Transcript of Episode 3: The Mother & The Informant

There are 42 days left before the execution, and Maurice and I have split up again. I'm heading out to St. Louis to meet Gregg's co-counsel, Jeremy. It's very bleak and rainy, and we're setting off on a little road trip to go look for yet another alternate suspect.

What we are going to do is we are going to interview, hopefully at least, a man named Eddie Barton. He came up in the file—

Eddie Barton is on Jeremy's list because back in 1989, Barton confessed to killing young women and burying them in the desert in El Paso. He actually confessed to the murders while also confessing to another completely unrelated crime. All this confessing happened to FBI agents in Las Vegas. Unfortunately for Barton, and please forgive me, this was not the kind of thing that would just stay in Vegas. In their interview with Barton, the FBI recorded details about why he chose the desert to bury his victims. Barton claimed he picked victims who were, quote, "small, petite," young, with features similar to that of his wife. According to court records, the FBI decided to alert the El Paso Police Department. But by the time anyone in El Paso got around to talking to Eddie Barton, David Wood's trial for the murders was already ramping up. 3 years had passed since Barton's original confession, and by now he denied everything. Said he didn't even remember confessing at all, given that he was really strung out on dope and booze at the time. So Jeremy's dream scenario is to see if he can jog Barton's memory and get him to come clean on a series of grisly murders that he once confessed to more than 3 decades ago, thereby saving David Wood from an impending execution.

Jeremy knows they've already dug into other alternate suspects who went nowhere, and he knows some of the other claims they've developed for their petition are more promising. But Jeremy's also aware that someone else confessing to the desert murders would be huge for his client. A long shot that might be worth the trouble. Jeremy has tracked Eddie Barton to an assisted living facility a little more than an hour west of St. Louis. It's worth noting that Jeremy, who is the boss of the Capital Habeas Unit in Dallas, is not generally out in the field like this anymore, which tells you a little something about how much of an all hands on deck situation we've entered into. As we pull over at a gas station about 10 minutes away, Jeremy takes out a pad of paper and starts going over notes.

Yeah, scribbled a few things down.

Usually, Jeremy tells me, he instructs the other lawyers on his staff to look for light topics to start a conversation. Something easy and soft to lead with. But he's really struggling with this one. How exactly is he going to lightly accuse someone of being a serial killer?

There's not soft lead-ins to that. At least not that I can think of. And here—

The only other thing Jeremy really knows about Eddie Barton isn't particularly promising either. And that's the other crime Barton confessed to in Las Vegas.

The reason why he was speaking to the police is 'cause he had, according to him, put a hit out on his wife and paid, you know, a business associate $40,000 or something like that to kill her.

Well, to be specific, according to the court records, Barton had gone to the Vegas police because he actually changed his mind about the hit on his wife and wanted to put a stop to it. Only, it appears he couldn't contact the business associate he paid the $40,000 to and started to suspect that maybe the business associate wanted him dead, perhaps on account of Barton implicating him in a murder-for-hire plot.

That's obviously not a fucking soft lead-in either.

Jeremy continues to ponder his approach as we head back on the road. We drive past the address he has for Barton's nursing home. It's a series of connected gray trailers in front of honestly the saddest looking pond I've ever seen.

I don't know what the fuck this is in the front yard, but—

The destination is on your right.

Interesting.

Do we have a sense of which door?

Nope. We have a sense that we're about to get wet, muddy, and probably have a very awkward conversation with a nurse.

Jeremy picks a door and we walk in. He asks someone who looks like they work there if Eddie Barton is around. He's in the day room having lunch, she says, points him out. We head to the day room and there's about 30 residents in there, all eating and watching a TV show. Jeremy sidles up to Barton and introduces himself. Says he's here to ask some questions about some bodies found in the desert in El Paso in 1987. He says this at what I would consider a professionally discreet volume. But it doesn't matter. Everyone in the room is now staring at us. Maybe because Barton, who is in his 60s, squat and tattooed, and also apparently a little hard of hearing, repeats Jeremy's words at a much higher volume. Bodies? In the desert? He says he'll talk, but he wants to finish his lunch first. We go down a corridor and wait by some couches. After about 20 minutes, Barton gives me the okay to record, and Jeremy dives in.

I've got a copy of an FBI report. Do you mind if I just show that to you a second?

Yeah.

It's from the FBI.

That's what it says, so I hope so. So there's some stuff. There's a couple of pages here.

Jeremy hands Barton a summary of what Barton told the FBI. Barton's alleged hit on his wife, his confession to killing women and burying them in the desert. Barton takes the pages and reads. He's scowling, looking like he's trying to take the information in.

Who said all that stuff? Who gave that statement?

So this is the— this is just their recap of their conversation with you.

From the jump, Barton's obviously confused, almost a little disoriented. But it seems like he's making a real effort to focus. He makes his way through the report slowly, his eyes getting wider and wider as he reads.

Paid $40,000 to kill his wife. What is this? This is crazy stuff here. $40,000. I ain't never seen $40,000. Each in cash. To kill his wife. Barton told Shaver he wanted— I suppose I said this. You know what they say?

That's what they say. I mean, it's just what's in the report. I mean, I'm not sure how seriously they took it.

I don't remember claiming killed people. I don't know. That's wrong. I wasn't even there. Do I need a lawyer?

It's possible that this represented the high point of the interview with Eddie Barton. Because as we continue talking, the employees at this care facility start wondering if maybe their visitation protocols are a little too loose. Someone comes over, they say to observe, but I peek over and see them on their phones Googling all the Desert Killer stories I've Googled in the past myself. We have now fully entered Coen Brothers territory. Other residents scoot by as we talk, rubbernecking as they slowly push their walkers past us. At some point, apparently fully on alert now, someone on staff tells us they've called the sheriff's office. They tell Barton they want to protect his privacy. This kind of pisses Barton off, who does not appreciate being infantilized. He explicitly told us he didn't commit these murders. But he tells his minders that he still wants to talk to Jeremy about David Wood.

This guy's gonna die the 13th. They're trying to tie some loose ends or what I might be able to help. I don't want nobody to go to death row. I hope the guy who didn't do it gets off.

Somehow in all of this, Barton seems to have missed the central thrust of Jeremy's reason for being here. Jeremy could clarify. Could explain that there's really only one way Eddie Barton could help David Wood get off death row. By confessing to the murders himself. But I can tell by Jeremy's expression, he knows this isn't going to happen. It is striking how quickly Barton wanted to help, though. He might not have understood the specifics, but he certainly seemed to understand what was at stake. That a man's life was on the line. That he could help in some way. Shouldn't he? The lawyers on David Wood's defense team are living with a magnified version of this urgency all the time now. The feeling that anything they do or decide not to do could lead to their client's execution. An almost impossible amount of pressure to find something, anything, that'll improve their odds. With 6 weeks left before the execution date, the lawyers now have very little time to work with. Exhausting every avenue for their client will mean putting themselves right in the middle of some messy human dramas with complicated stakes all their own. And the lawyers will have to figure out just how far they're willing to push people to save David Wood's life.

From Serial Productions, The Marshall Project, and The New York Times, I'm Alvin Maliff.

And I'm Maurice Tramah.

This is The Last 12 Weeks.

The lawyers have determined that they've got about 3 more weeks they can spend knocking on doors before it's time to write up their final legal filings. So now they have to decide once and for all what to do about Randy Wells. Randy Wells was one of the two jailhouse informants who were imprisoned with David Wood. These informants testified at trial that David Wood admitted to them that he was the Desert Killer, that he bragged about it, really. Their testimony was crucial in sealing David Wood's fate. Incidentally, these informants surfaced not long after a prosecutor grumbled about not having enough evidence against David Wood. He mentioned in a memo how great it would be to find some jailhouse informants. One of the informants is dead now, so the lawyers can't ask him if he was lying at the trial. But Randy Wells is still alive. When Randy Wells first met David Wood, he had a long record and was in prison for theft, served his time, got released, and then pretty quickly got arrested on a capital murder charge. That's when he told police, "Oh, yeah, David Wood told me he's the Desert Serial Killer." Then, after he testified against David Wood, his murder charge was dropped.

A prosecutor who dealt with Randy Wells in a different case once wrote, quote, "If this inmate spent just 1/10 of his time in a positive manner, rather than trying to figure out how to steal or beat someone out of something, he could sell ice boxes to Eskimos." This seems to be the consensus among the defense team, that Randy Wells is a slippery character, mostly in it for himself. But the lawyers are hoping an impending execution changes things, that he'll feel guilty and finally confess to lying at David Wood's trial. But for the past few months, the lawyers have been struggling to get in the same room with him. Randy Wells is in his 60s now, living in a tiny Texas town called Rising Star and married to a woman named Tracey. The lawyers made a trip out there, and Tracey answered the door.

Hello.

She revealed that her husband was just diagnosed with lung cancer. So not a good time. She said, "You can come back tomorrow," which they did, but she turned them away again. Naomi gets assigned to keep on top of this. Over the course of the lawyers' weekly Zoom meetings, she updates everyone on her efforts with Tracey.

So I just texted her and I said I hoped that the past couple of weeks had been kinder to her and Randy and that he was feeling better. She has her read receipts on, so I know that she read it, but she hasn't responded.

Gotta turn those off, people, if you haven't done that.

So I got a little bit worried and I Googled his name. I don't think he has passed away, but she's been super responsive before, so I'm a little bit worried. So I think I might just text her on Thursday.

Naomi sends the text. The weekend comes and goes, no response. She tries calling, it goes to voicemail.

Hi Tracey, this is Naomi Fenwick with the Federal Public Defender's Office. We met about 3 weeks ago in Rising Star. We're just getting closer and closer to his execution date.

It goes on like this for weeks until Tracey finally responds and explains why she ghosted Naomi. Grandy Wells is in the hospital, and it's not looking good. He's gone through multiple rounds of chemo, but the cancer has spread. He's mostly bedridden, breathing with an oxygen tank. The lawyers and the rest of the team now have a choice to make. Do they wait until Wells is back home? What if he never comes home? Or do they ambush him at the hospital? It's a question of human decency, but what I hear mostly is about strategy.

Now, uh, Naomi, I've run this idea by you before, and you were— I think mortified is the word I'm looking for— uh, going to the hospital, seeing when visitation hours are, and, uh, talking to him without Tracy being the guard dog.

You know, that does facilitate, uh, styling it as a dying declaration if it's, uh, being taken from him while he's in the hospital.

So Yeah, that's right. So the downside is if we do that and Tracy finds out, she may never give us permission if they— if Randy gets out and is in a state where he might be willing to talk to us. Yes.

So do I ask her what hospital he's in? Because we have— we don't know.

Just tell her we want to send flowers.

That's a great idea.

Chocolates and flowers and candy.

They're joking, mostly.

I mean, I think in the short term I would not be banging down the hospital door, but I do think we do get to a point where, like, that's where he is. It's just where he is. It could be such a game changer for the case. Like, if Randy— if we get a statement from Randy Wells backtracking on his trial testimony, our chances of a stay and success go up monumentally higher than they currently are. And so if at the end of the day he's in the hospital, he's in the you know, the hospital. So obviously that's not ideal, it's not how we want to do it, but you know, like I said, if we're still here in like 2 weeks and the option is don't talk to him or awkwardly and offensively, you know, knock on his hospital door, you know, to me it's door 2 at that point.

I think it's worth mentioning here that all of the lawyers on this call have had clients who were executed. Clients who they couldn't save. Greg, Jeremy, Naomi, they've all had to sit in front of someone and tell them, "We're out of options." They've all had to watch what that does to a human being, taking in the news that soon they'll be killed. I know from stories I've done in the past that the execution of a client is a shattering event for habeas lawyers. One lawyer said that the finality of it is enough to give you vertigo, to watch a person who you've built a relationship with sometimes over years, be reduced to a few file boxes you put into storage at the office. The days after an execution are the most acute. Sleep comes in 18-hour chunks. But even after you get back to work and try to keep up with your other cases, a dark cloud lingers. Burnout is pretty common. Alcoholism and divorce, too. All this to say, these lawyers are operating under tremendous pressure. It's not just their clients' lives that are at stake. It's their own emotional states too. But actually, this kind of thing doesn't come up much when we're following the lawyers around.

When I asked Greg about it, he said that when he's on a case, he tries to push all of that away. He can't think about it without succumbing to paralysis. But obviously it's there. It's gotta be. So as the lawyers talk about the propriety of barging into Randy Wells' hospital room to get him to say that he lied on the stand while he lies there on his own deathbed, with his wife and his family around him as he dies from lung cancer. Well, this might be the closest I've come to actually seeing the pressure in action. The things the lawyers are willing to do to avoid an execution and everything that follows. These lawyers feel that every option must be on the table, even if it means a sort of gross and distasteful scene at a Texas hospital.

Mm-hmm.

But it doesn't come to that. Naomi hears from Tracey. Randy Wells has been released. He's back at home, but now he's on hospice. Doctors give him less than 6 months. The lawyers agree they're past the point of texts and appointments. Naomi drives out to Rising Star. Tracey lets Naomi in and is surprisingly kind about it all. She introduces Naomi to Randy, but he's gaunt and barely conscious. He can't make eye contact, much less answer questions about testimony he gave decades ago. Naomi instead talks with Tracey about her grief over her husband's illness, about her belief that despite all the wrong Randy Wells did in his life, he was still a man who she loved. Naomi sits with her for a while and then leaves empty-handed. The lawyers don't dwell on whether they should have acted sooner, whether they should have just burst into Randy Wells' hospital room and lived with the consequences, and they'll never know what they might have gotten if they did, because the day after Naomi's visit, Randy Wells dies. We'll be back after the break. You could argue that the number one public advocate for David Wood's execution is a woman named Marsha Fulton.

In 1987, Marsha's younger daughter, Desiree, who she called Desi, was an energetic 15-year-old who, on the last day of 8th grade, never came home. Her body was the 4th one found in the desert. Since then, Marsha has consistently organized and pressed for David Wood's execution. She's all over news reports questioning why he's still alive. So I found it kind of shocking when the defense team told me they wanted to reach out to Marsha and see if they could get her to switch sides. That sounded like the biggest long shot yet. I wanted to get to Marcia first, before the lawyers. Yes, to hear about the case against David Wood from her perspective, but also I wanted to know what this was all like for her. Following the lawyers around, it was easy to get a sense of how much they wanted to save their client, to stop the execution. I found myself wanting to know, what's it like to be on the other side of that mission through all these years of delay? Marcia is used to hearing from reporters, so when Alvin and I call, she immediately gives us her address. We drive up to her house in a gated mobile home park on the outskirts of El Paso, easy to find because she really likes lawn gnomes.

There are dozens of these little guys lined up guarding her house. For an interview with a woman who lives alone, the proceedings were actually pretty crowded. Marcia volunteers to rehabilitate wildlife in her home with a local animal rescue. She has one of those dry erase boards in her living room laying out which animals are in which parts of her home. And so right now you have a pigeon.

Right now I have the pigeon, the squirrel. Well, I have a hamster, but I just found out he's running around the house somewhere. She is. She got out of the cage. I have no idea how she did that.

All of these animals are in addition to Marsha's dog, a 6-year-old cockapoo mix named Muppet, who Marsha tells us is more of a hugger than a humper. Although when Muppet takes a liking to Alvin's leg at one point, that seems to be a distinction without a difference.

So well behaved.

He is.

All this to say, Marsha's home is warm, inviting, casual, as is Marsha. Initially, Alvin and I were a little hesitant about how to approach her. Our first instinct was to do it delicately. That seemed appropriate for an interview with a grieving mother. But pretty soon I realized that Marsha chafed at that kind of thing.

I was sitting in the bank the other day, and a woman sat across from me, and she goes, "You're Mrs. Wheatley, aren't you?" Yeah. She says, "We're so sorry for your loss." "Thank you." You know, to this day, I have people still coming up and telling me that. This has been 37 years.

It's not that Marcia doesn't feel the loss, of course. She does acutely. Desi's murder defines her, even if that's sometimes hard to put into words.

When it's your spouse, you're either a widow or widower. If you don't have parents, you're an orphan. But when the parent lose the child, there's no name for that. No name for that. And it's like you are lost.

Marcia's grief is enormous, but it's not sentimental. She doesn't shy away from the hard stuff. She's too much of a brass tacks type of person for that. So here we are to talk about the murder of her daughter and the execution of David Wood. We get down to brass tacks. Back in 1987, Marsha Fulton, who was Marsha Wheatley at the time, was divorced and raising her two teenage daughters in El Paso. Desi was the younger one, a real spitfire, according to Marsha. Her middle school friends would later describe her as the life of the party. Desi. And a bit of a risk-taker, chatting up strangers, occasionally even hitchhiking. On the last day of 8th grade, Desi stayed out to celebrate. When Marsha got home from her work shift, it was after midnight and Desi hadn't come home. So she drove around looking for her, and when she couldn't find her, she called the police.

And they were going like, "Look, we're up to here now with teenagers. It's last day of school. We're getting all these calls." So they sent somebody over, but then he called it in as a runaway. And he says, "Well, we're just gonna wait and see what happens." And I says, "Well, what if she doesn't come home?" And he says, "Well, we'll figure that out when the time comes." And I says, "When? When you find her body?" I don't know why I said that, 'cause I had, you know, that was just my first thought out of my head. And he goes, "No, no, Mrs. Wheatley, it's not gonna come to that." Famous last words. Anyway, it took them months to find the body.

Desi's remains were found in a shallow grave in a patch of desert covered in brush and trash. Marsha knew it was her daughter in part because police found her t-shirt where other 8th graders had signed their names on the last day of school. 2 weeks after Desi's remains were found, Marsha held a funeral.

At the funeral, I sat there and, you know, got up after it was over and patted the casket that Desi was in. And I said, "Don't worry, sweetie, I'll find out who did this and he's gonna pay." And that was my promise to her.

Marsha has been determined to keep her promise to Desi. She hounded El Paso PD to solve the Desert Murders. At first, police treated the victims as runaways, unconnected to each other. But Detective Johnny Guerrero told us that it was Marsha who pushed them to see the connections. It was Marsha who told them to interview kids at Desi's middle school, which eventually led them to David Wood. I tell Marsha that it's possible that if not for her, this case would never have been solved. Marsha bats this idea away. She says she was just persistent. In any case, she did turn out to be crucial in key decisions about David Wood's punishment. Marcia wanted the death penalty, but the El Paso DA's office was struggling to get him on all 6 murders. One day, Marcia says she got a call from the district attorney of El Paso himself, a guy named Steve Simmons. He asked Marcia to come to his office.

I said, "Okay." So I went in. Maybe I'm thinking he's got some information, some news, something. And Steve Simmons kept saying, "Look," 'Why don't we go after him just for Desi?

Because we've got evidence on him for that.' Remember the orange fibers police found at David Wood's apartment? They'd found similar-looking fibers near Desi's body too. It was the only physical evidence that tied David Wood to any of the crime scenes, and it linked him directly to Marsha's daughter.

He says, 'We've got something to get him for her murder.' So he says, 'Well, look, think about it.' and we'll go after him and we'll get him for Desi. So I get back in my car and I'm driving home, and I get halfway home and, man, I start getting mad because I knew that we would not get the death penalty for one murder, but six? And I called him back when I got home and I said, "No." I said, "You know and I know whoever killed Desi killed those other 5 girls." I said, "Do your job, period." I could be a real bitch when I wanna be. But I had rights. That's what I figured. I had a right to do what I wanted to do.

Meanwhile, Marsha kept advocating, not just for her rights, but for the rights of all crime victims and their families. For a time, she ran the El Paso chapter of a national group called Parents of Murdered Children. This was the heyday of the victims' rights movement, which fought for family members to get on the stand at trials and give victim impact statements, and even to witness executions. That last part is important to Marsha, because ever since David Wood was convicted, Marsha has planned to be there when he's put to death. Marsha admits she was naive back then. She thought the execution would happen a year after David Wood got his death sentence, maybe a year and a half. Instead, she waited. She waited as David Wood lost appeal after appeal. 5 years go by, 10 years. After 17 years, an execution is finally scheduled. It's 2009. Mm-hmm. Marsha flies out to witness it, only to get a call the night before saying it was called off. Apparently, there's this new lawyer, Greg Werchuk, arguing David Wood has an intellectual disability. Marcia finds this absurd, and the courts ultimately reject this appeal, but it takes them 5 years to rule on it, just enough time for a whole new round of litigation about DNA testing that takes another decade.

All the while, Marcia waits. There's something almost methodical about her patience.

Every once in a while, I get a little frustrated and I go, "Nope, nope." 'Cause my thought is, you know, he took my daughter, okay? But he's not gonna take me. I refuse. I mean, I know some people would curl up in a corner and not wanna get up.

I went, "No corner." In the course of her long wait, Marsha lost others. Her husband died, and then her older daughter died too. Even for someone like Marsha, someone who does not wear her grief loudly, there are limits.

I mean, I don't carry it with me, but it's there. I know it's there. I'm not trying to kid myself. But yeah, I promised her I would find out who did it. He will pay for it, and I'm gonna make sure he does.

Are you taking the lead or am I taking the lead?

It might be better if you take the lead and I can pipe in as needed.

The day after Maurice and I interviewed Marsha, we watch as Greg and Naomi prep their own approach with her. Habeas lawyers don't always approach victims' family members. Naomi, for example, 7 years on the job, had never done it before. But the lawyers were uniquely aware of Marsha's power in this case, the way she became the public face of the prosecution. It would be a big coup for them to recruit her to their side. But it seems like Naomi and Greg are starting with some of the same off-target assumptions that we had.

Is there a particular reason why you'd rather her take the lead?

Uh, from what I've seen of Naomi, she's very empathetic. I'm not saying I'm not, but I think Naomi is, uh—

Amy's covering her face with a notebook. Over lunch, there was more talk about empathy and trauma, a lot of direction about using soft tones and centering Marsha's loss, even as they tried to gently redirect who she blamed for it. All to say, I think the lawyers were outlining an entirely reasonable approach for a woman not named Marsha Fulton. Not that Maurice and I would tell them that. Ethically, we wouldn't share any meaningful information about Marsha with the defense team. Marsha suspected that the lawyers might try and talk to her at some point. And if that did happen, she said it'd be okay for us to tag along and record. With the defense team, we shared some little details about Marsha's many lawn gnomes and the baby squirrel she was nursing back to health. But telling the lawyers what we learned about Marsha and what we made of her, anything that might help them with their pitch, that was all clearly outside of our job description. So I kept up my poker face while the lawyers detailed their plan, which, like all of their interviews, involved no warning. From calling ahead. And I know they probably don't give out Pulitzers for stuff like this, but I gotta say, I was a picture of neutrality when I got into Naomi's rental car and realized they had absolutely no idea where Marsha lived.

So the address we have that's coming up, it's leading kind of to nowhere.

I wasn't gonna help them with that either.

What do you wanna do?

We could ask generally the address, and if Alvin blinks once, that's the correct address. If he blinks twice, it's not the correct address.

They drive across town 20 minutes to one wrong address, and then turn around and drive 30 minutes to another.

Yeah. You could just tell us, are we getting warmer?

Or colder.

Okay.

I think it was about an hour into this car ride when I started to wonder if maybe I'd taken this all a little too far. If maybe my journalistic ethics were about to get me forcibly ejected from the backseat of a moving vehicle.

There was a gnome back there. Did you see that?

Yeah.

I don't know if there were excessive numbers. I did see one.

About an hour and a half after embarking on the 20-minute drive from the hotel to Marsha's house, the lawyers finally found her. And in general, Marsha is totally unfazed, like she's been waiting for them to arrive. She ushers us into the same seats in the living room that Maurice and I sat at less than 24 hours ago and starts the proceedings.

What can I help you with today? Or what do you need to—

Well, uh, what we were wanting to do is just kind of tell you what we've discovered over the last year or so.

37 years.

37 years. Haven't been involved in the case that long. I know.

I have.

But yeah, go ahead. Go ahead.

No, so I— my office, the federal public defender's office, was appointed just a few months ago in the case.

The lawyers start making their pitch to her, all the things they think might be most likely to get Marcia to rethink her certainty about David Wood's guilt. They talk about the unknown DNA found on a piece of victim's clothing and how the state wouldn't agree to more testing. They lay out the information they've gathered on Randy Wells. They even personalize a little bit, go deep on the orange fibers found at Desi's crime scene and at David Woods' apartment.

We think there's a strong possibility that the police took fibers and spread them out where Desi's body was found.

Marcia isn't offended by the lawyer's theories, or at least she doesn't show that on her face. What I see more is genuine skepticism. She brings up the things she's heard or seen over the years that painted David Wood as guilty in her mind. Didn't the girls in El Paso start disappearing right after he got out of prison? Hadn't they already tested hundreds of pieces of evidence? And what about one of Desi's girlfriends who testified that the last time she saw Desi, She was getting into a truck that looked just like the one David Wood drove around.

So, you know, these things I hear from different people is what makes my radar just go beep, beep, beep, beep. You know, and the fact that the last time her girlfriend saw her, she was getting in his truck and no one seen her after.

Right.

So those are things in my mind that just I just can't let go and say, "Mm, I don't think so." Yeah, you know, I'm not trying to, you know— I know. Go ahead, dear.

Someone did take your daughter.

Yes.

And, you know, her friend saw her get in a pickup truck. What we do know now is that, you know, they had the name of at least one other person who had a truck who matched the same description and who came up in the El Paso PD's investigation.

Oh, okay. What was his name?

Well, his— we could tell you his name is Michael Plyler. Now, I don't know if he's a— suspect or not, but the police certainly thought he was because he had the exact same type of truck, a Nissan pickup truck, and he kind of looked like David Wood, tall skinny guy, kind of longer hair. So somebody that potentially looked like—

I thought they would have more than one suspect.

Yeah.

That they wouldn't just single, single out one person.

Yeah.

So I'm hoping that when they found the one person they couldn't dispute would be the one that they would charge. And I know some of it's circumstantial, but how much does circumstantial build up before it becomes real?

For a defense case built on the idea that the El Paso Police Department had tunnel vision for David Wood, that they singled him out as a suspect, This would have seemed like the perfect opening for the lawyers, but it's not something they pushed back on. In fact, a lot of the things Marcia brought up in this conversation, the lawyers did have rebuttals for them. They were sometimes complicated and hard to boil down, but I'd heard them deploy them before. So it was interesting to watch them take a more passive approach here. They mostly just politely listened and only occasionally reached for a correction. And when they did, it was very, very gingerly.

Thank you.

I totally got where the lawyers were coming from. I was literally there the day before. But the particulars of Marsha made the whole thing feel kind of jarring. She seemed like she was ready to have it out, and the lawyers seemed too worried about offending her to meet her where she actually was. In the moment, though, sitting in Marsha's living room, it's hard to say if there was a perfect approach to this. Marsha said more than once that she was 100% sure they'd gotten the right guy. But we were also more than an hour in. And everyone was still talking. So that was something.

Well, we've shared a lot of information, but I wanted to ask if you have any questions for us or anything you would like us to know about.

I guess maybe my only question, and it's probably not the proper thing to ask, is, No, I don't think I'm going to ask it. I'm sorry. Well, yeah, I want to ask why you feel compelled to help him or whatever, you know, or to represent him. That always makes me wonder. Not about your intentions, but you know, what makes you— just like it makes me feel that I know he's guilty, what is it in you that makes him feel he might not be?

Well, a lot of the things that we've talked about today, I mean, for me, the DNA has always been extremely powerful evidence.

Mm-hmm, yeah.

And if you've got 150 items and only 3 have been tested, and one of those 3 excluded him, then let's test the other 147 before we carry out this execution. And that's what's been frustrating for me personally as I've been working on this case and learning more about it. And that's what's motivating me to come and talk to you today.

Of course.

And let me ask you, what's your reaction to that?

Well, I understand that from your view. I do, because yeah, again, from my view, I would be the same way.

Sure.

You want to make sure. You don't want to just put somebody to death just for the heck of it, you know? No, that doesn't help me. I don't want a person. I want the person.

Right.

So, you know, I got that.

Right.

After the interview, the lawyers parked nearby to debrief. They weren't exactly convinced that Marsha had a change of heart. But they detected what I thought I witnessed too. A tiny seed of doubt. A little crack in Marsha's certainty that wasn't there before. Though it's a little unclear what that's worth at the end of the day. Back in 2009, when David Wood was first scheduled for an execution, Marsha says the prosecutors reached out, that she used money from the victims' compensation fund for a flight and a hotel. This time around, nobody from the prosecution even bothered to notify her. She only learned about the new execution date 3 weeks ago from a local reporter. There was even a surreal moment in the interview when Marcia asked Naomi and Greg if they could help her navigate the bureaucracy to witness their client's execution. [FOREIGN LANGUAGE] Regardless of how central a role Marsha played in putting David Wood on death row, it wasn't altogether clear how she fit into the picture now. Whether turning her to their side would have made much of a difference. It was entirely possible that the lawyers put in all that time and effort just to leave Marsha with a nagging feeling that maybe she'd be helping to send an innocent man to death, even though she might be powerless to do anything about it now.

It's hard to feel good about that as an outcome. But I'm struggling to think of what the lawyers should have done differently. Greg and Naomi had to try. Because maybe if they didn't, they'd be the ones left with the nagging feeling. That they stopped just short of doing everything in their power to save their client's life. It's hard to feel good about that as an outcome either.

On February 21st, just under 3 weeks from David Wood's execution date, it's pencils down for the defense team. Time for them to show their work. They file what's called a subsequent application for writ of habeas corpus. This application will go to the Texas Court of Criminal Appeals, the highest court in the state for criminal cases. 9 judges, all Republican, all pretty unfriendly to death row claims. The success rate for these kinds of filings in Texas is pretty daunting, less than 6%. Greg is not embracing the virtues of brevity here. He's delivering a monster, 371 pages with more than 100 exhibits. You've heard all the strongest stuff, and so you know these pages contain no smoking guns, no confession from another suspect, no direct evidence of police corruption, just lots and lots of small problems with the case, coupled with big claims from people like George Hall and Ramona Dismukes, who both say star witnesses at the trial were lying, but also can't prove it. This application is their best and probably last chance to convince the court to stay David Wood's execution. A stay is the best the lawyers can hope for here. For the court to say, "Hold up, there's something potentially wrong here.

Let's send the case to a lower court to dig deeper." It's highly unlikely this court will simply declare David Wood innocent, but a stay is still big. It means David Wood gets to live, and then his team can spend months or even years continuing to make the case for his innocence. The lawyers don't know when they'll get a decision. Could be close to the wire and could set off a bunch more frantic litigation in the final hours. In the meantime, we just have to wait. And Alvin and I finally have time to meet the man this is all about. Next time on The Last 12 Weeks, David Wood.

Hello.

The Last 12 Weeks is written and reported by me, Maurice Schama. And Alvin Meleth. Alvin produced the series. Jenn Guerra edited the series along with Anita Battagio. Julie Snyder is the executive editor for Serial Productions. Additional editing from Akiba Solomon. Fact-checking and research by Ben Phelan. Music supervision by Jenn Guerra and Phoebe Wang, with mixing by Phoebe Wang. Additional mixing by Katherine Anderson. Tracking direction from Sean Cole. Our associate producer is Mac Miller. Additional production by Anita Badejo. There's a lot about the death penalty that we couldn't fit into this show— stories from capital defense lawyers, a fascinating look at the data behind executions. You can find all of that in our newsletter. Sign up for it at nytimes.com/serialnewsletter. Original music for this series by Adam Dorn, AKA Motion Worker, Matthias Bassi, and John Evans of Stellwagen Symphonette. Additional music by Dan Powell and Marian Lazan. Adam Dorn, AKA Motion Worker, composed our theme song. Video production by Sean Devaney. Our standards editor is Susan Westling. Legal review from Alamin Sumar and Jackson Bush. The art for our show comes from Pablo Delcon. Sam Dolnick is deputy managing editor of The New York Times. Special thanks to Michael Ona, Susan C.

Beachy, Gillian Campbell, and Justyna Garbaczewska-Scalpone. Thank you. The Last 12 Weeks is a production of Serial Productions, The Marshall Project, and The New York Times.