Until Proven Innocent

FOREIGN LAW

Ever since he drove across the border into Mexico, Dykes Simmons, 38, has had good reason to reflect upon the problems of American suspects abroad. For seven years, while he has sweated out a death sentence in his sun-baked prison cell in Monterrey, the Fort Worth crane operator, now a convicted murderer, has pondered the harsh fact that whatever Mexican law says, an American defendant may well have to prove his innocence in the face of assumed guilt. In a U.S. court, a prosecutor would have had to prove Simmons' guilt beyond a reasonable doubt--a difficult, if not impossible, task.

Illegal Line-Up. Dykes Simmons is the first American ever to be sentenced to death by a Mexican court. The crime for which he was condemned to face a firing squad occurred on the night of Oct. 12, 1959, after Simmons entered Mexico from Laredo, Texas, about 45 minutes behind a Monterrey dentist named Raul Perez Villagomez. Roughly 43 miles south of Laredo, the dentist's car broke down. Leaving his younger brother and two sisters behind, Villagomez went for help. When he got back to his car, his brother and one sister were dead, riddled with .22-cal. bullets. Hilda Villagomez, 18, had been shot seven times, and was barely alive.

At the hospital, where she survived for 17 days, Hilda described the gunman as a tall, blond, 200-lb. American who had stopped in his southbound car, tried vainly to start the Villagomez car, and started shooting when the youngsters giggled at his failure. He wore a white shirt and dark trousers, she said, had two gold teeth, and drove a blue 1958 Chevrolet with Texas plates. Mexican police immediately began a massive man hunt for all Americans who had crossed the border at Laredo on Oct. 12. In a dusty village 130 miles northwest of the murder scene, they picked up Simmons--and immediately freed him as the wrong man.

Sightseeing Mistake. Not only was he 3 in. shorter and more than 35 lbs. lighter than the fugitive Hilda had described, but he had dark hair (now grey) and no gold teeth; he wore different clothes and drove a two-toned 1954 Oldsmobile. Told that it was all a mistake, Simmons spent the next day sightseeing and swimming only 50 miles from the border. He might better have headed for home. While he relaxed, the police learned that he had been convicted of burglary and auto theft in the U.S. Besides, he was technically a fugitive from a Texas mental hospital, and he had signed his tourist's card with his brother's name (because the car was registered in that name). Most important, Mexico was crying for an arrest.

Picked up once more, Simmons was threatened with a cocked gun in a vain effort to make him confess, then hauled to Hilda's hospital room, where the dying girl had already identified the killer as everyone from her own doctor to one of the FBI's ten top fugitives. In such cases, the penal code of the State of Nuevo Leon specifies that the suspect be placed in a line-up with similar persons in similar dress. Simmons was ordered to wear a white shirt and dark trousers and brought into the room with white-coated doctors. Hilda by then could hardly speak; a bullet had destroyed her tongue and upper teeth. The prosecutor leaned close and only he heard her alleged words: "Yes, it is he. May God forgive me if I am wrong."

Present at the time was a U.S. consular official with only one duty: the standard consular task of seeking for arrested Americans the same justice enjoyed by the arresting country's own citizens. In Simmons' case, however, the U.S. official failed to protest the patent violation of Mexican line-up law. He had never heard of it.

A "Confession." Simmons is convinced that U.S. consular officials dealt him an even worse blow three weeks later after Mexican newspapers headlined a "confession" by another man--a psychotic Texas physician who had been arrested near Muzquiz for running around naked while shooting up an Indian village with a .22 rifle. Not only did the doctor roughly answer Hilda's description, but on the day of the murder he had been seen carrying a .22 pistol only six miles from where the shooting occurred. According to newsmen and the Muzquiz police chief, the doctor repeatedly stated that he had killed "three children" on the Monterrey highway because "they laughed at me."

With the permission of a Mexican judge, U.S. officials drove the demented doctor across the border (after putting him in a straitjacket) and deposited him in a Waco mental hospital. Since released, he is now practicing in Houston. Bullets from his assorted weapons have never been matched against those used in the Villagomez murder, and no solid evidence links him to the Villagomez crime. Nor has any American in living memory ever been extradited to Mexico.

Simmons, who was left behind to try to prove his innocence, had two Mexican lawyers, neither of whom spoke enough English to communicate with their bewildered client, one of whom is now a fugitive facing embezzlement charges. Though the defendant voluntarily took two lie-detector tests, which are sometimes admissible in Mexican courts, the inconclusive results were ignored. The murder gun was never found; a clear tire mark at the scene did not match Simmons' tires; hundreds of curiosity seekers obliterated all fingerprints on the death car before police thought of checking it for fingerprints.

Adamant Innocence. Simmons' lawyers argued that he should be returned to Texas as a mental patient who had no criminal responsibility under Nuevo Leon law. Nevertheless, without a jury, Simmons was found guilty in March of 1961, largely on the strength of Hilda's alleged identification. Although an appellate court tossed out that key evidence as illegal in 1962, the original trial judge simply pronounced Simmons guilty once more on the basis of disputed facts and such other items as his falsified tourist card and "penal antecedents." In 1964 the Mexican Supreme Court upheld that verdict; last month Simmons' bid for legal exoneration by the state's governor was turned down.

It is hardly likely that he will ever be executed. Nuevo Leon abhors capital punishment, has sent no one to the firing squad for 61 years. Moreover, Simmons' death sentence will be automatically cut to 25 years in 1970 because he will have survived a final death rap for five years. He has also been told that he will "probably" be freed if he petitions Nuevo Leon's governor for commutation. But Simmons is an obsessively stubborn man: he refuses to make any move that might be tantamount to admitting guilt.

Blood-Music. He has, however, twice tried to escape; he was shot during one attempt and received an additional four-year rap. In 1964, after his visiting mother found him "frightfully beaten" and lying in a pool of blood on the floor of his solitary confinement cell, U.S. officials vigorously protested his treatment. Simmons is now permitted such amenities as a TV set, a stereo phonograph, a typewriter and daily visits from his wife, Beatrice, a U.S. nurse whom he married in prison when she visited him there in 1964. Beatrice, though, is about to leave Mexico for lack of money. Because her husband rejects any face-saving deal, State Department officials insist that nothing more can be done for him.

McHenry Tichenor, board chairman of TV Station KGBT in Harlingen, Texas, has devoted much of his time and money for the past two years investigating the case; he, among others, is satisfied that the once psychotic doctor is the real killer. A young Beverly Hills lawyer named Dennis Fredrickson, who tried to aid Simmons in Mexico, is also convinced that top-level U.S. diplomacy could free him. Such an effort might be sparked early next year when the Senate Subcommittee on American Republics Affairs holds its scheduled hearings on the Simmons affair.

This file is automatically generated by a robot program, so reader's discretion is required.