Chapter 30
Decision in Reno
James Daveggio’s lawyer, Michael Kennedy, went through the roof when he found out what Michelle Michaud was up to. He argued before Judge Hagen, “The government’s own investigation in this prosecution has produced evidence that its star witness, Michelle Michaud, is a pathological liar.” Way back on December 5, 1997, Michaud’s sister, Misty Michaud, had described Michaud to the FBI as “overdramatic, attention-seeking and a pathological liar who can be very convincing.” Misty’s boyfriend, Rick Bourne, who also knew Michelle well, told FBI Agent Tom Osbourne that “Michelle has multiple personalities.” The law enforcement report itself described her as “a prostitute, drug addict and pathological liar.” Kennedy requested that Michaud undergo a psychiatric evaluation before being allowed to testify against Daveggio. He argued that she was incapable of telling the truth.
Assistant U.S. Attorney Ron Rachow argued, “The government strongly opposes the defendant’s [Daveggio’s] request that Michaud be required to submit to a psychiatric or psychological examination prior to being allowed to testify at the defendant’s trial. In support of his allegation that Michaud is a pathological liar, he relies on statements made by two untrained lay persons. Based on the flimsiest of threads, in an attempt to avoid Michaud’s testimony at the trial, the defendant tries to discourage her appearance before a jury by asking this court to compel her to submit for an examination or otherwise be prohibited from testifying.
“A trial court cannot order a nonparty witness in a trial to be examined by a psychiatrist. The most the court can do is condition such a witness’s testimony—United States v. Ramirez. The credibility of Michaud, like any other witness, is for the jury to decide.”
In the end Judge Hagen found for the People, allowing Kennedy the small satisfaction of having Daveggio’s trial postponed until May 12, with the admonition to the jury before trial by the judge that “Michelle Michaud is on a conditional plea of guilty . . . and you have heard testimony that Michelle Michaud, a witness, has received favored treatment from the government in connection with this case. You should examine Michelle Michaud’s testimony with greater caution than that of an ordinary witness.”
Michael Kennedy could count this as a small blessing. But even with this caveat, he knew that he had a tough uphill battle to fight. Michaud’s testimony was sure to be compelling.
On May 12, 1999, James Daveggio finally faced his moment of truth at the Federal Court House in Reno, Nevada. The courtroom, situated on the seventh floor, fronted a foyer with large plate-glass windows facing the snowcapped Sierras. If Daveggio looked closely enough out those windows as he entered the court, he could have seen the exact spot where he had married his second wife, Donetta. If he’d looked a few blocks farther up the street, he could have seen the location where Juanita Rodriguez was swept off the corner of Washington and Sixth Streets on a cool September night in 1997.
Daveggio was now neatly groomed, wearing glasses, a plaid blue shirt, dungarees and athletic shoes. His mustache was carefully trimmed and his hair cut short. Marshals led him to the defendant’s table and he eased himself into a comfortable revolving chair. Across from him in the jury box entered eight men and four women of varying backgrounds.
Assistant U.S. Attorney Ron Rachow started the proceedings in his opening statement by saying, “This is not a hard case. It is an important case. This is a serious case. But it is not a hard case.”
The first witness that the prosecution called was Juanita Rodriguez. She spoke in a halting, tear-choked voice of her abduction on Washington and Sixth Streets and the terrifying ride that ensued. She began sobbing so uncontrollably that Judge Hagen took the unusual step of allowing her mother to sit by her on the stand. Through streaming tears, Rodriguez said, “I was so afraid. I wasn’t thinking right. I remember what the man looks like in my mind. It’s the man that’s wearing glasses back there.”
She pointed at James Daveggio.
When asked to recall the details of her ordeal, she replied, “This is really hard for me. All I tried to do was forget. I don’t want to remember.”
She recounted to the rapt jury details of the assault and the moment when “he asked the woman [Michaud] to play some music and she did. There was this particular song and he was singing along and I asked what it was about and he said it was about a man who killed in Reno just for pleasure.
“Later I asked him to take me back to Reno, but he said that he knew he did bad. He kidnapped me. He abused me. He raped me, and he didn’t want me to do something stupid.”
She also told of how she had concocted the story of a newborn baby to save her life and that the driver became interested at that point.
“She started asking me questions, like, ‘How old is the baby?’ I guess she felt sorry for me. Finally, he [Daveggio] asked her [Michaud], ‘What do you think?’ She thought about it for a while and exited the freeway. She told me to count to twenty and not to turn around. So I didn’t even look back. Later I heard freeway noise and made my way there.”
Michael Kennedy on cross asked why Juanita Rodriguez had never noticed any tattoos on her assailant, even though he had his shirt off. Daveggio obviously had very prominent tattoos on his chest and arms. Rodriguez couldn’t remember them and explained this lack of memory because she was so traumatized at the time.
Kennedy didn’t deny that Rodriguez had been in Michaud’s van and had been raped, but he contended the assailant was not James Daveggio. Then he wanted to know why Rodriguez had told the Placer County detectives that her assailant had a “high-pitched” voice. Anyone who knew Daveggio at all realized he had a low voice that had earned him the nickname Frog.
It was on this point that Rodriguez’s lack of the command of the English language caused her problems. An immigrant from El Salvador, she had originally used the term “alto fuerte” to describe the attacker’s voice. This would most likely be translated as “high.” But it could also be translated as “strong.” To make the point, she dropped her own voice and tried to mimic that of her assailant’s. It came out low and raspy.
Next in line for the prosecution was a string of veteran FBI agents and sheriff’s department detectives, including Bill Summers and Desiree Carrington. All of them had a pile of damning evidence against Daveggio, especially the team’s leader, Special Agent Lynn Ferrin. He was cool and collected on the stand and brought forth his testimony with precision and ease. But the unorthodox insertion of Ms. Elzy from the San Jose Planned Parenthood Office was even more damaging. She explained that in 1993 James Daveggio had come there for a vasectomy. A few weeks after the procedure he would have had no detectible sperm in his semen. It was the very missing puzzle piece that had baffled criminalist Renee Romero early on. She had studied the swabs taken from the rape kit used on Juanita Rodriguez and found that there was no trace of DNA in the ejaculant. Now it all made sense. Only sperm in an ejaculant carries the DNA material.
Renee Romero explained on the stand, “You need sperm in the semen to collect DNA. Of this I found no trace.” Then she explained how a vasectomy would leave no trace of sperm with its DNA markers intact. On another front she had also been busy. Amidst all the bottles, blankets, clothes, lint and dust collected from the green minivan after Daveggio’s and Michaud’s arrest, she and the crime technicians were able to lift two dark pubic hairs that neither matched Michelle’s nor James’s. Romero analyzed these hairs using a DNA technique known as PCR testing. It gave her a “highly probable” match that the hairs came from Juanita Rodriguez.
Michael Kennedy attempted to dismiss Romero’s work and that of the Washoe County Crime Lab as shoddy and corrupted by impurities in the testing, by using his own expert in the DNA field, Dr. Christie Davis. Dr. Davis contended that PCR testing was prone to contamination because foreign material, like that picked up in the van, will skew the results. But in the cross-examination Ron Rachow quietly and methodically denigrated Dr. Davis’s qualifications. He had her admit she’d never made a report on Rene Romero’s findings; she had only taken 1 1/2 pages of notes; she had never looked at the actual slides that Romero had used and she had spoken at a conference that included many DNA experts opposed to the death penalty.
Kennedy had better luck with his next technical expert, Dr. Stephen MacFarlane. He was calm, well-spoken and had impeccable credentials. His testimony even brought a moment of levity to the proceedings as he made his voice go all the way from a deep bass to a high falsetto to show the range of the human voice. From his testing of Daveggio at the University of Nevada, Reno, he had discovered that the extra tissue at the front of Daveggio’s larynx caused his voice to be generally low and raspy. Juanita Rodriguez’s contention that her assailant was “alto fuerte” became a matter of semantics rather than a point against Daveggio.
But all the law enforcement and technical witnesses paled in comparison to the prosecution’s star witness against James Daveggio—Michelle Michaud. When asked to give her present address, she replied, “Nine eleven Parr Boulevard”—in other words, the Washoe County Jail.
Michaud’s voice was shaky and she constantly cried throughout her testimony. Some witnesses thought the tears were genuine. Others thought she was putting on a good act.
Assistant U.S. Attorney Daniel Bogden asked her, “Do you remember coming into this courtroom and pleading guilty to the count of kidnapping on November 16, 1998?”
Michaud: “Yes, sir.”
Bogden: “Does that agreement set forth all the terms of your plea agreement for your plea of guilty to Count Two, kidnapping and aiding and abetting?”
Michaud: “Yes, sir.”
Bogden: “Have there been any other arrangements, negotiations or deals given to you by the United States government?”
Michaud: “No, sir.”
Bogden: “Who did you perform the kidnapping with?”
Michaud: “Mr. James Anthony Daveggio.”
That out of the way, Daniel Bogden took her back through the days leading up to the kidnapping, the gambling, the search for more and more money. When it came to the actual event of the abduction, Michaud said, “We were driving around. We didn’t have any money, kind of bored. He [James] was kind of angry. Put off and we didn’t have nowhere to go. We were in the van when we drove around.... That’s when he saw the girl. She was kind of small. I believe she had long dark hair. It was dark out. We had went up a block. James had gotten out of the van and got in the back through a sliding door, and I got into the driver’s seat. He told me to turn around and come back and circle up. I’m not good at roads or directions as far as—if he doesn’t tell me where to go or where to turn, I don’t know where to go. So we come down past a bridge like, and he told me to turn around slowly and come up, and he told me to go slowly, but not too slow.
“And she was walking this way. She got a little past the van. He started to open the sliding door, but I didn’t stop. I tried to keep going. But he jumped out of the van, anyway, and he fell down and hurt his knee, so he was cussing and kind of mad. This all happened really fast. I’m not exactly sure how he pulled her in, but they struggled there for a second, and all she kept saying was, ‘What have I done? What have I done?’
“And he got her in the van and shut the door.... [She was] directly behind me in the other captain’s chair. He told her shut the fuck up or he was going to kill her, and she just got kind of quiet. He told her to take her shirt off. Everything is very excitable at the moment. He’s yelling at me to go forward. I’m taking wrong turns. I don’t have a sense of direction. He had me turn around, go down one street, and I took the wrong street. He wanted me to turn at another street, and he’s yelling at me.
“And then he has me turn around and go down another street, and then we’re going straight down the street, and I frequently take the wrong freeway turnoff because I get confused with east and west, north and south. I’m crying and I’m shaking and I’m trying to drive. I’m not crying out loud. The tears are just falling silently down my face.
“I had turned around one time. It was dark. He asked me what I was looking at and told me to turn the fuck around and watch the road. The only other times he really yelled at me is when he thought I was going too fast. He didn’t want to draw attention to us.
“He instructed me to put in his Johnny Cash tape, and he has two favorite songs on that tape. ‘A Boy Named Sue’ and that one about—I think it’s ‘Folsom Prison Blues,’ where it says, ‘I shot a man in Reno, just to watch him die.’
“When we came up to the—is it the agricultural? —the little building you have to pass before you go over the line. There was a little bit of light, and I had turned around, and James was sitting in the seat . . . the captain’s seat behind the passenger seat. She’s on the floor and her head is on his lap and he has the pillow over her head. She was so quiet. I thought she was dead. I thought he smothered her right there. There was a gentleman at the little building there. I had the window down and he asked me where I was coming from, and I said Reno.”
Bogden: “You didn’t tell him you had someone in the back who had been kidnapped, did you?”
Michaud: “No.”
Bogden: “You kept driving?”
Michaud: “Yes, yes, all the way down the freeway.”
Bogden: “Do you know what he was doing to that girl?”
Michaud: “I didn’t see, but I could surmise; she . . .”
Bogden: “You could hear it, couldn’t you?”
Michaud: “She would whimper, she would cry, and she would talk. She said she had a young baby that her mother was watching, and she was talking about how she was going to school and she wanted to get back to her baby and to please not kill her.”
Bogden: “Did she seem smart?”
Michaud: “I thought she was very smart talking about her child.”
Bogden: “Why?”
Michaud: “Because she was begging for her life, and he started to talk back to her.”
Bogden: “Who made the decision to let her go?”
Michaud: “I’m not sure it was my decision. He said find a place to stop at.”
Bogden: “Did Mr. Daveggio ask you what we should do with her?”
Michaud: “I think it was put to me in the sense that he [had] a plan, ‘Are we going to stick with the plan or what are we going to do?’ I didn’t answer him because I didn’t know what he was talking about. It was a little bit later she asked if we were going to drive her back to Reno and James told her, ‘That’s up to Micki.’ ”
Bogden: “Did you ever try to help her?”
Michaud: “I helped her stay alive when we let her go.”
Bogden: “Why did you stop the van?”
Michaud: “Because he was done; he was done with her.”
Bogden: “Was the victim ever released?”
Michaud: “Yes.”
Bogden: “Where did that happen?”
Michaud: “When I pulled off the exit—it was Gap, that’s the only word I remember. When we pulled off the exit, we went up and around an overpass bridge. There was nothing but hills on the sides. He opened the side sliding door. He instructed her to get out. I went around and I came up behind her and I told her, ‘Stay here. Don’t move. Don’t turn around and look at the van. Don’t go walking around at night again because you never know what can happen to you.’ ”
After Michaud’s graphic testimony, Daveggio’s lawyer, Michael Kennedy, had an uphill job trying to refute it. After all, she had been Daveggio’s partner in crime and supposedly witnessed everything. But he gave it his best shot. He already had told the jury in his opening statements that Michaud was a convincing pathological liar. Now he went about trying to prove it.
He showed that on certain documents Michaud had lied to the government agents right from the beginning.
Kennedy: “They [the FBI] asked you about a girl in Reno and you said, ‘There is no girl in Reno.’ Correct?”
Michaud: “Yes, I did say that.”
Kennedy: “You told them, ‘I’ve told you everything I know.’ Correct?”
Michaud: “Yes.”
Kennedy: “Was that a lie?”
Michaud: “Yes.”
Kennedy: “In fact, Mr. Bogden at the November 1998 suppression hearing held in your case asked you, ‘Isn’t it true that you’ve said on twenty-two occasions that you’ve done nothing wrong?’ ”
Michaud: “If it is written, yes. I’m sorry I don’t remember. Oh, God.”
(She then tried to qualify how she saw herself in all of this.)
Michaud: “I’m sorry, I’m not seeing myself being involved because I didn’t plan it with him. I didn’t know he was going to do it until he did it, and I didn’t pull her into the van. I tried to stop it that way, but I couldn’t, when I tried to keep going.”
Kennedy: “Could you have stopped the van?”
Michaud: “I could have.”
Kennedy: “And you didn’t, correct?”
Michaud: “At the expense of my family being hurt, no, I didn’t.”
Trying another angle, Kennedy began to show the dangerous company Michaud kept besides Daveggio. He said, “During that time period [the 1980s and 1990s] you met a lot of folks who you would call shady characters, right?”
Daniel Bogden was out of his chair in an instant, objecting as to relevance.
What followed was the longest and most contentious sidebar discussion out of the jury’s hearing, in the whole trial.
Kennedy pounded away at his point as he, Judge Hagen, and Assistant U.S. Attorney Bogden huddled together. Kennedy argued, “She comes to the case with not only bias but motive, so I’m going to question her about her associations today with various members, her knowledge of individuals who are in the Hell’s Angels, Misfits Motorcycle Club, and other things over the years. She met in January 1999 with authorities saying that if she was released she could infiltrate those groups and tie the Mustang Ranch, in this area, to certain crime activities, showing that she has knowledge of a lot of individuals who fit the basic descriptions of the individual in this case, and so that she has motive to those associations.”
Judge Hagen asked, “How does that give her motive to lie?”
Kennedy responded, “If an individual from the Hell’s Angels, or a different person who did not have tattoos, committed this crime, then she would be in danger for fingering him. The authorities put Daveggio together [with her], so Daveggio is obviously in custody right now, that gives her motive. My defense in this case is that she is lying about the person who did this.... She has connections, going back between California and Nevada, with individuals who are very capable of committing this crime.”
Bogden chimed in, “Your Honor, this line of testimony. . . we’ve given Mr. Kennedy lots of leeway, but this is totally irrelevant to the facts at hand.”
Both Kennedy and Bogden were now talking at the same time, and in exasperation Judge Hagen said, “Wait, wait, wait! Stop! I know it’s not relevant to the alleged crime, but the purpose of cross-examination is also to test the credibility of the witness, and I’d like to hear from you [Mr. Bogden] on the issue of credibility.”
Bogden answered, “Well, I mean, every single person in the United States. He can ask her questions on who doesn’t have tattoos if that’s his theory or that’s the way he’s going. These are hearsay statements that he’s making.”
Judge Hagen finally said, “OK, here’s what I’m going to do. This is getting too time-consuming. Mr. Kennedy will ask the questions he wishes to ask; you [Bogden] will make the objections you wish to make; I will rule on the objection. We’re not going to keep coming back here discussing this issue at sidebar.”
Back before the jury, Kennedy continued down this path, showing Michaud’s association with known criminals, such as the Hell’s Angels and Joe Conforte, and Bogden objected at every instance until Judge Hagen announced it was time to get on with a new line of questioning.
Kennedy had one last card to play. He brought in Misty Michaud, Michelle’s sister. Whereas Michelle had been on the stand for two days, Misty was there for five minutes. Kennedy’s question was succinct and to the point. Would she characterize Michelle as truthful or a liar?
Misty responded, “I love my sister dearly, but I’d say she’s untruthful.”
After seven days of testimony the parade of witnesses was over. Now it was up to the jury of eight men and four women to decide if James Daveggio was guilty or innocent of the abduction and rape of Juanita Rodriguez. On Wednesday, May 19, 1999, they reached their verdict after less than two hours of deliberation. As Daveggio sat quietly at the defense table, flanked by his attorney, the only sign that he was agitated was the constant drumming of his right-hand fingers on the tabletop.
Judge Hagen read the note and asked the jury foreperson, “How do you find the defendant, James Anthony Daveggio?”
On all counts the verdict was the same: “Guilty.”
The federal trial was finally over after more than a year of delays. In Reno, James Daveggio and Michelle Michaud had been fighting for their freedom—in the Alameda County trial they would be fighting for their lives.