Ever since her daughter's funeral, she had been stalked by the same nightmare: Nancy is in the Pizza Hut in Austin, stripped naked in the washroom, shoved to her knees on the cold, soiled floor by someone unseen. Sobbing, she begs for her life: "Please don't hurt me. I have a baby, please, no, don't." Her pleas go unheeded, and she screams out: "Mama, help me!" Then comes a pause, however slight. And a gunshot. Loud. Loud enough to jolt Jeanette Popp from her sleep. Loud enough to send her into the arms of her husband. Loud enough to send her thoughts careening through a catalog of blame: If only she had been there when Nancy was a small child. If only she had stopped Nancy from marrying so young. If only she could have done something to stop her daughter from being murdered.
Nothing seemed to abate the nightmares--not the capture and conviction of two men for the brutal rape and killing, not the counseling she sought for her grief nor the Prozac she sought for her depression, not even the passage of time.
Though the dream hadn't recurred in several months, October 24, 2000, the 12th anniversary of her daughter's death, was occasion enough to trigger it. "It was never a good day for me," she says. As she did on every anniversary morning, she said a prayer for her daughter, standing in front of Nancy's imposing color portrait, which sat like a shrine in the hallway of Popp's modest Azle home in northwest Tarrant County. Nancy was such a natural beauty: cascading blond hair, butter-melting smile, soft blue eyes--the kind of All-American innocence that might make pageant judges take notice, or so her mother once hoped.
The phone rang just after 7 a.m. It was her brother-in-law, telling her she had better turn on the TV to Good Morning America. "It's about Nancy," he said.
Popp caught Ronnie Earle, veteran district attorney of Travis County, telling a national audience that the two men, Christopher Ochoa and Richard Danziger--who had spent the past 12 years behind bars for the murder of Nancy DePriest--were probably innocent. The Wisconsin Innocence Project had requested DNA testing on behalf of one of the convicted men. A third man, Achim "Joe" Marino, had confessed to the crime. A lot. He had even written to Governor George W. Bush, whose failure to take action on the confession would become an issue in the 2000 presidential campaign. DNA evidence appeared to corroborate Marino's story, which Austin homicide detectives had been reinvestigating since 1996.
Popp felt at once angry and betrayed. "My first thoughts were that those crazy bastards are going to let those killers go," she recalls. All these years she had believed that her daughter's murderers were right where they belonged: serving life sentences in some maximum-security cell. She had sat through Danziger's entire trial, listened as Ochoa became the state's star witness, testifying in gruesome detail about how he and Danziger had raped Nancy repeatedly, shot her in the head and then raped her again. Was all that a lie? Who would say such despicable things if they weren't true?
The way Popp tells it, she wanted answers, and she attempted to get them from the Travis County District Attorney's Office. Why had no one bothered to tell her about all of this? And what made them so certain these men were innocent? Ochoa, after all, had confessed to the crime.
Nothing was certain, the district attorney's office told Popp. They still thought Ochoa and Danziger were guilty. Police were now trying to link all three men to the murder.
Popp found these answers evasive and wanting--and claims it was just the beginning of the shoddy treatment she received from the district attorney's office (which the district attorney's office denies). Searching for more information, she e-mailed the Wisconsin Innocence Project, a legal clinic run by the University of Wisconsin law school, which takes cases like Ochoa's where DNA evidence might prove innocence. Lawyers at the Innocence Project told her that Austin homicide detectives had coerced a false confession out of Ochoa, breaking him psychologically, then force-feeding him details of the murder that only the actual killer would know. That coerced confession was then used to convict Danziger, who would suffer the most enduring injustice: a brutal beating from another inmate that resulted in permanent brain damage.
Proving innocence for Ochoa and Danziger was no easy matter. Although advances in DNA technology have helped exonerate 116 prisoners nationwide, the justice system doesn't like to correct itself. Recalcitrant judges want finality for their verdicts. Elected district attorneys resist DNA tests that might expose the ugly underbelly of convictions based on prosecutorial misconduct, faulty eyewitness testimony, junk science and coerced confessions. Victims become emotionally invested in the guilt of defendants and pressure prosecutors to stand by their convictions.
Ronnie Earle would argue he was not one of those prosecutors, and Jeanette Popp was clearly not one of those victims. She continued her own personal investigation and had the Innocence Project send her Marino's confession, which seemed more credible than the macabre details of Ochoa's statement to police. She learned the results of DNA tests, which conclusively proved that Marino alone had raped Nancy. Popp empathized with the mothers of the two wrongly convicted men--they had lost their sons for 12 years, the same 12 years Nancy had been lost to her. She felt compelled to help the men and didn't hesitate when Barry Scheck, the co-founder of the Innocence Project and one of O.J. Simpson's attorneys, asked her to speak out against the continued incarceration of Ochoa and Danziger. In the media, she castigated the district attorney's office for not acting more swiftly and asked that the men be released so they could spend Christmas with their families.
The injustice she witnessed in the case of her daughter's murder ignited her conscience, and she traveled around the country advocating the abolition of the death penalty in all cases. Popp became the darling of capital punishment foes as they lobbied the Texas Legislature to mandate a two-year moratorium on the death penalty. She riveted legislative committees, moved talk-show audiences to tears and spoke tirelessly at churches, rallies and college campuses--mostly at her own expense. She gained credibility for her cause because she defied expectations as the mother of a murder victim who embraced reconciliation rather than revenge. Hers was a powerful story--an anomalous alignment of victim and killer, compassion and justice--told with down-home authenticity by a woman who dropped out of school in the eighth grade. And to tell it in Texas, the death penalty capital of the world, made her seem that much more courageous.
"She is the most effective and important asset that we have in the anti-death penalty movement in Texas today," says Scott Cobb, political director of the Austin-based Texas Moratorium Network. "My hope is that when someone in the national media is wondering about the problems of capital punishment in Texas, Jeanette Popp will be at the top of their Rolodex."
And yet she is not without her detractors. Prosecutors question the suddenness of her activism, finding her at times manipulative and more interested in the cameras than the cause. But what seemed like an overnight conversion was actually years in the making, born from a family pedigree of poverty, suicide and murder.
"I know how a mother feels when somebody kills her child," Popp says. "Whether it's the state or someone else, the pain is the same. It hurts just as bad."
Some people have no business raising children, and for the longest time Jeanette Popp thought she was one of them. It wasn't as though she had the best model for parenting in her own mother, a stunningly attractive but hot-tempered woman with five daughters and a penchant for remarriage. How else could she survive the abject poverty in which she found herself?
Young Jeanette was the smart one, sticking her nose in a book whenever she felt like escaping. Some old press clippings about a murder in her family once caught her attention, and she grew saddened by a cousin who had slain both his parents after they kept him locked up in their house. His parents were too strict, and he was too crazy. He'd spend the rest of his days in a state hospital in Wichita Falls. Another cousin was stabbed to death in a Fort Worth gangland slaying, and a third died in a pool-hall brawl when the bartender shot him in the back. Her aunt would murder her uncle in a drunken rage, and one of her sisters would attempt suicide, her own form of escape. "There were so many violent deaths in our family, I came to the conclusion that any violent death was wrong," Popp says. "We have had suicides, murders, just horrible incidents--way more than the average family."
But hers was nothing like the average family. At 12 she began dating Randall, the boy next door; at 14, her mother insisted they marry. Though Popp was hardheaded and outspoken to a fault ("If she thought it, she said it," says her sister Jo Ann Graham), she couldn't tell her mother no. Encumbered by marriage and pregnancy at 15, she dropped out of junior high. Her first daughter was Rita, but children raising children created all sorts of marital distress. At 16, Popp divorced, leaving Rita in the permanent care of her mother-in-law and Popp free to be a teen-ager again.
Of course, that didn't last long, not once she met a handsome Air Force sergeant at the Clover Drive-In in Fort Worth. At 18, she married again, was pregnant again: First came Nancy in 1968, then Eddie 14 months later, though Popp admits she still lacked the "motherly instincts" to be a good parent.
Although they were living off base in Spokane, Washington, her husband seemed to be spending large blocks of time in Japan--on duty--or so she believed until a friend told her that also stationed in Japan was her husband's girlfriend. Nancy was only 4 at the time, Eddie 3, but Popp was so angry and hurt, she packed up her car and left her husband and kids. "I just wanted to get away," she recalls. "I thought when I got settled, I would send for my children." Her husband had other ideas, divorcing her and taking the children to Japan. Despite her diligence, she says, it would be five years before she would see them again.
When Nancy was 13, she chose to live with her mom, who had moved to the small town of Graham just northwest of Possum Kingdom Lake, where Popp's grandparents lived. Eddie would soon follow, but he brought his resentment for his mother with him, remaining incorrigible and impossible to manage.
Nancy, on the other hand, was fun-loving and forgiving, in need of mothering as much as Popp now needed to be her mother. "A lot of what changed Jeanette was having a relationship with Nancy," Graham says. "Nancy grounded Jeanette, gave her something special to hold onto. She became Jeanette's whole life."
They did everything together: dressed alike, wore their hair alike, were accused of being sisters when they cruised the courthouse square in Popp's '79 El Camino. Nancy wanted to help with the bills, working as a waitress and then at the Pizza Hut. The discounts Popp received from her job at Wal-Mart helped, but Nancy was never one to complain. She could make boots and blue jeans look good, radiating a country-girl freshness that rarely went unnoticed. Popp took great pride in Nancy, enjoyed showing her off in several beauty contests.
Most Saturday nights in Graham, teen-agers would find themselves at the roller rink, which is where Nancy met Todd DePriest, who was a few years older than her and worked as a ranch hand. She fell for him hard, and it was all Popp could do to keep them apart. Perhaps some of it was jealousy; Popp was unwilling to share what she had lost for so long. But Todd and Nancy had only known each other for three weeks when they decided to marry. He didn't even want to wait until Nancy graduated from high school, which angered Popp, who didn't want her daughter making the same mistakes she had. "I wanted her to go to college and experience the world before she was tied down with a husband and kids."
On March 4, 1986, the day she turned 18, Nancy ran off with Todd. Several months later, they were married in Granbury. "It broke my heart. I cried and cried," Popp says. "But Nancy adored Todd, and I knew if I wanted a relationship with her, I would have to accept him."
Things were never more than cordial between Popp and her new son-in-law, who could not be reached for comment despite repeated attempts to contact him. It didn't help matters that he joined the Air Force and moved Nancy to Austin, or that Nancy got pregnant within a few months of their marriage, or that Todd didn't phone Popp when Nancy went into labor.
After Nancy left Graham, Popp and her son moved to Cedar Creek Lake, where her father had retired. She rented a "rickety old shack" with no phone from an elderly couple who lived nearby ("Mama always said, 'You got to make do with what you got'").
On October 24, 1988, at about 4 p.m., she returned home after spending the day looking for a job at the several convenience stores dotting the lake. Grabbing a Dr Pepper, she heard her dog Pig barking at an approaching car. It was Doris, her landlord, who said Popp had an emergency call at her house. She thought it was her father, a heart attack, but when she picked up the phone, her son-in-law spoke.
"Todd, what is it?" she asked.
"Is she OK?"
"There's been a robbery," he blurted out. "They shot her in the head!"
Nancy wasn't even supposed to be working that morning. But she wanted to play in the Pizza Hut softball game that night and traded shifts with someone who worked days. Around 7 a.m., she pulled into the parking lot of the Reinli Street Pizza Hut in North Austin. Todd had followed her on his motorcycle--that way, they could trade vehicles, and he could drop off their 15-month-old baby at the sitter's. Forty-five minutes later, he doubled back to the restaurant and picked up his motorcycle. He handed Nancy the car keys, kissed her goodbye and drove to work. That was the last time he saw her smile.
Around 9:30 that morning, an anxious manager came to the restaurant after his repeated phone calls went unanswered. He found the restaurant flooded and Nancy's naked body lying in the hallway. She had been bound, sexually assaulted, shot in the head and left for dead. Rushed to Brackenridge Hospital, she was placed on life support. A single bullet was lodged behind her eye. Nancy was pronounced brain-dead at 10:45 p.m., and Todd was kind enough not to take her off life support until Popp arrived the next morning.
As Popp stood beside her daughter's hospital bed, it seemed as though Nancy was just resting. Popp took her hand--Nancy's skin was warm to the touch, partly because her organs needed to remain vital before being harvested for transplant. Through her tears, Popp told her she was sorry, that none of this was supposed to happen; she told her how much she loved her, how she would miss her always.
There were no suspects, but the Austin Police Department was giving the case its highest priority. One police spokesman told the Austin American-Statesman, "This is a needless, horrible assault that is hard to understand, hard to rationalize and hard to accept. We are putting a supreme effort into the investigation."
The crime scene yielded few clues. Because there were no signs of forced entry, police surmised that the murderer either had a key or knew his victim. Approximately $150 was removed from the safe, so robbery seemed the likely motive. The restaurant was flooded by Nancy's assailant, who attempted to cover his tracks by using a blue apron to stop up the sink in the ladies' room, where the shooting actually occurred. No weapon was recovered, but a shell casing from a .22-caliber revolver was found in the hallway, which correlated with the .22-caliber slug removed from Nancy's head. The autopsy revealed tears and bruising in her anus and rectum, which led the medical examiner to conclude that she had been a victim of anal intercourse as well. Vaginal and rectal swabs were used to collect semen, which would be submitted for DNA profiling. Also found in the restaurant waiting area was a single strand of hair, which would be subjected to microscopic analysis.
The homicide investigation was led by detective Hector Polanco, who enjoyed a tough-guy reputation for cracking hard cases. Polanco would later testify that police took great pains not to publicly disclose certain details of the slaying--the caliber of the weapon used, the material used to clog the sink--crime facts only the murderer would know. Suspecting that the murderer might return to the scene of the crime, he advised Pizza Hut employees to report anything suspicious.
Two weeks after the murder, Christopher Ochoa and Richard Danziger, roommates and employees at a different Austin Pizza Hut, showed up at the Reinli Street restaurant. They ordered beer and drank a toast to Nancy's memory. Before leaving, Danziger approached the security guard, asking probing questions about the murder. The incident troubled the night manager so much, she phoned the police, who brought Danziger and Ochoa downtown for questioning.
Ochoa didn't fit anyone's profile of a calculating killer. He came from a close-knit El Paso family, graduated with honors from high school, was editor of the school's literary magazine and had never had a brush with the law. Detectives would later testify that Ochoa immediately showed "extreme anxiety"--his palms were sweaty, and a rash broke out on his neck. Danziger, on the other hand, was the cool one: cocksure, street-smart and overly inquisitive about police work. Previously convicted of forgery, he aroused police suspicions when he volunteered that he had an alibi--before anyone asked. "His reactions were that of a guilty suspect," said one detective. When he told detectives he'd learned from other employees that Nancy had been killed with a .22-caliber revolver and that the Pizza Hut was flooded with a blue apron, officers quickly concluded they had their man.
Although Danziger would deny any involvement in the murder, Ochoa broke after two days of relentless questioning. He confessed three times, actually, each confession growing more incriminating and lurid than the one that preceded: Danziger had the gun but entered the restaurant using a key. Once inside, Nancy recognized Ochoa from a company meeting--that's why they had to kill her. Danziger did the shooting--or at least that's what he first told the police. Later, he changed his story, admitting that he pulled the trigger, but not before the two of them raped her six times--twice anally--as she begged for her life. After he shot her in the head, they dragged her bleeding into the bathroom, where they raped her three more times--once orally, twice vaginally.
When Jeanette Popp learned that her daughter's murderers had been caught, she grew relieved: Now she would have someone at whom to vent her anger, someone besides herself. After Nancy's funeral, she had grown terribly despondent, stopped eating, lost 30 pounds, smoked four packs of cigarettes a day. "I wanted to die so bad," she says. "I didn't want to hurt anymore." Some days she would sit in her rocking chair, drawing a pistol to her head. But then she would think about her cousin Ronnie, who had recently killed himself after his son took his own life. She talked out her feelings with her sister. "I told her if she did it, just think how it would make me feel, how it would make Mama feel," Graham recalls.
Popp expressed similar feelings when an assistant district attorney asked her if she wanted her daughter's murderers to receive the death penalty. "I have always been against capital punishment," she says. "Whether it's a person or the state doing the killing, the loved ones left behind suffer just the same."
Even though her son-in-law and ex-husband favored the death penalty for Nancy's killers, the point was moot because Ochoa had pleaded guilty in exchange for a life sentence and his complete cooperation. Only Danziger would stand trial in January 1990, and prosecutors chose to proceed with the sexual assault case, which was easier to prove than murder and carried the same range of punishment.
What bothered Popp most about the trial was the testimony of Christopher Ochoa, who wept from the witness stand and seemed remorseful as he graphically recalled the details of the rape and murder. "I became physically ill," she recalls. "I went to the rest room and threw up."
Danziger would glare defiantly at Popp as she sat in the courtroom each day. He was clearly his own worst witness, coming off as the smug ringleader who barked out orders and plotted every move. His alibi wasn't as airtight as his lawyer would have liked, and DNA tests, though unsophisticated, confirmed that Ochoa, along with 10 to 16 percent of the Hispanic population, could not be excluded as the source of the semen collected from the victim. The microscopic hair analysis of the strand found at the scene, though more art than science, was "consistent with Danziger's known pubic hair."
It took the jury only three hours to find Danziger guilty and only seven minutes to sentence him to life imprisonment. After the jury was excused, members asked to speak with Popp, and together they hugged and cried. Several hoped the verdict would give her closure, that with her daughter's murderers behind bars, she would put the past behind her and get on with her life.
Only, she never could.
Achim "Joe" Marino was a lumbering bear of a man, his eyes steely, chin weak, complexion pallid. Hate ran strong in him: hate for his mother, hate for women, hate for the Texas prison system. Not only was the back of his head completely flat, he claimed it was the seat of all his hate. "The way my head is configured gave me an open channel to the supernatural world," he says. From the time he was 8, he says, he was possessed by "three satanic spirit guides" who sought to indoctrinate him in the ways of the devil. Steering him to evil, they demanded he kill animals--dogs, cats, rabbits--as burnt offerings to pay homage. If he refused to do the spirits' bidding, he says he would be punished with a "deafening noise inside his head" that would bring on massive migraines. During his second prison term, he says, he made a pact with these demonic spirits: The unbearable headaches would cease if he offered them a human sacrifice. After his release in 1988, he offered them Nancy DePriest.
Returning to prison on unrelated charges, he says he was "astounded" to learn from another inmate in 1990 that two men were now serving life sentences for the murder he committed. Only after his conversion to Christianity dispossessed him of his demons did he speak up. "It was incompatible with my Christian beliefs to let two innocent men remain in prison for the rest of their lives," he says.
In February 1996, he wrote a letter to the Austin American-Statesman, the Austin chief of police and the American Civil Liberties Union, confessing to the rape and murder of Nancy DePriest. "The bottom line is, I was trying to exonerate Ochoa and Danziger," Marino says. Although the media didn't pick up the story, Austin police took him more seriously, following the leads in his letter, which described the location of the murder weapon, the bank bags he'd stolen and the handcuffs he'd used. Although Austin homicide detectives retrieved the property, the investigation ended when ballistics tests were unable to confirm that the .22 was, in fact, the murder weapon.
Amazed that no one bothered to contact him, Marino again wrote letters to the authorities--even sent one to Governor George W. Bush in February 1998. "I tell you this sir," he wrote to Bush. "I did this awful crime and I did it alone." Marino "respectfully reminds" the governor that if he chose to ignore the confession, Bush was still "legally and morally obligated to contact Danziger and Ochoa's attorneys and families." The letter would surface in October 2000 and become an embarrassment to Bush's presidential campaign. Officials within the governor's office acknowledged receipt of the letter as well as their failure to act upon it.
Austin police were slightly more responsive: In the spring of 1998, an Austin detective and a Texas Ranger reinterviewed Christopher Ochoa in prison, asking him if a third person was involved in the crime. But he stuck to his story, claiming he and Danziger were the only perpetrators. "I didn't trust the police anymore," Ochoa says. "If you deny your guilt in prison, it's harder to make parole. I told them I just wanted to do my time."
Detectives thought Ochoa was lying to protect Marino and grew convinced there had to be some connection between the three, which they failed to pinpoint. It seemed natural for cops to try to link the three as parties to the crime--particularly in a justice system geared to proving guilt, not innocence. "To find someone actually innocent is truly revolutionary," says Austin attorney Bill Allison, who would later represent Ochoa.
The reinvestigation proceeded in fits and starts: No one requested DNA testing from Ochoa, Danziger nor Marino, despite a quantum leap in DNA profiling since 1996. Now the smallest sample of semen, blood or saliva could be copied and amplified; now a DNA profile could be so discriminating, it would rule out everyone in the world save its perfect match.
After the police interrogated Ochoa, he suspected there had been a "break in his case." Although he hoped to contact Barry Scheck, a co-founder of the Innocence Project, he only secured an address for the Wisconsin Innocence Project at the University of Wisconsin. On June 7, 1999, Ochoa wrote the project's co-director, John Pray, and finally admitted what he had denied for more than 10 years: "The reason I am writing you is that I am in a Texas prison doing a life sentence for a crime I did not commit."
Ochoa would later describe for Pray and his law students how he was coerced into confessing after two days of ruthless interrogation by Detective Polanco, who could not be reached for comment despite repeated attempts to contact him through his attorney. According to Ochoa and civil pleadings later filed on his behalf for the violation of his civil rights, Polanco immediately began to terrorize Ochoa, introducing himself by his Spanish street name, El Cocooi--the ghost. Ochoa's request for a lawyer went unheeded, and his protestations of innocence weren't recorded. He was shown gruesome crime scene and autopsy photos of Nancy DePriest, repeatedly told if he didn't cooperate, he would get "the needle," that he would be "fresh meat" for other inmates who "would have their way with him."
Police fed Ochoa the facts of the crime based on the physical evidence and their unproven theory of how they believed the crime occurred. They suggested answers through leading questions, and when he gave the wrong answer, they would allow him to correct it until he got it right. Overly passive, exhausted, afraid of dying, he would just agree with them, sign whatever they wanted, just so they would leave him alone. "I was a parrot during those interrogations, just parroting what they were telling me to say," Ochoa says. "It's hard for people to understand, but I thought if I didn't say what they wanted me to, I was going to die."
According to the Innocence Project, false confessions or admissions were involved in 27 of the first 111 post-conviction DNA exonerations in this country. Last week in Manhattan, prosecutors would ask a judge to throw out the conviction of five men in the infamous "Central Park jogger" case, after DNA evidence proved that the confessions given by the men--imprisoned for 13 years--were false. And yet the fact that someone would confess to a crime he didn't commit seems so counterintuitive, detectives reinvestigating the Ochoa case appeared almost blind to the possibility.
On February 2, 2000, John Pray asked Travis County District Attorney Ronnie Earle to conduct more sophisticated DNA testing in the DePriest murder. Earle quickly agreed to the request, though it was November 2000 before all the results were received. Todd DePriest, Richard Danziger and Christopher Ochoa were ruled out as sources of the semen collected from the victim. Joe Marino, however, could not be eliminated as the source. "Only one person in 880 billion had Marino's particular combination of DNA," Pray says. "Since there are only around 6 billion people on earth, it had to be him."
But even that didn't settle the matter--although it did for Jeanette Popp. After watching Ronnie Earle on TV, she felt lied to, betrayed, revictimized by the legal system, which had led her to falsely believe it was on the side of truth and justice--Nancy's side. She aligned herself with Christopher Ochoa, writing him in prison and telling him how guilty she felt about the role she might have unwittingly played in his conviction. "I wanted them home for Christmas," she says. "I imagined how their mothers must be feeling." She phoned Barry Scheck, who was handling publicity on the case, and asked what she could do to help. Getting the mother of the victim on board would be a big coup for the defense, giving the district attorney the political cover he needed to reverse himself. "Barry suggested I go public to draw more attention to the case," Popp recalls.
Because she had seldom been interviewed, she started small, telling her story to a reporter at the newspaper in Azle, where she and her new husband, James Popp, had moved in 1998 to help care for Jeanette's mother. Since moving, the string of violent deaths in her family continued when her half-sister's daughter committed suicide. The anguish it brought to her sister, who became a recluse, reconfirmed Popp's own feelings about the collateral damage caused when someone takes a life, even if that someone is the government. Her conversion to Catholicism--her husband is Catholic--also deepened her commitment against capital punishment, which she believed in Ochoa's case had been used as a weapon to coerce his confession. The front-page story in the Azle News made the wire services and brought a reporter from KVUE, an Austin TV station, to her door. "Their mothers have got to be suffering like I am," she told the reporter. "I can't bring Nancy back, but I will do everything I can to get their sons back to them."
Three more glitches in the case had to be disproved before Earle would concede a mistake had been made. New ballistics tests now concluded that Marino's pistol was, in fact, the murder weapon. New DNA tests proved that the strand of hair removed from the crime scene was not Danziger's. Newly received information about Nancy being an organ donor caused the medical examiner to amend his autopsy, finding that her rectal-anal injuries resulted from the thermometer used to monitor her body temperature before harvesting, rather than anal intercourse.
On January 16, 2001, after a brief hearing, state District Judge Robert Perkins granted Christopher Ochoa his freedom. "The evidence of actual innocence in this case and in the case of Mr. Richard Danziger was so overwhelming," the judge concluded, "that the court could not become a party to even one more minute of wrongful incarceration."
Jeanette Popp attended the hearing, hugging Ochoa upon his release, meeting with him privately before a lunch held in his honor. Scheck helped orchestrate the event, bringing together Randall Dale Adams, A.B. Butler and Joyce Ann Brown, living monuments to Texas injustice. "Hearing their stories, I realized, my God, there are innocent people on Death Row," she recalls. "I started thinking, this is about more than Chris and Richard. This is rampant. It is happening all over."
Following the luncheon, a news conference was held on the Capitol steps. And it was here, Scheck says, "that Jeanette suddenly emerged as this very powerful speaker."
Putting away her prepared notes, she recalled the day she grew frustrated with the judicial system after learning from a television program that the man responsible for the murder of her daughter had not been brought to justice, and another "crime was in progress--the wrongful imprisonment of Christopher Ochoa and Richard Danziger." After much discussion and prayer with her family, she felt compelled to do something to help them. "I had to stand up and say, 'This is wrong'...In loving memory of my daughter, it is my wish that the death penalty be abolished in the state of Texas so that it can no longer be used to coerce confessions from the innocent...And perhaps in doing this, my beautiful baby will not have died in vain."
What gave Jeanette Popp's story its power was its incongruity, its humility, its heart. Unlike other victims who sought the finality of closure through the execution of their loved one's killer, she spoke of forgiveness and reconciliation, of not staining her daughter's memory by killing in her name. She wasn't some paid lobbyist with an agenda, some credentialed academic with statistics; she was simply a mother who found the issue thrust upon her after the child she loved was murdered.
With Ochoa, she made the talk-show circuit, appearing on Nightline, Sally Jessy Raphael, The View. The anomaly of them together, mother hand-in-hand with exonerated murderer, offered the kind of reversal of expectations that was the stuff of good drama. She spoke at universities, high schools, churches, rallies and marches, gaining confidence with each telling. But nowhere was she more effective than in the Texas Legislature, as she testified before a house committee in March 2001, supporting legislation that sought a two-year moratorium on all pending capital cases so questions about the application of the death penalty might be reviewed by an independent commission.
"It was the most emotional hearing I have ever been to in my life," recalls Houston state Representative Harold Dutton, who sponsored the legislation. "I remember being drained, exhausted for the rest of the day." Though the bill would never get out of the house committee, Popp made a name for herself with capital punishment foes, who seized the opportunity to put a compassionate face of a victim on their agenda. The Texas Moratorium Network enlisted her in its cause, and she would become the group's chairwoman. She also became an active member of the Murder Victims' Families for Reconciliation, a group that believes that victims who are anti-capital punishment are given second-class status and often discriminated against by pro-death penalty prosecutors.
The Travis County District Attorney's Office claims it is "highly victim-sensitive" and insists that in its eyes, "a victim is a victim." Popp tells a different story, claiming prosecutors mistreated her as she grew more vocal against Ronnie Earle's decision to seek the death penalty against Joe Marino. She says she was kept in the dark regarding his indictment, court settings and appearances--notification that was due her under the Victim's Bill of Rights. She had to rely on Larry Sauer, Marino's own defense attorney, to keep her informed of the status of the case.
Early on, she contacted Sauer, hoping to meet with Marino, thinking it might help if she could learn what really happened to Nancy. Lead prosecutor Bryan Case actually arranged the meeting, hopeful Popp could convince Marino to plead guilty. Case figured that Popp would want to avoid a trial that might compound her suffering and prove costly to the state. For a prosecutor to use the mother of a victim to sell a plea bargain to the victim's murderer might, in any other case, have seemed reprehensible. But not in this one.
It was one thing for Popp to preach against the death penalty in the abstract, but now she would be eye to eye with her daughter's murderer, the man solely responsible for her nightmares, her grief, the great tragedy of her life. She wondered if she could find within herself the compassion she now asked of others.
When they finally met on December 13, 2001, in the Travis County Jail, Popp felt as though she might have a panic attack. Steadied by Scott Cobb of the Texas Moratorium Network, who accompanied her, she sat at a long table opposite Marino and his lawyer. Marino acted polite, contrite, apologizing for killing Nancy and the pain he had caused her family. Popp needed to know if Nancy actually begged for her life, the same way she did in her nightmares. "What were Nancy's last words?" she asked.
"The only thing she said the whole time I was there was, 'Please don't hurt me,'" Marino said.
"Why did you pick Nancy?"
"I didn't pick Nancy. Actually, I was going to kill this other girl at this other restaurant, but when I got inside, there were other people there." Instead, he went to the Pizza Hut, posing as a soda-machine repairman. Although both doors were locked, "She just let me in."
"Did you know Todd DePriest?" she asked. "Chris Ochoa or Richard Danziger?"
He said he didn't.
After Nancy opened the door, Marino continued, he pulled his gun, grabbed the money, then raped her--but only once. He brought her to the ladies' room and said he was going to handcuff her to the sink to give himself time to get away. She thought she was going to be OK and turned her head. That's when he shot her. He dragged her into the hallway and flooded the bathroom after he couldn't find the spent shell casing. Then he left.
"Why did you kill her?" she asked.
He told her that his satanic spiritual advisers needed a human sacrifice; he believed it was the only way he could get rid of his headaches.
"Did it work?" she asked him.
"For a while, but they came back," he said.
"That's because you can't send an angel to Satan."
He said he was sorry, and she said if he was really sorry, he could save her a lot of pain by pleading guilty to two life sentences.
His response would stun her: Life in a Texas prison was too hard, he told her. He wanted to stand trial and be executed.
For the next several minutes they dug into their positions: she, the mother of the victim, asking that the murderer's life be spared; he, the killer, insisting he be executed. He did agree to take her request under advisement with the elders of his church.
Although Popp says she felt little compassion for Marino, she was pleased the meeting occurred. "What happened to my daughter was horrible, yes, but nowhere near as demeaning as the cruel lies made up by the Austin police. At least she didn't know she was going to die."
After the meeting, Popp held a news conference and urged people to call Ronnie Earle and ask him not to seek the death penalty against Marino. "Help me save this man's life," she said.
Bryan Case doesn't remember anyone phoning his office, but a week later the district attorney decided not to seek the death penalty. Unmoved by his show of mercy, Joe Marino decided he wanted to go to trial anyway. By pleading insanity, he hoped to put the entire Texas prison and justice system on trial, "which I have said from the beginning was a co-defendant in the murder of Nancy DePriest," he says.
As he readied himself for trial, Case decided he would call upon Jeanette Popp one last time to use whatever influence she might have with Marino to get him to accept a guilty plea. Popp agreed, on the condition that she would be allowed to videotape the encounter, so victims groups could use it in their educational materials. But at the last minute Case called off the meeting when he learned that Popp also planned to give the tape to the media, which were gathering outside the jail. When Popp arrived, she called Case on her cell phone, and the TV cameras only captured her side of the conversation.
"You can't believe I would behave this way? Mr. Case, you don't want to bring my daughter into this...I am not getting anything out of this...So what you are saying is, I am trying to profit from my daughter's death. Is that what are you saying?...I am a death penalty activist; that is my only agenda."
Case claims he never said Popp was trying to profit from her daughter's death--that she was putting words into his mouth. "It is clear she set me up for the cameras, and it was an extremely manipulative thing to do. All I told her was that her agenda was entering into the case."
On camera, Popp's lip quivered and she began to cry, falling into the consoling arms of Scott Cobb. Playing two roles in the same trial was difficult even for her: She raised hell like an activist but melted like a victim.
On October 12, a jury brushed aside Joe Marino's insanity defense and found him guilty of the murder and aggravated sexual assault of Nancy DePriest. Because of his prior convictions, he received two automatic life sentences, which the judge ordered would run consecutively. After the sentence, Popp was allowed to address the court and gave a statement that even Case found "impressive and quite moving."
Taking the witness stand, she turned to the jury and held up a photograph of her daughter, wanting them to see her not as a victim lying naked and bloody in some trial exhibit but the way she saw her: smiling, beautiful, full of life. She thanked the jury, thanked Bryan Case, then turned to the defendant with tears streaming down her face and said, "Mr. Marino, may God have mercy on your soul."
Smoking too many cigarettes in her Azle home, Jeanette Popp is taking time out from the fray, rethinking her activist role before the Legislature convenes in January, wondering if it's time to stop. Her activist friends don't want that to happen. They are raising funds so she can live and lobby in Austin; they want her to make another push to get a moratorium bill passed. For two years, however, she has neglected her home, her husband, her mother; she has maxed out her credit cards and gone into debt; she has suffered indignities from strangers who think she couldn't have loved her daughter if she didn't want her killer to die; from those who think she craves the spotlight too much; from those who think retelling her story just keeps an old wound from healing.
Truth is, she doesn't believe in closure. She believes she was cheated out of her daughter--first by Nancy's father, then by Nancy's husband and finally by Nancy's murderer. Keeping the cause alive means keeping Nancy's memory alive. She can't give up her activism any more than she can give up the ghost. Her nightmares may have stopped, but for Jeanette Popp, the battle must continue.
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