Probable innocence case goes back to court Sept. 11, 2002 Death row case goes back to court Defense lawyers didn't get crucial ballistics results By MIKE TOLSON Houston Chronicle Harris County prosecutors will have to explain how several key pieces of information that could have helped clear a capital murder defendant were never turned over to his defense attorney. The Texas Court of Criminal Appeals on Wednesday ordered the case of Anibal Rousseau returned to district court for further review of allegations that ballistics test results favorable to his defense were not made known either before or after the trial. Rousseau, who has maintained his innocence since his arrest, was convicted of capital murder in 1989 and sent to death row. The lead prosecutor in the case, pleading ignorance of the information in question, has called for a new trial. The other, District Attorney Chuck Rosenthal, has said he did not remember seeing results of the tests. Technically, the appeals court allowed Rousseau to now raise issues that he did not raise in his first appeal following the conviction. His lawyers hope this will translate into a full-fledged hearing where they can present evidence -- the first step in getting a new trial. "This is a rare move for the Court of Criminal Appeals," said Phil Hilder, one of Rousseau's lawyers. "We are delighted that we now have the opportunity to go back to the state court for a hearing." First, however, state District Judge Susan Brown must grant one. Roe Wilson, who handles capital appeals for the Harris County District Attorney's Office, said it would not be unusual for the trial court judge to rule on the merits of the new claim without hearing evidence. Rousseau, 61, was convicted of killing David Delitta, an Environmental Protection Agency agent, during an October 1988 robbery outside a southside restaurant. The conviction hinged on the eyewitness identification of Rousseau by David Sullivan, Delitta's co-worker. Neither police nor prosecutors disclosed to the defense that the gun used to kill Delitta was found five months later in the possession of Juan Guerrero, a Dominican drug dealer. Guerrero, arrested after a traffic accident, was suspected of killing Leo Williams in March 1989. He later admitted to the murder. Two ballistics tests by the Houston Police Department firearms lab concluded that the bullets used to kill Delitta and Williams were fired from the same gun, the black .38-caliber revolver found with Guerrero. Presumably, the burden is on prosecutors to explain why this information did not reach defense attorneys, how the gun ended up with Guerrero and why it failed to match the description given by eyewitness Sullivan, who repeatedly told authorities -- and Rousseau's jury -- that the gun pointed at him and Delitta was chrome or nickel-plated. Prosecutors made a point in the trial of linking Rousseau to a shiny, silver revolver that he used in a series of bank robberies in the months before the Delitta murder. Timing may be be part of the district attorney's explanation. The results of the second ballistics test, the one that conclusively showed that Guerrero's gun was the murder weapon, were not recorded until June 27, 1989, five weeks after the end of Rousseau's trial. Rousseau's lawyers contend that if the Guerrero connection had been pointed out to his defense counsel in the first place, it is likely that the trial would not have gone forward until the results of the second test were known. "I think we've uncovered some real substantial evidence of innocence," said Bryce Benjet, another of Rousseau's attorneys. "This guy Juan Guerrero was arrested with the murder weapon, he was known to be a violent offender and he made statements to our investigator indicating he was involved in the (Delitta) shooting." Guerrero served a prison sentence in connection with Williams' murder and was deported to his native Dominican Republic early this year. Former prosecutor Lorraine Parker signed an affidavit in February saying that Rousseau deserved a new trial. She said she was never informed of the ballistics tests or Guerrero's arrest. "Disclosure of this evidence would have likely entailed additional investigation on both sides on such issues as whether Juan Guerrero could have been the assailant in Mr. Delitta's case, whether Guerrero's weapon could be linked to Anibal Rousseau, and whether there was an explanation for the difference between Sullivan's description of the weapon and its actual appearance," Parker stated. At the very least, police knew during Rousseau's trial that the same gun was used to kill Delitta and Williams, as was recorded in the notes of their investigation into Williams' killing. At the time they theorized -- incorrectly -- that the gun would turn out to be the silver revolver described by Sullivan. Now a civil attorney in Denver, Parker told the Chronicle in April that if Rousseau cannot be linked to the weapon, the case against him evaporates. Co-counsel Rosenthal, who was an assistant district attorney at the time, could not be reached for comment. He has previously said he did not remember seeing the reports that linked Guerrero's weapon to the Delitta killing. He also has said he thinks it is plausible that the gun could have passed indirectly from Rousseau to Guerrero, criminals who lived near each other. Rosenthal's office has 120 days to respond to the issues raised in Rousseau's appeal.