Tim Masters- The DNA of an Overturned Murder Conviction

The DNA evidence that was instrumental in a special prosecutor’s decision to toss out Tim Masters’ 1999 murder conviction has been the source of intrigue for much longer than just the past two weeks.

In fact, the evidence—and how the Larimer County District Attorney’s Office handled it more than a year ago—was at the heart of a January 2007 defense motion to disqualify the DA’s office due to allegations that they intentionally tampered with it so that it would be useless in identifying an alternate suspect in Peggy Hettrick’s brutal 1987 murder and sexual mutilation.

The district attorney was accused in court papers of stealing the evidence so that it could be tested by means that would degrade and destroy the sensitive samples, thereby making it more difficult, if not impossible, to extract usable DNA in future tests.

David Wymore, Masters’ lead attorney, said that it’s lucky DNA testing returned viable results at all, considering how the samples were retrieved from the clothing ... but even then, the prosecutors did not compare the results of their tests to all the suspects who had given DNA samples to investigators two decades ago. They concluded only that Masters was not a match to any of the male DNA found on Hettrick’s clothing.

It was the defense team—not the prosecutors—that made those full comparisons and determined the DNA pointed to her former boyfriend, not to Masters.

Once the defense’s results were confirmed, it was enough to finally convince special prosecutors from Adams County that Masters deserved a new trial, if new charges against him are filed at all.

While that’s what Masters’ lawyers have been trying to accomplish since 2003, Wymore said that had the Larimer County DA’s office not mishandled the evidence in November 2006, the testing may have produced an even clearer picture of the events surrounding the murder.

As it is, the DNA points toward Hettrick’s former boyfriend Matt Zoellner, a one-time suspect who had been cleared.

And there is still male DNA on Hettrick’s clothing that hasn’t been identified.

Evidence fits defense’s murder theory

On Nov. 6, 2006, DNA expert Richard Eikelenboom testified for the defense that if someone touched Hettrick’s clothing with enough force to cause skin cells to be left behind, he could recover them. If the samples were well-enough preserved, they would yield a DNA profile that could identify to whom they belonged. The trick, he said, was in how the laboratory recovered the samples—swabbing with cotton, the typical method of collecting DNA, destroyed the sensitive material in the process of collecting it; the preferred method to extract something as small as a skin cell was to cut a small sample of the clothing or use special tape to extract and preserve it. Eikelenboom had perfected this technique and his testimony was part of the defense’s motion to take Hettrick’s clothes to Eikelenboom’s Amsterdam lab for DNA testing.

Wymore was convinced that the testing would produce DNA from someone other than Masters; if so, it would add yet more weight to Wymore’s case that the murder did not occur the way that police and prosecutors said it did.

When Masters was put on trial in 1999, the theory was that 12 years before, when he was a gangly 15-year-old, he single-handedly murdered Hettrick in an ambush while she was walking past Masters’ house after a night of drinking. He killed her at the curb on Landings Drive, then dragged her into an adjacent field where he mutilated her genitals and breast by the light of a military flashlight. He managed this without leaving a trace of evidence behind, or bringing back into his house any evidence from the scene. Police never found any blood, body parts, hair or fibers that could connect Masters to the crime.

Masters always denied any involvement in the crime, but he was arrested after police found a forensic psychiatrist who testified that Masters’ boyhood doodles were evidence of a “fantasy rehearsal” for the murder. Crime scene analyst Tom Bevel testified to the “stab and drag” scenario for the prosecution. Masters was convicted and sentenced to life in prison.

When Wymore joined the effort to win Masters a new trial in 2004, he first reviewed the existing evidence: the crime scene photos, the footprints found near the bloody drag trail, the autopsy photos. He found dozens of details that contradicted the prosecutors’ theories, and he hired Barie Goetz, the former head of a Colorado Bureau of Investigation forensics lab, to re-analyze the crime scene.

Goetz came to a far different conclusion about how the crime occurred than what was testified to in court by Bevel, the prosecution’s expert. Goetz believed Hettrick was murdered not at the curb on Landings, but somewhere else, possibly in a car. And the police photos of the field show that the “drag trail” leading from the curb to the body was actually more of a blood trail with long sections where there are no drag marks through it at all; this led Goetz to conclude that Hettrick was carried most of the way, not dragged, and that more than one person put her body in the field.

When Goetz shared his opinion with Bevel and showed him the crime scene photos supporting it, Bevel was alarmed that some of the photos were new to him. He later wrote in an affidavit that he agreed with Goetz’s conclusions. He also added that he was bothered by not having been provided all of the information in the first place.

“I have serious concerns and questions why much of this information (which was known by investigators during my first analysis) was not supplied to me for consideration in the 1998 analysis,” he wrote. “It was my understanding at the time that this was a cold case and I had all the information that was still available.”

Masters’ lawyers believe one person carried Hettrick’s feet and another carried her by the wrists or the armpits. And at some point, the killer or an accomplice hooked his hands into her waistband and jerked her pants and underwear down around her knees.

Advanced DNA testing by Eikelenboom’s lab would find that person’s skin cells embedded in the fibers of her clothing at those locations, Wymore believed.

But while the details of when and how the evidence would be released to the defense were still being litigated, Larimer County DA Larry Abrahamson ordered the clothing delivered to the CBI lab to be swabbed with cotton, the very method Eikelenboom testified was too destructive to produce good results.

Abrahamson later explained, in a letter sent to this newspaper, that his move was done to ensure that—if the tests revealed Masters’ DNA—the results wouldn’t be hidden by the defense.

But Wymore saw another motivation, detailed in a flamboyant court motion seeking the removal of the District Attorney’s office that left no doubt about his suspicions.

“(T)he district attorney went to the courthouse and illegally took a number of trial exhibits from the court files, for the purpose of trying (to) destroy or minimize any exculpatory evidence which might be obtained by the defense DNA testing scheduled to occur in the immediate future,” the motion read. “The district attorney then took the evidence to the Colorado Bureau of Investigation where the district attorney’s CBI agents, at the direction of the district attorney, undertook to destroy any exculpatory DNA evidence by performing ‘procedures’ which they knew would likely have that effect. ... The district attorney did all of this without a single piece of paper being generated, contrary to all normal procedures of law enforcement and judicial agencies.”

Abrahamson removed his office from the case, and special prosecutors from Adams County were assigned.

In his letter to the newspaper, Abrahamson wrote, “The only reason my office had the CBI perform limited DNA collection was so that the truth would be known, versus it being hidden by the defense.”

When Goetz collected DNA “standards” from the police department’s evidence room—DNA that was collected from suspects during the initial murder investigation—the prosecutors were careful to make sure they kept at least half of the standards from Masters and Hettrick for possible future testing.

But they had no interest in keeping any standards from another suspect, telling Goetz he could have all of the DNA collected from another person who was investigated for the crime. Goetz took that whole sample to the Netherlands, where Eikelenboom cut off a third of it to use in his tests. The remainder was returned to Fort Collins.

That DNA belonged to Hettrick’s former boyfriend, Matt Zoellner. He was the last person who admitted seeing her alive.

And—because of his statements to police the day Hettrick was found and his testimony at Masters’ trial—he was the last person whose DNA would have been expected to appear on the clothing she wore when she was murdered.

DNA points to Zoellner, a former suspect

If there is a simple explanation for Zoellner’s DNA being found on Hettrick’s underwear, the cuffs of her blouse and other areas of her clothing, it’s not to be found in the case’s voluminous files.

Even though he had been dating Hettrick for about two and a half years and would be expected to come into intimate contact with her clothing, Zoellner told police that he hadn’t seen her for eight days before the night she was murdered.

In the hours before she was killed, Hettrick finished work at The Fashion Bar clothing store at 9 p.m. on Feb. 10, 1987, and then went to a few nearby bars looking for a friend who was staying at her apartment and who had the keys to the front door. She finally got into her apartment around midnight and changed out of her work clothes: a tweed skirt, a matching jacket and panty hose—police later found them tossed on the bed in her neatly-kept bedroom. She dressed in jeans, cowboy boots and a dark jacket over her brown blouse, and then left to walk to The Prime Minister, a tavern and comedy club on the corner of College Avenue and Boardwalk.

According to Zoellner’s testimony at the trial, he arrived at The Prime Minister at the same time as Hettrick, between 12:30 and 12:45 a.m. He’d been at another nightclub earlier and had invited a woman he met there to join him at The Prime Minister. He said he and Hettrick entered the bar together, had a drink and talked about their relationship, which Zoellner described in court as “on and off.” He said that he and Hettrick knew that their relationship was coming to an end and that each were dating other people. In fact, the woman Zoellner arranged to meet, Dawn Gilbreath, came into the bar a few minutes later and kissed him in greeting. Zoellner testified that the gesture upset Hettrick.

Zoellner said he sat with Gilbreath for the rest of the night and that Hettrick spoke to people at the bar. At one point, he offered Hettrick a ride home and although he said she initially accepted, Zoellner said he saw her leaving the bar alone. It is the last time anyone admitted seeing her alive.

Zoellner became a suspect in her murder the very day Hettrick’s body was found. He was interrogated by police and passed a lie detector test. Police searched his apartment and confiscated some items, including knives.

In none of his statements to police nor in court did Zoellner say he touched Hettrick’s underwear, blouse or coat with enough force to leave skin cells jammed in the fabric for two decades.

Zoellner, who still lives in Fort Collins, has not replied to numerous requests for comment.

The lab in the Netherlands found that the DNA on Hettrick’s underwear was a strong match to Zoellner as the donor. The tests done on the cuffs of her blouse show a mixture of two males; the major proportion matches Zoellner, with nine matching alleles. An allele is one of a pair or series of genes occupying a specific position on a chromosome. The more alleles that are matched to a person’s DNA, the smaller the pool of potential donors becomes.

DNA recovered from a buttonhole on Hettrick’s coat showed a match to Zoellner in four of nine alleles, and six out of 15 alleles matched Zoellner from DNA extracted from the coat’s armpits. Goetz said the armpit sample showed the presence of multiple males and therefore it would be expected that not all the alleles would match one person.

Goetz said that while the DNA on the underwear is the strongest match to Zoellner, the results from other locations mean that he cannot be excluded as the donor.

Matt not the only Zoellner to be on suspect list

Matt Zoellner’s name has rarely come up in court, but his brother Ben was recently mentioned as a possible suspect.

He was mentioned in court on Dec. 18 when Wymore was cataloging the large volume of material that was never provided to Masters’ defense lawyers during his 1999 trial. He asked Erik Fischer, the former lead attorney, if he was aware that Matt Zoellner had a brother named Ben who was reported to police as a possible suspect in Hettrick’s murder.

“The guy who’s out all night with somebody else,” Wymore asked on Dec. 18, referring to Matt Zoellner, “would it have been important to you to understand that his brother was mentioned as a suspect?”

“Of course,” Fischer replied.

But like so much else related to this case, the report with this tip was not included in the police case file that was turned over to Fischer as he was preparing Masters’ defense. The report came from Hettrick’s former roommate, who told police she thought “Matt Zoellner's younger brother is very strange and feels he would be a good suspect.”

FC Now contacted Ben Zoellner by phone soon after his name was mentioned in court. Without being asked, he denied killing Hettrick or having anything to do with her murder.

“I’m telling you straight up, I didn’t do it,” he said. “I didn’t have anything to do with it.”

He also said that his brother “couldn’t have cut her like that” and that neither of them was involved in any foul play.

He also said he contacted Wymore by phone after Fort Collins Now reported in early December that the CBI’s DNA test came back negative to Masters. Ben Zoellner said he called Wymore because he doesn’t believe Masters is guilty.

Goetz said that because of the swabbing method of DNA recovery used by the CBI, investigators may have a hard time distinguishing one brother’s DNA from the other’s.

“We would have preferred to have the Netherlands lab collect the DNA samples from the clothing before the CBI used the swabbing and combining method,” Goetz said. “Richard Eikelboom testified that from his experience, the swabbing method is inferior. Richard was extremely meticulous in his collection and documentation of samples, spending 10 days collecting samples opposed to the CBI lab spending one. We will never know if the precise and time-consuming method that Richard used would have yielded more identifying alleles on the cuffs than the CBI method.

“However, we do know from looking at the other areas that were mutually sampled, the Netherlands lab method yielded more alleles.”

Evidence further darkens the picture

For supporters of Tim Masters, the DNA pointing toward Matt Zoellner was the capstone evidence that Masters is not a murderer. If he’d dragged Hettrick’s body into the field and pulled down her pants and underwear, investigators would have found his DNA.

But the new evidence only further muddles the picture of who murdered Peggy Hettrick. Zoellner has a solid alibi for the hours immediately following the time he said Hettrick left The Prime Minister. In an affidavit, Zoellner’s date, Dawn Gilbreath, told Masters’ lawyers very recently that they stayed at the bar until closing time. She then followed Zoellner in her car to his apartment, where she stayed until 3:30 a.m., talking and drinking wine.

According to Hettrick’s autopsy report, the coroner estimated Hettrick’s time of death between 1:30 and 3:30 a.m.

Former police officer Jack Taylor, one of the initial lead investigators, said Zoellner was cleared as a suspect because of his alibi and lack of evidence.

“At the time, we just didn’t have the physical evidence that tied him to the crime scene, and he denied any involvement,” Taylor said. “Plus a woman (Gilbreath) corroborated that she was with him that night. They were at the Prime Minister bar and left together. Everything seemed to check out.”

The new evidence also does little to shed light on the perplexing question of the wounds to Hettrick’s genitals, which were inflicted with surgical precision, according to experts. And while Masters’ defense has spent a considerable amount of time painting the late Dr. Richard Hammond as a viable suspect in the crime due to his surgical training and sexual predilections—he was arrested for secretly filming girls and women using the toilet in his home, which was across the street from where Hettrick’s body was found—no DNA evidence so far has connected Hammond to Hettrick, either.

So while the DNA seems to have cleared up the issue that has been most pressing in court for the past year—whether Masters murdered Peggy Hettrick—it has done little to answer the question of who did.