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Thomas Burton had a solid alibi, but he was still convicted of murder.
The Murder of Red Carter...
The Conviction of Thomas BurtonBy Tamela Carey, Justice: Denied Staff
Edited by Barbara Jean McAtlin, Justice: Denied StaffOn January 23, 1996, after a bench trial in the Roanoke, Virginia, Circuit Court, Thomas Burton was convicted of the first-degree murder and robbery of Randall (Red) Carter, a well-known drug dealer in the Roanoke area. Even though all the evidence in Thomas' trial was entered as "stipulation," Judge Clifford R. Weckstein, a friend of the victim's family, made his decision to find Thomas guilty in a record-setting fifteen minutes. On March 18, 1996, he sentenced Thomas to life plus twenty years in prison.
Thomas pleaded not guilty at his trial and professes his innocence to this day. An attorney named John McGarvey represented Thomas. McGarvey charged the Thomas family $25,000 and then tried to get the Commonwealth of Virginia to pay for his services as well. The Burton family spent every penny they had to hire McGarvey to defend their son: because of that, they are now enduring serious financial hardships and can no longer pay for an attorney to represent him.
At approximately 2:23 a.m. on June 30, 1995, Betty Carter heard someone in her home arguing with her husband, Red, a drug dealer in the Roanoke area. Mrs. Carter said she was upstairs when she heard her husband arguing with a man over Carter's wallet. Carter was known to have always kept a large sum of money in his wallet. She knew it was the wallet they were arguing over because Carter kept a rubber band around his wallet and she heard him say, "I'll find it; it has a rubber band around it." According to the reports, after hearing her husband say he would find the wallet, Mrs. Carter said she heard a shot. After hearing the shot, she ran down some back stairs to a neighbor's home. Neighbors had heard the shot and had already contacted the police. The next day, Red Carter's son found his father's wallet lying on the front porch of their home. The wallet has never been tested for fingerprints. Joann Snowden, the Carter's closest next door neighbor, gave a statement saying she was awakened by what she thought were gunshots. She called 911 and then looked out her window to see a person whom she believed to be Betty Carter running from the Carter's home. She also said she saw what she believed to be a white male running from the Carter home to the back alley. She described this person as a white male with short to shoulder-length hair wearing jeans and a T-shirt.
Upon arrival, police officers found Red Carter lying naked on the kitchen floor with his head almost in the doorway of his downstairs bedroom. A total of three gunshots were found in him: a wound to the head, a wound to the abdomen, and a wound to the left wrist. Carter was taken to the Roanoke Community Hospital where he subsequently died. The autopsy report disclosed that Carter died from the gunshot wound to the head.
After the police were called, Officer Sacra, an evidence technician from the Roanoke Police Department, arrived at the Carter's home. As the crime scene evidence technician, Sacra secured the scene of the murder and collected and preserved evidence from inside and outside of the residence. He collected physical evidence in the form of blood from the area around Carter's body, blood from the sidewalk in front of the Carter residence, spent bullet casings, and a black New Orleans baseball cap that had been found near Carter's head on the floor of a bedroom off the kitchen. After collecting the evidence at the scene, Sacra did not follow through on the investigation of the crime scene, nor did anyone else. The bullet projectiles were never tested and no fingerprints were processed. No explanation has ever been given as to how or why the bloodstains on the sidewalk outside the Carter residence belonged to the victim, Randall "Red" Carter. Even though it was said that only four shots had been fired, the fact that there were nine bullet holes found was never questioned.
At 2:26 a.m. on June 30, 1995, Michael Houser and Brian Williams showed up the Roanoke Community Hospital. Houser was suffering from a gunshot wound to the abdomen. After dropping Houser off at the emergency room, Williams fled in a white Chevette. Williams hid out with the daughter of a woman named Faye (Hudson) Houser. The daughter has never been questioned. After Sergeant Pam Semones, an officer employed by the Community hospital, examined Houser, she discovered that Houser had on his person a ladies' wallet belonging to Betty Carter, a bag of marijuana, a key, and $190.00 dollars in ten dollar bills.
Houser later admitted to robbing Red Carter and being shot at Carter's residence. Brian Williams admitted to being the one who had planned the robbery, owning the gun that was used, and driving the car to and from the Carter's residence. Michael Houser was arrested for capital murder and armed robbery. Brian Williams was given immunity in return for his testimony. Houser and Williams gave statements that they had been out drinking with Houser's mother, Faye Houser, and Thomas Burton on the evening of June 29, 1995. They said they dropped Thomas off at his girlfriend's house after they left the bar. After dropping Thomas off, they went to Carter's residence and robbed him. Houser said it was he and Williams acting alone and that Thomas Burton was not with them. After being charged with capital murder, Houser and Williams changed their stories. They asked to meet with Faye Houser before saying anything further. After giving four different statements and speaking with Faye, they finally came up with a story saying that Thomas Burton had been the shooter who had killed Red Carter. Faye Houser also gave conflicting stories. Faye Houser, Michael Houser, and Brian Williams were all being represented by the same attorney.
Reasonable Doubts:
1: The Roanoke Police Department failed to do any fingerprinting at the murder scene. Although there was evidence that the Carter residence had been robbed, for some reason, the police didn't find it necessary to conduct a fingerprinting analysis -- even though they had a dead body as the result of this robbery.
2: Nine separate bullet holes were found at the scene. Only two bullet projectiles were located. The officer assumed the bullets came from either a .38 revolver or a 9mm semiautomatic. No ballistics testing was done on the bullets to learn the correct caliber of the gun that had been used in the murder. No testing was done to find out if the two projectiles were even the projectiles that had caused Red Carter's death. The gun has never been recovered.
3: The New Orleans baseball cap that was found at the scene was later said to have belonged to Thomas Burton. Head hair, fibers, body hair, and dog hair were identified on the cap; the only forensic testing conducted on these hairs was done on one human hair. That test showed that it was not consistent with Thomas' hair. No further testing was done to see if the hair was perhaps Carter's, Houser's or William's. The officer said a small dog was found at the Carter's residence. The dog hair was not tested to see if it came from the Carter's dog. Thomas was not allowed to see or identify the hat. No one identified the hat as belonging to Thomas but a picture of the hat was entered as stipulated evidence as being the hat of Thomas Burton. Forensic testing showed the sweatband of the hat was tested by RLFP DNA testing but no results could be obtained. The Human Leukocyte Antigen (HLA) DQa Locus (a gene locus associated with HLA and used in forensic analysis) in the polymaker (PM) system used for the testing was unreliable due to the age of the stain and had to be re-isolated. This evidence was also entered as stipulation. Attorney McGarvey has given an affidavit saying he did not hire a DNA expert or consult a DNA expert, "...because I could categorically say that the hair on the hat was not Burton's, lending credence to our theory that either Williams or Houser wore the hat. I certainly didn't want to find out the hat belonged to Randall Carter, the victim." (Would it not seem that any reasonably thinking attorney would try to show the hat belonged to the victim instead of his client?)
After Betty Carter testified at the trial, Judge Weckstein announced that he and his family had been long time friends with Betty Carter's family. The judge said, "Mr. Hood [the father of Betty Hood Carter] is a former, a retired executive with the Roanoke Times and the Times World Corporation where from 1969 to 1971, I worked as an intern with the copy editor where I met Mr. Hood. Mr. Hood and my father-in-law both spent long working lives working for that organization. If it concerns anybody, you can raise it." At this, Thomas Burton's attorney said, "I'm confident the Court will remain impartial." Judge Weckstein did not recluse himself. He wasn't even asked to by the defendant's counsel. Judge Weckstein took a fifteen-minute recess to determine Thomas Burton's guilt.
If McGarvey had investigated the case against Thomas, he would have learned these three facts:
1: Betty Carter was a known drug dealer and that she had a lengthy record of felony drug charges for trying to sneak drugs to an inmate at a correctional facility. He also would have learned the judge and the Commonwealth were very familiar with the Carter's drug dealing; they had handled the drug charges against the Carters.
2: The judge trying the case was a friend of Betty Carter's family. (Her family was considered very important at the Roanoke Times. Mrs. Carter and her family didn't want this information to be made public.)
3: During the trial, the Houser family walked back and forth to the witness room relating information to the witnesses. (When this was brought to the attention of the judge, he merely told them they could not do that anymore.)
McGarvey never informed Thomas that he had made a deal with the Commonwealth in which Thomas would be tried in a bench trial on first-degree murder instead of a jury trial on capital murder charges. Thomas did not sign anything pertaining to this agreement or any other agreements.
On January 23, 1996, Thomas Burton was found guilty of robbery and murder in the first degree, however, he was found NOT guilty of the use of a firearm in the commission of a felony. How can a man be found guilty of shooting someone but not guilty of using the firearm that was used to kill him? The only evidence against Thomas Burton was the testimony of Williams and Houser.
On March 18, 1996, Thomas was sentenced to life in prison plus twenty years. Brian Williams was not charged with a crime -- even though he owned the gun, planned the robbery, and drove the car. Williams was given immunity for his fabricated testimony against Thomas Burton. On February 13, 1996, Michael Houser, the man who was shot at the Carter's residence, had Carter's money, Carter's marijuana, and Betty Carter's wallet, pleaded guilty to robbery and first degree murder in the Roanoke Circuit Court before Judge Clifford R. Weckstein. Houser had two counts of using a firearm in the commission of a felony nol-prossed and was sentenced to twenty-seven years in prison. He is scheduled for release on April 5, 2023.
Thomas Burton was not aware that his attorney had made an agreement with the Commonwealth before or during his trial to enter the evidence as "stipulation." These stipulations were not argued. The defense allowed the evidence that would have proven Thomas' innocence to be entered as STIPULATION.
On the morning of his trial, McGarvey told Thomas it would be in his best interests if he agreed to a bench trial. The attorney told him, "...he [had gone] to school with Judge Weckstein and knew him well." Thomas later learned that his attorney had never intended for him to have a jury trial.
McGarvey assured the Burton family that this was an open and shut case; they would be out of there before lunch. He also tried to convince the family that there really was no reason for them to even be at the trial. McGarvey also told the Burton family they should not be present during the sentencing process because if they were to become emotional it would only make Thomas' sentence worse.
The only defense McGarvey presented in his client's behalf was, "Thomas had a rough childhood." Thomas had an alibi. No one ever investigated his alibi. Thomas said Houser and Williams (casual acquaintances, not friends) dropped him off at his girlfriend's home after they left a bar where they had been drinking. He spent the night at his girlfriend's and went to work the next morning. Thomas and his girlfriend had ongoing problems because of his drinking. She was very upset when he came home drunk that night. Thomas cried and asked her to forgive him. He said he knew he had done something bad and he promised her he would not do it again. The prosecution twisted Thomas' statement to his girlfriend and said it was a confession and that Thomas had really meant that he had murdered Carter, not that he had upset his girlfriend by getting drunk again.
While Thomas was being held in jail, he called his girlfriend. She was crying. She told him that the police had been asking her questions and she didn't know anything. He told her to just tell them she didn't know anything. A police officer at the jail was standing beside Thomas and heard his part of the conversation. The officer then gave a statement that said he heard Thomas telling his girlfriend to just tell them she didn't know anything. This was also used against Thomas.
Faye Houser told the police that there was an arsenal of guns in their home and that twenty pounds of marijuana had been taken from the Carter's home on the night of the murder. Ms. Houser also said her daughter hid out with Williams and that she had been a long time personal friend of the Carters. She also told the officers she knew that Red Carter was getting ready to receive a large shipment of marijuana at the time of his murder. Faye Houser was being represented by the same law firm that was representing Michael Houser and Brian Williams. Why would Ms. Houser feel she would need an attorney? She was never arrested or considered a suspect.
Faye and Michael Houser both had very long criminal records. Both had recently been released from prison. Faye Houser told Detective N. W. Tolrud that her son and Williams kept an arsenal of weapons, even machine guns, upstairs in the house where they all lived together. Why didn't the detective arrest her or Michael Houser or Brian Williams? Why didn't he take the guns from the home? Since Michael Houser and Brian Williams were suspects in the murder, why did the officer not try to locate the weapon that had been used to kill Red Carter?
Faye Houser told police officers that she had gone to Thomas Burton's house and he had confessed to her that he killed Carter. The problem with this statement was found out later when she said she didn't know exactly were Burton lived. Faye Houser did not testify but her statement was entered as Stipulated Evidence and used against Thomas.
At first, Brian Williams said he did not know Red Carter. Then he said he had been at the Carter's home to buy drugs. He later admitted that he knew the Carters and that he had been planning on robbing Red Carter for some time. He also said he knew Carter was getting ready to receive a large shipment of drugs. Williams said he talked Burton into robbing Carter and that he gave Burton a .38 caliber handgun that was broken and only contained four bullets. Williams said it was Burton who had robbed and shot Red Carter. Michael Houser said he went to the Carter's home alone to buy marijuana when a person he didn't know walked through the back door and started to rob Carter. He said he grabbed Betty Carter's wallet and the marijuana, and that he was trying to save Carter when he was shot. The unknown assailant ran out the back door. After Williams was charged with capital murder, he decided that he and Thomas went in the Carter's residence together and that Red Carter had been shot and robbed by Thomas. Williams also said that Thomas shot him when he was trying to save Red Carter, and that it was Thomas who ran out the back door. Houser said he went out the front door, got in the car with Williams and went to the hospital. Houser had the money, the drugs, and Betty Carter's wallet on him; how could Thomas have robbed Carter when Houser had everything? How did Carter's blood get on the sidewalk in front of the Carter's home if the assailant was last seen running out the back door?
John McGarvey had prepared no defense for his client's trial. He only partially prepared for the sentencing phase of the trial. His preparation for the sentencing phase consisted of trying to show the court that Thomas had had a bad childhood. McGarvey said at the end of the trial that if he had known both Williams and Houser had the same attorney he would have done everything differently. He contacted Williams' and Houser's attorney at the same law firm, at the same phone number, and at the same address. How could he not have known from the beginning that they had the same attorney?
Thomas Burton was recently refused relief in the Virginia Supreme Court. The court agrees with the Virginia Attorney General that McGarvey does not qualify as ineffective assistance of counsel; they believe that what was ineffective assistance of counsel was actually McGarvey's trial strategy.
Since the Burton trial and conviction, McGarvey has admitted that he should have done things differently in this case. How can any court say his ineffectiveness was good trial strategy? Any lawyer worth his salt can read this case and see the numerous mistakes and flaws that have resulted in an innocent man being sent to prison.
This case has been riddled with unanswered questions and faults:
1: A judge who was a friend of the victim's family. Was this judge really impartial?
2: An attorney who didn't want the evidence tested because he didn't want it to come out that the baseball cap belonged to the victim. McGarvey knew the hat didn't belong to his client. Why would he not want the hat to belong to the victim?
3: Police officers who didn't test for fingerprints at an obvious robbery scene or have ballistics testing on the spend bullet casings to learn what kind of gun had been used to kill a man. The police allowed a convicted felon to tell them she had an arsenal of guns, even machine guns, in her home, a home where the police knew the murder weapon had come from. The officers did not remove this arsenal of weapons from the home or even bother to look for the murder weapon there.
4: Faye Houser said there were 20 pounds of marijuana taken from the Carter's home. How did she know this?
5: At no time did anyone bother to check Thomas Burton's alibi, even though he begged them to.
6: Could it be that Betty Carter was involved in this murder herself? She said she went to bed an hour after her husband had gone to bed. She slept upstairs and he slept downstairs. It's hard to believe Red Carter answered the door at two a.m. naked. It is more likely Houser and Williams went into the Carter's home through an unlocked door and woke Carter up. This alone would explain why Carter was killed so close to his bedroom door.
7: The officers never bothered to investigate the murder or how it occurred. Where is the evidence?
8: It was never brought out that Betty Carter was also a known drug dealer. Why?
A trial where all the "evidence" used against someone is entered as "stipulation" and cannot be argued that is held at a bench trial when the judge is a close personal friend the victim's family is sickening. For the courts to agree with this kind of behavior is even more sickening.
It seems that the true victim in this case is Thomas Burton.
The Burton family gave John McGarvey everything they had to defend their son. Thomas Burton does not have an attorney and cannot afford one. He is currently incarcerated at the Wallens Ridge State Prison in Virginia. Thomas is a Level Four but he is incarcerated at a Level Six prison. Justice has not only failed Burton by denying him a fair trial; it still denies him by putting him in a super-maximum security prison. Without the help of an attorney, Thomas Burton will spend his life in prison for a murder he did not commit. Houser admitted he killed Carter. He was only sentenced to 27 years. Faye Houser and Brian Williams walked free. Was this done to save the Carter family name because of their involvement with the Roanoke Times? All the documents that can prove Thomas Burton's innocence were obtained by the Burton family. The Burtons now ask for the help of an attorney who is not afraid to present the truth and see that justice is served.
Thomas Burton #236480
Wallens Ridge Correctional Center
PO Box 759
Big Stone Gap, VirginiaJudi Clausen
111 Dailey Road
Hiram, Georgia 30141
770-222-2369Thomas Burton, Sr.
7141 Barnetts Road
Charles City, Virginia 23030
804-829-6556Tamela Carey
tamelac@stargate.net
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