Tuesday, April 19, 2011

Gravely injured man accused of murder

Convicted on speculation

Smart, ambitious and successful, Volpato was a pharmacist and three-term City Council member in Carlsbad when he became the suspect in one of New Mexico's most famous cases — the murder of Volpato's wife, Elaine.

Her relatives stood by Volpato through his two murder trials, convinced of his innocence and angered at the state's tactics. At the same time, many of Volpato's friends turned against him. "The betrayal is what bothers me most," Volpato said. "When I start talking about this, I realize there's still some bitterness."

Ask Volpato if he had any flaws, and he lists them without hesitation. He says he was a womanizer, a drinker, a gambler. But he also says he was innocent of the murder charge against him.

He and a business partner operated two pharmacies in Carlsbad. In addition to offering prescriptions and sundries, one of their drugstores housed a methadone clinic for heroin addicts.

In that era before 24-hour drive-through service by pharmacy chains, Volpato would open his Corner Drug Store at all hours to fill prescriptions. "We ran nine other pharmacies out of business by offering that kind of service," he said.

The night of the crime, he took a call at home from a man who said he needed medicine for a kidney infection. Volpato agreed to meet the man at the Corner Drug Store to fill the prescription. This also was the site of the methadone clinic. Elaine, not feeling well, said she would ride along with Volpato and pick up a few items at the store.

Once inside, Volpato said, he soon realized they had been ensnared by a criminal. The man who had called was a robber, not a customer.

The thief had at least one accomplice and maybe two, Volpato said. The second man was sort of a lookout.

Volpato said it was the man who had called about a prescription who pulled a gun and demanded drugs.

Volpato kept the methadone in a safe. He said he thought he would open it, give the thief what he wanted and life would go on after a harrowing night.

Volpato said his wife, who was 36 years old, tried to run when she saw the gunman. The robber opened fire. Four bullets hit Elaine and two others struck Volpato. Wounded in the upper chest and the hand, he still had the strength to dial the police department for help.

An air ambulance flew Volpato to a hospital in Dallas. It was there, in the emergency room, that he said he learned Elaine was dead. His chest wound was serious. "I was clinically dead in that hospital," he said.

Never a religious man, Volpato said he had a conversion while recovering. If there is a God, he said, he needed strength. Volpato said a white glow filled his hospital room, and he committed himself to being a better man, a man of God.

Infidelity in a small town

He had cheated on Elaine many times. She knew it. Soon the police did too. Volpato would have been a suspect in his wife's death, no matter what. His infidelity heightened police interest in him. They searched every inch of Volpato's store, seeking clues about the shootings. They found no gun.

Nonetheless, police developed a theory in which there were no intruders, no thieves after methadone. There was only Volpato. Unfaithful to his wife and perhaps unwilling to lose his big riverside house and money in a divorce, Volpato himself killed Elaine, the police concluded.

But a grand jury declined to indict Volpato. Months passed but nobody was arrested in Elaine's murder.

Then police said they found a breakthrough clue. A broken board behind the safe might have been the spot where Volpato stashed the gun after killing his wife, staging the robbery and shooting himself. The state charged him with first-degree murder in 1981.

He went on trial that fall. Volpato was 44 years old, and he had a hometown lawyer by his side. He said he thought about hiring Leon Taylor of Albuquerque, the state's most storied and successful defense attorney. But Volpato thought that bringing a legal gunslinger like Taylor to Carlsbad might make him seem guilty. An innocent man should not need an extraordinary lawyer imported from the big city, he reasoned.

Looking back, Volpato said not hiring Taylor was a terrible mistake.

Prosecutors made hay out of Volpato's infidelity, though they backed away from earlier claims that money was a motive for him to kill. Elaine Volpato, with a congenial heart defect, had only a $1,000 life insurance policy that her father had bought her when she was a little girl.

The state purported to have science on its side. An FBI agent testified that bullets found in Volpato's home could have been from the same batch as those used in the murder.

"Hocus-pocus junk science," Volpato says. This so-called "bullet-lead analysis" has since come under attack as an unreliable investigative tool that has sent innocent people to prison.

Volpato's gun disappeared after the killing, another strike against him in the circumstantial case brought by prosecutors.

He knew he was in trouble as he studied the jurors. Volpato braced himself for the worst. Jurors convicted him of first-degree murder, and the judge sentenced Volpato to life in prison. He would be eligible for parole after 30 years.

Volpato hired Leon Taylor to handle his appeal, a process that went on for 41 months. Volpato served his time in the Penitentiary of New Mexico south of Santa Fe. Deadly riots had rocked the prison the year before Volpato arrived.

Taylor, now retired in Arkansas, was one of America's more famous defense lawyers by the time Volpato became his client. Taylor handled 384 murder cases in his career, which included time as a prosecutor.

First Taylor said he remembered little about defending Volpato. But then he revealed that Volpato's case inspired him to write a novel called "Tortured Justice." He is seeking a publisher. "It's fiction, but clearly and unequivocally it exonerates Johnny Volpato," Taylor said.

In real life, after four failed appeals, Taylor convinced the New Mexico Supreme Court to grant Volpato another trial based on evidence the defense said had been concealed. New witnesses said they saw three men lurking at the Corner Drug Store and then heard what they thought was a car backfiring. This backed up Volpato's story about a trio of robbers.

Taylor, concerned about negative publicity in Carlsbad, got Volpato's retrial moved to Albuquerque. A tiger in the courtroom, Taylor got in a videotape of Volpato recounting the crime while under sodium pentothal, sometimes called truth serum. But he kept Volpato off the witness stand. In mock cross-examinations in Taylor's office, Volpato did not come across well, Taylor said. "He wasn't an especially good witness. Some people are, some people aren't."

But, Taylor said, his belief in Volpato was unwavering. Taylor said the evidence showed Volpato could not have shot himself, that he could not be guilty.

This time, a jury acquitted Volpato. For many it was not a question of reasonable doubt. During polling of the panel, one female juror said Volpato was an innocent man.

Free again, he did not return to Carlsbad. Instead, Volpato moved to Raton, where his brother owned a pharmacy. For a time, Volpato said, he thought of living in a box canyon with only a dog for companionship. As it turned out, he re-entered society in seamless fashion.

Volpato married again and later returned to politics, winning a seat as a Colfax County commissioner.

Original report here

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