Cold Case Files: Two juries said the guy who said he did it didn't do it, and the death of a 7-year-old remains unsolved
Vinita was the kind of northeastern Oklahoma town where a Monday in late November of 1977 felt ordinary. Kids rode bikes after supper. The Katy line cut behind yards and under short bridges, and people were used to the rumble.
Michael James Martinez was seven, born in February 1970, and that evening he left on a maroon 20- inch bicycle for a convenience store only a couple of blocks from home. Someone last saw him around half past nine. When he had not come back by ten, the household assumed he had gone to his older sister nearby, a habit so common that worry did not rise at once.
A little before one in the morning on November 22 a freight crossing the trestle between North Van and North First at about fifteen miles an hour caught something on the rails. The crew could not stop. What the train struck was already dead. Examiners in Tulsa later said the boy had been stabbed many times, most accounts settling near twenty-nine wounds after early counts ran higher, twenty-five of them to the head, back, and chest, one piercing the heart.
Four cuts on the left hand looked like a child trying to block a blade. He was fully dressed. There was no sign of sexual assault. Time of death was placed between eleven and midnight November 21
The rails sat two blocks from his house. Nearby, in a stretch locals used as a hangout, investigators picked up a gold spray paint can about fifty feet from the body, bags that had held paint, a soda bottle with blood on it, and loose change.
Toxicology found toluene, the solvent in spray paint, in large amount, and a blood alcohol of 0.04. A passerby later turned in a pocketknife whose size fit the wounds. A medical examiner said it was consistent and would not go further. Eight days after the killing, officers found the bicycle in high weeds close to the tracks.
Shock moved through Craig County. The Oklahoma State Bureau of Investigation worked with the sheriff and the city police. Agent Jack Lay was among those reconstructing the last hours. About fifteen people sat for polygraphs.
In February 1978, a domestic call brought officers to the home of Jerry Whisler. His nineteen-year-old son Gary Leroy, a dropout without a job, was high, frantic, and talking about men trying to kill him. Two days later, in front of an undersheriff, an OSBI agent, and a district attorney secretary, he signed a statement.
It named no victim and gave no date. He said he had been at the trestle drinking and sniffing paint, believed something was after him, grabbed a knife and stabbed in what he called self-defense, then threw something onto the rails.
Prosecutors treated it as a confession.
The first jury deadlocked 8-4 for guilt. The judge declared a mistrial. After thirteen months in jail, a second jury heard the scene, the science from pathologist Nicholas T. Forbes and toxicologist Richard Prouty, and the disputed statement.
They deliberated two hours and acquitted him of the killing and of putting the body on the tracks. He left the courthouse without speaking to reporters. No other person has been charged.
Funeral services were held at Ribbon Indian Church in Spavinaw. Nearly half a century later the file remains open. Anyone with information can call the OSBI at 800-522-8017.
