| At about 9 p.m. on May 23, 1989, two men entered the back door of Fajita Junction, a restaurant in Houston, Texas. They entered the bathroom and when they emerged, one of the men, later identified as 24-year-old James Woody Foster, ordered the manager, 20-year-old Shonette Martin, to open the safe.
When Martin did not open it fast enough, Foster shot her in the head. Foster then shot the cook, 22-year-old Phillip Griffin, Jr., and another employee, 21-year-old Rhonda Robinson. The two men then fled, grabbing a bank bag that was sitting on a counter.
Griffin died of a single wound to the head. Martin was left partially paralyzed and unable to cooperate in the investigation of the crime. Robinson, who had been shot in the head and in her right jaw and right hand, survived. She identified the man who did not shoot as 18-year-old Clayvell Richard, who had been fired from the restaurant about a month earlier for stealing fajita meat. She was unable to identify the gunman.
A few days later, Richard surrendered to police. He named Foster as the gunman and said that 24-year-old Robert Gandy had driven them to the restaurant and then drove them away afterward. Richard said they threw the guns into a reservoir. He said the bank bag contained $30 (police said it was $60). He said he took a $10 roll of quarters from the bag, Gandy took a $10 bill and Foster took 10 $1 bills. Richard said that the gun he was holding was inoperable because it had no trigger and that Foster fired all of the shots.
Robinson viewed a lineup containing Foster, but she picked someone else. Foster was released without being charged. He later was convicted and sentenced to 20 years in prison for an unrelated shooting.
Richard was charged with aggravated robbery and capital murder. On June 1, 1989, police arrested Gandy and charged him with aggravated robbery. Prior to trial, the prosecution offered Richard a deal: plead guilty and receive a 40-year prison term in return for testifying against Gandy and also Foster, so that charges could be brought against Foster. However, Richard refused to take the deal.
Richard went to trial in Harris County Criminal District Court in September 1990. By that time, Richard had pled guilty to robbery and was facing just the capital murder charge.
A Houston Police firearms analyst testified that the revolver recovered from the reservoir had fired the bullet that was recovered from Griffin’s head.
Robinson testified that she lost half of her hearing in right ear and that she still had bullet fragments in her head and jaw. She said she had lost nerves in her right arm and suffered from seizures.
Robinson testified that she pleaded for mercy. “I said, ‘Please don’t do it. I have children.’” She said Richard pointed a gun at her and replied, “I don’t give a [expletive] about your damn children.”
Robinson was unable to say who shot anyone. She said Foster was holding his pistol at Griffin’s temple, but the autopsy of Phillips showed he was shot in the back of the head at a distance of more than a few inches.
Martin was present in the courtroom in a wheelchair, but was unable to testify. A witness testified that she could no longer read or write and that she talked as a small child.
Richard testified in his own defense and said Foster was the gunman. He said the gun he had was inoperative because there was no trigger. That weapon was not recovered. He said that he never thought anyone would get shot—that it would be just a robbery.
His defense lawyer asked Richard if he was sorry that Martin was in the wheelchair and that Griffin was dead. “Are you telling the jury that?” his lawyer asked.
“Yes, sir, I am,” Richard said.
The prosecutor then asked on cross-examination, “If you’re so sorry, why didn’t you take the gun and blow your brains out?”
A defense objection was sustained and the jury was instructed to disregard the question.
On Friday, September 14, 1989, the jury convicted Richard of capital murder. After the prosecution declined to ask for the death penalty, the jury voted to impose a sentence of life in prison.
Gandy went to trial the following week and Richard testified as a prosecution witness. He said that Gandy had supplied the guns used in the crime and they had agreed to split whatever money was taken in the robbery. He denied that he had any deal with the prosecution or that the prosecution had promised not to seek the death penalty.
However, under cross-examination, Richard later admitted that the prosecutor in his case had in fact agreed not to seek the death penalty if Richard testified against Gandy.
Richard also admitted that when Gandy drove Richard and Foster to the restaurant, Gandy believed that they were stopping by the restaurant so that Richard could visit with his former fellow workers.
Richard testified that he had an inoperable gun in his pocket. He said that he and Foster went inside and went to the bathroom. Even at that point, Richard said, he didn’t know that Foster had a gun in his pocket and they had not discussed a robbery.
Gandy’s lawyer, Mike Hernandez, asked, “You’re in there. Nobody has discussed robbing the place or shooting the place—you’re in the restroom and…the next thing you know, you see [Foster] and he’s holding a gun, is that right?”
“Yes, sir,” Richard said.
“And you’re caught up in the middle of it, is that right?” Hernandez asked.
“Yes, sir,” Richard said.
“Words are exchanged, people are shot and you run out?...You don’t shoot at anybody because your gun doesn’t work, is that right?”
“That is right, sir,” Richard testified.
Richard also testified that when he and Foster got out of Gandy’s car, the music was playing loudly through the six speakers in the vehicle and that it was still very loud when they got back into the car. He said that Gandy only learned what had happened when Richard and Foster began yelling at each other about what happened.
Gwendolyn Jessie testified that she drove into the restaurant's drive-through at 9:30 p.m. She said she saw a dark-colored, four-door compact car backed into a dark area behind the restaurant. She then heard “some popping noises in rapid succession.” She said that a few seconds later, she heard shouting and saw two men run out of the restaurant. She told the jury that one of the men was carrying what appeared to be a cash bag. Both men jumped into the back seat of the car and drove away quickly. She said the vehicle did not have license plates and the driver left without turning on the vehicle's headlights.
The prosecution called FBI agent John Riley, who testified that bullets retrieved from the victims were compared to 14 .38-caliber bullets recovered during a search of Gandy’s wife’s apartment, where, although they were separated, he was living temporarily. In addition, six bullets were found in the trunk of Gandy’s car.
Riley said the bullets were subjected to a process called comparative bullet lead analysis (CBLA). In CBLA, chemical tests were performed to determine the quantities of seven trace elements: arsenic, antimony, tin, copper, bismuth, silver, and cadmium. The forensic technique was first employed by the FBI beginning in the early 1960s (after the assassination of President John F. Kennedy) and was used to link bullets by this chemical analysis so that agents could testify that it was likely multiple bullets came from the same batch of bullets. Sometimes, the testimony was even stronger—that multiple bullets came from the same box of bullets. Riley testified that it was very likely that the bullets recovered from the victims and the crime scene came from the same box of bullets recovered in the search of Gandy’s wife’s apartment.
Gandy testified and denied providing any guns or knowing that a crime was planned. He said he believed they were stopping by the restaurant so that Richard could visit with his former fellow workers. He said he drove off when Foster and Richard got in the car and told him to leave.
On September 18, 1990, the jury convicted Gandy of aggravated robbery and imposed a sentence of life in prison. In July 1992, the conviction was upheld on appeal.
On May 15, 2004, Gandy was released from prison on parole.
In 2002, the FBI entered in an agreement with the National Research Council (NRC) of the National Academy of Science to have an independent committee of experts evaluate the scientific basis of CBLA. In February 2004, the NRC declared that while the science of determining the quantities of the elements was sound, the FBI had no scientific basis to say how improbable it was for different bullets to have similar elemental compositions.
Barry Scheck, then president-elect of the National Association of Criminal Defense Lawyers and co-founder of the Innocence Project at Cardozo Law School in New York, called for a systematic review of all 2,500 cases, including about 500 trials, in which agents had testified about the analysis. After a 15-month review, the FBI decided to permanently discontinue use of CBLA analysis because the results were unclear, at times misunderstood, and testimony about those results was overstated.
From 2007 to 2011, the FBI, working with the Innocence Project, began a retrospective, comprehensive review of cases involving CBLA testimony. One of the cases reviewed was Gandy’s trial. In May 2009, a report was sent to the Innocence Project and to the Harris County District Attorney’s Office. The review found “at least one instance in which it was interpreted that FBI Supervisory Special Agent Riley stated or implied that evidence from the case could be associated to a single box of ammunition. This type of testimony exceeded the limits of the science and was not supported by the FBI.”
In 2017, Gandy, acting as his own lawyer, filed a state law petition for a writ of habeas corpus requesting that his conviction be vacated based on the FBI review of Riley’s testimony.
In August 2018, Harris County Criminal District Judge George Powell recommended that the writ be granted. The judge noted that during closing argument in Gandy’s trial, the prosecutor argued that based on Riley’s report, bullets that are “analytically indistinguishable” typically come from the same box of bullets and “that it was most likely” that the bullets were made by the same manufacturer on the same day and were put in the same box. That forensic testimony was used to discredit Richard’s testimony that Gandy knew nothing about the crime before it occurred. Judge Powell said the closing argument coupled with Riley’s testimony “squarely misled the jury.”
On May 19, 2019, the Texas Court of Criminal Appeals granted the writ and vacated Gandy’s conviction. In March 2020, Gandy filed a motion to dismiss the case.
On April 20, 2020, the prosecution dismissed the charge.
Gandy filed a federal lawsuit in 2019 seeking damages for his wrongful conviction. In 2021, following a trial, a jury rejected his claims. In 2023, Gandy filed a federal lawsuit against the state of Texas challenging the requirement that a person be declared factually innocent to receive state compensation. The lawsuit was dismissed.
– Maurice Possley
|