work in progress: an unfinished work that is still being added to or developed. www.dictionary.com
rogue/1 An idle vagrant, a vagabond. 2 A dishonest or unprincipled person; a rascal. 5 An elephant or other large wild animal driven away or living apart from the herd and having savage or destructive tendencies. The New Shorter Oxford English Dictionary.
Every tale needs a rogue. Some defenses need rogue cops.
Jim Blake was a cop. During his twenty years on the NYPD, Blake developed expertise in infant footprint identification by fishing dead babies out of the East River from a police launch. When he retired to Colorado, Duane’s lawyers hired him as their investigator. Blake’s detailed investigatory report survives in the form of a running tab to defense counsel. His first job was to verify Duane’s alibi for the Saturday Betty was killed.
After his formal interview at the Sheriff’s Office, Duane’s story had continued to evolve. Now his morning was even more jampacked: spring cleaning with Betty, two trips to Safeway, two runs to a nearby Chevron to check on the lube job for her car, trips to a liquor store for beer and to megamall Cinderella City to inspect a sport coat for son Greg to wear to Doug’s and my wedding, followed by a spur-of-the-moment hour-long drive to Boulder where Duane said he stopped at our flat before going to the karate studio where I saw him at 1:30 p.m. Because Betty died between 10:30 a.m. and noon, and the clocks with the loot stopped at 11:22, 11:23 and 11:27 a.m., Duane’s whereabouts during that ninety-minute period were crucial.
Blake immediately ran into a problem. Around 11:30 a.m. Greg’s friend Bret had rung the Frye doorbell, and Duane answered the door. Blake tried to get around this by claiming Bret came an hour earlier. When Bret’s story checked out, Blake had to account for Duane being home when Bret rang the bell. To do so, he added an 11:40 a.m. trip back from Chevron for Duane to toss a jacket in the front hall closet—not perfect, but close enough. But this meant a third trip to the Chevron station in a very small window of time, and more changes still.
Now Duane had to leave for Cinderella City at noon, depart the mall at 12:15 p.m., and arrive at the karate studio at 1:05. When the only witnesses Blake could find were a liquor store clerk and mechanics who saw Duane on his first two Chevron trips, Blake shrugged off the rest of Duane’s alibi and canceled a planned ride-along as “NOT NECESSARY”.
The carpenters on the roof cater-corner to the Fryes had seen an old green pickup in front of Duane’s house the day of the murder. No neighbors saw any strange vehicles, but a search was launched. Lead cop Sendle sent a teletype describing the truck to law enforcement within 150 miles and cops photographed trucks throughout Arapahoe County. A 12-year-old boy across the street from the Fryes saw the pickup too. He told Blake the owner lived down the block, but Blake discounted that because criminals don’t usually commit crimes in their own neighborhood.
Blake’s contributions to the defense didn’t end there. After the cops officially cleared the crime scene, Blake claimed he found latent glove impressions, a pinkie print and three partial palm prints inside the house. Why gloves and fingerprints? There were two intruders, of course! Blake convinced prosecutors to give him the print charts of two would-be burglars in custody at the county jail so he could compare them to the latents he’d found. Bingo—a match!
Blake later claimed the cops confirmed the ID, but he never gave them his set of prints. In 1974, after they dismissed the case, the DA’s office asked Duane’s lawyers for the prints in order to make their own comparison. But by then the prints Blake claimed he found had disappeared. In 2005, the cold case cops were still looking for them. How did Blake get away with this? Maybe, as DA Gallagher claimed in 1994, because we didn’t investigate cases then the way we do now. Like Blake’s report, the DA’s case was a work in progress; 1973 court filings show a revolving and growing cast of ADAs assigned. With the aggressive defense Duane’s lawyers mounted, it was easier for the DA to throw the cops under the bus than to go to trial.
In 1974, Blake bought property in Idaho Springs, an old mining town near Colorado’s first big gold strike. He said his stake had a vein of gold twelve inches wide. In 1986 he died in a place called Squirrel Gulch. In 2005, Duane’s new lawyers moved to dismiss the cold case on grounds that Blake was essential to his defense. The motion was denied.
In the adversary system, is any gambit fair?
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