pick up a little money and get back on the bus as soon as possible.
Now, Dilley didn’t have any other parolees in residence, much less ones from California, so Milt became a focal point of every local conversation within two or three hours. Dilley had a three-man police force, and the Frio County Sheriff was up the road a piece in Pearsall, so the constable, Will Flowers, and his brother-in-law, the highway patrolman, played no small part in the maintenance of law and order in and around Dilley. Musgrave came to Will Flowers’ attention within an hour of his arrival.
A constable’s jurisdiction covers the same geographical area as a justice of the peace (usually no more than one quarter of a county), and his primary function is serving papers for proceedings in the justice court. He is a peace officer, however, and in areas like Dilley, where the policeman’s authority ends at the city limits and the deputy sheriff may be 30 minutes or more away, the constable plays a significant role in maintaining the peace.
Will Flowers had an abiding interest in law enforcement. Not only had he obtained a two-year degree in law enforcement studies at Uvalde Junior College; he now taught a course in that same curriculum. He took being a lawman very seriously. When he heard about Musgrave, he decided he’d better go have a talk with him, just to feel him out and see what he was up to. It couldn’t hurt.
Will didn’t wear a uniform, and his boots and Stetson wouldn’t have told Musgrave anything, since every other man in town was dressed pretty much the same way. It’s not hard to guess that his eyes must have been drawn to the six-pointed star Will displayed prominently on his shirt pocket. The two men looked each over carefully, mentally circling and sniffing like two dogs on first meeting.
Finally, Will spoke: “What brings you to Dilley? Anything I can do for you?”
Musgrave told him how he’d run out of bus fare and was just looking for temporary work to earn enough to catch the first available bus on to Mexico.
“I don’t mean to stay, officer. I’ll be on my way just as soon as I can find a few hours work and earn the money to keep traveling.”
What Will Flowers should have done was to buy Milt Musgrave a $2.00 hamburger and a $6.00 bus ticket to Piedras Negras, across the river from Eagle Pass. What he actually did was to help him find a two-bit job for the next day and a four-bit room for the night and then take him home for some home cooking.
At supper that night, Will’s Martha was a little peeved at him and more than a little afraid of Milt Musgrave, particularly when his entire conversation consisted of recounting his prison experiences over the last 20 years and more. She was shocked to learn that her “guest” had spent 21 of the previous 23 years as a guest of the California state prison system.
Will, for his part, was absolutely fascinated by Musgrave. That’s why he’d brought him home. He’d studied about guys like Milt Musgrave, of course, but he’d never had a chance to get to know one up close like this.
Musgrave was a magical storyteller, and kept both his hosts on the edge of their seats as he recounted his prison experiences all evening, until well past midnight.
By the time Will drove him into town (Will and Martha lived in a mobile home on a little acreage outside town), Milt and Will were talking about how wasted Milt’s life to that point had been, and how he’d really like to find a little place like Dilley to settle down and live a normal life.
The job Will found him lasted for several days, and on each of those days he picked up Musgrave and took him home to supper. Martha came not to mind, as Musgrave had a never-ending supply of stories, and both she and her husband had become interested in helping him turn his life around and become a productive citizen.
One evening while Martha was washing the dishes and the two men were alone, Musgrave (whose favorite pastime was saying things for the shock value) told Will that the local bank was just a little crackerbox, and that he, or any other experienced robber, could knock it over and get away clean. Will didn’t like even discussing the subject, and worried, fleetingly, that Musgrave might be considering doing just that. He just laughed it off, though, and changed the subject.
However, the subject came up again and again in their conversation over the next few days, and it became plain to Flowers that Musgrave actually wanted to rob the local bank. Musgrave mentioned knowing “some boys in Chicago” who could help rob that two-bit bank and be gone before sleepy little Dilley knew what hit her.
Musgrave would later testify in Federal Court that he began to believe that Will Flowers wanted to rob his hometown bank with the help of Musgrave, and that he found it scandalous (I’m not making this up) because the constable had a lovely wife and everything going for him.
To teach Will a lesson, he said, he contacted the FBI in San Antonio at that point. He explained the situation as he saw it, and it was agreed that he would tell the constable that his Chicago connection would be calling and they could talk about knocking over the bank.
Pursuant to that scheme, an FBI officer called Will Flowers on the phone, pretending to be “Chicago,” to see if he could get the young officer to make any incriminating statements on the telephone.
A simple code was devised and relayed through Musgrave, whereby language common to the local oil-and-gas industry could be used to discuss robbing the bank while ostensibly discussing drilling a well.
Two taped telephone conversations ensued, in each of which the young constable could be heard quite clearly discussing (via the prearranged code words) robbing the Dilley bank. The constable’s assigned duty was to start a brush fire south and west of town that would divert not only all law enforcement but virtually all able-bodied men in the area away from town during the robbery.
Chicago would go in and commit the actual robbery, while Musgrave manned the getaway car. They would drive north and east out of Dilley and meet up with Flowers on a dirt road and give him his share of the take.
In order to assure synchronization of efforts, the conspirators were to meet at a restaurant/motel outside Pearsall on the way to San Antonio. Flowers was instructed to bring a roll of electrical tape, which the robber would use to tie up the employees in the bank before making his getaway.
At the appointed hour on the selected day, something on the order of a dozen or so FBI agents and Captain John Wood of the Texas Rangers were hiding in vans outside the restaurant when Flowers drove up. Will parked in the agreed place and, trying to be nonchalant, waited for Musgrave and Chicago.
On a prearranged signal, Captain Wood, located in a van on Flowers’ blind side, lifted his lanky frame out of the van and quickly approached the driver’s side of Will’s car, drawing his .357 magnum just before reaching the driver’s door.
“You’re under arrest,” said Captain Wood. “Keep your hands in sight and step out of that car.”
“Wait a minute,” said Constable Will Flowers. “This is my bust!”
There was a trial in Federal Court in San Antonio. He testified, and several local law enforcement officers confirmed his testimony that local officers just don’t think in terms of conspiracy prosecutions.
Will was going to follow Musgrave and Chicago to town and arrest them when Chicago entered the bank. The jury, thankfully, believed his testimony.
Several other things were almost as interesting as the trial itself. Captain Wood of the Rangers told us, for example, that in his entire career (which was a long and distinguished one), this was the only case in which he was involved that went to trial and resulted in a not guilty verdict. That says more than a little about the quality of his investigative work.
Immediately after the trial, an FBI agent who had been very much involved in putting the case together for the government and had personally taken custody of Will Flower’s service revolver when he was arrested, demonstrated a great deal of class when he walked up to Will outside the Federal courthouse, handed him his sidearm and holster, and said: “Here, officer. This belongs to you.”
The single most interesting moments came in cross-examination of Musgrave at the trial.
Will Flowers had originally approached Nick Rothe, a damned good criminal defense lawyer and my good friend, about representing him. Because Nick did not practice in Federal court at that time, he referred the client to me.
As a result, Musgrave knew his name, but not mine. He began calling Nick every time he was in his cups (Musgrave, not Nick, but that’s another story) to talk about the case. Nick, of course, taped the conversations.
We thus went to trial armed not only with the seven best words ever spoken by a defendant who had just been arrested, but with transcripts of a couple of hours of taped conversations with Milt Musgrave.
In those tapes, Musgrave claimed to have killed two men in the California penitentiary and beaten both raps by claiming to be a victim of psychomotor epilepsy and hence not responsible for his actions. He said he’d represented himself in court and was so quick a study that he had been called “brilliant in the courtroom.”
The tapes were entertaining, and demonstrated Musgrave at his most gregarious. Most entertaining from my perspective was the opportunity the transcripts gave me to ask 42 straight questions concerning devastatingly damaging admissions made by the witness—to which the witness’ unwavering response was “I have no present recollection.”