The Girlfriends S3/E5: Is He Dead Yet?

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Hey girlfriends, it's me, Anna, here to let you know what's coming up.

This episode covers Kelly's trial.

So as you'd expect, we'll be speaking about the night of the murder in great detail.

But we also dive deeper into the case for the prosecution and the defense.

And at the end, you can make up your own mind about whether the right verdict was reached.

If you feel impacted by some of the themes in this show, you can reach out to Know More.

They're a domestic violence charity with a lot of great resources to help you or your loved ones.

You can search knowmore.org, and we've also put a link to their website in the episode description.

Oh, and by the way, there's going to be some swear words.

When Tommy Donovan is first arrested back in July of 2010, he immediately tries to shift the majority of the blame for Angel Vargas' death onto Kelly,

saying that he choked Angel to the point of unconsciousness, but implying that it was Kelly who really killed him.

He then takes a deal where, in return for giving evidence against Kelly, his charge is reduced to manslaughter.

Here's an exchange from Tommy's sentencing that I found in the court records.

I'll be playing the role of the court official, while my producer, Jake, will voice Tommy.

By your plea of guilty, you admit that on or about July 7th, 2010, here in Queens, you, acting in concert with another person, caused the death of Reuben Angel Vargas by beating and choking him.

Yes.

The person you were acting in concert with, who was that person?

My girlfriend.

What's her name?

Kelly Harnett.

And the evidence shows both of you were involved in the choking that led to Mr.

Vargas dying.

Yes, sir.

And that's the story Tommy sticks to.

Until 2013.

Dear Mr.

Epstein, as you are already acquainted with me, I will get to the point.

Kelly's reading from a letter sent by Tommy Donovan to her lawyer, David Epstein.

On the night of July 7, 2010, I murdered Angel Vargas by strangulation.

I committed this murder in full presence of Kelly, though at no time was there any collusion between her and I.

Though my initial written confession differs from this account,

At the time, I was exhausted in opiate withdrawal and angry with Kelly.

I don't know why.

Perhaps I was jealous of her going free without me and concocted a version of events.

I do not regret much in life, but I do regret dragging Kelly into this.

I am here to tell you and if necessary the court that I myself intentionally caused the death of decedent Vargas.

Holy shit.

This has got to be as close to a get-out-of-jail free card as you can get, right?

The kind of thing that gets a case thrown out, charges dismissed.

Except we already know that's not how it goes down for Kelly.

It's June 2013.

Kelly's in a pre-trial hearing.

This is where the defense and prosecution can discuss any issues or questions surrounding the upcoming trial.

What charges the prosecution will move forward with, what evidence will or won't be allowed in front of the jury, that kind of thing.

Presiding over everything is the Honorable Judge Lasack.

But that's not what Kelly and some of her fellow inmates know him as.

They call Judge Lasack Mr.

Murder.

They call him Mr.

Murder for two reasons.

He tries only murder cases and

he puts everyone away.

So in essence, he murders them.

All the while Kelly's been in court, listening to the lawyer and the prosecutor go back and forth, she's been chomping at the bit for her chance to chip in and ask.

Your Honor, can I have permission to address the court, please?

Now, defendants don't normally address the court unless asked a question.

But Kelly is not like other defendants.

Judge Lasak says,

talk to your lawyer.

I said, Your Honor, it's actually about my lawyer.

To say Kelly's keen for the jury to hear Tommy's new confession is a colossal understatement.

But her lawyer, David Epstein, well, as far as Kelly's concerned, that's another story.

He just didn't care?

Kelly says he doesn't want to bring up the letter at all.

So now here she is, taking matters into her own hands.

The judge nods at her to say her peace.

Your Honor, I am in possession of an exculpatory letter from Mr.

Donovan stating that Mr.

Donovan acted alone and I, in fact, took no part in this whatsoever.

Kelly wants to call Tommy as a witness so he can tell his new story from the dock.

Without calling Mr.

Donovan to my trial, this is violating my right to a fair trial.

The judge looks down at Kelly, poker face revealing nothing.

He ponders for a few moments while Kelly crosses her fingers, hoping she's done enough to convince him.

After an excruciating pause, the judge leans forward.

And he's like, Miss Hornda, I don't know who you're talking to in the jailhouse, but hearsay is not admissible.

I was like, what the hell is he talking about, hearsay?

Hearsay, in a legal sense, means telling the court what someone else told you, either in person or, in this case, by letter.

It's not allowed.

You can only talk about what you know, did, or experienced firsthand.

That letter or whatever it is you have is hearsay.

Let me start again.

Your Honor, at no point in time did I request the letter to be submitted into evidence.

I'm stating that I am in possession of an exculpatory letter, which is leading to my request to have him called to testify on my behalf at my trial.

However, Mr.

Epstein is refusing to call him.

Then Mr.

Epstein, my attorney, sides with the judge and says, she seems to think hearsay is admissible after what I just said.

Like, what, what the hell is everybody listening to?

Kelly can't understand why her own lawyer wouldn't be fighting tooth and nail to bring Tommy in, unless he's working against her deliberately.

I don't know what to think, but when you have

something as

earth-shattering as, hi, I'm the killer.

Your client is innocent.

And you don't use it?

You have to assess it and attest to the fact that he might have thrown this case.

I don't know how far does the rabbit hole go.

I have to say, I've not seen any evidence presented in court or otherwise that Kelly's lawyer was trying to lose the case on purpose.

And unfortunately, I'll never get the chance to ask him because he died in 2017.

But But I can see it from Kelly's perspective.

She's handing her lawyer what she thinks is a smoking gun.

And he doesn't seem to want to know.

With even her own lawyer seemingly against her, it doesn't take very long for Judge Lasag to shut down Kelly's request about the letter.

So for now, Tommy's original statements stand, the ones that say Kelly was a willing participant in the murder.

It It was awful.

And the trial, I feel that I lost it before it began.

I'm Anna Sinfield.

I'm from the teams at Novel and iHeart Podcasts.

This is The Girlfriends, Jailhouse Lawyer.

Episode 5.

Is he dead yet?

It's September 4th, 2013, the first day of Kelly Harnett's trial for the murder of Reuben Angel Vargas.

Like a lot of trials, this one will turn out to be pretty long and more than a little messy.

Before things even really get going, one of the original 12 jurors has to be let go, which then leads to a mistrial and the selection of a brand new jury.

So the whole thing has to start all over again.

Eventually, things do get moving, and everyone's ready to play their part.

Taking on the role of prosecutor is Assistant District Attorney Sean Clark.

And the first thing you should know about Sean is he's kind of a dream boat.

When Superman is Clark Ken, he has dark hair, handsome with glasses, right?

That's exactly what Sean looks like.

But unfortunately for Kelly, Sean isn't here to rescue her.

He's here to send her down.

And he is very,

very good at his job.

Kelly is facing two charges.

The most serious is murder in the second degree, which essentially means murder that wasn't premeditated.

The other charge is criminal possession of a weapon.

In this case, that means the shoelace.

Kelly actually had more charges before the trial began.

Another murder charge and three more for robbery.

But they were all dismissed.

Despite this, Sean Clark leans into the robbery angle.

In his story of the crime, it's the primary motive.

Cool.

Okay, should we do this?

Yeah, yeah, let's do it.

I looped in my producer Jake again, this time to be the voice of Superman, aka Sean Clark.

This next section is taken directly from official court transcripts.

What does make sense, the likely reason why they got into an altercation with Mr.

Vargas was to rob him.

That's the likely explanation here.

Did I pull that out of the air?

No, I pulled that out of the evidence.

In at least one of Tommy Donovan's statements, the oral one typed up by police, it says that Kelly robbed Angel's wallet after the murder.

Tommy says he then took the cash out before throwing the wallet on the ground.

From police documents, we know that Angel Vargas' wallet was found roughly near his body.

In that wallet, identification, credit cards, two citibank cards.

But

no money.

What's on Tommy Donovan when the police stop him?

In his sock is $60,

three $20 bills.

That's the likely motive for what happened.

One of the wildest parts of Tommy's multiple statements is that he says Kelly didn't just hand over the shoelace.

She actually physically put it around Angel's neck and pulled it before handing it over to Tommy.

Tommy then claims that after the attack, he walked away and looked back to see Kelly on top of Angel, choking him again with the string.

But Sean Clark and the prosecution, they're only going as far as to argue that Kelly kicked Angel and then handed over the shoelace.

Which is

interesting.

Because if you're trying to convict someone for murder, Surely you'd want to tell a story that makes them seem as culpable as possible.

Kelly, of course, argues that Tommy took the the shoelace from her foot.

And when Tommy himself pulled it around Angel's neck, it snapped.

It snapped so fast.

And I remember thinking about that when I saw it snap, I got scared.

I said, he's going to come back over to me now.

There is physical evidence to support this.

A broken white shoelace was found near the crime scene.

Kelly then says that Tommy finished strangling Angel with his belt, a theory that she says is also partially supported by physical evidence.

When you read the doctor's testimony, it clearly states that there was an indentation in the form of a rectangle that was unidentified right there.

Kelly's pointing to her neck.

I said, I could identify it.

It's a belt buckle.

So if you take away the allegation of handing a shoelace and put in the fact that he used his belt, the entire charge does not meet any element of the crime for me.

In addition to Kelly's lawyer, David Epstein, not fighting to call Tommy as a witness, Kelly says he also doesn't want her taking the stand in her own defense.

This honestly isn't all that unusual.

A lot of attorneys don't want to risk putting their client on the stand.

If they get up there and get flustered or say the wrong thing, that's blood in the water for the prosecution.

But Kelly's worried they're missing an opportunity to make the jury really see what she went through as a victim of Tommy's abuse.

Something only she can truly explain.

If you don't paint a picture as to that, I was scared,

they need to hear more of it.

Like, maybe they needed to hear from me.

And my attorney told me, don't testify.

So if Epstein doesn't want the courts to hear from Kelly or Tommy, what is his case about?

Here's one angle he took.

Research shows that you can feel the effects of booze at about 0.02% blood alcohol level.

On the night of the murder, Angel's bloods came out at 0.36.

His liver was also found to be enlarged and fatty, which is something commonly associated with chronic alcoholism.

In the trial, it's argued that Angel's drunken state could have led to the bruising found on his body, by falling off his bike, for example.

But still, it seems like there's no mention of Kelly's experience as a victim of domestic violence, or really any context from her complicated life.

The prosecution has painted this really vivid picture of Kelly as a villain.

But the defense doesn't really present an alternative story.

In fact, if you ask Kelly, she says Epstein's approach basically amounts to Kelly's not guilty, and that's it.

I think it was more of a selfish reason than anything, because

I think that he knew he was unprepared and I think that he wanted to just play it safe.

But playing it safe is not going to cut it here because the prosecution is about to unleash the biggest tool in their arsenal.

There's a witness who says he saw the whole thing.

And the story he's got to tell looks really,

really bad for Kelly.

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One late night in July 2010, Armando Perez is out jogging.

It's about 2 a.m.

on a balmy summer's night.

The sky up above is black.

The lights of Manhattan are flickering off in the distance.

Armando is out late because he's training for his football team, or soccer, if you must.

He's weaving through Astoria Park on his second lap when he says he hears something that brings him to a stop.

Someone's screaming.

Amando ducks and hides behind a tree.

He says he peers out into the darkness, looking for where the scream came from.

His eyes land on a shadowy figure, who's got a man in a chokehold on the ground.

The figure shouts at a woman standing nearby to kick the man he's holding down, which she does.

It's Tommy, Kelly, and Angel.

Amando says he hears Tommy ask Kelly to find a shoelace.

He watches as Kelly walks off, kicking up bags and a bicycle, before returning with something and handing it to Tommy.

At this point, it dawns on him.

He's watching a murder.

Amando sprints off to get help.

Over the next hour, he runs into several people.

Firstly, he tells some cops in a nearby patrol car, but he says they just drive off.

Next, he tries flagging down some teenagers, but they just laugh at him.

In between these unsuccessful attempts to raise the alarm, Amando keeps heading back to near where Tommy and Kelly are.

He doesn't want to lose track of them.

He says he hears Kelly ask,

Is he dead yet?

Tommy replies that Angel is dead.

He's touched the body to be certain.

Then, Amando sees him and Kelly hiding things in the wood chips on the ground.

Amando keeps leaving, trying to find help.

Eventually, he comes across a group of four teenagers, and one of them calls the police.

Once the police arrive, Amando walks them over to near where Angel's body is.

The police point out Tommy and Kelly and ask Amando if he's sure it was them.

Amando replies,

of course I'm sure.

I've been watching them for over an hour.

Then, Kelly and Tommy are taken away.

Amando is the key witness, essentially the core of the prosecution's case against Kelly.

With Tommy's statements, Any defense lawyer worth their salt can argue he has a clear motivation to try and shift the blame onto Kelly.

But Amando, well, he has no obvious reason to lie.

Prosecutor Sean Clark described him as a completely independent eyewitness who doesn't know Kelly Harnett, has never met Kelly Harnett, has no reason to come in here and say negative things about Kelly Harnett.

Amando is a neutral party.

who can testify that he saw Kelly hand over the shoelace.

He doesn't actually ever mention anything about seeing Kelly strangle Angel, which is probably why the prosecution have decided to ignore that part of Tommy's statement.

But crucially, Amando also says that he saw Kelly kick Angel.

In his earlier police statements, he doesn't specify where on the body Angel was kicked, but by the time Kelly's trial rolls around, Armando says it was, quote, from the stomach to the chest.

He also says that Angel was lying face down, which is something Kelly takes issue with.

But I'm no lawyer.

Instead, it's up to Kelly's defense attorney, David Epstein, to cross-examine the hell out of this witness, to keep poking holes in Amando's story until it's left in tatters on the courtroom floor.

So come on, David, dig deep.

It's time to strike.

As soon as David Epstein stood up,

he dropped all of the paperwork everywhere.

I said, oh, Jesus Christ,

if this is foreshadowing, I'm screwed.

Amando's testimony makes for a compelling story.

But especially according to Kelly, there are some holes in it, if you look hard enough.

And planted in those holes are some striking red flags.

The first has to do with language barriers.

Kelly claims that Amando can't really speak English, and police documents do show that his statement was transcribed for him by a cop.

I've looked at this written statement, and there are phrases in it like where the scene was, which honestly does sound like something a cop would say.

I think we have to interrogate how much Armando understood his own statement, or how his words could have been interpreted into helpful shorthand by the police.

And obviously, if Amando can't fully understand English, it does call into question whether he could fully understand the things he claims he heard Tommy and Kelly say.

Another issue is that Amando really struggles with judging distances.

He claims at one point in the trial that he was maybe eight feet away from Tommy, Kelly and Angel.

Then at another point he says he was about 20 feet away.

To me, both of these options seem like they would bring him way too physically close to Tommy and Kelly without being noticed.

So I can't see how either could possibly be true.

Then in the courtroom, he's asked to judge a distance of about three feet, but he's not able to.

And when Amando is asked to mark everyone's locations on the night of the murder on a map, Kelly spots more issues.

He tells the witness to put an X where the body was, an F where the female was, and an M where the male was.

Then he said, put an AP, Amanda Perez, or his initials.

Now, this, I just want to let everyone know, those initials are taken on a bridge that you cannot even get up on.

There's no way in God's Green Earth that he was standing there.

But there appears to be some confusion.

And at some point, Amando seems to claim that the X actually marks where he was standing.

And this confusion about who was where.

It doesn't end here.

Later in the trial, the prosecution alludes to the fact that Kelly and and Tommy moved Angel's body around 80 feet away from the actual scene of the murder.

Prosecutor Sean Clark tries to make sense of it by saying that because the murder happened near a lit path, Angel's body could have been discovered.

He then says, If you drag him into the middle of the park, you drag him in the middle where there's no lights, he's not going to be found until morning.

But here's the thing.

Amando never explicitly said he saw Angel's body being dragged.

None of his police statements reference the body being moved at all.

The police themselves also deny moving the body when questioned on this too.

This whole thing with the body being moved seems to be a tactic the prosecution lands on in order to explain away Amando's confusion over who and what was where.

The prosecution claims that all the dirt and grass on Angel's face and clothes show his body was dragged.

But I don't buy that.

Those could easily have come from Angel trying to fight off Tommy while they were wrestling on the ground.

The theory that the body was moved also goes against physical evidence.

A shoelace was found right by Angel's body.

If he had been moved 80 feet after he was killed, wouldn't the shoelace that the prosecution claim was used to kill him be much further away?

But next up is the biggest and reddest flag of them all.

At one point in the trial, the prosecution decides to secure an easy win using a tried and tested tactic.

While Amando is on the stand, they ask him to point out the girl he saw kicking Angel Vargas, the girl he claims willingly handed over her shoelace moments before Angel was strangled to death.

Amando scans the courtroom.

And then?

He says she's not here.

What the fuck?

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I couldn't even believe it was real.

Join me, Tatiana Siegel, executive editor of film and media at Variety, for a four-part tale of youthful ambition, artistic integrity, and the dark side of fame.

Just like my parents talk about they knew where they were when John F.

Kennedy was killed.

Pretty much everyone I know knows exactly where they were when River died.

Featuring new interviews with Samantha Mathis, Dr.

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After Amando's frankly unbelievable answer to the seemingly easy question of, is the woman you're testifying against here?

The court goes into recess.

When everyone comes back into the courtroom, the prosecution tries to ask Amando again, but it still doesn't go great.

He says, I'm not sure, because it's been three years.

Some star witness.

For the record, I find the fact that this happened incredible.

Like a finale scene out of the good wife or something.

Amando doesn't even attempt an educated guess.

Kelly is literally standing a few feet away from him at this point.

Of course, we do know that Kelly was in the park that night.

That's not up for debate, even by her.

Maybe Amanda was just too far away to recognise her in court, especially all these years later.

But if he was so far away, to the point that he's unable to identify Kelly when she's right there in front of him, doesn't Kelly have a point about this guy?

How much stock can we put into his testimony about what he could apparently see and hear from really far away in the middle of the night?

Given he's the prosecution's star and only witness of the events of the murder, this has got to put a dent in their case.

Kelly's lawyer, David Epstein, certainly seems to think so.

He did state to me, well, being that the soul eye witness didn't even point you out, I think that they're the ones that are on the weak side right now.

So I've told you about how things went down in the courtroom, some of what the prosecution argued, and how the defense tried to fight back.

But there's another side we should hear from.

Angel's family.

I know that so far in this show, I haven't told you very much about who Reuben Angel Vargas was.

I'm also well aware that in many true crime series, too many, the person who actually lost their life becomes something like a background character in their own story.

Their voice gets drowned out by everyone else's, including of course podcast hosts like me.

Part of the reason I haven't told you much is practical.

Unfortunately we just don't know that much about Angel.

I tried and I failed to track down his family.

So I've pieced together snippets from articles and court documents, trying to patchwork together an impression of who this man was.

We know that Angel was likely an alcoholic, both from the evidence provided by the medical expert and also from Kelly, who says Angel had an AA chip on him.

We also know that Kelly claimed Angel sexually assaulted her on the night of the murder, which is objectively a horrific thing to do.

But as Kelly has said herself, Angel didn't deserve to die that night.

I think it's only fair to take a moment to get to know him, to remember that he was someone's son, someone's uncle, and someone's brother.

So I'd like to read you a section from his sister's victim impact statement.

My name is Olga Vargas.

I'm the sister of Ruben Vargas.

In a few words, I'm going to tell you what he was like in person.

He was a good son.

He was an excellent brother.

He was a warm uncle and a very great friend.

He worked with everybody.

He helped everybody.

We were a great big family.

The last day that we were together was on July 4th.

We laughed, we played.

Nothing changed until July 7th, where we were given the sad news that had been unknown to us until that moment.

This changed life for all of us, for all those who knew him, especially our family.

I feel destroyed.

How can they feel, my parents, that it's to lose a son?

It's not easy to accept, to know the terrible way in which his life was was taken, my brother's life.

My brother is another victim who dies unjustly, and it's for him and all my family that I ask for justice.

For Olga and Angel's family, justice means Tommy and Kelly going behind bars.

In another statement, Olga talks about their blows and their actions, which caused her brother to suffer the death he did.

But for Kelly, justice means something very different.

Justice would mean recognizing her as another victim of Tommy's violence.

For Kelly, justice would mean an acknowledgement that she was scared for her life too.

Justice would mean leaving the courtroom and going back to her mother and her brother Ronnie.

The trial draws to a close.

Now, Kelly's fate is in the hands of 12 strangers.

The jury is ushered out to start their deliberation.

For Kelly, each minute that passes with no news feels like an hour.

And each hour feels like a year.

I got scared.

I already didn't feel good about any of the trial.

Scenes from her own personal courtroom drama start running through Kelly's head.

Miss Hornet,

you say it's not admissible.

They got into an altercation with Mr.

Vargas to rob him.

My attorney told me to don't testify.

You drag him into the middle of the park.

He's not going to be found until morning.

Amanda Perez, he says she's not here.

Did I pull that out of the air?

No, I pulled that out of the evidence.

And then the update everyone has been waiting for comes.

The jury has a verdict.

The heartbeat that you feel.

I've never felt anything even close to that in my life.

As the 12 members of the jury file back into the Queen's courtroom, a hushed silence falls.

Kelly holds her breath as Judge Lasak asks for their verdict.

They came back with a unanimous decision

and the verdict was

guilty.

I couldn't believe it because I was like, oh my god, what trial were they watching?

Because it was not mine.

Kelly turns around and finds her brother Ronnie's eyes.

He's begged her over and over to plead guilty before trial, to take a deal in exchange for a shorter sentence.

He was in tears.

Oh my God.

I'll never forget.

I'll never forget that sight of seeing Ronnie in tears.

Kelly turns her gaze to the prosecutor.

Sean Clark.

It was a stare down.

I was like, you, you son of a bitch.

You are never,

ever going to forget this moment.

I am taking you down.

It would have been so easy for Kelly to give up and accept defeat in this moment.

But next time, on the girlfriend's jailhouse lawyer, Kelly goes to war with Sean Clark, Judge Lasak, and everyone else she sees standing in her way.

I was found guilty.

I said, What do you want me to do?

She goes, Ah, guilty, Schmelty.

I'm going to take your butt to that old library and figure something out.

This was the beginning of a 17-month war of attrition.

You're a very unique person, Kelly.

Thank you.

I take that as a compliment.

It's a compliment.

It is a compliment for sure.

The Girlfriend's Jailhouse Lawyer is produced by Novel for iHeart Podcasts.

For more from Novel, visit novel.audio.

The show is hosted by me, Anna Sinfield, and is written and produced by me and Lee Meyer, with additional production from Jayco Tayavich and Michael Ginnow.

Our assistant producer is Madeline Parr.

The editors are Georgia Moody and me, Anna Sinfield.

Production management from Cherie Houston, Joe Savage, and Charlotte Wolfe.

Our fact-checker is Dania Suleiman.

Sound design, mixing, and scoring by Daniel Kempson and Nicholas Alexander.

Music supervision by me, Alice Infield, Lee Meyer, and Nicholas Alexander.

Original music composed by Nicholas Alexander, Daniel Kempson, and Louisa Gerstein.

Story development by Nell Gray Andrews and Willard Foxton, creative director of Novel.

Max O'Brien and Craig Strachan are our executive producers for Novel.

And Katrina Norvell and Nikki Etor are the executive producers for iHeart Podcasts.

And the marketing lead is Alison Cantor.

Thanks also to Carrie Lieberman and the whole team at WME.

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I couldn't even believe it was real.

Join me, Tatiana Siegel, executive editor of film and media at Variety, for a four-part tale of youthful ambition, artistic integrity, and the dark side of fame.

Just like my parents talk about they knew where they were when John F.

Kennedy was killed.

Pretty much everyone I know knows exactly where they were when River died.

Featuring new interviews with Samantha Mathis, Dr.

Drew Pinski, Corey Feldman, and more.

Listen to Variety Confidential on the iHeart Radio app or wherever you get your podcasts.

This is an iHeart podcast.