October 03

Why an Innocent Person would Plea Bargain

The Atlantic has a good roundup of US Supreme Court cases related to criminal justice coming up in the term which just began, and Grits was interested to note Class v. United States (see the SCOTUSBlog preview), in which "the justices will ponder an unusual legal question: If a defendant pleads guilty to a crime, does he or she lose the right to challenge that crime’s constitutionality?"

In an era when 97% or so of criminal cases end in plea bargains, this is a significant question.

In Texas the issue of whether challenges to a conviction may arise from a guilty plea in state court arose in Ex Parte Tuley, a case decided in 2002 and which your correspondent hadn't considered in many years. The Tuley case challenged a conviction in which the defendant was in fact actually innocent, but pled guilty to avoid a much harsher sentence in the face of false accusations of sexual abuse by a child victim. The final ruling included a wonderful passage written by then Court of Criminal Appeals Judge Tom Price:
I think it is colossal hypocrisy to exclaim, “we are shocked, positively shocked,” that a person who has pleaded guilty pursuant to a negotiated plea bargain would never do so unless he were truly guilty and believed himself guilty. Who are we kidding? It is true that Mr. Tuley did sign and swear to a form stipulation that “the following facts [tracking the indictment allegations] are true and correct and constitute the evidence in this case.” He, of course, did not design the form. It is certainly accurate to say that there was some evidence already admitted in the original trial that would support a finding that the indictment allegations were true.

It is also true that the trial judge asked the magic question:  “Are you pleading guilty because you are in fact guilty and for no other reason?” and applicant responded:  “Yes, ma‘am.” Does this make him a perjurer? A self-admitted liar?

Suppose Mr. Tuley had been given a dose of truth serum. Now, in response to the magic question, he responds:
Your Honor, I do not believe that I am guilty. In fact, I know that I am not guilty.   However, the present jury is deadlocked. Some of those jurors may believe that I am not guilty, but others obviously differ. A different jury could conceivably find me guilty and sentence me to life in prison. That is a very serious risk to me. Furthermore, I do not have enough money to pay my lawyer for conducting a second trial. I am worried that I might have to go to jail just to be entitled to an appointed lawyer for a second trial. I have a job. I would lose my job if I had to go to jail for months waiting for a second trial. Quite frankly, I am out of money and out of time. I just want to go home. The State has made a very attractive offer of ten years deferred adjudication. This is an offer I cannot refuse, given the obvious risks I face if I continue to maintain my innocence and insist upon a second trial. So, even though I am innocent of this charge, I want to plead guilty because I am making a fully informed, free, voluntary and rational choice among the alternative courses of action available to me.

The trial judge, hearing this unusual response, is likely to say something along the lines of:
How can you expect me to accept your plea of guilty? This is a very serious offense and it carries a potential life sentence if you should violate the terms of your community service. How can you expect me to accept a guilty plea to the first degree offense of aggravated sexual assault of a child if you say you are not guilty, but you want to plead guilty anyway? And besides, I heard the same evidence that the jury heard and I am not fully persuaded that the evidence is sufficient to support a conviction beyond a reasonable doubt. I refuse to accept your guilty plea and we will set this case for another trial.

Mr. Tuley, then, is likely to say:
Judge, whose side are you on?   Are you on my side? I just want to plead guilty.   I didn't do it. I know that, but I also know that the prosecution has a child complainant who says that I did. I have a drug problem and a jury is likely to hold that against me, and, frankly, I look dishonest. Nobody is going to believe me. Now, do me a favor and let me plead guilty and get my ten years deferred. This is a good deal. I want to take it. Don't stand in my way.

But an honorable trial judge might reasonably respond:
But, if you're not guilty, I cannot take your guilty plea. I am worried about this man pleading guilty to something he is not guilty of. That is just wrong, and I can't allow that kind of an injustice to take place in my court.

Mr. Tuley's honest reaction might well be:  “Don't be my friend. With friends like you, who needs enemies?” Instead, Mr. Tuley's lawyer would probably yank him off to the corner and after a certain whispering back and forth, Mr. Tuley will see the light He will now respond appropriately to the magic question:  “Are you pleading guilty because you are guilty and for no other reason?” with the right answer:  “Yes, ma‘am.”



Governor signs omnibus Innocence Bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:

[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations. Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup. Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it. And, they have to do it every time. So, it’s a big deal for Texas.

The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime. And, they testify to this confession.

So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense. So, it is highly unreliable information to begin with. And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit. And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.



    April 28

    Reasonable Doubt ---- Louis Perez has spent nearly 2 decades on death row. Does he deserve to be there?

    It was 3am on Thursday, Sept. 10, 1998, when Melvin Jones called the police. He hadn't heard from his girlfriend Cinda Barz all day. The last time they talked was on Wednesday, at 5pm, and that wasn't like her: The 2 spoke all the time. Jones had been trying to reach her house all night. Stranded without a car at his home in Northeast Austin, Jones asked police to run a welfare check on Barz's house in Barton Hills.

    3 officers arrived at 2810 Rock Terrace Dr. at 3:40am. They got no response at the front door, saw no lights or movement other than the blue flicker of a television left on in the living room. The front door was locked; so was the sliding door around back. In the driveway were 2 cars: Barz's and her roommate Michelle Fulwiler's.

    Officer Scott Perry would later testify that he first saw Barz's body through a living room window. She was buried under a blanket and couch cushion. Staci Mitchell, Barz's daughter, could be seen through a bedroom window, her lifeless body slumped across a bed. Unable to open a door, the officers broke a window to get inside.

    "We could see puddles or blotches of blood and smears," testified Perry. "There was an iron skillet, frying pan, with the center knocked out of it sitting on the floor." Investigators could tell that the skillet - a comal - had been used to bludgeon Barz. She suffered "multiple incised wounds and lacerations," as well as defensive wounds and a skull fracture, reported Elizabeth Peacock, a forensic pathologist with the Travis County Medical Examiner's Office.

    Police found Fulwiler's body wrapped in a blanket on the south side of her bedroom. She, too, had cuts and defensive wounds, said Peacock, but she also had strangulation marks around her neck. 9-year-old Staci Mitchell's hand had been tied to the bed by a pair of pantyhose; she had a second pair tied around her neck. The blue shirt she wore to school that day lay beside her on the bed.

    Close to Barz's body, officers found a broken plant stand and a large knife with its handle wrapped in a torn white towel. There were bloodstains on the couch; more bloodstains on the bathroom tile and floor. Police found cocaine on a plate and an empty dime bag. They found a telephone cord that didn't belong to any of the house's phones draped over a chair. In the weeks that followed, APD would find a blue towel on the ground outside the house, and the sole of a Nike shoe.

    Investigators learned later that Thursday morning that Fulwiler had called in sick to work on Wednesday at 8:15am and hadn't answered any calls from co-workers. Barz, who worked with Fulwiler at the Gardner-Betts Juvenile Justice Center, spent the day working, but left abruptly after 5pm when she didn't receive an expected phone call from her daughter. Mitchell walked home at 3:30pm, her teachers told investigators. Nobody heard from her after that.

    A Likely Suspect

    Louis Perez was the last person known to have left 2810 Rock Terrace alive. The 36-year-old had been dating Fulwiler casually, and authorities knew he had slept over at her house the night before.

    Perez, a carpenter and occasional bouncer, was divorced, the father of three boys with his ex-wife and a daughter with an ex-girlfriend. Large, smiling, and affable, Perez liked to party - at Downtown bars and Carnaval - and would spend his off days drinking and smoking at Campbell's Hole in the Barton Creek Greenbelt. He had an affinity for social drugs - cocaine particularly. He would often serve as a middleman in casual deals for friends. Perez had a strong relationship with his young daughter but admits he wasn't there for his sons. He'd gone to jail twice for failing to pay child support.

    Perez knew Fulwiler through his brother, but it wasn't until a court hearing at Gardner-Betts after one of Perez's periods of incarceration that the 2 began dating. They were off-and-on for months while Fulwiler allowed another relationship to play out. On Sept. 8, Perez and Fulwiler got together, and on Sept. 10, she and her 2 roommates were dead. Perez was arrested on Friday, Sept. 11, at a South Austin 7-Eleven.

    At Perez's trial the following year, prosecutors were unable to tie Perez to the DNA found on any of the murder weapons. There were no witnesses from the scene. Instead, the Travis County District Attorney's Office relied on circumstantial evidence - like the presence of Perez's fingerprints and DNA throughout the house, including 1 palm print next to Barz's body - to get a conviction. Perez was sentenced to death on Oct. 20, 1999.

    Perez has maintained his innocence, saying that although he was the last person to leave the house before the murders and the first to walk back in after the attacks, he was not the killer. But his lone alibi witness - a California drug dealer named Alex Gutierrez, with whom Perez says he spent the day - has never been located. Perez's defense attorneys were never able to verify Perez was with Gutierrez.

    According to Perez's friend Minerva Hall, the 1st person to speak with him after the murders occurred, Perez showed up on the doorstep of her apartment at around 9:15pm that Wednesday night. He was barefoot, his hair "messed up." Hall saw scratches on his neck. Perez said that he got into a fight with his father, and Hall thought nothing of it. She offered him her bed, and went to sleep in another room with her son.

    On Thursday, after resting at Hall's apartment, Perez caught a ride to Texas Discount Furniture on the Eastside, where he met his friend Tony Recio. He spent Thursday night at Recio's. During Perez's trial, Recio would say his friend wasn't acting at all unusual that evening. Recio said he noticed the scratches on Perez's neck and asked about them. Perez told him he had gotten into a fight with his ex-wife.

    When Recio got to work that Friday, his boss showed him a newspaper story naming Perez as the murder suspect. Recio called his attorney, who made a call to APD. Two detectives showed up to the furniture store within the hour. Together, Recio and detectives went back to his apartment to look for Perez, who'd already taken off with a pair of Recio's boots.

    Perez said he had seen a news report that day identifying him as a suspect, and left Recio's house so as not to implicate him in the murders. He eventually ended up at a pay phone outside a 7-Eleven off Bluff Springs. He called his family and his attorney, who advised that he turn himself in. While he was on the phone, a squad of officers pulled up.

    Police had been looking for Perez since the night after the murders. Lead investigator Brian Manley, APD's current chief of staff, who at the time was a few months in to a yearlong stint in homicide, received a page from a scene technician saying that a bloody palm print found next to Barz's body was Perez's. The technician said that Barz's blood must have been spilled within 5 minutes of Perez making the print.

    When officers went to Perez's parents' house looking for him, they said they hadn't seen him; Perez was also a no-show for 2 different jobs. Manley caught a break on Friday morning when he received a call from Hall, who'd seen the news.

    The presence of the palm print left no doubt that Perez had been in the house after the murders. What remains unclear, despite his death sentence, is whether he's guilty of anything more than that.

    An Uncorroborated Alibi

    Perez waited a year to give his account of how he came to be in the house, not confiding in anyone except for his defense attorneys before taking the stand at trial.

    Perez testified at trial that he left Fulwiler's that morning to meet up with Gutierrez at a nearby 7-Eleven. (He had met the Californian a week and a half earlier in a restaurant bathroom.) Perez and Gutierrez drove around Austin selling coke to various friends and acquaintances before getting lunch at a drive-through. The 2 then went to Zilker Park, where they whiled the day away drinking beer, snorting coke, and watching people play volleyball. They left around 5pm, and Gutierrez gave Perez a ride back to the 7-Eleven. He walked through Barton Hills to Fulwiler's. Over???heated, he unbuttoned his shirt and took off his shoes so that he could take a shower when he got inside.

    Perez rang the doorbell a few times, walking in after getting no response. The door was unlocked.

    "As soon as I get - to get my shirt off right here, I walk around the corner and I see Cinda on the ground," he testified. He saw the comal on her face and "[threw] it out of the way." Barz - who was still alive but badly beaten - reached for him, grabbing his neck and scratching it.

    Perez was spooked. He grabbed his shirt and got out of the house. He didn't call the police. He just split, not even bothering to take his boots. He sat on a rock wall down the street and tried to comprehend what happened. He stopped in to an Italian bistro for water, then wandered through Barton Hills. He eventually ended up at Hall's apartment complex, sitting outside a while before knocking on her door.

    Inconclusive Evidence

    Prior to Perez's testimony, Assistant D.A. Claire Dawson-Brown, trying her 1st - and last - capital case, had presented eight days of evidence tying Perez to the crime scene. She exhibited photographs of Perez's fingerprints lifted from beer bottles and door handles in the house. She reminded the jury that Perez left the scene without calling for help. She questioned the disappearance of Perez's Nike boots, and got both Perez's father and ex-wife to testify that Perez had lied about the provenance of his scratches.

    Dawson-Brown presented Perez and Fulwiler's cocaine use as a motive, suggesting that Perez killed Fulwiler - then waited around the house all day to kill Mitchell and Barz - because she had snorted all of his dime bags. She said Perez went on the killing spree because he thought Steve Jackson - a local pusher who testified at trial to being Perez's "best friend" - expected Perez to sell the bags and give him a cut of the profits.

    Integral to Dawson-Brown's case was an emphasis on circumstantial DNA analysis. Perez's DNA was on the piece of the comal that had covered Barz's face, and both parts of the ripped towel. Dawson-Brown's argument also benefited from cherry-picked probability statistics. DNA analysis concluded there was a 1 in 14 chance that the foreign DNA found under Staci Mitchell's fingernails came from a Hispanic person - not specifically Perez. (The odds measured at one in 11 blacks and 1 in 20 whites.) DNA stripped from Barz's nail clippings showed that one in 38,600 Hispanics would make a match. (With her, one in 181,000 whites and one in 321,000 blacks.)

    It was an advantageous association, but - like much of the prosecution's argument - it relied on inconclusive evidence. A thorough read through the court record reveals a long list of investigative oversights.

    3 hairs found on Mitchell's body weren't tested before the trial. Neither was the handle of the comal used on Barz, or the 2 ends of the phone cord used to strangle Fulwiler. Same goes for the pantyhose; investigators only tested the 2 pairs in the areas known to have come into contact with Mitchell. A DNA specialist testified that she chose not to amplify test results from an inconclusive DNA scan for blood found on the knife.

    Robert Bux, a deputy medical examiner in Bexar County who testified for the defense, alleged that the Travis County Medical Examiner took too long removing the bodies from the home. Dave Harding, an investigator with the TCMEO, said he performed a liver punch on the left side of the bodies so as to avoid altering the crime scene (failing to consider that liver punches should land on a body's right, where the liver is actually located). Smoked cigarettes found outside the house were not immediately collected, tested, and analyzed. Officers handled a house key from the mailbox without protective gloves. Blood found in the bathroom wasn't tested. A fingerprint examiner for APD found 43 instances in which fingerprints lifted from the scene "represent[ed] a person other than the victim of the crime, the police officers, all other persons given to you as suspects in this case - or Mr. Perez" - yet nobody else was investigated as a suspect after police arrested Perez.

    No blood from any of the three women was ever found on Perez's clothes. No physical evidence connected Perez to Fulwiler's murder. In fact, aside from the palm print and DNA left on the comal, there was little that suggested Perez touched any of the suspected weapons. The Department of Public Safety's crime lab "didn't even know until this summer [1999], June, with his trial beginning Aug. 23, that they had foreign alleles in the towels," argued Joe James Sawyer, one of the attorneys who represented Perez at his trial. (Alleles are variant forms of genes that show up in DNA.) "Since September of last year they hadn't so much as bothered to run DNA to see what was there.

    "They didn't care. ... They had that skid mark, they had that palm print, and that was enough."

    The Serial Killer

    On Oct. 4, 1998, 1 month after the murders, 81-year-old Leafie Mason was bludgeoned to death with an antique flat iron at her home in Hughes Springs, Texas. Her house sat 50 yards from the Kansas City Southern Railway tracks. On Dec. 17, 39-year-old Claudia Benton was raped, stabbed, and beaten to death with a statue at her house in West University Place, a Houston neighborhood with the St. Louis Southwestern Railway as its western border.

    Similar murders continued through 1999 - killings near railroad tracks involving household objects as weapons. On May 2, Norman Sirnic and his wife Karen were found dead at Weimar's United Church, where Norman was a pastor. The church was located adjacent to Union Pacific tracks. 2 more bodies - Josephine Konvicka, in Fayette County, and Noemi Dominguez, in Houston - were discovered near railroad lines on June 4. Both women had been beaten to death with a pickaxe.

    Each of those killings, most of them never tried, is now believed to have been committed by Angel Maturino Resendiz, a Mexican national who was convicted for Benton's murder in 2000 and executed in 2006. Resendiz is also thought to be responsible for a number of other killings in Florida, Kentucky, Illinois, and Mexico.

    Perez's defense knew that the Missouri-Pacific Railroad ran through South Austin within a mile of Rock Terrace, and suggested during the trial that Resendiz was the real killer, although it wasn't a theory they attempted to flesh out. In 2002, Resendiz confessed to the murders, telling a private investigator hired by Alex Calhoun, Perez's attorney at that time, that he killed 2 women in Austin: "1 fat 1 and 1 skinny one." However, Resendiz never confessed to murdering a child, and his mental state made it impossible for Calhoun to secure an affidavit. While on death row, Resendiz confessed to several murders that he could not have committed, which further calls into question the veracity of his claims concerning Barz and Fulwiler.

    Revisiting the DNA

    Still, suspicions that Perez was innocent grew in Oct. 2001, when Calhoun solicited post-conviction DNA testing to be conducted by Dr. Robert Benjamin, a professor of biological sciences at the University of North Texas. The professor wrote that Perez's trial counsel and their DNA expert "did not receive a complete list of electropherograms for all of the DNA analyses performed on the evidence." (Electropherograms are DNA test results.)

    "Many samples were analyzed multiple times and only select examples of the results were provided," Dr. Benjamin wrote. "This is of particular concern because of the nature of the samples and results obtained with several pieces of evidence central to the prosecution's case. Results obtained indicated that the samples represented mixtures of DNA from multiple individuals with very weak and incomplete profiles of minor contributors (some never identified). If other analyses of these samples failed to show some or all of these alleles it could be considered highly significant since it could, for example, raise a question of contamination as an explanation for the inconsistency."

    Benjamin also questioned certain conclusions concerning the DNA matches. He said the state chose to look at the fingernail samples as a mixture of two unknown people, when in reality the mixture would always include 1 known quantity: each victim. "Since the victim's profile will always be present, using their alleles in a probability calculation artificially increases the calculated probability of exclusion/inclusion," he wrote. "In this case, the evidence samples from AU1 left and right were calculated to have ranges from about 1 in 3 to 1 in millions. This was presented to the jury and no effort was made to explain the particular significance/appropriateness of either with respect to the other."

    In 2006, during state habeas proceedings, the Travis County D.A.'s Office agreed to have DPS compare a portion of the unidentified DNA found at the scene with Resendiz's profile in CODIS, a DNA database of convicted felons that opened in 1996. In April 2006, DPS received pieces of the skillet, the blue towel found outside the house, the telephone cord, 2 pairs of pantyhose, cigarette butts found outside the house, a piece of the stained carpet from the master bedroom, 1 beer can, and the hairs from Mitchell's back. None of the results were a match for Resendiz. Additionally, many of the results did not conclusively exclude Perez as a contributor.

    Certain pieces of evidence could not be analyzed, however. Lab documents show that the blue towel had a "complexity" that disallowed interpretations for a DNA profile. The hairs could not be read. But according to Jani Maselli, the Houston habeas attorney who represented Perez before U.S. Magistrate Judge Andrew Austin on Aug. 19, 2010, "numerous" DNA samples tested during the state process matched neither Perez nor Resendiz. Perez was excluded from one item in particular: the comal's handle. At the time the report was written, the major contributor for that piece of evidence was logged as "an unknown male individual." Maselli learned at the Aug. 2010 hearing that the handle had been contaminated by Leon Justice, the court reporter at Perez's trial. His handling of the comal made it such that the mixture showed two people: Justice and what looked to DPS forensic expert Emma Becker, at the time, to be Cinda Barz. (Testing did show that Perez's DNA was consistent with the DNA found on the piece of the comal he testified to having touched when he lifted it off of Barz's face.) Becker also said that the piece of the towel that was wrapped around the knife showed a DNA mixture of three people: Fulwiler, Perez, "and then there were additional alleles that can essentially be attributed to someone else.

    "Based on this profile, this is something we wouldn't do the additional testing on, just because when we have more than 2 people on the mixture, the technology, it gets overloaded and it's - the results aren't accurate," Becker testified. "So we have a rule where if it's more than 2 people, we do not perform the additional testing on it."

    Another Suspect? On Aug. 28, 2012, Perez's sister Delia Perez Meyer submitted a declaration to the U.S. District Court for the Western District of Texas, stating that earlier that year she received a call from a woman who would only identify herself as having worked for DPS. According to Meyer's statement, the woman told Meyer she knew who the real murderer was, and gave her a name (that name has been redacted from court records). Meyer said the woman had "called her repeatedly over the course of this case, asking her about Louis' case and the Railroad Killer." The woman told her the killer had been arrested for molesting a child and assault, and that his information could be found in the CODIS database.

    Meyer wrote that after she got the call, she contacted Perez's new counsel, Sadaf Khan, who had replaced Maselli. Khan told her that they should hire a private investigator, which would cost Perez's family $10,000. Meyer found a source for the money, but by then the family had lost touch with her brother's attorney. Nobody - including Perez - would hear from Khan again.

    Perez didn't know that he was being abandoned by his attorney until it nearly was too late. His petition for relief had fallen short in federal court on March 27, 2012. He had 180 days to appeal the decision to the 5th Circuit - had he known a decision had been made. However, shortly after U.S. Federal Judge Lee Yeakel issued his final judgment, Perez received word in his cell that his attorney had come to see him.

    The attorney there to see him was not his, but rather Richard Burr, a Houston lawyer whose focus is death penalty cases. Burr told Perez that Khan had fallen absent and said he could receive an execution date at any point. He asked Perez how long it had been since he'd seen or heard from Khan. Perez said it had been 2 years. Burr said a conflict of interest (he served as a fact witness on the court's questioning of Khan's abandonment) prevented him from picking up as Perez's attorney, but that he might be able to find an attorney who could.

    On Death Row

    Early this April, Perez recounts this conversation in the same visitation room in which it happened, at the Polunsky Unit in Livingston, Texas, where he lives with 262 other inmates on death row. (Polunsky also houses 2,600 other prisoners.) He sits on a stool inside a steel-bound cell, his brown skin and graying hair a stark contrast to the white scrubs and walls found all around him. He wears black plastic-framed glasses with red tape around one screw. He smiles and laughs often, revealing a gap where the upper-right side of his teeth are missing. When he sits upright, he takes up much of the small cage.

    "I think about [the case] every day," he says through a telephone on the other side of a Plexiglas pane. "It's something that will never leave me ever again. My failure to render aid is my crime, not a murder - not a triple homicide. That's what's difficult for me. I believe in God, very much. I pray every day. And I beg Cinda to forgive me every day for leaving her to die like that."

    He spends his days reading, researching his case, and painting. He's 54, now having been housed at Polunsky for 16-and-a-half years. He's well-accustomed to life inside the unit. "You have to figure things out," he says. "You hear stories, and a lot of them are true. Don't get me wrong: This place is bad. But when you carry yourself in a respectful manner, and you keep your word - that's all you have back here: your balls and your word. Once you lose either of those, it's like free game. People come at you. But my size and my attitude have saved me from trouble a lot, because I don't pick fights. I'm not a bully. I'm not nothing like that. People see that and respect that."

    Perez keeps up on his case and uses the library at Polunsky to maintain an understanding of any developments that could affect his fate. "People ask me if I still believe in the justice system," he says. "I have to, because it's the only thing that's going to save my life. Nothing else is going to help me but the justice system."

    Revisiting the DNA, Once More

    The latest attorney to take on Perez's case is Marcy Greer. The Austin civil appellate attorney received a request from the District Court in the summer of 2012, asking that she look into allegations that Khan had abandoned Perez. She took over in early August and by Aug. 29 had filed a motion urging Yeakel to vacate his March judgment and issue a new ruling - one that could be appealed by an attorney who hadn't abandoned their client. Yeakel complied, and on Dec. 12 issued a new judgment, which Greer and her team contested within the month.

    The filings opened the case again, and gave Greer and her team time to sort through the seven boxes of case files that have accumulated since the murders. She's fought off perilous deadlines. In Nov. 2012, Hon. Karen Sage, the presiding judge over the 299th District Court (where Perez was tried and convicted) hadn't yet learned of Greer's Aug. 2012 motion to reopen the case, and signed a death warrant for his execution, effective March 21, 2013. (The order was quickly withdrawn.) The case has since failed at both the 5th Circuit Court of Appeals and U.S. Supreme Court.

    Shortly after appealing Yeakel's ruling and delaying the impending death date, Greer filed four unopposed motions in Sage's district court that would change the course of Perez's effort. The motions, filed July 19, 2013, called for the Travis County District Attorney's Office to provide Perez with a series of previously unreleased documents from his case, including the transcripts from his grand jury trial and any bench notes, data, or electropherograms taken or previously held by the District Attorney.

    The filings also included a motion requesting that the Tarrant County Medical Examiner run additional post-conviction DNA testing on 6 items - the 2 pairs of pantyhose used to strangle and bind Mitchell, fingernail scrapings from both of Mitchell's hands, the comal's handle, and the full length of the telephone cord - and that the Tarrant County crime lab test 3 other items that have yet to be analyzed by any lab - Mitchell's shirt, the Nike shoe sole, and a broken, bloody plant stand, which investigators concluded shattered during Barz's struggle before her death. (Since 2001, the Texas Code of Criminal Procedure has granted defendants the right to submit motions for additional DNA testing to their convicting courts so long as any revelation of DNA evidence could cast doubt on a convict's guilt. It also grants defendants the right to obtain grand jury transcripts from their case if it's believed the prosecution committed a Brady violation - that is, hid evidence favorable to the defense.)

    "Several of these items of physical evidence were analyzed multiple times, but only the final report and selected excerpts of the underlying testing data were available to the defense team for analysis," wrote Greer, citing Dr. Benjamin's letter from Oct. 2001. "Having access to all of the underlying data - not just the reports prepared for the trial and the habeas hearing - will allow a thorough and complete review of the evidence that was used to convict Perez and may also potentially inform the results of the new testing that Perez is seeking in order to draw out a profile of the real killer from the various incomplete and mixed DNA contributions on these items."

    Greer listed the significant number of fingerprints lifted "from highly sensitive locations" around the house, including the "blood-covered bathrooms and bedrooms where 2 of the bodies were found" that were never matched to Perez or any of the victims. She noted "other leads that may have identified the real killer in this case, including information about witness interviews and background investigations," as well as information about any attempts the prosecution made to verify Perez's whereabouts during the murders.

    Buddy Meyer, who assisted Dawson-Brown at trial, denies Greer's accusations that "Perez became the focal point of the case early and to the exclusion of evidence suggesting his innocence or another possible perpetrator." However, he told the Chronicle that the D.A.'s Office has no reason to oppose new testing. "You're talking about a death penalty case here," he said. "Why would we not agree to post-conviction testing? We're talking about a man's life."

    "This Is Still Texas"

    In March of this year, Greer told the Chronicle that 2 of the 9 items delivered to the Tarrant County Medical Examiner have already been tested: the plant stand and comal handle. The handle produced no new matches; the blood on the plant stand was proven to be Barz's. Greer declined to comment on efforts to find Gutierrez, saying that any discussion of Perez's alibi is privileged information. She believes she knows who the actual killer is, but declined to go into any detail.

    "We have to undermine confidence in the verdict," she says, rather than point to a new killer. "It's better [to implicate someone else], but not necessary."

    Members of Barz and Mitchell's families declined to be interviewed for this story. Through a friend, Fulwiler's family also declined comment, saying that the memory drums up too much sadness. Asked whether new discoveries could sway his opinion of whether Perez is the murderer, the friend reiterated that Perez's fingerprints were found all over the house.

    Back in Livingston, Perez maintains his focus, and his confidence in Greer and her team. "She's saved my life twice already," he says. "They're that efficient, that smart. They care. They have compassion. They're not with the state [like indigent defense attorneys]. And they're not afraid to speak up. Marcy is a bulldog. She gets in."

    In October, Perez received a letter from District Attorney Rosemary Lehmberg informing him that his case "may be impacted by recent scientific concerns involving the historical interpretation of DNA results." Lehmberg attached to her letter a notice from Texas Forensic Science Commission presiding officer Vincent Di Maio, which was sent to state and local law enforcement agencies on Aug. 21, 2015. Di Maio said there are "concerns [involving] the interpretation of DNA results where multiple contributors may be present." Included in his letter is an explanation of the FBI's May 2015 announcement that it had found "minor discrepancies" in its population database. (In May 2015, The Washington Post reported that 3% of DNA profiles the FBI had examined since 1999 were potentially affected.)

    On Jan. 28, the developments prompted Sage to issue a stay on Perez's execution. She sent a letter to Sian Schilhab, general counsel for Texas' Court of Criminal Appeals, indicating that the state has discovered "some potential Brady material in this case and has disclosed that evidence to the defense."

    Greer stresses that Sage hasn't found anything definitive yet, but that the three parties are working together "to try to identify where the holes are" in Perez's case. "I don't have all the documents necessary to complete the assessment," she said. "But there is a lot that does not add up about [Perez's] conviction: the evidence in the case, the way the crime scene was processed, and the Medical Examiner's reports."

    Perez says that he's "optimistic" about any potential revelations but refuses to get his hopes up. "I don't allow myself to get excited," he says. "I could.

    "This is still Texas. They don't give a damn about who you have or nothing. They want you dead, and they're going to do everything to kill me. I understand that. That's already there. The reality is that I will die. Our hope is that something happens and I walk out of here a free man. That's my reality, and I have to face it."

    On the Outside----Delia Perez Meyer fights to prove her brother's innocence

    Many times over the last 18 years, Delia Perez Meyer has tried to imagine what it's like to live the way her brother Louis Perez does on death row. Sometimes anti-death-penalty groups tape off 6-by-9-foot rectangles - the size of a prison cell - for people to huddle inside. Other times, she's closed herself off in a tiny room - a closet or a bathroom - and tried to put herself in her brother's shoes. "It's just such a feeling of isolation and sadness," she said. "I know that I would probably not survive back there."

    18 years ago, a phone call woke Meyer from a deep sleep. A friend was calling to ask about Perez, whose face and name were plastered across local news outlets. As Meyer soon realized, he was wanted for murder. That night, Sept. 10, 1998, was essentially the beginning of a new life for Meyer.

    Proving her brother's innocence became "99 %" of her focus. 2 years after Perez was arrested, their mother died of a heart attack on their kitchen floor. Her last words, Meyer said, were a plea that Perez's family continue to visit him. Meyer, who had both a teaching job at AISD and a teenage son, began making the weekly trips to Livingston to make good on that promise. During that time, she also found a listing in the Chronicle for an anti-death-penalty meetup, which led to nearly two decades of activism in the movement. "It became my job," she said. "My brother was helpless. And I chose that. I didn't realize it was going to be this hard or take so long for him to be free."

    It wasn't without sacrifice. Meetings of the Campaign to End the Death Penalty led to involvement with the Texas Moratorium Network. Later on, she did work with Amnesty International. The World Coalition Against the Death Penalty took her on trips to Europe. She's fasted, rallied, and spoken countless times in her brother's name.

    "My aunt has given up her whole life for my dad," said Perez's daughter Jade. "She really is a blessing. She's fought so hard for my dad. I don't think I've ever met someone so dedicated and loyal. ... She hasn't stopped for 16 years."

    My mother, a childhood friend of Meyer, knows that well. Their parents ran in the same social circles in Austin back in the Sixties. Growing up they'd been close, but the stress and schedule associated with Meyer's second life made it so they lost contact for nearly a decade, even though they lived in the same part of town. As Meyer was getting acclimated to a life of travel and protests, Jade and I were in the same 3rd grade class at Zilker Elementary. I remember other kids talking about Jade's dad being in prison, but I didn't know until I was a teenager the sweat Meyer was putting into getting him freed. Really, until I was a teenager, I didn't know Meyer much at all.

    Jade, Perez's youngest of four kids, was 7 years old when he went to prison. She cherishes memories of camping trips with her dad from before, but admits there have been times when she nearly lost hope. "I feel like now that I'm older, it's hitting me harder because I have a family of my own and he's not here."

    Meyer remembers taking Jade as a little girl to the prison to visit Perez. They'd try to distract her until the guards removed all of the chains and shackles. But once father and daughter picked up the phones and began talking to each other through the Plexiglas, nothing but the Texas Department of Criminal Justice could separate them.

    "You've met him," she said to me, referring to the time I took the trip with her as a 16-year-old junior reporter, taking notes for my high school paper. "He's just a wonderful, happy-go-lucky person. He's always been that way." Meeting Perez is meeting an instant friend, and his big personality means he's not letting you go until the prison calls time.

    "It was especially hard on Jade because she was so close to her daddy," said Meyer. "And that was one of the hardest things for us to see: The kids suffer without a dad. ... He's missed so much. You look around this house and you see all these pictures of weddings and birthdays and graduations and kids moving on. All of our cousins and nieces and nephews, and all his grandchildren. Everyone's growing up, going to school, getting married and going to college. And he's missed all of that. He's missed all of that. It's not fair. He should have a place at this table. And he does. He never leaves this table. He's the heart and soul."

    "I wonder a lot about what I would do if and when [my dad] gets out," said Jade. "My whole world would flip upside down. I really think I would faint. I would be overwhelmed with happiness. And I think that's what helps me keep my faith."

    (source for both: Austin Chronicle)

    The Only Way Is Abolition----The death penalty is too flawed to be saved

    This week, Chase Hoffberger digs into the story of death row inmate Louis Perez (see "Reasonable Doubt"). While I know that plenty of people won't come away believing Perez is innocent of the crimes for which he was sentenced to death, I would hope most would be given pause by just how scanty the evidence is that he's guilty.

    There are so many arguments against the death penalty, but the fact that we're not always certain that the people we (as citizens of the state) kill are guilty - that, in fact, it seems pretty close to certain that a few of them are innocent - is the one that gets me the most. There's a commonly cited legal principle that, as William Blackstone put it, it's "better that 10 guilty persons escape, than that one innocent party suffer." But I'm not sure that the U.S. justice system operates according to that principle, or that it ever has. It was, after all, just last month that the Chronicle published the latest installment of the saga of the Kellers, a couple who each spent 20 years in prison for crimes that almost certainly did not occur (see "Learning From Our Mistakes," March 11). And as Chase notes in his story about visiting Perez in prison ("On the Inside," posted online with this week's cover story), Texas' death row also currently houses Rodney Reed, a man whose guilt has been widely and compellingly questioned (see "Rape Victim Believes Rodney Reed Is Innocent," April 30, 2014).

    We have to ask ourselves, just what principle are we operating under? Is it that it's "better that 10 innocent parties suffer, than that one guilty party escape"? If that is the principle, can it ever be put into practice? Because if Louis Perez is innocent, then the murderer of 3 people has never been held accountable for those crimes.

    In 2009, the late Supreme Court Justice Antonin Scalia baldly stated that "actual innocence" wasn't a reason on its own to keep someone off death row, writing that "this court has never held that the Con???sti???tu???tion forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable." Those lines are taken from a dissenting opinion, and, of course, Scalia no longer sits on the Supreme Court.

    But Scalia is far from the only jurist who is less concerned about the execution of innocent people than those of us who value our lives might wish. That dissent of his concerned the granting of a new trial to Georgia death row inmate Troy Davis; after being tried again, Davis was executed in 2011 despite the fact that a good many people believed he was innocent of the crime for which he died.

    In the end, the only way that we can ensure our own safety - that you or I can make sure we're not the next one locked up or executed unjustly - is by insisting that other people don't get convicted because someone thinks they're guilty. It is inevitable that holding our justice system to its stated standard for criminal guilt - proof beyond a reasonable doubt - will mean that some guilty people go free. But that happens anyway, and we would at least be preventing guilty people going free because the innocent have taken their place in prison.

    It will take a lot to get to that point. Ending the death penalty isn't going to be enough. It won't fix whatever it is that's allowing people to lose years of their lives to convictions obtained on thin or faulty evidence. But however we might feel about the morality of the death penalty in a vacuum - where the only people executed are those who actually "deserve" it - in practice, the probability that we're killing innocent people is high. One innocent person killed by the state is too many, and the only way to guarantee none is abolition.

    (source: Amy Kamp; Austin Chronicle)


    Aug. 4

    True Grits----The outspoken blogger Scott Henson is now the head of the Innocence Project of Texas - and he has a few opinions to share.

    Scott Henson has been infuriating people since his college days at the University of Texas at Austin, when he co-published a magazine called Polemicist, which took university officials to task for various misdeeds.

    After graduation, he wrote for the Texas Observer and worked as a political consultant, in the process learning the ins and outs of the Legislature.

    In 2004 Henson started the blog Grits for Breakfast, which rapidly became the go-to criminal justice forum in the state, in large part because of his no-holds-barred critiques of the criminal justice system. 7 years ago Henson was hired by the Lubbock-based Innocence Project of Texas (IPOT) as a policy director; in June he was named executive director of the organization, which is now moving to Austin.

    Michael Hall: After a career chastising and criticizing those in power, it seems perfectly logical that you would wind up, at age 48, running the Innocence Project of Texas.

    Scott Henson: That's definitely an accurate narrative, though I don't think it's the driving one. I certainly didn't decide "I want this job" and then go and build a resume for it.

    MH: When you were first hired at the Innocence Project, your expertise was working the Legislature.

    SH: Yes, and taking issues that defense lawyers were grappling with and figuring out some way to turn them into legislation. In 2009 we got the Lege to increase compensation for exonerees from $50,000 to $80,000 for every year they were behind bars, and we encouraged them to create the Timothy Cole Advisory Panel [named for a Texas man who died in prison 13 years into a sentence for a rape he didn't commit]. It studied all the exonerations in the state and made recommendations to prevent future wrongful convictions, from reforming eyewitness ID procedures to recording interrogations to clarifying the standard for using junk science as a basis for a writ of habeas corpus.

    MH: The "junk science writ" was passed in 2013 and then strengthened this past session. Where did the idea come from?

    SH: I asked defense attorneys, "What are the big issues that y'all see as a barrier to getting more innocent people out of prison?" And this issue of using flawed forensic testimony as a basis for a writ of habeas corpus came up.

    MH: Most of those Cole panel recommendations have now become law.

    SH: All of them have passed except for recording interrogations. Texas is the 1st state to examine what reforms would help keep innocent people from being convicted, or get them out of prison if they're already there.

    MH: During the recent session, the Lege created an exoneration review commission, which you'll be advising. What exactly will that group do?

    SH: It will study the 112 Texas exonerations that have happened since 2009.

    MH: But didn't the Cole panel already examine wrongful convictions?

    SH: Yes, but those were mostly DNA exonerations, which were usually sexual assault cases. We're seeing fewer DNA exonerations now, because the stored DNA evidence is running out. We're seeing a wider array of cases. There are a lot of drug cases, for example, where people have accepted pleas to get out of jail but it turns out they weren't actually in possession of drugs, and the DA's office didn't find out until the crime lab report arrived 6 months later. They pleaded guilty because they didn't want to lose their job or their apartment. If you can't make bail, then you're more likely to take the crappy deal. And it isn't just drug cases where this happens. I mean, how many people in Waco after the Twin Peaks massacre were rounded up and given $1 million bond, and a bunch of them had been just sitting there in the restaurant? That dynamic points to a whole different set of issues. We're starting to look at the front end of the process - at plea-bargaining issues and at pretrial detention. And I think other reforms will suggest themselves.

    I'm really excited about the exoneration review commission - we have an opportunity to do some cutting-edge work that just hasn't been done yet, figuring out what's the next phase. It's one of the reasons I agreed to take this job, even though it's more of a managerial job than a policy one. I think we're well situated to keep doing important work. The innocence frame, which really is at root an accuracy frame, is a very interesting lens through which to view the justice system.

    MH: What do you mean by an "accuracy frame"?

    SH: "You got the wrong guy. Get it right."

    MH: What are some of the specific things you want to do as executive director?

    SH: In the past our litigation has mostly been handled by a handful of pro bono attorneys or law students at the Texas Tech clinic, and it's been almost episodic. We haven't been able to be proactive and strategic because we haven't had a full-time staff attorney. I'm hoping we can hire a topflight staff attorney whose sole job is working for IPOT, somebody who's a little older, has a little bit more experience.

    MH: You're moving IPOT to Austin.

    SH: It won't be based in Lubbock for long. That would have been a deal killer. Lubbock, we love you, but no.

    MH: The Innocence Project has been working with the Texas Forensic Science Commission and the state fire marshal to review old arson cases. I'm guessing it's unusual for a state fire marshal to collaborate with an innocence project.

    SH: Yeah. But we've done something similar before: in 2007 we worked with the Dallas County DA, vetting cases in which inmates had asked for post-conviction DNA testing. That's where we have, I think, found our niche: being a partner with unlikely allies. It doesn't all have to be adversarial.

    MH: You've always been careful on Grits to note that you work for IPOT. Can you continue to writ Grits when you actually run IPOT?

    SH: Everyone likes the blog, everyone likes me to do a lot of free labor. And for me the blog is more utilitarian than most people realize. It's not a public service; I know readers appreciate it, but it's not for y'all. It's mostly for me, so I can keep track of the issues I???m working on, so I can trot out arguments and new frameworks, new ways of looking at things, because my critics will be right there in the comments, telling me what I got wrong.

    MH: What other criminal justice issues do you feel strongly about?

    SH: Our incarceration rate is too high - we're the epicenter of mass incarceration worldwide. Our population is 70 % the size of California's, but we have 30,000 more prisoners than they do. We've closed 3 prisons; I'd like to see us close another 30. Also, police misconduct is a big problem, although a lot of it is kept secret, especially in the larger police departments that operate under the state civil service code - all their disciplinary files are secret. You can't manage what you can't measure.

    MH: On Grits you've been critical of people who focus too much on the death penalty.

    SH: I have an iconoclastic view of the death penalty, and it's one I certainly wouldn't attribute to the Innocence Project. I'm of the view that all of us die, but not everyone spends his life locked up in a small box - a lifetime in solitary confinement is a worse fate than death. I also think that we should worry about all the people the system kills - people shot by cops, people who die because of crappy health care in prison, like Tim Cole, who died because he couldn't get access to an asthma inhaler. My complaint to my friends who work on death penalty cases is that their debates suck all the oxygen out of the room. Death penalty cases are given outsized coverage by the press, and everyone wants to view the entire criminal justice system through that lens. That means you never get to talk about other important issues, like pretrial detention or mass incarceration. There are about 400 deaths a year in official custody, which is 40 times the number of people executed. There are plenty of people focused on those 10. I want to look at the other 390.

    (Source: Texas Monthly)


      October 28th

      Two Dallas Men Released After Serving 15 Years

      Stanley Mozee (left) and David Allen greet family & supporters
      outside the courtroom. (Photo credit: Lara Solt)

      Dennis Lee Allen and Stanley Orson Mozee walked out of a Dallas County courtroom Tuesday after the judge ruled that their murder convictions from 2000 should be overturned based on previously withheld evidence. The Innocence Project and the Innocence Project of Texas had petitioned for the pair’s release based on evidence that suggests serious prosecutorial misconduct as well as the favorable results of recent DNA testing on bloodstains and other key evidence from the crime scene. District Attorney Craig Watkins and his Conviction Integrity Unit agreed that the prosecutor withheld exculpatory evidence and joined the lawyers for Allen and Mozee in seeking Tuesday’s ruling that the pair did not receive a fair trial on that basis.

      Allen and Mozee were convicted of the 1999 murder of Reverend Jesse Borns Jr., despite a lack of physical evidence or any eyewitnesses connecting them to the crime. The prosecution relied on testimony from jailhouse informants and an unrecorded confession from Mozee, who has a history of mental illness and immediately recanted, saying he was coerced into signing a statement.

      Post-conviction DNA testing found no trace of DNA from the two men on multiple items recovered from the scene, however DNA from one or more persons that doesn’t match to the victim, Allen or Mozee was discovered on several items. Further, letters were discovered in the former Assistant District Attorney’s case file from jailhouse informants indicating that they had been promised reduced sentences in exchange for their testimony. These informants, who claimed to have heard Allen and Mozee admitting to the murder, swore to the jury that they didn’t receive, or even seek, favorable treatment for their testimony. These letters were never disclosed during the 2000 trials despite orders from the judge to turn over prior statements made by all witnesses and all evidence favorable to the defense. The two inmates both received lenient sentences for the crimes they were facing and have since told defense attorneys their initial testimony was false.

      Two Dallas Men Released After Serving 15 Years

      Oct. 8th

      Laborer who spent time on death row in Texas goes free

      A construction laborer who spent 9 years in prison - 4 on death row - was freed Wednesday after a judge ruled that the man's pro bono lawyers in South Texas did a shoddy job defending him.

      "An innocent man went to death row because of a complete system failure," says Brian Stull, an American Civil Liberties Union attorney who represented Manuel Velez, 49, in the successful effort to overturn his 2008 murder conviction.

      Velez was convicted and sentenced to death for the 2005 beating death of Angel Moreno, the 1-year-old son of a woman Velez was living with in Brownsville, Texas. The prosecution relied heavily on a timeline asserting that the fatal injuries occurred within the 2 weeks before the child died. Before those 2 weeks, Velez had been working in Tennessee for several weeks.

      The jury never heard about a prosecution expert's report indicating that autopsy results showed that the critical head injury occurred more than 2 weeks before the child died.

      The death sentence was overturned in 2012 in an appeal arguing that a witness on the subject of Velez's future capacity for being dangerous was no longer credible. The conviction stood.

      Lawyers for Velez then sought to overturn the conviction on the grounds that his original lawyers, appointed by the court, made mistakes.

      At a hearing for a new trial in December 2012, prosecutors argued that those lawyers - Hector Villarreal, who has since died, and Rene Flores - did the best they could and that the standard for good lawyers and top experts was lower in South Texas.

      The judge hearing the motion for a new trial, Elia Cornejo Lopez, rejected the standards argument, writing that "a (defendant's) life in Cameron County is worth just the same as a life in other parts of the United States."

      She granted a new trial. Earlier this year, prosecutors said they would no longer seek the death penalty in the case.

      The ACLU's Stull said Velez wanted to get out of prison as soon as possible and agreed in August to plead "no contest" to reckless injury of a child, allowing him to go free based on time already served and good behavior.

      The case began on Halloween 2005, when Angel Moreno was found not breathing and was rushed to a hospital, where he died 2 days later, according to court records.

      His mother, Acela Moreno, later pleaded guilty to striking her son on Oct. 31, 2005, and served 5 years of a 10-year sentence. She agreed to testify for the prosecution against Velez but never said she saw him strike her son.

      The evidence portion of Velez's trial lasted seven days. In reviewing the record 7 years later, Lopez found that Villarreal and Flores did a poor job representing Velez. They offered no medical evidence about the age of the child's injuries and failed to contact a neuropathologist who had examined the brain tissue for prosecution experts.

      The neuropathologist concluded in a report that a crucial head injury had clearly occurred 2 weeks to 6 months before death.

      (Source: USA Today)

      August 5

      Prosecutor In contested Texas Execution Faces New Scrutiny By Innocence Project

      A non-profit group on Monday accused the prosecutor in the case of a Texas man executed for the fire deaths of his 3 daughters of trying to cover up a jailhouse informant's recantation.

      The New York-based Innocence Project, which investigates potential wrongful convictions, said it had filed a state bar grievance against John H. Jackson, a former prosecutor and judge who oversaw the case against Cameron Todd Willingham.

      Willingham was executed in 2004 for killing his 3 daughters in a house fire in Corsicana. The project has long pursued Willingham's case for evidence suggesting that Texas wrongfully executed him. State officials have maintained that they still believe he was guilty of murder.

      A key witness in the case was inmate Johnny Webb, who testified that while in jail awaiting trial, Willingham confessed to Webb that he had killed the girls.

      In its latest grievance filing, dated July 25, the Innocence Project reiterated allegations that Jackson lied about getting Webb a lighter sentence on a robbery case. It also accuses Jackson and a local wealthy rancher in Corsicana of working to conceal Webb's change of heart, which occurred years before Willingham's execution.

      The Innocence Project accused Jackson of hiding a handwritten letter written by Webb in 2000 that was titled "Motion to Recant Testimony." Attorneys on the case have said they found the letter years after Willingham's death.

      "I was (forced) to testify against Mr. Willingham by the D.A.'s office and other officials," Webb wrote in the note, posted online by The Marshall Project, a non-profit journalism group that examined the case and published an account of its findings Monday.

      "I was made to lie," Webb said in the note. "Mr. Willingham is innocent of all charges."

      Jackson did not return several messages from The Associated Press on Monday. He has consistently denied any wrongdoing in the case. He has acknowledged working to get Webb out of prison early for his robbery conviction, but said he did so because Webb was receiving death threats from the Aryan Brotherhood due to his testimony.

      Webb told the Marshall Project that rancher Charles S. Pearce, aid for his entry into a diving school after his release and sent him money for years afterward. The Innocence Project accused Pearce of being Jackson's "wealthy friend" and communicating with him often about Webb.

      Pearce died in 2008, and his daughter, Vivian, told the Marshall Project that she didn't believe her father would have abetted false testimony.

      The State Bar of Texas would not comment Monday on the grievance filing. The bar typically takes about 30 days to review petitions and decide whether to proceed against a lawyer. If the state bar moves forward, Jackson could lose his law license.

      A house fire in 1991 killed Willingham's 3 daughters: 2-year-old Amber and 1-year-old twins Karmon and Kameron. Fire investigators testifying against Willingham said they concluded the fire was set intentionally.

      But several fire science experts and a state panel have since said that conclusion was wrong and unsupported by evidence. Combined with Webb's recantation, supporters of Willingham have called his execution a wrongful death and have pushed on state officials to acknowledge his innocence.

      Republican Gov. Rick Perry, who previously called Willingham a "monster" guilty of killing the 3 girls, has reaffirmed his position, and the Texas parole board earlier this year denied a request to pardon him posthumously.

      State advocates, meanwhile, are working with the Texas Fire Marshal's Office to review old arson cases and have won several reforms designed to avoid wrongful convictions.

      (Source: Associated Press)

      MARCH 07, 2014

      Innocence Project of Texas: 'Why I do this work'

      My employers at the Innocence Project of Texas have been publishing short essays from staff and attorneys on their website on the topic of, "Why I do this work."

      Check them out here.

      And if you're interested in supporting the group, go here to donate.

      Report: Texas Leads Nation in 2013 Exonerations

      By Edgar Walters
      Feb. 4, 2014

      Texas in 2013 exonerated more people who were wrongfully convicted of crimes than any other state, according to a new report from the National Registry of Exonerations.

      Thirteen Texans were officially absolved of wrongdoing last year for crimes ranging from murder to drug possession. Some had spent more than a decade in prison, and others a few months. The state with the second-most exonerations was Illinois, with nine, followed by New York, with eight.

      The national registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at the Northwestern University School of Law, was launched in 2012. It tracks every known exoneration in the United States since 1989. Texas has 133 exonerations listed. Only New York, with 152, and California, with 136, have more.

      The project’s directors stress that many more wrongful convictions never make the list.

      “There are many false convictions that we don’t know about,” said Samuel Gross, editor of the registry and co-author of the report. “The exonerations we know about are only the tip of the iceberg.”

      The report found that while the number of exonerations in 2013 was a record high (87 across the country), the percentage based on DNA evidence dropped. Rebecca Bernhardt, policy director for the Texas Defender Service, called that finding notable because it indicates a growing number of exonerations in cases other than murder and sexual assault.

      She said the report demonstrates the importance of high-quality defense in all criminal trials. The registry attributes “inadequate legal defense” as a contributing factor to four of the 13 wrongful convictions.

      “It’s not so much about good lawyers versus bad lawyers,” Bernhardt said. “Every time the court doesn’t give you the resources you need for investigations, you lose the tools necessary to prove that your client either wasn’t guilty or deserves mercy.”

      State Sen. Rodney Ellis, D-Houston, called exonerations a “shameful category” for Texas to lead. Ellis, who has authored legislation aimed at preventing wrongful convictions, including last year’s Michael Morton Act, called on the state to provide higher quality legal representation to the poor.

      “Unfortunately, in everyday Texas, quality of justice is too often contingent on your wealth and the attorney you can afford,” he said.

      The registry does not track exonerees by income, but it includes a racial/ethnic breakdown of known wrongful convictions. At 47 percent of exonerees, blacks are overrepresented, while whites and Hispanics make up 40 and 11 percent, respectively.

      Others have called for tougher punishments against prosecutors who behave unethically in order to reduce wrongful convictions. They point to cases like that of Kenneth Wayne Boyd Jr., who was convicted in 1999 of a triple murder and sentenced to life in prison. Boyd appealed, and more than a decade later, in 2013, Texas’ highest criminal court exonerated him, ruling that his prosecutor had suppressed favorable evidence and knowingly presented false evidence.

      State Sen. John Whitmire, D-Houston, who last year authored Senate Bill 825, which extends the period of time during which an exoneree can file grievances against his or her prosecutor, said it was important that all parties have an incentive to avoid misconduct.

      “How about some accountability for district attorneys?” asked Whitmire, chairman of the Senate Criminal Justice Committee. “Good DAs don’t mind it.”

      The registry lists “official misconduct” as a contributing factor in two of Texas’ exonerations last year.

      Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, said that prosecutorial misconduct accounted for just a “fraction” of wrongful convictions. According to the report, many cases in 2013 relied on faulty forensic evidence, often related to drug testing.

      “Half of these cases could have been avoided if we’d just had the resources to do testing on these substances up front,” Edmonds said.

      “To ensure that the system works as it’s intended, both sides have to have good advocates to investigate the cases,” he added.

      Compared to the roughly 1 million criminal cases processed in Texas each year, Edmonds called the 13 known wrongful convictions a “pretty small number.”

      “And yet, even one is too many,” he said. “We strive for perfection.”

      Report: Texas Leads Nation in 2013 Exonerations


      Aug. 20

      New Law Could Help Wrongfully Convicted

      A new law in Texas could help those behind bars that have been wrongfully convicted.

      Since 1989, 54 inmates have been exonerated based on DNA test results.

      This success helped enact legislation that requires testing on evidence in death penalty cases starting September 1st.

      But the fear is that this new law will create a backlog and long wait time for results.

      For some counties, it could take up to 6 months or longer.

      In rural communities additional testing could even delay trials or work on other cases.

      Prosecutors agree that testing to verify the identity of a killer is worth the time and expense but in some instances could be used to try to delay a conviction.

      The Texas Defender Service, which represents death row inmates, says the law would also help prevent "tunnel vision."

      That's where investigators hone in on one suspect and inadvertently ignore evidence that could implicate others.

      (Source: News Channel 10)

      April 28

      Texas House OKs Review Of Wrongful Convictions; Bill Sparks Fear Of Overreaching

      It had been nearly a 10-year struggle, but last week, with little opposition in a 115-28 vote, the Texas House passed legislation that would allow for the creation of an exoneration commission to review wrongful convictions.

      HB 166, authored by state Rep. Ruth Jones McClendon, D-San Antonio, is championed by some legislators and innocence project groups as a step forward for the state. Texas is among the leaders nationwide in wrongful conviction cases, with 119, according to the National Registry of Exonerations.

      But some prosecutors worry about unintended consequences of the bill, including conflicts of interest stemming from the proposed private and grant funding of the commission and even the end of the death penalty in Texas.

      Justin Wood, an assistant district attorney in Harris County, told a House panel he opposed the bill that would create the Timothy Cole Exoneration Commission - named after a man wrongfully convicted of rape in Lubbock who died in prison in 1999 but was given the 1st posthumous pardon in the state.

      "My office is not opposed to the idea of what the bill purports to be," he said. "Our concern is that the bill might end up being more over-reaching than its stated purpose."

      District Attorney Lee Hon of Polk County agreed, saying prosecutors he's spoken with view the bill as a "Trojan horse to establish institutional opposition to the death penalty in Texas" because it would invite funding from interest groups that would like to see the death penalty abolished.

      Wood and Hon said the state-funded innocence projects at 4 law schools across the state already address the issue sufficiently and that passage of the bill would result in redundancies.

      Nick Vilbas, executive director of the Innocence Project of Texas, said he originally sided with prosecutors who are against the bill, and was skeptical that the commission could remain unbiased and focused. But he now feels there's room for both the commission and the innocence project to make a positive impact.

      "Our main goal is getting people out of prison who don't belong there, and that's not the purpose of this commission," he said. "We can all benefit from having an independent body shining a light on how things went wrong and how the process could have been handled differently."

      House passage of the bill came a week after the Senate unanimously approved SB 1292, which would require mandatory DNA testing in cases where the defendant faces the death penalty.

      The bill's author, state Sen. Rodney Ellis, D-Houston, said he's gotten similar bills passed by the Senate 2 times before, only to later see them die.

      "You never declare victory on a piece of legislation until it's on the governor's desk and you have a pretty clear indication he's going to sign it," he said of the 31-0 vote. "That being said, even when it did pass in previous years, it certainly was never unanimous."

      McClendon credited a new era of "civility" in the House for her bill's bipartisan support.

      "Republicans and Democrats are working together on this, and understand it's bad for everyone when innocent people are incarcerated," she said. "Every year I think it's the year, but this time I know my colleagues finally get it."

      Vilbas said the collective votes are representative of a philosophical change that indicates legislators no longer view it as a party line issue, but rather a civil rights issue.

      "Ultimately this is as American an issue as you can get, because what's at the core of all we hold true? Freedom," he said. "And when that is stolen from you by the government and you're sent to prison, what's more American than fighting to correct that?"

      (Source: San Antonio Express-News)

      March 24

      New DNA Bill May Prevent Wrongful Convictions

      "The state will proceed."

      On 3 occasions in 2000, while he was the president pro tempore of the Senate and was called on to serve as the acting governor, state Sen. Rodney Ellis uttered those 4 words that gave the go-ahead for a man to be executed.

      The Houston Democrat says he had some anxious moments on receiving the calls from Huntsville, where prison officials waited to carry out scheduled executions. And he said he had some restless nights afterward, knowing people had been put to death once the governor's office gave the OK.

      Although a proponent of the death penalty, Ellis is a champion of criminal justice reform. He has a record of introducing legislation to improve the system, including a law that would exempt the mentally ill from capital punishment and several bills designed to lessen the chance of an innocent person being convicted.

      Last week, with the endorsement of the state Attorney General Greg Abbott, a Republican, Ellis described SB 1292, a bill he has introduced that would require DNA testing of all biological evidence in death penalty cases before trial.

      As now written, the legislation calls for the testing to be done by Department of Public Safety laboratories, with the cost paid by the state. Ellis told the Star-Telegram Editorial Board Thursday that he expects this provision of the bill to undergo changes in the Criminal Justice Committee so that it wouldn't have the unintended consequence of overburdening the DPS labs.

      This is one more important step in addressing Texas' hauntingly embarrassing record of wrongful convictions, but it's far from being a cure-all. The pre-trial testing, as Ellis and Abbott point out, could aid the falsely accused in being exonerated sooner and cut down the long post-trial appeals process that occurs in most death penalty cases.

      For a state that has executed more people than any other -- 493 since 1976 -- it is imperative that we are as certain as humanly possible that the person being put to death is the one who committed the crime.

      Ellis noted that 303 people in the United States have been exonerated by post-conviction DNA testing, 18 of whom served time on death row. Another 16 had been convicted of capital crimes, but not given the death penalty, he said.

      Therein lies a shortcoming of Ellis' bill. Most of the cases cleared by DNA, many of them sexual assaults, were not death penalty cases, which means there may be many others wrongly accused whom the proposed legislation would not help.

      That is why it is imperative that law enforcement, prosecutors and defense attorneys make full use of the science that might positively identify a suspect, or eliminate him or her. The DNA testing, along with recently enacted laws improving criminal investigation techniques like photo line-ups, will improve the system.

      Ellis, board chair of the national Innocence Project, concedes that his new DNA bill doesn't and can't address all the issues of the wrongly convicted, but he is quick to point out that he will be pushing other legislation that's in the pipeline.

      One of those bills (HB 166) creates the Tim Cole Exoneration Review Commission, named for a wrongly convicted Fort Worth man who died in prison. That bill, which was approved by the House Criminal Jurisprudence Committee March 12, would create and fund a body to investigate each of the exonerated cases in Texas in an effort to determine the causes that led to an innocent person being arrested, charged, prosecuted and sentenced to prison or death.

      These safeguards are vital to help ensure fair and untainted justice, and the more we have the better. They should not be regarded, however, as additional planks to justify this state's defense of capital punishment.

      That is still an issue Texans must continue to debate -- on both legal and moral grounds.

      (Source: Editorial, Fort Worth Star-Telegram)

      Years After Innocence Finding, Inmate Remains in Prison

      • By Brandi Grissom
      • March 10, 2013

      TENNESSEE COLONY — In 2008, Ben Spencer’s family bought him new clothes in preparation for a day they had prayed for since 1987. A Dallas County judge had declared Spencer innocent of the robbery and murder that sent him to prison for life.

      “I really thought once he made his ruling, I was finally going to get out and be free,” Spencer said nearly five years later from the Coffield Prison here. This month, he will mark 26 years behind bars.

      Spencer’s 1988 conviction for the murder of Jeffrey Young was based primarily on the testimony of a jailhouse informant and three eyewitnesses who claimed to have seen the 22-year-old man and an accomplice in a dark alley. An expert hired years later by Spencer’s attorneys reviewed the crime scene and concluded that the witnesses could not have seen Spencer; the informant has recanted his testimony.

      Dallas County state district Judge Rick Magnis concluded that the conviction should be overturned. But three years later, in an unusual move, the Texas Court of Criminal Appeals rejected those findings, saying in part that the expert evaluation of the crime scene was not reliable.

      To get Spencer’s case back into court, his lawyers must find new evidence of his innocence.

      His advocates remain baffled by the ruling and the reticence of Dallas County District Attorney Craig Watkins — widely known for investigations that have led to dozens of exonerations — to investigate the man they believe committed the murder. Russell Wilson, the assistant prosecutor who leads the district attorney’s conviction integrity unit, said that if new evidence were discovered, his office would pursue it.

      “All I can really tell you on that is we’re always open for business,” Wilson said. In 2008, a Dallas County assistant prosecutor told The Dallas Morning News that the office stood by the testimony of the eyewitnesses.

      On the night of March 22, 1987, residents of a gritty West Dallas neighborhood found Young, a businessman, lying in the street, barely alive. He had been abducted from his office in an industrial complex, beaten, shoved into his BMW and dumped on the street before he died. A few blocks away, police found his car abandoned in an alley.

      Two days later, Gladys Oliver, who lived near where the car was found, contacted Crime Stoppers. She had told police the day before that she had not seen anything.

      But after Young’s company made a reward offer, she told police she had seen Spencer and a friend get out of the BMW. She also suggested other neighbors who might have seen something.

      Police interviewed Jimmy Cotton, who lived across the street from where the BMW was found. He said he had seen Spencer and the friend from his kitchen window as they got out of the car.

      Investigators also interviewed Charles Stewart, who said that from more than half a block away on the moonless night, he saw the pair get out of the BMW.

      Police arrested Spencer on March 26, 1987. He was placed in a Dallas County Jail cell with Danny Edwards, who testified that Spencer confessed to the murder.

      At the trial, Spencer’s lawyers argued that he had been at a park the night of the crime, talking with a 16-year-old girl, who corroborated his alibi.

      But jurors rejected his claim of innocence.

      Jim McCloskey, founder of Centurion Ministries, which works to free the wrongfully convicted, took up Spencer’s case in 2000. He is convinced that Michael Hubbard, a convicted robber, killed Young and that Spencer was wrongfully convicted. (Hubbard, known by the nickname the batman, is serving a life sentence for an aggravated robbery in which he assaulted his victim, who was leaving an industrial park, with a baseball bat.)

      “This guy is totally innocent,” McCloskey said of Spencer.

      Centurion Ministries filed a writ on Spencer’s behalf in 2004. At a 2007 evidentiary hearing in Spencer’s case, Kelvin Johnson, an ex-convict who said he had committed crimes with Hubbard, told Magnis that he informed police in 1987 that Hubbard had told him he had stolen items that matched those stolen from Young. Johnson told police Hubbard had robbed and assaulted Young.

      “Michael had explained to us how he did it,” Johnson said in a recent interview.

      Hubbard declined to be interviewed for this article, and at the 2007 hearing, he refused to testify.

      Paul Michel, an expert in forensic visual science who Spencer’s lawyers hired, said during the hearing that on the night of the crime, the eyewitnesses would have had to have been within 25 feet of the defendant to identify him. The closest of three witnesses who claimed to have seen Spencer was Cotton, who was about 100 feet away.

      And at the hearing, Edwards admitted that Spencer had not confessed to him.

      After Magnis ruled that Spencer was innocent and recommended a new trial in 2008, the case went to the Court of Criminal Appeals, which must approve such a finding. Usually, it’s a matter of rubber-stamping the findings of the judge who heard the evidence.

      But Spencer waited three years for a ruling. “It started to get depressing,” he said.

      In 2011, the court found that Michel’s crime scene evaluation was unreliable because he could not replicate the lighting conditions. Even if the court accepted the findings, the opinion stated, it would not prove Spencer’s innocence.

      “I thought they would have done the right thing,” said Spencer, now 48. “They did the opposite.”

      McCloskey and Cheryl Wattley, a lawyer for Spencer, said they would never give up, but they are running out of options. They have met with prosecutors in Watkins’ office, asking for assistance.

      McCloskey said the prosecutor’s resistance in Spencer’s case mystifies him.

      “They don’t want to see what is evident to all who look at this case,” he said.

      Wilson, the assistant prosecutor in the conviction integrity unit, said his predecessors reviewed the case and found no new evidence. Whether or not he agrees with the appeals court’s decision, Wilson said, it was the last word unless new evidence is discovered.

      Spencer and his lawyers say his best hope for freedom is a parole hearing scheduled for July. His last two applications were denied by the parole board, which typically asks convicts to express remorse before consenting to release.

      “It’s hard to have remorse for something you didn’t do,” Spencer said.

      Years After Innocence Finding, Inmate Remains in Prison

      March 5

      Report: Update Laws To Keep Innocent Texans Out Of Prison

      The goal is to reduce wrongful convictions and ensure the proceedings are fair, as Texas lawmakers consider several plans to amend state law about what evidence must be shared between prosecutors and defense attorneys. The push comes as a new report finds the Texas discovery laws are significantly out of step with those of other states.

      Rebecca Bernhardt, policy director with the Texas Defender Service, noted that it's been nearly 50 years since the main statute on criminal discovery was updated.

      "Our position is, the more automatic sharing of the bulk of the information that the state has at the front end, the faster cases will settle and the less likely it is that favorable information will be held back," she said.

      To understand the downfalls of the current Texas criminal discovery laws, Bernhardt suggested looking at the wrongful murder convictions of Michael Morton and Anthony Graves. Graves was exonerated in 2010 after serving 18 years in prison, most of them on death row. Morton served 25 years, and was released in 2011 after DNA tests found he could not have committed the crime.

      "In both of those cases," Bernhardt explained, "one of the key factors that led to the wrongful conviction - in Mike Morton's case, really, the main thing - was the prosecution's failure to share favorable information with the defendants' attorneys before trial."

      Cases like Morton's and Graves' may not be common, but Bernhardt said violations of the criminal discovery laws happen on a regular basis and, in recent years, that has landed some prosecutors in hot water.

      "In Galveston County, the district attorney actually fired an assistant district attorney and one resigned - so, 2 people left the office - over not sharing evidence properly. And in Denton County, a judge permanently banned 2 assistant district attorneys from his courtroom and dismissed the case as a penalty."

      Texas currently requires few disclosures by attorneys and rules can vary between counties, she said, so access to justice can depend in part on where a case is tried. Moving to open the discovery process will reduce the likelihood of wrongful convictions, she added, and should bring the Texas law closer to best practices recommended by the American Bar Association.

      The report is available at http://texasdefender.org.
      Associated bills include SB91, HB350 and HB1426.

      (source: The Vindicator)

      Posted: Feb. 27, 2013


      Lawmakers Should Clean Up Flaws That Lead To Wrongful Convictions

      By Editorial Board
      Special to the American-Statesman

      There is no way the legal system can give Michael Morton back the 25 years he spent in prison for a crime he did not commit. But the Legislature can — and should — try correct the flaws in the system that stole his freedom. It can and should make the system more accountable when it fails. A bill filed this week by state Sen. John Whitmire, D-Houston, would help achieve those goals. We urge the Legislature to advance the bill and take other action to prevent wrongful convictions involving prosecutor misconduct. As demonstrated in the Morton case, wrongful convictions leave communities vulnerable to criminals who remain free because others are serving time for their deeds.

      Wrongul convictions won through prosecutorial tactics such as hiding or suppressing evidence or information favorable to the defense are morally wrong. But as we’re seeing in Texas, wrongful convictions also are costly, totaling about $65 million in compensation since 1992 to people who were freed after spending time in prison for crimes they did not commit.

      And that is the aim of Whitmire’s Senate Bill 825. It is an important step in addressing flaws in the system, but it should not be the only action the Legislature takes to clean up flaws in Texas’ legal system. Whitmire chairs the Senate Committee on Criminal Justice.

      The measure would reset the statute of limitations for exonerated Texans who allege that prosecutors improperly hid key evidence or information favorable to helping defendants prove their innocence. If the Legislature passes Whitmire’s bill, exonerees would have four years from the date of their release from prison to file a grievance with the State Bar of Texas, which oversees attorney discipline. Under current law, those who are wrongfully convicted can be denied their day in court on a technicality because the statute of limitations now begins at the time a violation occurs. It does allow time to be extended if a violation could not be discovered earlier because of “fraud or concealment.”

      Another provision of the bill relies on the time-tested method of shaming bad prosecutors who engage in unethical or unlawful behavior to win convictions. It requires that prosecutors be publicly reprimanded if misconduct is found, removing the option of a private rebuke. Shining a public light on bad behavior can be a powerful deterrent. For some time, it’s been evident that the system is not tough enough in discouraging or punishing prosecutors who engage in misconduct. It took the Morton case, however, to drive home that point. In filing the bill, Whitmire cited the Morton case as a “prime example of the imperfections of our justice system.”

      Morton served almost 25 years in prison for the murder of his wife, Christine, before DNA tests confirmed his innocence and he was freed in 2011. He has accused former Willaimson County District Attorney Ken Anderson of hiding favorable evidence from defense lawyers in his 1987 trial. Anderson, now a state district judge in Georgetown, has denied the accusations.

      Following news reports on the Morton case and an American-Statesman editorial calling for action by the State Bar of Texas, a bar disciplinary committee filed a lawsuit in October accusing Anderson of violating his duty as a prosecutor by withholding evidence that could have supported Morton’s contention that an unknown intruder killed his wife. If the accusations are upheld, Anderson faces reprimand, disbarment or a temporary loss of his law license.

      Anderson’s legal team has challenged the lawsuit on several grounds, including a claim that the statute of limitations bars the filing of a grievance tied to events that happened nearly 25 years ago — a technicality that Whitmire’s bill will close if the Legislature passes the bill.

      Public safety also should weigh heavily in advancing the bill. In the Morton case, the person who was ultimately indicted on a charge of killing Morton’s wife, Mark Alan Norwood, has been linked by DNA evidence to another murder that happened after Christine Morton was killed in 1986. Norwood faces capital murder charges in the 1988 beating death of Debra Masters Baker of Austin.

      The solution proposed by Whitmire is overdue. In 2003, long before the Morton case, we pointed out problems regarding misconduct by some prosecutors and urged the State Bar of Texas and the Legislature to hold prosecutors who cheat or break the rules accountable. That case involved Swisher County District Attorney Terry McEachern, who obtained tainted drug convictions against about a dozen residents of Tulia based on evidence fabricated by a single law officer. The disciplinary petition the state bar filed against McEachern also accused McEachern of not conveying information to defense attorneys about his knowledge of the criminal history of the officer, Tom Coleman, whose fabrications were the basis for wrongful convictions that were ultimately overturned.

      As we noted, Whitmire’s bill should not be the only action the Legislature takes to address deficiencies that continue to result in people being convicted and imprisoned for crimes they did not commit. But it’s a key part of a larger solution.

      - See more at: Lawmakers Should Clean Up Flaws That Lead To Wrongful Convictions

      Wrongful Convictions A Lasting Scar On Texas Justice System

      Posted Feb. 12, 2013

      In a Georgetown courtroom last week, a Texas judge took the witness stand on his own behalf during a special court of inquiry -- a rare event in this state -- to determine whether he committed prosecutorial misconduct 25 years ago as Williamson County's district attorney.

      The court of inquiry will decide whether he should be prosecuted.

      Monday morning, a 58-year-old father of two entered a Corsicana courtroom in shackles but left that day a free man after DNA testing proved he had been wrongly convicted of murdering a woman in 1981, a crime for which he spent almost 30 years behind bars.

      At the time he was convicted and given a 99-year-sentence, his son and daughter were 7 and 4 respectively.

      The two cases continue to shine a spotlight on this state's tragic record of sending innocent people to prison, and they highlight another problem that has received too little attention over the years: prosecutorial misconduct, whether unintentional or deliberate.

      State District Judge Ken Anderson, who sits on the bench in Georgetown, was district attorney of Williamson County in 1987 and prosecuted Michael Morton, accused of fatally beating his wife, Christine.

      Morton was convicted.

      In October 2011, Morton, after serving 25 years of a life sentence, was freed when DNA testing proved that he was not the murderer.

      The new testing implicated another man, who has been arrested.

      Last fall, the State Bar of Texas found that Anderson had withheld evidence in Morton's case and had specifically disobeyed the trial judge's order to turn over all documents favorable to the defense.

      Anderson at the time said the state had no such evidence, a statement the State Bar said "was false."

      Included among the five specific pieces of evidence that the prosecution withheld was a transcript of statements by Morton's mother-in-law that indicated that the couple's 3-year-old son had witnessed his mother's beating, that the boy had said his father was not home at the time and that he said the perpetrator was "a monster."

      Also withheld, the State Bar said, was a statement from a neighbor who had seen something suspicious: a man parking a van outside the Morton's home and going into a wooded area.

      State District Judge Louis Sturns of Fort Worth is presiding over the court of inquiry. His decision is still weeks away.

      During proceedings last week, Anderson, 60, took no personal responsibility, but he told Morton "the system obviously screwed up," according to The Associated Press.

      Anderson said he ran a competent, professional office and his "worst nightmare" was knowing that an innocent man had been convicted.

      If his experience is a "nightmare," what would you call that of the innocent man who had his freedom and his children taken away from him?

      There is a growing fraternity of exonerated people in Texas who collectively have spent hundreds of years in prison.

      In Dallas County alone, more than 30 people have been freed as a result of DNA testing.

      The most recent exoneration came Monday in Corsicana. Randolph Arledge had been convicted of stabbing Carolyn Armstrong to death.

      His guilty verdict was based partly on faulty eye-witness testimony -- a common flaw in such cases -- and statements by two robbery suspects who claimed Arledge told them he had stabbed someone.

      The two robbery suspects had received favorable treatment in their cases in exchange for their testimony, according the "Memorandum in Support of Application for a Writ of Habeas Corpus."

      Then there's the case of Larry Ray Swearingen, which I wrote about last month. Swearingen, who many people think is innocent, was scheduled to be executed for the 1998 murder of Melissa Trotter, a 19-year-old Montgomery College student. A district judge stayed that execution on Jan. 30.

      Wrongful convictions will be a lasting scar on the Texas criminal justice system, which has to be the concern of more people than those involved in the Innocence Project.

      But in order to address it fully, we also must examine carefully the issue of prosecutorial misconduct.

      Bob Ray Sanders' column appears Sundays and Wednesdays.
      Twitter: @BobRaySanders

      Read more Here

      DNA Evidence Could Clear Man Convicted Of ’81 Navarro County Stabbing

      The Associated Press
      Published: 11 February 2013

      CORSICANA — A man convicted three decades ago of stabbing a woman more than 40 times could soon be freed thanks to DNA testing.

      Randolph Arledge has spent half of his life in prison due to a 1984 murder conviction. Prosecutors and Arledge’s attorneys at the national Innocence Project will ask a judge Monday to recommend that the 58-year-old Arledge go free.

      Arledge was given 99 years for the 1981 death of Carolyn Armstrong, whose body was found on a dirt road in Navarro County, southeast of Dallas.

      Investigators focused on Arledge after two co-conspirators in an armed robbery said he had admitted to stabbing someone. One of them later recanted. DNA from a hair net found in Armstrong’s car was a near-perfect match for another man now at large.

      DNA Evidence Could Clear Man Convicted Of ’81 Navarro County Stabbing


    Dec. 7th

    Legislation A Starting Place For Justice Reform

    "I was worn down. I just told them what they wanted to hear."

    That's how 1-time murder defendant Christopher Ochoa later explained his confession to a sensational rape-murder case at an Austin Pizza Hut in 1988.

    Ochoa not only buckled to pressure during hours of interrogation by police, he signed a detailed confession and stuck to the concocted story through a guilty plea and sentencing to life in prison.

    It was, Ochoa said later, a better deal than the death sentence that cops had held over his head. This way, he said, his mother wouldn't suffer the grief of losing her son.

    It's bizarre but true. Overmatched in the interrogation room, innocent criminal suspects incriminate themselves intentionally, as well as unintentionally.

    Ochoa was lucky. While he and a co-defendant were serving their life terms, the real killer of Pizza Hut employee Nancy DePriest began writing authorities, admitting guilt from his own prison cell.

    Ultimately, the truth came spilling out, and DNA tests proved Ochoa's innocence.

    Such cases are not rare. The Innocence Project of New York, in an analysis of the hundreds of DNA-proven exonerations, estimates that nearly a quarter of them involved innocent defendants who confessed, incriminated themselves or pleaded guilty.

    The Legislature will have the chance next year to build in a safeguard against cases like the Ochoa debacle: They can enact SB 87, by Sen. Rodney Ellis, D-Houston, to require audio- or videotaping of police interrogations of suspects in murders and other violent crimes. Passage could help innocent defendants who had caved to interrogators with a false confession but later needed to explain the circumstances to a jury.

    19 states already have adopted variations of the reform. Texas prosecutors and police officials need to work with proponents to arrive at a workable version here in the nation's leading death-penalty state, where the stakes are higher.

    Already for next session, lawmakers have introduced bills for other important criminal justice reforms, including:

    --HB 189, by Rep. Harold Dutton, D-Houston, which would rule out the use of accomplice testimony in death cases if the testimony were given in return for promises of leniency or special treatment. The outcome of a capital case should not hinge on a side deal that sends one suspect to the death chamber and rewards another.

    --SB 91, by Ellis, which would establish uniform standards for defense and prosecuting attorneys to share information on a criminal case before trial. A spate of Texas exonerations have involved withholding of potentially exculpatory information by prosecutors. This bill would both limit the possibility of willful prosecutorial misconduct and immunize prosecutors against complaints later on.

    --SB 89, by Ellis, to create a state innocence commission. This newspaper has supported enactment of this concept in previous sessions, and we do so again. The commission would dissect cases of wrongful conviction, of which Texas has a bounty, with an eye toward finding defects and shoring up the criminal justice system.

    Causes Of Wrongful Convictions

    Of 225 wrongful convictions exposed by DNA tests nationwide, the Innocence Project of New York attributed them to these causes (some cases have more than one, so the total is more than 225).

    (Source: Editorial, Dallas Morning News)

    SEPTEMBER 16, 2012

    Recantation boosts possible innocence claims of four SA women

    A victim recantation has cast new doubt on the case against four young women accused of child molestation in San Antonio,reported the Express-News, potentially corroborating allegations that forensics presented to jurors in the hot-button case were fundamentally flawed and victim testimony by the children at the time was highly inconsistent. "Very little stayed the same from their first statements to police through the last trial — and these accounts differed from the ones their father and grandmother recalled for authorities," the paper reported after an extensive review of the evidence.

    In the interest of full disclosure, this possible innocence case is being handled by attorneys working with my employers at the Innocence Project of Texas, though I don't work on the legal side of the organization and have no knowledge of the cases beyond published reports. Reading the two Express-News articles linked above, though, if the four women really were innocent, it points yet again to how powerful victim testimony can be for jurors in court, frequently overcoming contradictions and evidentiary flaws that in hindsight seem clearly significant. One gets the same sense from DNA exoneration cases where convictions were obtained solely based on eyewitness ID, sometimes contradicting credible alibi testimony. Making the matter especially difficult to untangle, often in false ID cases, the witness themselves believes their testimony is accurate. Similarly, in cases where children have been coached and encouraged in their accusations, it's easy for jurors to believe "something happened" based solely on a child declaring in court, "she did it." Such testimony, though, while persuasive isn't always definitive. In this case, the evidence is mounting that jurors may have made a mistake.

    Read the extensive Express-News stories here and here and judge for yourself.

    Recantation boosts possible innocence claims of four SA women

    Prosecutors: DNA tests clear man of sex assault Published August 20, 2012

    FORT WORTH, Texas (AP) — DNA test results have cleared a man who's served more than 20 years of a life sentence after being convicted of sexually assaulting a teenager.

    The Tarrant County Criminal District Attorney's Office is recommending that David Lee Wiggins be released on bond immediately, pending a final decision by theTexas Court of Criminal Appeals.

    Prosecutors say DNA test results show that Wiggins is not the source of genetic evidence found on the 14-year-old girl's clothes.

    He was convicted in 1989, a year after the assault in which the Fort Worth girl identified Wiggins as her attacker.

    Wiggins' attorney from the Innocence Project in New York filed a motion for post-conviction DNA testing.

    Prosecutors received the lab results clearing Wiggins two weeks ago.

    Prosecutors: DNA tests clear man of sex assault

    Texas Convict asks for Retrial 18 years after Confessing to Murder as Teen

    By Maegan Vazquez
    Published August 11, 2012

    Daniel Villegas was just 16 when he admitted killing two men in a drive-by shooting in El Paso, but after nearly two decades of professing his innocence from behind bars, he may be on the brink of a new trial.

    Now 35 years old, Villegas continues to insist the recanted confession that helped a jury find him guilty was coerced. But as he awaits a judge's decision on whether he'll get a new trial, he has more than just his jailhouse claims to back up his story. A private investigator hired by friends of his family, a team from Northwestern University Law School's Center on Wrongful Convictions of Youth and a pair of men exonerated after serving time for murder have taken up his cause. And Jesse Hernandez, who survived the shooting, says Villegas is not the killer.

    "I believe with all my heart he is innocent," Hernandez told FoxNews.com. "I always thought I knew who else might have done it from the beginning. I had never heard of Daniel before."

    "I believe with all my heart he is innocent."

    - Jesse Hernandez, witness to 1993 double murder

    Supporters of Villegas' innocence filed a writ of habeas corpus, citing ineffective assistance of counsel and actual innocence as their reasons for retrial. Texas 409th District Court Judge Sam Medrano plans to rule on Thursday on whether Villegas will get one last shot at freedom in what would be his third murder trial.

    It was back in 1993, when four men, including Hernandez, Juan Carlos Medina and murder victims Armando "Mando" Lazo, 18, and Robert England, 17, were walking along Electric Avenue. A car with three occupants rolled up, and one passenger demanded "Que Barrio?" - slang for "what gang are you with?" Two men fled, two were left dead in a trash-strewn vacant lot.

    England suffered a single gunshot wound to the head and died on scene. Lazo was shot once in the abdomen and once in the thigh. His body was found on the doorstep of a home across the street, where he'd managed to knocked on the door for help as his life slipped away.

    Cops zeroed in on Villegas, a high school dropout and gang member who grew up in a tough neighborhood called the "Devil's Triangle" and told fibs to boost his street cred. They went to his house and arrested him.

    “He was on the phone with his girlfriend in his bedroom when detectives came to our home," remembers Villegas' sister, Michelle Pena, who was 13 at the time.

    "It was totally unexpected. My mom and I were out. When we got back, the detectives walked in with us. I was very much in disbelief."

    Hours later, cops had a confession from Villegas, who wrote and read at the third-grade level. In it, he noted the detective gave him a Coke and apologizes to the families of the victims. Villegas' team says he was threatened and slapped into a confession by then-detective Al Marquez, now a bailiff in another El Paso judge's court.

    Beyond the confession, there was no physical evidence to tie Villegas to the crime. His first trial ended in a hung jury, but in the second trial, in 1995, the jury deliberated for three hours before announcing a guilty verdict.

    Villegas sentenced to life in prison.

    Jaime Esparza, the district attorney for El Paso who has been working on this case since 1993, declined comment until after Thursday's hearing. But El Paso Assistant District Attorney John Briggs told FoxNews.com the jury got it right, and dismissed Villegas' claims of ineffective counsel.

    "He has provided no new evidence, which is required for someone who is claiming actual innocence," Briggs said.

    The driving force behind the campaign to win a new trial for Villegas is local contractor John Mimbela. After marrying a woman he met at a bank and adopting her three daughters, Mimbela learned the girls' uncle was in prison for a crime the family didn't believe he committed. He delved into the case, reading thick case files, hiring a private detective, and spending - by his count - more than $200,000 trying to prove Villegas was innocent.

    "These overwhelming facts were never presented," Mimbela said. "He used to boast about a lot of things. That's what got him into this big old mess. He told his cousin 'I blew them away with a shotgun.' They never mentioned the shotgun part in court. I know that the crime was with a .22.

    The detective Mimbela hired, Freddie Bonilla, reported back to his client that Villegas' court-appointed lawyer, John Gates, had dropped the ball, spending just 40 hours preparing for his trial. Gates even signed an affidavit saying he had not done his best to argue Villegas' case. Bonilla, a former El Paso Police Department homicide detective, said he doesn't take calling out his former department lightly.

    "I wouldn't get involved with a case disputing the work of policemen unless it is something I knew didn't happen," Bonilla said. "I'm willing to bet my life on his innocence."

    The story of a coerced confession rang true for Hernandez, who was also questioned following the murders.

    "They tried to do that to me, but I kind of put things together," said Hernandez, now a city mechanic for El Paso. "They pushed him. They had other leads but they just dropped the ball and wanted the easy way out."

    Joshua Tepfer, project director at the Center on Wrongful Convictions of Youth, told FoxNews.com evidence shows the murders were committed by are two brothers, Rudy and Javier Flores, who allegedly told a witness Villegas was in jail for a crime they did. Javier Flores has since died and Rudy is currently serving jail time for drug-related charges.

    "We have new evidence from a third party witness for a prime suspect. This third party is a clear suspect in this crime and the evidence we have overwhelmingly meets the standard for a retrial," Tepfer said.

    Medina, the other witness who was there that night, seems to believe Villegas is innocent, but he doesn't much care about what happens at the hearing.

    "He took the rap for it for whoever it was," Medina told the El Paso Times. "But that is not going to get my friend out of the grave, that was my thought. It's hard to have feelings for him (Villegas), but I'm only human, too. I'm willing to give him that chance to prove himself ... if everything stays the same, that's OK, too."

    Texas convict asks for retrial 18 years after confessing to murder as teen

    July 10

    Texas Justice: 22 Years on Death Row

    An increasing number of headlines these days seem to start the same way: Joe Smith, wrongfully convicted of murder in 1989, walked out of prison today, a free man after more than 2 decades on death row.

    That's the good news. The double-whammy of bad news is that thousands of wrongfully convicted men and women are serving long sentences for crimes they did not commit -- and at least one of these free men is not really free. Which doesn't make putting his shattered life back together any piece of cake.

    He is Kerry Max Cook, 56, whom Texas still considers a convicted murderer. Cook was convicted of the 1977 raping and murdering Linda Jo Edwards in Tyler, Texas.

    He's had 3 trials: a 1st conviction that was reversed, a hung jury outcome in a 2nd trial, and a 3rd conviction that was overturned because it was found to be tainted by prosecutorial misconduct.

    Prosecutorial Misconduct: A phrase you will find many times in this article.

    While Smith County was considering a 4th trial for Cook, he entered into an unusual plea bargain. In 1999, under a bizarre Texas law, he pleaded "no contest" -- neither an admission of guilt nor a profession of innocence -- and walked out of jail.

    DNA tests on the victim's clothes eventually shone light on another man's biological matter.

    To Texas lawmen, however, Cook is a convicted murderer -- no more, no less.

    Which means he is usually unable to find steady employment and experience the normal, everyday life of a non-felon.

    "13 years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. This freedom means nothing with a conviction," said Cook. He is seeking new DNA testing to establish his innocence...

    Cook's anger-making story is part of a landmark report from the National Registry of Exonerations. The new institution, a partnership between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, reveals that more than 2,000 wrongfully convicted individuals have been exonerated nationally since 1989.

    The Texas Tribune has published a report by Brandi Grisssom, analyzing Texas cases involving prosecutorial misconduct but where the state bar has failed to take any action against the lawyers.

    The Item Opens:

    "In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

    None of those Prosecutors has ever been Disciplined."

    The Tribune noted, "It paints a bleak picture about what's going on with accountability and prosecutors," said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states."

    In Texas, Ridolfi told the Trib, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a 2-year probated suspension of his law license in 2005 and a $6,225 fine.

    Key Findings From The Report:

    Snapshot Figures of the 873 Exonerated Defendants:

    93% are Men,
    7% Women;
    50% are Black,
    38% White,
    11% Hispanic and
    2% Native American or Asian;
    37% were Exonerated with the help of DNA Evidence;
    63% without DNA;
    as a group, they spent more than 10,000 years in prison
    -- an average of more than 11 years each.

    Since 2000, exonerations have averaged 52 a year -- 1 a week -- 40% of which include DNA evidence.

    DNA exonerations are increasingly older cases: The average time from conviction to a DNA exoneration is now about 18 years, up from less than 7 years in the early 1990s, and murder cases -- since 2008 most DNA exonerations are murder prosecutions, usually rape-murders, rather than sexual assaults.

    The exonerations in the Registry are unevenly distributed geographically. They concentrated in several states, led by Illinois, New York, Texas and California.

    Some counties, like Cook (Chicago), Illinois, and Dallas, Texas, have dozens of exoneration; other counties with millions of people, like San Bernardino, California and Fairfax, Virginia, have none. Neighboring counties are often very far apart. Santa Clara County, California -- home of the Northern California Innocence Project -- has 10 exonerations; directly to its north, Alameda County has more violent crime but no known exonerations.

    The 873 exonerations are mostly rape and murder cases, but the data also include 18-20 many more exonerations for other crimes than previously known.

    All Told, We Have:

    48% Homicides (416) Including 12% Death Sentences (101)
    35% Sexual Assaults (305)
    5% Robberies (47)
    5% Other Violent Crimes (47)
    7% Drug, White Collar and Other Non-Violent Crimes (58)

    Causes of False Convictions

    For all exonerations, the most common causal factors that contributed to the underlying false convictions are perjury or false accusation (51%), mistaken eyewitness identification (43%) and official misconduct (42%) -- followed by false or misleading forensic evidence (24%) and false confession (16%).

    The frequencies of these causal factors vary greatly from one type of crime to another. See Table 13. -Homicide exonerations: The leading contributing cause is perjury or false accusation (66%) -- mostly deliberate misidentifications (44%).

    Homicide case also have a high rate of official misconduct (56%). Homicide exonerations include 76% of all false confessions in the data.

    Some exonerees were falsely implicated by a co-defendant who confessed.

    Including such cases, the convictions in 39% of homicide exonerations were caused in part by false confessions.

    Juvenile and mentally disabled exonerees were, respectively, 5 times and 9 times more likely to falsely confess than adult exonerees without known mental disabilities.

    Sexual assault exonerations are overwhelmingly cases with mistaken eyewitness identifications (80%).

    53% of all sexual assault exonerations with mistaken eyewitness identifications involved black men who were accused of raping white women. This huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification.

    Many sexual assault cases also include bad forensic evidence (37%).

    Child sex abuse exonerations, by contrast, primarily involve fabricated crimes that never occurred at all (74%).

    Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).

    The small number of drug crime exonerations we have found (25) include a high rate of deliberate misidentifications (48%).

    Most individual no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes.

    Most fabricated crime exonerations are child sex abuse cases (70).

    2/3 of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s.

    Group Exonerations:

    By far the largest concentrations of no-crime cases are group exonerations: At least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. We are confident that there are others that we have not yet identified.

    Overall Frequency of False Convictions and Exonerations.

    There is no way to estimate the overall number of false convictions from these reported exonerations, but it is clear that there are many more false convictions than exonerations.

    The exonerations that we know about are: Overwhelmingly rape and murder cases in which defendants went to trial rather than plead guilty and received very severe punishments, especially death sentences.

    They are also: Concentrated in several states and a small number of counties; disproportionately likely among the small fraction of criminal cases in which DNA evidence can prove guilt or innocence, and often the result of unpredictable and improbable lucky breaks.

    Obviously there are many more false convictions among cases that don't fit that description, and that didn't end in exoneration: lesser crimes than rape or murder; defendants who pled guilty and received comparatively mild punishments; cases in states and counties with few exonerations or none; cases without DNA evidence; defendants who were just unlucky.

    According to The Texas Tribune -- a non-profit public service newsgathering and reporting organization -- The Registry lists 891 exonerations in the United States since 1989. It is thought to be the largest database of exonerations ever compiled.

    Of the 873 who are covered in the report, 93% are men. Half are African-Americans. 37% were exonerated due to DNA evidence.

    Juvenile and mentally disabled individuals who were freed were, respectively, 5 and 9 times more likely to falsely confess, sometimes under duress, than other groups.

    Most exoneration cases involve rape and murder, including 12 percent in death penalty cases. That last statistic implicitly raises the possibility that innocent men may be awaiting execution on death rows across America. Some may even have been wrongfully executed.

    "The most important thing we know about false convictions is that they happen and on a regular basis," University of Michigan law professors Samuel Gross and Michael Schaffer, co-authors of the study, said in the report.

    The Texas Tribune found that in nearly 1/4 of those cases -- 21 in total -- courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome.

    The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.

    In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts' findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.

    Since 2000, there has been an average of one exoneration per week in the United States. But those who languish behind bars have spent more than 10,000 collective years in prison for crimes they did not commit, an average of more than 11 years per person.

    The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

    According to the report, the main causes of exoneration are perjury or false accusation (51%), followed by mistaken eyewitness identification (43%), official misconduct (42%), false or misleading forensic evidence (24%) and false confession (16%).

    As of January 1, 2012, there were 3,189 people awaiting execution in the United States, which executed 43 people in 2011. Only four other countries-- China, Iran, Saudi Arabia and Iraq-- put more people to death, according to Amnesty International.

    The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86.

    The report uses a conservative definition of exoneration. Only formal decisions by courts and executive officers count. It also highlights at least 1,170 defendants whose convictions were thrown out in group exonerations, usually resulting from police scandals, bringing the total number to over 2,000. Those freed in group exonerations, however, are not included in the National Registry.

    Meanwhile, a coalition of such organizations as the Innocence Project has embarked on a first-of-its-kind series of visits to major U.S. cities to meet with lawyers, judges, law professors and other public interest figures to consider policy and practice options that would discourage prosecutorial misconduct. The group has thus far visited California, New York, Texas and Louisiana.

    The coalition has found that courts, state bar associations, and other official organizations dedicated to protect defendants' rights, take virtually no actions against prosecutors suspected of misconduct.

    And, in arguably stronger evidence that the power of prosecutors in finally beginning to lead to misgivings among other lawyers, as well as judges, bar associations and law schools, Texas Supreme Court Chief Justice Wallace Jefferson has ordered a court of inquiry to investigate whether the former Williamson County District Attorney violated Texas law by refusing to turn over evidence that could have prevented Michael Morton from serving 25 years for a murder of his wife that DNA evidence has now proven he didn't commit. The court of inquiry will begin in September.

    Michael Morton walked out of a Williamson County courtroom today after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man. Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton's release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.

    It isn't often that a story about prosecutorial misconduct ends up even as half-heartedly punitive as this:

    Richard Convertino is a former federal prosecutor in Detroit, Michigan. Convertino was the lead Assistant U.S. Attorney in the "Detroit Sleeper Cell" prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi. However, the U.S. Department of Justice subsequently removed Convertino from his position and asked courts to dismiss those convictions, on the grounds that Convertino had failed to disclose evidence to which the defense was entitled. Convertino is still practicing law privately.

    What should be our takeaway from all this?

    There are thousands of prosecutors in the U.S. As we appear bent on stuffing every one of our federal, state and local lockups with inmates -- mostly non-violent drug-users -- the prosecutors' caseloads will inevitably increase.

    As they do, more and more mistakes -- and misconduct -- will surface. And more and more people will be fraudulently incarcerated.

    Some important initiatives have already started to take hold. For example, since his election in 2006, Dallas County District Attorney Craig Watkins has made a very public commitment to reform. The ACLU of Texas says he deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.

    The current tour by the innocence coalition is likely to produce more ideas worth considering.

    But the linchpin of real progress against over-zealous prosecutors has to be the Bar Associations of the 50 states. Our prosecutorial bar will be perceived as weak and uncaring until these peer groups are ready to use their power to aggressively weed out bad behavior.

    (Source: William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers and online journals; The Real News)

    JUNE 19, 2012

    Cornelus Dupree: Innocent In 'The Hole'

    As part of a hearing going on today, a half-dozen exonerees including Cornelius Dupree from Texas - who was incarcerated for 30 years following a false conviction for rape and robbery - submitted personal statements to the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights regarding their experiences with solitary confinement.

    See the Written Testimony (pdf) submitted by the six men, and here's Dupree's:

    When I first went into prison, I was really upset and stubborn because I was imprisoned for a crime I didn’t do. I was getting written up a lot for not going to work and for not doing this and that. Around 1980 or 1981, I was working in the fields picking cotton at Cofield Prison. I got into a fight with one of the other inmates. I was charged with fighting with a weapon, even though I didn’t have a weapon and was sentenced to 15 days of solitary.

    If you were in solitary, you were only given a full meal every third day. The first day, you would get a spoonful of rice, a spoonful of beans and a roll. It was very dehumanizing. On the third day, you get a full meal but you’d be so hungry and weak that it wasn’t enough. Without food for three days , you have to be careful about how fast you eat it because you’ll get sick. In the 15 days I was in there, I lost 15 pounds.

    I was also very cold from lying on steel. They give you one blanket. It wasn’t very long, and you had to ball up in a knot for it to cover you. It was very dirty. It was dark. You don’t know if it’s day or night. You don’t get recreation. They called it “the hole.” There were no phone calls, there was no visitation. It was the worst thing that they had, and I’ll never forget it.

    Cornelus Dupree: Innocent In 'The Hole'

    Arena, who fought questionable pedophile test, to be freed from prison

    By Chuck Lindell
    June 1, 2012

    Michael Arena, almost 13 years into a 20-year prison sentence for molesting a young cousin who later said the incident never happened, will be released from prison as early as this afternoon, his lawyer says.

    State District Judge Gordon Adams this morning ordered prison officials to release Arena “forthwith pending a new (sentencing) hearing” in Bell County.

    Arena (pictured above) should be released from the Dilley-area facility to his father, Robert Arena of Harker Heights, this afternoon, lawyer Clint Broden said.

    “I am super happy,” Robert Arena said shortly after noon as he was scrambling to begin the four-hour drive to Dilley, which is about 70 miles south of San Antonio. “I’m excited, I really am.”

    Last month, the Texas Supreme Court threw out Arena’s sentence, ruling that a prosecution witness, Georgetown psychologist Fred Willoughby, provided damaging false testimony during his 1999 trial. Based on results from a questionable psychological test given when Arena was 16, Willoughby told jurors that Arena was a pedophile who was likely to strike again — but he overstated the test’s accuracy rate and scientific support, the court said.

    Willoughby told jurors that Arena was classified as a pedophile based on a test that required the teen to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.

    But according to the Supreme Court, Willoughby overstated the test’s 65 percent accuracy rate, saying it was 85 percent effective, and improperly testified that a Brigham Young University study certified its accuracy. Instead, the study raised serious questions about the test, noting that its ability to distinguish pedophiles from “nonoffenders was not significantly better than chance.”

    Had he testified truthfully, Guzman wrote, “the trial court would have excluded Willoughby’s testimony.”

    Instead, prosecutors emphasized Willoughby’s finding in closing arguments, urging jurors to choose a long jail term to protect the community. Jurors, who could have chosen probation, sentenced Arena to 20 years in prison.

    Arena, who fought questionable pedophile test, to be freed from prison

    Texas Supreme Court defines 'Actual Innocence' more broadly

    May. 20th

    After decades of legal motions challenging two murder convictions, it appears that Billy Frederick Allen will receive $2 million from the state of Texas for wrongfully imprisoning him for almost 26 years.

    The Texas Supreme Court on Friday issued a significant interpretation of the Tim Cole Act that allows compensation even in cases where DNA evidence is not available to nullify a conviction.

    In a unanimous opinion by Justice Dale Wainwright, the court said the definition of "actual innocence" in the law includes claims like Allen's in which the trial was constitutionally flawed enough to undermine confidence in the conviction.

    Allen was given concurrent 99-year prison sentences after a Dallas County jury convicted him of murdering James Perry Sewell and his girlfriend, Raven Dannelle Lashbrook, in University Park in 1983.

    Only after the trial did Allen's attorney find out that one of the paramedics who attended to Sewell said he repeatedly named a Billy Wayne Allen as his assailant. But the trial attorney didn't include that information in a motion for new trial, on the circular theory that it wouldn't do any good because the courts would say he should have found out that information earlier and used it in Allen's defense.

    Police had pursued Billy Frederick Allen on the basis of a palm print that wasn't in itself enough to convict him and for which he had a plausible explanation.

    Allen kept challenging his conviction, and a trial judge repeatedly ruled that he should receive a new trial. After the law changed for raising claims of new evidence, the Court of Criminal Appeals in 2009 threw out Allen's conviction based on the ineffective assistance of his trial lawyer in not presenting evidence pointing to someone else as the killer. Prosecutors later dropped the charges.

    When Allen filed a claim with the Texas comptroller's office for compensation that's available to exonerated inmates, he was denied.

    The comptroller argued that the Court of Criminal Appeals' ruling didn't amount to the declaration of "actual innocence" required by the law.

    But the Supreme Court said the Legislature had made clear its intent to cover cases like Allen's.

    In a detailed examination, the court said "actual innocence" encompasses both claims such as exonerations based on new evidence from DNA testing and those in which "the constitutional error at trial probably resulted in the conviction of one who was actually innocent."

    "The Legislature has drawn no distinctions between the two types of 'actual innocence' claims," Wainwright wrote.

    He said lawmakers amended the law in 2007, 2009 and 2011 and could have limited its scope but did not. "Where legislative enactments unambiguously direct our path, we must follow," he wrote.

    Despite efforts to restrict the scope of eligible claimants -- both in the Legislature and the courts -- the comptroller's office sounded magnanimous in a statement about the ruling: "Now that we have helpful guidance from the Supreme Court we have immediately started the process of paying Billy Allen approximately $2 million for wrongful imprisonment compensation. The Court's decision will also help us pay any other exonerees with similar circumstances to Mr. Allen."

    The law currently provides for payment of $80,000 per year of wrongful imprisonment plus an annuity. To date, Texas has paid 80 exonerees $49.5 million in wrongful imprisonment compensation, according to the comptroller's office.

    The state's continuing challenge is to get criminal convictions right at the outset -- to achieve justice, prevent needless disruption of lives and avoid waste of scarce public resources.

    Read more Here

    2 Men Formally Exonerated In Dallas Rape, Shooting

    Associated Press
    April 30, 2012

    DALLAS (AP) — Two Texas men were exonerated Monday in a nearly 30-year-old rape and shooting after DNA tests in Dallas County implicated others in the crime.

    Judge Susan Hawk apologized to James Curtis Williams and Raymond Jackson after she declared both men formally innocent of aggravated sexual assault. Williams and Jackson were convicted of attacking a woman outside a Dallas bar in November 1983 and sentenced to life in prison. Both men were recently paroled.

    "I hope that you feel like justice was served for you today," Hawk said.

    Williams and Jackson shook hands with Hawk and Dallas County District Attorney Craig Watkins, who also apologized. With 10 other exonerated men watching in the audience, Watkins questioned the criminal justice system's fairness and whether blacks were being mistreated.

    "I think we see the similarities in these men and the two that are being exonerated today that has not been addressed," said Watkins, who is black. "We need to address that here in Dallas County, in our state and in this country. We are doing something wrong with our criminal justice system and we need to fix it."

    Dallas County has now exonerated 32 people since 2001, most of them during Watkins' tenure. Most of the cases — including Monday's — involved faulty eyewitness identifications.

    Authorities say the woman was forced into a vehicle at gunpoint, sexually assaulted, shot and left for dead in a field.

    Williams and Jackson were included in a photo lineup in the case because they had been implicated in a separate sexual assault. The victim picked them out of the photo lineup and later identified them in court. They were convicted in January 1984.

    But DNA from the woman's clothing and a rape kit exam was preserved and later tested. The results implicated two other men, Frederick Anderson and Marion Doll Sayles. They have been charged with attempted capital murder, which does not have a statute of limitations, authorities said.

    Jackson, 67, said he was already out on parole when the test results came back, clearing him and Williams. He did not blame the victim.

    "She just made a mistake in identity, and I'm just thankful that they had DNA and kept ours," Jackson said Monday.

    The Associated Press typically does not identify victims of sexual assault.

    Williams and Jackson pleaded guilty in the other sexual assault case and served shorter sentences for that. Jackson is still on parole for a robbery committed in 1970. He said he hoped to start a business.

    Williams said things were "very complex," but that his life had been greatly changed.

    "It inspires me to do to the same, to go on with my life and do good to others," he said.

    2 men formally exonerated in Dallas rape, shooting

    APRIL 08, 2012

    Jesus Christ 'The All-Time Poster Child For The Innocence Movement'

    Grits offered up these musings about Easter last year and thought I'd reprise them today:
    Easter is strikingly filled with criminal justice themes, isn't it? The Christian religion was essentially founded on a repudiation of Roman capital punishment.

    Easter celebrates the sinless Man-God killed for His beliefs who triumphed over the grave, mooting, even while respecting to the end, the earth-bound laws that condemned Him. Jesus, a blameless man executed, is the all-time poster child for the innocence movement.

    Corrupt and biased prosecutors prevailed in His case because of a judge's personal indifference and deference to the mob. Christ's betrayal by Judas was the archetype cementing into Christian values a lingering distrust of snitches and informants. Romans accused the disciples of grave robbery. St. Peter committed assault with a deadly weapon in the Garden of Gethsemane then thrice lied about his identity to avoid arrest.

    And taken as a whole, the passion story documents Jesus' arrest, trial, and execution all taking place in an incredibly short span, as though criminal convictions could be obtained as quickly in real life as on an episode of Law & Order.

    Christmas is a story about family. Easter is a story about a wrongful criminal conviction, the misapplication of the death penalty, the overweening power of the state, and the irrepressible urge of humanity to resist it.

    Happy Easter, gentle readers. Enjoy this beautiful day.


    3 To Be Declared Innocent Of 1994 Dallas Robbery

    Published April 5, 2012

    DALLAS (AP) — The Innocence Project of Texas says a man serving 99 years in prison for a 1994 purse snatching and two other men convicted of the crime will be exonerated.

    A judge in Dallas on Friday is scheduled to formally declare the trio innocent.

    Darryl Washington, Marcus Lashun Smith andShakara Robertson were arrested in November 1994 and charged with aggravated robbery of an elderly person.

    A jury convicted Washington and he was sentenced to 99 years. Washington remains in custody. Smith and Robertson accepted plea deals for probation.

    The Innocence Project says witnesses erroneously identified the men.

    A judge last month held a hearing where four other men confessed to the robbery.

    The judge agreed with prosecutors who reviewed the case and concluded that Washington, Smith and Robertson are innocent.

    3 to be declared innocent of 1994 Dallas robbery

    Evidence of Innocence: The case of Michael Morton

    March 25, 2012

    After nearly 25 years in prison, Michael Morton was exonerated by a DNA test.
    Did a prosecutor hide evidence that could have proven Morton's innocence during his 1987 trial?

    Read more of this story HERE on 60 Minutes.

    Ex-Inmate Struggles To Cash In On Wrongful Conviction

    March 18, 2012
    The Associated Press

    McKINNEY, Texas -- Billy Frederick Allen spent more than 25 years in prison before an appeals court overturned his convictions in two murders. Three years after winning his freedom, Allen is fighting the state again -- this time for the money he says he's owed for wrongful imprisonment.

    Although the appeals court declared the evidence against Allen too weak for any reasonable juror to convict him, Texas officials say he has not proven his innocence. Therefore, they say, he isn't covered by a state law that generously compensates the wrongfully convicted for the years they spent behind bars.

    Advocates say Allen's case raises questions about what evidence is needed to qualify for compensation in Texas, where more inmates have been freed because of wrongful convictions than any other state.

    DNA evidence has led to most of Texas' exonerations. But with DNA testing essentially standard in most cases and the number of DNA-based exonerations expected to dwindle, more former inmates like Allen -- whose case has no DNA evidence -- are likely to account for more compensation cases.

    "The only difference is the good luck, if you want to call it that, that exonerees in DNA cases had versus Billy," said Jeff Blackburn, chief counsel of the Innocence Project of Texas, which works to free wrongfully convicted inmates. "It doesn't make them any more innocent than Billy Allen. It doesn't make Billy any less innocent than them."

    Texas' compensation law is the most generous in the U.S., according to the national Innocence Project. Freed inmates who are declared innocent by a judge, prosecutors or a governor's pardon can collect $80,000 for every year of imprisonment, along with an annuity.

    Allen, who was imprisoned for 26 years, would stand to collect almost $2.1 million.

    Attorney Made Mistakes

    The Texas Court of Criminal Appeals, the state's highest state court to review criminal cases, reversed Allen's murder convictions three years ago in two 1983 murders. The court ruled Allen's trial attorney made mistakes, including failing to contradict a police officer's claim that one victim, moments before he died, indicated Allen was his attacker.

    The court ordered a new trial. Prosecutors decided to dismiss the charges, but said they still considered Allen a suspect and have kept the case open.

    Texas Comptroller Susan Combs' office denied Allen's application for compensation because "ineffective assistance of counsel was the basis for the relief he received from the court; it was not on the basis of actual innocence," her spokesman said in a statement. Combs declined an interview request.

    Allen was convicted in the fatal shootings of James Perry Sewell and Sewell's girlfriend, Raven Dannelle Lashbrook. Allen said he'd frequently visited Sewell because he wanted to sell Sewell scraps of gold as part of a legitimate business, and that he'd leaned against Sewell's car a few days before the couple's deaths, according to court filings.

    Court documents said Sewell was found "gagged, handcuffed and covered with blood" near an apartment building, and that Allen's handprint was discovered on the car where Lashbrook was found dead.

    The police officer testified that when he asked Sewell who attacked him, he answered: "Billy Allen."

    But a defense investigator after the trial found two paramedics who heard Sewell saying three names as he was dying, the Court of Criminal Appeals said.

    One said he heard Sewell say "Billy Wayne Allen," the name of another possible suspect. The other paramedic remembered hearing a middle name, but couldn't recall it.

    That new evidence left the officer's testimony ineffective, and the remaining major piece of evidence -- the palm print on the car -- would not have been enough to convict him, the Court of Criminal Appeals determined. The court overturned Allen's conviction in 2009, and he walked out of prison on bond.

    Now, the Texas Supreme Court is considering Allen's compensation claim. Both sides recently argued before the court, with Allen's attorneys saying he had proved himself innocent and was the same as any other ex-inmate who had been released from prison.

    "Billy will establish that you don't have to have a DNA exoneration to be compensated," said his attorney, Kris Moore.

    Assistant Solicitor General Philip Lionberger, representing the state, argued that Allen was freed through a claim that raised legitimate questions about his conviction but did not prove he was fully innocent. He said state law only requires payment to former inmates who win their freedom after presenting evidence proving their innocence based on a stricter standard than the one Allen met.

    Lionberger said Allen's claim and others like his are "never going to be entitled to compensation."

    Democratic state Sen. Rodney Ellis, who pushed for the state's compensation law and other criminal justice reforms, said Allen's case seemed caught in a "no person's land" -- the evidence was insufficient to convict him, yet it also appeared too weak to qualify him for compensation.

    The state has paid 79 people about $48 million, according to the state comptroller's office. Most were freed through DNA testing or in connection to a drug detective in the Texas Panhandle town of Tulia later convicted of perjury.

    Combs' office is currently challenging five compensation claims before the Texas Supreme Court. Another ex-inmate, Richard Sturgeon, had his conviction for a 1998 robbery overturned based on problems with his trial attorney and witnesses.

    He filed a claim similar to Allen's.

    Cory Session, whose brother, Tim Cole, was exonerated of a rape conviction after he died and became the namesake of the compensation law, said he was prepared to push for legislative changes to help Allen.

    "I'm totally against someone going to prison, spending years, and then their case getting out on appeal, and they say, `We don't really want to say he's innocent, but no jury would find him guilty,"' Session said. "In the state of Texas, we can't play semantics with people's lives after they're incarcerated."

    Ex-inmate struggles to cash in on wrongful conviction

    Ex-Inmate Struggles To Cash In On Texas Law That Pays For Years Of Wrongful Imprisonment

    Associated Press
    March 17, 2012

    McKINNEY, Texas — A Texas inmate who spent more than 25 years in prison before an appeals court overturned his convictions on two murders is now fighting the state for compensation given to wrongfully imprisoned ex-inmates.

    Billy Frederick Allen isn't considered formally innocent by Texas Comptroller Susan Combs' office, even though an appeals court declared the evidence against him too weak for any reasonable juror to convict him.

    Texas has the most generous law in the country for wrongfully convicted ex-inmates. It pays them $80,000 for every year they spent in prison plus an annuity.

    Allen would stand to collect more than $2 million.

    Texas says he isn't considered fully innocent because his convictions were overturned due to errors made by his attorney.

    The two sides recently argued before the Texas Supreme Court.

    Ex-inmate struggles to cash in on Texas law that pays for years of wrongful imprisonment

    Inmate challenges pedophilia test as junk science

    By Chuck Lindell
    March 1, 2012

    Michael Arena, diagnosed as a pedophile
    after taking a psychological test, was
    found guilty in the sexual assault of a
    7-year-old cousin. After 12 years in prison,
    doubts about the test's accuracy have become
    a factor in Arena's appeal.

    Charged with molesting two young cousins, Michael Arena was summoned to a psychologist's office to measure his sexual attraction to children.

    The test given required the 16-year-old to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo. The results, according to the prosecution-hired psychologist who administered the test, showed Arena to be a pedophile who was a "high risk" to strike again.

    Bell County prosecutors hammered the finding during Arena's 1999 trial, urging jurors to choose prison over probation to protect children from a teen "diagnosed as a pedophile by an expert." The jury responded with a 20-year sentence.

    Now 29, Arena still has 7½ years left on his sentence.

    In the years since Arena's trial, however, both of his accusers have recanted, saying they lied about being sexually assaulted at the urging of their mother, who was embroiled in a bitter custody battle.

    Troubling details about the psychological test also have emerged, prompting Arena's lawyers to begin a two-part appeal designed to gain his freedom based on innocence or, at the very least, grant Arena a new sentencing trial that excludes a psychological test that defense lawyers deride as junk science.

    The Texas Supreme Court is weighing both requests, which are opposed by prosecutors.

    Though interest in Arena's case tends to focus on his claim of innocence, his attack on the psychological test could influence future attempts to challenge allegedly bad science in the courtroom — a continuing problem that the nation's appellate courts have struggled with for decades.

    The test, defense lawyers say, had an unacceptably high 35 percent error rate that was not disclosed to Arena's judge and jury. It was never intended to be used to identify pedophiles, they claim, and a university study found that its results were little better "than chance" when trying to distinguish pedophiles from non-pedophiles.

    In addition, the psychologist who examined Arena inflated the test's effectiveness and scientific support when he testified at Arena's trial, leading to a reprimand from a state regulatory agency four years later, court records show.

    Issues with the test seemed to resonate with many of the Supreme Court's nine justices during oral arguments in January.

    Justice Nathan Hecht dismissed the test as "bordering on hokum" and less likely to yield valid results than lie-detector tests, which are not admissible in criminal court proceedings.

    Justice David Medina noted that a 65 percent accuracy rate would have earned the test an F in a school setting. "To incarcerate somebody for one day, you use a standard that's not even A-plus?" Medina asked lawyers for Bell County. "That seems wrong on its face."

    Lawyer John Gauntt Jr. with the Bell County attorney's office acknowledged that a 35 percent error rate was "not a suitable standard" for use in court. He also acknowledged that the prosecution's expert, Georgetown psychologist Fred Willoughby, provided false testimony about the test's effectiveness in the Arena case.

    Even so, Gauntt told the court, the 20-year sentence should not be overturned because Arena cannot prove he was harmed by Willoughby's testimony — a necessary step toward earning a new sentencing trial.

    Jurors were more likely swayed by the victims' testimony of abuse than by Willoughby's opinion, Gauntt argued, noting that the jury declined to choose the maximum 40-year sentence. A district judge in Bell County who reviewed Arena's appeal came to the same conclusion when he denied Arena's request for a new trial in 2008, Gauntt added.

    A skeptical Justice Eva Guzman called that a "tough" argument to accept, given that jurors chose a significant prison term after prosecutors emphasized the expert's diagnosis of pedophilia.

    Family problems

    In the late 1990s, Michael Arena and his year-older brother John lived a block away from their younger cousins in Harker Heights, and the two families frequently mingled for holidays, birthdays and other gatherings.

    Everything changed in 1997 when Michael and John's aunt by marriage, Lavonna , filed for divorce and later took her children — Stephanie, 7, and Austin, 5 — to Florida, where she changed their names in an effort to hide, only to be discovered within four months. The day after discovery, she filed a report with Child Protective Services claiming that her children had been sexually abused in Texas, court records show.

    The pattern was repeated in Iowa, where Lavonna next took the children and managed to stay hidden for almost a year — filing sex abuse complaints there after her husband tracked his children down, court records show.

    Michael Arena was an eighth-grader who dreamed of a football career when his uncle Stephan pulled him aside to ask about the allegations that he and John, on separate occasions, had forced their cousins to have sex.

    "I said: 'What are you talking about? Come on, Steve, how long have you known me?'" Arena recalled during an interview from the state prison in Dilley, about 70 miles southwest of San Antonio. "There's no way. They're like my little brother and my little sister."

    Investigators in Bell County, however, got a break when Michael's older brother, John, signed two confessions admitting he assaulted Stephanie. He was sentenced to seven years in prison, serving 5½.

    Today, John Arena says he confessed in a misguided attempt to spare his brother from the accusations. If anything, however, he made matters worse for Michael, who went to trial in 1999.

    On the witness stand, Austin didn't testify about any acts committed by Michael Arena, prompting the judge to drop an assault charge naming the boy as victim.

    But after hearing tales of abuse from Stephanie, jurors returned guilty verdicts on the two remaining charges of aggravated sexual assault of a child.

    'Objective' testing

    The third day of Michael Arena's trial was devoted to his punishment.

    Willoughby, the first prosecution witness, described administering the Abel Assessment, a test to measure sexual attraction that was named for its Georgia developer, research scientist and psychiatry professor Gene Abel.

    The two-part test included a questionnaire that, once graded, showed Arena's responses to be "socially desirable." However, Willoughby testified, he discounted the results because it was easy to choose acceptable responses to such questions as: "Do you have intense sexual fantasies about children?"

    More important, Willoughby testified, was Arena's performance on the "objective" portion of the test — the time spent viewing dozens of photos showing people of different ages as they stood or sat before a neutral background.

    From prison, Arena recalled the images "getting weirder and weirder" as people standing alone gave way to photos of a woman holding a rope, an older man with a younger girl and someone tied up in a chair.

    "I'm sitting there, and I'm more appalled than anything," Arena said. "I didn't study these pictures and all that. I flipped through them."

    At Arena's trial, Willoughby testified that he sent the boy's viewing data to Abel's for-profit company in Georgia for analysis. The results that came back, he said, showed Arena had "significant sexual interest" in 8- to 10-year-old girls and in boys who were 2 to 4 and 8 to 10 years old.

    Based on the test results and the guilty verdict, Willoughby said, he classified Arena as a pedophile.

    The psychologist also testified that he believed the boy was a continuing danger to children. Although he didn't tell jurors how he came to that conclusion, in a report Willoughby said Arena's "strong denial" of the charges presented a higher risk that he would engage in the same behavior again, court records show. (On appeal, defense lawyers complain about the "circular reasoning" that made proclaiming innocence a legal liability for Arena.)

    Three months before Willoughby testified, however, Brigham Young University researchers published a report raising serious questions about the assessment's scientific underpinnings.

    The study found error rates of up to 48 percent when the test tried to differentiate between adolescent child molesters and non-molesters. The study also noted a 42 percent false-positive rate when non-molesters were tested.

    The BYU study prompted Abel to publish a response arguing that his test was never meant to diagnose pedophilia or identify pedophiles — which was how Willoughby used it — but instead is a tool to guide the treatment of sex offenders.

    In the years since Arena's trial, a number of Texas courts have disallowed testimony based on the Abel Assessment, ruling that the test is unreliable and that its results cannot be independently verified because Abel's for-profit company does not reveal its methodology for proprietary reasons.

    "In hindsight," Bell County lawyer Gauntt told the Supreme Court, "I don't know of anybody using this assessment (in court) anymore."

    Accusations recanted

    Defense lawyers are confident that if given a new sentencing trial, Arena would receive a sentence of less than the 12½ years he has served in prison, essentially freeing him.

    But during arguments before the Supreme Court, defense lawyer Dustin Howell said that without a finding of innocence, Arena would have to register as a sex offender for 10 years, limiting his employment and housing options "for a crime he did not commit."

    Stephanie first recanted her accusations in 2001, about 11 months after courts returned her to her father's home. A district judge who handled the ensuing appeal, however, found her change of heart to be unpersuasive, ruling that she was apparently subject to manipulation from her mother on her trial testimony and from her father on the recantation.

    Austin added his voice to Stephanie's on the current appeal, with both testifying in 2007 that they lied on the stand at the urging of their mother, who said she would be sent to prison if they did not.

    "I was just thinking, well, this isn't really true, but I shouldn't question my mother, you know, because she is my mother and she's got wisdom," Austin testified.

    But as with the earlier appeal, District Judge Gordon Adams of Bell County ruled that the recantations were not credible, citing John Arena's confessions, the testimony of all witnesses and "other evidence."

    Appeals courts typically defer to lower courts on such fact questions — acknowledging that trial judges are in a far better position to weigh the credibility of witnesses who appear before them. But Adams' lack of specificity about his doubts prompted several Supreme Court justices to express frustration and wonder aloud how much deference his opinion is due.

    Justice Phil Johnson sounded a note of caution, however, expressing discomfort with "substituting our judgment for the trial judge" by ruling he "got it wrong."

    As Johnson's statement indicates, if the Supreme Court were to rule in Arena's favor, it would be more likely to order a new sentencing trial than to declare him innocent against the wishes of a lower-court judge.

    Arena said he is trying not to get his hopes up as the Supreme Court deliberates his fate. "What scares me is that I've been through several courts, and it always came to get me in the end," he said.

    If freed, he hopes to get a business degree and perhaps build a career in the stock and bond market, but he tempers those hopes as well, noting that having to register as a sex offender would restrict him "from every little aspect of trying to improve myself. I'm sure colleges wouldn't accept me."

    Arena, who transferred from a juvenile lockup to the adult prison system as he neared his 21st birthday, said he bears no ill will toward Stephanie, who he said has apologized by letter. "I don't even blame her," he said. "I think she's a victim in this whole ordeal, just like me and my brother.

    "This whole thing has really torn my family apart," he said, noting that his parents lost a restaurant business and sold their home to pay legal fees. His mother, Betty, died last year of cancer, and the strain of the abuse allegations drove a wedge between his father and uncle, Arena said.

    "I'm hoping everything's all right so I can get out and bring this family back together, some way, somehow," he said.

    Arena's case is before the Supreme Court because juvenile cases are considered civil court matters. The case is styled "In the Matter of MPA, 10-0859" because defendant names are confidential in juvenile court.

    clindell@statesman.com; 912-2569

    Inmate challenges pedophilia test as junk science

    Judge to formally exonerate Dallas man of murder today

    The Associated Press
    Published: 22 February 2012

    DALLAS — A state district judge is to declare a Dallas man innocent of the murder and attempted murder for which he spent 14 years in prison.

    State District Judge Andy Chatham will read on Wednesday the Texas Court of Criminal Appealsruling of “actual innocence” for Richard Miles. He's been free on his own recognizance since a judge recommended that he be declared innocent in October 2009.

    Miles was released after an advocacy group found evidence implicating another man wasn't given to the defense when he was convicted in 1995. However, Miles wasn't cleared and entitled to state compensation until the appeals court ruling.

    Miles' attorney has said he'd now seek compensation under the Tim Cole Act, which provides thosewrongfully convicted with $80,000 for every year of incarceration.

    Judge to formally exonerate Dallas man of murder today

    Court Ends Dallas Man's Wait For Innocence Ruling

    February 15, 2012

    DALLAS (AP) — A Dallas man released after spending 14 years in prison for murder and attempted murder has been declared innocent of those crimes.

    The Texas Court of Criminal Appeals determined "actual innocence" Wednesday in Richard Miles' case. He's been free on his own recognizance since a district judge recommended that he be declared innocent in October 2009.

    Miles was released after an advocacy group found evidence implicating another man hadn't been handed over to the defense when he was convicted in 1995.

    However, Miles wasn't cleared of the crimes and entitled to state compensation until the appeals court ruling.

    Miles' attorney, Cheryl Wattley, says her 36-year-old client will now seek compensation under the Tim Cole Act, which provides those wrongfully convicted with $80,000 for every year of incarceration.

    Innocent Man Who Died In Prison Gets Marker

    Updated February 7, 2012

    FORT WORTH, Texas (AP) — Hundreds gathered to unveil a historical marker at the grave of a man who died in prison but was later cleared by DNA testing of the crime that sent him there.

    U.S. Army veteran and Texas Tech University student Tim Cole was convicted of the 1985 rape of a fellow student. He always maintained his innocence, even though admitting to the crime could have earned him parole.

    In 1999, at 39, Cole died in prison of asthma complications.

    In 2008, DNA tests cleared him and implicated convicted rapist Jerry Wayne Johnson, who had confessed in letters to court officials dating to 1995.

    Cole's mother, Ruby Session, elected officials and others placed roses at Cole's grave in Fort Worth's Mount Olivet Cemetery.

    Fellow U.S. Army veterans fired an 18-gun salute.

    Innocent man who died in prison gets marker

    Feb. 6

    Historical Plaque to Honor Exonerated Inmate --- Man cleared by DNA testing after his death

    The grave site of Timothy Cole, the first Texas inmate posthumously exonerated by DNA testing, will get a new historical marker Monday.

    Cole was convicted in 1985 and, until his death in prison in 1999, had fought for his freedom the entire time he was incarcerated.

    In 2007, the Innocence Project of Texas began to investigate on his behalf and eventually proved his innocence. According to their research, Cole was erroneously convicted due to eyewitness misidentification and improper forensic science. The real perpetrator was found after he confessed to the Innocence Project.

    Cole was the first Texas inmate to be exonerated by DNA testing after his death. With that, and because of his fight for justice, The Texas Historical Commission has chosen to honor Cole with a historical marker.

    Additionally, the state of Texas passed the Timothy Cole Act, which increases compensation paid to exonerees to $80,000 per year served.

    According to the Innocence Project, the state also created the Timothy Cole Advisory Panel on Wrongful Convictions to study the prevention of wrong convictions in the state of Texas.

    Cole's ceremony will take place at 4 p.m. at Mount Olivet Cemetery in Fort Worth. Prior to the ceremony, a 90-minute presentation will be held at The Texas Wesleyan School of Law titled "The Truth about Tim Cole and Texas Justice."

    (source: NBC News)

    Fed Up!
    After years of digging in its heels, the criminal justice system in Texas is beginning to try to fix some of its own mistakes. But the federal system remains maddeningly unresponsive. Just ask Richard LaFuente.

    By Michael Hall
    JANUARY 2012

    Imagine that you’ve just been arrested for a murder you didn’t commit. You’re innocent, but there’s been some kind of mix-up, and the cops haul you in. You know it’s just a matter of time before they figure out their mistake. But they don’t, and before you know it, you’ve been indicted. The prosecutor offers you a deal: Confess, and we’ll go easy on you. Confess? You’re not going to confess to something you didn’t do. You go to trial, still certain the truth will come out and you’ll be vindicated. But the prosecutor tells a convincing story, and the jury decides you’re guilty. Next thing you know, you’re in prison, counting the days and then the months and then the years. You keep appealing your conviction, and eventually the prosecutors come back to you with another deal: Confess and show a little remorse, they say, and you can go home. But you can’t confess. You know you didn’t do it, and at this point, the truth is all you have. So you go back to your cell. Finally, decades later, the truth does come out, and you are freed.

    Unimaginable, right? Except this is just what happened to Michael Morton, who was convicted in 1987 of killing his wife, in Georgetown, and given a life sentence. Morton steadfastly claimed his innocence, and in 2009 he was told that if he confessed and showed remorse, he could go home. He refused. Two years later, he was exonerated. The same thing happened to Anthony Graves, a Brenham man who was put on death row back in 1994. In 2008 he was offered a life sentence in return for a guilty plea. He told prosecutors, “You either free me or kill me, but I’m standing on what’s right.” In October 2010 Graves walked free.

    In 1994 Richard LaFuente, from Plainview, was given the same offer. All he had to do was confess and show remorse for a murder he had been convicted of eight years before. He refused. “I can’t show remorse,” he told his attorney. “I won’t ask forgiveness for something I didn’t do.” At five subsequent parole hearings, LaFuente was given a chance to confess and show remorse. Each time he refused.

    And each time he was denied parole.

    Like Morton and Graves, LaFuente is innocent. I’ve been convinced of this since 2006, when I spent four months reporting a story about his case. And I’m not the only one who thinks so. The murder victim’s own mother, brother, and sister have testified to parole officials that LaFuente didn’t kill their son and brother. Two federal courts ruled that LaFuente’s trial was unfair and recommended he get a new one (they were each later overruled, a turn of events one judge labeled a “gross miscarriage of justice”). The newspaper that covered the trial 26 years ago recently called the verdict “scandalous.”

    The case is a complicated one, but the short version is this: In the summer of 1983, LaFuente, then just 25 years old, went with his brother-in-law, John Perez, to visit some relatives on the Devils Lake Sioux reservation (now the Spirit Lake Nation), in North Dakota (LaFuente is half Sioux, half Mexican American). While they were there, on August 28, a former policeman named Eddie Peltier was found dead on a rural highway, the apparent victim of a hit-and-run.

    Two and a half years later LaFuente was arrested for Peltier’s murder. Witnesses at the rez said that on August 28 there had been a big party that led to a big fight. Four witnesses said they had seen a mob of men beat Peltier, while one said she had seen LaFuente, with assistance from Perez, run Peltier over in his souped-up El Camino. LaFuente, Perez, and nine local men went on trial for murder. Not a shred of physical evidence tied any of them to the crime, and all but one of the defendants had an alibi, but the four witnesses carried the day. All eleven men were found guilty, and the two Texans got the longest sentences: twenty years for Perez and life for LaFuente.

    Soon, though, the truth began to come out. There had been no party that night and no fight. Two of the witnesses recanted and said they had been threatened by James Yankton, a Bureau of Indian Affairs cop whose large family basically ran the rez. Within four years of the verdict, nine of the defendants had their convictions thrown out because of insufficient evidence. In 1999 Perez was paroled, and only LaFuente remained in prison (by then he’d been transferred to a federal facility in Fort Worth). Thirteen years later, he’s still there.

    Why have Morton and Graves found justice while LaFuente has not? It’s simple, really. The first two were convicted in Texas state courts; LaFuente is in the federal system. The Texas criminal justice system, despite its reputation for being harsh, can be quite responsive to criticism. In part, this is because it is run by elected politicians or—in the case of the Texas Board of Pardons and Paroles—political appointees who are subject to, and sometimes swayed by, public opinion. If enough attention is drawn to an injustice, something eventually gets done. After Morton’s case became front-page news, not only did district attorney John Bradley dismiss the charges, but the attorney general launched an investigation into what happened.

    The federal parole system, by contrast, is a confusing, unresponsive, patched-together scheme run by bureaucrats of the U.S. Parole Commission who are accountable to no one. Technically, their jobs shouldn’t even exist. During the tough-on-crime eighties, parole was abolished, at least for inmates who committed their crimes after November 1, 1987. The Parole Commission was supposed to have been abolished too, but Congress found it necessary to keep extending its life, just to deal with all those pesky “old law” inmates like LaFuente.

    These poor bastards—there are about nine hundred of them—are at the mercy of a commission that pretty much does what it wants. “The commission doesn’t even follow its own rules, let alone the statutory rules,” says Mark Varca, a former inmate who now runs FedCURE, a national organization trying to reform federal parole. Atlanta attorney Linda Sheffield, who has been representing federal convicts (including John Gotti) since 1978, says, “The hearings are meaningless.

    The ultimate decision is made in the commission office.” And if the inmate was convicted of murder, she adds, forget it. The commission will not bend. It’s a major problem, says Sheffield, but nobody cares, because so few inmates are actually affected.

    LaFuente’s most recent hearing took place on June 8 via video conference. The examiner, Scott Kubic, who was in Washington, D.C., appeared to be wholly ignorant of the case. He didn’t know how to pronounce LaFuente’s last name, had clearly never heard of either James Yankton or John Perez (whom he called “Don Perez” in his report), and hadn’t seen a video of Peltier’s mother proclaiming LaFuente’s innocence.

    “I’m not guilty of this crime,” LaFuente told him.

    “If you’re not even willing to admit any involvement, I presume you have no remorse,” said Kubic. “You’re not sorry for your actions.” Once again, LaFuente refused to show fake remorse.

    Kubic went over LaFuente’s spotless discipline record—not one disciplinary infraction in more than 25 years. He heard from LaFuente’s case manager, Tonya Wilson, who told of his excellent work evaluations and how he’d been on the captain’s detail since 2003, a position for only the most trustworthy inmates.

    Toward the end, Kubic asked, “Do you think you deserve to be paroled?” LaFuente said yes. Kubic left for a few minutes, then returned and delivered his judgment. “My recommendation is that you be continued to expiration in your case, which will result in you staying in custody until your two-thirds date.”
    That would be January 5, 2016.

    Kubic’s “Notice of Action” used the kind of doublespeak the federal government is notorious for. “Based on the subject’s failure to acknowledge his guilt in this case and based on the severity of the crime itself, this Examiner believes to grant the subject parole now would promote disrespect for the law. One of the principals [sic] of parole is that an offender demonstrate sincere remorse and insight into why they committed the crime that they did. The subject has neither.”

    “Disrespect for the law”? I found the phrase in Title 28 of the Code of Federal Regulations, which states that an inmate may be granted parole by the commission if three prerequisites are met: if he has “substantially observed the rules of the institution”; if his release would not “jeopardize the public welfare”; and if his release would also not “depreciate the seriousness of his offense or promote disrespect for the law.” Let’s see: LaFuente has followed every rule in prison for more than 25 years. As for the public welfare, LaFuente does have two previous convictions, for larceny and DWI, but both were committed before he was 21. He’s 53 now and a grandfather. He has done every single thing asked of him, except show false remorse or admit to something he didn’t do. How would releasing this man be disrespectful in any way at all?

    I visited LaFuente in October, and we sat in the same small room where his two daughters and their four young children have visited him. He looked much older than he had in 2006—his hairline had receded farther and his hair was half gray—but just as he had been before, LaFuente was cheerful, even chipper. I don’t know how he does it. Each day he awakens to find himself living the nightmare of every free person in a civilized society: being wrongfully imprisoned.

    “It’s so overwhelming what they’ve done to me,” he said. “But I’m not gonna let them ruin me or destroy my life any more than they already did. You don’t know how many people came up to me after they heard about the hearing and shook my hand because I didn’t show false remorse. I said, I can’t do it. I came this far, I’m not gonna give up.”

    Fed Up!



      Justice and Prosecutorial Misconduct

      Published: December 28, 2011

      Michael Morton was exonerated by DNA evidence this month after being wrongfully convicted of murdering his wife and serving nearly 25 years in prison in Texas.

      In seeking to prove Mr. Morton’s innocence, his lawyers found in recently unsealed court records evidence that the prosecutor in the original trial, Ken Anderson, had withheld critical evidence that may have helped Mr. Morton.

      The judge reviewing the case allowed Mr. Morton’s lawyers, including those from the Innocence Project, which represents prisoners seeking exoneration through DNA evidence, to gather facts about the prosecutor’s conduct. The Innocence Project’s report makes a compelling case that Mr. Anderson, now a state judge, disobeyed “a direct order from the trial court to produce the exculpatory police reports from the lead investigator” in the case.

      Mr. Morton’s lawyers have asked that the judge recommend a “court of inquiry” to investigate whether Mr. Anderson violated the law and should be charged in a criminal proceeding. While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.

      Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

      The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

      This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

      There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

      Courts should more closely supervise prosecutors by using pretrial conferences where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties.

      A version of this editorial appeared in print on December 29, 2011, on page A26 of the New York edition with the headline: Justice and Prosecutorial Misconduct.

      Inquiry sought for Texas prosecutor over wrongful conviction
      Michael Morton, 57, is officially exonerated after serving 25 years in prison in connection with his wife's murder. His lawyers allege misconduct in the case.

      By Molly Hennessy-Fiske
      Los Angeles Times
      December 20, 2011
      Reporting from Houston—

      Lawyers for a Texas man officially exonerated Monday after serving 25 years of a life sentence in connection with his wife's murder requested a special judicial inquiry into alleged misconduct by the lead prosecutor.

      After Michael Morton, 57, was released in October, his lawyers continued investigating the lead prosecutor in the case, former Williamson County Dist. Atty. Ken Anderson, now a District Court judge. On Monday, they filed a report summing up their investigation and argued that Anderson acted improperly while prosecuting Morton for the fatal 1986 beating of his wife, Christine, at their home in the Austin suburb ofGeorgetown.

      The 144-page report, accompanied by 60 pages of exhibits, faults Anderson for refusing "to take any personal responsibility" for Morton's wrongful conviction.

      "The problem in the Morton case is not that the system failed, but that Judge Anderson did not play by the rules," the report says.

      At the hearing before District Judge Sid Harle in Georgetown, Morton's lawyers asked the judge to establish a "court of inquiry" to examine allegations that Anderson illegally suppressed evidence that could have undercut the prosecution's case by failing to provide documents requested by Morton's trial judge.

      Harle said he would take the request under advisement and invited Anderson's lawyers to file a response.

      After the hearing, Morton celebrated before a crowd of reporters. "Revenge is a natural instinct, but it's not my goal here," he said. "Just accountability."

      Barry Scheck, co-founder of the Innocence Project and one of Morton's lawyers, said the lawyers hope the case sets a precedent.

      "We are really hoping there will be hearings and not just in Texas, but across the country to get a remedy to this problem," Scheck said, "to make sure this never happens to anybody else again."

      Eric Nichols, an Austin attorney who represented Anderson at Monday's hearing, called the portrayal of his conduct "one-sided." He noted that Anderson had apologized to Morton publicly and recognized that, given the DNA analysis that was unavailable at the time of the trial, Morton's conviction was wrong.

      However, Nichols said, "Anderson stands firm in his belief that the prosecution and trial were handled ethically and appropriately."

      Last month, Anderson called a news conference to say he was sorry "for the system's failure," but denied any misconduct.

      State law allows Harle to ask that a "court of inquiry" be convened if he determines there is probable cause that a state law has been broken. Normally, his request would go to the district's presiding judge, but that judge has already recused himself, meaning the request would probably go to the state Supreme Court.

      Once a judge is selected to handle the inquiry, the local district or county attorney assists, examining witnesses and evidence.

      If the inquiry finds Anderson committed serious misconduct, it could lead to disciplinary action by the state bar and possibly criminal prosecution.

      After Morton's release, the State Bar of Texas began examining how prosecutors handled the case, a spokeswoman said, but no findings had been released Monday.

      Susan Klein, a law professor at the University of Texas at Austin, said it would be "incredibly unusual" for Anderson to face prosecution or even discipline.

      Robert Owen, a visiting clinical professor of law at Northwestern University who has served as co-director of the Capital Punishment Center at the University of Texas at Austin, said he has seen a few "court of inquiry" cases and although it is unlikely Morton's prosecutor will be punished, there are still lessons to be learned.

      "One lesson that defense lawyers should draw from it is that you should never stop demanding exculpatory evidence," Owen said.

      The Supreme Court, in the landmark Brady vs. Maryland ruling in 1963, said prosecutors have a duty to share exculpatory evidence that indicates a defendant is not guilty.

      One way to prevent prosecutors from withholding such evidence is "open file" discovery policies.

      North Carolina was among the first states to enact open-file legislation in 2004 after several death row inmates were exonerated, in part due to evidence that prosecutors had withheld.

      California, like Texas, does not have a statewide open-file policy, according to Loyola Law School professor Laurie Levenson.

      Last year, a Texas state committee convened to prevent wrongful convictions urged legislators to pass an open-file law, noting that of the state's first 39 DNA exonerations, seven involved evidence suppression or other prosecutorial misconduct.

      A spokeswoman for Gov. Rick Perry said he supported the recommendation, and state Sen. Rodney Ellis said his office was drafting legislation he planned to propose that would institute a statewide open-file policy.


      Copyright © 2011, Los Angeles Times

      Inquiry sought for Texas prosecutor over wrongful conviction

      State to pay extra $753,000 to Dallas County man exonerated of rape conviction

      By Chuck Lindell
      Nov. 26, 2011

      Reversing an earlier decision, state officials will pay an additional $753,000 to a Dallas County man who served 20 years in prison for a rape he did not commit, but the change of heart will not affect 47 other exonerated inmates who received state compensation under less-generous payment plans of years past.

      Larry Fuller, a decorated Vietnam War veteran, was released from prison in 2006 after DNA evidence proved his innocence. Gov. Rick Perry pardoned him in 2007, and the state paid Fuller $1 million in compensation under a law that provided $50,000 for every year wrongly spent in prison.

      In 2009, however, the Legislature raised compensation to $80,000 a year and added a $25,000 payment for every year spent on parole — changes that would have raised his state compensation by $926,000, Fuller said. But Comptroller Susan Combs denied the application for additional money, saying state law did not allow for a second bite of the apple.

      Fuller, with the help of pro bono lawyers from the Weil, Gotshal & Manges law firm in Dallas, filed a lawsuit arguing that state law places no limit on the number of applications that can be filed — specifying only that exonerated inmates have three years to seek compensation.

      The Texas Supreme Court accepted Fuller's case and scheduled oral arguments for December. Facing another Supreme Court ruling — Combs' office lost a different inmate compensation case in March — the comptroller settled, paying Fuller an additional $753,000.

      Informed of the agreement, the Supreme Court dismissed Fuller's case on Nov. 18.

      "Our client is, of course, thrilled at the outcome," lawyer Yolanda Garcia said. "He very much deserved it."

      The agency decided to pay Fuller because his request for additional money was filed within the three-year window, said R.J. DeSilva, spokesman for the comptroller's office. No other exoneree has filed a similar request, and the filing deadline has passed for all of them, DeSilva said.

      Sen. Rodney Ellis, D-Houston, has led efforts to boost compensation and believes exonerated inmates should be compensated equally.

      "No amount of money will right the wrong done to these men, who spent years locked up due to mistakes, negligence and miscarriages of justice by the state," Ellis said. "Doing the right thing is a rounding error in terms of our state budget. We spent millions of dollars incarcerating innocent men. We can afford to do a little more to help them rebuild their lives."

      A 2001 Texas law entitled exonerated inmates to $25,000 for each year in prison, with a maximum payment of $500,000, scrapping a provision that capped all compensation at $25,000 for pain and suffering and $25,000 for medical expenses.

      But as DNA evidence significantly increased the pace of exonerations, the Legislature eliminated the payment ceiling in 2007 and raised compensation to $50,000 for each year in prison.

      Two years later, the Legislature boosted compensation to $80,000 per year and created a matching annuity that offered monthly payments based on 5 percent annual interest.

      The annuity was provided to all previously paid exonerees. But no increase in lump-sum payments was offered to the 31 former inmates who were paid $25,000 per year in prison, nor to the 16 paid $50,000 per year.

      Ellis said he will approach legislative colleagues to float a new idea to treat lower-paid exonerees equally by making the agency that made the mistake pay the difference in compensation. That would lift the burden from state taxpayers and would be particularly fair in guilty verdicts that resulted from misconduct by prosecutors or law enforcement, Ellis said.

      "I believe these men should get every single penny they deserve," Ellis said. "We cannot nickel-and-dime justice, and using the excuse of a tough budget is a red herring."

      The additional money could come from asset forfeiture funds, which raise money from cars, homes and other property seized from criminal enterprises, Ellis said.

      "I don't know what it would take, but I've been thinking about this for some time. I'm trying to see if I can find some bipartisan support," he said.

      When Fuller was arrested for rape in 1981, he was a driver who was pursuing a career as an artist and raising two young children in the Oak Lawn neighborhood of Dallas.

      Fuller's life changed when police provided two photo lineups, both containing his picture, to a woman who had been raped at knifepoint in her apartment. She chose Fuller from the second lineup, even though he had a beard and her attacker did not.

      Sentenced to 50 years in prison for aggravated sexual assault, he served 18 years before he was paroled in 1999.

      A parole violation landed him back in prison in 2005, and he was freed two years later when DNA tests, sought by the Innocence Project of New York, excluded him as the rapist, who has yet to be identified.

      clindell@statesman.com; 912-2569

      State to pay extra $753,000 to Dallas County man exonerated of rape conviction

      Former prosecutor apologizes to wrongfully convicted man

      By Chuck Lindell
      Nov. 16, 2011

      GEORGETOWN — Six weeks after Michael Morton was freed from prison after serving almost 25 years for a murder he did not commit, the former prosecutor who secured that guilty verdict offered an apology Wednesday.

      Ken Anderson, now a district judge in Georgetown, called the verdict a failure of the criminal justice system but insisted that he acted properly in the Morton case.

      "As woefully inadequate as I realize it is, I want to formally apologize for the system's failure to Mr. Morton and every other person who was affected by the verdict," Anderson said at a news conference on the steps of the Williamson County Courthouse, where he spoke to a dozen news cameras and twice as many reporters.

      Anderson also denied allegations, made by Morton's lawyers, that he deliberately hid evidence favorable to Morton's defense before the 1987 trial.

      "In my heart, I know there was no misconduct of any sort," he said. "The jury's verdict was based on the evidence as we knew it at the time. DNA testing was not available then. It is now. In hindsight, the verdict was wrong."

      Morton was freed Oct. 4 after DNA tests linked another man, Mark Norwood, to the murder of his wife in their Williamson County home.

      Norwood, a Bastrop dishwasher who lived in Austin in the mid-1980s, was charged last week in the 1986 murder of Christine Morton. He also is a suspect in the 1988 murder of Debra Baker in her Austin home. Both women were beaten to death in their beds.

      "If there's anybody who's confused about whether I'm beating myself up and about whether I'm absolutely sick about this case, you're wrong, because I am," Anderson said. "I was involved in a prosecution, we got it wrong. That's something I'm just going to have to deal with."

      Baker's daughter, Caitlin Baker, attended Anderson's news conference and said she was unmoved by the judge's apology.

      "It's harder for me to hear him not holding himself accountable. He's not taking responsibility," Baker said.

      Baker said she held Anderson partially responsible for her mother's death because he and investigators allowed a killer to escape detection by focusing so intently on Morton.

      "My mother could be alive right now," she said, adding that Anderson's handling of the case shows that he is unfit for a job in the justice system. "If (Anderson) feels bad, prove it — resign," she said.

      Anderson's term as district judge ends in 2014, but he declined to discuss his career plans.

      Anderson had declined to discuss the mistaken conviction before Wednesday. He said he broke his silence because Morton's legal case recently concluded. "I didn't feel it was appropriate to comment about this case when it was pending before other district judges," he said.

      Anderson said he has not apologized directly to Morton.

      There was a chance on Oct. 31, when Anderson sat down for the first of two days of depositions in which he answered questions, under oath, from Morton's lawyers. Morton attended the deposition, but the time wasn't right, Anderson said.

      "I wanted to talk to him. I think he wanted to talk to me. There were a lot of lawyers in the room. At this point, I think we got too many lawyers involved to do things like that," Anderson said.

      Morton did pass a note that Anderson said he would keep private, other than to say that Morton's words were "kind and gracious."

      Anderson was asked repeatedly about accusations that he improperly withheld favorable evidence from Morton's lawyers before his trial — particularly the transcript of a police interview in which it was clear that the Mortons' 3-year-old son witnessed his mother's murder and said his father was not home at the time.

      Morton's lawyers did not learn of the transcript until 2008.

      Anderson said that while he could not recall specifics of the Morton case, he reviewed trial records and case files and concluded that prosecutors complied with disclosure laws as they existed in 1987.

      Anderson also said he could not discuss other disputed aspects of the Morton case, including whether he knew about reports that Christine Morton's credit card may have been used in San Antonio several days after her death.

      "I literally have no ability to recall what happened, what I was thinking, why I made decisions in a trial 25 years ago," he said.

      On other questions about evidence, Anderson referred reporters to his 12-hour deposition for details. Transcripts of the deposition are expected to be released next week.

      Anderson also welcomed an investigation by the State Bar of Texas, which oversees lawyer discipline. Lawyers for the bar are examining actions taken in the Morton trial by Anderson and former Assistant District Attorney Mike Davis, now a Round Rock lawyer.

      Anderson said he was confident the bar would conclude that he did nothing wrong.

      clindell@statesman.com, 912-2569

      Morton exoneration

      After nearly 25 years in prison, Michael Morton was freed Oct. 4. He had been convicted in Williamson County in the 1986 beating death of his wife, Christine.

      DNA evidence found near the murder scene went untested for years but eventually led to Morton's exoneration. Lawyers for Morton and the State Bar are investigating whether Williamson County prosecutors withheld exculpatory evidence during Morton's trial.

      Ken Anderson file

      Current: Anderson has served as judge of the 277th District Court in Williamson County since 2002, following an appointment by Gov. Rick Perry. He won election later in 2002 and was re-elected in 2006 and 2010.

      Previous: Anderson served as Williamson County district attorney for 16 years and assistant district attorney for five years. Among the cases he prosecuted was the "Orange Socks" murder, one of hundreds to which convicted killer Henry Lee Lucas confessed; Lucas' death sentence in the Williamson County case was commuted to a life sentence by Gov. George W. Bush amid questions about evidence and Lucas' confession.

      Education: Bachelor's and law degrees from the University of Texas (1973 and 1976).

      Former prosecutor apologizes to wrongfully convicted man

      Dallas man freed after 14 years for sexual assault

      Associated Press
      November 5, 2011

      DALLAS (AP) — A Dallas man who spent 14 years in prison for doggedly refusing to admit he sexually assaulted his stepdaughter was set free Friday in a case that had been unraveling since the victim recanted and former prosecutors were accused of withholding evidence.

      State District Judge Susan Hawk told Dale Lincoln Duke, 60, it was a "privilege" to release him, triggering applause and a standing ovation in a courtroom that included his parents.

      "This is overwhelming," said Duke's 87-year-old father, George.

      Hawk agreed with current Dallas County District Attorney Craig Watkins that Duke did not sexually assault the 7-year-old girl in 1992. In the intervening years, the victim has recanted her story, and Duke's attorney, Robert Udashen, earlier this year found that prosecutors in the 1990s had withheld evidence that cast doubt on the girl's credibility.

      Duke had entered a no contest plea to the charge and received 10 years' deferred adjudication. But he was later kicked out of a counseling program for refusing to admit he committed the offense, so he was sentenced to 20 years in prison.

      Asked after Friday's hearing why he refused to admit to the crime in the face of prison time, Duke said his faith in God precluded him from doing so.

      "It says in The Word not to bear false witness," he said. "I had to do something I could live with."

      The freed man, surrounded by family and friends, said he has no definite plans.

      "I'm going to take it easy, relax a little bit, get back into society and see how things go," Duke said.

      Under Watkins, the county has worked diligently to overturn false convictions, but Duke's case is a rarity in that it didn't hinge on DNA. Since 2001, 22 people have been exonerated in the county through DNA testing, a record unmatched nationally.

      Udashen said the key to determining Duke's innocence was the discovery by Watkins' office in March of notes indicating that the victim's maternal grandmother thought the girl was lying.

      By not turning over exculpatory evidence, the prosecutors who dealt with Duke's case in the 1990s engaged in prosecutorial misconduct, Udashen said. Those prosecutors are now deceased, as is the grandmother, the attorney said.

      Watkins said the reversal of Duke's conviction represents how sometimes prosecutors are "more concerned with getting a conviction than doing what's right."

      Watkins said the success of the DNA outcomes pursued by his office has created the public confidence necessary to examine cases where science is not the major factor.

      "This case is a prime example of that," he said. "Thankfully, Mr. Duke kept fighting, which gave us the ability to look at his case."

      After the hearing, both Hawk and Watkins shook Duke's hand.

      "I'm glad to have you back in society," Watkins told Duke.

      "Me too," Duke responded.

      Dallas man freed after 14 years for sexual assault

      The Wrong Way To Right a Wrongful Conviction
      Graves sues for compensation for time spent behind bars

      JUNE 3, 2011

      Lawyers for Anthony Graves – wrongly convicted in 1994 for the murder of a family in Somerville and finally freed late last year – were in court May 26, facing Texas Attorney GeneralGreg Abbott's office, which is trying to have Graves' suit tossed out of court. Graves filed the suit as part of an effort to restore his reputation and clear the way to receiving more than a million dollars in compensation from the state for the nearly two decades he spent behind bars.

      Graves was convicted of the 1992 murders based almost entirely on the testimony of Robert Carter, who said Graves helped him kill Bobbie Joyce Davis, her daughter, and four grandchildren (one of whom was actually Carter's son). Carter later recanted, saying that Graves wasn't involved in the crime, but then-Burleson County District Attorney Charles Sebesta failed to notify Graves of that fact. (Carter was executed for the crime in 2000.)

      In 2006, the 5th U.S. Circuit Court of Appeals overturned Graves' conviction based on Sebesta's misconduct. Nonetheless, the state vowed to retry him and kept him locked up for four more years while prosecutors from the A.G.'s Office tried to build a new case. It then left the case, and in its place the court appointed former Harris County Assistant District Attorney Kelly Siegler. In October 2010, Siegler and the Burleson D.A. dismissed the charges; Siegler publicly announced that Graves was innocent and that the case against him was a "travesty." Yet, because a court had not deemed Graves actually innocent, Comptroller Susan Combs denied Graves access to compensation for his wrongful conviction. Lawmakers this session acted to change the compensation statute to ensure that Graves and others like him would be eligible for the up to $80,000 per year for every year spent behind bars – but that provision (part of House Bill 417) is still awaiting the signature of Gov. Rick Perry.

      As such, Graves' lawyers argue, there is nothing certain about his ability to collect from the state, but meanwhile, Graves needs his reputation restored, they argued before Travis County District Judge Orlinda Naranjo last week. "We are here because Mr. Graves suffered constitutional injury to his reputation," attorney Brian McGiverin, among the attorneys representing Graves, told the court.

      Assistant A.G. Joshua Godbey argued, however, that Naranjo should essentially toss the suit: Graves should have appealed the comptroller's denial of his claim to the Texas Supreme Court instead of suing the A.G. Moreover, he said, a civil court is hardly the right venue for Graves to seek a declaration that he is actually innocent of the Somerville murders. The criminal appeal process is the "sole means by which you can get a verdict of actual innocence," he said. "Mr. Graves went through that process ... and had arguments for actual innocence [heard by various appeals courts], all of which were rejected by those courts." (Godbey also argued that because HB 417 has passed, the case is essentially moot – but with the bill still awaiting Perry's signature, Naranjo seemed disinclined to agree with the A.G. on that point.) But the primary purpose of the suit, argued McGiverin, is "about restoring Anthony's name" – a right guaranteed by the Texas Constitution – making the civil court the perfect place to obtain a declaratory judgement that would do just that. Graves might not be in prison any longer, McGiverin said, but that doesn't mean the damage to his reputation isn't still real; indeed, Graves' original prosecutor, Sebesta, still has a website that declares Graves is actually guilty of the Somerville murders. Graves couldn't take this grievance to a criminal court any more than a person seeking redress for libel would.

      Also at issue is Abbott's attempt to collect some $30,000 in back child support from Graves for the time he was in prison. Under the state's plan for compensating the wrongfully convicted, in addition to the monetary payout for exonerees, the state also agrees to pay the back child support, transferring money from the comptroller to the A.G.'s Office, where it can be paid out.

      Graves argues that Abbott, as the state's top law enforcer, can make his own determination about Graves' guilt in order to take care of the child support payments, and also has the ability to not pursue Graves for the money at this point. But Godbey says Abbott's office is "duty bound to attempt to collect that debt." But, argued McGiverin, "there is nothing in the statute that says the attorney general can't come to an independent conclusion that [the] conditions are satisfied [as to Graves' innocence] in order to pay the child support" with state funds.

      Naranjo did not rule from the bench but has taken the case under advisement; there is no deadline for her ruling.

      The Wrong Way To Right a Wrongful Conviction

      Texas Supreme Court and wrongful imprisonment laws

      Posted Mar. 08, 2010

      Being wrongly convicted and imprisoned for a serious crime takes an almost unimaginable toll.

      The individual can't work, can't fulfill obligations, can't atone for past mistakes, can't freely go about the business of life.

      This is as true for someone with no previous criminal record (except the erroneous one) as for someone who has run afoul of the law and is back in society trying to rebuild a life.

      Texas has long recognized that wrongful imprisonment comes with physical, emotional and financial consequences. And, since 2009, the state has paid $80,000 per year served to those who've been proved innocent of the crimes for which they were incarcerated.

      But the state comptroller's office, which handles payments, has read the Texas Wrongful Imprisonment Act (now the Tim Cole Act) strictly to avoid overcompensating former inmates.

      When the Texas Supreme Court on Friday ruled that the comptroller was interpreting the act too narrowly, it was a reasonable conclusion consistent with the intent of the law.

      The Tim Cole Act recognizes that the state has a responsibility to those who've lost years of their lives because of the government's mistake. But the law doesn't allow payments to anyone who served time for a wrongful conviction at the same time they were serving out a legitimate sentence for which they would have been in prison anyway.

      The Supreme Court had to decide how the law treats parolees sent back to prison to complete old sentences only because of wrongful convictions.

      Billy James Smith served 20 years after being convicted of aggravated sexual assault and sentenced to life in 1986. DNA testing showed he didn't commit the crime.

      But when he applied for almost $1.6 million in compensation for the 19 years and 11 months of his wrongful sentence, the comptroller said he was entitled to almost $67,000 less. That's because he'd been paroled in 1983 for a 1970 robbery conviction, and the sexual assault conviction, though erroneous, meant he had to finish the robbery sentence.

      Smith argued that he should receive full compensation because he wouldn't have returned to prison on a parole revocation had the state not wrongly sent him there.

      The comptroller argued that the statute doesn't make distinctions between parolees and others inmates; it just says someone serving concurrent sentences for separate crimes isn't eligible for compensation.

      Justice David Medina wrote for a unanimous court the statute "can reasonably be read to support either interpretation."

      But the court was persuaded to side with Smith because of the law's purpose and because the attorney general had previously ruled that full compensation was due to a probationer required to serve two sentences when he was wrongly convicted of a drug-related crime in the Tulia scandal.

      The Friday ruling was even better news for former parolees Ronald Gene Taylor, who spent more than 14 years wrongly imprisoned for a rape in Houston, and Gregory Wayne Wallis, who served almost 17 years, wrongly convicted in Dallas County of burglary of a habitation with intent to commit sexual assault.

      The AG's office on Monday said the comptroller would pay Taylor $1.12 million in addition to $20,000 he previously was offered, and Wallis would get $147,000 on top of almost $1.3 million already paid. All three men are receiving monthly annuities ranging from $9,900 for Smith to almost $6,200 for Taylor.

      Having seen the confusion the law has caused, the Legislature should use this session to clarify how compensation should be counted for probationers and parolees sent behind bars only because the criminal justice system failed.

      Read more: Texas Supreme Court and wrongful imprisonment laws

      Court orders Texas to pay exonerated prisoners

      By Chuck Lindell
      March 4, 2011

      The Texas Supreme Court today ordered the state comptroller’s office to pay $2.7 million to three wrongfully convicted Texans who spent, in total, 90 years in prison for crimes they did not commit.

      Wrongfully convicted Texans may collect $80,000 for every year in prison, but Comptroller Susan Combs’ office ruled that the three men were ineligible for full compensation because each had also been on parole for a prior crime.

      But a unanimous Supreme Court said Combs’ office misread the law, passed in 1965 and updated in 2009 to compensate those wrongly accused for the emotional, physical and economic toll of prison.

      Being on parole at the time of their wrongful arrest does not disqualify the men from full compensation, the opinion by Justice David Medina said.

      “Oh, that is great, man,” former inmate Ronald Taylor said when reached at his Atlanta home. “It’s been a long time coming. It’s going to solve a lot of problems for me.”

      After spending 14 years imprisoned for a Houston rape he did not commit, Taylor was eligible for a $1.14 million payment. Instead, the comptroller offered $20,000.

      “Now I’m going to have the money to fulfill my end of our obligations. I can get my house, take my wife on a honeymoon,” he said. “I’m not going to even tell her yet — that’s going to be a surprise.”

      Taylor and the other exonerated inmates will receive full payment for their prison time — plus a matching annuity that earns 5 percent annual interest and pays out monthly for as long as they live — totaling almost $2.7 million.

      The American-Statesman profiled this legal fight in a November story.

      Court orders Texas to pay exonerated prisoners

      FEBRUARY 22, 2011

      News coverage from KXAN-TV in Austin:

      Bill targets faulty eyewitness testimony: kxan.com

      Bill To Reduce Wrong Convictions Passes Committee & Nightly Roundup

      KERA News & Wire Services

      DALLAS, TX (KERA) - A state House committee has advanced legislation to require law enforcement agencies to standardize the way they have eyewitnesses identify suspects.

      The House Criminal Jurisprudence Committee voted to require agencies to adopt a model policy or something similar for determining how they conduct photographic or live lineups. To avoid unintentionally influencing the witness, the person administering the lineup would be precluded from knowing who the suspect in the case is.

      The bill's author, Rep. Pete Gallego, says mistaken eyewitness identification is the leading cause of wrongful convictions in Texas. The Alpine Democrat says procedures would be written based on reliable research on eyewitness memory.

      The state leads the nation in the most convicts exonerated by DNA evidence, with more than 40 people released from prison over the past decade.

      Bill To Reduce Wrong Convictions Passes Committee & Nightly Roundup

      Lawyer for Texas Exonerees Faces Misconduct Suit

      Jeff Carlton
      The Associated Press
      January 19, 2011

      The State Bar of Texas has filed a lawsuit against an attorney who collected millions of dollars from wrongly convicted ex-inmates, saying he committed professional misconduct by charging fees that were illegal and unconscionable.

      Lubbock attorney Kevin Glasheen has been credited by lawmakers and advocates as the driving force behind a 2009 law that made Texas the most generous state in the nation in compensating the wrongly convicted. He has said he acted appropriately in charging his clients a 25 percent contingency fee.

      But the Bar's disciplinary counsel office found evidence Glasheen overcharged his clients or charged fees that violate the Bar's professional code of conduct, Bar spokeswoman Maureen Ray said Tuesday. It filed the lawsuit in an effort to sanction him.

      If a court determines Glasheen committed misconduct, he could face punishments ranging from a public reprimand to disbarment.

      The State Bar filed the lawsuit last week in Lubbock County but asked the Supreme Court of Texas to assign a state judge from another district to handle the case. Glasheen had asked the State Bar to file the lawsuit in open court, rather than conduct a private evidentiary hearing.

      "The judicial review of these complaints gives them more careful scrutiny, more careful examination," he said.

      Glasheen, who represents 15 exonerated inmates, has collected about $5 million in fees from his clients. He kept $3.5 million for his firm and paid the rest to Jeff Blackburn, the chief counsel for the Innocence Project of Texas.

      The windfall came after Glasheen lobbied the Texas Legislature two years ago to pay exonerees $80,000 for each year they were wrongly imprisoned, plus a lifetime annuity. The most recent exoneree in Texas, Cornelius Dupree, served 30 years in prison for a sexual assault and robbery he did not commit. Under the new law, he is eligible to receive a $2.4 million lump sum, plus the annual payment.

      Glasheen convinced his clients to hold off on lawsuits and instead pursue the state compensation, ensuring a quicker and more certain result. He then took 25 percent of what they received.

      Two former clients who spent decades in prison for crimes they did not commit, Patrick Waller and Steven Phillips, have since sued Glasheen, arguing his fees were excessive because they hired him to be their lawyer -- not their lobbyist. Phillips said Glasheen has tried to charge him $1 million, even though the attorney never filed any court motion on his behalf.

      "It sucked the life out of me," Phillips said. "There could be some sort of reasonable fee for lobbying. The gist of my complaint is I didn't hire him to lobby. I hired him to sue the city of Dallas."

      Waller, who did not respond to a message seeking comment, has said he paid Glasheen $650,000. Both Waller and Phillips signed contracts with Glasheen that allowed him to collect a 25 percent contingency fee.

      Randy Turner, who sued Glasheen on behalf of Waller and Phillips, said his clients are grateful for the state compensation money. But he called the fees "grossly unfair" and "obscene."

      "It makes me sick to my stomach," Turner said.

      Glasheen said he is being punished despite making his clients wealthy. For example, Phillips was eligible for about $1.2 million in compensation under the old law. Under the new one, he could receive as much as $4 million. "We are dealing with a novel approach that we took to getting these clients some good results," Glasheen said. "And it was risky and it worked out really well and there was a lot of money involved. It is only when we are really successful and there is a lot of money at stake that anyone would worry about fees."

      Copyright 2011 Associated Press.

      Lawyer for Texas Exonerees Faces Misconduct Suit


      Exonerated Texans have suffered enough; don't cut their compensation

      Published: Nov. 30, 2010

      Comptroller Susan Combs' office is using a strict reading of the law to slash compensation payments to some people who were wrongly imprisoned. That might meet the letter of the law, but it surely cuts against its spirit to make whole to the best of the state's ability folks whose liberties were denied and dignity stolen because of a flawed justice system.

      Three exonerated inmates are challenging Combs' reading of the law in a case before the Texas Supreme Court. One of those is Ronald Taylor, who spent more than 14 years in prison for a Houston rape he did not commit. Under state law, Taylor was supposed to receive $80,000 for each year he was wrongfully imprisoned for a total of $1.1 million. He also was eligible for a matching lifetime annuity.

      Instead, the state offered a total of $20,000, saying he was eligible only for three months of the 14 years behind bars because he was on parole for a prior — and legitimate — conviction. Billy James Smith spent nearly 20 years in prison and Gregory Wallis nearly 18 years for crimes they didn't commit. They, too, were on parole and have had their state compensation cut. American-Statesman writer Chuck Lindell reported in detail on their cases in Sunday's editions.

      Texas law prevents wrongfully convicted prisoners from collecting money if they also served a concurrent sentence for another crime. That makes sense; crime should not pay. Taylor, Smith and Wallis were not imprisoned at the time they were wrongfully convicted of rape-related charges and sent to jail. All three had their parole revoked as a result of the wrongful convictions.

      Combs and the state attorney general's office assert that parole is a continuation of a criminal sentence served outside of prison. So the state should not have to pay an exonerated inmate who was also on parole for an earlier crime until the other sentence was discharged. And if that reading is correct, it means that the three exonerated inmates should not be compensated for any parole time that overlaps with the time spent in prison for crimes they did not commit. In Taylor's case, the overlap covers all but three months of the time he spent wrongfully imprisoned.

      Kristopher Moore, the lawyer who represents Taylor, Smith and Wallis, offers a different take on the law: That a criminal sentence ends when parole begins and the inmate leaves prison.

      No justice system is perfect, and that is especially true in Texas, which leads the nation in the number of people exonerated and released from prison based on DNA evidence. The Legislature passed the compensation law to atone for the state's mistakes and cut down on lawsuits brought by wrongfully imprisoned inmates.

      During arguments, Texas Supreme Court justices asked sharply-worded questions of attorneys for the state, and Justice David Medina went further, telling them their reasoning "seems to be flawed."

      We agree.

      It will be up to all justices on the court to determine whether the state comptroller is using it the way the Legislature intended. Depending on its ruling, which could take days, weeks or months, it might be necessary for the Legislature to revise the law so that it does provide relief to all who have suffered the emotional, physical and economic pain of prison for crimes they didn't commit. Exonerated inmates should not lose their compensation on top of their liberty for mistakes made by the state.

      Exonerated Texans have suffered enough; don't cut their compensation

      Nov. 13, 2010

      Questionable capital cases raise hopes for reform

      It was, at the very least, an odd political sight: former Texas Gov. Mark White, who had sent almost a score of killers to their executions, rubbing shoulders with New York lawyer Barry Scheck at a downtown press conference.

      Scheck is co-director of the Innocence Project, an organization whose goal is to free the incarcerated innocent — and to achieve at least a temporary halt to executions in the United States.

      Uniting these unlikely allies was this week's revelation through DNA testing that key evidence that led to the execution of career criminal Claude Jones for a 1989 San Jacinto County robbery-murder was faulty.

      White, who insists he never sent an innocent man to his death, termed the events leading to Jones' 2000 execution "every governor's worst horror," and called on the coming Legislature to implement wide-ranging changes in the way courts and governors handle death cases.

      Foes of capital punishment believe the cases of Jones, executed after then-Gov. George Bush was given an incomplete report about the career criminal's request for a stay, and Cameron Willingham, who was executed in 2004 on the basis of flawed investigations of a Corsicana house fire in which his three children died, will galvanize legislators and the public to demand reform.

      Adding fuel to incipient anti-death penalty fervor, they believe, is the recent case of Anthony Graves, who was exonerated after spending 18 years on death row for a Brenham-area murder he did not commit.

      No parole now an option

      "It's just mind-boggling," said Houston state Sen. Rodney Ellis, who as acting governor oversaw three executions while Bush was on the presidential campaign trail.

      Ellis is optimistic that legislators will enact "common-sense reforms" to improve eyewitness identification procedures, record interrogations and provide more money for indigent defense programs.

      "All people are imperfect," said Rick Halperin, director of Southern Methodist University's Embrey Human Rights Program, "and the systems that people design are imperfect. There is no such thing as a perfect criminal justice system." While capital punishment reform is "frustratingly slow," he acknowledged, "Texas in 2010 is vastly different than it was in 1990. As people become better educated, we have this evolving standard of decency."

      5 years ago, Texas offered capital juries the option of assessing convicted killers life without parole.

      Major Texas newspapers, including the rock-ribbed conservative Dallas Morning News, have weighed in against capital punishment. Significantly, prosecutors have moved away from seeking death sentences.

      This year, Harris County prosecutors sought - and juries awarded - death in just 2 cases.

      Rob Owen, director of the University of Texas' capital punishment clinic, agreed with Halperin.

      "There's inevitably more public skepticism about a system that has produced these highly publicized mistakes," Owen said.

      Bush unaware of request

      The Jones case was the latest in a series that have raised questions about capital punishment.

      One day before his execution, Jones petitioned Bush for a stay so that a hair found at the murder scene - the only physical evidence prosecutors had that linked Jones to the crime - could be subjected to DNA testing.

      But Bush's staff counsel, Claudia Nadig, recommended in a memorandum that the governor reject the stay request, never mentioning the request for DNA testing.

      Scheck on Friday contended that Bush, who had earlier endorsed post-conviction DNA testing in questioned cases, likely would have granted the stay for testing. Recently completed DNA testing of the hair showed that it came not from Jones but from the victim, Point Blank liquor store owner Allen Hilzendager.

      "This just adds to a growing stack of cases," said Roger Barnes, a sociology professor at San Antonio's University of the Incarnate Word.

      "When I speak to civic groups or church groups and I talk about innocence, wrongful death - boy, does that resonate," said Barnes. "I have no hard empirical evidence of what percentage are moved by these cases, but common sense tells us there has to be a dramatic collective impact."

      Richard Dieter, director of the national Death Penalty Information Center, said innocence campaigns beginning in the 1990s contributed to a drop in death sentences nationally. Fewer such sentences meant less enthusiasm by district attorneys for seeking death, Dieter said.

      Some still see support

      Casey O'Brien, for 26 years a prosecutor with the Harris County District Attorney's Office, believes Texans will still support capital punishment "in the right case."

      But he acknowledged that prosecutors less frequently seek death penalties in murder cases involving robberies. "Aggravated robbery cases are off the board - unless they're serial killers," he said. "You'd try a case like that 15 years ago and you'd get the death penalty."

      Process of law respected

      Dennis Longmire, a Sam Houston State University criminal justice professor, is optimistic that publicity surrounding claims of wrongful convictions in capital cases will "resonate" with legislators. But the impact on the general public, he believes, may be "disheartening."

      "I think there's a greater sense among elected public officials, whatever their opinion of the death penalty, to have a fundamental respect for the orderly process of law," he said. "I think public officials are more responsible than the common person."

      Longmire said surveys he conducted several years ago showed that 90 % of respondents who favored the death penalty believed that, in the state's last 100 executions, an innocent person had been put to death.

      "In talking to students," he said, "they say maybe those who were executed were innocent of their crimes but they were probably guilty of something."

      (source: Houston Chronicle)

      Exonerated man working to help others seek justice

      Copyright 2010 Houston Chronicle
      Aug. 18, 2010

      Michael Anthony Green fiddled with his cell phone, the second one he has owned since he was freed from prison less than a month ago.

      "If my little phone has all that it has on it, I can just imagine the vastness of the computer and the knowledge I can gain from it," Green said Wednesday. "That's the one thing I love to do is educate myself."

      His first phone was stolen outside Harris County's law library on Saturday. He was there doing legal research for Bob Wicoff, the lawyer who helped him get out of prison and then hired him to write briefs and interview inmates. Wednesday officially was his first day on the job.

      "Mike could really change the world," Wicoff said of his new employee. "He's in a position to be instrumental in making all sorts of important changes in Austin, with new legislation. His case could be an example of the changes we need to make."

      But first, Green, who spent 27 years in prison for a crime he did not commit, said he has to learn about computers. He wants to become a paralegal to help other inmates he says are wrongfully imprisoned.

      "I love the law, and I want to try to get some of the other fellows out," the 45-year-old said.

      In 1983, Green was sentenced to 75 years in prison for the rape of a Houston woman because of faulty eyewitness identification. DNA evidence has cleared Green from any involvement in the case. He was freed July 30 but still has to be declared actually innocent. If he is, Green stands to receive more than $2 million from the state. Nonetheless, he plans to continue to work.

      "That's how I'm going to live. Regardless of the compensation money, I'm still going to work," he said.

      Since his release, Green said he has been spending his days catching up with family. At night, he watches television and has trouble sleeping.

      "I didn't sleep for three days after I got out," he said.

      A room for mementos

      He is kept awake by the newfound freedom to do whatever he wants, he said. Some nights he spends hours walking around the suburban block where he is staying with family.

      Eventually, Green said, he would like to buy a small house. One room will be set aside, he said, to display mementos related to his time behind bars, including the shoes he wore on his last day in prison, newspaper clippings of exonerated prisoners and the typewriter he used to type the 13-page motion requesting the DNA testing that ultimately freed him.

      "There is a lot of typing in 13 pages," the hunt-and-peck typist said.

      Clay Graham, a Dallas defense attorney who has worked with the Innocence Project of Texas to help exonerees adjust to being free, said it was unusual for Green to have a job, especially only weeks after he was released.

      "I would say it is a miracle that he has a job already," Graham said.

      Shock and disbelief

      Other convicts who are released, especially when paroled, have support systems for counseling, jobs and supervision. The innocent who are freed also are free of any further obligations, leaving them in a state of shock and disbelief, Graham said.

      "It's an understatement to say that it is overwhelming," he said.

      Green said one of the reasons he took a job with Wicoff was for the structure. He also wants to help others in prison.

      Wicoff said Green's experience will give him an edge in communicating with inmates claiming innocence.

      Sage advice

      Green also has been asked to speak to troubled youth about the dangers of being in the wrong place at the wrong time.

      He was walking in the early morning hours of April 18, 1983, when he was picked up by police searching for the four men involved in the sexual assault.

      A week later, he was arrested after fleeing police in a stolen car and pleaded guilty to evading arrest. Stealing cars, he has said, helped police and prosecutors arrest him and convict him of the sexual assault.


      Exonerated man working to help others seek justice

      Texas students in innocence projects play key role in Exonerations

      Posted Jun. 01, 2010

      AUSTIN -- For years, James Woodard wrote letter after letter from his prison cell, hoping to convince anyone willing to listen that he was innocent.

      Most of his pleas were ignored, but some weren't. Among those who took an interest was Alexis Hoff, a student at Texas Wesleyan School of Law in Fort Worth.

      In 2007, Hoff, now Alexis Hoff Allen, was a member of the Wesleyan Innocence Project, composed of law student volunteers who spend hours of their own time investigating possible wrongful convictions.

      Working with the Dallas County public defender's office and district attorney's office, the 25-year-old student pored over court records, transcripts and other documents in an exhaustive re-examination of the case. Allen's review ultimately helped lead to DNA testing that cleared Woodard in the 1981 slaying of his girlfriend.

      'A godsend'

      "She was a godsend for me," said Woodard, who walked out of prison in 2008 after spending 27 years behind bars and now lives in Dallas. "I absolutely love her."

      Although their efforts don't always yield success stories like Woodard's, innocence projects on university campuses have become a powerful force in the criminal justice system. The work of student volunteers has figured heavily in many of the 42 exonerations in Texas -- the most in the nation -- and helped clear Tim Cole of Fort Worth, who died in prison after he was wrongfully convicted of sexual assault.

      "They are extremely essential," said attorney Michelle Moore of the Dallas County public defender's office, who credits Wesleyan law students for assisting in many of the DNA-based reversals in Dallas County. "They've been very instrumental from the start."

      Typically guided by professional advisers, students plow through old court records and police files, interview witnesses and prisoners, and sometimes spend days on the road looking for inconsistencies and evidence that might suggest a wrongful conviction. It's shoe-leather detective work that often takes students through cold cases that perhaps all the but the inmate have long since forgotten.

      Student involvement

      Two students at the Innocence Project of Texas, founded by Amarillo attorney Jeff Blackburn and based at Texas Tech University in Lubbock, conducted much of the preliminary work that contributed to Cole's posthumous exoneration by a Travis County judge.

      The group began pursuing the case after receiving a letter from the real assailant, Jerry Wayne Johnson, who was in prison on three rape convictions and later confessed to the rape for which Cole had been convicted.

      The two students, Sarah Hegi and Nick Vilbas, who have since graduated, interviewed Johnson, searched records and made frequent trips to the Police Department and prosecutors' offices to dig up evidence. Among their discoveries was a color Polaroid photograph that had been used to identify Cole; photos of other suspects were black and white, thus making Cole more prominent.

      "The students played an integral part in clearing Tim's name," said Cole's brother, Cory Session, who is now policy director for the Innocence Project of Texas. "If it hadn't been for those students at the Texas Tech law clinic, we wouldn't have come to this historic day."

      Another high-profile case is that of Texas Death Row prisoner Hank Skinner, who was convicted of capital murder for killing his live-in girlfriend and her two mentally impaired sons in 1995. The case received national attention after students from the Medill Innocence Project at Northwestern University in Illinois began looking into the conviction and interviewed a star witness who later recanted her testimony. Last week, the U.S. Supreme Court agreed to hear Skinner's petition to obtain DNA evidence that he says will prove his innocence.

      There are more than 60 innocence projects nationwide, Medill project Director David Protess said.

      State funding

      Widening public concern over wrongful convictions in Texas has spurred growing student involvement in campus innocence projects. Two operate at Texas Wesleyan University: the Wesleyan Innocence Project at the downtown law school and the Wesleyan Justice Project, composed largely of undergraduate students at the main campus in east Fort Worth. Innocence projects at the state's four public law schools -- the University of Houston, the University of Texas, Texas Southern University and Texas Tech -- are subsidized by the state, each receiving $100,000 a year.

      Students at other campuses are also getting involved. More than 75 students turned out for a daylong innocence seminar at the University of Texas at Dallas.

      "Most of these students have never read a trial transcript or a police report," said Anthony Champagne, professor of political science and director of pre-law at UT-Dallas. "The amazing thing is that these students turned out on a Saturday and stayed there all day long. It was pretty extraordinary."

      The apparent effectiveness of the university projects will likely prompt a state advisory panel to back away from recommending the creation of a state innocence commission similar to those operating in California, Connecticut, Illinois, North Carolina, Pennsylvania and Wisconsin.

      Named after Cole, who received a posthumous pardon from Gov. Rick Perry earlier this year, the state advisory panel is charged with recommending criminal justice improvements to curtail wrongful convictions in Texas. At their last meeting, members leaned against the creation of a state innocence commission, largely because of the work being done through university innocence projects, and discussed tightening coordination among them.

      Wesleyan projects

      The two projects at Texas Wesleyan, a 120-year-old university affiliated with the United Methodist Church, have gained increasing recognition within criminal justice circles and have been involved in hundreds of cases over the past five years.

      The law school's Wesleyan Innocence Project, started in 2005, works with the Dallas public defender's office, which makes many of the case assignments to the Wesleyan law students.

      The undergrads initially worked with the law students but branched into the separate Wesleyan Justice Project about two years ago.

      Wesleyan officials say that keeping the two groups separate fits the differing educational needs of law students and undergraduates. More than 130 students handle cases through the law school program. The Wesleyan Justice Project has 30 to 35 participants, including undergrads as well as alumni and other interested community members. One is a nurse who examines medical reports as part of the research. Students in the undergrad group work closely with the innocence project at Texas Tech.

      The two Wesleyan groups have an identical goal: making sure that inmates aren't behind bars when they shouldn't be. Taylor Anderson, president of the Wesleyan Innocence Project, says the experience can be rewarding and eye-opening.

      "You come into this law business, you think that everything runs perfect," said the 24-year-old law student. "You learn that everything is very imperfect." Anderson said he was hooked after attending a meeting in which an exonerated former prisoner told of his ordeal.

      "I learned this is something I wanted to do, something I wanted to be involved in," he said. Now, much of his daily reading -- along with his studies -- includes stacks of letters from inmates, who routinely reach out to innocence projects in the hope of finding a sympathetic ally.

      Some of the letters are brief requests for applications; others can be page after page of typewritten pleadings. While many of the claims are baseless, Anderson says he scours each one to see whether there may have been a legitimate witness who wasn't called or evidence that didn't make it into trial.

      Alexis Allen, who has graduated from the Wesleyan law school and now works in the Dallas city attorney's office, said she became involved in Woodard's case after the Conviction Integrity Unit in the Dallas district attorney's office felt that it merited further review.

      Allen first read the trial transcript and then dug through additional records.

      Working with assistant public defender Michelle Moore in Dallas, she also interviewed Woodard after he was returned to Dallas on a bench warrant.

      "I did a preliminary review of the case and recommended that it should be one of the cases that was tested" through DNA, Allen said. The DNA testing proved that Woodard did not commit the murder, resulting in his release in April 2008.

      "To help know I changed someone's life for the better in a tremendous way is a pretty good feeling," Allen said.


      Read more: Texas students in innocence projects play key role in exonerations


      By Brandi Grissom
      May 19, 2010

      Texas is reaching a crisis point, putting itself at risk of a civil rights lawsuit — or worse, a total meltdown of the criminal justice system — because it so severely shortchanges the system designed to ensure impoverished accused criminals get adequate legal representation, advocates told a Senatecommittee last week.

      “We are facing a real crossroads in indigent defense because of money,” Jeff Blackburn, general counsel for the Texas Innocence Project told members of the Senate Criminal Justice Committee. “The money in these counties is going to start running out.”

      Nine years ago, before Texas adopted the Fair Defense Act, the state was considered abysmal in legal circles when it came to providing representation for the poor. Texas had more people in jail, more people on death row and executed more people than nearly any other state, but there was no mechanism to provide decent legal defense for the poor. Proponents and critics of the current system agree the situation has improved since 2001, when lawmakers started requiring counties to implement minimum representation standards.

      Thousands more poor defendants are getting attorneys now, and 91 counties are served in some capacity by a public defender system. “We have made such huge progress in that area that we’re no longer the laughing stock of the nation,” Tony Fabelo, director of research at the Council of State Governments Justice Center, told lawmakers.

      It’s better, but it’s not good enough, advocates say. “It’s just not as bad,” Blackburn says. While courts spent more than $186 million on indigent defense in 2009, according to the Task Force on Indigent Defense, the state chipped in only $28 million — barely enough to meet the Constitutional requirement to provide adequate legal representation, advocates say. With state lawmakers looking at the possibility of an $18 billion budget hole next biennium, it's highly unlikely the Legislature will put any more money into indigent defense.

      Advocates are clinging for dear life to the little money they already get, asking that leaders ensure the dollars are spent effectively. And they’re worried that as the economic troubles trickle down to local governments, some of the indigent programs could disappear altogether.

      Before 2001, there were a scant few public defender offices in Texas, and the ones that existed had no well-defined minimum operating standards and no state funding, Fabelo told the Committee. The Fair Defense Act required counties to create systems to provide representation for the poor. Counties can have judges assign attorneys from a list of lawyers, they can create public defender offices that employ attorneys to represent the poor, or they can create a system in which private attorneys contract with local courts to provide services. Statewide, there are now 16 public defender offices that serve 91 counties. Most counties, about 71 percent, allow judges to assign lawyers to indigent accused criminals, according to the Texas Fair Defense Project.

      The Task Force on Indigent Defense gives counties money to help defray the increased cost of representing the poor. Money for the program comes from a variety of court fees, which in 2009 generated about $31 million, according to the task force. Most of the money is distributed based on population and on the amount of indigent representation the counties provide. A smaller portion is meted out in grants for counties to start public defender programs.

      Statewide, costs for representing the poor have nearly doubled since 2001, when courts spent about $94.7 million. By 2009, the cost skyrocketed to $186.3 million, according to the task force. Counties absorbed the biggest chunk of that cost. The state paid just 15 percent of the total indigent representation costs last year. That’s a great improvement over the zero dollars Texas was putting in before, said Sharon Keller, chairwoman of the task force and presiding judge of the Texas Court of Criminal Appeals, in testimony before the Senate committee. Plus, she said, a structure that requires adequate representation for the poor now exists where none did previously. “We have raised the bar,” she said. But Keller and others at the task force agree the state’s not doing enough. “What we’re trying do is figure out how the state can share more of these responsibilities with local governments,” Jim Bethke, executive director of the task force, told the committee.

      But lawmakers said chances of that happening during the 2011 session when estimates indicate the budget shortfall could be anywhere from $15 billion to $18 billion are not good. “We’re not going to get any more money from the state. It ain’t coming,” said state Sen. Rodney Ellis, D-Houston, author of the Fair Defense Act. “It ain’t going to be easy to keep this $28 million.”

      What compounds the problem is that the state isn’t the only entity working on a shoestring budget. County governments are feeling the pain of falling housing sales and property tax collections too. David Slayton, director of court administration in Lubbock County, says costs for providing indigent representation there have doubled since 2001, from $1.5 million to about $3 million. The state picks up less than 5 percent of that cost. But grant money from the task force is paying start-up costs for the county to develop a new regional public defender office to represent indigent defendants in capital cases in 70 West Texas counties. Grant dollars are also helping the county launch a defender office for those with mental health problems. “One of the things that concerns me is just the true sustainability of these programs … from a funding perspective,” Slayton says. If the state funds give out, he says, the counties won’t be able to step in to keep the new courts on track. “It would jeopardize the ability of those programs to continue,” Slayton says.

      The question for the state and for criminal justice advocates, says Andrea Marsh, executive director of the Texas Fair Defense Project, is at what point the funding becomes so minimal that it is impossible to meet the Constitutional obligation to provide adequate defense. “The counties are footing most of the bill, but … there are very real limitations to their ability to raise additional dollars,” Marsh says. The more the funding dwindles, the more the state is at risk of a lawsuit. “The situation in Texas is not that different from the situation in states that have seen litigation,” she says.

      In addition to funding questions, Marsh says, there are concerns about the fairness of the system. The American Bar Association, in its best practices for public defense, recommends that lawyers for indigent defendants be chosen independently — not by the judge, as is the case in most Texas counties. The Bar Association also calls for independent oversight of indigent defense lawyers and monitoring of their caseloads, neither of which regularly happen in Texas, Marsh says. Another problem, she says, is that county courts appointed lawyers for defendants, on average, in just 13 percent to 22 percent of misdemeanor cases.

      Montana was forced to overhaul its criminal defense system in 2005 after the American Civil Liberties Unions sued the state over a slew of representation shortcomings similar to the ones advocates identify in Texas. Montana allowed poor defendants to spend months in jail before trial, according to the Chicago Tribune, and none of the accused in misdemeanor cases were appointed attorneys.

      Lawyers for the indigent were unable to fully investigate cases because they didn’t have the funds. Michigan is now in the middle of litigation over its criminal defender system, which the ACLU alleges is unconstitutional because it lacks state funding and oversight.

      Texas lawmakers may not have the wherewithal this year to put any more funds into indigent defense, but Marsh says legislators might help ward off litigation by making changes to the program. They should ensure the current funds are used effectively by requiring more oversight of the program, requiring independent selection of attorneys for the poor and giving counties incentives to implement public defender programs, she says.

      Blackburn is less optimistic. “They’re all trying to tinker with a system that is so fundamentally broken that no amount of tinkering is ever going to fix it,” he says. While he believes a complete overhaul of the indigent defense system is necessary, he says he’s not hopeful litigation will prompt change in Texas.

      What’s needed, Blackburn says, is for lawmakers to take initiative to develop a new law that requires public defenders statewide have appropriate oversight, independence and funding. In the current system, he says, counties have little incentive to ensure poor defendants get adequate legal representation. If defendants in felony cases don’t get good legal advice, they usually go to prison, where the state foots the bill. If defendants in misdemeanor cases don’t get lawyers, they usually plead guilty to charges that result in fines and fees that boost the county’s bottom line. As counties face more and more financial trouble, he worries local officials will begin relying on those fines and fees to generate revenue.

      Without true reform, he says, the system is likely to eventually cause so much public backlash that lawmakers will either make changes or risk losing their jobs. “I don’t see any real prospect for big reform until the true meaning of the current broken system seeps into the average person’s consciousness,” he says.


      Walking free - now what?

      This fall, the state is changing the way it releases men who have paid their debt to society

      May 9, 2010

      HUNTSVILLE — The first steps to freedom aren't between opening steel gates or beneath menacing guard towers, but through double glass doors and down the stairs to 12th Street.

      It's just about the only way out alive from the Texas prison system.

      About 90 percent of male prison inmates in the state are sent here for the home stretch of their sentence before being released back into society. That's around 32,600 ex-convicts a year who, ready or not, are funneled back into the streets through this town, an hour's drive north of Houston.

      “Dazed and confused,” Gerald Butterfield said when asked how it felt to be back in the free world after 20 years. “It doesn't compute.”

      Butterfield, convicted of an especially heinous burglary and rape in Williamson County, said he hoped to get back to Michigan, but his prison-issued bus voucher was good only to the Texas state line.

      Those who have completed their sentences like Butterfield, as opposed to being released under the supervisory eye of parole, are free to go unsupervised with no safety net.

      But this generations- old tradition at the 161-year-old prison Walls Unit — which has held Indian chiefs, gunslingers, horse thieves and Civil War prisoners — is about to change.

      To save money and time, the Legislature mandated that starting in September, inmates will be released from at least six regional prisons — places closer to their homes.

      Nearly a third, 27 percent, of the inmates released from the Texas Department of Criminal Justice will be back behind bars within three years, according to state statistics. Those numbers concern state authorities who are evaluating how to improve the way ex-inmates are sent back into the free world.

      Some loved ones wait

      Within seconds of their release from Huntsville's Ellis Unit, luckier ex-convicts fell into the arms of teary-eyed mothers, children or wives who had not forgotten them and were waiting across the street under the shade trees.

      “We have unconditional love; it is something we started as teenagers,” said Eva Gamez, who on a recent morning waited for her husband for 17 years. She held a hanger with a pair of men's pants and a shirt.

      Most are on their own.

      They make a quick left along 12th, which runs along the outside edge of a high brick wall topped with razor wire, and begin a journey back into a world that has gone on without them.

      Many hold out hope friends or relatives will give them a place to stay or that a church shelter will offer a hot meal and a cot.

      Each of the men released wore a pair of prison-donated used street clothes and have a state-issued check for $100, a voucher for a bus ticket home. Parolees get $50 and are told where to report next.

      Two blocks up a slight hill is the Greyhound station as well as a place where they can cash their checks and buy a pack of cigarettes or clothes. One said he wanted to see a movie. Another needed a Dr Pepper. A guy who robbed a convenience store was headed to a feast prepared by his mother.

      ‘Go be a good guy'

      A recovering alcoholic who had multiple drunken driving offenses found religion and plans to remarry his wife, this time in a church.

      “Tell them Little Reeso” is back,” said a smiling, heavily tattooed Maurice Martin, who was headed for Houston after his imprisonment for robbing a drug dealer thick with cash.

      He spent his last six months in solitary confinement for fighting, said Martin, who prides himself on still having all his teeth, despite the violence inmates face. Now he says he just wants an honest job.

      “I have changed, and I will be better if you look at me a different way,” he said. “Give me a chance.”

      A prison ministry estimates that on any given day, 30 percent of the men have no idea where they will end up their first night, a recipe for disaster.

      “Lock 'em up and dump 'em out,” said Emmett Solomon, founder of Restorative Justice Ministries. “It makes no sense to lock a person up with 2,000 bad guys for six years and after six years, open the door and say, ‘go be a good guy.' ”

      News that Butterfield, the rapist, was freed was chilling for Williamson County District Attorney John Bradley, who for years successfully fought any early release. But Butterfield has completed his entire sentence.

      “There is no question in my mind this guy did not get better in prison; somebody somewhere will face his violence,” said Bradley, a member of the Texas Department of Criminal Justice's new Re-entry Task Force looking at how to better bring convicts back into society.

      Feeling out of place

      Ex-convicts need to end up with a place to live, a way to get a job and some avenue of not going right back into prison, Bradley said.

      Some of the men were likely menacing on the cell block, but fresh on the streets, seem out of place in this small central Texas city.

      “They are in a surreal world, their brains are overloaded,” said Bill Kleiber, a prison missionary and ex-convict himself.

      Kleiber, who often greets those being released with a friendly “welcome back, brother,” is known to hand out Bibles and offer help to those wanting to stay out of trouble on the way home or find a place to sleep.

      “Every one of these men is in some state of shock,” he said.

      Kleiber offers cheese-burgers and fries from the hood of his pickup.

      “I am glad to be a free man,” said Latravan Kinney, 26, who served eight years for robbing a convenience store. ”I am happy to have a second chance in society.”


      Walking free - now what?


      Justice Deferred

      Will Texas tackle wrongful convictions?

      OCTOBER 30, 2009

      Anyone who believes the criminal justice system in Texas is functioning properly should be locked in a room and forced to listen to Cory Session talk about his half-brother.

      His name was Tim Cole. He was a Texas Tech University student falsely convicted in 1986 of rape. Tainted police lineup procedures led the victim to misidentify Cole as her attacker. He spent 13 years in prison for a crime he didn’t commit. He didn’t live to see his name cleared. In 1999, Cole died in prison of complications from asthma.

      On Oct. 13, some of the leading criminal justice experts in the state— including lawyers, judges, and policymakers—gathered for the first meeting of the Tim Cole Advisory Panel on Wrongful Convictions. It was ostensibly an organizational meeting. But the first order of business was Session. Sitting next to other members of Cole’s family at a long conference table, Session described Cole as a college student trying to live the American dream. “This was my brother,” Session said through tears. “This was my mother’s son. He never met my children. He never married.”

      Session suggested that flags on all state government buildings be lowered to half-staff on Dec. 2—the date Cole died in prison—to acknowledge everyone who’s been wrongly convicted.

      “Tim died in prison while being oppressed,” Session said. “Let’s not let it happen again. ... If it can happen to Tim, it can happen to anyone.”

      Last year, after DNA testing proved his innocence, Cole became the first person exonerated posthumously in Texas. His story made national news and prodded the Legislature to enact two bills in Cole’s name (one increased compensation for the wrongly convicted; the other created the panel). The panel is to deliver recommendations to the Legislature in January 2011.

      Much of the first meeting revolved around reforms that didn’t pass the Legislature this year, including a bill to fix police lineup procedures. Had the bill been law in 1985, it might have saved Tim Cole.

      Many panelists agreed broadly on the causes of wrongful convictions.

      There isn’t much left to study on the topic, and some panelists argued the committee should focus its energy on a political strategy to pass the reforms.

      “We don’t need to study it anymore,” said Barry Macha, the Wichita County district attorney and the panel’s representative from the Texas District & County Attorneys Association. “We know what the problems are. We know what the solutions are. We just need to pass it.”

      Macha said DAs support many of the reform bills, including those addressing lineups, videotaped confessions, and better access to the courthouse for wrongly convicted prisoners.

      Others at the table disagreed. Rep. Pete Gallego, the Alpine Democrat who chairs the criminal justice committee in the state House, said the compromise versions of the reform bills this past session were weak. “It’s easy to support weak stuff,” he said. Gallego argued that the panel should debate the details and make specific recommendations.

      The open question is whether the inquiry named after Tim Cole can lead the way to reform. Or will it be another blue ribbon panel that produces another well-intended report that ends up in a drawer?

      Will Texas tackle wrongful convictions?

      UT law students help exonerate 2 men in robbery-murder

      By Chuck Lindell
      October 24, 2009

      Two Dallas men, freed Friday after serving 12½ years in prison for a murder they did not commit, are the first inmates to be exonerated with help from the University of Texas Center for Actual Innocence.

      Applause filled the Dallas courtroom as Claude Simmons Jr. and Christopher Scott were released from life sentences in an agreement between prosecutors and defense lawyers. Next, the state's highest criminal court will be asked to overturn their capital murder convictions, after which charges will be dropped.

      "I never gave up hope because I believe in God, and God knew that I was innocent," Simmons said, breaking into tears as he recalled missing his father's funeral while in prison.

      Simmons, 54, and Scott, 39, were convicted of killing Alfonso Aguilar in a 1997 home invasion robbery based almost entirely on eyewitness identification by Aguilar's wife, who was in their Dallas home during the shooting.

      Simmons contacted the UT innocence center in 2005 seeking help in challenging his conviction — one of about 1,000 such requests received annually.

      He passed the center's first weeding-out process after filling out a questionnaire that detailed a potentially valid innocence claim, and students with the law school's Actual Innocence Clinic were assigned to investigate.

      Students quickly spotted one problem. Aguilar's wife first identified Scott as a shooter when she saw him handcuffed in a police station, but she could not pick him out of a photo lineup a short time later. That raised questions about a tainted identification because she later pointed to Scott from the witness stand.

      But Simmons' most intriguing claim — that Alonzo Hardy, an inmate in another prison, was prepared to confess to the Aguilar killing — sent law students Ashley Burns and Dana Scott to visit Hardy's prison in Lovelady, a small town a half-hour north of Huntsville.

      "I went in skeptical because we have to sort through and investigate so many meritless claims. People will say anything to get out of prison," Burns said. "But from what Alonzo Hardy told us, we knew for a fact, when we walked out of that prison, that Claude Simmons was innocent."

      Hardy, serving 30 years for aggravated robbery, perfectly described Aguilar's house and clothing and the shooting circumstances, Burns said.

      He also implicated an accomplice, Don Michael Anderson, as the shooter.

      And Hardy answered both students' biggest question: Why confess now?

      Anderson had threatened harm to Hardy's mother if the truth came out, Scott said. "He said his mother passed away earlier that year, so he felt free to come forward," she said.

      Anderson was arrested earlier this week and charged with capital murder.

      The UT students also learned that another group, the UT-Arlington Innocence Network, was investigating Simmons' claims, and the two organizations combined their efforts.

      An investigation by the Dallas County district attorney's Conviction Integrity Unit and Dallas Police Department followed, leading to Friday's hearing and Simmons' and Scott's release on personal recognizance bonds.

      clindell@statesman.com, 912-2569.
      Includes information from The Associated Press.

      UT law students help exonerate 2 men in robbery-murder

      Texas justice system getting much needed examination

      By Paul Williamson
      Published: October 15, 2009

      In 1985 Texas Tech was hit by a series of rapes. This prompted Lubbock police to send a female undercover officer to Tech’s campus to try to lure the Tech rapist.

      This is when the officer was approached by Timothy Brian Cole. This act alone caused him to become Lubbock’s prime suspect and put his Polaroid picture in a lineup of photos to show to victims.

      It was the only color photo (along with four black and white photos) shown to Michele Mallin, who was a victim of rape on campus. After police and prosecutors described Cole as a “low-life hood” and showed her the photo, she immediately identified Cole as the rapist. Her eyewitness testimony was all that was needed to convict Cole of rape and sentence him to 25 years in prison.

      In 1995, Jerry Wayne Johnson started his attempts to contact Cole and try to confess to the crimes he committed. This attempt was ignored by the Texas justice system and his letter never reached Cole.

      Cole died in 1999 of an asthma attack in prison.

      Last year, DNA evidence proved Johnson was the real rapist and Cole was proven innocent.

      Coles’ story is one that is tragic but is making way for the Texas justice system to reform itself. Last May, the Texas government passed legislation creating the Timothy Cole Advisory Panel on Wrongful Convictions. It is a panel that will discuss and research ways in which the criminal justice system can prevent something like this from happening again.

      The panel had its first meeting Tuesday.

      One of the biggest reasons why wrongful conviction occurs is because of incorrect eyewitness testimony, as was the case with Cole and Mallin’s testimony. Mallin is now a major supporter of eyewitness reform.

      There are new developments in eyewitness accounts that increase their accuracy. According to the Justice Department, law enforcement agencies should take many precautionary steps to not encourage the witness to identify someone. Such as describing some as “low-life hood” and show them the picture. That should be a no-no.

      An example is the use of double-blind lineups. This is when not only does the witness not know which of the individuals is the suspect, but the person conducting the line up does not know either. This way the law enforcement person does not accidentally give away clues as which one is the suspect.

      Also, they could show people one by one to prevent a witness from comparing individuals and seeing which one best fits their description. This is just one of many things the panel will look into when it comes to wrongful convictions.

      Since DNA testing began in 1989, hundreds of people have been proven innocent. This includes individuals on death row. Can you imagine what it is like to be convicted to death for a murder you never committed?

      This is the exact reason why the death penalty should be banned. The mere chance of killing an innocent person, which has happened, should be reason enough to ban the death penalty. Even in the age of DNA testing someone could easily be wrongfully convicted. In my hometown of Houston, scandals hit our crime lab where DNA evidence was not handled correctly and lead to many wrongful convictions.

      The story of Cole is heartbreaking. But his spirit lives on and his death hopefully will not be in vain as his story is one that has inspired reform in our system to provide for real justice.

      Texas justice system getting much needed examination

      Tim Cole panel begins yearlong look at judicial safeguards

      Posted Tuesday, Oct. 13, 2009

      AUSTIN — A blue-ribbon panel named after a wrongfully convicted inmate from Fort Worth is beginning a prolonged mission toward reforming criminal justice in Texas, fueled by a ballooning controversy over the possibility that the state may have executed an innocent man.

      The Tim Cole Advisory Panel on Wrongful Convictions will conduct its first meeting today, starting a yearlong effort toward recommending new safeguards against erroneous convictions.

      The panel’s review parallels an uproar over the shakeup of a state commission seeking to determine whether a flawed arson investigation led to the 2004 execution of Cameron Todd Willingham, an unemployed mechanic from Corsicana.

      Cole was wrongfully convicted in 1986 and died in prison 13 years later before being posthumously exonerated this year. His brother, Cory Session, also of Fort Worth, said he plans to cite the Willingham case when he addresses the panel.

      "It’s hard to overlook the possibility that an innocent man was executed," Session said. "Just like my brother Tim till the day he died, they both said, 'I didn’t do it.’ We just can’t take it lightly anymore when somebody says they’re innocent."

      Willingham case

      Willingham was found guilty in the deaths of his three daughters in a 1991 fire. He said he was asleep in his house when the fire started and reasserted his innocence in a final statement before he was executed in 2004.

      Corsicana officials have vigorously defended the investigation, pointing to inconsistencies in Willingham’s statements and other factors. But nationally prominent fire expert Craig Beyler, in a report prepared for the Texas Forensic Science Commission, denounced the investigation into the fire at the Willingham home and said it didn’t "sustain" a finding of arson.

      The case touched off an uproar less than two weeks ago when Gov. Rick Perry dismissed three members of the commission, forcing the cancellation of a meeting to hear the Beyler report. On Friday, Perry dismissed a fourth member and named two new appointees, including Fort Worth attorney Lance Evans.

      Authority questioned

      Ousted Chairman Sam Bassett, an Austin attorney, told the Chicago Tribune over the weekend that two top staff members from Perry’s office sought to apply pressure on him over the direction of the inquiry. Bassett offered additional details of his February meeting with the Perry staffers in a telephone interview Monday with the Star- Telegram.

      Bassett said that then-General Counsel David Cabrales, now a Dallas attorney, questioned whether the inquiries into arson cases against Willingham and Ernest Ray Willis met the criteria of the 2005 statute that created the commission. Willis was convicted — but later exonerated — in a fatal house fire in Iraan, in West Texas, in 1986.

      "He didn’t think that type of investigation by the Forensic Science Commission was the type of investigation that the legislation that created the commission was intended to address," Bassett said.

      Present during the meeting was Mary Anne Wiley, another staff member in the general counsel’s office who is also the governor’s representative on the Tim Cole panel.

      Bassett said Cabrales also told him that the commission was "supposed to be more forward-looking and not going back and looking at the old cases."

      'No threats’ made

      Cabrales referred questions to the press office. Allison Castle, a spokeswoman in the governor’s office, said Cabrales told her that "he was simply wanting to make sure that Mr. Bassett was comfortable" that their work was within the scope of the 2005 statute.

      "The governor’s office and the governor do not micromanage the work of the boards and commissions," Castle said.

      Bassett said that, although there were "some fairly intense questions about why the commission was conducting these investigations," there were "no threats."

      "They never explicitly said you’ve got to stop this investigation," he said. "They never said that."

      Perry has defended the dismissals as part of the normal appointments process, but critics have accused the state’s longest-serving governor of gutting the commission to avoid potentially embarrassing findings while he is seeking re-election.

      End to 'junk science’

      Some issues raised in the Willingham case will likely be included in the long-range study by the Cole panel as it seeks legislative remedies to criminal justice flaws in Texas. Session and his mother, Ruby Session, have joined the Innocence Project of Texas in urging the panel to review the use of "junk science" — a term that critics have used to describe the arson investigation in the Willingham case.

      Tim Cole became the face of the legislative effort that led to creation of the panel during the 2009 session. "Texas still has a long way to go to ensure that the innocent remain free and the guilty are brought to justice," said state Sen. Rodney Ellis, D-Houston, who sponsored legislation creating the panel.

      The 10-member panel, which will work under the umbrella of the state’s Task Force on Indigent Defense, will conduct a study and recommend new laws to the 2011 Legislature. Its goals include overcoming mistaken eyewitness identifications and false confessions — which account for a large percentage of wrongful convictions in Texas — and increased funding to defend indigent people.

      Texas ranked 44th in funding for indigent defense in 2005, spending $6.14 per capita, according to Ellis’s office. Texas has had 41 convictions overturned by DNA, more than any other state.

      Tim Cole panel begins yearlong look at judicial safeguards

      Man freed after 14 years of sentence

      Associated Press
      Oct. 12, 2009

      DALLAS — A convicted murderer who has been jailed for 14 years is free after Dallas prosecutors acknowledged his original trial was tainted.

      Thirty-four-year-old Richard Miles was sentenced to 40 years in prison during his 1995 trial for murder and attempted murder. He was freed on a personal recognizance bond Monday.

      The Dallas County district attorney has acknowledged that police didn’t disclose evidence that implicated another suspect. Miles’ former attorney never learned that police received an anonymous tip from a woman who said her ex-boyfriend showed her a pistol he said he used in the 1994 shootings that left one person dead and another disabled.

      Dallas DA Craig Watkins said authorities are investigating whether he is innocent.

      Man freed after 14 years of sentence

      Better late than never, DNA lets innocent people reclaim liberty

      Published Date: 12 October 2009

      THERE have been 244 "exonerees" since the creation of the Innocence Project in the United States 17 years ago. Exoneree is an unwieldy but precise term invented within the Innocence Project to describe the prisoners it has helped to release not on ambiguous technical grounds of mistrial but because examination of the DNA evidence from the crime scene established that they didn't do it. They were innocent of the crimes they were jailed for.

      Seventeen of the 244 had served time on death row. They would have been executed for crimes they did not commit. Most others had sentences measured in decades.

      The Innocence Project was founded by Barry Scheck and co-director Peter Neufield. Scheck is best known in this country for his part in the 1995 OJ Simpson defence team and later as defence lawyer for the British nanny Louise Woodward.

      Scheck and Neufield wanted to apply the still relatively new science of DNA profiling as its inventor, Professor Alex Jeffreys, originally envisaged – as proof of innocence. The assumption among the public and prosecutors of the world had quickly become that DNA evidence was a failsafe tool for securing convictions.

      The first raft of cases on the Innocence Project books involved people – almost entirely men – whose convictions predated the arrival of DNA profiling.

      But in their rather austere offices downtown on New York City's 5th Avenue, the banks of filing cabinets contain hundreds more active cases in which available DNA evidence was ignored, or wrongly analysed. Exoneree number 245 is likely to be one Ernest Sonnier, who was freed on bond in August after 23 years in Texas prisons for a rape he didn't commit. DNA testing eventually proved Sonnier's innocence of the attack on Christmas Eve 1985 and implicated two other men.

      His conviction had preceded the invention of DNA profiling and had been based on identification from photographs by the victim and by evidence from the scientist who examined blood-group evidence and who gave testimony that implicated Sonnier, even though his own written report tended to exclude him as the assailant.

      Stephen Saloom, policy director of the project, says misidentification is a factor in a high proportion of wrongful convictions and in particular rape and sexual assault cases.

      Although all participants in the criminal justice process agree that eye- witness testimony is the least reliable evidence, it remains so often the clinching moment in the theatre of a trial. A woman who was undoubtedly raped points to the accused in the dock and says it was him. How difficult it must be for a jury not to convict. But in dozens of the Innocence Project cases, she was wrong. Honest, but wrong.

      Misidentification is most common when the victim and accused are from different races. In the project's most recent newsletter, Saloom lists the other common causes of wrongful conviction.

      They include inadequate forensic scientific analysis. It is extraordinary to discover that, in the land of CSI, there are no basic general standards of validation for forensic examiners. The threshold in some counties is very low. In a number of wrongful conviction cases, forensic scientists have actively engaged in misconduct.

      About a third of cases involved false confessions by young or mentally suggestible accused. Audio and DVD recording of police interviews is required throughout Scotland but is still patchy across the US.

      About 16 per cent of cases involved "snitch testimony", in which other prisoners – and sometimes the actual perpetrator – had given statements that incriminated the accused in return for deals, special treatment or the dropping of charges.

      In the meantime, how have the 244 exonerees fared after their campaign for release has at last succeeded and the prison doors have closed behind them? "Mixed," say Angela Amel and Karen Wolff, the two- person social work team charged with easing the transition back to life outside.

      "There is very little in the way of support services for any ex- prisoner on release in most states," says Wolff. "Bizarrely, if you are released because you turned out to have been wrongly imprisoned then you may not be eligible for what little there is. That will be linked to parole conditions and our guys aren't on parole."

      Wolff is a lawyer turned social worker. Amel is a career social worker, previously employed on a youth homelessness project in New York City. "There were more 'f*** yous' than 'thank yous' in that job compared to this," she says. "I guess our guys had to be perseverers in jail to stick with their campaign for release for year after year.

      So they understand they have to persevere again when they get out, usually with just the clothes they stand up in."

      More than half the American states have no system of compensation for wrongful convictions. The others grind extremely slowly. "An exoneree needs support the day he gets out," says Wolff. "Three years later is too late."

      Their first task is to give the exoneree an identity. "With no bank account or driving licence or credit record for 20 years, they are invisible to day-to-day society."

      The Innocence Project now boasts a panel of celebrity supporters, and prolific author John Grisham is on the board of directors. His "faction", The Innocent Man, told the story from wrongful conviction to derelict death of exoneree No 59, Ron Williamson.

      Optimists might have hoped the project would be beginning to run out of cases to investigate after 17 years.

      Alas not, according to Scheck. "When we founded the project, our intention was to exonerate as many innocent people from prison as possible, identify the causes of those wrongful convictions, and use them to reform the criminal justice system.

      "DNA exonerations are just the tip of the iceberg of issues within our system. Over the past two decades, the exonerations we have secured have led to sweeping reforms in how line-ups and interrogations are conducted, how evidence is collected, and how our system of justice handles claims of innocence.

      "We still have a great deal of work to do, but we've made more progress already than anyone thought possible."

      Better late than never, DNA lets innocent people reclaim liberty

      Dallas inmate set to be freed after buried evidence found

      October 7, 2009
      The Dallas Morning News

      Dallas County jurors who sent Richard Miles to prison for 40 years never knew another man had been implicated in the same shooting incident.

      It took 14 years and detective work by a prisoner advocacy group to unearth reports in police files that suggested others could have committed the murder and attempted murder that sent Miles to prison.

      That discovery is set to get Miles released on Monday.

      Dallas County prosecutors have agreed to dismiss his 1995 convictions because police failed to turn over exculpatory evidence.

      State District Judge Andy Chatham is expected to release Miles on bond pending a final decision from the Texas Court of Criminal Appeals.

      Miles' defense attorney, Cheryl Wattley, said she was optimistic he would not face a second trial.

      The claim that Miles, 34, is innocent is still being investigated by the DA's office.

      "We have serious questions as to whether he was convicted of a crime that was committed by someone else," said Mike Ware, who oversees the DA's conviction integrity unit.

      Miles was convicted in the May 1994 shootings of Deandre Williams and Robert Ray Johnson Jr. near a gas station in the Bachman Lake area.

      Both men were shot multiple times while sitting in a car. Williams died. Johnson lived but was permanently disabled.

      If Miles is exonerated, he would be the second man District Attorney Craig Watkins has agreed was wrongly convicted in cases that did not involve DNA evidence.

      Miles would be at least the sixth Dallas County inmate in the last two years to have his conviction voided because exculpatory evidence was not disclosed.

      Miles said Wednesday in a jailhouse interview that he was easy pickings for police and prosecutors. He was on probation for drug possession.

      "At 3 o'clock in the morning, I'm walking home and I was the only one there," said Miles.

      Miles said he had run away from home at age 18 before finishing high school. His father was a minister and his mother was a choir director.

      He was estranged from his parents at the time of his arrest. But his time in prison brought them closer together, Miles said. His father died in May and Miles said he calls his mother every night.

      Dallas police arrested Miles about 20 minutes after the shooting while he walked along Lemmon Avenue. Miles, then 19, told police that he was going to a friend's house to spend the night.

      A witness to the shooting, Marcus Thurmond, identified Miles as the gunman after he saw police remove the handcuffed man from a patrol car. He also selected Miles' picture from a photographic lineup about an hour later.

      Miles was the only man in the lineup wearing a white tank top, clothing that several witnesses ascribed to the gunman. Witnesses also said the shooter held the gun in his right hand and wore shorts.

      Miles is left-handed and was wearing long jeans.

      "Richard Miles was in the wrong place at the wrong time wearing the wrong colored tank top," said Jim McCloskey, president of Centurion Ministries, which has been reinvestigating the case.

      Six other witnesses, including the surviving victim, made no identification.

      Thurmond's identification was the key state's evidence in Miles' trial in August 1995. The lead detective, Billy Hooker, testified that he had no suspects other than Miles.

      Hooker, who retired before the trial, could not be reached Wednesday.

      The trial prosecutor, Tom D'Amore, who is now a defense attorney, did not return calls.

      Miles presented an alibi defense. Two friends testified that he spent the hours before the shooting in south Oak Cliff and was headed home.

      Ed Gray, Miles' court-appointed trial attorney, said he suspected that police had not been forthcoming. "I knew they were hiding something," he said. "But it was like, where do you dig when everybody denies it."

      Gray said he never knew about an anonymous tip that police received in May 1995. A woman said her former boyfriend had admitted the crime to her and showed her the 9 mm pistol he said he had fired.

      The report identified the alleged perpetrator as a 24-year-old drug dealer. Records show he had a criminal record for gun possession and assault. The Dallas Morning News is not publishing his name because he has not been charged with the crime.

      The report remained buried until Joan Jennings, a case screener for Centurion Ministries, found a copy amid the contents of the police case file she received under an open records request.

      Miles said that he first saw the report about the anonymous call in October 2007. He said that he immediately knew the withheld information would someday win his freedom.

      "You're not supposed to cry in the penitentiary, " Miles said. "I cried because I knew this was going to be my freedom."

      Jennings also found a second police report that showed the victims had been involved in an altercation with another man five days before the shooting. That report was also withheld from Miles' defense.

      Neither report was found in prosecution files in the case, bolstering the conclusion that they were never shown to the defense as required by law.

      Centurion learned about the Miles case from Joyce Ann Brown, a Dallas woman that the organization helped to free.

      McCloskey said he had never found a document that so clearly proved that a conviction had been obtained illegally.

      "It's just manna from heaven," he said.

      Dallas inmate set to be freed after buried evidence found

      DNA proves guilt of Dallas man claiming innocence

      © 2009 The Associated Press
      Oct. 1, 2009

      DALLAS — DNA testing has confirmed the guilt of a Texas man who had claimed that he was wrongly convicted.

      The Dallas County District Attorney's office announced Thursday that DNA testing showed Timothy Hill was guilty of a 1997 sexual assault for which he pleaded guilty to a year later. He received a 20-year sentence.

      Hill filed a motion for post-conviction DNA testing, which was granted in January 2008.

      District Attorney Craig Watkins says Hill has "earned himself a return bus ride to prison," and that he will notify the parole board of Hill's frivolous innocence claim.

      Dallas County leads the nation in DNA exonerations of the wrongly convicted, having seen 21 guilty verdicts set aside since 2001. Most of the county's DNA testing has confirmed the original guilty verdicts.

      DNA proves guilt of Dallas man claiming innocence

      DNA proves guilt of Dallas man claiming innocence

      © 2009 The Associated Press
      Oct. 1, 2009

      DALLAS — DNA testing has confirmed the guilt of a Texas man who had claimed that he was wrongly convicted.

      The Dallas County District Attorney's office announced Thursday that DNA testing showed Timothy Hill was guilty of a 1997 sexual assault for which he pleaded guilty to a year later. He received a 20-year sentence.

      Hill filed a motion for post-conviction DNA testing, which was granted in January 2008.

      District Attorney Craig Watkins says Hill has "earned himself a return bus ride to prison," and that he will notify the parole board of Hill's frivolous innocence claim.

      Dallas County leads the nation in DNA exonerations of the wrongly convicted, having seen 21 guilty verdicts set aside since 2001. Most of the county's DNA testing has confirmed the original guilty verdicts.

      DNA proves guilt of Dallas man claiming innocence

      Mother files lawsuit over son's wrongful conviction

      By: News 8 Austin Staff

      The mother of an innocent man who died in prison has filed a lawsuit against the officers who arrested her son.

      Tim Cole was convicted of raping a Texas State University student in 1985. He was sentenced to life in prison, and died there in 1999.

      Cole served 13 years behind bars, despite another inmate's confession to committing the crime.

      In 2008, DNA evidence proved Cole's innocence. His mother filed a lawsuit against four Lubbock police officers and one Texas State police officer who were involved in her son's arrest.

      Mother files lawsuit over son's wrongful conviction

      Exonerated man fights $1 million payout to lawyer

      Posted Wednesday, Sep. 23, 2009

      A man freed from prison by DNA evidence has asked a judge to stop his former lawyer from taking more than $1 million in fees out of his expected $4 million in state compensation.

      Lawyers for Steven C. Phillips, 51, filed a petition in state district court in Dallas asking the judge to declare an agreement with his former lawyer "unconscionable and thus unenforceable."

      That contract with his former lawyer obligated Phillips to give up one-fourth of his award from the state for the 24 years he spent incarcerated for a string of sexual assaults the courts now say he did not commit.

      "I’ve got kids and grandkids out here," Phillips told the Star- Telegram. "That’s what I’m fighting for now. I’ve seen a lot of unfairness in my life. If now I get a chance to stand up against some of that unfairness, well I’m going to."

      Phillips’ previous attorney, Kevin Glasheen, said he and his firm worked on behalf of Phillips and nearly a dozen other exonerees to win increased payments from the state in exchange for a cut of the proceeds. He said his firm worked diligently to increase the payments by steering a new bill through the Legislature.

      The law increased the compensation for exonerees from $50,000 to $80,000 for each year they spent in prison. The law also gives exonerees monthly annuities as long as they do not get in legal trouble.

      "Our law firm has spent thousands of dollars and hundreds of hours of work for this client," Glasheen said. "Steven Phillips would have recovered $1.25 million and he will now recover more that $4 million.

      We took a tremendous amount of effort and a tremendous amount of money getting this done."

      But Randy Turner, who now represents Phillips, says $1 million is way too much.

      Phillips could have received more than $1 million by simply filling out a one-page form and sending it to the state comptroller’s office, Turner said.

      "In my opinion, the fee this lawyer is trying to charge is obscene," Turner said.

      Phillips said he bears no ill will against Glasheen and his firm.

      But he said there is a big difference in the deal he was presented before the law was enacted and what he will actually receive.

      Proponents of the legislation originally asked for free healthcare and $250,000 to be paid to exonerees for each year they spent in prison.

      "All that was bargained away," Phillips said.

      Glasheen said Phillips never had to accept the state’s money. The firm would have been happy to sue on his behalf if what was being offered was not enough.

      Glasheen said his firm intends to collect all of what it is owed, in addition to being compensated for the cost of defending its contract.

      Another lawsuit is in the offing, Glasheen said.

      "Phillips stands to be out of more than $1 million," Glasheen said. "Perhaps quite a bit more."

      In my opinion, the fee this lawyer is trying to charge is obscene."
      Randy Turner, Steven C. Phillips’ attorney.

      Exonerated man fights $1 million payout to lawyer


      Making forensic science scientific

      Establishing national forensic science standards is crucial when evidence determines life or death.

      September 21, 2009

      With the busiest death chamber in the nation, it was only a matter of time before Texas positioned itself to become the first state to admit that it executed a person who was wrongfully convicted. And now that day is at hand.

      According to a nationally respected fire engineer, the so-called scientific evidence used to convict Cameron Todd Willingham of setting a blaze that killed his three daughters in 1995 was not scientific at all. In his scathing report to the Texas Forensic Science Commission, Craig Beyler found that the arson investigators on the case had a poor understanding of fire dynamics and based their conclusions on erroneous assumptions, sloppy research and a dash of mysticism. For example, one investigator determined that, because the house fire burned "hot and fast," an accelerant such as gasoline had been used to set it. But that theory -- still given credence in some investigatory circles -- is not factual. Gasoline fires are not significantly hotter than those started with wood, Beyler reported.

      Willingham's case is heartbreaking: He lost his children to fire and his wife to divorce, spent 12 years in prison and died still protesting his innocence. But his is not an isolated case. There are thousands of Willinghams in prisons across the country. If not on death row, they are nonetheless serving decades-long or even life sentences after having been convicted on the basis of erroneous scientific conclusions made by poorly trained "experts."

      In 2006, Congress charged the National Academy of Sciences with studying the application of forensic science in the U.S. judicial system. Its findings, released last year, are grim. Almost every branch of forensics but DNA testing -- hair and fiber analysis, arson investigations, comparisons of bite marks -- lacks the extensive scientific research and established standards to be used in court conclusively.

      Consider: Last year, the Innocence Project, a New York-based public policy and litigation organization, helped exonerate Kennedy Brewer, a Mississippi man who had been convicted in 1992 of raping and killing a 3-year-old girl. DNA testing was not available at the time, and the primary evidence against him was that bite marks on the child's body matched his teeth. Examination of the marks by national forensics experts determined that they were not even made by a human mouth: Her body had been dumped in a pond and insects had attacked it. Subsequent DNA testing also excluded Brewer as the rapist.

      In February, the science academy issued a report calling for Congress to create a national institute of forensic science, and there is more than enough evidence that one is desperately needed. As an independent agency, not part of the Justice Department, it would be charged with conducting research, setting national standards for forensic disciplines and enforcing those standards. Right now, standards vary wildly. An expert in San Diego, for example, might testify that a fiber is similar to one found at a crime scene, while an expert in San Bernardino might testify that a match is impossible to determine.

      Advances in forensics have revolutionized the judicial system, aiding both prosecutors and defense attorneys, exonerating the innocent and confirming the guilty in ways that were impossible just a generation ago. The patchwork state of forensic science should not become an excuse to shy away from its use; rather, the nation should invest in the rigorous research required to standardize techniques and application.

      The Senate Judiciary Committee held hearings on the science academy's recommendations this month, and it is to be hoped that the end result is a national forensics institute. The fate of thousands hangs on the correct analysis of a thread, a hair, the fibers of a rug. We can do better by them, even if it's too late for Willingham.

      Copyright © 2009, The Los Angeles Times

      Making forensic science scientific

      Texas group derides scent IDs as junk science

      Associated Press
      Sept. 18, 2009

      DALLAS — Texas advocates for the wrongly convicted are going after a sheriff's deputy who says his trained dogs have sniffed out bad guys in more than 2,000 scent identification lineups.

      The Innocence Project of Texas says it will release a report next week that exposes scent identification as junk science that's led to an untold number of wrongful convictions. The group argues that scent lineups should be inadmissible in court, and it dismisses what Fort Bend County Sheriff's Deputy Keith Pikett does as “dog whispering.”

      Pikett also faces two federal lawsuits from men implicated in the dog handler's scent lineups. Charges were later dropped in both cases.

      Pikett's attorney said his client believe the scent IDs are accurate.

      Texas group derides scent IDs as junk science

      Capital Murder Suspect Exonerated by DNA Speaks Out
      Bruce Triplett is Asking Why the Murder Charge Can’t Be Removed From His Record

      Andrea Nguyen
      September 16, 2009

      50 year-old Bruce Triplett says his life has been turned upside down when he was wrongfully charged with capital murder.

      "It's like a false accusation remaining for the rest of my life for no reason," said Triplett. "I'm unemployable because my name has been slandered."

      Triplett spent the last three months in jail, only to be released last Friday when the Harris County District Attorney dismissed his capital murder charge because of insufficient DNA evidence.

      Police accused Triplett of fatally stabbing, beating, and robbing 66 year-old Elizabeth Williams inside her Humble home back in March. He had worked for the victim and her boyfriend has a handy man. In June he was arrested at a motel and had his name and faced plastered all over the news.

      "They dubbed me the handy man killer or something and it shocked me... It shocked me a lot."

      He called upon community activist Quanell X to help clear his name.

      "He's still suffering and still being tried for a crime he did not commit," said Quanell X. "More needs to be done in the legislative body as well as the district attorney's office to help innocent people get their arrest record expunged especially when science vindicated them."

      But Triplett won't be able to remove the capital murder charge from his record, because the law states a charge cannot be expunged if there's a felony conviction within five years prior, which Triplett does have for crack possession.

      "I think it's really unfair, when I have already been exonerated from the criminal act itself," said Triplett.

      Copyright © 2009, KIAH-TV

      Capital Murder Suspect Exonerated by DNA Speaks Out

      Patricia Moore: A Continuing Forensics Scandal in Texas

      Radley Balko
      September 15, 2009

      In the late 1990s, Harris County, Texas, medical examiner Patricia Moore was repeatedly reprimanded by her superiors for pro-prosecution bias. Yet she was still able to keep her position doing official autopsies for the county until 2002.

      In 2004, a statistical analysis showed Moore diagnosed shaken baby syndrome (already a controversial diagnosis) in infant deaths at a rate several times higher than the national average. Roger Koppl and I noted her case in recommending statistical analysis as one way of checking the integrity of state forensic specialists.

      One woman convicted of killing her own child because of Moore's testimony was freed in 2005 after serving six years in prison.

      Another woman was cleared in 2004 after being accused because of Moore's autopsy results. In 2001, babysitter Trenda Kemmerer was sentenced to 55 years in prison after being convicted of shaking a baby to death based largely on Moore's testimony. The prosecutor in that case told the Houston Chronicle in 2004 that she had "no concerns" about Moore's work. Even though Moore's diagnosis in that case has since been revised to "undetermined, " and Moore was again reprimanded for her lack of objectivity in the case, Kemmerer remains in prison.

      Now another innocence claim has been filed in a case where Moore diagnosed shaken baby syndrome. According to the Chronicle, the Harris County Medical Examiner's Office has "quietly rewritten" the results of a 1998 autopsy performed by Moore that was used to convict a nurse of killing a child in her care. The revision downgraded Moore's homicide conclusion to an "undetermined" cause of death. So far, the prosecutors in that case are standing by their conviction.

      According to the Chronicle, Moore today works for a private firm that performs official autopsies for six Texas counties.

      A Continuing Forensics Scandal in Texas

      Sept. 4, 2009

      Texas DNA exonerees find prosperity after prison

      Thomas McGowan's journey from prison to prosperity is about to culminate in $1.8 million, and he knows just how to spend it: on a house with three bedrooms, stainless steel kitchen appliances and a washer and dryer.

      "I'll let my girlfriend pick out the rest," said McGowan, who was exonerated last year based on DNA evidence after spending nearly 23 years in prison for rape and robbery.

      He and other exonerees in Texas, which leads the nation in freeing the wrongly convicted, soon will become instant millionaires under a new state law that took effect this week.

      Exonerees will get $80,000 for each year they spent behind bars. The compensation also includes lifetime annuity payments that for most of the wrongly convicted are worth between $40,000 and $50,000 a year making it by far the nation's most generous package.

      "I'm nervous and excited," said McGowan,50. "It's something I never had, this amount of money. I didn't have any money period."

      His payday for his imprisonment a time he described as "a nightmare," "hell" and "slavery" should come by mid-November after the state's 45-day processing period.

      Exonerees also receive an array of social services, including job training, tuition credits and access to medical and dental treatment. Though 27 other states have some form of compensation law for the wrongly convicted, none comes close to offering the social services and money Texas provides.

      The annuity payments are especially popular among exonerees, who acknowledge their lack of experience in managing personal finances. A social worker who meets with the exonerees is setting them up with financial advisers and has led discussions alerting them to swindlers.

      The annuities are "a way to guarantee these guys ... payments for life as long as they follow the law," said Kevin Glasheen, a Lubbock attorney representing a dozen exonerees.

      2 who served about 26 years in prison for rape will receive lump sums of about $2 million apiece. Another, Steven Phillips, who spent about 24 years in prison for sexual assault and burglary, will get about $1.9 million.

      The biggest compensation package will likely go to James Woodard, who spent more than 27 years in prison for a 1980 murder that DNA testing later showed he did not commit. He eventually could receive nearly $2.2 million but first needs a writ from the state's Court of Criminal Appeals or a pardon from the governor.

      McGowan and the others are among 38 DNA exonerees in Texas, according to the Innocence Project, a New York legal center that specializes in overturning wrongful convictions. Dallas County alone has 21 cases in which a judge overturned guilty verdicts based on DNA evidence, though prosecutors plan to retry one of those.

      Charles Chatman, who was wrongly convicted of rape, said the money will allow him some peace of mind after more than 26 years in prison.

      "It will bring me some independence," he said. "Other people have had a lot of control over my life."

      Chatman and other exonerees already have begun rebuilding their lives.

      Several plan to start businesses, saying they don't mind working but want to be their own bosses. Others, such as McGowan, don't intend to work and hope to make their money last a lifetime.

      Some exonerees have gotten married and another is about to. Phillips is taking college courses. Chatman became a first-time father at 49.

      "That's something I never thought I'd be able to do," he said. "No amount of money can replace the time we've lost."

      The drumbeat of DNA exonerations caused lawmakers this year to increase the compensation for the wrongly convicted, which had been $50,000 for each year of prison. Glasheen, the attorney, advised his clients to drop their federal civil rights lawsuits and then led the lobbying efforts for the bill.

      Besides the lump sum and the monthly annuity payments, the bill includes 120 hours of paid tuition at a public college. It also gives exonerees an additional $25,000 for each year they spent on parole or as registered sex offenders.

      No other state has such a provision, according to the Innocence Project.

      Exonerees who collected lump sum payments under the old compensation law are ineligible for the new lump sums but will receive the annuities.

      Whether the money will be subject to taxes remains unsettled, Glasheen said.

      The monthly payments are expected to be a lifeline for exonerees such as Wiley Fountain, 53, who received nearly $390,000 in compensation minus federal taxes but squandered it by, as he said, "living large."

      He ended up homeless, spending his nights in a tattered sleeping bag behind a liquor store.

      But after getting help from fellow exonerees and social workers, Fountain now lives in an apartment and soon will have a steady income.

      Fountain's story is a cautionary tale for the other exonerees, who meet monthly and lately have been discussing the baggage that comes with the money.

      Chatman said he's been approached by "family, friends and strangers, too."

      "It takes 2 or 3 seconds before they ask me how much money, or when do I get the money," he said. "Everyone has the perfect business venture for you."

      Though appropriately wary, the exonerees say they are excited about having money in the bank.

      "You're locked up so long and then you get out with nothing," McGowan said. "With this, you might be able to live a normal life, knowing you don't have to worry about being out on the streets."

      (source for both: Associated Press)

      Justice is everybody's business

      The public needs to hold police and prosecutors accountable

      Bill Lueders

      In April 2008 I wrote a web article about an astonishing legal filing in the Ralph Armstrong case. It alleged that a Dane County prosecutor, by then retired, not only failed to investigate a tip that pointed to a wrongful conviction but set out to destroy evidence that might have proven this.

      The article did not take sides. It merely reported what the filing alleged: In the mid-1990s, Dane County prosecutor John Norsetter was contacted by a woman from Texas who said Steve Armstrong had admitted to the 1980 rape and murder of which his brother Ralph was convicted.

      Accompanying the filing were detailed affidavits from two women who described this confession, and their efforts to call attention to it.

      One of them purportedly spoke to Norsetter, Ralph Armstrong's original prosecutor.

      Norsetter failed to pass on this information and in 2006 ordered testing that destroyed what remained of a DNA sample, in violation of an existing court order.

      Steve Armstrong died in 2005, the same year that the state Supreme Court overturned Ralph Armstrong's conviction on other grounds. He was awaiting retrial when the revelations about his brother came to light.

      My article promoted an outraged reaction — but not the sort you might expect.

      "Sure we've had our share of mistaken convictions and overzealous prosecution in Dane County, but this is one [case] where people need to tread carefully," wrote one poster on TheDailyPage.com Forum. "What I see is Leuders [real accuracy buff here] being used by Armstrong's defense attorneys in a PR campaign to make Armstrong look like a victim of a corrupt DA.... Shame on you Leuders and shame on Isthmus." Other respondents voiced similar criticisms.

      In late July, Reserve Judge Robert Kinney, having heard the allegations against Norsetter, as well as a vigorous defense of his actions by the state, agreed that "a series of conscious decisions" had tainted the conviction beyond redemption. He dismissed the charges, a decision the DA's office has decided not to appeal.

      Ralph Armstrong, who has always maintained his innocence (even though it's meant a longer sentence), is on his way to becoming a free man, due to prosecutorial actions Isthmus was skewered for even mentioning.

      I tell this story because it points to a larger issue, one that ought to concern the entire community.

      Ordinary citizens and even political leaders rarely challenge the criminal justice system, no matter how often we're reminded of its fallibility. Even folks who flock to public meetings on other local issues sit on their hands when it comes to prosecutors and police.

      It's a real problem.

      Already, we give these people vast powers — to arrest, to prosecute, to overlook transgression, to deprive of liberty — and immunize them from most lawsuits when they screw up. And then, on top of that, we spare them the bother of having to explain themselves. Indeed, the most common public reaction to allegations of injustice is to reflexively defend the system, as though it were too fragile to withstand scrutiny.

      In announcing that it was not appealing Judge Kinney's decision, the Dane County District Attorney's Office issued a statement, which read in part:

      "[The] record demonstrates that prosecuting attorneys and their colleagues in the Madison Police Department pursued this case in good faith at every stage of the process, and that any errors that occurred during the course of the investigation and prosecution were the product of innocent mistake or oversight."

      That settles that. Thanks.

      Except, as Columbo might say, for one little thing: Norsetter heard from a woman who said Steve Armstrong had credibly confessed, providing explicit details. He later ordered a DNA test that could not distinguish between brothers but used up the sample.

      What makes the system so certain this was an innocent mistake?

      Even if it were, that doesn't eliminate the need for answers and accountability. Where are the editorials from Neil Heinen and the dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?

      Because the justice system always gets a pass. We snooze, we lose.

      A decade ago I wrote several articles about a 15-year-old girl who was charged with a crime for slightly changing her account of a sexual assault. The person she accused was convicted of a crime. So was the girl's father, for calling her a slut and beating her up after the DA's charges were filed.

      Dane County Judge Maryann Sumi dismissed the charge against the girl and chided the DA's office for bringing it. Then it was up to the community to respond. So far as I know, only one person did. Madison resident Moria Cue circulated a petition expressing outrage. She ultimately forced a high-level meeting with the DA's office, and I believe made it less likely that future rape victims will be treated this way.

      We need police and prosecutors, and no community has more honorable people at the helm than Madison Police Chief Noble Wray and Dane County DA Brian Blanchard. But we also need citizens like Moria Cue, looking over their shoulders, asking for explanations.

      Justice is everybody's business

      Op-Ed Columnist

      Innocent but Dead

      Published: September 1, 2009

      There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

      In other words, it was an accident. No crime had occurred.

      Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

      It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.

      The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

      Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

      There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.

      They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?

      With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

      Willingham was arrested and charged with capital murder.

      When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

      And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

      The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

      He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

      The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

      Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

      The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.”

      He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

      Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said.

      A version of this article appeared in print on September 1, 2009, on page A29 of the New York edition.

      Innocent but Dead


      Texas Justice: Where wrongful convictions are the norm

      There's growing evidence that Texas executed an innocent man in 2004.

      A nationally-known fire expert told a Texas state commission on forensics last week that the arson investigations that put two Texas men on death row were poorly conducted and the forensic evidence couldn't be supported by science, reported the Dallas Morning News.

      One of the cases now in question is that of Cameron Todd Willingham, who was executed in February 2004 for setting his house on fire and killing his 2-year-old daughter and 1-year-old twins. According to the study, Texas fire investigators had no basis to rule that the house fire was arson, a finding that led to Willingham's murder conviction and execution. Willingham always maintained his innocence, and according to the New York Times, "refused to accept a guilty plea that would have spared his life, and insisted until his last painful breath that he was innocent."

      The Chicago Tribune reported that the re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances. It's also a crucial case for Texas:

      The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

      A Broken System

      Wrongful convictions are familiar territory for Texas, a state that has been in the hot seat for the past decade due to the alarming frequency of exonerations. Texas is the state with the highest number of prisoners found to be innocent following DNA testing, according to the Innocence Project, a national organization working to exonerate wrongfully convicted people.

      Of the 241 inmates that were found and had their convictions overturned as a result of DNA testing since 1989, 38 have been in Texas. Combined these 38 men have spent more than 500 years in prison for crimes that they did not commit.

      Just last month, DNA tests proved the innocence of Ernest Sonnier, a Texas man who was convicted for a 1985 rape, and served 23 years of a life prison sentence before he was released.

      Sonnier was convicted of the crime and sentenced to life in prison largely based on the victim's testimony, even though the forensic evidence gathered from her body and clothes showed that someone with a blood type different from the defendant's had raped her, according the Innocence Project.

      Eyewitness misidentification has played a role in more than 84 percent of all wrongful convictions exposed by DNA in Texas (and at least 40 percent of these eyewitness identifications involved a cross racial identification) , according to the Innocence Project. In Texas, witness misidentification has been a large issue for Dallas County, playing a role in the majority of the county's slew of exonerations.

      Since 2001, 21 people in Dallas County have had convictions overturned after DNA proved their innocence, reported the Associated Press. That's a rate larger than any other county in Texas, and larger in fact than many other states in the U.S.

      Unvalidated or improper forensic science and forensic scientist misconduct has also played a large role in wrongful convictions -- accounting for approximately 50 percent of wrongful convictions later overturned by DNA testing, according to the Innocence Project. It was a combination of witness misidentification and faulty testimony from a Houston Police Department Crime Lab analyst that led to Sonnier's conviction. In fact, Sonnier was the sixth man to be freed by new DNA testing and revelations of faulty work, sloppy procedurals and false testimony by the HPD crime lab.

      As the Innocent Project said in a recent press statement:

      Sonnier's is the latest in a string of cases where DNA testing has proven inmates' innocence after wrongful convictions involving faulty forensics at the HPD Crime Lab. Last year, Innocence Project client Ronnie Taylor was exonerated through DNA testing after serving more than 13 years in prison for a rape he didn't commit. In Taylor's case, a forensic analyst claimed to have conducted testing for the presence of semen on evidence from the crime scene and found none.

      Years later, DNA testing on the exact same spot proved Taylor's innocence - and proved that the testing had either never been done or had been conducted improperly, according to the Innocence Project.

      "For years, Houston has been ground zero in the national epidemic of faulty forensic science," said Innocence Project Co-Director Barry Scheck. "There are still thousands of cases from the Houston Crime Lab that need to be reviewed, and that needs to happen quickly. In many ways, Houston is a symptom of the root problem, which is a lack of national standards and oversight for forensic science."

      Human rights advocates have been pushing the Texas legislature to implement a number of safeguards, some that would protect against faulty forensics and prosecutorial misconduct, and reform interrogation and eyewitness identification procedures. Earlier this year, a bill mandating best practices for both photo and in-person lineups to minimize false identifications died in the Texas legislature. But in May the Texas legislature did succeed in passing the Tim Cole Compensation Act. The bill was named for Timothy Cole, who died in jail before DNA testing revealed that he had been convicted for a rape which he in fact did not commit.

      The Tim Cole Act goes into affect on Sept. 1 and increases lump sum payments to the exonerated from the current $50,000 to $80,000 for each year of imprisonment.

      The Death Penalty

      A Facing South has reported, executions have become a Southern phenomenon in many ways. In fact, the South has performed 80 percent of all executions since 1977, according to the Death Penalty Information Center. In 2008, 95 percent of all executions were in the South.

      More troubling is the fact that almost 50 percent of all executions in 2008 were performed in Texas. Human rights advocates find it troubling that Texas not only leads the nation in executions by a wide margin, but it also leads the nation in wrongful convictions. In 2008 alone, 7 people were executed from Dallas County, a county soaring with wrongful convictions.

      Since 1973, over 130 people have been released from death row with evidence of their innocence, according to the DPIC. Nationally, 17 of the 241 people exonerated so far through DNA have served time on death row.

      The Southern death penalty was a hot topic of news this summer. In Georgia, the high-profile case of Troy Davis got the nation talking about the possibility of a wrongful conviction. As Facing South reported, Davis, who has always maintained his innocence, received a rare ruling from the U.S. Supreme Court in August that would allow him a new hearing. That same week in Texas, Sharon Keller, the presiding judge of the Texas Criminal Court of Appeals, went on trial. She was prosecuted for misconduct after callously refusing to keep her office open beyond 5:00 p.m. to allow lawyers for a death row inmate, Michael Richard, to file a last minute appeal for a stay of execution. Now the nation waits to hear if the charges will be dropped against her, or if she will be reprimanded or removed from office.

      As the New York Times editorial page noted on these two recent high- profile cases:

      Judge Keller's profound lack of appreciation for the seriousness of taking a life -- and the obligations it places on the state -- is similar to the disturbing dissent that Justices Antonin Scalia and Clarence Thomas delivered this week in the Troy Davis case. They suggested there was no constitutional problem with executing a man who could prove he was innocent.

      Willingham and Sonnier are just two of the latest cases that highlight the ongoing problem of wrongful convictions in Texas and across the nation. Tangentially, the cases of Keller and Davis have also shone a light on the deep problems intrinsic in the country's system of capital punishment.

      Before his execution, Willingham told the Associated Press: "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."

      And the question on many people's minds this week: How many more Willingham's exist on Texas' death row?

      Texas Justice: Where wrongful convictions are the norm

      Wrongly convicted to get pay

      By Elliott Blackburn
      September 01, 2009

      Tim Cole won't see a dime of the money lawmakers approved earlier this year in his honor.

      But his mother made sure this morning her son knew about the people it will help.

      Ruby Session, 72, saves visits to her son in the Mt. Olivet cemetery for special occasions these days, she said. The Tim Cole Act, which increases and expands compensation for wrongfully convicted Texas inmates, became law this morning almost 25 years after a Lubbock jury convicted its namesake.

      She was happy the law would help so many of the living exonerated inmates she had met after her son's story came to light last year.

      "I'm just antsy, waiting to go out to the cemetery," Session said Monday. "I'm so happy for them, and they said that they were happy that we stayed the course."

      Legislators last spring increased compensation and expanded payments to include the estates of deceased inmates as part of the law named for the Texas Tech student who died in prison serving a 25-year sentence for a Lubbock rape he did not commit.

      Cole became Texas's first posthumously exonerated inmate in April after two days of hearings in Austin.

      His survivors had not decided Monday whether to seek payments in his name, his youngest brother, Cory Session said.

      But knowing his brother's story helped give more support to other surviving exonerees helped his family, Session said.

      "We're glad that Tim's life has been a blessing to other people's lives, and that's the main thing," Session said.

      The act pays Texas inmates proven to have been wrongfully convicted a lump sum of $80,000 for each year they spent in jail.

      Prisoners who were released, but forced to register as sex offenders because of the wrongful conviction, receive an additional $25,000-a- year lump sum payment for each year they spent on that registry.

      A year later, the men begin receiving an annuity on the same total amount of compensation.

      The program could cost $680,000, according to an estimate given to lawmakers last spring. Exonerees waive their right to sue to receive the compensation.

      Many of the men had begun new businesses and families, said Kevin Glasheen, a Lubbock attorney who represents about a dozen exonerated inmates. Payments would begin later this fall, he said.

      "It's one thing to file an application; it's another to get paid," Glasheen said. "But the clients are excited and they're trying to move on with their lives."

      Ruby Session still had unfinished business for her son. Only a pardon can finish clearing Tim's name for her, she said - Houston Democratic Sen. Rodney Ellis has requested an opinion from the Texas attorney general to look at whether the governor may give a posthumous pardon.

      She hoped the new law would help give the other exonerees similar peace.

      "It will not replace the years lost because a lot of them lost their youth, as did my son, just coming into full manhood," Session said. "That was lost, that could never be replaced. But I'm happy for them, and I just hope and pray that it will give them some sense of relief."

      To comment on this story:

      Wrongly convicted to get pay

      DNA Frees Man from Texas Prison After 23 Years

      Date: August 10, 2009
      By: BlackAmericaWeb.com

      A 46-year-old man walked out of a Houston prison Friday afternoon after spending 23 years behind bars for a sex crime that the evidence suggests he did not commit.

      Ernest Sonnier was convicted of the crime and sentenced to life in prison largely on the strength of the victim’s testimony, even though the forensic evidence gathered from her body and clothes showed that someone with a blood type different from the defendant’s had raped her, lawyers from the Innocence Project in New York told the New York Times.

      “It’s just sloppy science, at best,” said Alba Morales, who represents Sonnier.

      Over the last 18 months, genetic testing of evidence found on the victim’s clothing and at the scene of the attack had yielded no trace of Sonnier, the Harris County district attorney’s office said. Instead, it has implicated two other men. Both are felons and known associates. One is awaiting trial for a different rape.

      In light of the new evidence, Judge Michael McSpadden of Harris County District Court on Friday ordered Sonnier to be released pending further investigation, a first step toward exoneration, which under Texas law can be granted only by the state’s highest criminal court.

      Donna Hawkins, a spokeswoman for the district attorney’s office, said the state was not ready to concede Sonnier’s innocence, though prosecutors acknowledge that the new DNA tests cast strong doubt on the conviction.

      “There is a lot more legwork that needs to be done before we draw any conclusions,” Ms. Hawkins said.

      Sonnier’s case is the latest in a string of faulty convictions linked to the Houston Police Department Crime Laboratory, the center of a long-running scandal over sloppy procedures.

      The crime for which Sonnier was convicted occurred on Christmas Eve in 1985. Two men abducted a woman at a gas station in Alief, Tex., and then repeatedly raped her during a seven-hour drive to San Antonio. She escaped at 4 a.m. Six months later, she picked Sonnier’s picture out of a photo array. Later, in a police lineup and at trial, she identified him as one of the attackers.

      Sonnier and his family have steadfastly maintained his innocence. As he came out of jail, hugged his relatives and tried to come to terms with freedom, he said he was sure more cases like his would come to light. “There are plenty more left in there who are innocent,” he said.

      DNA Frees Man from Texas Prison After 23 Years

      A time for hugs and happiness
      Twenty-three years after going to prison for a crime that DNA now seems to show he didn’t commit, Ernest Sonnier gets the chance to smile again

      Aug. 7, 2009

      Flanked by friends and family outside the Harris County Jail, Ernest Sonnier said that news accounts over the years of innocent men being freed from prison always made him wonder: “When's my turn coming?”

      His turn came Friday when state District Judge Michael McSpadden released him on his own recognizance after 23 years behind bars for a crime that, based on retested DNA, attorneys say he did not commit.

      During the brief hearing, the Harris County District Attorney's Office did not oppose Sonnier's release pending further investigation. But he has yet to be exonerated.

      More than 20 friends, relatives and well-wishers waited in the lobby of the jail for hours as Sonnier's paperwork was processed. When the elevator doors finally opened, a cheer went up and he found himself being hugged from every direction.

      “I feel good. I'm glad I'm home, with family,” Sonnier said, his eyes wide at his reception amid the crowd and surrounded by reporters.

      “It's been hard for me,” the 46-year-old said of his years in prison.

      “There's no way I can make it up. It's lost.”

      He pointed out his nieces and nephews in the crowd.

      “When I left, they were little girls and boys. Now they're grown.”

      Sonnier said he had not slept since Wednesday when Alba Morales, his Innocence Project lawyer, called with the news of his release.

      “When she told me I was clear, I cried the whole time we talked,” he said. “I cried the whole time. I haven't been to sleep yet.”

      Sonnier was sentenced to life in 1986 for aggravated kidnapping in the abduction and rape of an Alief woman. The victim was kidnapped on Christmas Eve and raped by two men as they drove her car to San Antonio.

      Sixth county inmate freed

      DNA testing over the past 18 months implicated two convicted felons as the actual perpetrators of the 1985 crime, Morales said. The Innocence Project conducted nine rounds of DNA testing since March 2008.

      “Faulty forensics by the Houston Police Department criminal laboratory, as well as a bad eyewitness ID — a wrongful, mistaken eyewitness identification — put him away. Twenty-three years are gone,” Morales said.

      Sonnier is the sixth Harris County man to be freed by new DNA testing and revelations of faulty work and testimony by the HPD crime lab.

      Problems in four divisions of the crime lab — DNA, serology, ballistics and toxicology — prompted the city to hire a former U.S. Justice Department official, Michael Bromwich, to investigate the facility in 2005. The investigation and report, which cost $5.3 million, exposed possible problems with numerous cases and prompted calls for the creation of an independent regional crime lab.

      Supervised release

      Earlier this year, a bill mandating best practices for both photo and in-person lineups to minimize false identifications died in the Texas Legislature.

      Standing behind Sonnier at the jail, his mother said the years apart were hard.

      “It wasn't easy because I knew he was home with me when this happened,” said Altha Davis. “You hear so much about what happens in prison, I just prayed that he would make it home.”

      Sonnier is prohibited from contacting the new suspects or the victim.

      His supervised release means he must not use any drugs or alcohol and will be monitored by GPS, which will be paid for by the district attorney's office.

      ‘Plenty more' innocent

      Before his 1986 conviction, Sonnier had been convicted of four robberies and the burglary of a motor vehicle, Harris County DA's spokeswoman Donna Hawkins said.

      After Sonnier walked out of the jail, free for the first time since his arrest, he acknowledged that the criminal justice system failed him and said there are other innocent people in prison.

      “It was there,” he said. “The evidence was on the table that I wasn't the guy. And they failed to show justice.”

      He added, “There's plenty more who are in there who are innocent. I want to be an example. All I can tell them is: Keep fighting.”

      Asked how angry he was, Sonnier shook his head. “I used to be mad, but the past is the past.”


      Inmates who were released after errors were found with evidence presented by the Houston Police Department crime lab:

      • Gary Alvin Richard: Released on April 30 after serving more than 22 years of a life sentence on kidnapping, rape and robbery convictions. Forensic tests confirmed that incriminating testimony a crime lab supervisor offered at Richard's trial was false. Although Richard has been released, the case against him remains.

      • Ricardo Rachell: Released in December 2008 after serving nearly six years of a 40-year prison term in a sexual assault conviction. Cleared by DNA evidence collected in 2002, but not examined until last year. In January, the Texas Court of Criminal Appeals overturned his conviction, clearing the way for him to apply for a pardon on the basis of actual innocence.

      • Ronald Gene Taylor: Released in October 2007 after serving 14 years of a 60-year-sentence on a rape conviction. DNA testing on the rape victim's bed sheet revealed another man with a history of sexual violence committed the crime.

      • George Rodriguez: Released in 2004 after serving 17 years in prison for a kidnapping and rape conviction. In June 2009 , a federal jury awarded Rodriguez $5 million, finding the city should pay for its “deliberate indifference” to problems at the crime lab whose false evidence secured the conviction.

      • Josiah Sutton: Released in March 2003 after serving 4 • ½ • years of a 25-year sentence for a rape conviction. DNA tests discredited those performed by the crime lab. Gov. Rick Perry granted him a pardon on the basis of innocence, rather than a lesser “full” pardon, in May 2004.


      A time for hugs and happiness


      What's the matter with Texas DAs?

      Aug. 6, 2009

      When Lubbock police sought Baytown resident Michele Mallin's help in identifying the man who raped her 25 years ago when she was a 20-year- old Texas Tech student, they violated virtually every safeguard now recommended to minimize false identifications.

      • • Arriving in the lobby of her dormitory room, a circumstance suggesting a breakthrough in their investigation, they showed her a layout of six photos, rather than one at a time.

      Studies indicate that victims given an array from which to pick at least subconsciously tend to assume the perpetrator is among them unless clearly warned otherwise. She wasn't.

      Nor was she told that the investigation would continue even if she didn't identify anyone at that time.

      • • Five of the photos were black-and-white mug shots complete with prisoner numbers. The sixth, the man she identified, was a color Polaroid taken at his home. Having one photo stand out has been found to strongly affect the victim's judgement.

      • • One of the officers was involved in the investigation and knew which person (the one shown in color) was suspected. Experts say having the photos shown by someone who believes he knows the culprit tends to lead, consciously or not, to cues being communicated to the victim.

      • • According to court records, Mallin told the officers, “I think that is him.”

      They should have documented that response. Instead one asked her if she was “positive.” Feeling encouraged, she said she was, and the officer wrote “That's him,” next to the suspect. The police report simply said she “positively identified” the suspect.

      In addition, as I noted in Wednesday's column, the police did not tell Mallin that the man she identified, Timothy Cole, was severely asthmatic and didn't smoke. Yet the one thing she was actually positive about, and numerous cigarette butts in her normally smoke- free car corroborated, was that her attacker was a chain smoker.

      But all those mistakes in witness identification were then and not now, right? ... I wish.

      When an Austin district judge held a hearing in February that laid out all the mistakes and confirmed that the result was that Timothy Cole died an innocent man in prison, Lubbock County District Attorney Matthew Powell didn't bother to attend, though he was in Austin on other business.

      And when the Austin American-Statesman asked who was to blame for the wrongful conviction, he said, “Where it went wrong is you had a victim who picked him out of a lineup.”

      Asked if he studied the case to see if lessons could be learned, he said, “I didn't think it was necessary. This is the greatest system in the world, but it is a system built on people and people make mistakes.”

      The biggest mistake in this case came in 1995, four years before Timothy Cole died in prison, when Larry Wayne Johnson wrote to Murray's predecessor as Lubbock DA. With the statute of limitations passed, Johnson confessed that he had raped Mallin and Cole was innocent. The letter was discarded.

      Johnson wrote other officials with similar results. Finally two years ago, Cole's family learned of Johnson's efforts and the Innocence Project of Texas got involved.

      To his credit, DA Powell sent his investigators to interview Johnson in prison (for the rape of two subsequent victims) and get a blood sample. A DNA test confirmed he raped Mallin.

      I am astounded that Powell isn't, after being involved in this case, pressuring law enforcement officials in Lubbock to adopt the best investigative practices. Instead, he blames the mistake on the victim, a traumatized 20-year-old who wanted to help the police but instead was cajoled by them into naming the wrong man.

      Worse, Powell is very much in the mainstream of Texas DAs.

      I know they don't want to convict innocent people while the guilty continue to rape, yet DNA tests have repeatedly cleared men convicted by false victim IDs.

      So why aren't district attorneys demanding that police use only the best techniques for finding the truth?


      What's the matter with Texas DAs?

      Crime and exoneration
      Hidden evidence

      Jul 30th 2009
      NEW YORK

      From The Economist print edition

      DNA is changing the way America fights crime, not its policies towards convicts

      A JUDGE can tell prospective jurors that in a criminal trial, unlike an episode of “CSI: Crime Scene Investigation”, scientific evidence is not necessary to secure a conviction, an appeals court in Baltimore ruled on July 7th. Quite right, too. The evidence submitted in real courts is often not as cut-and-dried as it seems on television. Yet the use of DNA to secure convictions is growing fast.

      The people not benefiting from this are those who may have been wrongfully convicted before DNA was routinely examined, and who are being denied access to evidence that could set them free.

      Much is being made of a recent Supreme Court ruling that William Osborne, a prisoner in Alaska, has no constitutional right to DNA testing to prove his innocence of the 1994 rape for which he was convicted and jailed. Nina Morrison of the Innocence Project, a New York-based non-profit legal outfit that represents Mr Osborne, fears the decision could lead to many innocent prisoners remaining in jail— or even facing execution.

      Since Congress passed the DNA Fingerprint Act in 2005, federal authorities have been collecting DNA samples from everyone they arrest or detain. The FBI’s national DNA database (NDIS) gets more than 1m DNA profiles a year. By last May CODIS, an FBI index that compares forensic evidence at local, state and national level, resulted in 90,900 “cold hits”, where biological evidence from an unsolved crime matches a profile in the database. This has led to many arrests and convictions.

      But three states (Alaska, Massachusetts and Oklahoma) give prisoners no statutory rights to a DNA test, even though such a test might exonerate them. Though exonerations have occurred in Massachusetts and Oklahoma by way of appeals from defence attorneys, access to testing is still hard to get. Many other states allow testing only in limited circumstances. Kentucky, for instance, restricts its DNA testing to death-row inmates. Someone serving a life sentence is not eligible.

      Texas and Illinois, whose laws do permit simple post-conviction access to testing, boast the highest number of convictions that have been overturned thanks to DNA evidence: 38 and 29 respectively, says the Innocence Project. Texas, which accounts for half of all executions in America, passed a bill in May establishing the Timothy Cole Advisory Panel on Wrongful Convictions, named after a man posthumously exonerated through DNA testing. A team set up to study the causes of wrongful convictions and to devise ways of preventing them is to report to the governor no later than 2011.

      Prosecutors can use their state’s statutes of limitations (which set time limits for the introduction of new evidence after sentencing) to decline prisoners’ requests for DNA testing. They argue that cases could be strung along endlessly and expensively by frivolous appeals if there are no such limits. Yet this seems a weak argument when it comes to DNA, which might establish innocence or guilt without much scope for prolonged debate.

      Many prisoners might be cleared were DNA testing more routinely available. The American legal system encourages plea bargains, whereby accused people accept a much lower sentence than would be imposed if they were found guilty. In the absence of the DNA evidence that would clear them, even innocent people may conclude that a plea bargain is the safer option. More than 90% of convictions in the United States result from such bargains.

      Steven Benjamin of the National Association of Criminal Defence Lawyers contends that the restrictions on post-conviction testing amount to a fear of the truth. He may be right.

      DNA is changing the way America fights crime, not its policies towards convicts

      Ellis and Session: Why governor should pardon Tim Cole

      July 17, 2009

      Imagine if your son or brother was incarcerated for a sexual assault you know he couldn't commit. You tell everyone, "He's innocent!" but he languishes in prison for over a decade.

      Now imagine that he dies there before his innocence can be proven. He will never raise a family. You will never be able to hold him again or love the children he might have brought into this world.

      Finally, how would you feel when DNA finally proves his innocence, the real criminal is identified, and, despite all of this overwhelming evidence, the governor says, "Sorry, I can't pardon him because an attorney general opinion from the 1960s says I can't."

      Unfortunately, this is not a hypothetical story of injustice. This is the real life saga of Timothy Brian Cole and his family's quest to clear his name.

      Tim was branded the "Tech rapist" in 1986 and sentenced to 25 years in prison. He professed his innocence until he died in prison of an asthma attack in 1999. In May 2008, DNA evidence revealed he was innocent, and a man named Jerry Johnson was guilty.

      In February 2009, the Texas House and Senate passed resolutions honoring Tim Cole. In April, Judge Charles Baird exonerated Tim Cole in a "court of inquiry," writing: "The evidence is crystal clear that he [Tim Cole] died in prison an innocent man, and the court finds to a 100 percent moral, legal, and factual certainty that he did not commit the crime for which he was convicted."

      Gov. Rick Perry met with the Sessions family and said, "Tim Cole was a veteran and college student pursuing the American dream, yet he died in prison in a Texas nightmare of injustice."

      In May, Perry signed the Tim Cole Act, which, in part, authorized compensation for family members of the posthumously pardoned. While we are grateful he signed this important legislation, he insists he cannot pardon Tim Cole without a constitutional amendment. Why? Because a 1965 attorney general opinion said that a pardon must be "accepted" by the person to be valid.

      While this may have been the case law a long time ago, it has since changed throughout the country. Nowhere in the Texas constitution does it say that a governor cannot issue a posthumous pardon.

      Attempts were made in the legislature to explicitly give the governor the constitutional authority he wanted. One bill failed to pass; another was introduced for the special session but the governor didn't add it to "the call" and it died as a result.

      We recently submitted a request for an attorney general opinion on the matter. During our legal research, we discovered that many other states, the federal government and England have all granted pardons to deceased individuals.

      Governors in nine states have granted posthumous pardons since 1977. Former Presidents Bill Clinton and George W. Bush have granted posthumous pardons.

      If two presidents, nine state governors and the queen of England can issue posthumous pardons, shouldn't the governor of Texas be able to as well? We hope that Attorney General Greg Abbott will rule on this, so Perry will pardon Tim Cole like he has so many other wrongfully convicted men in the past.

      Then next session we hope the governor will join us in pushing for other reforms to Texas' criminal justice system so that wrongful convictions are prevented and another Tim Cole never has to be pardoned again.

      State Sen. Rodney Ellis represents District 13, which includes parts of Harris and Fort Bend counties. Cory Session is Tim Cole's brother.

      Readers may contact the authors through rodney.ellis@senate.state.tx.us.

      Why governor should pardon Tim Cole

      17 years wrongful imprisonment = $5 million, but who pays?

      July 16, 2009

      We’re going back a few weeks here, so forgive me, but recently (26th June) George Rodriguez was awarded $5 million by a federal jury after spending 17 years in prison for a kidnapping and rape which he did not commit. DNA tests in 2004 led to his exoneration, his being just one of a number of cases in which the findings of the Houston Police Department Crime Lab were discredited.

      A few questions to muse on from this decision –

      1) Is $5 million adequate compensation (or indeed too much) for 17 years spent in prison?

      Mr. Rodriguez’s reaction was that he was grateful for the money but “no money could replace what I lost”. His lawyers had asked the jury to consider awarding $35 million and emphasized the importance of hold the city accountable for the endemic problems at the crime lab.

      Bringing me to my next question –

      2) In a case like this, should such a payment function as a punishment for the institution at fault (in this case HPD) or purely to compensate a man who was wrongly sent to prison for many years of his life?

      Lawyers for the city of Houston argued that argued that Mr. Rodriguez should not be paid anything because his conviction wasn’t the result of a policy problem, but rather the wrongful actions of one man (James Bolding, manager of the crime lab). One of the jury’s findings was that Houston did have an official policy or custom of allowing crime lab personnel to be inadequately trained and supervised. So should money only be paid in cases like this when it can be shown that a wrongful conviction is the result of a rotten system rather than just rotten (or purely incompetent) individuals?

      3) Why won’t the authorities recognize the injustice of this wrongful conviction and if they did how would the city of Houston and Mr. Rodriguez be better off?

      The Texas Court of Criminal Appeals vacated Mr. Rodriguez’s conviction in 2004. Prosecutors agreed not to retry him but have refused to say he was innocent, barring him from receiving a pardon and compensation from the state. Perhaps such an action would have left the city with a smaller bill and Mr. Rodriguez’s name would have been cleared into the bargain.

      The above questions are not just interesting in theory but are also likely to be raised practically in the near future, given that Mr. Rodriguez was one of four men to be released from prison as a consequence of HPD Crime Lab errors and is the first to sue.

      Any thoughts…

      For more info - Click Here.
      (Houston Chronicle story 06/26/09)

      17 years wrongful imprisonment = $5 million, but who pays?

      Jul. 06, 2009

      Texas governor’s inaction in granting posthumous pardon of Timothy Cole is an affront to justice

      The cry for justice for Timothy Cole can be heard from the grave, and yet Gov. Rick Perry turns a deaf ear.

      Cole was the Fort Worth man wrongly convicted of rape in 1985 and sentenced to 25 years in prison. He died there in 1999 before DNA testing proved that he did not commit the crime to which another inmate confessed.

      In posthumously exonerating Cole, District Judge Charles Baird said: "This is the saddest case I’ve seen. . . . I find that Timothy Cole’s reputation was wrongly injured, that his reputation must be restored and that his good name must be vindicated."

      Cole’s family believes that only a full pardon can restore that good name. Perry said he was willing to grant one if legislators passed a bill that gave him the authority to do so. While some argue that the governor doesn’t need that additional authority, lawmakers in this year’s regular session passed such a measure. It, like many others, died during a parliamentary standoff in the session’s last days.

      Perry could have added the posthumous pardon bill to last week’s special session. He refused, despite pleas from Cole’s family and others. Perry’s inaction was added pain to a hurting family and an affront to justice itself.

      Texas governor’s inaction in granting posthumous pardon of Timothy Cole is an affront to justice

      Jury awards Rodriguez $5 million

      Copyright 2009 Houston Chronicle
      June 25, 2009

      A federal jury on Thursday awarded $5 million to a Houston man who spent 17 years in prison for a kidnapping and rape he did not commit, finding the city should pay for its “deliberate indifference” to problems at the crime lab whose false evidence secured the conviction.

      George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

      “Ain’t no amount of money is going to even my scale,” Rodriguez said after hearing the verdict. “I lost my dad and my girls have been through hell. I am grateful, but no money could replace what I lost.”

      A jury of five women and three men deliberated for about two days after hearing testimony from former Mayor Lee P. Brown, who was police chief in 1987, James Bolding, a crime lab manager who testified at Rodriguez’s trial and from Rodriguez himself. Lawyers for Rodriguez had asked jurors to award $35 million to hold the city accountable for the chronic problems at the crime lab.

      “This verdict says what I think we all know to be true about the Houston Police Department crime lab,” said Barry Scheck, one of Rodriguez’s lawyers and a co-founder of the Innocence Project, which helped secure his release from prison. “They convicted innocent men and the city was indifferent.”

      Three other men have been released from prison after the exposure of crime lab errors in their cases. Rodriguez is the first to sue.

      Lawyers for the city, the only defendant in the case, argued that Rodriguez deserved nothing because his conviction resulted from the lie of one analyst and not a problem with policy.

      In reaching its verdict, the jury found Bolding’s testimony played an important role in Rodriguez’s conviction and that the city had an official policy or custom of allowing the crime lab personnel to be inadequately trained and supervised.

      The panel also found, after hours of deliberation and one declaration that it was deadlocked on the issue, that Brown, as the city’s policy maker, showed deliberate indifference to the lack of training and supervision at the crime lab and the chance that someone’s constitutional right to a fair trial could be violated.

      Rodriguez was convicted in the 1987 kidnapping and sexual assault of a 14-year-old girl. Bolding testified at his trial that tests on body fluids from the crime scene eliminated another suspect, Isidro Yanez, but not Rodriguez.

      Years later, after the Innocence Project took the case, DNA tests were performed on a hair from the crime scene. Those tests eliminated Rodriguez as the source of the hair and, instead, pointed to Yanez.

      Further review of Bolding’s testimony also revealed that his conclusions contradicted accepted theory at the time and his own testimony in other court cases.

      A judge ordered Rodriguez’s release from prison in 2004 and prosecutors agreed not to retry him. The Texas Court of Criminal Appeals vacated the conviction, but prosecutors never would say Rodriguez was “actually innocent,” which barred him from receiving a pardon and compensation from the state.

      City Attorney Arturo Michel, whose office defended the city, said officials would take a close look at the trial transcript to review questions of evidence and evaluate how the city would assess the case if it were retried before deciding whether to appeal. “The jury was deadlocked on the issue of whether Lee Brown was deliberately indifferent,” he said. “That meant that they had difficulty coming to a conclusion on the evidence.”

      One juror did tell attorneys for the city that the panel spent the majority of their deliberations discussing whether Brown had shown deliberate indifference. All eight declined to comment to the Chronicle.


      Jury awards Rodriguez $5 million

      Supporters of the Wrongly Convicted to March on State Capitols

      Glenbrook, NV
      June 24, 2009

      Supporters of the wrongly convicted and those committed to criminal justice reform will march on state capitols in 12 states on Saturday

      The state involved are: Alabama, Arkansas, Arizona, California, Colorado, Florida, Idaho, Michigan, New York, North Carolina, South Carolina, Texas.

      About Freedom March 2009: an opportunity to raise united voices for justice. Modern science and technology have shaken the once strong faith many once placed in the accuracy of judgments made by our criminal justice system. Thanks to DNA analysis of biological evidence, hundreds have been exonerated—many after spending years on death row. Research by Seton Hall law professor D. Michael Risinger indicates that 3.3%-5% of those convicted of crimes are factually innocent. Those who value justice demand that the justice system apply the lessons to be learned from the many cases of wrongful conviction, and support policy initiatives that:

      1. Raise the accuracy rate in judgments of guilt and innocence.

      2. Resolve credible post-conviction claims of innocence.

      3. Remedy the tragic impact of wrongful convictions.

      For those who are guilty of crimes, we support enlightened approaches to incarceration that nurture genuine rehabilitation and reintegration of productive citizens whenever possible.


      The United States incarcerates more people than any country in the world, including the far more populous nation of China

      [1] One in 100 Adult Americans is incarcerated in a prison or jail One in 31 Adult Americans is incarcerated, on probation or parole. Incarceration rates heavily concentrated among men, racial and ethnic minorities, and 20-and 30-year olds 1 in 9 Black men 20-34 years old , 1 in 15 Black men 18+, 1 in 36 Hispanic men 18+ Texas leads the nation in verified wrongful convictions.

      To date, 38 people have been exonerated in Texas using DNA.

      Nationally, 133 people have been exonerated from death row.

      [2] Expert estimates of wrongful convictions range from 3% to 12%, based on data from DNA & other exonerations.

      [3] Executed But Possibly Innocent: Of the 8 cases frequently cited as those executed despite strong evidence of innocence, 5 are Texas cases.

      [4] How many innocent people are in prison? No one knows, but experts agree that "any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must be in the thousands, perhaps tens of thousands."

      [5] For more details, visit www.freedommarchusa.org


      [1] Pew Research Center - http://www.pewcenteronthestates.org/ uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf

      [1] http://www.deathpenaltyinfo.org/innocence-and-death-penalty

      [1] Research by Seton Hall law professor D. Michael Risinger and other expert estimates

      [1] http://www.deathpenaltyinfo.org/executed-possibly-innocent

      [1] http://truthinjustice.org/exonerations-in-us.pdf

      John J. Bradley
      Managing Director
      Justice on Trial
      Glenbrook, NV

      Supporters of the Wrongly Convicted to March on State Capitols

      June 21, 2009

      National Freedom March For The Wrongly Convicted

      NEW YORK - An estimated 10% of all prisoners in the U.S. have been wrongfully convicted. According to a recent report released by the Pew Center on the States, the U.S. correctional population -- those in jail, prison, on probation or on parole -- totaled 7.3 million, or 1 in every 31 adults. This means that up to 730,000 people in the correctional population may have been wrongfully convicted. In the last 3 decades 238 Americans have been exonerated with DNA evidence after spending an average of 12 years incarcerated.

      The severity of this problem has begun to be recognized in New York and other states. The New York Bar Association earlier this year released their Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions.

      Also in April, Jonathan Lippman, the chief judge of New York’s Court of Appeals, said he is creating a permanent task force to examine wrongful convictions and recommend ways to minimize them.

      In order to raise public awareness of a national problem that has become a national shame, a National Freedom March for the Wrongfully Convicted is being held simultaneously in many states on June 27th.

      The New York march will be held in New York City on June 27th starting on the Steps of City Hall from 10:00 to 11:00, to follow with a march to Foley Square Park where there will be speakers and informational materials from 11:00 to 2:00.

      Speakers at the March will include Jeffrey Deskovic, Richard Aborn, Colleen Eren and representatives from the Campaign to End the Death Penalty and the ACLU.

      Jeffrey Deskovic served 16 years in prison for a murder he did not commit and is now working to bring about reforms which will help reduce the number of wrongful convictions. Mr. Deskovic’s speech will provide insights into the devastation a wrongful conviction can cause to the innocent and their families as well as the need for systematic reform to help reduce these injustices. Another aspect will be the role that judges play in perpetuating wrongful convictions by putting procedure over innocence, rubber stamp denying appeals, and generally looking for any and every means possible to affirm convictions no matter what the facts are or the quality of the legal arguments which are based upon the fairness of trials.

      Richard Aborn is a candidate for Manhattan district attorney. He was a member of the NYS Bar Association Task Force on Wrongful Convictions and a leader in helping pass a new state law calling for expanded use of DNA to fight crime and quickly exonerate the innocent. He has also long pressed for overturning the draconian Rockefeller Drug Laws, and has been a firm and consistent opponent of the death penalty.

      Colleen Eren is Organizing Director with New Yorkers for Alternatives to the Death Penalty (NYADP) and a doctoral candidate in Sociology at the CUNY Graduate Center. She became involved in the abolitionist movement at the age of 16, after starting a chapter of Amnesty international in her high school. She has served on Amnesty's National Steering Committee for the Program to Abolish the Death Penalty, and has been with NYADP five years. She has taught undergraduate Sociology courses at Hofstra University, Queens College and Hunter College.

      More information on the National Freedom March for the Wrongfully Convicted, Click HERE

      Copyright 2006-2009 The Hudson Valley Press.

      National Freedom March For The Wrongly Convicted

      Innocents Lost

      A Supreme Court decision increases the risk that the wrongly convicted could be kept behind bars.

      June 21, 2009

      A MAJORITY OF the Supreme Court ruled last week that prisoners do not have a constitutional right to post-conviction DNA testing. The decision was based in large part on the assertion that federal judicial intervention was unnecessary because the great majority of state legislatures already had passed laws to give prisoners adequate access to the revolutionary technology. The majority's argument has merit, but the decision in District Attorney's Office v. Osborne was nonetheless wrong.

      The decision sprang from the case of William G. Osborne, who was convicted of the brutal 1993 kidnapping, rape and assault of an Alaska woman. A rudimentary DNA test performed on semen found at the crime scene excluded two suspects but not Mr. Osborne. Mr. Osborne's trial lawyer declined a more advanced DNA test for fear that the results could definitively implicate her client.

      On appeal, Alaskan courts denied Mr. Osborne's request for further DNA testing, concluding that eyewitness accounts and other evidence against him were so strong that DNA tests would likely not be dispositive. A federal appeals court ultimately ruled that Mr. Osborne was entitled to further testing; the Supreme Court by a 5 to 4 majority overturned this decision last week.

      The federal government and 46 states have laws outlining prisoners' rights to DNA testing. Alaska is one of the four states that does not. Yet even some jurisdictions that recognize prisoner rights to testing put strict limits on that access.

      For example, some states allow post-conviction testing only for those on death row; those serving life sentences are excluded from the potentially exonerating benefits of DNA testing. Other states do not allow defendants who declined more advanced DNA tests at trial to seek such testing post- conviction.

      Mr. Osborne is not a sympathetic character. He was released after serving 14 years and after telling a parole board he was guilty of the rape. Not long after his release, he was charged with kidnapping, armed robbery and burglary for a home invasion in which he allegedly duct-taped and pistol-whipped four people.

      It is easy to understand why many prosecutors and judges get fed up with prisoners, especially those convicted of violent crimes, who try to game the system. Yet DNA testing, in the words of Chief Justice John G. Roberts Jr.'s majority opinion, has an "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty."

      Indeed, it has been credited with freeing some 240 innocent people convicted after what appeared to have been fair and thorough proceedings.

      Access to DNA evidence should not be based on the luck of the draw.

      All states should enact laws guaranteeing ample access to DNA testing to prisoners, especially those facing capital punishment or lengthy sentences. The Constitution' s promise of due process demands no less.

      Innocents Lost

      Ex-inmate tells of unjust verdict, family’s hardship

      He testifies in a case that's weighing whether the city of Houston should compensate him for wrongful incarceration in sex assault

      Copyright 2009 Houston Chronicle
      June 19, 2009

      A wrongfully convicted Houston man told jurors Friday of his family’s struggles during his 17 years of incarceration, including his daughters’ physical and sexual abuse and his father’s death just one month before new DNA evidence prompted his release from prison.

      “I have been through a lot of pain,” George Rodriguez, 48, said during more than two hours of tearful testimony in his case to determine whether the city should compensate him for his ordeal.

      “I wish I could have been there for them,” Rodriguez said, overcome with tears, “But I couldn’t.”

      Rodriguez was convicted in the 1987 kidnapping and sexual assault of a 14-year-old girl. At his trial a Houston Police Department crime lab analyst testified that body fluids from the crime scene excluded another suspect, Isidro Yanez, but not Rodriguez.

      Jurors sentenced Rodriguez to 60 years in prison on each count.

      “I did approximately 17 years, five months and seven days,” Rodriguez told jurors.

      DNA tests found that a pubic hair from the crime scene indeed belonged to Yanez and raised questions about the HPD analysts’ conclusions. Rodriguez’s lawyers have argued that the false testimony was allowed because of the city of Houston’s deliberate indifference to chronic problems at the police lab.

      Since 2003, four men have been released from prison after the exposure of flawed HPD crime lab work on their cases.

      In court Friday, Rodriguez, wearing a dark suit and blue tie, spoke haltingly about his time in Texas prisons, where he witnessed violence and felt the threat of gangs. He also talked about his family’s hardship.

      During his incarceration, three of Rodriguez’s daughters bounced between the care of their mother, their grandmother and foster care.

      While living with their mother, he said, the girls were abused by two of her boyfriends — one of them physically, and another one sexually.

      Wiping tears from his eyes, Rodriguez told jurors that the girls’ ordeal still is a source of distress.

      “Every time I see them … I blame myself,” he said. “I was angry, but what can I do? I am behind bars and I can’t get out.”

      Rodriguez also spoke of the grief he felt at not being able to see his father before his death nor attend his funeral.

      Although DNA tests had already raised questions about his conviction, when Rodriguez applied for a release to attend his father’s funeral, it was denied.

      One month later, he walked out of prison for good.

      “He told me he was going to see me when I got out,” Rodriguez said of his father, “but when I was out, he was gone.”

      Attorneys representing the city will have the opportunity to question Rodriguez on Monday when his trial is scheduled to continue.


      Ex-inmate tells of unjust verdict, family’s hardship

      Innocent? Who cares?

      JUNE 20, 2009

      Determining whether a defendant is guilty or innocent is apparently not what the U.S. Supreme Court views as the top priority in criminal justice.

      In a stunning decision, the Court ruled by its usual 5-4 ideological majority Thursday that prisoners have no constitutional right to DNA testing that might prove them to have been wrongly convicted.

      The case came from Alaska, one of four states (the others are Alabama, Massachusetts and Oklahoma) that don't have laws dealing with DNA testing after a conviction. Alaska prosecutors concede that DNA tests could establish the guilt or innocence of William Osborne, who was convicted in 1994 of kidnapping and sexually assaulting a prostitute. Indeed, the state seemed unable to offer a coherent argument for opposing the tests.

      Like most such cases, this one is messy. Mr. Osborne's attorney refused sophisticated DNA testing at trial, and Mr. Osborne confessed to the Alaska Board of Parole — though he later said he lied in the hope of speeding up his release. It's politically confusing as well, since the Obama administration inexplicably and shamefully backed Alaska's case.

      But the constitutional safeguards governing defendants' rights should not be so easily sidetracked.

      Nevertheless, Chief Justice John Roberts, though noting DNA's "unparalleled ability" to determine guilt or innocence, placed greater emphasis in his majority opinion on the ability of states to legislate rules governing DNA evidence. The minority, reflected in a dissent by Justice John Paul Stevens, appropriately argued that the Constitution's guarantee of due process for all Americans should have taken precedence.

      The Innocence Project at Cardozo Law School says DNA testing has played a role in 240 exonerations, including 103 cases in which the real perpetrator was identified. The nation's highest court now says that statistic takes a back seat to its deference to legislative process.

      Innocent? Who cares?

      Court finds convicts have no right to test DNA

      The Associated Press
      June 18, 2009

      WASHINGTON -- The Supreme Court said Thursday that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

      The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence.

      Testing has led to the exoneration of at least 232 people who had been found guilty of murder, rape and other violent crimes.

      The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

      William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

      In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

      The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

      "To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response," Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

      But Justice John Paul Stevens said in dissent that a simple test would settle the matter. "The court today blesses the state's arbitrary denial of the evidence Osborne seeks," Stevens said.

      The woman in Alaska was raped, beaten with an ax handle, shot in the head and left for dead in a snow bank near Anchorage International Airport. The condom that was found nearby was used in the assault, the woman said.

      The woman identified Osborne as one of her attackers. Another man also convicted in the attack has repeatedly incriminated him. Osborne himself described the assault in detail when he admitted his guilt under oath to the parole board in 2004.

      Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less-refined test by the state showed that the semen did not belong to other suspects, but could be from Osborne, as well as about 15 percent of all African-American men.

      Osborne is awaiting sentencing on another conviction, a robbery he committed after his parole.

      The case is District Attorney's Office v. Osborne, 08-6.

      Court finds convicts have no right to test DNA

      Innocent man imprisoned for 17 years sues Houston for millions

      June 15, 2009
      By Lee McGuire
      11 News

      HOUSTON -- A federal district judge has refused to dismiss a multi- million dollar civil lawsuit against the City of Houston, clearing the way for George Rodriguez’s claim that he was wrongfully imprisoned to go to trial Tuesday.

      His attorney, Mark Wawro, declined to comment except to say he is seeking compensation for what he has lost.

      Court documents indicate that Rodriguez believes the city was complicit in his wrongful conviction by looking the other way as conditions in the city’s crime lab deteriorated over a period of several years.

      The 11 News Defenders first exposed widespread problems with mishandled evidence, poor training and faulty test results five years ago. In 2004, a judge allowed Rodriguez to be released on bond after DNA testing cleared him in the kidnapping and rape of a 14-year-old girl in 1987.

      Houston City Attorney Arturo Michel said the problems at the crime lab were not the source of the conviction. Instead, Michel points to the dishonest testimony of a crime lab supervisor.

      “I think what you have here is a person who was simply not honest,” Michel said. “It doesn’t matter how many funds you put into something and how good a program you have, you cannot guard against a person’s dishonesty.”

      “What we are going to show here is that you have someone who was lying on the stand and it was a tragic consequence,” he said.

      On Wednesday, the Houston City Council will consider extending the contract with a private law firm that is representing the city in court. The City Attorney has already paid $50,000 to the law firm of Feldman & Rogers, and Wednesday’s vote would extend that to up to $200,000.

      Neither Michel nor Wawro would comment on exactly what financial relief Rodriguez is seeking in the case, but Michel said “they began with tens of millions of dollars that they would like the city to pay them in this process.”

      Since then, Michel said, confidential discussions between the parties have been underway.

      Rodriguez’s suit began with a wide range of defendants, including the City of Houston, Harris County and individuals involved in the case.

      The other defendants have either been dismissed from the case or have reached private settlements, Michel said.

      11 News legal expert Gerald Treece says that Rodriguez’s legal claim his civil rights were violated is traditionally difficult to prove.

      “There has to be a conscious indifference by a policy or practice of the government,” he said. He added Rodriguez would have to prove city leaders knew the evidence that helped lead to the conviction was faulty and they “simply didn’t care."

      Jury selection begins Tuesday morning in United States District Judge Vanessa Gilmore’s courtroom.

      Innocent man imprisoned for 17 years sues Houston for millions

      Public defender discusses DNA testing's role in exonerations

      June 13, 2009
      By Jennifer Emily

      Dallas County public defender Michelle Moore has represented seven of the 20 people proven innocent by DNA testing after they had been unjustly convicted and served time in prison. As their attorney, she requests DNA testing and has worked with the district attorney's office to investigate cases. She has also represented inmates whose guilt was confirmed by DNA testing.

      Moore works with the Innocence Project of Texas, the Wesleyan Innocence Project and the University of Texas at Arlington Innocence Network and the Center for Actual Innocence.

      She took some time to talk to The Dallas Morning News about her work.

      When did you start working on post-conviction requests for DNA tests, and how did you become the attorney who handles many of these cases?

      In 2001 when the law passed [allowing DNA tests]. Because it was a frustratingly slow area of the law and the pay wasn't worth it for most private attorneys, cases out of courts began to be handed to me in an increasing number.

      Dallas County has so many exonerations because officials kept the evidence. Why do you think they kept it?

      The word at the Dallas County courthouse has always been that the tests were ordered to be kept by Henry Wade for future prosecutions.

      I have never seen anything in writing to confirm this mandate from Wade, but I think we have to give credit to the man for at least keeping the evidence.

      What do you say to inmates when their guilt is confirmed? Are you angry?

      I am more angry at the man who will not admit his guilt after the test comes back. I don't understand this attitude. If you ask for the test, you should at least be enough of a man to admit the crime at that point. My favorite response so far has been the guy who said, "Oh well, I tried."

      I appreciate the honesty at this point – even though it's a little too late.

      When someone is exonerated, it's a thrilling day. What happens next?

      Then reality sets in. Where will he stay as time goes on? How do we take care of his basic needs? How do we deal with the psychological issues of wrongful incarceration and being institutionalized?

      Why do you think these men were originally convicted since they obviously were innocent?

      I definitely believe that cross-racial misidentification is a huge factor in these exonerations. In any of the cases, I believe that the police were making a valiant effort to solve the crimes very quickly.

      In doing so, the police developed tunnel vision and made the evidence fit the person that they believed committed the crime.

      Some of the cases involved prosecutors who did not turn over evidence that should have been turned over according to the law. I believe that these cases occurred because the DAs could not get promoted without wins under their belt. Thus, Dallas County became a "win at all costs" county to the detriment of these innocent men.

      Eyewitness identification played a big role in these exonerations.
      Why is that?

      It was all we had before DNA came along. But we need to do the eyewitness identification correctly. That is why we need police departments to implement blind sequential photo lineups [where those showing the photo lineup do not know who the perpetrator might be or even if he's in the lineup]. That is why we need to do away with "showups," where the defendant is brought to the witness for identification, usually immediately after the crime.

      Do you think there will be many more exonerations in Dallas County?

      I have several cases on the radar at present that I would bet money on.

      Public defender discusses DNA testing's role in exonerations

      Perry can't pardon Timothy Cole because amendment proposition didn’t pass Legislature, his office says


      AUSTIN — Gov. Rick Perry cannot grant a posthumous pardon to wrongfully convicted inmate Timothy Cole of Fort Worth because a proposed constitutional amendment that could have given him that power died in a parliamentary standoff during the closing days of the just-ended 2009 Legislature, Perry’s office said Thursday.

      "Because the measure failed, the governor does not have the constitutional authority to grant a posthumous pardon," said the governor’s deputy press secretary, Katherine Cesinger.

      Cole, who died in prison in 1999, was exonerated by a Travis County judge this year after DNA testing cleared him of the rape of a Texas Tech student.

      Another man, Jerry Wayne Johnson, sent a letter to Cole’s mother confessing to the crime.

      A posthumous pardon has been a long-standing goal of Cole’s Fort Worth-based family, who won passage this year of legislation bearing Cole’s name to increase state compensation and benefits for other wrongfully convicted Texans.

      Passage of the proposed constitutional amendment, Senate Joint Resolution 11, was also one of the family’s top-priority goals during the 2009 session. But Cory Session of Fort Worth, one of Cole’s brothers, contended that Perry could still pardon Cole without the amendment and criticized the governor for not fulfilling what Session said was a promise to the family to grant the pardon.

      "We’re extremely disappointed in this," Session said. "He said he would take care of it. If taking care of it is letting it wait for another two years, no. It’s been 25 years. We’re tired of waiting."

      Session said the family plans to turn to President Barack Obama in hope of getting a presidential pardon.

      SJR11, co-sponsored by Sen. Royce West, D-Dallas, and Rep. Senfronia Thompson, D-Houston, was one of hundreds of measures that died after Democrats waged a parliamentary slowdown known as a "chub-a-thon" that was aimed at killing legislation toughening voter identification requirements.

      The constitutional amendment, which would have required voter approval in the Nov. 3 election, was designed to "clear up any questions about whether the governor can grant posthumous pardons," according to an analysis of the proposal by the House Research Organization.

      Cesinger said the governor would have been unable to grant the pardon unless voters approved the amendment.

      Officials at the Texas Board of Pardons and Paroles said the governor currently is not empowered to grant a posthumous pardon. "Today, it can’t be done," board Chairwoman Rissie Owens said.

      But Amarillo attorney Jeff Blackburn, who has worked closely with the Cole family as chief counsel for the Innocence Project of Texas, said he hopes the governor can eventually grant the pardon. He commended Perry for supporting legislation to help wrongfully convicted former inmates.

      "I believe we are going to find a way to grant clemency to Tim Cole," he said. "We’re pretty optimistic."


      Perry can't pardon Timothy Cole

      Wrongful conviction bills die

      By Elliott Blackburn
      June 02, 2009

      Texas legislators increased compensation for innocent residents who spend years behind bars, but passed none of the reforms intended to avoid future wrongful convictions as the session melted away Monday.

      Proposed laws to expand prisoner access to DNA testing, clarify how to handle pardoning innocent Texans after their death and change how departments interrogate and collect eyewitness evidence died while legislators fought over a different kind of identification problem.

      "Our entire agenda, except for compensation, really ... all those things were sitting on the House calendar when voter ID killed everything off," Innocence Project of Texas policy director Scott Henson said.

      Justice reforms introduced in dramatic fashion a few months earlier retired quietly in the background of a high-profile fight over whether Texans should present photo identification to vote.

      The Innocence Project and supportive legislators rolled out proposed reforms as an Austin court heard testimony on the state's first posthumous exoneration.

      Tim Cole, a Fort Worth man who a Lubbock jury convicted of the rape of a fellow Tech student in 1986, died in prison nine years before DNA testing requested by his family and the Lubbock County District Attorney's office proved his innocence.

      His conviction relied heavily on mistaken identification by the victim, who earlier this year came out supporting efforts to clear Cole's name.

      His family described an emotional welcome from legislators in February. Cole's mother, Ruby Session and his youngest brother, Cory, spent months lobbying for the reforms - Cory logged 14,000 miles and three blown tires as he traveled from Fort Worth to Austin to testify and lobby.

      "We had everything in place," Cory said. "We really did have it, and it would have been sweeping changes."

      Senators unanimously passed legislation filed by Sen. Rodney Ellis, D- Houston, requiring police departments to use more strict procedures for photo and live line-ups to reduce false identifications. Senators sent another bill encouraging police to videotape suspect interrogations to the House in late May on a 28-2 vote.

      The bills never made it any further as House Republicans insisted on a vote on voter ID before pursuing other major business and House Democrats ground the legislative process to a crawl to block it.

      Ellis could not be reached for comment Monday.

      A proposed state constitutional amendment carried by Sen. Royce West, D-Dallas, to certify that Perry could pardon Cole suffered a similar fate.

      "It was unbelievable that it died," Henson said. "There were so many things that had to go wrong all session long."

      Legislators instead sent reforms Session considered long shots to the governor - pay increases for the wrongfully convicted, a panel to study how the convictions occur and rules to corroborate testimony from jailhouse informants.

      The study panel and jailhouse informant bills still wait for a signature. Gov. Rick Perry signed the Tim Cole Act in late May, calling the increase state compensation for wrongfully convicted Texans from $50,000 to $80,000 a year and creating an annuity for a lifetime of payments a "significant step for justice" in a statement.

      The act, written by Dallas Democrat Rafael Anchia and Lubbock Republican Sen. Robert Duncan, also introduced education benefits for exonerees and allows heirs of an inmate who dies but is later cleared to receive compensation.

      "The compensation reform was huge," said Kevin Glasheen, a Lubbock attorney who represents 12 exonerated men in cases in Dallas. "It's been a long struggle."

      Texas still needs to pass health-care coverage for exonerees next session, he said.

      The losses on the remaining legislation had been a disappointment, he said.

      "Criminals don't have a very big constituency, " Glasheen said. "There aren't a lot of people that stand up and say, 'Hey, let's be fair to criminals.' But I think we see these wrongful convictions, we see that, hey, it's important that the criminal system work well to protect the rights of the innocent."

      The success rate didn't discourage Cory Session.

      He didn't believe the governor needed a proposed constitutional amendment to grant his brother the posthumous pardon for which their mother longs. The governor's office did not return requests for comment Monday.

      Pressure on the remaining reforms would continue to build until next time, whether the issue came up in a special session or two years down the road, he said.

      "We'll go back next session with a stronger will," Session said. "We'll know that more people will have gotten out of prison by then."

      To comment on this story:

      DNA testing, innocence panel bills still alive

      Associated Press Writer
      © 2009 The Associated Press
      May 29, 2009

      AUSTIN, Texas — With the legislative session grinding toward its conclusion, criminal justice advocates tried to rally support Friday for bills they say will help keep innocent people out of prison.

      Gov. Rick Perry has already signed into law a boost in compensation for people who have been convicted and sent to prison for crimes they didn't commit.

      The session ends Monday. Other bills still percolating include some that would improve access to post-conviction DNA and appeals, recording of police interrogations of suspects, and another to create a state innocence panel to review cases of wrongful conviction and report on how similar mistakes can be avoided.

      Texas DNA testing has exonerated about 40 former inmates in Texas, the most in the nation, according to the Innocence Project. The 40th, Jerry Lee Evans of Dallas County, was released Wednesday after serving 23 years in prison for a rape he did not commit.

      "We know the system is broken," said Sen. Royce West, D-Dallas. "But we haven't done enough to try to fix it."

      The lawmakers pushing for the changes are now wondering if there is enough time.

      Evans was at the Capitol on Friday and met with several legislators. Sen. Rodney Ellis, D-Houston, said the former inmate could help push through some reforms.

      "Timing is everything," Ellis told Evans. "I'm trying to use this as a lightbulb moment."

      Ellis' post-conviction DNA testing bill would allow inmates to ask for DNA testing of biological evidence that has not been previously tested, and to retest material if new techniques provide a reasonable likelihood that the new results would be more accurate and possibly different than the original.

      The bill also requires that any unidentified DNA profile discovered during post-conviction DNA testing be compared to profiles already in the FBI database to look for a match.

      The innocence panel would review Texas' dozens of cases of wrongful convictions and study what went wrong, look at how mistakes could have been avoided and send its findings to the governor and state lawmakers.

      One bill that didn't make it to the final weekend would have directed law enforcement agencies to have written policies for taking eyewitness evidence and suspect lineups. Many of Texas' wrongful convictions cases involved a victim or eyewitnesses identifying the wrong person as the perpetrator.

      In Evans' case, the rape victim identified him during trial.

      "It was devastating," Evans said. "I thought she would say, 'That's not him.' That was my whole defense."

      Evans will be eligible for the increased compensation that Perry signed into law the same day Evans was released.

      The new law boosts from $50,000 to $80,000 for every year of confinement and grants an annuity to provide a lifetime of income.

      Exonerees also can get 120 hours of paid tuition at a career center or public college.

      The law is named the Tim Cole Act after a Fort Worth man who died in prison in 1999 while serving time or a rape that DNA testing later showed he did not commit.

      DNA testing, innocence panel bills still alive

      Victim of Circumstance?

      Ed Graf was sentenced to life for burning his two young stepsons alive. Two decades later, science may exonerate him.

      MAY 29, 2009

      This is the second story in an Observer series investigating how widespread use of flawed arson science wrongly convicted dozens, perhaps hundreds, of innocent people in Texas. You can read the first story in the series, published on April 3—about Plano gun-shop owner Curtis Severns—here.

      Their deaths seemed suspicious from the start. Joby and Jason Graf never played in the storage shed behind their house; they weren’t even allowed inside it. So how—neighbors and family members in Hewitt, Texas, just outside Waco, would wonder—could the 8- and 9- year-old boys have locked themselves in that shed and set it on fire?

      The only adult on the property on that hot Tuesday afternoon in August 1986 was the boys’ stepfather, Ed Graf. He had left work early, picked up the boys from day care, and arrived home just before 5 p.m. About 10 minutes later, neighbors on Angel Fire Drive saw smoke billowing from Graf’s backyard. Flames tore the shed to the ground in minutes.

      By the time Clare Graf got the news and rushed home from the elementary school where she taught kindergarten, the shed was a smoldering, charred ruin. Walking into the house, she saw the pained looks of neighbors gathered around the driveway and knew something was wrong. Ed met her in the garage. Her boys were gone, he told her.

      Gone where, she asked. She thought maybe they had run off somewhere.

      She would never forget the words he said next: “Clare, Joby and Jason are dead.”

      “Just that cold, that callous—to me, the mother of the boys,” Clare remembers. “It’s just engraved in my soul.”

      A moment later, a firefighter walked in to tell Ed that rescuers had found a second body. The fire department apparently had informed Ed of only one death, though he had just told Clare that both boys were dead. How, she would wonder, did he know unless he had set the fire?

      The next day, Clare left Ed to stay with her family. Sequestered together, Clare and her relatives and friends would piece together many other suspicious moments that incriminated Ed. Two months before the fire, according to court records, Graf had bought a $50,000 life insurance policy on each boy. Days after the deaths, Graf filed a claim for the insurance money. He had a history of breaking rules in pursuit of fortune. In 1985, he had been caught embezzling more than $70,000 over three years from the local bank where he served as vice president, according to court records. After leaving the bank, Graf became a claims adjuster with State Farm Insurance, where he helped work on arson cases. One day in early 1986, family members would later testify, he gave a discourse about the elements of arson he had learned in his new job, how arson was among the most difficult crimes to solve because fires burned up their own evidence. There were other incidents that seemed innocuous at the time, but appeared suspicious in retrospect. For instance, Graf had insisted that the boys keep the price tags on shirts the family bought for the new school year. After the fire, he returned the clothes for a refund.

      “It was like a puzzle. We put all the pieces together, and it was just clear as could be,” Clare says. “I had no doubt in my heart even before they first ruled it arson.”

      In a small community like Hewitt, rumors whip around fast. Within days the perception set in that Graf had burned his stepsons alive.

      Clare’s best friend and sister-in-law penned six-page letters to the district attorney’s office, detailing their suspicions about Ed. With pressure from the family and the town buzzing about a gruesome murder, McLennan County prosecutors began to build a criminal case.

      At the 1988 trial, prosecutors portrayed Ed Graf as a man with two sides—a “Jekyll-and-Hyde” type, as Vic Feazell, the McLennan County district attorney at the time, told jurors. He might appear a mild- mannered banker and insurance adjuster, Feazell said, but underneath, he was a controlling, jealous, and violent man. Clare would testify that she and Ed were having marital problems, and that she had planned to leave him. She told the jury Ed had behaved strangely in the days before the fire. He was always obsessively organized. But in late August 1986, he had neglected to refill the boys’ medications and had let their breakfast cereal run low—lapses that had never happened before. “Everything indicated that Ed knew that those kids wouldn’t be around,” Feazell said.

      Defense attorneys offered explanations for Graf’s behavior—he had just neglected to go food shopping; he wanted the kids to keep the tags on the shirts in case the clothes didn’t fit; he believed life insurance a good investment. But prosecutors kept piling one small piece of suspicious, circumstantial evidence on top of another to convince the jury that Ed had planned all along to kill his stepsons.

      Circumstantial evidence filled in a believable narrative, but forensic testimony cinched the case. The physical evidence wasn’t ideal. The crime scene had been destroyed just hours after the fire.

      Firefighters bulldozed the shed as a favor to the family, so Clare and Ed wouldn’t see its charred remains when they woke in the morning. The physical evidence was hauled off to a dump.

      Prosecutors brought in two arson experts—one from the Texas State Fire Marshal’s office and a private expert from New York—who used photographs of the scene to reconstruct how the blaze started. Both testified that burn patterns on the shed floor indicated that someone had intentionally started the fire with an accelerant, probably gasoline. They told the jury that because the boys were found on their backs, they must have been unconscious at the time of the fire.

      Moreover, a door latch was found at the scene in the closed position.

      All that evidence, the experts said, meant Graf had knocked out his two young stepsons, dragged them into the shed, and locked the door before setting the fire.

      Defense attorneys tried to counter the forensic testimony. They brought in their own arson expert to dispute some—but not all—of the physical evidence. Their man wasn’t as polished and couldn’t refute all the evidence. When both prosecution experts confidently testified that, without doubt, the crime of arson had been committed, the jury believed them.

      On April 28, 1988, Ed Graf was convicted of capital murder by arson and sentenced to life in prison. He’s remained jailed ever since.

      But a few people around Waco have long believed Graf is innocent.

      They told anyone who would listen that Graf was actually a victim: He lost the stepsons he loved, lost his marriage and his family, and has now spent more than two decades in prison for a crime he didn’t commit. Until recently, they didn’t have much evidence to back their claims. But in the past few years, arson science has undergone a revolution. Scientific advances have undercut the key evidence that sent Graf to prison. The people who have insisted for so many years that Graf was innocent may have been right all along.

      Even 21 years after Ed Graf went prison, Don Youngblood recalls nearly every aspect of the case. He remembers the jury foreman’s name, testimony from specific firemen, the look on the judge’s face when the verdict was read. Youngblood was the investigator for Graf’s defense team, and he believes Graf is innocent.

      Youngblood is a former cop who’s worked as a private investigator for three decades. He’s handled about 50 capital murder cases over the years. Quite a few defendants, he says, were obviously guilty. A few others he wasn’t sure about. “Mr. Graf is the one case out of 50 that I’m thoroughly convinced that he did not do it,” Youngblood says. The case haunts him. He chokes back tears. “It’s one case I never forget about,” he says.

      Ed and Clare Graf began dating in early 1984, two-and-a-half years before the fire. They married seven months later. Ed adopted her two boys, and the family moved into Ed’s house on Angel Fire Drive. But Ed’s and Clare’s personalities never meshed. Ed is a numbers man, rigid and meticulous. He tracked the family’s finances to the penny, carried daily to-do lists in his shirt pocket, and kept a notebook in his car that detailed the distances he drove and the mileage between oil changes. Ed kept a neat home, everything in its place. He instituted stern rules on Joby and Jason, who, neighbors would testify at trial, were unruly kids who lacked discipline and roughhoused too much when Clare and Ed first married. (Ed Graf, still serving a life sentence in state prison, refused an interview request from the Observer for this story.)

      Clare was more free-spirited and less tidy. She was less strict with the kids and felt they should have more fun than Ed would allow.

      Clare would later testify that they fought frequently about these issues. But in early 1986, six months before the fire, Clare gave birth to a third son, her only child with Ed. The boy was two years old when his father went to prison. For a time, Ed would see his son occasionally. Before she died, Ed’s mother would bring the boy with her on prison visits. As he grew up, though, the boy began to believe that his biological father was a murderer who had killed his half- brothers, and the visits ceased.

      In Youngblood’s view, one of the most damaging pieces of evidence against Graf was the life insurance he bought for Joby and Jason. Graf testified that he bought the policies on all three children, including their infant son, to save money for college. In fact, Graf’s father had bought a similar policy for Ed when he was a child, from the same insurance company—a policy that acts as a savings account for tuition. Youngblood says Graf’s purchase of life insurance just before the fire was coincidence.

      As he got to know Ed Graf, Youngblood says, he didn’t believe the man capable of such a gruesome crime. Graf has a cool exterior, Youngblood says, but is kind. He had no history of violence. While he embezzled money, that doesn’t mean he was capable of burning two children alive. “Usually the embezzlers are very passive people,” Youngblood says, which is why they steal money by secretly siphoning cash into their own accounts instead of, say, robbing a bank.

      Youngblood believes the more likely explanation for the fire is that the boys ignited it themselves. He suspects they snuck into the shed to experiment with fire and it got out of hand. Neighbors testified at trial that they had seen Joby and Jason smoking cigarettes and playing with fire. A teacher at their school testified that she had caught them playing with matches in the schoolyard. Two children who played with Joby and Jason testified that the boys had started a small grass fire in a neighbor’s yard a few months before their deaths. Another neighbor told Graf’s attorneys that she wouldn’t allow Joby and Jason in her house because she worried about their misbehavior, including starting fires.

      “It’s a tragic situation,” Youngblood says. “I feel comfortable saying without any doubt in my mind that these were two little boys who liked to play, liked to play hard and play a little dangerous.

      They liked to play with fire. That was substantiated.”

      It’s an example of why circumstantial evidence doesn’t prove guilt.

      There are always alternative explanations. Once you move past the circumstantial evidence, the case against Graf begins to look flimsy.

      No witnesses saw Graf drag the boys into the shed, though his yard was visible to several neighbors that afternoon.

      Recently Walter Reaves, a Waco attorney who works on innocence claims, began looking into Graf’s conviction. He talked with Youngblood and discerned right away that the case was mostly circumstantial. In Reaves’ view, the only hard evidence that linked Graf to murder was the expert forensic testimony.

      Last year, as Reaves began working to win exoneration or a new trial for Graf, he asked Dr. Gerald Hurst in Austin, one of the country’s leading arson experts, to re-examine the case. The two men had worked together on the case of Cameron Todd Willingham, who was executed in 2004 for starting a house fire in North Texas that killed his children. Willingham was convicted on flawed arson evidence and was almost assuredly innocent. (The Texas Forensic Science Commission is studying the Willingham case and could release its report as early as June.)

      Hurst, who has helped exonerate dozens of defendants wrongly indicted or convicted by junk arson science, produced a report on the Graf case in September 2008 that picks apart the physical evidence. He concluded that nearly every piece of forensic evidence that sent Ed Graf to prison for life was seriously flawed.

      Perhaps the biggest problem with the case was the lack of a crime scene. After the shed was bulldozed and the evidence hauled to a dump, fire investigators had little to examine. When the investigator from the state Fire Marshal’s office arrived, he had to visually examine the remains of the shed from the lip of a pit at the dump site. All that remained of the fire scene was a handful of grainy, poorly exposed photographs taken by volunteer firefighters. Yet the prosecution’s experts claimed they could discern exactly how the fire started.

      Hurst says that’s ludicrous. He found the forensic evidence against Graf was a collection of “old wives’ tales” that researchers have disproved in the two decades since the trial. He sees no evidence that gasoline was poured on the floor. Nor does he see evidence that Graf rendered the children unconscious. Hurst calls the Graf case one of the most inept arson investigations he’s ever seen. It would be comical, he says, if it hadn’t sent a man to prison.

      The fire in Graf’s shed on Aug. 26, 1986, quickly mushroomed to intense burning known as flashover, or full involvement. The phenomenon occurs when heat and gas build until an entire room or building explodes in flames. After the intense damage caused by flashover, determining how a fire started can be difficult.

      Nearly 23 years ago, when state Fire Marshal Investigator Joseph Porter arrived in Hewitt, investigators didn’t fully understand flashover. They certainly didn’t know that flashover could make an accidental fire look like arson.

      Porter was 29 in 1986. He had worked with the Fire Marshal’s office for one year. Before that he had served as a fire safety inspector in College Station, where he resigned amid allegations that he falsified reports, according to court records.

      At the time, Porter, like many investigators, believed a fire couldn’t have reached flashover in just a few minutes unless an accelerant such as gasoline had started it. Porter—like many investigators then and now—mistakenly believed that arson fires burn faster and hotter than accidental fires. So he began with the flawed assumption that because the shed achieved flashover so quickly, someone probably used gasoline to start the fire.

      When he studied photographs of the scene, Porter testified, he saw what he thought were pour patterns—burn marks that investigators once thought indicated where someone had poured gasoline. (Charles King, a private expert brought in by prosecutors from New York to bolster the case, provided almost identical testimony.) The notion that pour patterns and burned holes in wooden floors indicated the presence of gasoline was once widely accepted among fire investigators (and still is in some quarters). Such unscientific assumptions were part of the inherited knowledge passed from one generation of fire investigators to another and used for decades to convict thousands of defendants.

      When these assumptions were put to the test, many proved wrong.

      In 1991, three years after Graf’s conviction, investigators in Jacksonville, Florida, ran a groundbreaking experiment. They were investigating a fire scene that, like the one in the Graf case, contained clear pour patterns from a fire that had quickly gone to flashover. They thought it was textbook arson. To be certain, the investigators ran a test fire in an abandoned house to determine if an accidental fire with similar furniture in the room could cause similar damage without gasoline. It could. Flames and heat from normal flashover, they found, can severely scorch a floor, and burn patterns they thought resulted from gasoline were actually caused by an accidental fire going to flashover. Later research would show that accidental fires can burn as fast as arson fires, sometimes faster.

      An accidental fire on a couch can send a room to flashover in less than three minutes.

      When Hurst studied the evidence in the Graf case, he saw that the prosecution experts had mistaken burn patterns caused by normal flashover for evidence of gasoline. (When gasoline does ignite on wood floors, it burns off and hardly darkens the wood.) Hurst says that given the highly flammable furniture in the shed—including a fold-up bed—an accidental fire could easily have sent the shed to flashover in minutes.

      Hurst saw several other major flaws in the forensic evidence.

      Porter and King testified that because their bodies were found on their backs in a “relaxed position,” the boys were unconscious at the time of the fire. The two experts testified that conscious people who had tried to crawl out of a fire would be found lying on their stomachs. “Any fire victim that is awake and alert during the fire and makes any effort to escape, the odds are very, very high that they will always be found face down,” Porter testified. “You will very, very seldom find one face up.”

      In fact, there is no evidence that the boys were unconscious during the fire. Toxicology tests from two autopsies showed no trace of sedatives or suspicious chemicals in their systems. Moreover, it’s not uncommon to find victims in accidental fires lying on their backs. Fire victims often pass out from inhaling smoke or other noxious fumes. When they collapse, some victims fall forward, some fall backward. Hurst says the position of the bodies in this case has little to do with how the fire started.

      Perhaps the most obviously flawed forensic testimony from Porter and King was their interpretation of cracks and char patterns on the shed’s wood beams. They claimed these cracks indicated the direction in which the fire had burned. They asserted that when fire burns upward, it leaves horizontal cracks in charred wood. When fire burns downward, they said, it leaves vertical cracks. Using this odd theory, they testified that the photos of the scene clearly showed the fire had started on the floor. They could tell this because there were horizontal cracks across the burnt beams that once supported the shed’s walls. On the joists that had supported the floor, they saw vertical cracks. These patterns showed that the fire had burned up the walls and down below the floor, meaning it had originated on the floor, Porter testified.

      In reality, cracks in the wood have nothing to say about the direction in which a fire burned. When wood burns, it cracks across the grain. On the standing wall beams in the shed, the grain of the wood ran up and down, so the cracks in the shed beams were horizontal. On the floor and ceiling joists, the wood grain ran parallel to the floor, so the cracks were vertical. Hurst says that Porter’s and King’s theory about the cracks appears to have been simply made up.

      Charles King died in 2002. Joseph Porter left the state Fire Marshal’s office a decade ago and couldn’t be located for comment.

      Porter worked for the Fire Marshal for more than 13 years and led investigations into at least 121 fires, according to partial agency records (files from that period are sketchy). At least 10 of those defendants remain in prison, including Graf.

      Hurst also casts doubt on another key prosecution claim—that Graf locked the kids inside the shed. Porter and King testified that they believed the shed doors were closed because of the burn patterns on the door hinges. (Hurst contends the shed was so thoroughly burned that it would be impossible to discern any valuable information from a piece of scorched door hinge.) Moreover, a neighbor, William Flake, testified at trial that he had a good view of Graf’s yard from his patio during the fire and clearly remembered seeing one of the shed doors open.

      In his report on the case, Hurst contends that the fire’s thirst for oxygen makes it highly unlikely the doors were closed. The shed had no windows. Had the doors been closed, the fire would have died down for lack of oxygen. It’s nearly impossible that the fire could have achieved flashover so quickly—which everyone who’s looked at the case agrees it did—unless the door was open, giving the fire a steady air source.

      In Hurst’s view, the amount of burning in the shed, along with the demolition of the scene, makes it difficult to discern how the fire started. He believes the likeliest scenario is an accidental fire started by the kids near the door. The door was open, but the flames may have prevented escape. Trapped in the windowless shed, they had no way out. Before long, the fumes overwhelmed them.

      That’s his theory. It’s impossible to know for sure. One thing Hurst does know: No competent fire investigator could take the evidence in this case and conclude the fire was intentionally set by Ed Graf.

      Last year, after 21 years in jail for murdering his stepsons, Ed Graf came up for his first parole hearing. He was turned down. Given the nature of his crime, it seems unlikely he’ll ever earn release—unless he’s exonerated.

      After the tragedy of losing her sons and seeing her ex-husband convicted of murder, Clare has pieced her life back together in a Dallas suburb. She’s been happily re-married for 19 years. She still teaches elementary school. The son Clare had with Ed is 23 years old and attending graduate school. He’s changed his name and disowned his biological father. He hasn’t seen Ed in more than nine years.

      “I feel very fortunate to even be sitting here talking to you and not be some person who fell apart at the seams,” Clare says. “I feel very fortunate to have gone on with my life. My kids are always with me.” She says that even if a re-examination of the forensic evidence finds problems, it won’t change her opinion.

      Vic Feazell, who resigned as D.A. of McLennan County not long after the Graf trial in 1988 and now practices civil law, says the challenges to the forensic evidence haven’t changed his mind, either. “You can always come up with this stuff after the fact,” he says. “I wouldn’t have been able to stand up and argue the case unless I believed beyond a reasonable doubt that he did it. ... I also know there’s plenty of room for differing opinions on these expert opinions. You need to look at the case as a whole, which is what the jury did.”

      Walter Reaves says he will request a new trial for Graf in the coming months. He has submitted the evidence to a panel of arson experts assembled by John Jay College of Criminal Justice in New York to examine questionable arson prosecutions. He’s waiting for their report.

      Meanwhile, Ed Graf sits in jail. Twenty-three years ago, he had a life many would envy—a steady job, a wife, two stepsons, a new baby.

      He went to church. He owned a home in a quiet neighborhood. That all changed on a hot Tuesday in August 1986. Some people will tell you that Graf has suffered for good reason and even that he hasn’t suffered enough, that they know in their hearts he’s a murderer and should have received the death penalty. They hope he burns in hell.

      Others will tell you—with equal conviction—that Graf had his life taken from him unjustly.

      It’s impossible to bridge these two perceptions of the man. It’s also difficult to say conclusively that Graf is innocent. What does seem clear is that, given the botched forensics in the case, he never should have been convicted.

      Victim of Circumstance?

      May 29, 2009

      The Tim Cole Act helps, but more work remains to eliminate wrongful convictions in Texas

      At the Texas Capitol in Austin and at a courthouse in Dallas, two scenes played out Wednesday that highlighted grave miscarriages of justice and demonstrated valiant efforts to right wrongs done in the name of the state.

      Gov. Rick Perry signed into law the Tim Cole Act, named for a young Fort Worth man who was wrongly convicted of raping a fellow Texas Tech student in 1985. Cole, who died in prison in 1999, is the first person in Texas to be exonerated posthumously by DNA evidence.

      The new legislation increases lump-sum payments to exonerees from $50,000 to $80,000 for every year of confinement and grants an annuity to provide income for the rest of their lives. It also pays for up to 120 hours of tuition at a public college or career center.

      On the same day, Dallas County released Jerry Lee Evans, its 20th exoneree since 2000. DNA testing proved that he was not guilty of the rape for which he had served 23 years in prison.

      More than 40 former Texas inmates have been proved innocent through DNA testing. Many of them were charged after being picked from a photo lineup and were convicted based on eyewitness testimony.

      The state can’t give Cole his life back, and it is impossible to restore the years taken from Evans and the others who were locked up for so long. What the state can do — and is doing through this legislation — is try to correct the injustice and assist these innocent men in reclaiming their lives.

      The governor lived up to the promise he made Cole’s family when he said that he would sign any bill with Tim Cole’s name on it that reached his desk. He is to be commended for that.

      Other worthy criminal justice legislation supported by the Innocence Project of Texas — a nonprofit organization that works to exonerate the falsely accused — will likely die in the Legislature before the session ends Monday. Those bills call for new procedures for eyewitness identification, including photo lineups; major writ changes; and mandatory video or audio recording of interrogations.

      There is a slim chance that those measures could be added as amendments to other bills and be passed this session, but supporters are not counting on that. If all the bills fail in these final days, their sponsors and supporters have one other hope.

      Because one of the governor’s pet bills, the voter-identification legislation, also died — with the help of House Democrats’ stalling tactics — it is believed that Perry will call a special session this summer to take up the matter.

      While we don’t think there should be a special session to deal with voter ID, if Perry does call one, he should add the criminal justice legislation to the agenda.

      We see no evidence of massive voter fraud in Texas, but there’s more than enough proof that serious problems exist with correctly identifying suspects in criminal cases.

      Just ask Jerry Lee Evans and the grieving family of Timothy Cole.

      The Tim Cole Act helps, but more work remains to eliminate wrongful convictions in Texas

      Dallas County's 20th DNA exoneration expected

      May 26, 2009

      Jerry Lee Evans matched the description of the man who abducted and raped a woman in Deep Ellum in 1986. He even had a similar speech impediment.

      But today Evans, 47, is expected to walk out of the courtroom a free man because DNA testing shows he is not the man who raped an 18-year- old Southern Methodist University freshman at knifepoint.

      Dallas County prosecutors Tuesday pointed to questionable witness identification procedures as a leading reason for his wrongful conviction.

      When the woman looked at a six-picture photo spread, Dallas police officers "were leading and encouraging" her to pick Evans out of the photo lineup, said Mike Ware, who oversees the DA's conviction integrity unit. Officers were also "enthusiastically encouraging" after the woman selected Evans.

      The Dallas Police Department changed its policies this year in an attempt to eliminate intentional or unintentional encouragement of witnesses through words or body language. Now, photo lineups are shown by an officer not involved in the case and are shown sequentially.

      Traditionally, photo lineups are displayed with all photos on one page by the investigating officer.

      Evans' DNA exoneration marks the 20th in Dallas County, which has more than any other jurisdiction in the nation since 2001, when Texas began allowing post-conviction genetic testing. Unlike other counties, Dallas County preserved much of the valuable DNA evidence that could conclusively prove a convict's innocence or guilt.

      Evans' exoneration will be the 19th in which a man was convicted in Dallas County based on faulty eyewitness testimony.

      The good news

      Evans, who did not respond to an interview request at the Dallas County Jail, wasn't told that DNA cleared him until Tuesday afternoon, said Michelle Moore, the attorney who agreed to help him obtain DNA testing.

      Moore said that Evans was excited by the news but had expected it.

      "I knew it would happen," he told Moore. "It was just a matter of when."

      Evans' physical description was so similar to that of the rapist – he was the right height and he owned gloves with metal spikes – that even his attorney was skeptical.

      "I would have sworn to you that he did it," Moore said. "The description was so right on."

      Moore said she believes Dallas police had "tunnel vision" when making their case. She said that once they saw Evans, they built the case to support his guilt. He ended up with a life sentence.

      "They had a guy they wanted to pin it on, and they made it fit," she said. "I want to say it's a setup by the police, but I have no evidence."

      Abduction and attack

      Court records show that on Aug. 29, 1986, the victim and a friend, an 18-year-old University of North Texas student, were going dancing in Deep Ellum. The women were abducted at knifepoint as they were leaving a friend's apartment on Exposition Avenue.

      A man told the women to drive to an alley where two other men were waiting with knives. The men held knives to their throats and threatened to kill them.

      The original abductor told the women to drive to a secluded area behind a baseball field where he forced the SMU student to perform oral sex on him, and he then raped her. He then took the women's money and left.

      One of the other men forced the other woman to perform oral sex and tried to rape her but could not.

      The two men threatened to cut the women into pieces and "throw them into the woods." But the women persuaded the men to walk to a nearby apartment complex.

      A passer-by offered the women a ride because he thought they were in trouble. He took them back to SMU where they called police.

      Court records say that Dallas police Detective Paul Lachnitt went to a nearby day labor bunkhouse to see if anyone matched the description of the rapist. People told him that the description matched a guy known as "Hercules," whose real name was Jerry Lee Evans.

      Lachnitt, who has been retired for 10 years, said Tuesday in an interview that he did not recall the case and was never the lead detective in sexual assault cases.

      He said it was "more than likely" that he was helping another detective with the case.

      Evans testified at the trial that he did not rape the woman and said he had an alibi, according to court records.

      He testified that he worked that day and got to the bunkhouse at 5:30 p.m. and then walked to a nearby restaurant to get coffee. He then went back to the bunkhouse before leaving at 10 p.m. to take a bus to a pool hall on Grand Avenue.

      No one at those places remembered seeing him.

      Evans has prior convictions for misdemeanor theft and carrying an illegal knife, court records show.

      Dallas County's 20th DNA exoneration expected

      May. 17, 2009

      CRIMINAL JUSTICE: Dallas County DA leading the way to fixing Texas’ inequitable system

      The criminal-justice system in Texas is riddled with injustices. But that’s nothing new. The people of this state have found ways to live with profound inequities in this dark system for more than a century.

      What is new is the light that has appeared on the horizon over the past few months.

      As horrible as the experience has surely been for Timothy Cole’s family, the case they kept alive after Cole’s death in a Texas prison brought attention to the issue of wrongful convictions, an issue that touches on all of the criminal-justice system’s most basic flaws.

      Cole, a Fort Worth native and Texas Tech student, was convicted of a rape he did not commit in Lubbock in 1985, died behind bars in 1999 and was formally exonerated by a state judge in April.

      The Tim Cole Act, which passed the Texas House and Senate and awaits Gov. Rick Perry’s signature, would raise the figure the state pays to wrongfully convicted inmates from $50,000 to $80,000 for each year spent behind bars. At the very least, the public notice his case has generated ensures that Cole did not die in vain.

      A reality show, of all things, is shining an even brighter light on the issue of wrongful convictions. Dallas DNA, airing Tuesdays on the Investigation Discovery channel, follows Dallas County District Attorney Craig Watkins, who is providing more leadership than anyone else in the state in reforming the system. Watkins established a Conviction Integrity Unit and partnered with The Innocence Project of Texas to take a fresh look at convictions in which DNA evidence could prove the actual innocence of convicted criminals. Those re- examinations have resulted in 19 exonerations since 2001 in Dallas County alone, with more sure to come.

      It seems strange to have to argue that the first goal of a prosecutor should be to ensure that he is placing only guilty people behind bars. Stranger still, Tarrant County has been slow to follow Watkins’ lead. There are good reasons for doing so, not the least of which is economic.

      The prospect of paying a victim’s family $80,000 per year of wrongful incarceration ought to provide ample incentive for getting convictions right on the front end and to rectify mistakes as soon as possible.

      It costs money to imprison the wrongfully convicted, of course, and wrongful convictions allow the guilty to go free.

      Watkins also claims that his prosecution rate is up since he instituted the Conviction Integrity Unit — because juries are increasingly inclined to believe that Watkins’ evidence against defendants must be solid if prosecutors are bringing cases to trial.

      I don’t believe that Texas prosecutors intentionally send innocent people to prison or to Death Row, but I know that they’re human. I also know that humans make mistakes and operate within flawed systems. (According to the Texas Moratorium Network, nine men have been freed from Texas Death Row with full exonerations, and three who have been executed were probably innocent.)

      I would like to think that Tarrant County prosecutors never send innocent people to prison, but I would feel better if we had more structural assurances like those Watkins has put in place in Dallas.

      Tarrant County routinely destroys DNA evidence from criminal cases after a given defendant’s first round of appeals has been exhausted.

      Saving the physical evidence that could later establish innocence and devoting resources to guarantee the integrity of convictions more proactively would begin to put those assurances in place.

      In Fort Worth we’re fond of saying that life is too short to go to Dallas.

      If that is true, then it’s really too short for us to sit back and watch Dallas County do something so basic so much better than we’ve managed to do it.

      J. Todd Moye of Fort Worth is
      a member of the Star-Telegram’s
      2009 Community Columnist Panel.
      E-mail; moye@unt.edu

      Dallas County DA leading the way to fixing Texas’ inequitable system

      Bill paying wrongly convicted more passes

      May 15, 2009
      By Jeff Carlton
      Associated Press

      DALLAS — With the help of DNA testing, Texas has freed more wrongly convicted people than any other state. Soon it will compensate them better than any other state, too.

      The Texas House has agreed with changes made in the Senate on a bill to boost payments to the wrongly convicted, voting 132-13 for the measure Thursday.

      Gov. Rick Perry is expected to sign the legislation, which is named for Tim Cole, a Fort Worth man who died in prison in 1999 while serving time for a rape that DNA testing later showed he did not commit. Last month in Austin, Perry met with Cole’s family and was photographed hugging Cole’s sobbing mother.

      The bill increases lump-sum payments from $50,000 to $80,000 for every year of confinement and grants an annuity to provide a lifetime of income. Exonerees will get 120 hours of paid tuition at a career center or public college. Senators removed a provision to provide health insurance coverage for exonerees.

      It also provides an additional $25,000 for each year a wrongly convicted person spends on parole or as a registered sex offender. No other state has such a provision, said Barry Scheck, the co-director of the Innocence Project, a New York-based legal center specializing in overturning wrongly convictions.

      The bill would give the wrongly convicted in Texas the most generous compensation package in the nation.

      “It is a landmark bill,” Scheck said. “For a fixed damage award, it’s the highest in the country.”

      Cory Session, Cole’s brother, said his brother died “a martyr for innocence.” The likely passage of the bill, he said, makes “you walk a little taller and stick your chest out a little farther.”

      “Almost 25 years ago, the only thing people knew about Tim Cole’s name was he was a convicted rapist,” Session said. “Now they know his name stands for a lot more.”

      The compensation applies only to wrongly convicted people who were actually innocent. Those whose convictions are reversed on technicalities such as insufficient evidence would not be eligible.

      Also ineligible would be exonerees who are subsequently convicted of felonies.

      By accepting state compensation, the wrongly convicted must agree not to sue the state, a factor in attracting support from municipalities such as Dallas, where many of the wrongly convicted are from. There are 39 people in Texas who qualify for compensation, said Kevin Glasheen, a Lubbock attorney who represents some of the exonerees and led the lobbying efforts for the bill. Nineteen are from Dallas.

      “The fact that Texas did have such a problem also means these guys had comparatively good claims,” Glasheen said. “It is a local government cost-saving measure, ultimately.

      “It’s a good trade-off. It gives guys a quick, fair way of resolving claims without having to go through lengthy court battles.”

      Bill paying wrongly convicted more passes

      James A. Fry: I put away an innocent man

      May 14, 2009

      When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.

      Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.

      I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.

      Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted.

      Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.

      As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.

      The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.

      Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.

      Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

      For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

      For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

      I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

      But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.

      James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman.

      His e-mail address is; jamesfrypc@verizon.net

      James A. Fry: I put away an innocent man

      Texas Justice on Trial

      A new movie and TV show spotlight the legacy of race and injustice in the Lone Star State

      Radley Balko
      May 8, 2009

      The new movie American Violet is based on the real story of Regina Kelly, a woman from the small town of Hearne, Texas who was wrongly arrested during a drug sweep on a public housing complex. Residents say the sweeps happened every year. Cops toting big guns and dressed in SWAT gear would jump out of moving vans (and once even a helicopter) and proceed to weed out a large portion of the town's black population. In November 2000, Kelly was one of 26 arrested. All but one of them were black. She was innocent. (At first she thought she had been arrested for overdue parking tickets.)

      Facing 15-20 years in jail for selling drugs in a school zone, Kelly was pressured by her public defender to take a plea that would have given her probation. Other women in the complex had already done so, including some that Kelly suspects are also innocent. She refused. Pleading guilty would have made her a felon, costing her to forfeit her housing and possibly lose custody of her children. So she waited for her trial.

      Five months later the charges were dropped. During the first trial that resulted from the mass arrests, it came out that the police informant—whose word was basically the only evidence that the police had in many of the cases—had been lying. But by that point several people had already accepted plea aggrangements and been duly convicted.

      Thus far American Violet has been warmly reviewed. But some critics have balked at the movie's ham-handedness, noting that the villains— the racist district attorney and the hapless public defender—come off as flat and cliched. They're right. Much of the movie does follow the worn template of the southern courtroom drama, right down to the fish- out-of-water Jewish lawyer from the American Civil Liberties Union who awkwardly arrives in town to save the day.

      But there's no reason to blame screenwriter Bill Haney. That's how the story actually happened. Sure, it would be nice to show a district attorney who had learned from his mistakes, who vowed to temper his pursuit of future convictions by admitting that launching broad drug sweeps based only on the word of shady informants will sometimes result in the arrest of innocent people.

      The problem is that if the film had shown that sort of character development, it would no longer be true to the story it's based on.

      Texas District Attorney John Paschall didn't change one bit. After dropping the charges against Kelly and the others who hadn't yet accepted plea bargains, he said he was still certain they were guilty— just as he does in the movie. He told the Dallas Morning News, "The only way I'd watch [American Violet], I'd have to be handcuffed, tied to a chair and you'd have to tape my eyes open."

      If American Violet feels preachy and overbearing at times, it's because the truth itself is sometimes hard to believe. The new reality show Dallas DNA, which debuted last week on the cable network Investigation Discovery, is a good illustration. The show follows Dallas District Attorney Craig Watkins as he attempts to uncover and correct the wrongful convictions of his predecessors, most notably the longtime law-and-order legend Henry Wade.

      Watkins, a former defense attorney, became Texas's first black district attorney after being swept into office in the anti-GOP backlash of 2006. He has since made national headlines by setting up what he calls a Conviction Integrity Unit, which consists of assistant district attorneys whose sole job is to work with groups like the Texas Innocence Project to find possible incidences of wrongful conviction.

      In an interview with Reason last year, Watkins discussed how he's trying to purge his office of the poisonous culture that long pervaded its halls, a culture so corrupt that Watkins says prosecutors considered getting the innocent convicted as guilty to be a badge of honor—a testament to their power in the courtroom.

      That might seem far-fetched until you consider that DNA testing has so far exonerated 18 people in Dallas, which is more than any other city in the country (and more than most states). And by Watkins own admission, he is really just getting started. His office is currently reviewing more than 100 other cases, and there are hundreds more to sort through. And these, of course, are only those cases for which DNA testing could be dispositive of someone's guilt.

      Dallas' hang 'em high culture was uniquely oblivious to concepts like fairness and justice over the years, and the high number of exonerations is likely to rise. Consider this: Facing a budget shortfall in the the early 1980s, the county started sending its biological evidence to a private lab for storage. That evidence has been preserved, allowing Watkins' Conviction Integrity Unit to go back 30 years in search of wrongful convictions. In other jurisdictions, evidence from older cases has usually deteriorated, or has been destroyed.

      Dallas DNA isn't fictionalized, but it's just as moving in places as American Violet. More notably, viewers unfamiliar with groups like the Innocence Project or with the spate of DNA exonerations we've seen over the last decade may well find parts of the show just as implausible as the more melodramatic portions of the movie.

      After 40 years of "get tough on crime" rhetoric and policies, we can now clearly measure the impact on the country's criminal justice system. The sort of multi-jurisdictional drug task forces that led to the raids and wrongful arrests in Texas may have been phased out in that state, but they still thrive—complete with federal funding—in most other states. Watkins has made headlines precisely because he's such a rare specimen, a prosecutor who is actively seeking out and correcting wrongful convictions, instead of fighting like hell to preserve them.

      In that sense, both Dallas DNA and American Violet have satisfying endings. You're left with the feeling that justice prevailed, even if it took a long time coming. For productions dealing with the inadequacies of the criminal justice system, that may be the most glaring "truth is stranger than fiction" moment of all.

      Radley Balko is a senior editor at Reason magazine.

      Texas Justice on Trial

      Editorial: Exonerees deserve better compensation

      April 28, 2009

      There's probably no adequate way to compensate people who serve prison time for crimes they didn't commit. The psychological effects alone can be devastating. Once freed, exonerees often are ostracized like real felons, and the state provides no help finding them jobs and rebuilding their ruined lives.

      It's no wonder that many Texas exonerees, including at least one here in Dallas, wind up homeless and walking the streets.

      Last week in Austin, the House passed a bill sponsored by Rep. Rafael Anchía of Dallas, boosting compensation for exonerees and helping ensure they rejoin the ranks of productive citizens. It's dubbed the Timothy Cole Act, honoring a former Texas Tech student who died in prison after serving 14 years of a 25-year sentence for rape.

      DNA evidence exonerated him.

      Currently, exonerees receive lump-sum payments by the state of $50,000 for each year of imprisonment, $100,000 in death-row cases.

      Total payments so far by the state in 46 wrongful-conviction cases have been paltry, averaging less than $200,000 per person.

      Lawyers typically get the bulk of that money. What little remains tends to be quickly blown by the exonerees in a wild celebration of their newfound freedom. Little of it goes toward helping them get their lives back on track in a constructive, organized way.

      Anchía's bill would boost lump-sum payments to a maximum of $80,000 for each year of imprisonment. But it offers a far better option: a strict schedule of monthly annuity payments, guaranteeing exonerees and their families an income for life. It also provides for health insurance and tuition payments so they can learn skills or attend college.

      Exonerees who accept the payments waive their right to sue for additional compensation, potentially saving the state millions in litigation costs.

      An identical bill, with bipartisan support, is pending in the Senate.

      It deserves quick approval.

      Without this measure, the state will continue committing a double injustice to these people – once for their wrongful imprisonment and again for the failure to help them rebuild their lives once they're set free. Two wrongs make the Timothy Cole Act the right thing to do.

      Editorial: Exonerees deserve better compensation

      'Dallas DNA' spotlights county's conviction integrity unit

      April 27, 2009
      The Dallas Morning News

      Some Dallas County courtroom dramas are going prime time. A new television show, Dallas DNA, focuses on the work of local prosecutors to free the wrongly convicted and ensure convictions are fair. It premieres Tuesday night on Investigation Discovery.

      The program features men exonerated for crimes they did not commit, the trial of a man linked to a rape and murder by DNA two decades later and people who claim innocence but are shown through genetic testing to have committed crimes. It also features Dallas County District Attorney Craig Watkins' ambivalence about capital punishment even as he participated in a death penalty case.

      "I think a lot of people thought we were just concerned with the innocence side," Watkins said. "But you get to see the integrity side where we see how we're concerned with how our convictions are obtained."

      Investigation Discovery will air six episodes of Dallas DNA on consecutive Tuesdays. Depending on response to the show, more episodes could be ordered.

      The conviction integrity unit was formed after Watkins took office in January 2007 in response to the county's DNA exonerations. So far 19 men have been exonerated. That's more than any other county in the nation since 2001, when Texas began allowing post-conviction DNA testing.

      Christo Doyle, executive producer of Dallas DNA, said Investigation Discovery was drawn to the "revolutionary" work of the conviction integrity unit.

      "What I like most about this series is that every case is very unique," Doyle said. "The strength of the series is the variety."

      Doyle said although he cannot pick a favorite episode, he is most drawn to the first, called "Sweet Justice." That episode features Johnnie Lindsey, who spent 26 years in prison for a sexual assault he did not commit.

      "After you see him exonerated after 26 years, you literally see him coming to life," Doyle said.

      This isn't the first time the criminal justice system in Dallas has debuted on national television. The Dallas Police Department has appeared in numerous episodes of A&E's The First 48. The popular series documents detectives as they work to solve crimes.

      Like the Dallas Police Department and The First 48, the district attorney's office has veto power about what appears on Dallas DNA.

      Patrick Waller, who was exonerated in July after nearly 16 years in prison, said he is looking forward to seeing the episode that features him. That show, which also features the death penalty case that Watkins helped prosecute, airs May 26.

      "I'm really curious. I saw the first episode," Waller said. "I can't wait to see how it turns out."

      'Dallas DNA' spotlights county's conviction integrity unit

      New tests show man jailed in 1987 attack is innocent, defense attorney says

      April 24, 2009


      Three local men have been exonerated in cases in which new scrutiny discredited work done at the Houston crime lab.

      • Josiah Sutton: Released in 2003 after serving more than four years for a sexual assault.

      • George Rodriguez: Released in 2007 after serving 17 years for a sexual assault and kidnapping.

      • Ronald Taylor: Released in 2007 after serving 14 years for a sexual assault.

      Harris County records

      A 53-year-old Houston man is innocent and should be released from prison after serving 22 years for a rape and robbery, his lawyer said Friday, because faulty forensics and false testimony from the Houston crime lab secured his conviction.

      A jury convicted Gary Alvin Richard in a 1987 attack on a nursing student in a trial based largely on blood-typing evidence from the Houston Police Department crime lab. But, prosecutors and the defense attorney agree, new tests completed Friday show that an HPD analyst misled jurors at Richard’s trial and failed to report evidence that may have helped him.

      Based on the new tests, both sides will ask a judge next week to release Richard on bond while they sort out what happened in his case.

      “This is a new chapter, among many, of mistakes that were made, of sloppy work at the crime lab,” said Bob Wicoff, Richard’s lawyer.

      “Most troubling are the results that were not passed on to people who needed them.”

      Richard’s case abounds with issues common to wrongful convictions.

      Among them:

      The victim identified him some seven months after the attack. HPD crime lab analysts came to conflicting conclusions about the evidence, but reported only the results favorable to the case.

      Physical evidence collected in what is known as a “rape kit” has been destroyed, a victim of poor evidence preservation practices, leaving nothing for DNA testing now.

      “The real crime is that another rape kit has been destroyed or discarded,” Wicoff said. “The standards for preserving evidence were less stringent in 1987, but that is no excuse.”

      Without the rape kit, analysts at a California lab tested Richard’s body fluids and drew conclusions that Wicoff said establish his innocence.

      “He could not have been the source of the semen at the crime scene,” Wicoff said.

      Prosecutors are less certain. They agree Richard should be released, but do not yet know if he should be cleared.

      “It is too early to say,” Assistant District Attorney Donna Hawkins said.

      Call for independent lab

      District Attorney Pat Lykos used Richard’s case to again call for a regional crime lab independent of a police agency.

      “This is yet another reason why we need an independent crime lab,” she said. “How many more reasons will it take?”

      If exonerated, Richard would be the fourth Harris County man cleared because of HPD’s shoddy crime lab work.

      Richard’s case is receiving new scrutiny because of a massive review of cases with problematic HPD blood-typing evidence. The review started in October 2007, days after DNA evidence cleared Ronald Taylor of sexual assault in a case where HPD analysts performed faulty tests on body-fluid evidence, known as serology, a precursor to DNA testing.

      Wicoff is leading the review of some 160 cases that an independent investigator identified as having problematic serology tests.

      Richard’s case is the first in that group to prompt a claim of actual innocence.

      Student abducted in ‘87

      Richard was convicted in the January 1987 attack of a 22-year-old nursing student abducted at knifepoint from a laundromat. The man forced her into her car, took her jewelry and drove her to an abandoned apartment where he repeatedly raped her.

      In the months that followed, the victim twice called police after seeing a man she believed was the one who attacked her. Both times, police did not respond.

      In August 1987, seven months after the attack, the woman identified Richard, whom she saw at a store, as her attacker. Police responded that time, arresting him and charging him with aggravated sexual assault, aggravated kidnapping and aggravated robbery.

      It was the first time Richard was accused of a violent crime.

      His criminal history includes a string of drug offenses, a burglary and several theft convictions, most of them misdemeanors.

      At his trial on the robbery charge, testimony from HPD crime lab supervisor James Bolding played a crucial role. Bolding testified about tests performed by another analyst, Christy Kim, the same analyst who helped wrongfully convict Josiah Sutton, who was exonerated in 2003.

      ‘Non-secretor’ issue

      Neither Kim nor Bolding still works at the lab. Kim, who survived attempts to have her fired, retired, and Bolding retired under the threat of termination.

      Bolding told jurors that Richard’s body fluids, such as saliva and semen, give no indication of his blood type, a status known as “non- secretor.” Only 20 percent of the population share this trait. He also told jurors that semen from the rape kit showed no signs of the suspect’s blood type — a coincidence that he said pointed to Richard.

      The prosecutor, Rob Kepple, emphasized those conclusions.

      “Perhaps the most important evidence, the things she couldn’t even tell you about when he was arrested, the blood type,” Kepple told jurors. “Right there. That 20 percent alone is good evidence.” Jurors found Richard guilty and sentenced him to life in prison.

      Prosecutors dropped the other charges after securing the sentence.

      New tests conducted

      Nearly 20 years later, an independent investigation, led by former U.S. Justice Department official Michael Bromwich, uncovered results entirely different from what Bolding told jurors at trial.

      Those results, obtained from the lab’s notes, showed that semen from the rape kit came from a non-secretor, but also showed that Richard does display his blood type in his body fluids, meaning the semen was not his.

      “You can’t have it both ways,” Wicoff said. “So, we ordered tests.” He received the results confirming Richard is a secretor on Friday. “Therefore,” Wicoff said, “he is innocent.”


      New tests show man jailed in 1987 attack is innocent

      House votes to boost payouts for wrongly convicted

      April 24, 2009
      Associated Press Writer

      AUSTIN, Texas — Texas House lawmakers on Friday voted to boost the compensation the state pays to people who were wrongly sent to prison for crimes they didn't commit, and give them health insurance and pay for a college education.

      The bill approved 136-1 raises the lump sum payout from $50,000 to $80,000 for every year spent in prison. It also provides a monthly annuity based on the same amount to give them a lifetime of income.

      The measure also provides the exonerees with health insurance similar to what is provided to state lawmakers and pays for up to 120 semester hours at a college or university.

      The bill now goes to the Senate, which is considering similar legislation.

      DNA testing has exonerated 38, the most in the nation, according to the Innocence Project. Overall, Texas has paid about $9 million to 46 people who were wrongly convicted.

      "This gives me new belief in the justice system," said Charles Chatman, who was 20 when he was convicted of a rape he did not commit and spent the next 26 years in prison before his release in January 2008.

      "I'm overwhelmed, " he said.

      Chatman and about a dozen exonerees and their family members watched from the gallery as the House passed the bill on a voice vote with no debate.

      Wiley Fountain said the annuity, education and financial counseling would have greatly helped him when he was released in 2002.

      Fountain collected $390,000 — minus federal taxes — after spending 15 years for a rape he did not commit. But he's now broke and living on the streets of Dallas, recycling aluminum cans for 35 cents a pound. Fountain, 52, said he had no idea how to handle his money and his freedom.

      "You're not used to all that, and then all of a sudden you've got it. You help this person, you help that person, trying to be nice. Then it's all gone," Fountain said.

      While Fountain has already collected his lump sum payment, he will be eligible for the annuity and other benefits in the bill.

      Rep. Rafael Anchia, the Dallas Democrat who sponsored the bill, said exonerees get less help then adjusting to their new freedom than a typical parolee.

      "These exonerees were pushed out the door, told 'Congratulations, we'll see you later," Anchia said. "This bill cannot make people whole. There's truly no amount of money that can make people whole."

      The bill is named the "Tim Cole Act" in memory of a Fort Worth man who died in prison in 1999 while serving time for a rape he did not commit. DNA evidence later showed he was innocent and a state district judge formally exonerated Cole earlier this month.

      "We're very happy for them," said Cole's brother, Cory Session. "We knew it couldn't do anything to help Tim, but we wanted it to do something for them."

      The bill would allow Cole's family to collect a lump-sum payment because he died in prison. It also allows a lump sum payment equal to $25,000 for every year someone wrongfully convicted was required to register as a sex offender.

      The bill does have some restrictions. If an exoneree takes the money, they give up their right to sue the state. And they will lose the money if they are convicted of another felony.


      The wrongful conviction payments bill is HB1736.


      House votes to boost payouts for wrongly convicted


      Living A Life Sentence
      What Happens After The Innocent Are Exonerated For Crimes They Didn’t Commit? For Many, It's Tougher Than A Prison Yard

      Larry Peterson was found innocent and released more than three years ago after being sentenced to life plus 20 years for the 1987 killing and sexual assault of a young woman in New Jersey. He just recently got his first job.

      (CBS) In Chicago Friday, 55-year-old Alton Logan, who spent 26 years in jail for a murder he did not commit, was exonerated. Over the years who knows how many Americans have been wrongly convicted and imprisoned - or even executed? And even when the mistake is realized, as it was for Logan, what then? Kelly Cobiella reports our Sunday Morning Cover Story:

      At 51, Beverly Monroe was practically central casting for an accomplished middle class mom:

      "I had a great life, absolutely great life," she said. "I had a super job, career. I had my own home. I was financially secure. My daughter Katie had just finished law school, my youngest daughter Shannon was a senior at William and Mary. My son was living with me and going to college.

      "Things could not have been better."

      "And then this happens," Cobiella said.


      In March of 1992 Monroe found her longtime companion Roger de la Burde dead in his Virginia home, a bullet in his head, a pistol by his side.

      By all appearances, it was a suicide. But the police told Beverly Monroe she was suspected of murder ….

      "I had no experience, no thought of ever being accused of anything," she told Cobiella. "I mean, it's incomprehensible."

      It was equally incomprehensible to Beverly's daughter. But, as a young lawyer beginning a new job, Kate Monroe also knew that "incomprehensible" did not make her mother's conviction impossible.

      "I think I understood immediately when Mom was charged that she could be convicted," Kate said. "And I understood when then she was convicted that she might never come home."

      It turns out she was half-right. In October of 1992, a jury believed not her mother but the prosecutor. Beverly Monroe was sentenced to 22 years in prison.

      "I was convicted on not only no evidence, but just sheer speculation, " Beverly said.

      Lawyer Kate Monroe quit her job and spent the next six years searching for proof of her mother's innocence.

      She found it in 1999. Prosecutors, she discovered, had withheld evidence showing that the likely cause of Roger de la Burde's death was suicide, not murder.

      Seven years after her conviction, Beverly Monroe was released.

      "The minute you're falsely accused, your life is gone," said Beverly. "Your life as you knew it will never be the same."

      She was 62 … and starting over.

      "In that time, what do you think you lost?" Cobiella asked.

      "You lose everything that you had in a normal life," Beverly said. "For me it was house, job, career, income, separation from my family. You lose health insurance, life insurance, all of the security that you had."

      Monroe tried to get it all back, starting with a job. And though she had a good earlier job history, along with a masters degree in chemistry, she also had a prison record.

      "See, what I did, and also the most honest approach, is just to talk to people and tell them what happened."

      "Did that work?" Cobiella asked.

      "No," Beverly laughed. "Everybody was extremely empathetic and shocked and stunned. And didn't quite know what to do with that."

      "But they didn't want to hire you."


      "I don't think any of these people realize what they're up against," said Peter Neufeld, co-director of the Innocence Project, the group that - using DNA evidence - so far has helped free 235 people falsely convicted of serious crimes, 17 on death row.

      You lose everything that you had in a normal life. For me it was house, job, career, income, separation from my family. You lose health insurance, life insurance, all of the security that you had.

      Beverly Monroe

      "And the reason is that, when they first come out, not only is there the fame that comes with the media sort of capturing that moment of freedom, but also, they feel, 'Okay, now I've been vindicated. Now everything will come to me, finally, that's been kept from me for so many years,'" said Neufield.

      "So there's an expectation. Unfortunately, reality is different than expectations, particularly for these wrongly convicted."

      Just ask Larry Peterson. He was found innocent and released over three years ago after being sentenced to life plus 20 years for the 1987 killing and sexual assault of a young woman in New Jersey.

      "Yes, I always knew I would get out," Peterson told Cobiella. "I just didn't know when. I didn't know how, you know, but that day came."

      "And what was that day like?"

      "Oh, man, it was joy. It was joy!"

      He was 37 when he went to prison. He was 54 the day he walked out, freed because a DNA test had proved his innocence.

      "Prison is capital H-e-l-l, it's hell," Peterson said.

      We met Peterson in the parking lot of the truck driving school from which he'd just graduated. He was hoping that, after years of failure, it might lead to what he says would be his first job since being released from prison.

      "When I went out to seek employment, any place that you go - and they do a criminal background check, when it come back and I have 'murder' upon my jacket, if you have 'rape' up on your jacket, you can't get a job."

      "But you were exonerated," Cobiella said.

      "What's that?" Peterson laughed. "What does that mean? It simply means that you are out of prison. It doesn't mean it erases your record."

      "When they go to an employer and they bring the newspaper saying they were exonerated, the employer says, 'Well, that's wonderful. But, you know, you've got a 20-year black hole. And besides, even if you were innocent, you hung around some pretty mean characters for 20 years. I'm f------ sorry, you just don't have the skill set I need. I wish you well, but I can't hire you.' And, 'I can't give you this apartment.' And, 'I can't give you credit.'"

      "Are you angry about all of this?" Cobiella asked.

      "Mad as hell. Yes. Mad as hell, yes."

      In the courtroom Thomas McGowan heard a judge express sympathy: "Words cannot say how sorry I am for the last 23 years."

      Twenty-three years - that's how long McGowan was in prison for a burglary and rape he didn't commit.

      "April 16th, that's a good day, good day," he said.

      Cobiella met McGowan just thirteen days after his release.

      "I'm still on this high," he said. "It's the best high. It is. New life. You know, I want to know how that feels to get a job. How it feels to get out there amongst the people. You know, just the whole different thing now, Life. It's a whole different life."

      And while Thomas McGowan's life has changed … "It feels good to go down the street, I am not there at a place with barbed wire, and fences. I am free" … the world around him has changed even more.

      Cobiella took him for a tour of a Circuit City store. "Ever been to a big store like this?" she asked.

      "Not like this."

      "Welcome to the world of electronics!"

      She showed him large flat screen TVs, home theatre systems. "When I went in, could only see that at the movies," he said.

      She showed him a laptop computer and its finger control. "That's the cursor. You've seen that?" she asked.

      "No," he said.

      "What is new to you?" she asked.

      "Everything is new, all that. Everything is new, a whole new world."

      But it turns out that "whole new world" can be tougher than a prison yard.

      "I ain't got no choice but to say it will be beautiful," McGowan said.

      For twelve full months now, Thomas McGowan has been searching for work. He's still unemployed.

      Larry Peterson finally found work as a deliveryman.

      As for Beverly Monroe, she's working, but as a low-paid administrative assistant with no benefits.

      She says playing piano brings some peace. Still, she misses the lifestyle she lost:

      "It would not be enough to survive on if I did not have still some savings, and Social Security," she said.

      Her mother's ordeal has also changed her daughter, Kate. After Beverly was freed, Kate moved to Utah to head the Rocky Mountain Innocence Project.

      "I've seen far worse cases," she told Cobiella. "I've seen cases where you know equally and wholly innocent people, police have manufactured physical evidence. You know forensic scientists have manufactured evidence. You know prosecutors have known that their witnesses were lying."

      Last year, she watched Utah Governor Jon Huntsman sign a compensation law that she helped push through the state legislature. It gives exonerated prisoners about $35,000 for every year of false imprisonment, up to 15 years. Their criminal record is expunged.

      But 25 states have no such program.

      The other half provides a patchwork of compensation.

      The laws in Virginia provide nothing for Beverly Monroe.

      But Kate, who knows so well what can happen to innocent people wrongly convicted, still considers her mother lucky:

      "The reality is, this is a triumphant story. We had a happy ending. And so if anybody were to say, you know, 'Your mom's doing really well-off, considering,' I would say, 'Absolutely.'"

      "Well, I think most people believe 'it'll never be me,'" Cobiella said.

      "Well, I thought that, too!" Beverly said. "And I can now tell anybody in this country, including the prosecution and anyone else, it can happen to anyone, regardless of your economic status, regardless of your education, regardless of your record. It can happen to you."

      Living A Life Sentence

      Confessed kidnapper says he's sorry innocent man did time for 1992 Dallas crime

      April 15, 2009
      The Dallas Morning News

      Lemondo Simmons has admitted that he and a friend kidnapped a couple from Dallas' West End years ago, and that they raped the woman and terrorized another couple. But neither Simmons nor his friend, Byron Bell, ever served time for the crime.

      And because the statute of limitations has expired, they never will.

      Instead, another man, Patrick Waller, was convicted in the case despite proclaiming his innocence. He was in prison for nearly 16 years before prosecutors agreed last year that he was wrongly convicted and he was set free in July.

      Now Simmons, 36, sits behind bars – where he likely would have been all along – accused of another violent crime and facing a possible life sentence. He said in an interview this week from the Dallas County Jail that he wishes Waller hadn't gone to prison for something he did.

      "I was sorry for what we had done," Simmons said in explaining why he confessed last year to the 1992 crime. "I was young, but now I'm a Christian and remorseful."

      Waller, who is taking classes at the University of Texas at Arlington, said Wednesday that he has never spoken to Simmons or Bell.

      "That's the first time I've heard something from either of them about me," Waller said when told of Simmons' apology. "I don't know what to think about it."

      Simmons said that he didn't know Waller wrongly went to prison until prosecutors told him about it last year. DNA linked Bell to the attack, and Bell implicated Simmons.

      Had Waller, now 39, been granted post-conviction DNA testing when he first asked (before Dallas County District Attorney Craig Watkins took office in 2007), the information could have been used to deny parole to Simmons and Bell. Simmons was paroled in 2004 for assault of a public servant; Bell, whose whereabouts are unknown, was paroled a few years later on a burglary conviction.

      Watching the case

      Waller said whether Simmons ends up in prison now shouldn't matter to him because Simmons will never face a trial for the crime for which Waller was wrongly convicted. But Waller said he wants to follow the outcome of the case.

      "I don't sit back and wish for him to go to jail," Waller said. "But if you do wrong, you've got to be punished."

      Waller said that if the jury convicts Simmons of his current charge, aggravated assault with a deadly weapon, jurors should hear about the 1992 attacks during the punishment phase of the trial. Simmons and Bell admitted they committed crimes to a Dallas County grand jury and prosecutor Mike Ware, who investigated Waller's claims of innocence.

      Ware declined to speak about Simmons' new case Wednesday.

      In the old case, Simmons and Bell took the couple to an ATM and then to an abandoned building in Oak Cliff that they called "the castle."

      The woman was sexually assaulted there by both men, but DNA was only found for Bell. Another couple then unexpectedly drove up to the house, and one of the men forced that couple inside at gunpoint.

      Wrong charge?

      Simmons is currently jailed for assaulting his uncle, Melvin Griffin, who Simmons said accused him of sleeping with his girlfriend. They were roommates and constantly argued about it.

      Simmons said his uncle attacked him and he defended himself. But Simmons said he did not use a gun, only his hands.

      Griffin is also in the Dallas County Jail on an aggravated assault charge of his own, accused of choking his girlfriend. He did not respond this week to a request for an interview. Griffin was previously convicted of attempted murder in 1977 and forgery in 1986, according to his indictment for aggravated assault.

      Simmons said the current charge against him is wrong. He said that he should have been charged with a misdemeanor family violence assault.

      He said the district attorney's office doesn't know that Griffin is related to him.

      "It can't be regular aggravated assault because we're blood relatives," Simmons said. "They don't know it's a domestic violence, that we're family."

      Confessed kidnapper says he's sorry innocent man did time

      Reality show on DNA exoneration stirs ethics issues

      By Kevin Johnson
      April 13, 2009

      For the first time, reality TV will explore the growing use of DNA evidence to exonerate the wrongly convicted, in a series that is raising ethical questions before its first episode airs this month.

      Dallas County District Attorney Craig Watkins, who has assisted in the release of 10 wrongly convicted men since taking office in 2007, says the goal of Dallas DNA, scheduled for launch on Investigation Discovery on cable April 28, is to "make justice better by showing the good, the bad and the ugly."

      Some legal analysts say the series could exploit the suffering of victims — including the wrongly convicted — in the name of entertainment.

      "I'd find that very troubling," says Rob Warden, executive director of Northwestern University's Center on Wrongful Convictions. "I wholeheartedly favor calling attention to the innocence movement, and I'm delighted with what Craig Watkins has done while in office, but there are ethical obstacles that have to be negotiated very carefully."

      Jeff Blackburn, chief counsel to the Innocence Project of Texas, says the show is a vehicle to boost Watkins' political career.

      Watkins denies that the series poses ethical risks or that he was motivated by politics. He says the public needs to see how the process works. "At the end of the day, it will build better trust," he says.

      Investigation Discovery, part of Discovery Communications, focused on Texas because Dallas County has had more convicts exonerated after DNA testing than any county in the nation.

      Since 2001, 19 people there have been exonerated based on DNA evidence, including some who served more than two decades in prison.

      Nationally, there have been 235 post-conviction DNA exonerations since 1989, according to the Innocence Project, a New York City-based group that uses DNA evidence to free the wrongly convicted.

      "When you are talking about a person's personal freedom, there are no higher stakes," says Clark Bunting, president of Discovery's emerging networks. "This is shining a light in a dark corner."

      Bunting and Christo Doyle, Dallas DNA's executive producer, say the series avoided ethical problems by letting Watkins view "rough cuts" of the six-part series in advance. If he felt the content breached attorney-client privilege, jeopardized pending cases or violated other legal rules, that material was cut, Bunting says.

      Watkins says cameras and network employees were barred from meetings in which the district attorney and staffers decide whether to pursue the death penalty. Watkins has been reviewing about 40 death penalty convictions.

      The first episode features the September exoneration of Johnnie Lindsey, 56, who was convicted in a 1981 rape case and spent 26 years in prison.

      Blackburn, whose group had been approached to participate in a similar series by an undisclosed network, says he was concerned that his group would "have to stage things" to appeal to an audience. "We couldn't produce what they wanted," he says.

      Watkins says the criticism may reflect his colleagues' disappointment at failing to win their own TV deals. "Obviously," he says, "we're doing good work here, and I'm benefiting politically from it."

      Find this article at:
      Reality show on DNA exoneration stirs ethics issues

      Exonerated call for reform through a bill revamping ID system, DNA testing, appeals

      April 1, 2009
      The Associated Press

      AUSTIN – Some are sad. Some were angry. All are innocent.

      More than a dozen men who spent more than 200 years in prison for crimes they did not commit asked Texas lawmakers Tuesday to pass bills to improve eyewitness testimony, expand post-conviction appeals and DNA testing, and pay more compensation to the wrongly convicted.

      "I'm still not completely free. I'll never be completely free," said Billy James Smith, who spent 20 years in prison on a charge of aggravated sexual assault but was exonerated by DNA testing in 2006.

      "There was no joy in my release," Smith said. "I knew for 20 years I didn't do it. There's something inside of me I lost."

      DNA evidence has freed 36 wrongly convicted people in Texas, the most in the nation, according to the Innocence Project, which works on DNA exoneration cases. Another exonerated person, Timothy Cole, who was cleared in February, died in prison in 1999.

      Many of those exonerated have a common thread: a false eyewitness identification.

      That's what happened to Johnnie Earl Lindsey, who was picked out of a photo lineup by the victim. The woman, who had been attacked a year earlier, described her assailant as shirtless. In the six-photo lineup police mailed to her, Lindsey was one of only two men not wearing shirts.

      She also identified him at trial even though he could produce time cards that showed he was at work when the crime occurred. Lindsey served 20 years of a life sentence before he was finally cleared.

      "It was the only thing that put me in prison," Lindsey said of the testimony.

      The eyewitness identification bill by Sen. Rodney Ellis, D-Houston, requires lineups to be conducted under industry "best practices."

      Those include having lineups conducted by someone who doesn't know which person is the suspect and getting a statement from the witness about the confidence in the selection. All individuals in the lineup would have to fit the description of the suspect.

      The bill passed the Senate Criminal Justice Committee 5-0. At least eight other states require some of the same or similar standards, and some are already being used by local police and sheriffs.

      The exonerees also say it's critical that Texas boost the compensation and care for the wrongly convicted.

      A bill filed by Rep. Rafael Anchía, D-Dallas, would increase lump sum compensation from $50,000 to $80,000 for each year of incarceration.

      It requires the state to pay some of the compensation in annuities, ensuring an income. It also would give them the same health insurance given to state employees, a crucial benefit for those who often emerge from prison with severe health problems but no way to get medical coverage.

      More hearings were to be held today.

      The Associated Press

      Exonerated call for reform

      Texas Senate panel to weigh changes in eyewitness identification procedures

      March 31, 2009
      The Dallas Morning News

      Despite more than 30 wrongful convictions in Texas involving faulty eyewitness identifications, police chiefs and prosecutors have sought to block legislative attempts to change their outdated procedures.

      Law enforcement, fearing prosecution will be hindered, wants legislation limited to more training for police on identification issues. Those seeking change argue that law enforcement has ignored reform for decades and cannot be trusted to act on its own.

      All this has occurred behind the scenes until today, when the debate goes public in a Senate Criminal Justice Committee hearing in Austin.

      Key law enforcement interests and reform advocates have reached a general agreement on legislation to require police agencies in Texas to adopt new written policies on eyewitness identifications, said Edwin Colfax, state director of The Justice Project, a national reform group.

      The agreement stops short of dictating how police should conduct eyewitness identifications. But, if enacted, it would make Texas one of a handful of reform states.

      The effort got a boost from a series of high-profile wrongful convictions exposed by DNA testing. Led by Dallas County, Texas has had more DNA exonerations than any other state over the past eight years.

      Faulty eyewitness identifications have been the leading cause of wrongful convictions. Eighteen of 19 exonerations in Dallas County involved a bad eyewitness identification, an investigation by The Dallas Morning News found last year.

      The exonerations have not convinced all police and prosecutors that sweeping changes are needed. They don't want lawmakers to mandate policies they believe are unworkable, and they fear losing court evidence because of honest police mistakes or technical violations. But leading law enforcement figures have agreed that eyewitness identifications could be improved.

      Those pushing for reform, including defense lawyers and public interest groups, want language stiff enough to compel mandatory identification procedures.

      'Pathetic response'

      Sen. Rodney Ellis, D-Houston, dropped his original version of the bill that would have ordered police agencies to follow specific lineup methods or face exclusion from trial of identification evidence. Gov. Rick Perry vowed to veto any bill that applied laws on evidence exclusion to eyewitness identifications, said Keith Hampton, legislative director of the Texas Criminal Defense Lawyers.

      The compromise legislation requires police agencies to have written policies on identifications that reflect the latest scientific research. But it specifies that the judicial rule governing what is admissible evidence does not apply to eyewitness identifications.

      "I'm more optimistic [about reform legislation becoming law] than I've been in my 19 years in the Senate working on these issues," Ellis said in an interview last week.

      Hampton said prosecutors had gutted the aim of the original bill.

      "This is a pathetic response," he said. "It's a bill that does nothing."

      Prosecutors do not want real reform, Hampton said, and are conducting a "whisper campaign" to prevent Ellis' bill from being debated on the Senate floor even if, as expected, it clears committee.

      Colfax agreed that the original bill was softened by opposition. But he said it would establish a framework for future meaningful change.

      "It's not as if the defense lawyers are not coming off better than they were before," he said.

      The compromise bill calls for the Law Enforcement Institute at Sam Houston State University to draft a model policy on eyewitness identifications within six months of the law taking effect in September. Police agencies would have a year to adopt the policy.

      Instead of mandating that police use an identification procedure favored by reformers, known as a double-blind, the compromise would have the model policy be based on the latest research of best practices. Any police agency that did not adopt the model policy could have its identifications subject to court challenges.

      Double-blind procedures require that the investigator who conducts a lineup not be involved in the case to reduce the risk of police bias that might influence witnesses.

      While police agencies in a few states have adopted the practice – some under orders from lawmakers or state officials – its effectiveness is debated by law enforcement authorities nationwide.

      No written policies

      Police agencies have been slow to make changes in their eyewitness procedures, despite mounting evidence of their role in wrongful convictions. Most police departments in Texas do not have written policies, The Justice Project said it found.

      The Texas Police Chiefs Association suggested that eyewitness procedures could best be improved by legislative funding for officer training.

      James McLaughlin, the association's executive director, said police did not want to be ordered to use an identification policy that might prove ineffective.

      "Our concern is that if we legislate something in, and that turns out not to be the best way, we're two years away from fixing anything," he said.

      John Bradley, the Williamson County district attorney who was involved in the negotiations, said he did not believe the state's high exoneration rate was sufficient reason to outlaw procedures that had worked well for decades.

      "Most of the exonerations that have occurred were the result of practices that were in place 20 and 30 years ago, practices that have largely been, I hope, abandoned," Bradley said.

      Texas Senate panel to weigh changes in eyewitness identification procedures

      Bill would improve services to Texas DNA exonerees

      Associated Press Writer © 2009 The Associated Press
      March 30, 2009

      DALLAS — Wiley Fountain spent 15 years in a jail cell for a rape he did not commit.

      Now the wrongly convicted man is serving another kind of time. He's free, but he's homeless.

      After squandering nearly $390,000 he received from the state as compensation for his time behind bars, Fountain, 52, spends his days collecting aluminum cans for 35 cents a pound. He spends his nights in a tattered sleeping bag on the asphalt behind a liquor store in a run-down South Dallas neighborhood.

      To other exonerees and their lawyers, Fountain is the worst-case example of the need for reforms in how the wrongly convicted are compensated. They are asking the Texas Legislature to increase compensation and to expand its offering of social services to give newly freed men a better shot at a second chance.

      "First they lock you up and throw away the key, and when they turn you loose, they unlock the door and act like they've never known you," said Billy Smith, a Dallas exoneree who served about 20 years of a life sentence on a wrongful conviction of aggravated sexual assault. "I had no money, no place to stay, no medical assistance, no anything."

      DNA evidence has freed 36 wrongly convicted people in Texas, including 19 in Dallas County. That's the most in the nation, according to the Innocence Project, which works on DNA exoneration cases. But unlike parolees, exonerees get almost no help from the state when they first re-enter society.

      That could change this year.

      State Rep. Rafael Anchia, D-Dallas, filed a bill to increase lump sum compensation from $50,000 to $80,000 for each year of incarceration.

      The bill also would require the state to pay some of the compensation in annuities, assuring exonerees a lifetime income. The payments would be retroactive to exonerees who already received lump sum payments, including Fountain, and would cease if there was a subsequent felony conviction.

      "I don't imagine any of us locked up more than 20 years have a lot of experience managing personal finances," said Charles Chatman, who was exonerated in January 2008 after nearly 27 years.

      The bill also would provide exonerees the same health insurance given to state employees, a crucial benefit for those who often emerge from prison with severe health problems but no way to get medical coverage.

      Smith's lawyers attempted to sign him up for Social Security disability, which would have made him eligible for Medicare coverage.

      But the government rejected Smith's application, saying he hadn't paid enough into the system to qualify for benefits.

      "It's critically important," Innocence Project policy analyst Rebecca Brown said of services for exonerees. "The needs people face upon release are profound. They require everything from housing to clothing to transportation to medical attention."

      The outcomes for exonerees are mixed. Anthony Robinson, an exoneree from Houston, became a lawyer. Larry Fuller, who received $1 million in state compensation, "is doing pretty well," said Clay Graham, a Dallas-area attorney who works with exonerees. James Giles, who spent 10 years in prison on a wrongful rape conviction, lives with his wife in Lufkin, where they run accounting and bail bonding businesses.

      Those are the success stories. At the opposite end there is Fountain and other exonerees who find themselves in trying circumstances.

      Keith Turner, wrongly convicted of a 1982 aggravated sexual assault, served four years of a 20-year sentence and now lives in a boarding house, Graham said.

      Eugene Henton's situation was more complicated. He pleaded guilty to a 1984 sexual assault he did not commit to avoid a lengthy sentence.

      After serving 18 months in prison, he was arrested again on unrelated drug possession and assault charges and this time received a 40-year sentence, based on his prior violent criminal history. After DNA testing proved he was innocent of the original sexual assault, he was released on time served.

      Henton said he spent years searching for a job, toting news clippings and court rulings to prove to employers that he was wrongly convicted. Until recently, no one would hire him.

      "I'm shunned," Henton said. "They get a background check, and they say, `I can't hire you because of this rape case.'"

      Of the 25 states that provide some form of compensation to exonerees, Vermont's program is considered the closest thing to a model, Brown said. It offers up to $60,000 for each year of incarceration, 10 years of state health coverage and repayment for lost wages and attorney's fees.

      Vermont, however, has had no DNA exonerations, according to Innocence Project figures. Texas' nation-leading number of exonerees was fueled by a stream of bad convictions in Dallas, which alone has had exonerations than all but two states.

      Exoneration hearings have become common events in Dallas courtrooms in recent years. They've also highlighted the lack of social services available to the wrongly convicted.

      Such services are commonplace for convicts paroled out of prison.

      Parolees receive $50 and a bus ticket to anywhere in Texas upon release, and another $50 when they meet up with their parole officers, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

      There are re-entry centers in major cities that offer employment help, counseling and substance abuse treatment, and there are halfway houses for parolees who need additional supervision.

      "We're not releasing people so they can be homeless," Clark said. "That doesn't happen."

      But that's what routinely happens to exonerees, who are released suddenly and with no place to go. "It's really terrible," Smith said. "People who get out on parole have a better chance of getting started on the right foot than a person who has been exonerated."

      An ad hoc support system has sprung up in the absence of services from the state. Fellow exonerees have become fixtures at hearings for the newly freed.

      They offer whatever help they can. Chatman has organized clothing drives and other exonerees have chipped in for prepaid cell phones.

      Giles presents a $100 bill to newly freed men, a nod to the money parolees receive.

      Outside help tends to come from faith groups. Jaimie Page, a professor at the University of Texas-Arlington, has started a counseling program that earlier this month attracted several ministers and a Catholic church volunteer. Paige said faith-based groups have helped out, but so far there has been no assistance from government agencies. Funding for her program runs out in October.

      Also at the recent counseling session were 11 exonerees, 10 of them from the Dallas area and an 11th from Houston who has since become a lawyer. It had the feel of an Alcoholic Anonymous meeting, with exonerees introducing themselves and briefly telling their stories:

      "My name is Patrick Waller, and I was wrongly convicted of aggravated robbery and aggravated kidnapping. I spent 16 years, two months and 24 days in prison before I was exonerated."

      On the day of the meeting, Fountain was about five miles away, outside the liquor store where he spends most of his time. On cold days, he finds shelter in a nearby vacant home.

      "I'd do it a whole lot different," said Fountain, thinking about getting another chance. "I've got to live life like I'm supposed to. I can't blame nobody but me."

      Bill would improve services to Texas DNA exonerees

      To Be Equal - DNA Testing Should Be a Right!

      By Marc H. Morial
      NNPA Columnist
      Originally posted 3/25/2009

      (NNPA) - Imagine being convicted of a crime you didn't commit and languishing in prison for 11 years until new DNA evidence proved your innocence.

      That's just what happened to Ronald Cotton whose story was told on CBS' 60 Minutes recently. Cotton's accuser, Jennifer Thompson, was absolutely certain she correctly identified the man who broke into her Burlington , North Carolina apartment and raped her on the night of July 28, 1984.

      But she was wrong. And her mistake produced more than one other victim of that brutal crime – Ronald Cotton, an innocent man who was sentenced to life in prison, and several other women who were raped by the real criminal who remained free.

      What finally turned the tide in Cotton's case was the science of DNA testing which Cotton's lawyer was allowed to use to prove his client's innocence.

      The real crime is that hundreds of wrongly convicted people are now behind bars, not only because of eyewitness flaws, but also because of the refusal by a small number of states to allow DNA evidence to be used to prove their innocence. According to the 60 Minutes report, there have been 233 people exonerated by DNA evidence across the country. More than 75 percent of them were convicted because of mistaken identity.

      Ronald Cotton was one of the lucky ones. Timothy Cole of Lubbock , Texas was not so fortunate. He was sentenced to 25 years in 1985 after being wrongly identified by a rape victim. In 1999, Cole died in prison before DNA testing and the jailhouse confession of another inmate later cleared his name.

      According to the Innocence Project, a national non-profit legal clinic dedicated to exonerating innocent people through DNA testing, there are thousands of prisoners desperate to have their cases evaluated.

      Some of them are on death row. Most of them are ''poor, forgotten and have used up all legal avenues for relief. The hope they have is that biological evidence from their cases still exists and can be subjected to DNA testing.''

      Dallas County District Attorney, Craig Watson, the first African American District Attorney in Texas , has made this issue a centerpiece of his work.

      He believes the DA's job is not only about prosecuting the guilty, it is also about protecting the innocent. That's why, in 2007 he established the Conviction Integrity Unit, the first division of its kind in the country dedicated to overturning wrongful convictions and securing the release of men and women who have been wrongfully imprisoned in Texas.

      His efforts have helped secure the release of more than 19 wrongfully convicted prisoners thus far. Unfortunately, six states still deny prisoners access to DNA testing: Alaska, Alabama , Massachusetts , Oklahoma, Mississippi and South Dakota.

      The Supreme Court is now deliberating an Alaska case that could grant all prisoners that right. We believe that's what the Court should do.

      In a nation that prides itself on the rule of law, there is no good reason to deny prisoners the right to DNA testing if it can prove their innocence, identify the guilty and prevent a tragic miscarriage of justice.

      Marc H. Morial is president and CEO of the National Urban League.

      To Be Equal - DNA Testing Should Be a Right!

      Study: Witness errors lead juries astray

      DNA undoes the mistakes on the stand during trials

      March 26, 2009


      Six men whose cases were investigated by Houston police were wrongfully convicted on bad eyewitness identification.

      • Kevin Byrd: served 12 years for rape.

      • Ricardo Rachell: • served five years for sexual assault of a child.

      • Anthony Robinson: • served 10 years for rape.

      • George Rodriguez: • served 17 years for rape and kidnapping.

      • Josiah Sutton: • served five years for rape.

      • Ronald Taylor: served 12 years for rape.

      Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

      Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

      Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

      “Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

      “But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.

      In many of these cases, not only was eyewitness testimony wrong, but DNA evidence was faulty or absent altogether. Three of the Houston cases contained flawed forensics from the HPD crime lab.

      Houston Police Chief Harold Hurtt has said he plans to issue written instructions on lineup procedures, but for now, HPD has none.

      “Officers are taught standard operating procedures in the academy and from there (procedures) are managed and done by various divisions within the department,” said Craig Ferrell, HPD general counsel. “But we do not have a written general order.”

      Lawmakers weigh reform

      The Justice Project report calls on law enforcement agencies to adopt several procedures, such as documenting the entire lineup process and having an uninvolved or “blind” officer conduct a lineup. It also recommends that witnesses see suspects’ photos one after another rather than at the same time in an array. The report’s release comes as lawmakers weigh a host of legislation aimed at reforming the criminal justice system including:

      • Requiring all law enforcement agencies to adopt written policies for conducting eyewitness identification.

      • Requiring officers to record interrogations.

      • Creating a commission to examine the errors that contribute to wrongful conviction.

      • Requiring corroboration for evidence offered by informants.

      The bills face opposition from some police and prosecutors, including some who say there is no need to mandate police procedures. Hurtt, however, has said he would support some of the legislation, if he agrees with the prescribed practices.

      “The chief is supportive of the concept of developing best practices,” Ferrell said. “The biggest point of continued discussion is what the best practice is, whether you use sequential or simultaneous arrays or blind lineups.”

      Mistaken eyewitnesses have played a role in all of the Houston DNA exonerations since 1994, including the most recent of Ricardo Rachell, who was released from prison in December after tests proved he was not guilty of the 2002 sexual assault of an 8-year-old boy.

      The victim’s identification of Rachell, who has a severe facial deformity, served as the primary evidence at trial.

      “These mistakes could be prevented with better practices,” Sen. Rodney Ellis, D-Houston, said in Austin. “Only 12 percent of law enforcement agencies in Texas even have written procedures and I think that is simply unacceptable.”

      New Report Analyzes
      Texas Wrongful Convictions Exposed by DNA

      March 25, 2009

      It is difficult to fathom that thirty-nine innocent Texans have spent more than five hundred years in prison for crimes they did not commit.

      This alarming figure is detailed in a new report issued this week by The Justice Project: Convicting the Innocent: Texas Justice Derailed.

      Unfortunately, five hundred years does not reflect the actual amount of time all innocent people have spent wrongfully imprisoned in Texas because the report only focuses on individuals who were exonerated by DNA evidence, which is available in only a fraction of cases. Each DNA exoneration exposes flaws in our criminal justice system that lead to unreliable evidence and inaccurate verdicts in our courts.

      It is time Texas and the rest of the country confront these flaws and learn from these costly mistakes.

      The costs of wrongful convictions are profound, and begin with the devastation suffered by the wrongfully convicted person and family.

      Everyone involved in these cases is affected, from jurors who are presented with faulty evidence, to the crime victims who are denied the justice of seeing the real perpetrator convicted. Further, every wrongful conviction undermines public safety. When the wrong person is prosecuted and convicted, the actual perpetrator remains free to commit more crimes--crimes that could have been prevented.

      While some error is inevitable in a system run by human beings, many of the mistakes leading to wrongful convictions can be prevented with the right safeguards in place. An analysis of all wrongful convictions in Texas reveals distinct patterns in the types of mistakes that lead to convicting the innocent. As a result, these patterns guide a clear path toward reforms that will improve the reliability of evidence in our courts.

      The overwhelming majority of wrongful convictions in Texas, as is the case in the rest of the country, are a result of eyewitness misidentification. Decades of research on eyewitness memory reveals that changes in the way we present photo and live lineups can reduce the risk of error. Despite the fact that more accurate procedures have been endorsed by the U.S. Department of Justice and other organizations for years, most police departments do not follow them.

      In fact, the vast majority of police departments in Texas do not have any written procedures for conducting lineups. By requiring police to follow written policies that include proven strategies for reducing error, Texas can improve the reliability of eyewitness evidence and significantly reduce the risk that a false identification will lead to another wrongful conviction.

      Eyewitness reform is a small part of the broader reform needed to effectively prevent wrongful convictions in Texas.

      Texas is long overdue in requiring electronic recording of custodial interrogations to false confessions, which are a documented reality.

      Unreliable testimony from informants must be subjected to greater scrutiny and more transparency. Forensic oversight should be improved and its standards strengthened. Until these reforms are implemented, Texas will continue to make preventable mistakes in criminal trials, and wrongful convictions will continue to occur.

      Each wrongful conviction undermines public confidence in our criminal justice system. It is time the state of Texas to takes action to restore public confidence and ensure that no more innocent people are convicted of crimes they did not commit. More than five hundred years of time spent for wrongful convictions is more than enough of a reason for Texas to take action.

      John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

      Texas Wrongful Convictions Exposed by DNA

      Editorial: Watkins' DNA legislation offers overdue justice

      March 17, 2009

      The DNA stories that make headlines usually have happy endings – exonerations that allow the prison door to swing open and an innocent man to go free.

      But what happens when a DNA match leaves everyone at loose ends? DNA evidence can incriminate, as well as exonerate, and for some victims, getting answers about their attacker only brings frustration.

      Often, the statute of limitations has expired. And even though a DNA match has been made, prosecution isn't an option. For victims in these cases, evidence identifying their attacker only serves to pinpoint the person who got away with a crime.

      But needed legislation, championed by Dallas County District Attorney Craig Watkins, would change that and give many victims some degree of closure. When a DNA test links someone to a crime, that information would be added to the suspect's criminal history – even in decades- old cases.

      The bill, filed by Sen. John Carona and Rep. Allen Vaught, would provide many rape victims with some assurance that their attackers will be held accountable. Suspects still won't be prosecuted if the statute of limitations has expired, but noting the DNA match in criminal histories could affect sentences for other offenses, as well as parole and bail decisions.

      Dallas police are reopening a raft of unsolved rape cases, raising tough questions about how to proceed with suspects who often can't be prosecuted. Watkins had hoped to go even further; he and police had discussed the possibility of compelling suspects to register as sex offenders.

      But the bill as crafted strikes a fair compromise and appears to be less vulnerable in a legal challenge.

      This common-sense legislation simply requires a record of test results that link a suspect to a crime. Victims would get a measure of closure, and attackers would see their names attached to the brutal crimes they committed.

      Watkins has predicted easy passage for this bill in the Legislature.

      Let's hope he's right.

      Watkins' DNA legislation offers overdue justice

      Bill co-authored by Duncan would establish exoneration process

      By Elliott Blackburn
      March 17, 2009

      Legislation co-authored by Lubbock's state senator would clear the path to exoneration for cases like an innocent Texas Tech student who died in prison serving time on a wrongful conviction.

      Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, filed legislation late last week detailing how to clear Timothy Brian Cole's name and handle any other cases of posthumous exoneration.


      Have the Eyes Had It?
      Is our eyewitness identification system sending innocents to jail?

      By Dahlia Lithwick
      Posted March 14, 2009

      We are able to find everything in our memory, which is like a dispensary or chemical laboratory in which chance steers our hand sometimes to a soothing drug and sometimes to a dangerous poison.
      —Marcel Proust

      Describe the last person who served you a coffee. What if I helped refresh your memory? Showed you some photos of local baristas? Pulled together a helpful lineup? Cheered exuberantly when you picked the "right" one? Now imagine that instead of identifying the person who made your venti latte last week, we had just worked together to nail a robber or a rapist. Imagine how good we would feel. Now imagine what would happen if we were wrong.

      Last month, a Texas judge cleared Timothy Cole of the aggravated sexual assault conviction that sent him to prison in 1986. Although his victim positively identified him three times—twice in police lineups and again at trial—Cole was ultimately exonerated by DNA testing. The real rapist, Jerry Wayne Johnson, had been confessing to the crime since 1995. Unfortunately, Cole died in prison in 1999, long before his name was cleared.

      Our eyes deceive us. Social scientists have insisted for decades that our eyewitness identification process is unreliable at best and can be the cause of grievous injustice. A study published last month by Gary Wells and Deah Quinlivan in Law and Human Behavior, the journal of the American Psychology-Law Society, reveals just how often those injustices occur: Of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification, more than any other single factor.

      Wells has been studying mistaken identifications for decades, and his objection to the eyewitness identification system is not that people make mistakes. In an interview he explains that eyewitness evidence is important but should be treated—like blood, fingerprints, and fiber evidence—as trace evidence, subject to contamination, deterioration, and corruption.

      Our current criminal justice system—blessed by a 30-year-old Supreme Court precedent—allows juries to hear eyewitness identification evidence shaped by suggestive police procedures. In a 1977 case, Manson v. Braithwaite, the Supreme Court held that evidence that was a product of suggestive identification procedures need not be excluded if the identification was nevertheless deemed "reliable." Five criteria for determining whether that identification could be reliable were laid out—including how much opportunity the witness had to view the perpetrator and how certain she was of her identification. In the intervening years, social scientists have called into question much of the science underlying these five factors. Today we know, for instance, that you can have a good long look, be certain you have the right guy, and also be wrong. But Manson is still considered good law.

      Jennifer Thompson was 22 the night she was raped in 1984. Throughout the ordeal, she scrupulously studied her attacker, determined to memorize every detail of his face and voice so that, if she survived, she could help the police catch him. Thompson soon identified Ronald Cotton in a photo lineup. When she—after some hesitation—again picked Cotton out of a physical lineup a few days later, a detective told her she'd picked the same person in the photo lineup. As Thompson told Leslie Stahl on CBS last weekend, that assurance led her to think: "Bingo. I did it right. I did it right."

      But in this case Thompson got it wrong, although Cotton served 10 and a half years before DNA evidence exonerated him and decisively implicated another man, Bobby Poole. The curious part of the story is that despite Thompson's determination to memorize every detail, when she first saw Bobby Poole in court she was certain she had never seen him before. Indeed, according to Wells and Quinlivan, "Even after DNA had exonerated Cotton and Thompson herself had accepted the fact that Poole was her attacker, she had no memory of Poole's face and, when thinking back to the attack she says, 'I still see Ronald Cotton.'"

      How did our eyewitness identification system manage to paint a detailed picture of the wrong face in Jennifer Thompson's mind while somehow completely erasing the right one? Wells and Quinlivan's paper suggests a host of tricks the mind can play, ranging from incorporating innocent "feedback" from police investigators, to increasing certainty in one's shaky memories that become reinforced over time.

      Add to that Thompson's determination to regain control over her life, and her need to believe that the justice system was just, and it would have been doubly hard for her to look at a police lineup that, as it happened, did not include an image of the real rapist and walk away. To hear Thompson and other victims tell it, being part of a system that identified and ultimately convicted the wrong man became another form of victimization, and for that reason alone the system needs to be reformed.

      The problems with the eyewitness identification system cannot be laid at the feet of crime victims any more than they can be blamed on police investigators. Wells' argument for reforming our eyewitness identification system is that the incentive for the police to subtly nudge our memories goes not only uncorrected by the justice system, but sometimes is rewarded by it. Wells wants the Supreme Court to revisit the scientific assumptions underpinning Manson v. Brathwaite, which allows such identifications to come into a courtroom as long as the identification is "reliable."

      Whether or not the John Roberts court wishes to take up the issue of innocent prisoners—there is, for instance, a case now percolating through the New Jersey courts testing the scientific premises of Manson—a few states and cities have used innocent exoneration scandals to rethink their eyewitness identification practices in ways that would begin to restore the credibility of such evidence.

      Proposed changes include showing victims photos sequentially, explaining to the victim that the perpetrator may not be included in the lineup, and ensuring that whoever conducts the lineup has no knowledge of which person is the actual suspect.

      This is not an issue that tracks the usual pro-prosecution, pro- defense divide. Mostly, police departments don't change their eyewitness identification procedures simply because there is no big loud constituency demanding that guys in lineups be treated more fairly. But some of the most zealous reformers of the current eyewitness identification process are lifelong conservatives who recognize that the credibility of the whole justice system is on the line each time an innocent man goes to jail. That's because when that happens, a guilty man often walks free.

      A version of this article appears in this week's issue of Newsweek.

      Dahlia Lithwick is a Slate senior editor.

      Article URL: Have the Eyes Had It?

      Mar. 14, 2009

      Bill would up penalty on prosecutors who suppress evidence


      In response to the exoneration of wrongfully convicted inmates, lawmakers filed legislation this week to crack down on prosecutors who withhold vital information from defendants.

      State Sen. Royce West, D-Dallas, filed the bill, SB 1608, after 19 Dallas County men — and at least 35 others statewide — were found to have been wrongfully imprisoned, sometimes after improper conduct by prosecutors.

      The bill would lift the statute of limitations on official-oppression cases and raise the penalty from a misdemeanor to a state jail felony if the withheld evidence was favorable to the defendant.

      Kelvin Bass, legislative aide for West, said the bill would allow for review years after wrongful conviction.

      But Terri Moore, first assistant district attorney for Dallas County, said the bill would expose prosecutors to punishment even if police had suppressed evidence and prosecutors didn’t know about it.

      "Now I’m committing a felony because I didn’t turn something over to the defense that I didn’t even know existed?" Moore said. "I got a problem with that."

      State Rep. Elliott Naishtat, D-Austin, who sponsored the House version of the bill, HB 3351, said those concerns will likely be addressed in later versions. But Naishtat said the legislation is needed for prosecutors who deliberately suppress evidence.

      "We need to make it clear to all prosecutors that suppression of evidence favorable to a defendant is unacceptable and illegal."

      The bill is one of many being filed this session dealing with wrongful prosecutions.

      Last month, Timothy Cole of Fort Worth was posthumously exonerated of his 1986 conviction for the sexual assault of a Texas Tech University student. He died in 1999 while serving a 25-year sentence.

      One of the lessons of the Dallas County cases, Moore said, is that DNA evidence has shown that law enforcement relied too heavily on witnesses’ accounts and the way those identifications were handled.

      "Technology showed us how poor eyewitness investigation is," she said.

      In 2008, the Texas Court of Criminal Appeals established the Texas Criminal Justice Integrity Unit to review the strengths and weaknesses of the criminal justice system.

      But state Sen. Rodney Ellis, D-Houston, has filed SB 115, which would establish an independent innocence commission.

      Justice reform Several bills have been filed related to actual- innocence cases.

      SB 115 would establish an innocence commission.

      SB 116 would require video recording of custodial interrogations.

      SB 117 would increase the accuracy and reliability of eyewitness identification.

      HB 3594 would ensure the preservation of biological evidence.

      HB 1736 would increase the lump sum that exonerees could receive from the state to $80,000 for each year of imprisonment. Exonerees are now eligible for $50,000 per year.


      Bill would up penalty on prosecutors who suppress evidence

      Lykos: wrongful conviction a cascading failure

      Copyright 2009 Houston Chronicle
      March 12, 2009

      Harris County District Attorney Pat Lykos publicly admonished police, prosecutors and defense attorneys today in the wrongful imprisonment of an innocent Houston man, saying his conviction resulted from “a series of unfortunate events, blunders and omissions” and a “cascading, systemwide breakdown.”

      Her rebuke, contained in a rare post mortem report on the wrongful conviction of Ricardo Rachell, blames police for failing to investigate fully, prosecutors for not demanding DNA testing, defense attorneys who never requested forensic evidence analysis, and what she considers the most “egregious” failure: a dysfunctional Houston Police Department crime lab.

      Rachell last year was cleared in the 2002 sexual assault of an 8-year- old boy, for which he was serving a 40 year-sentence. Although he long protested his innocence and pointed to another man who continued to assault young boys after Rachell’s arrest, his claims were not investigated until recently.

      Last month, Andrew Wayne Hawthorne, a convicted sexual offender already serving a prison sentence, was charged with the assault that put Rachell behind bars. When DNA evidence was finally tested in 2007 — though it took seven months to test it — the examination confirmed Rachell was not the assailant and Hawthorne most likely was.

      “The closure of the ... DNA crime lab was the most egregious system failure,” Lykos wrote in her report. “This lab was closed from December 2002 until May 11, 2005. It is a probability that, had the lab been open and operating correctly, someone would have requested testing of DNA evidence.”

      The HPD crime lab had been shut down because of shoddy work and other problems.

      Lykos further notes that the District Attorney’s Office had no policy of testing forensic evidence before trial, something she said will be changed immediately.

      Among other things, Lykos pointed to a letter written by Rachell to a Houston police detective on Sept. 21, 2007, four years after his conviction, in which Rachell blames Hawthorne for the assault and asks that police investigate.

      A lieutenant acknowledged similarities, but “distinguished the facts of Rachell’s case from that of Hawthorne,” Lykos says in her report.


      Lykos: wrongful conviction a cascading failure

      Lykos makes DNA testing mandatory

      District attorney says new policy is aimed at preventing wrongful convictions such as the Rachell case

      Copyright 2009 Houston Chronicle
      March 12, 2009

      Harris County District Attorney Pat Lykos will require prosecutors to test DNA evidence in every case where it is available and relevant to prevent miscarriages of justice such as that which led to an innocent man spending more than five years in prison.

      “We are going to establish clear policies regarding forensics,” Lykos told the Houston Chronicle recently. “In the (Ricardo) Rachell case, there clearly was forensic evidence and it was not tested and the question is, ‘Well, why not?’ ”

      She is expected to release today the first-ever postmortem of a wrongful conviction in Harris County, where DNA evidence has exonerated five men in recent years but — until now — has prompted little dissection of what went wrong.

      Lykos’ report will detail the factors that contributed to the conviction of Ricardo Rachell, who last year was cleared of the 2002 sexual assault of an 8-year-old boy for which he was serving a 40- year sentence.

      The report will provide guidelines that spell out when prosecutors should order DNA tests and also will call for the creation of a regional crime lab, which Lykos has pushed for since her campaign last year.

      Her findings in the Rachell case will be the latest in a series of changes she has implemented since taking office in January. Lykos has reversed some unpopular policies of her predecessor, last week abandoning the long-standing policy that criminal defense attorneys were not allowed to make copies of police offense reports in prosecutors’ files.

      In the Rachell case, Houston Police Department officers collected a rape kit from the victim and reference samples from Rachell in 2002.

      But that evidence never was tested until last year, when it pointed to another man who committed other assaults while Rachell was in prison. So far, no one from the District Attorney’s Office has been able to say why the evidence was not tested sooner. Lykos will use the Rachell case to push forward a plan to create a regional crime lab. “You cannot expect a police department, no matter how large, to oversee a crime lab,” Lykos said.

      The idea of creating regional labs has surfaced several times since 2002, when HPD shut down its lab after shoddy work came to light. In 2005, lawmakers tried to create a network of regional labs across Texas, but their efforts failed amid resistance to change and questions about how to pay for it.

      This time, Lykos is proposing something more local, possibly basing a regional lab at the Harris County Medical Examiner’s Office, which operates its own crime lab.

      County Judge Ed Emmett met Tuesday with Medical Examiner Dr. Luis Sanchez to talk about how it could be done.

      “It’s a great idea,” Emmett said. “I think the idea is being met with favorable reactions now because of all of the circumstances that have gone on and the need to have a quality operation.”

      Mayor Bill White said the city “would be happy to explore new facilities with other participants in the criminal justice system in this region.” And Police Chief Harold Hurtt, who in the past has expressed concern about the cost and speed of a regional lab, also supports the idea.

      “I don’t think we have a choice,” he said Wednesday. “If we are ever going to have the full confidence of the community, we are going to have to make this move.”


      Lykos makes DNA testing mandatory

      High Court to Hear DNA Testing Case

      Justices to Debate Whether Convicts Should Be Guaranteed Access to Latest Techniques

      Kirk Bloodsworth spoke to reporters in Annapolis in 1997, after DNA tests exonerated him. He had spent nine years in prison on a wrongful murder conviction. (By James M. Thresher -- The Washington Post)

      By Robert Barnes
      Washington Post Staff Writer
      February 22, 2009; Page A03

      Their stories are familiar, even if their names no longer resonate: Bruce Godschalk, freed after spending 15 years in prison for rapes he did not commit; Jeffrey Deskovic, wrongly convicted for murder and released after spending nearly half his life behind bars; Kirk Bloodsworth, the Marylander who spent years on death row for murder before the true killer was identified.

      They are among more than 200 people nationwide who were freed because DNA tests performed after their convictions showed they could not have committed the crimes.

      And they now have joined civil rights groups, some current and former prosecutors, and a convicted Alaskan rapist to urge the Supreme Court to apply constitutional protections for the first time to what the prisoners' lawyers call "arguably the most important development in the history of forensic science: the advent of DNA testing."

      They are opposed by victims rights groups; the vast majority of states, which have a patchwork of laws granting DNA access; and the federal government. The governments say that creating a constitutional right to the testing would infringe on states' rights, overwhelm them with frivolous demands and create an endless right of appeal for those convicted of the most violent crimes.

      "These statutes reflect a careful balancing of the government's interests in finality, comity, and conservation of scarce resources," lawyers for the state of Alaska argue, "against a prisoner's interest in justice in those rare cases" when innocence could be proven by new forensic technology.

      It is the Supreme Court's first case that confronts the dilemma of how to deal with DNA evidence, which former attorney general John D. Ashcroft called the "truth machine of law enforcement."

      The increasingly accurate nature of biological testing has revolutionized criminal forensics, become a staple of television crime shows and, according to the Innocence Project, whose lawyers are representing convicted Alaskan rapist William G. Osborne, exonerated 232 prisoners, 17 of whom had been sentenced to death.

      Osborne was convicted of the brutal rape and assault of a prostitute in a secluded area near the Anchorage International Airport in 1993. Two men had agreed to pay the woman for oral sex; instead, one forced her to perform fellatio while the second raped her. The men ordered the woman to leave the car and lie facedown on the snow, but she ran instead. They beat her until she feigned death, and one man fired a shot that grazed her forehead. Days later, police stopped Dexter Jackson on a driving infraction and found in his car a gun and knife belonging to the prostitute. Jackson implicated Osborne as his accomplice and the rapist. The woman later identified Osborne from a photo lineup as the "most likely" and "most familiar" suspect in the group. She said he had used a blue condom, which police found at the scene. Testing on the semen was consistent with Osborne's DNA -- but also with 14.7 to 16 percent of all African Americans'. Osborne's lawyer, basing his defense on Osborne's claim of an alibi, did not seek a more discriminating test that could clear him -- or link him more conclusively to the crime. He was found guilty and sentenced to 25 years in prison, with five years suspended.

      Osborne wants to pay for a more exacting test of the DNA evidence that was introduced at his trial -- one so precise that even the state concedes it would probably prove his guilt or innocence -- but has been denied access by prosecutors.

      Alaska is one of six states that do not have statutes allowing post-conviction access to DNA evidence, and although courts there have agreed to testing in a handful of cases, the testing has not taken place.

      Among other objections in Osborne's case, the state fought his petition in federal courts that he deserved access to the evidence under civil rights laws, saying Supreme Court precedent does not allow such a petition to attempt to invalidate a conviction.

      The U.S. Court of Appeals for the 9th Circuit in San Francisco disagreed with the state's argument, siding with Osborne that the evidence he sought would not automatically prove his innocence and could just as well establish his guilt. The court said its decision followed the principles in another Supreme Court precedent, Brady v. Maryland, which established the defense's right to exculpatory evidence at trial.

      A brief on Osborne's behalf filed by the American Civil Liberties Union, the Rutherford Institute and criminal defense lawyers said it should be clear that such a constitutional right exists, even if it has not been articulated. "If the Constitution' s protection of individual liberty means anything, it must mean that a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration, " the groups argue.

      But Alaska Assistant Attorney General Kenneth M. Rosenstein said that forcing all states to comply with a certain procedure would be a "relatively unprecedented" imposition on states' abilities to decide their own criminal procedures.

      He said the court should reject Osborne's argument "that this should be taken out of the hands of the state, which is unprecedented in a post-conviction context, where the Supreme Court has given the states incredible leeway." Besides, said Rosenstein's co-counsel Roy Englert, a veteran Supreme Court practitioner, Osborne "is a pretty lousy candidate for DNA testing." Englert notes that Osborne and his attorney passed up the chance for more extensive testing at the time of his trial. He was implicated in the crime not just by a terrified victim but by the other man involved in the attack. And, in a bid for parole in 2004, he confessed.

      In a recent jailhouse interview with the Juneau Empire, Osborne avoided a question on his innocence, saying of his case, "I just hope it helps somebody, somewhere down the line, somehow."

      Released from prison after serving 14 years of his sentence, he was soon arrested for a home invasion. He is now serving time for that crime and then must finish the sentence for the rape.

      But those who support Osborne's request say the decision on who has access to post-conviction testing should not be up to those who have tried to prove guilt. "Relying solely on the unfettered discretion of prosecutors to unlock the promise of DNA analysis can sanction injustice," said a brief filed on behalf of current and former prosecutors, including former attorney general Janet Reno. Nor, said University of Pennsylvania law professor David Rudovsky, should the right to DNA testing be limited by individual states.

      Rudovsky represented Godschalk, who won the right to DNA testing in the courts even though he, fed details of the rapes by police, had confessed to the crimes. Some states do not allow DNA testing if the convicted has confessed.

      In what the federal government says in its brief is a "vibrant democratic process," others allow it only for capital crimes, and some place time limits on requests for testing. "There are people out there now in prison who are innocent," Rudovksy said, but the jurisdictions in which they were convicted deny them access to DNA evidence that would prove it.

      District Attorney's Office v. Osborne is scheduled to be argued March 2.

      High Court to Hear DNA Testing Case

      Feb. 20, 2009

      Perry says innocence commission is not needed

      Top state jurists support a commission to investigate wrongful convictions, but the governor believes such a panel would be a needless addition to state bureaucracy.

      State Chief Justice Wallace Jefferson endorsed the commission idea in 2005 and 2007 and says he hasn't heard a worthy objection yet. He wants state lawmakers to pay for a panel.

      "What better way to spend public dollars than to make sure the innocent doesn't go to jail?" Jefferson, who leads the state's top civil court, told the Fort Worth Star-Telegram.

      Sharon Keller, presiding judge of the state's highest criminal court, the Texas Court of Criminal Appeals, offered qualified support, saying she doesn't want a commission that duplicates work of the Innocence Projects statewide and nationwide.

      This month, 9 men who were exonerated of crimes urged lawmakers to study the causes of wrongful convictions and try to prevent them. Since 2001, 33 men have been exonerated, including 17 in Dallas County using DNA testing.

      Gov. Rick Perry doesn't think that a commission is needed, said spokeswoman Allison Castle. She said Perry supports a better system for providing attorneys to poor criminal defendants, and favors post-conviction DNA testing.

      "He is committed to providing a fair criminal justice system. But the governor's sentiment is that we don't need another layer of bureaucracy," Castle said.

      District attorneys fear that a commission could become a forum for bashing prosecutors.

      State Sen. Rodney Ellis, a Houston Democrat who sponsored failed bills to create a 9-member Innocence Commission, said a commission could help restore confidence in the Texas criminal justice system.

      (source: Associated Press)

      Feb. 19, 2009

      D.A. to Discuss Righting Wrongful Conviction Cases----2 Exonerated Defendants to Join Watkins at Justice Studies and Pre-Law Event

      Craig Watkins, Dallas County district attorney, will visit UT Dallas to discuss his role in the release of wrongfully convicted Texas prisoners.

      He will be joined by two men who were exonerated through DNA evidence, Charles Chatman and James Woodard.

      The event, sponsored by the Center for Crime and Justice Studies in the School of Economic, Political and Policy Sciences, and the UT Dallas Pre-Law Society, will be held Wednesday, March 4, in Davidson Auditorium in the School of Management (SOM 1.118). Watkins' 1-hour talk, "The District Attorneys Role in Criminal Justice Reform," will begin at 5:30 p.m.

      "Craig Watkins has a unique perspective on the role of a district attorney which it is important for our students to hear," said Dr. Anthony Champagne, political science professor and director of the Pre-Law program. "In Watkins' view, the district attorney's role is larger than prosecuting the accused; it is the pursuit of just outcomes in the criminal justice process."

      Champagne worked with Dr. Jim Marquart, head of the Criminology and Sociology programs to organize the event.

      Watkins is the chief law enforcement officer for Dallas County. He was elected district attorney in 2006 and inaugurated in January 2007, becoming the 1st African-American to serve in the position.

      In July of 2007, Watkins established the Conviction Integrity Unit, which oversees the post-conviction review of more than 400 DNA cases in conjunction with Innocence Project of Texas.

      The Conviction Integrity Unit is the first division of its kind in the United States. The IPOT is a nonprofit organization dedicated to overturning wrongful convictions and securing freedom for men and women wrongfully imprisoned for serious crimes in Texas.

      Student volunteers and experienced legal advocates dedicate their time to investigate claims of innocence filed by inmates.

      The partnership between the Conviction Integrity Unit and the Innocence Project has resulted in the release of 19 wrongfully convicted prisoners, including lecture guests Chatman and Woodard.

      Charles Chatman spent more than 26 years in prison for an aggravated sexual assault he did not commit. James Woodard served more than 27 years for a Dallas County murder he did not commit, making him the longest serving man in the U.S. to be released as a result of DNA evidence.

      Watkins, Chatman and Woodard will take audience questions following the lecture. The event is free and open to the public. For more information, or to reserve a seat, contact (972) 883-6257 or register online.

      (source: UTDallas News)

      Justice delayed

      Copyright 2009 Houston Chronicle
      Feb. 18, 2009

      Finally, the man whose DNA links him to the crime for which an innocent man spent six years in prison has been identified. Last Friday, the Chronicle’s Roma Khanna reported that the Houston Police Department confirmed, along with other sources, that a registered sex offender, Andrew Wayne Hawthorne, is their primary suspect and is expected to be charged soon.

      The sooner the better. It’s difficult to understand why the charge could not be expedited to at least bring some closure to Ricardo Rachell, who was freed last December after spending six years in prison, wrongly convicted of sexually assaulting an 8-year-old boy.

      It seems like just one more in a ghastly series of mistakes, oversights and omissions by which police, prosecutors and a defense attorney failed in their duty to see that justice was done. Those failings include the following:

      Rachell was convicted on dubious eyewitness testimony: A day after the attack, the victim’s mother took her son and his friend to where she had seen Rachell riding his bike earlier and asked them if Rachell was the attacker.

      Rachell’s face had been disfigured by a shotgun blast several years earlier, but the child said nothing about the deformity after he was attacked. The boys later identified Rachell as the attacker. During the trial, two jurors questioned the role of the mother in the identification. Rachell was found guilty.

      Physical evidence was collected at the scene and taken to the police property room, but nobody — not one of the three assistant district attorneys who handled the case before it went to trial, nor the defense attorney — ever asked that it be tested.

      Rachell was arrested in October 2002, but strikingly similar attacks on young boys continued in the same neighborhood. Rachell sent copies of a news story to his attorney about the attacks before his trial, but his attorney declined to follow up.

      Police finally “recognized a pattern” in the attacks, they told reporters in October 2003, and a few weeks later, on the strength of DNA evidence, arrested Hawthorne. He pleaded guilty to three attacks (not including the one Rachell was convicted for) and is now serving a 60-year sentence.

      Last year, Rachell successfully appealed for DNA tests to be performed on evidence that was gathered in 2002 but never examined.

      (Less than two months after it was delivered to the police property room, the DNA division of HPD’s scandal-plagued crime lab was shut down.) That evidence, never acknowledged until Rachell appealed, was found, still stored in the police property room. When tested, it cleared Rachell of the crime and pointed to Hawthorne as the attacker.

      Rachell, 51, could be eligible for about $300,000 in compensation if he gets a full pardon, according to state law. And the man who was ridiculed and taunted because of his disfigurement will undergo plastic surgery to restore his face, courtesy of Methodist Hospital and the Agris-Zindler Foundation.

      Meanwhile, the police department is conducting an internal investigation, and Harris County District Attorney Pat Lykos has promised to take action.

      Lykos told the Chronicle on Tuesday that Rachell had suffered “a gross miscarriage of justice,” and that she has ordered a “post mortem” on the case, investigating it “from alpha to omega.” She’s also looking carefully at the Hawthorne matter. “Changes will be made,” she promised. “For sure.”

      Lykos, elected last November, succeeded Chuck Rosenthal, who resigned in disgrace earlier last year. She campaigned on a pledge to restore public trust and confidence in the district attorney’s office.

      No one can restore the six years that Ricardo Rachell lost so unjustly, but promptly charging the attacker would be a start in restoring some of that trust and confidence.

      Justice delayed

      Exoneration at center of DNA and evidence bills

      Associated Press Writer © 2009 The Associated Press
      Feb. 15, 2009

      AUSTIN, Texas — Ten years after he died in prison serving time for a rape he didn't commit, Timothy Cole had his day in court. If police and advocates for the wrongfully convicted have their way, he'll get another at the Legislature.

      Both groups are separately pressing lawmakers to pass bills they say could help keep others from suffering the same fate as Cole, who earlier this month became the first Texan posthumously exonerated of a crime.

      A measure sought by some Texas police chiefs would allow taking DNA from suspects arrested for mid-level misdemeanors on up, which could include offenses ranging from indecent exposure to writing a bad check for child support.

      The other would set legal standards for how eye witness evidence can be collected by police.

      Now that the House finally appointed committees, lawmakers from both chambers will soon be debating and voting on bills. House and Senate committees are holding meetings this week.

      Texas is one of several states that draw DNA samples from anyone convicted of a felony and those arrested for particularly violent crimes, such as sexual assault and murder. The federal government takes samples from everyone arrested by federal officers.

      Austin Police Chief Art Acevedo is among the law enforcement officials pushing to collect DNA from suspects in Class B misdemeanors. Their plan could mean sampling more than 800,000 people a year, some of whom may never be convicted or even go to trial.

      Experts say that while a few states take DNA in misdemeanors involving sex crimes, none has gone as far as the Texas idea. The American Civil Liberties Union worries that police might make arrests just to fish for a DNA match.

      "We think this is an outrageous invasion of privacy," said Rebecca Bernhardt, policy director of the American Civil Liberties Union of Texas.

      "This is a step in the direction of creating a DNA database of every person in Texas, which is something Texans should be against," she said. "DNA is the most basic and private information a person has."

      Acevedo says the samples would help police find criminals and exclude innocent people. The DNA proposal would include destroying records when charges are dropped or someone is acquitted at trial, Acevedo said.

      "DNA has proven to be a tool that has gone a long way in proving the innocence of wrongly convicted individuals," Acevedo said, noting the Cole case. "This is an opportunity to eliminate people early on."

      But using the Cole case to press the issue is misleading, the ACLU says. As a felony rape suspect, Cole's DNA could have drawn under existing laws.

      Some lawmakers, even those who have pushed for reforms in post- conviction DNA testing that could help prove wrongful convictions, are leery of expanding DNA collections as far as the police chiefs want to go.

      Sen. Rodney Ellis, a Houston Democrat, said Texas should be wary of expanding police powers on such a broad scale.

      "There is a very fine line to be walked balancing civil liberties, constitutionality, and trying to build a DNA database that would serve good public interests," Ellis said.

      It's an issue lawmakers have debated in the past "and the consensus has been to not expand mandatory DNA testing," he said.

      Cole was convicted resulted largely from faulty eyewitness identification of him as the rapist.

      Ellis has filed bills to set legal standards for how police lineups are conducted. He also wants to create a state Innocence Commission to investigate wrongful convictions.

      Michele Mallin, the rape victim in Cole's case, was a Texas Tech University student when she was attacked in Lubbock in 1985. She picked Cole out of a photo lineup that included five other pictures.

      All were standard jail mug shots except for Cole's color Polaroid.

      She also later identified Cole in a live lineup and again at trial.

      The Associated Press does not typically identify rape victims but Mallin came forth publicly to help clear Cole's name.

      Mallin says she remembers telling police "I think that's him" when she first saw Cole's picture, but that investigators encouraged her to be more certain. A note in the case file suggested she was more confident of selecting Cole than she really was.

      Experts at Cole's exoneration hearing were highly critical of how the lineups were conducted.

      Cole's photo would "stand out like a sore thumb," said Mike Ware, a Dallas County prosecutor in charge of that office's conviction integrity unit.

      Ellis' bill requires lineups be conducted by someone who doesn't know which person is the suspect. That would prevent them from encouraging witnesses to pick that person.

      Witnesses also would be told the perpetrator may not be in the lineup. And they would provide a statement of how confident they are of their choice. All individuals in the lineup would have to fit the description of the suspect.

      At least eight other states require some of the same or similar standards, Ellis' office said, and some are already being used by local police and sheriffs.

      Prosecutors are watching the eyewitness bill closely, said Shannon Edmonds, spokesman for the Texas District and County Attorneys Association.

      "If there is a better way to do it, they're interested," he said.

      But while prosecutors want to take the best evidence possible to trial, they worry that writing standards into law could get some good cases thrown out by a judge if someone makes a mistake.

      "The criminal goes free because the constable blundered," Edmonds said.

      Attorney Barry Scheck, who helped found the Innocence Project, a national organization that assists prisoners who could be cleared by DNA testing, said Texas needs to make the eyewitness changes. "The protestations of those who say we can't do it, it's impractical, it's too hard, the days of those kinds of protests really have to go," Scheck said. "It's time has come."

      The judge who exonerated Cole said the Texas judicial system failed Cole, his family and the rape victim.

      "Timothy Cole suffered the greatest miscarriage of justice imaginable," Judge Charles Baird said. "This system is broken ... and we are fools if we don't fix it."

      Exoneration at center of DNA and evidence bills

      Editorial: Punish those who wrongfully convict

      February 10, 2009

      Timothy Cole died in prison an innocent man, victimized by a gross miscarriage of justice. Although a judge in Austin cleared Cole's name last week, work still awaits the Legislature to ensure that such a travesty never occurs again.

      Like most of the 33 other wrongfully convicted men in Texas who were subsequently cleared, Cole was black. He was attending Texas Tech in 1985 when fellow student Michelle Mallin was raped. Prosecutors already had another strong suspect in the case, Jerry Wayne Johnson, a black man already charged in two other rapes. But they kept that information from Mallin and disregarded it as they constructed a case against Cole. He received a 25-year prison sentence.

      Multiple witnesses testified that Cole was in an apartment studying when the attack occurred. Substantial physical evidence linked Johnson to the attack, but absolutely none pointed to Cole. Police did not put Johnson in a lineup or even present his photo to Mallin.

      Believing authorities' assertions that they had other evidence pointing to Cole's guilt, she mistakenly identified him as the attacker.

      Johnson confessed in 1995, and DNA tests proved that he did it. But Lubbock authorities, including prosecutor Jim Bob Darnell, ignored the confession. They let Cole languish in prison until he died in 1999, at age 39.

      Justice was never served for Cole or his family. Prosecutors decided on Cole's guilt long before they had a case against him. They used racial stereotypes to sway Mallin and to convince the all-white jury to disregard Cole's black witnesses. Those authorities have never answered for their actions.

      State Sen. Rodney Ellis of Houston is introducing two bills this session to tighten lineup-identificati on procedures and require the recording of suspect interrogations. Another pending bill would boost compensation for victims of wrongful convictions. Lawmakers should also seriously consider a proposal supported by Dallas District Attorney Craig Watkins and the Texas Innocence Project to criminalize the withholding of exculpatory evidence in cases such as Cole's.

      The shame should forever haunt Darnell and his cohorts for the injustice they committed. For others who follow, the prospect of criminal prosecution should chill their conviction-at- all-costs enthusiasm.

      Punish those who wrongfully convict

      Posted on Feb. 06, 2009

      Man's exoneration creates 'perfect storm' for reforms


      AUSTIN -- Questions being raised by the posthumous exoneration of Timothy Cole may be creating a “perfect storm” that could lead to the passage of criminal justice reform issues in the Texas Legislature, including adoption of procedures for eyewitness identification.

      Cole’s wrongful conviction on an aggravated sexual assault charge in 1986 was based largely on the testimony of the victim, who picked Cole as her attacker after being subjected to a faulty photo lineup.

      Cole’s family and Michele Mallin, the woman who testified against him, were in Austin Friday trying to get his conviction overturned. DNA tests proved Cole was not her attacker, but not before he died in prison.

      “This is the day. It is a perfect storm,” said Barry Scheck, the director of the Innocence Project in New York. “This is the time for the legislative bills to be passed. The Tim Cole case brings it home.”

      State Sen. Rodney Ellis, D-Houston, already has introduced several criminal justice reform bills including one to increase the accuracy and reliability of eyewitness identification procedures.

      Attorneys associated with the Innocence Project of Texas said that 82 percent of the DNA exonerations in Texas were largely or exclusively due to incorrect witness identification and that 95 percent of those in Dallas were the result of faulty procedures.

      But even with those startling statistics, Jeff Blackburn, chief counsel of the Innocence Project of Texas, and others said that 88 percent of the police departments in the state don’t have eyewitness identification policies.

      “It’s going to be up to the Legislature to restore justice in the criminal justice system,” Blackburn said. Ellis’ legislation is promoting four key procedural changes:

      Adopt what is known as a “double blind” lineup where the person administering the photo or live lineups does not know who is the potential suspect, preventing the witness from being encouraged to pick someone.

      Give the witness instructions so that they know the actual perpetrator may not be in the lineup.

      Get the witness to give a statement after identification is made to determine how sure they were about their choice.

      Individuals in the lineup must resemble the witnesses’ description with only one suspect in a lineup along with five or more “fillers.”

      “The expected exoneration of Tim Cole should serve as a wake-up call to Texas,” Ellis said in a statement. “It is time to get our house in order and enact reforms that, wherever possible, can help avert miscarriages of justice before they happen.”

      Max B. Baker
      Man's exoneration creates 'perfect storm' for reforms

      Exoneration hearing under way

      By Steven Kreytak
      February 5, 2009

      A hearing that could lead to the first formal posthumous DNA exoneration in Texas is under way in a Travis County courtroom.

      State District Judge Charlie Baird’s court is filled to capacity for the hearing. The crowd includes about two-dozen family members of Tim Cole, the man who died in prison in 1999 while serving a 25-year prison for a crime he likely did not commit.

      Cole was convicted of raping Michele Mallin, then a 20-year-old fellow Texas Tech student, in Lubbock in 1985. DNA results last year showed that a man convicted in two other rapes in Lubbock that year likely committed the crime.

      Mallin, who in photographic and live lineups identified Cole as her attacker in 1985, is joining Cole’s family in seeking to formerly clear Cole’s name.

      The Innocence Project of Texas is representing them.

      After a Lubbock judge denied their bid for a hearing on the case, Innocence Project of Texas lawyer Jeff Blackburn brought the case to Baird. Blackburn said he wanted it heard in the state capital and called Baird one of the state’s best judges.

      “All they ever wanted,” Blackburn said in his opening statement, pointing to Cole’s family, “was the simple satisfaction of having a court in this state … just say we made a mistake.”

      Barry Scheck, a co-director of the national Innocence Project, is assisting on the case.

      He said the hearing will help avoid wrongful convictions in the future.

      “We can’t have justice unless we learn from the mistakes,” Scheck said.

      Jerry Wayne Johnson, a man convicted of two other rapes around the time Mallin was raped, is expected to testify. He has sent a series of letters since 1995 confessing to the crime.

      Also in the court is Dallas County District Attorney Craig Watkins, whose conviction integrity unit chief will testify at the hearing.

      Baird said he was honored to have Watkins in his court, calling himself an “admirer” of Watkins.

      The first witness of the hearing is Mallin, who is telling Baird about the night she was raped in 1985 and how angry she was.

      “It just angered me,” she said. “I thought ‘you don’t’ have the right to do this to me.’ I thought ‘if I get out of this alive, you are going down.”

      Categories: witness identification

      Exoneration hearing under way

      Hearing in Austin could lead to DNA exoneration

      Tim Cole, convicted of rape of Texas Tech student in 1985, died in prison in 1999

      Associated Press
      Feb. 1, 2009

      LUBBOCK — For Tim Cole’s family, a return to a courtroom this week renews hope they’ve clung to since he was convicted of rape more than two decades ago.

      Cole and his relatives for years claimed he was innocent in the rape of a Texas Tech student in 1985. But until DNA from the crime scene was tested last year, no one else believed them.

      That test showed another man, already imprisoned for rape, committed the crime for which Cole was sentenced to 25 years.

      His family will ask an Austin judge on Thursday to overturn the conviction, but Cole won’t be with them. He died in prison in 1999 at age 38.

      Cory Session, Cole’s brother, said the DNA test served its purpose.

      “That’s vindication,” Session said. “We need exoneration. We are extremely hopeful that this process will actually get him cleared.”

      It would be the first posthumous DNA exoneration in Texas, according to attorney Jeff Blackburn of the Innocence Project of Texas, paving the way for a pardon by the governor and, eventually, expunging Cole’s record.

      “For us it’s got to be one step at a time,” Blackburn said.

      Blackburn has enlisted the help of Barry Scheck, who helped found Innocence Project, a national organization that assists prisoners who could be cleared by DNA testing.

      The case against Cole relied primarily on identification by Michele Mallin, his alleged victim. The Associated Press does not typically identify rape victims but Mallin has come forth publicly to help clear Cole’s name.

      Blackburn and others working on Cole’s behalf allege the photo lineup used in 1985 was flawed. Mallin picked Cole out of a photo array that included at least six other pictures. All were standard jail mug shots except for Cole’s photo, which was a Polaroid.

      Mallin, who Blackburn said would be at the hearing, later identified Cole in a live lineup and again at trial.

      Also instrumental in the efforts to prove Cole innocent was Jerry Wayne Johnson, shown by DNA tests last spring to be Mallin’s actual attacker.

      Johnson, now serving time in a Snyder prison for two other rapes during the 1980s, has been trying for more than a decade to convince authorities that he raped Mallin.

      He got no response.

      Then on May 11, 2007, Johnson sent Cole a letter addressed to his mother’s Fort Worth home. Not knowing Cole had died in prison years earlier after an asthma-induced heart attack, Johnson admitted raping Mallin and offered to help prove him innocent.

      “If this letter reaches you, please contact me by writing so that we can arrange to take the steps to get the process started,” wrote Johnson. “Whatever it takes, I will do it.”

      The letter reached Cole’s family, who contacted a reporter and the Innocence Project.

      Johnson, 49, also will be at the hearing and will probably testify, Blackburn said. A bench warrant will allow him to travel from his cell at the Price Daniel Unit in Snyder to Austin for the hearing, which could last a couple of days. No one is expected to oppose the effort to overturn Cole’s conviction, Blackburn said.

      The hearing is the first step in a Court of Inquiry — an obscure and rarely used legal procedure — for which Blackburn’s petitioned.

      “We’re anxious to hear what (Johnson) has to say,” Session said.

      “It’ll be a very emotional court hearing and it will take us all back.”

      Lubbock County prosecutors have acknowledged the DNA test shows Cole was not the rapist. There is, however, no simple legal channel to formally exonerate someone who has died. An effort earlier this year to establish a Court of Inquiry was denied by the 99th District Court in Lubbock, Blackburn said.

      Blackburn was granted a hearing from the 299th District Court in Austin.

      Session said for now all the family wants is to have Cole’s name cleared. He did not rule out pursuing civil damages for his brother’s wrongful conviction.

      “There’s not one remedy that will bring Tim back,” Session said.

      “That is a pain I still do not know how my mother deals with.”

      Hearing in Austin could lead to DNA exoneration

      U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests

      By; The Innocence Blog
      Posted on January 28, 2009

      (WASHINGTON, DC; January 27, 2009) -- The federal Constitution allows prisoners access to DNA testing that could prove their innocence -- particularly when a state lacks a law granting DNA testing and the state can show no reason to deny it -- the Innocence Project argued in a brief filed at the U.S. Supreme Court.

      The Innocence Project represents William Osborne, who was convicted of rape, attempted murder and related charges in 1993 in Alaska. For eight years, Osborne has sought advanced DNA testing that could prove his innocence. Alaska is one of just six states without a law granting post-conviction DNA testing. In 2007, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

      "The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence. In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor's consent. This case involves a very important constitutional protection -- one that is the only option for William Osborne," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

      In asking the Supreme Court to take the case, the state conceded for the first time that favorable DNA testing "would conclusively establish [Osborne's] innocence" -- raising more questions about why the state will not simply consent to DNA testing. The testing would come at no cost to the state, since the Innocence Project will pay for it, as the organization does in most of its cases. In its Supreme Court brief, the state makes procedural claims against Osborne's lawsuit seeking DNA testing but never gives a rationale for denying him access to testing itself. In oral arguments at the U.S. Court of Appeals for the Ninth Circuit, a three-judge panel repeatedly questioned the state's attorneys about why they are denying Osborne access to DNA testing. The attorneys said they were not "willing or able" to answer any of those questions "at this time."

      In its brief on behalf of Osborne, the Innocence Project outlines a long history of legal precedent giving prisoners access to evidence and protecting their ability to prove their innocence under the Due Process Clause of the U.S. Constitution. The brief also explains that limited DNA testing was available at the time of Osborne's trial but that type of DNA testing was about as discriminating as blood-type testing -- whereas newer, more sophisticated DNA testing can identify individuals uniquely. The case before the Supreme Court does not seek to overturn Osborne's conviction or challenge any part of the process leading to his conviction -- instead, it challenges the government's arbitrary refusal to permit him access to the evidence in his case so that it can be subjected to testing that was not available at the time of his trial.

      "DNA technology is new, but the principles in this case have a long and rich tradition. For decades, the Supreme Court has recognized that defendants need access to evidence and people's right to liberty must be protected even after they are convicted. More recently, courts across the country have recognized the power of DNA testing to resolve claims of innocence," Neufeld said. "Most prosecutors, judges and states recognize that while DNA testing in these cases may not always protect a conviction, it protects our system of justice by revealing the truth."

      The brief filed on behalf of Osborne Monday night is listed: Here.

      Below is background on Osborne's case, as well as information on DNA exonerations relevant to the issues being raised in this case.

      William Osborne's case

      In March 1993, Dexter Jackson and another man (both of whom were black) solicited sex from a white prostitute (identified as K.G. in court documents) in Anchorage. When K.G. got into Jackson's car, the men drove her to a secluded location, threatened her at gunpoint and robbed her. K.G. was then forced to perform a sex act on Jackson while the other man vaginally raped her, using a blue condom he had taken from her. K.G. attempted to flee, and the men beat her severely. One of the men (who K.G. said was the second perpetrator) shot her, and the bullet grazed her head. The men then buried her in the snow and left her for dead.

      Within days, Jackson was arrested. He was carrying a knife that belonged to K.G., and K.G.'s blood was found in his car. Other physical evidence linked him to the crime, and he was arrested. He confessed and reportedly said Osborne was the second perpetrator; because Jackson and Osborne were tried together, Jackson's statements about Osborne were not used against him. The victim identified Osborne as the second perpetrator -- but her initial identification was tentative, there were substantial differences between her description of the second perpetrator and Osborne's appearance, and she had extremely poor vision and was not wearing glasses or contacts on the night of the crime. Osborne maintained that he was with Jackson later on the night of the crime, but he had a documented alibi for the timeframe during which Jackson and another man were committing the crime. Jackson and Osborne were convicted; Osborne was sentenced to 26 years in prison. (He was released on parole in 2006, after making the difficult decision to admit guilt to a crime he says he didn't commit, since in most cases an admission can be favorable for receiving parole. Since being released, Osborne has been arrested on unrelated charges.)

      Rudimentary DQ-Alpha DNA testing on fluids from the blue condom showed that Osborne (along with 14.7% to 16% of all African Americans) was "possibly a source" of the fluids. At the time of Osborne's trial, a state expert considered conducting the only other kind of DNA testing available at the time, RFLP testing; that kind of DNA testing cannot yield a result from small or degraded items of evidence, and the expert said the evidence was too degraded to expect a result. Osborne pleaded with his trial attorney to attempt RFLP testing at another laboratory, but his attorney refused. Osborne also wrote to an out-of-state DNA expert for help, but under state law the decision to pursue RFLP testing was left to his attorney.

      In 2001, Osborne sought more advanced DNA testing in state court.

      That case proceeded unsuccessfully for several years, and in the meantime Osborne began seeking DNA testing in federal court. The Innocence Project took his case in 2003, working with local counsel, Randall Cavanaugh of Kalamarides & Lambert and Robert Bundy of Dorsey & Whitney LLP in Anchorage. At the U.S. Supreme Court, Williams & Connolly LLP is co-counsel with the Innocence Project, Bundy and Cavanaugh. Kannon Shanmugam, Anna-Rose Mathieson and Jaynie Lilley are handling the case for Williams & Connolly.

      Background on DNA exonerations relevant to the Osborne case

      Nationwide, 232 people have been exonerated through DNA testing after serving an average of 12 years in prison for crimes they did not commit. Exonerations have taken place in 33 states and the District of Columbia.

      44 states and the District of Columbia have passed statutes granting access to post-conviction DNA testing. The first state to pass such a statute was New York in 1994. The most recent states to pass statutes were South Carolina and Wyoming in 2008. A federal statute granting post-conviction access to DNA testing in federal cases passed in 2004.

      The six states without statutes granting post-conviction access to DNA testing are Alabama, Alaska, Massachusetts, Oklahoma, Mississippi and South Dakota.

      Alaska is the only state in the nation where there have been no known cases of prisoners being granted DNA testing through a court order or the consent of a prosecutor.

      In 82 percent of the exoneration cases for which records are available, prosecutors consented to DNA testing.

      In 25 percent of the wrongful convictions overturned through DNA testing nationwide, innocent people confessed or admitted to crimes they did not commit. In 5 percent of all cases that resulted in DNA exonerations, innocent people actually pled guilty to crimes they didn't commit.

      The Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice. The Innocence Project was founded in 1992 by Peter Neufeld and Barry Scheck. To date, 232 people nationwide have been exonerated through DNA testing and dozens of states have implemented critical reforms to prevent wrongful convictions.

      U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests


      The Death Penalty: Executing the Innocent

      The U.S Supreme Court has held that it does not violate the U.S. Constitution to execute the innocent, so long as the condemned received a "fair trial."

      Read full story Here:


      Four pathologists back death row inmate's innocence claim

      Swearingen, slated to die Tuesday in college student's 1998 murder, was in jail at time, 4 now say.

      By Chuck Lindell
      January 24, 2009

      Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row.

      The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict. That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time.

      The results mean Swearingen was in jail when the 19-year-old' s body was left behind, the pathologists say.

      "It's just scientifically impossible for him to have killed the girl and thrown her into the woods," said James Rytting, Swearingen's appellate lawyer. "It's guilt by imagination."

      Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.

      But in court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."

      One of those pathologists, however, did Trotter's autopsy.

      In her original report, Dr. Joye Carter determined that Trotter's strangled body had lain in the Sam Houston National Forest outside Conroe for 25 days — coinciding exactly with the date of Trotter's disappearance from Montgomery County Community College, Dec. 8, 1998.

      Witnesses said Trotter left the campus library that day with Swearingen, whom she met two days earlier.

      The timing was important because Swearingen had been in jail since Dec. 11 on outstanding traffic warrants.

      But faced with conclusions from other pathologists that her 25-day time of death defied scientific analysis and common sense, Carter recanted her findings in a 2007 affidavit. "Ms. Trotter's body was left in the woods within two weeks of the date of discovery" on Jan. 2, 1999, she wrote.

      Reassessment of Trotter's autopsy began late in Swearingen's appeals process when a defense pathologist noticed that Carter found an intact spleen and pancreas.

      Both organs liquefy quickly after death, prompting a more thorough review:

      • Five recently discovered slides of heart, lung and nerve tissue from Trotter's autopsy revealed intact nuclei and red blood cells, said Dr. Lloyd White, Tarrant County deputy medical examiner.

      Red blood cells break down within hours, and nuclei in heart cells break down within days, White said.

      Also, levels of bacteria indicated the body had not been frozen or preserved, he said.

      White's conclusion: Trotter had been dead for two or three days before her discovery.

      • Trotter's mucosa — fragile tissue in the stomach and intestines that quickly disintegrates after death — was intact, noted Dr. Glenn Larkin, a North Carolina pathologist.

      The condition of the mucosa indicates with "medical certainty" that Trotter had been in the forest for less than 10 days and more likely three or four days, Larkin concluded.

      • Trotter weighed 109 pounds at a doctor's visit shortly before she disappeared, but her body weighed 105 pounds, a 4 percent decline. Larkin concluded that a body will lose up to 90 percent of its weight in less than 25 days under temperatures endured by Trotter's body: average highs of 62 and lows of around 40.

      • Unlike a body left outside for 25 days, Trotter's showed no sign of bloating or perforated intestines. Her clothes were unsoiled and slipped easily from her body during the autopsy. There was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons.

      "The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest," Larkin said in an affidavit.

      Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

      The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

      The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

      The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

      Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

      Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

      Swearingen has presented no new DNA or indisputable evidence undermining his conviction, only expert opinion that could be challenged under cross-examination if presented at trial, Abbott said in briefs.

      In addition, Abbott said, the prosecution' s case against Swearingen was convincing: He was the last person seen with Trotter, whose autopsied stomach contained potatoes, which she ate for lunch the day she disappeared. The panty hose link Swearingen to the crime, and Swearingen wrote a letter from jail — in Spanish to divert police attention to another man — that presented a plausible narrative for the killing.

      Swearingen's lawyer, joined by the Innocence Project in New York, says he believes he has met the legal definition for an innocence claim: that it is unlikely a reasonable juror would convict him in light of the new evidence.

      "Someone else had that girl's body, dead or alive, and threw her in the forest. And that someone wasn't Larry," Rytting said.

      Swearingen would be the fourth Texan executed this year.

      clindell@statesman.com; 912-2569

      Find this article at:
      Four pathologists back death row inmate's innocence claim

      JANUARY 15, 2009

      Estimating false convictions: Thousands of Texas prisoners are likely innocent

      The string of DNA exonerations witnessed in recent years has made everyone in the justice system aware that more innocent people are convicted of crimes than anyone previously thought. But what percentage of total convictions are false ones?

      This is a difficult question because it's hard to find an accurate denominator for comparison.

      Nobody thinks every innocent person has been identified through DNA testing, and indeed no biological evidence exists to test in the vast majority of criminal cases. So even though we know 39 Texans have been exonerated by DNA, we don't know what percentage of criminal convictions overall are false.

      One of the few datasets that generates a statistically viable denominator comes from capital murder cases, for which a new study from Michigan State provides a new, national calculation: Among defendants sentenced to death in the United States since 1973, at least 2.3 percent—and possibly more—were falsely convicted, said U- M law professor Samuel Gross in a study co-authored by Barbara O'Brien, a professor at Michigan State University College of Law.

      If defendants who were sentenced to prison had been freed because of innocence at the same rate as those who were sentenced to death, there would have been nearly 87,000 non-death row exonerations in the United States from 1989 through 2003, rather than the 266 that were reported, the study said.

      "The main thing we can safely conclude from exonerations of falsely convicted defendants is that there are many other false convictions that we have not discovered," said Gross, whose research has focused on the death penalty, false convictions and eyewitness identification.

      Since 1989, nearly all exonerations in the United States fall into three categories: rape convictions, because of post-conviction DNA testing; murder convictions, and especially death sentences, which are subjected to much more detailed post-conviction reinvestigation than other convictions; and a few groups of false drug and gun possession convictions that were produced by concerted programs of police perjury that later unraveled.

      As result, researchers know little about false convictions among crimes of violence other than murder or rape, even though false convictions for robbery could greatly outnumber those for rape and murder. And researchers know next to nothing about false convictions for other types of crimes, such as property crimes, misdemeanors and white collar crimes.

      The exoneration rate in Texas for capital murder convictions is slightly lower than in this national study.

      Another dataset that lends itself to statistically valid innocence estimates come from DNA exonerations. In Texas, 3.3% of cases solved by DNA evidence resulted in exonerating convicted defendants.

      So let's guess that the false conviction rate in Texas is somewhere between 2.3-3.3%: With around 155,000 prisoners, that would mean between 3,500 and 5,000 or so current Texas prison inmates were falsely convicted.

      Another 10-15,000 falsely convicted people are on the probation rolls, this data implies - perhaps even more since innocent people may be more likely to accept a plea for probation than risk incarceration for something they didn't do.

      That's a helluva lot of folks.

      Thousands of Texas prisoners are likely innocent

      Texas must do more to free the innocent, Dallas DA Craig Watkins tells fellow prosecutors

      January 14, 2009
      The Dallas Morning News

      AUSTIN — Dallas County District Attorney Craig Watkins defended himself against prosecutor critics today, saying his tactics to right wrongful convictions should be embraced statewide.

      Speaking before the annual meeting of the Texas District and County Attorneys Association, Watkins acknowledged his strategy of overturning others' detective work hasn’t won him any popularity contests.

      But Watkins -- the state’s first elected black district attorney and Dallas County’s first Democratic district attorney in nearly two decades -- said he won’t apologize for seeking justice through his DNA-focused “conviction integrity unit." Justice, he said, is far more important than achieving or protecting a high conviction rate.

      “This is not to shine a disparaging light on you,” Watkins told the hundreds of prosecutors in the audience. “But I feel an obligation to be honest, and to tell everyone, that in order for this system to progress we have to focus on our failures.”

      Exonerating innocent people has been Watkins’ focus since he took office two years ago, gaining him a reputation as, in his phrase, the “hug-a-thug DA.” Dallas County, where district attorneys long held a reputation for winning convictions at all costs, has had more exonerations than any other U.S. county.

      Though Watkins received healthy applause, some prosecutors said afterward his “new ideology” is already common practice in their counties –- or that his approach calls for far more money than they have in their budgets.

      “It’s already unspoken for us,” said Greg Buckley, assistant district attorney in Childress County. “I appreciate him wanting to tell us to do the right thing. But it may be that he just has more problems with it in his department than we do.”

      After his speech, his first to a large group of fellow prosecutors, Watkins said those who claim their counties are immune are "not being truthful."

      "These problems are spread throughout the country," he said. "This was my opportunity to give them a little understanding."

      Texas must do more to free the innocent

      January 13, 2009

      Expert: Yogurt Shop Case a Prime Example of False Confessions

      At a meeting this morning of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, University of San Francisco academic Richard Leo expounded on his research into police interrogations and the causes of false confessions.

      What follows is a recap from my notes:

      False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called "Reid method," which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

      Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the "interview" to the "interrogation" phase.

      Much of the behavioral analysis taught by Reid and Associates amounts to "faux psychology," said Leo, about how guilty and innocent people behave that doesn't stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become "human lie detectors," but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

      To be clear: A police interview is a relatively non-confrontational, information gathering process, where police are trained only to use interrogation methods on those they believe are guilty. Interrogation is a "guilt presumptive" process in which officers may lie, yell, intimidate, threaten, offer inducements, or otherwise manipulate suspects to secure a confession.

      Leo insisted that police interrogation tactics are the primary cause of false confessions, but thinks that a secondary cause has to do with individual personality types. At risk individuals include juveniles, the mentally retarded, the mentally ill, people who are highly suggestible or compliant, or who have poor memory or high anxiety.

      Most false confessors, he said, are "mentally normal" individuals, but those in a risk group are more likely to falsely confess.

      There are three types of false confessors, said Leo: Voluntary, Compliant, and Persuaded. To use a current, local example, all three of these false confession types were in play in Austin's Yogurt Shop murders.

      Voluntary false confessions typically occur in high profile cases when people come forward of their own volition to confess to the crime. This is a surprisingly common phenomenon -in Austin's Yogurt shop murders, some 50 different people confessed to the crime.

      A "compliant" confesson occurs when a suspect confesses at the end of a long, grueling interrogation in order to put an end to the stress and make the interrogation stop. In the Yogurt Shop case, the confession offered by defendant Robert Springsteen falls into this category, he said.

      The "persuaded" confessor actually comes to temporarily believe, or at least accept, that they must have committed the crime even when they really didn't. Leo said that Michael Scott's confession in the Yogurt Shop case is a classic example of this, and that he believes Scott is actually innocent with "every bone in my body."

      Quite a few "persuaded" confessors have had their convictions overturned by DNA evidence, said Leo, pointing out that DNA evidence failed to corroborate Scott and Springsteen' s Yogurt Shop confessions.

      In summary, Leo says there are three basic "pathways to false confessions."

      Police may make "misclassification" errors in which officers misjudge guilt on the front end and mistakenly initiate interrogations.

      They might make a "coercion" error in which psychological manipulation techniques backfire and intimidate innocent suspects to confess.

      And police also can make a "contamination" error, in which they inadvertently feed suspects information that later fills out the details of a confession, but which came from the officer, not the defendant.

      When it comes to public policy reforms to prevent false confessions, Leo thinks recording interrogations is the best available tool. Generally, he said, police tend to oppose recording interrogations on the front end, but once they've fully implemented the practice, "they love it."

      While some false confessions still occur when they're recorded (like Scott and Springsteen's), recording creates a reviewable record, eliminates "swearing contests" about what was said in the interrogation room, and protects police from false allegations of misconduct.

      Ten states already require recording interrogations, he said. In two of them - Minnesota and Alaska - courts issued the requirement, while elsewhere it was enacted through legislation. Wisconsin's statute, said Leo, is the best version currently available and should be considered a model.

      Some states require recording in all felonies, some only for homicides, and the Wisconsin legislation allows exceptions for field interviews and when exigent circumstances prevent recording.

      Rep. Jim McReynolds asked about funding, to which Leo replied that this is an often-raised concern by police but their objections can be easily overcome.

      These days recording is "not super expensive," he said, and digital storage has become especially cheap.

      What's more, recording saves the state money at future points in the process, though such savings won't necessarily accrue to the police budget. Overall, recording more than makes up for the minimalist expense by saving time in the courts, mostly because it facilitates plea bargains and reduces haggling over whether confessions are admitted. The recording expenditure more than pays for itself when you consider how much it costs to pay lawyers, judges, bailiffs, etc., for suppression hearings.

      While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:

      +Expanded police training on the causes of false confessions and how to avoid them.

      +Create a post-confession review team when a confessor falls in an at-risk group.

      +Jury instructions where confessions are the primary evidence.

      +Allowing expert witnesses in court to dispute confessions.

      Those last two on the list are Leo's least recommended options, he said, because they occur so late in the process the damage has mostly been done. He preferred approaches that might catch or prevent false confessions earlier in the process, long before the defendant ever gets to trial.

      Posted by Gritsforbreakfast at Labels: confessions, DNA, Innocence, Police

      Jan. 10, 2009

      The Importance of the Innocence Project

      The Innocence Project is an organization that really deserves to be more widely recognized for the vital role they play in this country. Here's a list of the people they freed from prison in 2008 by using DNA evidence to show that they were innocent of the crimes they'd been convicted of. The list is below the fold:

      Michael Blair was convicted and sentenced to death in Texas based on improper forensic testimony and several eyewitness misidentifications. He served nearly 14 years on Texas death row for a murder he didn't commit.

      Kennedy Brewer was sentenced to death in 1995 for a child murder he didn't commit. He was freed when DNA testing secured by the Innocence Project led to the identity of the real perpetrator. His exoneration also led to critical reforms on handling evidence and state oversight for autopsies.

      Dean Cage was exonerated by DNA testing in Chicago after spending 12 years in prison for a rape he didn't commit.

      Charles Chatman served 27 years in Texas prison for a rape he didn't commit before DNA testing secured by the Innocence Project of Texas set him free.

      William Dillon served 26 years in a Florida prison before DNA testing led to his release. He was convicted based on an eyewitness misidentification, testimony from a jailhouse snitch and unreliable testimony of a police dog handler.

      Nathaniel Hatchett was 17 years old when he was arrested for a carjacking and rape he didn't commit. He served 10 years in Michigan before he was cleared.

      Arthur Johnson spent 16 years in Mississippi prison for a rape he didn't commit before DNA testing won by the Innocence Project New Orleans led to his release.

      Rickey Johnson served 25 years in Louisiana prison for a rape he didn't commit before the Innocence Project secured DNA testing that proved his innocence. The test results pointed to the identity of a Louisiana inmate who was convicted of committing another rape in the same neighborhood after Johnson was convicted.

      Robert McClendon was exonerated by DNA in August in a joint project between the Ohio Innocence Project and the Columbus Dispatch. He spent 17 years in Ohio prison for a crime he didn't commit before he was cleared.

      Thomas McGowan served 23 years in Texas prison for a rape he didn't commit before DNA testing obtained by the Innocence Project proved his innocence. He was convicted based on a faulty identification procedure.

      Steven Phillips was exonerated in October after serving more than two decades in Texas prison for a series of rapes he didn't commit. DNA testing obtained on Phillips' behalf by the Innocence Project pointed to the identity of the real perpetrator of the crime.

      Ronnie Taylor was convicted in 1993 of a rape he didn't commit based on faulty forensic tests at the troubled Houston crime lab. His exoneration became official in January, just days after he married his longtime fiancee Jeanette Brown. The couple now lives in Atlanta.

      Patrick Waller served more than 15 years in Texas prison for a rape he didn't commit. He is the 21st person cleared by DNA testing in Dallas County.

      Joseph White, exonerated in November, was the 1st person cleared by DNA testing in Nebraska history. His 5 co-defendants are awaiting pardons from the governor in order to be fully exonerated.

      This is why I am opposed to the death penalty. I don't oppose it on moral grounds. I have no moral problem with the state putting to death a murderer. I oppose it purely on practical grounds - our legal system simply cannot offer the certainty of guilt to justify a form of punishment that can never be reversed. Too many innocent people are put to death.

      And no, the fact that we now have DNA evidence does not change that analysis. It certainly makes things better, but there are lots of cases without such evidence and many more cases where it is mishandled or where the accused has no access to get it tested. Let us all be thankful that groups like the Innocence Project have managed to right so many miscarriages of justice. But the fact that there are so many that need to be righted in the first place should give us pause.

      (source: Ed Brayton, The Axis of Logic)

      Jan. 05, 2009

      EDITORIAL: Innocence funding

      The alleged $50 billion Ponzi scheme run by Bernard Madoff, once a well-respected Wall Street investor, has claimed many casualties — individuals as well as large nonprofit institutions.

      A Texas organization that has done an incredible job of helping victims of our flawed criminal justice system has fallen victim itself after learning that its major benefactor’s funds had been "managed" by Madoff.

      The Innocence Project of Texas, which has exonerated more than 30 wrongly convicted people through DNA testing, received a $450,000 grant last year from the JEHT Foundation of New York to pay for the testing expenses. The foundation announced that because of its losses through Madoff investments it would suspend grants and shut down at the end of this month.

      Money already received by the Innocence Project will remain with the organization, which operates programs at Texas Tech University, the University of Texas at Austin, the University of Houston and Texas Southern University. But there are many more cases to be investigated and each DNA test costs $4,000 to $5,000.

      Innocence Project officials have applied for funding from other nonprofit foundations in the state, including one associated with the State Bar of Texas. By all means the state bar should support the program financially, but as one attorney with the project says, the responsibility of helping to clear these innocent people lies with the state of Texas itself.

      Jeff Blackburn, chief counsel for the Innocence Project of Texas at Texas Tech, told the Star-Telegram that the state Legislature could address this problem by spending a small fraction of the $2.3 billion it allocates to operate prisons.

      "The prison system is asking the Legislature to give it $500 million more this year for increased salaries to maintain its current level of operations," Blackburn said. "One five-hundredth of that amount — $1 million — would guarantee that the innocence work in this state could go forward."

      We agree. That is a small price to pay to free even one innocent person. In Dallas County alone in the past few years, 19 men have been exonerated by DNA testing.

      These wrongly convicted cases are a blot on the criminal justice system in this state, a blemish that is not likely to go away anytime soon. These injustices must be corrected, and the state should join in that effort with the dedicated individuals and nonprofit groups that have been working to rectify such despicable errors.

      Innocence Fundings

      The Poor Are Enslaved In American Prisons

      By Nancy Lockhart, M.J.
      January 1st, 2009

      America turns its head to those who are incarcerated, especially those considered as brutal and thoughtless. The average American believes that the justice system is perfect and would never incarcerate those who are innocent. This line of logic is grossly inconsistent with reality, as thousands of formerly incarcerated inmates have been freed by DNA-evidence only. Our justice system is failing day by day, minute by minute. One wrongful conviction is one- too-many, and numbers are escalating well into the tens of thousands.

      Adequate legal representation is available to those who are able to pay; those who cannot, however, suffer. Consequently, inadequate legal representation mostly leads to an inevitable unjust verdict.

      As a legal analyst, I’ve observed the legal processes in depth over the years, and watched those with money, resources and networks receive justice within a system allegedly designed to serve all. I’ve observed the poor and unknowledgeable suffer, as finances, resources, and networks are very limited or void!

      It is our right under the Constitution to petition our courts for justice. What does this say for a Nation of life, liberty and the pursuit of happiness — Inalienable Rights?

      Slavery Is Alive and Flourishing In America

      Poor people are enslaved in America’s Prison Industrial Complex. Indigent legal representation unfolds as inexperienced, underpaid and overworked lawyers provide inadequate representation to the poor – resulting in wrongful convictions; thus, enslavement to the prison industrial complex increases. The use of felonious, unethical, and often, illiterate witnesses is an increasing vehicle for wrongful convictions. The financially disempowered are the burden barriers for society’s ills, but those with money and corporate networks never experience this enslavement.

      As the poor suffer, prosecutors and law enforcement officers are becoming even more corrupt in their policies. America incarcerates more individuals, especially minorities, than any other nation in the world. Wrongful convictions are on the rise and corruption is escalating. Slavery is alive and flourishing in America. In my years of service to the community, I’ve come across two distinct cases that yield inconsistencies from the onset.

      The case of Ali Khalid Abdullah is one of them. Ali Khalid Abdullah was released from prison on August 1, 2008 and has had multitudes of problems dealing with a new society, ever since. Ali describes his experience as “being freed from Prison but not free.” Ali served 19 years in prison for taking action against a drug dealer who had molested an 11-year old. How does a government release prisoners with no assistance, financial or social, and expect positive results? My opinion is, they do not. They expect and hope for recidivism as it is the key to maintaining The Prison Industrial Complex.

      The other case is that of two sisters, Jamie and Gladys Scott. In 1994, Jamie and Gladys Scott were wrongfully convicted in the state of Mississippi. A corrupt sheriff used coercion, threats, and harassment to convict the Scott Sisters of armed robbery. The case of the Scott sisters is an intriguing one, with transcripts stating that perhaps 9, 10, or 11 dollars was stolen, at most.

      It’s important to note that no one was murdered or injured. One of the state’s witnesses, a 14 year old, testified that he did not have an attorney present when signing a statement prepared by the sheriff. Jamie and Gladys Scott have served 14 years of double-life sentences, thus far.

      That’s Double Life Each! The absurdity of their sentencing reaches new heights with the reality that neither of the Scott sisters had prior convictions. Sadly, the cases of Mr. Abdullah and the Scott sisters are becoming an accepted phenomenon in our society.

      The Prison Industrial Complex is the 21st century slave master in the minority community, and unless we are made aware and trained to take action, the enslavement will continue to fester more and more rapidly in years to come.

      Don’t Wait Until It Happens To You!

      For more on the case, see Jamie & Gladys Scott and Black Commentator.

      Nancy Lockhart, is a legal representative and community organizer, living in South Carolina. She has worked tirelessly - for no pay - on the case of two Black females illegally charged and sentenced to double life.

      She can be reached at: nancylockhart@gmail.com.

      Read other articles by Nancy.

      The Poor Are Enslaved In American Prisons

      Study of Dallas police witness identifications on tap

      January 1, 2009
      The Dallas Morning News

      A long-delayed study of Dallas Police Department witness identifications, two years in the making, could begin this month.

      Traditionally, a detective shows a witness a photo lineup consisting of at least six pictures at one time. The study would incorporate a method known as the "sequential blind lineup" to help reduce misidentification of suspects. In this method, photos are shown to a witness one at a time by someone who does not know which picture is the suspect.

      Dallas County has had 19 DNA-based exonerations – more than any jurisdiction in the nation since 2001 when a state law began allowing post-conviction DNA testing. All but one of the DNA exonerations were based on faulty eyewitness testimony, according to an investigation by The Dallas Morning News published in October.

      Misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989.

      Dallas police, the arresting agency in 13 of the 19 Dallas County exonerations, hopes the study will help determine the best method to keep witnesses from making the wrong choices in a photo lineup.

      "We hope to determine what is the best practice and implement policies accordingly," Dallas Police Assistant Chief Ron Waldrop said.

      Dallas would become just the eighth police agency in Texas – including Richardson, Lewisville and Haltom City, locally – to use the sequential blind lineup, according to a survey by nonprofit reform group The Justice Project.

      Richardson police began using sequential blind lineups after the city had a DNA exoneration in April. Thomas McGowan was incorrectly selected from a simultaneous lineup after a woman was sexually assaulted. He served 22 years in prison after being wrongly convicted in the 1985 burglary and rape.

      Beginning research

      The Urban Institute, a nonpartisan economic and social policy research group based in the nation's capital, is in charge of the DPD study. Terry Dunworth, who is overseeing it, said the research should begin early in 2009 and continue through most of the year.

      The delays, police said, were caused by funding issues and then waiting on computer equipment. Now, police say they are trying to resolve software problems and hope to simultaneously begin the study with Washington, D.C., police. Officials are trying to work out the protocols between the two departments to avoid any additional delays.

      At least 800 lineups must be a part of the study, but only detectives in assaults and robberies will use the study's methods in their cases, said Lt. David Pughes, a Dallas officer working on eyewitness identification procedures.

      Pughes said detectives will load six photos into laptops. One picture will be that of the suspect; the other five will be "filler" pictures of people with similar features.

      A computer program will randomly determine whether witnesses should view the lineup simultaneously or sequentially. Then, the computer will decide whether the lineup will be conducted by the computer or a detective.

      Different tactic

      Gary Wells, an Iowa State University psychology professor and expert on eyewitness identification, said he developed the sequential blind method with a student in the mid-1980s. It was created to address the problem of a witness simply picking out the photo that looked most like the perpetrator when all pictures were viewed at the same time.

      Wells said that published experiments in controlled settings typically show that viewing pictures sequentially results in fewer misidentifications when the perpetrator is not in the lineup.

      "Presumably, this is because the sequential procedure prevents the witness from merely comparing one lineup member to another and picking the person who looks most like the perpetrator," he said.

      One drawback of the sequential method, however, is that witnesses are less likely to select the right person when the culprit is in the lineup than when viewing the photos simultaneously, Wells said.

      "This pattern of results is a classic trade-off in which reducing the rate of one type of error, mistaken identifications, can increase the rate of another type of error, failure to identify the culprit," he said.

      Conflicting answers exist about whether the sequential blind method is best.

      A 2006 analysis in Minnesota conducted by several police agencies found the method increased accuracy.

      But an Illinois study the same year concluded the sequential method caused the wrong person to be picked more often than viewing lineups simultaneously. Experts, including Wells, say the Illinois study was flawed because the lineups were not conducted uniformly or randomly.

      He explained that simultaneous photo lineups were always conducted by detectives and sequential lineups were conducted by an unbiased administrator."The Dallas study," Wells said, "will be an attempt to do correctly the experiment that was done incorrectly by the Chicago Police Department.">p> Different methods
      Traditional photo lineups

      Background: Photo lineups gained popularity after the U.S. Supreme Court ruled in 1967 that suspects have a right to have their attorney present when live lineups are conducted. Attorneys are usually not present when a photo lineup is conducted.

      How they work: Typically, a detective shows a witness at least six pictures of possible suspects at one time.

      Shortcomings: Critics say physical and verbal cues from the detectives conducting such a lineup can taint the results, even if the detectives are not deliberately trying to do so. Using a booking photo of a suspect from a past crime (with height markets and ID numbers across the chest, for example) can also suggest guilt in the recent crime.

      Sequential blind lineups

      Background: Gary Wells, an Iowa State University psychology professor and expert on eyewitness identification, developed the sequential blind method with a student in the mid-1980s.

      How they work: Photos are shown to a witness one at a time by someone who does not know which picture is the suspect.

      Strengths: Experiments show that viewing pictures sequentially results in fewer misidentifications when the perpetrator is not in the lineup, probably because the witness isn't just comparing one person to another and picking the person who looks most like the criminal.

      SOURCE: Dallas Morning News research

      Study of Dallas police witness identifications on tap


      Innocence Project of Texas hit by Madoff scandal

      By Andrea Ball
      December 24, 2008

      The Bernard Madoff scandal is hitting home for the Innocence Project of Texas.

      The JEHT Foundation — a major funder of the Innocence Project — is shutting its doors in January because its prime donors invested with Madoff, a Wall Street financier accused of running a pyramid scheme that defrauded investors out of billions of dollars.

      That means the foundation will no longer be able to fund the Innocence Project, a statewide nonprofit dedicated to overturning wrongful convictions.

      JEHT currently provides $125,000 of the project’s $200,000 annual budget, said Chief Counsel Jeff Blackburn. “This guy has now singlehandedly destroyed the work of dozens of criminal justice organizations in the country,” he said.

      For now, the financial blow won’t immediately affect the nonprofit’s work because it’s currently working with its last JEHT donation.

      But it could impact the nonprofit’s ability to take on new cases, including those in Austin, Blackburn said. The nonprofit is scrambling to find new donations to keep its work strong, he said. “We’re talking to other foundations to see if they’ll fund our operations,” he said. “The Innocence Project is not going to shut down because of this.”

      Innocence Project Of Texas hit by Madoff scandal

      December 22, 2008

      Duncan, Ellis championing cause of innocent man who died in prison

      On the innocence front, state Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston) say they'll team up during the 81st Texas Legislature to extend compensation to families of innocent inmates who died in prison before they were exonerated, creating a mechanism to formally clear the name of those unhappy souls who did not live to see their innocence proven.

      This effort stems from the Tim Cole case out of Lubbock, where a Texas Tech student was falsely accused of rape after the victim identified him in a photo lineup. Reported the Lubbock Avalanche Journal:

      State Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, may clarify how the state compensates and exonerates wrongfully convicted inmates who die in prison.

      The work, along with recognition by Texas courts, could bring closure after 22 years to the family of Timothy Brian Cole and formally recognize what could be the country's first posthumous exoneration.

      "I think we need to recognize that for the family," Duncan said. "When the government deprives somebody of liberty, that's a pretty significant right." ...

      Legislation Duncan authored seven years ago gave inmates with a legitimate innocence claim easier access to DNA testing. A separate bill by Ellis laid out rules for compensating the innocent Texas had imprisoned.

      "I think this basically improves the reliability of our prosecutions and, hopefully, provides some assurance to the public that the criminal justice system has checks and balances," Duncan said in a late November interview. "Hopefully, maintains the integrity of the justice system."

      Meanwhile, the Dallas News Crime Blog informs us that more Texas police departments - Carrollton PD is specifically profiled - are beginning to establish written policies for eyewitness identification procedures. A study by the Justice Project (pdf) released last month found that 88% of Texas police departments do not have any written procedures for how to conduct live lineups or present photo arrays to suspects.

      It was a faulty eyewitness testimony that convicted Tim Cole, and the rape victim in that case has bravely joined with Tim Cole's family to help clear his name and demand systemic improvements.

      Sen. Ellis has filed SB 117 to require Texas police departments to all implement written eyewitness ID policies that include minimal safeguards like blind administration, cautionary instructions to witnesses (e.g., "the perpetrator might not be there"), and other low-cost/high- benefit measures to reduce false accusations.

      RELATED: See this detailed public policy report from The Justice Project on best practices for eyewitness ID procedures.

      Posted by Gritsforbreakfast at; Labels: eyewitness testimony, Innocence

      Dec. 22, 2008

      EDITORIAL: Coping after prison

      Long-term imprisonment, in any circumstance, affects the human psyche. Consider what damage it could do to the mind of someone falsely convicted and sent to the penitentiary for years.

      In recent years, more than 200 people in U.S. prisons have been exonerated by DNA, proving that they were wrongly convicted. Dallas County has the most proven false convictions: 33.

      Often when men walk out the jail or courthouse door after being freed for a crime they did not commit, it is assumed that their ordeal is over. But a professor at the University of Texas at Arlington says that, in many ways, their stories and their troubles are just beginning.

      "They can’t get a driver’s license or Social Security card," said John Stickels, UT-Arlington professor of criminal justice and jurisprudence. "People won’t rent to them because they think they must have done something wrong. They can’t get medical treatment. It’s just starting over completely."

      Stickels and social work professor Jaimie Page, with the help of an $80,900 grant from the Hogg Foundation for Mental Health in Austin, will conduct a yearlong study on the mental health needs of exonerated inmates, a much-needed added component of their work in helping the wrongly convicted re-integrate into society.

      This is important work and one of the least things that can be done for those who have been wronged by the criminal justice system.

      We hope that the study will include the needs of the victims’ families as well. Just as with those who return from war traumatized, former inmates’ families are often confronted with mental and emotional issues they don’t understand and with which they don’t know how to cope.

      In many cases, they have to learn to live with a loved one whose negative experience has made him or her a different person.

      We commend the Hogg Foundation for recognizing this need and for the great work it has done over the years in mental health. We also offer encouragement to the UT-Arlington professors who have taken on this complicated but very necessary task.

      Coping after prison

      The U.S. criminal justice system is collapsing

      By Paul Craig Roberts
      Online Journal Contributing Writer
      Dec 18, 2008

      The Christmas season is a time to remember the unfortunate, among whom are those who have been wrongly convicted.

      In the United States, the country with the largest prison population in the world, the number of wrongly convicted is very large. Hardly any felony charges are resolved with trials. The vast majority of defendants, both innocent and guilty, are coerced into plea bargains.

      Not only are the innocent framed, but the guilty as well. It is quicker and less expensive to frame the guilty than to convict them on the evidence.

      Many Americans are wrongfully convicted, because they trust the justice system. They naively believe that police and prosecutors are moved by evidence and have a sense of justice. The trust they have in authorities makes them easy victims of a system that has no moral conscience and is untroubled by the injustice it perpetrates.

      Lt. William Strong, son of a military family, tired of his wife’s unfaithfulness and filed for divorce. The unfaithful wife retaliated by accusing Strong of rape. There was no evidence of rape, but Strong was deceived into a plea bargain. Once Strong entered a plea, he was double-crossed and given 60 years.

      Christophe Gaynor took an adolescent skateboard team to New York City for a competition. One of the kids attempted to buy illicit drugs. Gaynor threatened to tell the boy’s parents, and the boy preempted Gaynor by accusing him of sexual molestation.

      Gaynor was openly framed in the Arlington, Virginia, court system.

      Americans, or perhaps more accurately some Americans, were horrified by the photographs showing the torture of Iraqi detainees in Abu Ghraib by the US military. The Senate Armed Services Committee has issued a report which concludes that the torture policy originated at the highest level of the Bush administration. Those Americans with a moral conscience have reeled under further revelations -- the torture of Guantanamo detainees, the transport of people seized by US authorities to Third World countries to be tortured.

      We have to ask ourselves why American service men and women and CIA operatives delight in torturing people about whom they know nothing? It has been well known since the Stalin era that torture never produces accurate information. Yet, US soldiers and CIA personnel jumped at the green light given to torture by President George W. Bush, Vice President Dick Cheney, Secretary of Defense Rumsfeld, and the US Department of Justice. Why weren’t our soldiers shocked instead at the immorality of their leaders?

      One answer is that the US military no longer operates according to a code of honor. Military discipline in the traditional sense does not exist. The ethos of the US military has degenerated into kick-ass macho. Major General Taguba, who, instead of covering up the Abu Ghraib scandal, attempted in his report to hold the US military to its traditional principles, was forced to resign from the US Army.

      Another answer is that the work of torture, like police work and prosecutorial work, attracts brutal people who enjoy inflicting harm on others. The two Republican female US attorneys in Alabama who framed Democratic Governor Siegelman enjoyed ruining Siegelman and bringing grief to his family.

      Deborah Davies of the BBC’s Channel 4 undertook a four-month investigation of the torture of American prisoners inside American prisons. Videos taken by sadistic prison guards and videos recovered from surveillance cameras reveal horrible acts of torture and even of murder of prisoners by prison guards.

      An American prison reformer told Deborah Davies: “We’ve become immune to the abuse. The brutality has become customary.”

      Few Americans seem to be disturbed as these inhumane and illegal practices continue unabated. Americans continue to see themselves as the salt of the earth, the “indispensable people.”

      “Law and order conservatives” have a great responsibility for this evil. Just as “law and order conservatives” created hysteria among the people about crime, they created hysteria about terrorists. Hysterical people condone great evils and arm government with power in the mistaken belief that it will protect them.

      What kind of people have we become when we exercise no oversight over a criminal justice [sic] system that destroys the lives of innocent people and locks them away in prisons to be tortured by sadistic guards?

      Paul Craig Roberts [email him] was Assistant Secretary of the Treasury during President Reagan’s first term. He was Associate Editor of the Wall Street Journal. He has held numerous academic appointments, including the William E. Simon Chair, Center for Strategic and International Studies, Georgetown University, and Senior Research Fellow, Hoover Institution, Stanford University. He was awarded the Legion of Honor by French President Francois Mitterrand. He is the author of Supply-Side Revolution : An Insider’s Account of Policymaking in Washington; Alienation and the Soviet Economy and Meltdown: Inside the Soviet Economy, and is the co-author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice. Click here for Peter Brimelow’s Forbes Magazine interview with Roberts about the recent epidemic of prosecutorial misconduct.

      Copyright © 1998-2007 Online Journal

      The U.S. criminal justice system is collapsing


      Evidence stored in 2002 clears Houston man in child sex case

      Copyright 2008 Houston Chronicle
      Dec. 11, 2008

      DNA evidence — collected in 2002, but unexamined until now — has cleared a Houston man serving a 40-year prison sentence for the sexual assault of a child, the Harris County District Attorney's Office announced Thursday.

      In 2003, jurors convicted Ricardo Rachell, who was severely disfigured by a shotgun blast to the face years before, largely based on eyewitness testimony from the 8-year-old victim and one of his friends.

      Five years later, DNA tests show that Rachell, 51, could not have committed the crime and instead point to another man who is serving time for committing similar attacks, Rachell's lawyer Deborah Summers said.

      "This is the last case I thought would come back this way," Summers said. "When I took this case, I didn't even know if there would be evidence to test. But (Rachell) just kept fighting and plugging away and kept demanding his rights. I am really pleased this worked out for him."

      Rachell is the fifth Harris County man exonerated with DNA evidence in recent years.

      The biological samples that cleared his name were collected by the Houston Police Department after the October 2002 attack on the boy, who had been lured into a vacant south Houston home by a stranger. Until now, however, those samples hadn't been tested. Their existence was never mentioned at trial.

      In fact, Rachell's first attorney said he knew nothing of the rape kit or the potential to get conclusive answers about his client's innocence before trial.

      "It was not disclosed in any offense report that I saw," Ron Hayes said. "If I had been aware, I would have pushed for DNA testing, without question. I am disappointed that somehow it did not come to somebody's attention who could have done something about it sooner." Joint request for release

      The district attorney's office did not answer questions Thursday whether it knew of the evidence in 2002, although District Attorney Kenneth Magidson said in written statement that it was a mistake not to test the rape kit before trial.

      "As soon as the evidence was found to exonerate him, we acted as swiftly as possible to see that justice is done in this case," he said. Prosecutors and Summers plan to make a joint request today for Rachell's release before state District Judge Susan Brown, who presided at his trial.

      After the hearing, according to Summers, the lawyers will ask where the evidence that cleared his name has been all these years. "When I took this case, there was no (physical) evidence that I was aware of," Summers said. "I wasn't giving Mr. Rachell a great deal of encouragement because I thought if there had been DNA collected, surely it would have been raised before now."

      HPD has a history of not testing biological evidence despite its availability in a high number of cases, according to an independent investigation of its crime lab, which officials shuttered two months after the attack in which Rachell was accused.

      "The crime lab's failure to generate ... results in cases where it was possible to conduct such testing ... is very troubling," wrote a former U.S. Justice Department official at the conclusion of a $5.3 million investigation of the crime lab. "This failure has implications both for ensuring that the guilty are convicted and that the innocent are exonerated."

      Seen around neighborhood

      Rachell's legal troubles began Oct. 20, 2002, when a stranger asked the child victim if he would be interested in earning money by helping move some trash, according to prosecutors. The boy agreed. The man took him to a vacant house and sexually assaulted him.

      The next day, the boy's family called HPD to say the youngster saw his attacker, Rachell — a man with a disfigured face known to some for riding his bicycle around the neighborhood, according to his attorneys.

      Police arrested Rachell and he was charged with aggravated sexual assault of a child. Biological evidence was collected, as was a reference sample from Rachell, for comparison to the evidence. But it never was used.

      The core of the case against Rachell were the identifications from the 8-year-old and his friend. He went to trial in June 2003 and began serving his 40-year sentence, all the while pursuing various appeals.

      Shawna Reagin, a defense attorney recently elected state district judge, handled Rachell's first appeal.

      "I always had questions about this whether he was innocent," she said. "The child omitted any mention of the facial disfigurement."

      Other similar crimes

      In addition, Reagin said, there was another man known to be committing similar crimes in the area at the same time.

      Reagin raised those arguments, but Rachell's conviction was affirmed.

      Rachell then pursued the possibility of post-conviction DNA testing and a judge appointed Summers to his case.

      This March, prosecutors contacted Summers to say they had located evidence and wanted to move forward with testing. The results came back last month. Prosecutors have not said whom the tests implicates, but they have reopened the case.

      Prosecutors also said they will support Rachell should he seek a full pardon. That would fully clear his name and entitle him to almost $300,000 in reparations from the state, if he agrees not to file any lawsuits.

      "We feel confident that, with our assistance, he will be able to gain his freedom," Magidson said in a statement.



      Ricardo Rachell cleared of 2002 sexual assault

      Copyright 2008 Houston Chronicle
      Dec. 11, 2008

      A Houston man sentenced to 40 years in prison five years ago for the aggravated sexual assault of a child is expected to be freed after DNA evidence cleared him, Harris County District Attorney Kenneth Magidson announced today.

      The DA's office will join with defense attorneys for Ricardo Rachell to ask for a bond at a hearing tomorrow. Rachell, 51, has served five years his sentence.

      A jury found him guilty in 2003 of sexually assaulting an 8-year-old boy a year earlier. Two witnesses and the victim testified Rachell had committed the crime.

      "As soon as the evidence was found to exonerate him, we have acted as swiftly as possible to see that justice is done in this case," Magidson said in a written statement. He said his office will support any requests from Rachell for a full pardon.

      DNA evidence collected by Houston police during their investigation of Rachell was never tested, which was a mistake, Magidson said. He said his office has reopened the case and identified a new suspect, who has not been charged.

      The case is one of 540 since 2001 that are under review by Magidson's office. Three other wrongly convicted Harris County inmates have been cleared by new DNA evidence as a result of the case reviews.


      Ricardo Rachell cleared

      My First Thanksgiving Back Home


      On this Thanksgiving — the first one I’m spending with my family since 1984 — I thought I would send a note to tell you how thankful I am for my freedom and for the chance at a new life.

      I’m thankful to my family for welcoming me home, and to God for making my exoneration possible.

      I’m thankful to the Innocence Project staff for their work on my case and, most of all, to you, for your support as a member of the Innocence Project community.

      I spent 23 years behind bars in Texas for a crime I didn’t commit.

      After not knowing for a lot of years whether the truth would ever come out, DNA testing proved my innocence and I was released in April.

      I’ve been out for seven months now, and it’s hard to express how good it feels.

      I’m starting to build a life.

      I live with my sister in Garland, Texas, and I’m taking computer programming classes through an organization called Central Dallas Ministries.

      Technology has changed so much since I went to prison, but I’m really into learning new things and these classes are perfect for me.

      For my first Thanksgiving as a free man in 23 years, I’m not taking anything for granted.

      After a few years in prison, you start looking forward to the meal they serve on Thanksgiving, and you start to think of your fellow inmates as your family, because it’s hard to accept that your real family is all together, so far away.

      After what I’ve been through, I’m just taking it all in.

      I’m going to my mom’s house, my grandma’s house and maybe a friend’s house as well.

      Thanksgiving is a special day, and I’m overjoyed to be with my family.

      Thank you for your commitment to truth and justice, and Happy Holidays,
      Thomas McGowan
      Garland, Texas

      Inmate for life freed over withheld evidence

      Prosecutors in Dallas were found to have kept back statements that might have cleared the man.

      Associated Press
      November 18, 2008

      Reporting from Dallas — A man serving a life sentence for two sexual assault convictions while he was in high school was freed Monday because prosecutors withheld evidence that might have cleared him.

      Antone Lynelle Johnson, 31, was sentenced in 1996 to life in prison for having sex with a 13-year-old when he was 17 and on probation for a prior assault.

      Prosecutors withheld evidence that would have raised doubts in both cases. One girl told prosecutors Johnson didn't rape her, and the other gave conflicting statements.

      Johnson did not find out about either comment until this year, the Dallas Morning News reported.

      His grandmother, who raised Johnson, told the newspaper she couldn't wait to see him. "I just want to hug him. Thank God," Lela Field said.

      Prosecutors in Dallas County, where a nation-high 19 inmates have been exonerated by DNA evidence, supported overturning Johnson's first conviction and his life sentence. Johnson was released after a state district judge recommended setting aside the conviction. A higher court will ultimately decide his case.

      No criminal charge exists in Texas for a prosecutor who commits a "Brady violation." The name refers to a Supreme Court ruling that state prosecutors violate a defendant's constitutional rights if they withhold evidence favorable to the defense.

      Inmate for life freed over withheld evidence

      From the Los Angeles Times

      November 11, 2008

      Innocence bills are pre-filing highlight so far

      Though the session won't actually begin until January, yesterday (Nov. 10) was the first day of pre-filing bills for consideration by the 81st Texas Legislature.

      I should add all the usual caveats before pointing out a few interesting highlights - most legislators have yet to file any bills, and most legislation filed, good or bad, won't pass. Moreover, legislation filed early has no greater chance of passing than bills filed later on. Still, pre-filing is our first glimpse of proposed new laws, so with that said, let's examine some criminal justice highlights:

      No bills yet from Sen. John Whitmire or Rep. Jerry Madden, both of whom are expected to author significant reform bills this session. But Sen. Rodney Ellis was among the most prolific pre-filers, with 72 bills in the hopper so far including several key innocence-related reforms.

      SB 115: Creating an Innocence Commission
      SB 116: Recording interrogations
      SB 117: Improving eyewitness ID procedures
      SB 260: Improving reliability of informant testimony

      Ellis also filed a resolution granting sex abuse victims in Texas Youth Commission cases permission to sue.

      Sen. Royce West has a good bill (SB 224), that disallows state licensing agencies from using a prior conviction to refuse licensing if the offender successfully completed deferred adjudication. (I'm hoping we'll see some bills before session is done going even further in that regard.)

      Sen. Craig Estes from Wichita Falls has come back with his bid to criminalize salvia divinorum, a psychoactive plant that's unlikely to ever become popular as a hallucinogen, unless they ban it.

      Sen. Judith Zaffirini has a bill (SB 60) mandating the right of an employee to take time off work to attend court proceedings in a case where they are the victim.

      Senators Deuell and Van de Putte have once again filed legislation (SB 188) authorizing local governments to establish needle exchange programs. This legislation passed the Senate in 2007 and has a MUCH greater chance of becoming law now that Diane Delisi, who chaired the House Public Health Committee and was a bitter opponent of the idea, has retired from public office. (A pilot program in San Antonio Delisi did approve was derailed by the District Attorney.)

      I'll examine more pre-filed criminal justice-related bills as a regular feature on Grits in the next few weeks, plus pay specific attention to the most important ones above - particularly the innocence-related bills - as the legislative session approaches.

      See the Texas capitol website for more bill-related information.

      Posted by Gritsforbreakfast:
      Labels: Innocence, Texas Legislature

      News: October 3, 2008

      Innocence Project Seeks Justice

      By Jordan Smith

      If Lubbock court officials had paid any attention to a letter they received in 1995, Timothy Brian Cole might still be alive. Instead, Cole died in 1999 from an asthma attack while in prison for a rape that, it turns out, he did not commit.

      Now, on behalf of Cole's family and the victim of the 1985 Lubbock rape, Michelle Mallin, Innocence Project of Texas Chief Counsel Jeff Blackburn is asking a Travis Co. judge to order a court of inquiry to investigate the Cole case, to find out how and why the justice system failed to find the person actually responsible for Mallin's rape. Indeed, as it turns out, the actual rapist, Jerry Johnson, came forward in 1995 (after the statute of limitations had expired) to confess that he was the rapist. He wrote a letter to now Lubbock Co. Judge Jim Bob Darnell, who in 1986 was the assistant D.A. who prosecuted Cole. Darnell ignored the letter, says Blackburn. At press time, Darnell had not returned our request for comment.

      It wasn't until last year, when Johnson wrote to the Lubbock Avalanche Journal and then to Blackburn at the Innocence Project, that an investigation into Johnson's claim began. Blackburn says that students working with the project discovered "serious flaws" in the state's case against Cole, including serious problems with the eyewitness identification procedures that prompted Mallin to finger Cole as her attacker. (Eyewitness identification is a major culprit in wrongful conviction. Of the men so far exonerated by DNA in Texas, 82% were falsely fingered by an eyewitness.)

      Johnson is currently serving two consecutive life sentences for other rapes also committed in Lubbock in 1985. "In 1995, if anyone had listened to Jerry Johnson, Tim Cole would still be alive," says Blackburn. Cole, 38, died in 1999 from an asthma attack caused by dust while working in a prison cotton field.

      The Texas Constitution guarantees that crime victims will be treated with "fairness and with respect for the victim's dignity" by the judicial system, Blackburn argues, but for Mallin and Cole that has not happened – which is why he believes the courts should open the case for review. "This is an extraordinary case that demands an extraordinary remedy. Because Mr. Cole is dead, he cannot assert his innocence through the normal procedures allowed by law," Blackburn wrote in the petition filed in Travis Co. last week. "Ms. Mallin has a right to a judicial determination of who the perpetrator was so she can finally gain some closure to this matter. The citizens of this state have a right to have the real perpetrator ... brought to justice," he continued. "The citizens of this state also have a right to know what went wrong in this case and why."

      So far, however, that argument hasn't worked. Blackburn originally filed the petition in Lubbock; it was denied without explanation. He is now hoping that the Travis Co. bench will grant his request. "In Texas, when a county won't fix a problem, what do you do?" he asked. "You go to the capital."

      After the Innocence Project began its investigation into Cole's case and Johnson's confession, Lubbock Co. District Attorney Matt Powell initiated a parallel investigation that ultimately revealed that DNA from the crime did not match Cole. Still, the system must identify what went wrong with the investigation that ultimately sent Cole to prison. Without that, Cole's family and Mallin are left without any real answers, Blackburn said. This case has "supreme importance to every other crime victim in the state" and to the judicial system. Granting the victim's request for a court of inquiry would give the judiciary a "chance to show that it can fix its own problems," Blackburn said. "This case shows how completely broken the judicial system is in Texas. ... We don't listen to people who are innocent – and we don't even listen when people say they're guilty."

      Innocence Project Seeks Justice

      Copyright © 2008 Austin Chronicle Corporation.
      All rights reserved.

      Dallas man one step closer to freedom after DNA clears him in 1981 rape

      September 15, 2008
      The Dallas Morning News

      While a 28-year-old woman was being raped at White Rock Lake in August 1981, Johnnie Earl Lindsey was at work, pressing pants at a commercial laundry business, he has said.

      But Mr. Lindsey, who is now 56, was convicted and sentenced to life in prison.

      After nearly 26 years there, the Dallas man is one step closer to freedom this week after DNA test results showed that he was not the man who sexually assaulted the woman, said his attorney, Michelle Moore.

      A court hearing is scheduled Friday at the Frank Crowley Courts Building.

      "Hopefully he'll be released," said Ms. Moore, an assistant Dallas County public defender and a board member of the Innocence Project, a legal group that seeks to get wrongful convictions overturned.

      Dallas County District Attorney spokeswoman Jamille Bradfield confirmed the hearing date but said she could not comment further until later this week. If released, Mr. Lindsey would be the 19th man cleared by DNA testing in Dallas County since 2001, when the state Legislature began allowing post-conviction DNA testing.

      The rape victim, who is not being identified because of The Dallas Morning News' policy not to name victims of sexual assault, pointed out Mr. Lindsey's picture in a six-person photo lineup that Dallas police mailed to her one year after the attack. She was living in San Antonio at the time, according to court records.

      The suspect had been described as a black man in his 20s wearing no shirt, according to court records. Only two men in the lineup photos were shirtless, Ms. Moore said. And Mr. Lindsey was one of them.

      "Juries back in the day believed that when a woman was raped, she must be able to identify her attacker," Ms. Moore said. "We know so much more now. There have been so many studies about how bad eyewitness accounts can be."

      On Aug. 25, 1981, the victim was riding her bike around White Rock Lake about 11 a.m. when she saw a shirtless man standing on the path in a wooded area, according to court records.

      As she tried to ride past him, the man grabbed the handlebars of her bike and knocked her off, court records show. He said he had a knife and threatened to stab her if she didn't do as he said. After being sexually assaulted, the woman managed to get away and ran for help, covering herself with a paper bag she found, according to court records.

      Mr. Lindsey has maintained his innocence through two trials and several parole board hearings, Ms. Moore said. His first conviction was overturned because he was indicted under a statute that was not in effect at the time of the incident. The Dallas County district attorney's office retried him and got the same conviction.

      "The reasons they gave for not granting him parole were because of the nature of the crime and because he would not admit to the offense," Ms. Moore said. "It's been almost 26 years. I can't believe he didn't just admit to the assault so he could be released."

      In 1977, Mr. Lindsey was convicted of aggravated robbery, for which he was sentenced to 10 years in prison. Ms. Moore said that was a mistake he made when he was younger, and that he regrets his actions.

      Before the 1981 rape case, Mr. Lindsey pleaded guilty to an unrelated attempted rape and was sentenced to eight years in prison. Ms. Moore said he did not commit that crime but pleaded guilty under the advice of his attorney and in exchange for a short sentence.

      DNA clears Inmate in 1981 rape

      Texas has bad history


      In reaction to the growing number of exonerations across the state, the Texas Court of Criminal Appeals announced Wednesday that it is creating a Texas Criminal Justice Integrity Unit to investigate and address weaknesses in the criminal justice system.

      Texas has a particularly bad history of convicting the innocent, as the court recognized: Since 1994, 33 men have been exonerated in Texas -- 17 of them from Dallas County since 2001 -- after DNA testing. These wrongfully convicted inmates have collectively served 427 years in prison, according to a watchdog group.

      These are the important issues that the Integrity Unit will address:
      Quality of defense counsel for poor criminal defendants. Ways to improve witness identification.Overhauling the standards for collection, preservation and storage of evidence.The group will also look into the cases of current inmates who may have been wrongfully convicted. Previously, plans for an innocence commission called for a review of exonerations.

      Targeting police misconduct by, for instance, requiring that interrogations be recorded to avoid the fabrication of confessions, should also make the list.

      The problem is not confined to Texas, of course. This post noted the recent exoneration of Dean Cage in Illinois. He became "the 29th person in Illinois to be exonerated through DNA testing."

      Every state has given into political pressure over the last 30 years to lock people up in response to the overblown perception that crime is out of control, often without sufficient concern for the possibility that those who are accused are actually innocent.

      Every state needs to pay greater attention to the urgent need for reforms that will minimize unjust convictions.

      DNA Testing Expands to Lesser Crimes

      By Dan Morse
      Washington Post Staff Writer
      September 8, 2008; Page B05

      While unusual, here is a crime as alleged by Montgomery County police that joins the list of things harder to get away with in the era of DNA evidence:

      Man walks into a Starbucks, says he wants to apply for a job. He's given an application and a complimentary cup of coffee. Minutes later, he walks around the counter and threatens a barista with a ballpoint pen. He flees with $204 from the cash register and keys to another barista's 1993 Nissan Maxima, leaving behind the partially consumed cup of coffee.

      Dominic J. Wilson is scheduled to stand trial today in the Starbucks case.

      "Saliva," said Ray Wickenheiser, director of Montgomery's crime lab, "is a good source of DNA."

      DNA testing in the county is expanding from killings and rapes to less violent robberies, burglaries and drug deals. Prosecutors say this will lead to quicker convictions because defendants will cave and plead guilty. Defense lawyers worry that as more DNA samples are pushed through the county's crime lab, it will boost the odds of false matches.

      "It runs the risk of turning the gold standard of evidence into fool's gold," said Stephen Mercer, a Montgomery lawyer who has taken on so many of these cases lately that one of this clients calls him "the DNA Dude."

      To read how detectives describe the Starbucks case in their arrest documents, the case appears to reside in the gold-standard realm. The incident took place in 2002, so long ago that the Starbucks in question, along Washington Street in downtown Rockville, doesn't exist anymore, although there is a new one around the corner.

      For years, detectives didn't make an arrest. They did have a seized coffee cup, though, from which they lifted a DNA sample, according to charging documents filed in Montgomery Circuit Court. In 2007, the details of that sample were entered into a statewide database of convicted felons.

      Up popped a connection to Wilson, who shortly after the alleged Starbucks job was arrested on assault and battery charges, according to court records. In March, a Montgomery grand jury indicted Wilson on one count of theft, two counts of robbery and one count of "robbery with a dangerous weapon," according to a copy of the indictment.

      Montgomery's crime lab has been dogged by backlogs of several hundred DNA cases. It is generally hard to keep labs fully staffed, in part because analysts are in such demand. Wickenheiser, the lab director who took over in March, said additional employees have cut the backlog to about 100 cases. His staff is running validation tests on new countertop robots that can do such things as automatically extract DNA from other cellular components. Wickenheiser hopes the robots will start producing evidence for cases by the spring. Coupled with a new gene-sequencing machine, the robots could increase DNA analysis output by at least 30 percent, he said.

      Wickenheiser said he wants to make DNA testing routine for all robberies and residential burglaries in Montgomery within five years.

      Already, courthouse attorneys are dealing with more DNA cases.

      "In the early days, you would see them in rapes and murders," said Paul DeWolfe, the chief public defender in Montgomery, who says DNA evidence now shows up in virtually every type of crime.

      As that happens, evidence technicians are swabbing for DNA on such things as gun handles, car interiors, cocaine bags and articles of clothing used in strangulation attempts. The problem, said Mercer, is that although the evidence can show that a suspect was near the evidence, it doesn't necessarily show that the suspect committed a crime.

      An article of clothing used in a strangulation could have been touched by the suspect weeks earlier in innocent fashion, he said. Also, surface samples often require DNA lab analysts to sort out the suspect's DNA from other people's, introducing a greater chance of error.

      Wickenheiser said he has established a "prioritization policy" with detectives and prosecutors that is expediting the most urgent cases.

      He said detectives and prosecutors know to seek other evidence tying suspects to crimes. And he said that as DNA testing gets more exacting, it simply makes sense to use it more. His analysts now can pull evidence out of DNA samples weighing 100 picograms, a picogram being one-trillionth of a gram. Such precision, he said, can also exonerate innocent suspects.

      One of Montgomery's top prosecutors, Laura Chase, a deputy state's attorney, said defense lawyers have feared challenging DNA evidence before a jury. As DNA evidence moves to less-violent crimes, she said, "I think it will encourage pleas. It always has encouraged pleas, and that will make the system more efficient."

      DNA Testing Expands to Lesser Crimes

      August 29, 2008

      Correcting forensic science errors

      From the Justice Project this week comes another in their excellent series of policy papers on the causes of wrongful convictions in DNA exoneration cases, this time focused on flawed or biased forensic science. From their announcement:

      This week, The Justice Project is releasing Improving the Practice and Use of Forensic Science: A Policy Review. This policy review provides an overview of the problems that plague forensic science, offers solutions to these problems, profiles cases of injustice, highlights states with good laws and policies related to forensic science, and includes a model policy.

      Learn more about improving forensic science here.

      As TJP President John Terzano wrote, “While forensic laboratories have yielded critical evidence in countless cases, preventable error has subverted justice, convicted the innocent, and jeopardized public safety. Law enforcement, prosecutors, defense attorneys, and the public at large all have a vested interest in making sure reforms are implemented to reduce the risk of mistakes and to elevate the quality and objectivity of forensic evidence and testimony.”

      Read Terzano’s blog post here.

      Research on the exonerations of innocent people has identified many of the primary causes of wrongful convictions. Based on these findings, The Justice Project has constructed a national agenda for reform designed to eliminate common, preventable errors that undermine the fairness and accuracy of our criminal justice system. Providing better oversight and practices in forensic science is one of TJP’s eight initiatives for criminal justice reform.

      Learn more about all eight initiatives here.

      The report features the story of exonerated Texan Brandon Moon both on the cover and as a key case study. This is an excellent and informative series which I'd strongly recommend to those interested in the topics they've covered. Here are the policy reviews they've addressed so far:

      * Eyewitness Identification: A Policy Review
      * Electronic Recording of Custodial Interrogations: A Policy Review
      * Jailhouse Snitch Testimony: A Policy Review
      * Expanded Discovery in Criminal Cases: A Policy Review
      * Increasing Access to Post-Conviction DNA Testing: A Policy Review
      * Improving the Practice and Use of Forensic Science: A Policy Review

      Posted by Gritsforbreakfast at:
      Labels: Crime labs, Forensic Errors

      Steven Phillips: One Injustice Corrected in a Broken System

      August 17, 2008

      Wouldn't it be horrible to be 50 and have been in prison for the last 25 years, missing out on seeing your children mature and have children of their own?

      Well, that is the story of Steven Phillips from Dallas, a new grandfather who was just freed. He had been accused of sexual assault and burglary in two different cases and convicted in two different trials. (Once the police nailed him for one, they charged him with another one.)

      Phillips got 30-year sentences at both trials. While in prison he was then asked by the authorities if he would confess to nine other sexual assaults which fit the pattern, and hoping for some mercy if he cooperated, he confessed to them.

      The Dallas police, 25 years ago, were so thrilled to be nailing Phillips for eleven cases of sexual assault that they didn't pay attention to authorities in Kansas City who also had a suspect, one Sidney Goodyear. Because Phillips had been positively identified by Dallas victims, the police did not bother telling his lawyer about Goodyear and something quite important.

      After the Kansas City police sent down a picture of Goodyear, the Dallas police had shown the picture to one of the victims, who said that Goodyear could be the rapist, but the police never told Phillips' lawyer about the conflicting evidence.

      Luckily, one of the cases in which Phillips was tried involved some stored material which could be DNA tested. When the tests were run a year ago, the evidence did not match Phillips' DNA. But it did match Goodyear's! It is now conceded by all that Goodyear was the serial rapist in Dallas and Kansas City.

      Should we feel pleased that justice has finally been done and Phillips is home? Yes. Should we be pleased that the system has proven itself to work, that bad decisions of the past continue to be corrected? No. The system does not work. At least not well enough to deserve praise. There are millions in prison, but only rare cases, like Phillips' case, have appropriate specimen material available for DNA testing. And the Steven Phillips case alone reflects three widespread and lingering problems.

      First, our old nemesis: eye-witness misidentification. Some backward "red meat" prosecutors still dramatize eye-witness identification as a slam dunk. And juries fall for it. We now know that Phillips did not commit the eleven crimes, but ten witnesses identified him! The national Innocence Project which defended Phillips said in its press release, "It is impossible to know [twenty five years later] how those identification procedures were conducted or how certain the victims were in their identifications. In addition, police circulated Phillips' name and biographical information widely in the media before most of the victims identified him -- this made their identifications highly unreliable."

      Most overturned convictions in Texas have fit the Phillips pattern. Of the 32 total DNA exonerations in Texas -- where there is no doubt the accused were innocent -- 25 of those cases involved eyewitness identification, sometimes from multiple witnesses.

      The Phillips case reflected a second pattern: overzealous prosecutors who ignore conflicting evidence. Dallas alone has had 15 DNA exonerations, and the new prosecutor there has been working with the Innocence Project to undo the damage of a ferocious and racist predecessor.
      (Texas Monthly, Sept. 2007)

      A third pattern: plea bargainings and false confessions. The Phillips case was really bizarre: Although Phillips did not confess to the two crimes he was tried for, the prosecutor bargained him into confessing to nine other ones. Because we have the Innocence Project statistics now, we know a lot more about confessions. Of the 200 people convicted whose innocence has subsequently been completely established by DNA tests, one in four had confessed!

      Why so many confessions? Well, interrogation has become a science.
      (Google "Reid Technique" and you will cringe.)

      Interrogators are taught techniques like standing too close to you, controlling your space, cutting you off anytime you start to declare your innocence.

      Interrogators can lie to you legally, make up evidence against you; they can yell at you, insult you, keep you a long time, and suddenly turn friendly and "understanding." The spare interrogation room is designed scientifically to keep you off balance, while the experts -- they practice the techniques and get good at them -- list the things you might be charged with.

      Emily Horowitz, a criminal justice professor, has a nice piece on false confessions in the latest Counterpunch; she mentions people who have become depressed, abject and "dependent" in a crisis situation. They are nervous wrecks before they are interrogated, and they are no match for scientific accusers. "Just admit you made a mistake, and maybe we can go easy on you," can be a very enticing line at just the right moment.

      Horowitz continues: "According to a raft of social science and psychology research done over the past two decades, techniques like these [check the now common "Reid Technique"] are especially likely to produce false confessions when used on juveniles, the mentally ill, the poorly schooled, immigrants, and those with impaired cognition." (There is also some evidence that those who have been sexually abused when they were youth are quite susceptible to making false confessions, since part of their survival mechanism was to blame themselves rather than those they admired.)

      Steven Phillips, now 50 years old, is fully exonerated now, and we should be joyous. But the current system of vigorous police work and prosecution is still dangerous to society, and we have a lot more work to do.

      One Injustice Corrected in a Broken System

      Some Prisoners Declared Innocent, but Not Free

      15 August 2008
      by: Maya Schenwar,
      t r u t h o u t | Report

      Due to endless litigation, conflicting legal technicalities, or inadequate transitional facilities, prisoners who are innocent may find themselves behind bars indefinitely.

      Former Black Panther Albert Woodfox, convicted of murdering a prison guard with two other inmates, has spent the last 35 years in prison, most of it in solitary confinement. Last month, Woodfox's conviction was overturned by a federal judge. However, despite being cleared of charges, Woodfox remains incarcerated, as the Louisiana attorney general's office persists in challenging the judge's decision.

      After repeated reexaminations of his case and an intervention by US House Judiciary Committee Chairman John Conyers, who called Woodfox's continued incarceration a "tragic miscarriage of justice," evidence against Woodfox is practically nonexistent. Nevertheless, he remains embroiled in litigation, and until the prosecutors have had their fill, he will stay behind bars.

      Pam LaBorde, spokeswoman for the Louisiana Department of Corrections, told Truthout that the attorney general would be appealing Woodfox's exoneration. She said that she does not know when a trial will take place, adding, "We're very early in the process."

      "He has to remain in prison until the new trial takes place," LaBorde said.

      Woodfox's case brings to light the startling reality that defendants who have been declared innocent may languish in prison indefinitely, due to endless litigation or conflicting legal technicalities. An overturned conviction is often countered by prosecutors with a "stay the mandate" motion, requiring prisoners to remain incarcerated until appeal. Due to poor lawyers, influential prosecutors and ever-changing legal statutes, the motion is often granted.

      Woodfox's lawyers have called upon the state of Louisiana to drop its attempts at retrial, arguing that an immediate release is the only humane option.

      "How can Louisiana continue to imprison a 61-year-old man after a federal judge has ruled that he shouldn't have been convicted in the first place?" Nick Trenticosta, one of Woodfox's attorneys, told the San Francisco Bay View in July. "The state needs to move forward. Albert must be released."

      However, according to a spokeswoman for the Louisiana attorney general's office, a motion for reconsideration has been filed, and the state could even take the case to the Supreme Court, leaving Woodfox incarcerated for the foreseeable future.

      "I don't think we have a timeline," the attorney general's spokeswoman told Truthout.

      The situation is not atypical, according to Kerry Max Cook, who spent 22 years on death row for a murder he did not commit. He recently published the book "Chasing Justice," which details his battle to prove his innocence and gain his freedom. Cook, who was declared innocent in 1999, cites his own case as an example of post- exoneration incarceration.

      "The mandate [for release] had been issued and I still remained on death row, though I had no more conviction," Cook told Truthout. "I myself had to petition the state district judge and demand the Constitution be followed and I be removed from death row. Some lawyers won't fight for their clients, and the client has to fight for themselves like I did."

      For clients who do not or cannot "fight for themselves," an open- ended prison sentence may be inevitable, hinging on the whims of prosecutors and judges.

      Another reason prisoners may stay incarcerated when they should be released: Legal statutes on sentencing change often and quickly, and sometimes a prisoner's release date is simply computed wrong, according to Rene Aucoin, a New England journalist who has followed the matter closely.

      "Say you were arrested in 1993 and the statutes mandated that you serve 75 percent of your sentence. Say the statutes were changed and/or new statutes created so that the law mandates inmates serve 85 percent of their sentence. By the time your release/parole date is near, the statutes have been changed again, and since you were convicted so long ago and have been incarcerated through several changes in legal statutes, no one remembers how the original law worked," Aucoin told Truthout.

      When prisoners are not properly represented and are not advised on sentencing policy, such breaches slip by unnoticed. Cook partially attributes illegal extended incarceration to "laziness and unconcern" on the part of judges and the prison system.

      In the Woodfox case, judges and defendants alike cited another culprit: discrimination. Before they were charged with murder, Woodfox and his two co-defendants - now dubbed the Angola 3, after the Angola Penitentiary where they were incarcerated - were engaged in rallying other inmates to participate in nonviolent protests against the prison's segregated quarters and ingrained racial violence.

      Last year, a magistrate judge noted in her findings for Woodfox's case, "Punishment for crimes committed 35 years ago, for political beliefs, for religious beliefs, and for leadership qualities are not legitimate penological interests." Judges' opinions since have indicated that Woodfox's conviction may well have been prompted by political and racial discrimination.

      In a column for The Guardian UK, Helen Kinsella notes that 36 years later, that same motivation may well be driving Woodfox's continued incarceration. She notes that some of the same players may even be involved.

      "The attorney general's second-in-command, John Sinquefield, who is helping to preside over the decision to continue fighting the case, is implicated in some of the wrongdoings referred to in the magistrate's June report," Kinsella writes.

      The attorney general's office did not return requests for comment on Sinquefield' s connection to the case by press time.

      According to Cook, who is gay, discrimination played a direct role in his own past-due incarceration.

      "As a convicted homosexual I always struggled to get basic human rights in Texas," Cook said, noting that he was unable to use those civil rights violations to defend himself in court and in his petitions for release.

      A host of other impetuses may result in prisoners staying in jail past their release dates. For example, in some states, if an inmate is eligible for parole but has nowhere to "parole to," he or she must remain in prison.

      Illinois mother Carleen Cross is currently experiencing that phenomenon firsthand. Her son completed his sentence last October, but due to the nature of his crime and the effect it's had on their family, Cross and her relatives could not take him in during his parole period. Since there is no approved public facility in Cross's area that houses sex crime parolees, her son was denied release.

      "We had 48 government-approved beds in the state for sex offenders and that's been cut to 28, so he won't ever get one of those," Cross told Truthout.

      Therefore, her son is serving out his parole time in prison. He will not be released until October 2010 - two full years after his intended release date.

      "There is no one to help him at all or even visit but me," Cross said. "He made the statement to me last week that he knows what it feels like to be dead."

      Maya Schenwar is an editor and reporter for Truthout.

      Innocent, but Not Free

      David Pope, exonerated in Dallas County, still struggles to find his place

      August 10, 2008
      The Dallas Morning News

      COTATI, Calif. – Seven years ago, David Pope became the charter member of a select club: Dallas County exonerees cleared by DNA.

      Today he has advice for new members: Be prepared for a tough adjustment.

      Mr. Pope, 46, spent 15 years in prison for a rape he didn't commit. Now he finds himself a solitary figure who works odd jobs but spends most of his time quietly tending to the small rental house he shares with his mother.

      He says he suffers post-traumatic stress from his prison years, likening exonerees to combat veterans who are comfortable on the battlefield but ill at ease in civilian life.

      After years of freedom, "I don't quite know where I fit," a bewildered Mr. Pope says.

      Family ties

      For Mr. Pope, freedom came abruptly, with little time to prepare.

      During a decade and a half behind bars, he had settled into prison life, where he was told when to get up, when to eat, when to work, when to play, when to sleep.

      Then one day he was fetched from his cell. After years of investigating an anonymous tip, DNA testing cleared him. Prosecutors finally admitted the wrong man was incarcerated.

      "They wanted me to walk out in the middle of the night," he says, "but I couldn't get a bus or anything at that hour."

      A guard let him spend the night in an unlocked cell and brought him dinner. An officer thrust a faxed pardon from the governor into his hands, and the next day Mr. Pope walked out the front gate in a set of secondhand clothes.

      An awkward family reunion followed, made tougher by the fact that Mr. Pope coped with prison by learning to "emotionally shut down."

      He'd also been estranged from much of his family before his arrest and now, everyone had changed. His father had a new family. He hadn't seen his mother in more than 15 years.

      Patricia Pall, who wrote often, says she always knew her son was innocent. She planned to fly David to California when he was released, but airplanes "made me feel out of control," he says.

      "When something like this happens to you, you have control issues."

      They rented a car.

      For the first few days, Mr. Pope mentally looked over his shoulder, worrying that "they're going to come and kidnap me again and say, 'Oh, we made a mistake; we shouldn't have let you out.'"

      He gradually relaxed and became reacquainted with his family.

      "We had to learn how to treat each other," his mother says. "The best way we can get along now is to not talk, but just do our separate lives and leave each other notes about where we're going to go and when we're going to get back."

      Like most mothers, she wanted to fix things for her son, but all she can do is listen.

      "It's been a long period of transition," Ms. Pall says. "It's still going on."

      Despite still having a family – some exonerees do not – Mr. Pope feels isolated.

      "A lot of guys get out of prison and can't make it," he says. "The loneliness is a big [issue]."

      He has few friends and though he knows it sounds odd, he misses the camaraderie of the shared prison experience.

      David Pope was one of the first men to be exonerated by DNA evidence back in 2001, his story from his home in Cotati, California June 10, 2008.

      "There were a lot of good guys in there," he says, noting that troublemakers are usually separated from the general population.

      "When you're living in that environment, around hundreds of people, there was an energy. And when you get out, that's gone," he says.

      "That was one of the most surprising things," Ms. Pall says with a grimace. "He missed prison."

      Jobs and money

      At age 23, when he was arrested, Mr. Pope was working odd jobs, living with a friend, staying at his father's house or sleeping in his car.

      He says he'd only been in trouble for a few minor things, such as shoplifting as a kid and traffic violations.

      When wrongly arrested for the July 1985 knife-point sexual assault of a 38-year-old Garland woman, he expected the criminal justice system to prove his innocence.

      Voice print analysis – later discredited – and mistaken witness identification soon put him behind bars with a 45-year sentence. Even then, he assumed "the appeal process clears up these things," he says.

      When the system failed him again, Mr. Pope resigned himself to prison life and hoped for parole.

      "For the first five years, it's a lot of anger and it's like hell, OK? ... Then, at some point, you start moving forward."

      Mr. Pope investigated religions and immersed himself in the Bible. He had nothing to repent, but "I wanted to understand what my purpose was, for instance, why I was there."

      He studied cabinet making, electrical trades and horticulture. He worked prison jobs.

      Eventually, he expected to be paroled to a halfway house, get help finding a job, and have state support to ease his transition back into society.

      But that didn't happen: As an exoneree – an innocent person wrongly convicted – he received restitution several months later but didn't have the same services and structure as criminals who are freed after doing their time.

      "It was literally like they said, 'Get away from us. ... You're on your own, you're free, but we're not going to help you much,'" he says.

      His brother helped him land a job stocking shoes at a store. But Mr. Pope couldn't get along with a co-worker. He quit, and the pattern has been repeated.

      Sometimes he feels like "Rambo-comes- back-from- Vietnam," he says. "And somebody does something or says something or harasses him – he just ain't going to hear it anymore. He just wants to be left alone."

      For instance, Mr. Pope won't work with anyone he thinks has gang ties. He's offended by the glamorization of gangster culture: rap music, prison slang, baggy clothes and tattoos.

      "All these young people want to be gangsters," he says. "And when they put me around people like that, it makes me nervous."

      He tried attending college to finish his bachelor's degree, but he didn't fit in there, either.

      "Going to college in prison ... there's no distractions, " he says. "Going to college in the free world ... it's about acting out, having fun, dating, sleeping late, partying a lot."

      Mr. Pope would like a relationship but has little in common with the women he meets.

      "Which peer group do I fit in with?" he asks. "People my own age or younger people? When I was released, I was 39 going on 40. ... I was, emotionally, still 24 in certain respects, interacting with the opposite sex, dating."

      Life in the free world, particularly California, revolves around materialism, he says – what you wear, where you work, what you drive. That's a shock after the spare simplicity of the Texas Department of Criminal Justice, where everyone wore the same white uniforms, ate the same food and rode prison buses.

      "Out here, it's all the selfish pursuit of money," he says.

      He had money – for a while. But the $384,000 in restitution from the state of Texas disappeared quickly. He bought cars, traveled and gave money to relatives. He also paid taxes, lawyers and therapists.

      Mr. Pope admits he's no good at managing money. He says exonerees would be better off if they got restitution in annual payments, or if the state funneled money through a trust fund.

      He suspects that many exonerees share his inability to plan for the future. "Delaying your gratification, doing these things you need to do," he says with a shrug, "well, you don't live that way in prison."

      Mr. Pope no longer has money for counseling but says telling his story helps him cope. He encourages other exonerees to do the same. "That's just the therapy itself," he says.

      He still reads his Bible, keeping it "right next to my bed," he says.

      Sometimes he wonders how life might have turned out had he not been wrongfully convicted. But he's not bitter, he says – he's sad.

      "I'm sad about the fact that I haven't been able to make a life for myself," he says.


      Exonerated still struggles to find his place

      Judge tosses out convictions for DNA Exonoree

      August 5, 2008

      DALLAS -- A judge on Tuesday recommended clearing the record of a wrongly convicted man who spent 25 years in prison for a series of sex crimes he did not commit.

      Steven Phillips responded by removing a tracking device that had been strapped to his ankle since December, when he was released from prison on parole. He held up the ankle monitor to a cheering courtroom packed with a dozen family members and at least six fellow exonorees, who collectively served more than 100 years of hard time until DNA tests proved their innocence.

      "There was a lot of faith involved _ the faith of my mother, the faith of my friends and my own faith," said Phillips, 50. "It's a wonderful day."

      The judge's recommendation comes about a year after DNA testing showed Phillips was innocent of a 1982 sexual assault and burglary. Additional DNA testing earlier this year linked the crimes to Sidney Alvin Goodyear, who died in prison in 1998.

      Phillips will be officially exonerated once the state Court of Criminal Appeals upholds the judge's recommendation or Gov. Rick Perry grants a pardon.

      Phillips, a soft-spoken grandfather, was occasionally interrupted by the electronic beeping of his court-ordered tracking device. He said he spent his time in prison writing letters to his mother and three children. Two were in court Tuesday, including Spc. Zachary Phillips, who wore his dress uniform and has served two tours in Iraq.

      "I would wake up and say, I'm innocent ... ," Phillips said. "Sometimes that was all there was to hang onto. Unfortunately, it took 25 years to come into play."

      Phillips is one of 19 men in Dallas County since 2001 proven innocent by DNA testing, a national high, according to the Innocence Project, a New York-based legal center that represented Phillips and specializes in wrongful convictions.

      Phillips' case differs from the previous 18, complicated by his pleading guilty to nine similar sex crimes after two juries convicted him in separate trials for sexual assault and burglary. He received 30-year sentences in both cases and said he feared life sentences if he did not plead guilty to the other charges.

      After a lengthy investigation, Dallas County prosecutors now believe Goodyear committed all 11 crimes that sent Phillips to prison.

      "We were getting smashed in court," Phillips said of his decision to plead guilty. "The truth had already slipped away."

      In recommending his convictions be overturned, Judge Lena Levario cited DNA testing showing Phillips was innocent and the state's failure to disclose evidence favorable to Phillips.

      Dallas police were investigating a series of sex crimes in 1982 around the same time police in Kansas City were investigating a similar spree, said Barry Scheck, co-director of the Innocence Project. A man breaking into homes and raping women was also entering health spas, holding up women at gunpoint and forcing them to commit sexual acts.

      Kansas City police correctly focused their investigation on Goodyear, and sent his photo to Dallas police, Scheck said. At least one victim in the Dallas crimes identified Goodyear. Other Dallas victims identified Phillips, who resembled Goodyear in that both were white men with receding hair lines.

      At one point, an arrest warrant was issued in Dallas for Goodyear, but it was later dropped. That information was not disclosed to defense attorneys, Dallas County District Attorney Craig Watkins said.

      But Dallas police ignored evidence that didn't point to Phillips, Scheck said. Scheck declined to identify the lead investigator on the case, whom Phillips said has since retired.

      "There is this issue of tunnel vision on the part of police officers zeroing in on one suspect and not following the other leads," Scheck said.

      Other evidence also connects Goodyear to the crimes. The gun, clothing, car and threats used in the Dallas cases are identical to those from crimes committed by Goodyear in other states, Scheck said.

      Phillips said he was victimized by police, who targeted him as the suspect and could not be persuaded otherwise.

      "Once they got started, I think they just could not turn off the machine," Phillips said.

      Phillips first applied for DNA testing in 2001, a motion opposed by the Dallas County district attorney at the time. He reapplied last year, a motion unopposed by Watkins, who has been examining cases of wrongful conviction since taking office in January 2007.

      Copyright 2008 The Associated Press.

      Judge tosses out convictions

      July 10, 2008

      Wrongfully convicted man freed after 16 years

      Patrick Waller's case adds weight to the calls for a statewide innocence commission

      Stories about wrongly convicted defendants were once rare examples of the miscarriage of justice. But what had been a trickle of accounts of those victimized by the criminal justice system has become a stream. Last week, another man who spent years in prison for a crime he didn't commit was released after DNA testing.

      Patrick Waller, a 38-year-old Dallas man, spent 16 years in prison after being convicted of robbery and kidnapping in 1992. There are two cruel ironies in Waller's case. He could have been freed seven years ago, but the Dallas district attorney at that time, Bill Hill, objected and Waller's efforts to obtain genetic testing were delayed until last fall.

      Another cruel irony in Waller's case is that authorities now know who the real perpetrators of the crime were. They have confessed. But the statute of limitations has expired and they can't be prosecuted. If the previous district attorney had agreed to Waller's request for DNA testing seven years ago, the real criminals could have been brought to justice. One innocent man was sent to prison, and two guilty men went free.

      "I never thought there were innocent people in jail," said Waller, interviewed in the Dallas County Jail shortly before his release. "Sixteen years of my life taken. It's been a struggle daily -- going to bed, knowing I'm someplace I don't deserve to be." His son and daughter, now both 18 and freshmen in college, visited him regularly while he was in prison.

      Waller's story has a happier ending than that of Tim Brian Cole, who died in prison serving time for a rape that he apparently did not commit. DNA evidence points to another man and the Innocence Project is trying to clear Cole's name posthumously.

      That Patrick Waller, Tim Brian Cole and so many other innocent people ended up behind bars in Texas is not a frivolous charge made up by critics of the criminal justice system. Waller is the 18th man from Dallas County who has been exonerated by DNA testing. The county has more DNA exonerations than any other in the country. Since 1994, 33 men have been exonerated in Texas based on post-conviction DNA testing. They had served, collectively, 427 years in prison. When you add Waller's name, that makes 34 men who have served 443 years behind bars. Think about those wasted years in prison ... think about the pain and anguish of family and friends.

      That may seem like an incredible number of exonerations, but the situation could be worse. In Dallas County, wrongful convictions have come to light because Craig Watkins, who took office as district attorney in Dallas County in January 2007, formed a conviction integrity unit that has been reviewing DNA tests that were previously denied by former district attorneys. Those cases have also been brought to light because Dallas County preserved its DNA evidence; many jurisdictions have not.

      Would more cases of wrongful convictions surface if other district attorneys were as aggressive in reviewing old cases where DNA evidence has been preserved, and where convictions relied so heavily on eyewitness accounts? Certainly the possibility remains that there are more innocent people behind bars in Texas whose innocence has not been established.

      The reasons for so many flawed convictions vary from faulty eyewitness identification, incompetent court-appointed lawyers, slipshold police work, questionable actions by prosecutors, official bungling of one sort or another. The number of exonerations attests to the revolution that DNA testing has done for criminology and to the fact that something went terribly wrong in the prosecution of so many cases.

      These mistakes add weight to calls for a statewide innocence project. The Texas Court of Criminal Appeals also recently formed a Criminal Judicial Integrity Unit to investigate the state's criminal justice system. Both are needed. Whatever is wrong with the judicial system needs to be straightened out so that the innocent go free and the guilty go to prison, not the other way around, as it was in the Waller case. Fixing that should be at the top of the state's to-do list.

      Wrongfully convicted man freed

      Exonerated by DNA, Patrick Waller is released from prison

      July 3, 2008
      The Dallas Morning News

      "I'm free."

      Patrick Waller, 38, said those two words when he called his North Carolina relatives after being released from prison this morning. He had spent more than 15 years in prison for crimes he did not commit.

      Mr. Waller used a cell phone for the first time to call his niece and aunt.

      In March 1992, two men abducted a couple at gunpoint in the West End, forced them to withdraw cash from an ATM and took them to an abandoned building in Oak Cliff.

      The woman was sexually assaulted. Another couple, who had stopped outside, were also abducted.

      At least one of the kidnappers tried to rape the other woman. But the men were scared off when a Dallas schools security guard drove by.

      Witnesses picked Mr. Waller out of lineups. At the time, he was on probation for cocaine possession. A jury sentenced him to life in prison for aggravated robbery in December 1992.

      Mr. Waller said he then pleaded guilty to other crimes he didn't commit – two aggravated kidnappings in exchange for two 30-year prison terms – because he thought he could get a lighter sentence. He felt there was no way around the eyewitness testimony against him – even though he knew they were mistaken.

      DNA testing has since proven his innocence.

      Two other men this year confessed to the crimes, but they will not be prosecuted because of statute of limitations.

      "I'm free."

      Delay of DNA tests helped man linked to robbery, rape go free

      June 27, 2008
      The Dallas Morning News

      DNA testing could have freed Patrick Leondos Waller seven years ago from a life sentence for armed robbery and kept the real criminal in prison.

      But because former Dallas County District Attorney Bill Hill objected, Mr. Waller's efforts to obtain genetic testing were delayed until last fall. That was long enough for the man science has now identified as the perpetrator to elude justice for the crime that also included a rape and kidnapping.

      DNA tests have now cleared Mr. Waller. The district attorney's office said two men who recently confessed to the 1992 crime cannot be prosecuted because the statute of limitations has expired. One of the men, whom DNA evidence definitively links to the crime, was paroled in February after serving 15 years for burglary.

      Had Mr. Hill granted testing earlier, the man's parole may have been denied and he could have served the remainder of his 45-year sentence, a top prosecutor and Mr. Waller's attorney said Thursday.

      "We've done all we can," said Mike Ware, who oversees the district attorney's conviction integrity unit. "If the test had been done earlier, we could have confirmed it and notified the parole board."

      Mr. Hill could not be reached for comment Thursday. John Rolater, who once oversaw DNA test requests for the district attorney's office and is now in the Collin County district attorney's office, could also not be reached.

      Mr. Waller remains in prison and his attorney, Gary Udashen, said Thursday that he had not spoken with him yet. A judge could release Mr. Waller at a hearing scheduled for next week.

      Mr. Waller was 22 and on probation for cocaine possession when he was arrested in March 1992 after a married couple in their 20s was abducted at gunpoint by two men in the West End.

      The abductors took the couple to an ATM and then to an abandoned building in Oak Cliff that the two men who confessed to the crime call "the castle." The woman was sexually assaulted there by both men, but DNA was only found for one.

      Another couple then drove up to the house, and one of the men forced that couple inside at gunpoint. The couple was lost and got out of the car to take photos of the building because it was interesting.

      The men left separately in cars belonging to the couples after a security guard drove by and scared them off. The victims then untied each other.

      Mr. Waller was arrested after a Dallas police officer selected him from a photo lineup as one of two men who fled from police in the West End days after the robbery.

      At trial, prosecutors presented the identification of Mr. Waller by three of the victims and the police officer. They also introduced testimony from a forensic analyst who said Mr. Waller's blood type was consistent with that of the rapist.

      No DNA testing was performed at that time.

      A Dallas County jury convicted Mr. Waller of aggravated robbery in December 1992 and sentenced him to life in prison. Mr. Waller then pleaded guilty to two aggravated kidnapping charges in exchange for dual, 30-year prison terms.

      He was one of the first Dallas County inmates to apply after a state law allowing post-conviction testing was enacted in 2001. He applied for a second DNA test in 2005.

      Mr. Udashen said prosecutors under Mr. Hill opposed both requests for testing.

      One prosecutor testified at a hearing that she would prosecute him again even if the DNA testing cleared him. Two trial judges and two state appeals courts agreed that testing should be denied.

      Craig Watkins, who succeeded Mr. Hill as district attorney in January 2007, granted the DNA test to Mr. Waller. The results came back six months ago, but the tests did not fully exonerate him then because the victim was sexually assaulted by two men.

      Early this year, DNA from the case matched DNA of a 38-year-old Dallas man serving time for burglary that occurred months after the abduction, Mr. Ware said. DNA connected Byron Demond Bell, the man who was serving a 45-year-sentence for burglary of a residence that occurred months after the abduction, Mr. Ware said. In April, DNA taken from Mr. Bell, now 38, to double-check the hit was once again a match.

      Mr. Udashen said Mr. Hill's office paved the way for Mr. Bell to go free.

      "Had they done a DNA test back in 2001 or 2005, they would have matched it up to Bell, and Bell would have never been paroled," Mr. Udashen said.

      In May, the man linked to the crime by DNA confessed to Mr. Ware at the office of his parole officer that he committed the crimes and named the other man involved, Mr. Ware said.

      Mr. Ware later interviewed that person, Lemondo Simmons, a 35-year-old Dallas man who went to prison in 2002 for assault on a public servant and was released in 2004. He admitted to his role in the crime as well, Mr. Ware said.

      Both men were subpoenaed to testify before the grand jury where they admitted to the offenses, Mr. Ware said. One testified in May, and the other told his story to grand jurors on Wednesday.

      Neither man could be reached for comment Thursday.

      Mr. Waller is the 18th man exonerated by DNA in Dallas County. The county has more DNA exonerations than any other in the country since 2001 when the state legislature allowed post-conviction DNA testing.

      Mr. Watkins, who took office in January 2007, formed a conviction integrity unit that is reviewing DNA tests previously denied under Mr. Hill.

      Mr. Waller is at least the fourth man cleared by DNA after Mr. Hill denied them testing.

      Delay of DNA tests

      June 26, 2008

      How many innocents in prison: Exonerations make up 3% of Texas DNA case resolutions

      It's hard to say if the data reflect a rate or percentage of wrongful convictions, but more than 3% of criminal cases solved by DNA since Texas began using the forensic technology have resulted in overturned convictions.

      Somehow I'd missed the news announced earlier this year that Texas solved its 1,000th criminal case using DNA. OTOH, Texas has witnessed 33 exonerations of innocent men (mostly in sexual assault cases) using DNA evidence.

      DNA exists in only about 10% of violent crimes, so the group is a pretty random sample compared to the larger criminal class. Might the rate of exonerations to convictions based on DNA give a potential wrongful conviction rate? There are a lot of factors going into both convictions and exonerations, so I'm not sure the comparison is entirely valid - too many variables. But at least it adds another data point toward the discussion about how many Texas prisoners may be actually innocent.

      I'd noted earlier that death row exonerations occurred at a rate of 1.52% in Texas since the death penalty was reinstated in 1982. The percentage of DNA cases solved resulting in exonerations, however, doubles that number.

      So how many innocent people are actually in Texas prisons? If it's 1.52% (the exoneration rate from death row), that would mean more than 2,300 innocent people are locked up in Texas for various crimes. If it's 3.3% (based on the DNA exonerations) , the number would top 5,000.

      By contrast, the lowest estimate I've seen for the rate at which innocents are convicted - the unlikely low figure of .027% cited by Antonin Scalia - would still mean more than 400 innocent people are locked up in Texas prisons.

      Increasingly I'm coming to believe the number's a lot higher than most people working in the system would feel comfortable admitting.

      Posted by Gritsforbreakfast
      Labels: DNA, Innocence

      Innocence Project seeks to remove convictions from man's record

      June 20, 2008
      The Associated Press

      DALLAS -- The Innocence Project is asking a Texas court to toss out the convictions that sent an innocent man to prison for 25 years.

      DNA testing last year exonerated Steven Phillips of a 1982 sexual assault and burglary that put him in prison for 25 years.

      In January, additional testing found that the DNA evidence from the rape matched another man, Sidney Alvin Goodyear, who died in prison 10 years ago.

      Phillips, who is on parole and lives in a halfway house as part of his probation, still has an extensive criminal record because he pleaded guilty to nine related sex crimes over fear that he would receive a life sentence if convicted.

      Prosecutors now believe those sex crimes were also committed by Goodyear.

      The Innocence Project said Friday there is a wide range of clear evidence showing that Phillips is innocent.

      Innocence Project seeks to remove convictions

      Editorial: Watchdog needed for criminal justice

      Web Posted: 06/14/2008

      San Antonio Express-News

      Innocent people are locked up in Texas prisons for violent crimes they did not commit.

      We know this for a fact. We know it because since 1994, DNA evidence has overturned the wrongful convictions of 33 Texans. They served a combined 427 years behind bars instead of the criminals who committed rape and murder.

      James Lee Woodard is the latest citizen to be exonerated by DNA evidence. In April, he left prison after serving 27 years for a rape and murder perpetrated by someone else.

      Because of this track record and advances in DNA testing, the Editorial Board of the San Antonio Express-News has supported the creation of an innocence commission to review criminal cases statewide. A model for such a commission already exists at the local level in Dallas County, where District Attorney Craig Watkins has worked with the legal and non-profit advocacy community to free people like Woodard.

      Gov. Rick Perry disagrees. In a recent letter to the Express-News, he explained his support for enhancing public defender offices to prevent innocent people from being convicted.

      That's fine for the future. But it does nothing to help innocent people already wrongfully convicted. About an innocence commission, Perry wrote that he opposes "creating another bureaucratic commission that's all bark and no bite."

      Perry's criticism is off the mark and ignores significant miscarriages of justice that have already occurred. Fortunately, there are lawmakers and judges who are willing to fill the leadership void on this issue.

      Court of Criminal Appeals Judge Barbara Hervey, a Republican, has announced the creation of a Texas Criminal Justice Integrity Unit to take a broad look at the justice system in Texas, including issues of wrongful conviction. The bipartisan unit includes legal, law enforcement and political leaders from across the state.

      Hervey wrote on behalf of the Court of Criminal Appeals, "While more government does not necessarily mean better government, reflection and willingness to improve does respond to the needs of our system and our citizens."

      It's hard not to read that as a rebuke of Perry's comment about "another bureaucratic commission."

      The integrity unit will work to develop a set of recommendations the Legislature can act upon when it meets in January. In Austin, Sen. Rodney Ellis, D-Houston — who serves as one of the unit's 12 members — has been a consistent advocate for the creation of an innocence commission.

      Rather than ignore the plight of the wrongly convicted and trivialize proposals to address the problem, Gov. Perry should join in the bipartisan effort to set innocent people free and put criminals behind bars.


      Watch Dog

      June 11, 2008

      Appeals court officially clears wrongly convicted Dallas man

      © 2008 The Associated Press

      AUSTIN — The state criminal appeals court has officially exonerated a Dallas man who spent nearly 23 years in prison for a rape he did not commit.

      The Texas Court of Criminal Appeals agreed Wednesday with a lower court ruling that DNA evidence proves Thomas Clifford McGowan is innocent of the 1985 rape of a Dallas-area woman.

      McGowan won his freedom in April in state district court but still had to have the appeals court grant his writ of habeus corpus to officially clear his name. This step clears his record and makes it possible for McGowan to pursue financial compensation from the state.

      McGowan was convicted in separate trials in 1985 and 1986 of rape and burglary. He was sentenced to life in prison both times.

      Appeals court officially clears wrongly convicted Dallas man

      Dallas County DA's office gets grant for DNA tests

      June 5, 2008
      The Dallas Morning News

      The Dallas County district attorney's office on Thursday received a grant to aid its review of requests for post-conviction DNA testing. The grant will fund DNA testing, three positions at the Innocence Project of Texas, computers and travel expenses.

      The $453,900 grant from the Justice, Equality, Human Dignity and Tolerance Foundation requires Dallas County commissioners to fund the DA's office for two additional years. It also will pay for DNA tests for cases that have already been approved but were stalled because of a lack of funds.

      District Attorney Craig Watkins' office and the Innocence Project are jointly reviewing post-conviction DNA testing requests denied under previous District Attorney Bill Hill. With 17 DNA exonerations, Dallas County has had more exonerations than any county in the country since 2001.

      Dallas County DA's office gets grant for DNA tests

      June 5, 2008

      Spate of exonerations in Texas prompts a search for answers


      In reaction to the growing number of exonerations across the state, the Texas Court of Criminal Appeals announced Wednesday that it is creating a Texas Criminal Justice Integrity Unit to investigate and address weaknesses in the criminal justice system.

      "This is a call to action to address the growing concerns with our criminal justice system," said Court of Criminal Appeals Judge Barbara Hervey. "Although we applaud all previous studies and dialogue, it is now time to act and move for reform."

      The Court of Criminal Appeals is the state's highest criminal court.

      Since 1994, 33 men have been exonerated in Texas -- 17 of them from Dallas County since 2001 -- after DNA testing. These wrongfully convicted inmates have collectively served 427 years in prison, according to a watchdog group.

      The announcement follows a recent call by state leaders, including Chief Justice Wallace Jefferson of the Texas Supreme Court and Presiding Judge Sharon Keller of the Court of Criminal Appeals, to create a statewide innocence commission.

      Support for that commission grew after a meeting in Austin last month at which nine exonerated men called on lawmakers to examine the causes of wrongful conviction and find ways to correct them.

      Need to act

      Hervey said the idea for the new unit came about in the last few weeks, partly in response to the meeting in Austin.

      "There has been a realization that we have to do something and we have to keep moving on it," she said.

      Hervey said the court will work closely with Gov. Rick Perry, state Sen. Rodney Ellis, D-Houston, and other lawmakers, and the various innocence projects and clinics to review possible changes.

      Among the issues to be addressed:

      Quality of defense counsel for poor criminal defendants.

      Ways to improve witness identification.

      Overhauling the standards for collection, preservation and storage of evidence.

      The group will also look into the cases of current inmates who may have been wrongfully convicted. Previously, plans for an innocence commission called for a review of exonerations.

      Ellis, who was appointed to the integrity unit, praised Hervey and the court for "stepping forward and showing some leadership." He has fought unsuccessfully in the Legislature for an innocence commission.

      "We know the problems and we know some of the solutions. We can put a dent in the problem," Ellis said.

      Dallas District Attorney Craig Watkins will also be part of the unit. He called for a statewide conviction integrity unit this year after creating one in his office.

      "They are on the right path in Austin," Watkins said. "With 17 exonerations in Dallas and 33 in Texas, we can't turn a blind eye to that."

      Nonpartisan group

      The court will pay for the unit out of the $90,000 in its administrative funds, Hervey said. She hopes that the group will meet monthly.

      Hervey did not want to say that the integrity unit replaces the need for an innocence commission. Perry's office has said he views such a commission as another layer of unneeded bureaucracy.

      Hervey did say that the integrity unit is not a "forum for any particular group, nor does it embrace the plan of one particular party." All nine judges on the Court of Criminal Appeals are Republican.

      "Let's get the system going and make the fixes that are necessary and not fight over what we are going to call it," she said. "The issues are the same."


      Judge Barbara Hervey of the Texas Court of Criminal Appeals announced the creation of the Texas Criminal Justice Integrity Unit on Wednesday. In addition to Hervey, the unit's members are:

      State Sen. Rodney Ellis, D-Houston

      Mary Anne Wiley, deputy general counsel for Gov. Rick Perry

      Bill Allison, director of the University of Texas Criminal Defense Clinic

      Pat Johnson, director of the Texas Department of Public Safety Crime Lab

      James McLaughlin, executive director of the Texas Police Chiefs Association

      Dallas County District Attorney Craig Watkins

      El Paso County District Attorney Jaime Esparza

      State Rep. Jim McReynolds, D-Lufkin

      Gary Udashen, Dallas criminal defense attorney

      State District Judge Sid Harle of San Antonio

      Jim Bethke, director of the Texas Task Force on Indigent Defense

      MAX B. BAKER, 817-390-7714

      Spate of exonerations in Texas prompts a search for answers

      Task force to serve as watchdog for Texas criminal justice system

      June 4, 2008

      The Dallas Morning News

      A month after a handful of Dallas exonerees traveled to the state Capitol to tell their stories of wrongful conviction, the state's highest criminal court announced the establishment of a task force to address problems within the criminal justice system.

      The new Texas Criminal Justice Integrity Unit is "good for Texas," said Dallas County District Attorney Craig Watkins. "It's putting policy aside and looking at the criminal justice system."

      The integrity unit was organized by Judge Barbara Hervey of the Texas Court of Criminal Appeals. Mr. Watkins said Judge Hervey recruited him to join the group this week after telling him six months ago that she was watching his office's conviction integrity unit.

      "I want this to be more than a study group," Judge Hervey said. "We've studied already, so now it's time to act."

      But some observers are skeptical that the group, which does not yet have aninitial meeting scheduled and has no official power, will do more than talk.

      "I would have been more comfortable with the Legislature doing this because they're immediately charged with writing the laws," said Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association.

      "I'm very glad that it's continuing to raise awareness," he said. "I think that's very positive. ... It's just that I'm interested in results. I want to see new law and a new culture by this time next year."

      Changing the law takes time, said state Sen. Rodney Ellis, D-Houston, who has pushed for creation of a state innocence commission for years. The new integrity unit is not that commission, but it's "a big step in the right direction," he said.

      "You've got to develop a consensus," he said. "[Legislators] have got to have some structure. They've got to have some buy-in from people in positions of stature."

      The integrity unit plans to address issues such as raising the quality of attorneys, implementing procedures to improve eyewitness identification, improving crime lab reliability and reforming standards for collection, preservation and storage of evidence.

      Jeff Blackburn, chief counsel for the Innocence Project of Texas, said the new unit does not go far enough. He said he would like to see it provide greater access to the courts for the wrongfully convicted.

      Currently, those seeking exoneration are limited in most cases to one writ of habeas corpus after their direct appeal. They are often written by inmates without attorneys. Any reform, he said, must include allowing inmates claiming innocence to have access to the courthouse through more writs and attorneys.

      James Woodard of Dallas, who recently was exonerated after spending 27 years in prison for a murder he didn't commit, was labeled an abuser of the appeals system for his repeated attempts to get relief.

      "Everybody knows you can go to prison being innocent," Mr. Woodard said. "It sounds to me like [the court] is trying to do a little damage control."

      Bill Allison, law professor and director of the Criminal Defense Clinic at the University of Texas, admits that the unit he's joining is "not a group of people who in and of itself can do a thing. We have no power."

      But that's not to say it lacks punch.

      "I do think it will be more than just talking," he said of the group. "If we come out of this next legislative session without something to show for it, I'm going to be very disappointed."

      The Associated Press contributed to this report.

      Task force to serve as watchdog for Texas criminal justice system

      Jun 4, 2008

      Texas high court creates integrity unit

      Associated Press Writer

      AUSTIN (AP) -- The Texas court that handles the state's criminal and death row appeals announced a new integrity unit Wednesday to address concerns in the justice system, including working with inmates who may have been wrongfully convicted.

      The announcement by Court of Criminal Appeals Judge Barbara Hervey said the Texas Criminal Justice Integrity Unit will study how to improve eyewitness identification as evidence, crime lab reliability, police interrogations and reform standards for keeping evidence.

      Texas executes more inmates than any other state. The state has also been a flashpoint for the exoneration of wrongfully convicted inmates. Since 2001, 33 men have been exonerated, including 17 in Dallas County using DNA testing.

      "This is a call to action to address the growing concerns with our criminal justice system," Hervey said.

      The court will work with Gov. Rick Perry's office, the Innocence Project and clinics and "all parties affected by the criminal justice system, including currently incarcerated inmates who may have been wrongfully convicted," the announcement said.

      All nine members of the court are Republicans. Hervey's announcement said the integrity unit is not a forum for a particular group or political party. The initial members of the unit include Hervey, state Sen. Rodney Ellis, a Democrat from Houston who has long advocated criminal justice reforms, Perry staff, district attorneys from Dallas and El Paso, law enforcement, defense attorneys and district judge.

      "Although we applaud all previous studies and dialogue, it is now time to act and move for reform," Hervey said.

      David Dow, a law professor at the University of Houston and director of the Texas Innocence Network, said the integrity unit could have a huge impact. Unreliable eyewitness evidence is the top contributor to wrongful convictions, he said, Better preservation of evidence could help wrongfully convicted inmates use emerging technologies to win their case.

      "I think this is fabulous," Dow said. "I think the court's recognition of the problem by itself is noteworthy."

      © 2008 The Associated Press.

      Texas high court creates integrity unit

      Posted on May. 22, 2008

      Campbell: Wrongful convictions an expensive proposition


      You can argue that it's morally outrageous when individuals lose days, months or years of their lives in prison after being wrongly convicted of committing a crime.

      Imprisonment, after all, is meant to hold lawbreakers responsible for their own actions and to deter other wrongdoing by demonstrating that offenders will be caught and punished.

      You can argue that it's legally absurd to lock up someone who didn't actually do the deed.

      The legal system exists, after all, to find the truth and to enforce the rules fairly, accurately and appropriately. When the system fails, its credibility suffers -- and public confidence is essential.

      You can argue that it threatens public safety to consider a criminal case closed when the accused who's been convicted and sentenced is not the real culprit.

      The public depends, after all, on the proper incarceration of dangerous individuals. If the criminal justice system figuratively washes its hands once someone is found guilty, actual offenders remain free or unaccountable.

      But for those who still aren't convinced by those worthy arguments that Texas needs more safeguards against wrongful convictions, there's still the bottom line.

      And here's the black and white from the Texas comptroller's office: 45 people have been paid almost $8.5 million since 2001.

      Under current law, a convicted individual who has been pardoned because of a wrongful conviction or has been declared actually innocent can apply to the Texas comptroller' s office for compensation of $50,000 per year of imprisonment, $100,000 per year if in on a death sentence. (Before last year, it was $25,000 a year, up to $500,000.)

      Among the 45 listed by the comptroller' s office -- see the partial list that accompanies this column -- are 19 of the 35 Tulia residents whom Gov. Rick Perry pardoned in 2003 after an undercover agent whose testimony was used against them on drug charges was discredited.

      Their payments range from $14,500 to more than $106,000.

      The problem with money is that it can't make up for lost time and the other life disruptions that accompany being wrongly accused, convicted and imprisoned. That's a whole other story.

      Nor does the compensation that the state has paid account for what taxpayers put in on the front end of those prosecutions or to house prisoners who don't belong there.

      You can make lots of arguments for improving the system. It's hard to argue against it.


      These are the top 10 amounts cited by the Texas comptroller' s office:

      $1,000,000 -- Larry Charles Fuller, Dallas County: Spent almost 20 years in prison, convicted of a 1981 rape based on the victim's identification. Exonerated through DNA testing in 2007.

      $608,333 -- John Michael Harvey, Tarrant County: Served almost 13 years of a 40-year sentence, convicted of molesting the 3-year-old daughter of a former girlfriend. Found actually innocent by courts after the girl recanted the accusation, released in 2004.

      (Fuller and Harvey won't receive half their money until later this year because the law requires payment in two installments.)

      $500,000 -- Billy Wayne Miller, Dallas County: Served more than 22 years of a life sentence, convicted of 1984 sexual assault.

      Exonerated through DNA testing in 2006.

      $452,083 -- Arthur Merle Mumphrey, Montgomery County: Served 18 years, convicted of sexually assaulting a 13-year-old girl at knifepoint in 1986. Exonerated through DNA testing and pardoned in 2006.

      $435,416 -- Carlos Lavernia, Travis County: Served 17 years of a 99- year sentence, convicted of aggravated sexual abuse largely on the victim's identification. Exonerated through DNA testing in 2000.

      $429,166 -- Ernest Ray Willis, Pecos County: Served 17 years on Death Row, convicted of deliberately setting a fire in which two women died. A federal judge ruled that the state withheld evidence and improperly drugged Willis and that his lawyer was ineffective. A new investigation found the fire wasn't arson. Charges were dropped.

      $391,666 -- Victor Larue Thomas, Ellis County: Served more than 15 years, convicted of raping a store clerk at gunpoint in 1985. Exonerated through DNA testing in 2001.

      $387,499 -- Wiley Edward Fountain, Dallas County: Served 15 years, convicted of aggravated sexual assault in 1986. Exonerated through DNA testing in 2002. (CNN reported recently that he had become homeless and could not be found.)

      $385,416 -- David Shawn Pope, Dallas County: Served 15 years of a 45- year sentence, convicted of raping a Garland woman at knifepoint in 1985. Exonerated through DNA testing in 2001.

      $374,999 -- Calvin Edward Washington, McLennan County: Served almost 15 years of a life sentence, convicted of raping and killing a woman in 1986. Exonerated through DNA testing in 2001.

      Linda P. Campbell is a Star-Telegram editorial writer.
      817-390-7867; lcampbell@star- telegram.com

      Campbell: Wrongful convictions an expensive proposition

      Governor opposes wrongful conviction committee

      Posted: May 20, 2008

      AUSTIN, Texas (KXAN) -- Wrongful convictions are a real problem in Texas, and now a group wants to create a commission to investigate the problem. The governor, however, is against it.

      Rick Perry said a panel would be a needless addition to state bureaucracy.

      Supporters of the panel said they want state lawmakers to pay for the panel.

      Instead, the governor said he supports a better system for providing attorneys to poor criminal defendants and favors post conviction DNA testing.

      Since 2001, 33 Texas men have been exonerated because of DNA evidence.

      DNA testing

      May 20, 2008

      Support grows for Texas innocence commission, but other reforms needed too

      To judge by the public attitudes of the top state officials, Texas may enjoy an important opportunity in the next legislative session to pass key reforms preventing more wrongful convictions.

      The Fort Worth Star Telegram's Max Baker featured a story Sunday ("Top Texas jurists support idea of innocence commission," May 18) dissecting the politics of a possible "innocence commission" in Texas.

      Here's an overview from Bakers' assessment of the lay of the land:

      Governor Rick Perry: Opposes an innocence commission because it creates a new layer of "bureaucracy."

      Lieutenant Gov. David Dewhurst "said he supports creating a commission. His staff said he has cleared the way for a Senate interim study committee to look into the commission's charge."

      House Speaker Tom Craddick: Neutral, expects the 81st Lege to debate the issue.

      Supreme Court Chief Justice Wallace Jefferson: Supportive, is "calling on state lawmakers to find money" for an innocence commission.

      Court of Criminal Appeals Presiding Judge Sharon Keller: Qualified support.

      Senate Criminal Justice Committee Chairman John Whitmire: Expressed support at recent "innocence summit." Sen. Bob Deuell (R-Greenville) also spoke favorably of the idea at the event.

      House Criminal Jurisprudence Committee Chairman Aaron Peña: Publicly supportive, but his Democrat-dominated committee deep sixed Sen. Ellis' innocence commission bill in 2007.

      Texas District and County Attorneys Association: Opposed. Said lobbyist Shannon Edmonds of his membership, "They don't trust the people pushing it, and we need to overcome that to make progress in this area." (Hmmm, I thought Dallas District Attorney Craig Watkins supported the idea and numbered among Edmonds' membership. Apparently DAs don't even trust one another!)

      I actually understand the Governor's concerns about creating a new layer of bureaucracy. This idea could be a great success or an abject bust depending on how the commission's role is defined, who's on it, and what authority it's granted. One one hand, there are entire categories of old cases like arson that require systematic review.

      OTOH, if the commission is not empowered to liberate the innocent and can only "recommend" reforms, that wouldn't necessarily do much.

      That said, if the Governor and innocence commission critics accept that Texas has a problem with convicting innocent people, that stance IMO then obligates them to support procedural reforms that might prevent such travesties on the front end. The Justice Project has identified eight key reforms that grow out of the examples of recently exonerated people. Most require no new bureaucracy at all:

      * Improving Eyewitness Identification Procedures
      * Electronic Recording of Custodial Interrogations
      * Improving Standards for Admissibility of Snitch Testimony
      * Expanding Discovery in Criminal Cases
      * Improving Forensic Evidence Testing Procedures
      * Expanding Post-Conviction DNA Testing
      * Ensuring Proper Safeguards Against Prosecutorial Misconduct
      * Ensuring Standards for the Appointment and Performance of Counsel in Capital Cases

      For folks like the Governor who believe there's a problem, are "committed to providing a fair criminal justice system," but don't want to create any "new bureaucracy, " these solutions make a lot of sense and deserve equal attention. There's certainly no need to wait for an "innocence commission" to recommend them.

      Posted by Gritsforbreakfast
      Labels: Innocence

      May 20, 2008

      DNA cleared them, but they'll never feel free

      Story Highlights
      The wrongly convicted find themselves starting over in middle age...

      Even after they are cleared, a criminal record still follows most of them...

      Advocates say they are not taught the skills they need to find work...

      Most struggle in a world they've come to mistrust...

      By Ed Lavandera

      This is the second of two stories about DNA exonerations in Dallas,Texas.

      After his release from prison, Wiley Fountain surfaced for this mug shot, then fell off the radar.

      1 of 3 DALLAS, Texas (CNN) -- Wiley Fountain is homeless just five years after he walked out of prison an innocent man. He is one of the 17 men wrongfully convicted in Dallas County, Texas, then cleared by DNA evidence.

      He was one of the lucky few to receive financial compensation from the state, but the $190,000 or so that made it into his pocket is long gone.

      For awhile, Fountain wandered the streets of Dallas, looking for aluminum cans to trade in for cash. He earned the occasional meal by cleaning the parking lot of a restaurant. At night he had nowhere to go.

      Now he's nowhere to be found. Just as the headlines of his release vanished from the front pages of the newspaper, Fountain, 51, has disappeared. And so have his hopes for a fresh start after spending 15 years in prison for an aggravated sexual assault he did not commit.

      Clay Graham, a policy director with the Innocence Project of Texas, spends many days worrying about Fountain. In March, he received a phone call with the news that Fountain had been arrested on a theft charge and was sitting in the Dallas County jail. Graham rushed over to talk with him.

      "He said being homeless ain't so bad," Graham recalled. "That's when I thought something horrible must have happened to him in prison."

      A few weeks later, Fountain was released from jail and disappeared.

      Fountain's story doesn't come as a shock to Jeff Blackburn, one of the lead attorneys with the Innocence Project of Texas, who represents many of the exonerated former convicts.

      Blackburn said these wrongly convicted men get "a double-whammy screw job." He said there's little help from the government to transition back into society and they're still viewed as criminals once they're out of prison.

      "They don't have any services available to them, not even $100 and a cheap suit," Blackburn said.

      What happens to these men in the months and years after their release is an often overlooked story. These men find themselves starting life at middle age. CNN recently interviewed 15 of the 17 men who have been exonerated by DNA evidence in Dallas County since 2001.

      Their stories are vastly different, but they do share common themes.

      There is little talk of bitterness and anger. But there is great mistrust of the world around them and immense frustration.

      Some men have married and had children. Eugene Henton married a woman who worked in the jail commissary. "I don't know what I would have done without her. She makes me human," Henton said.

      Others came out of prison so jaded and changed that it ruined marriages and relationships. A few have had repeated troubles with the law.

      And almost all of them talk about how the ghost of their past follows them wherever they go.

      James Waller decided the only way to escape is to leave the place where the injustice happened. After 10 years in prison, Waller is selling his house and plans to move closer to his family in northern Louisiana. "I'll feel free when I kiss Texas goodbye," he said.

      Very few of the men have managed to find steady, full-time employment. They say their wrongful convictions routinely appear in criminal background checks.

      Entre Nax Karage, a 37-year-old Cambodian immigrant, was wrongfully convicted of murdering his girlfriend and spent seven years in prison. Karage is married now and has a 3-year-old daughter and the family is expecting a second child next month.

      He finds occasional work as a security guard.

      "I go and apply for a job and it keeps popping up on my record," said Karage. "It's pretty frustrating. I didn't even do it."

      The long prison sentences left many scars on the personalities of the exonerated men. Greg Wallis spent 17 years in prison, and said he's lucky to have made it out alive. There were countless fights with other inmates that left him battered, bloodied and bruised.

      Wallis now lives in Lubbock, Texas, with his girlfriend --but relationships aren't easy for him. "She has a hard time understanding my ways," Wallis said. "You do all that time in prison and it rubs off, you still act that way."

      Wallis doesn't want to be around people. He doesn't have a job and is seeing a psychologist.

      "I don't like being around people," he said. "If I could do it I'd move into the woods and live off the land."

      David Shawn Pope, a self-described "artistic Southern boy," left Dallas and moved in with his mother in Northern California after he was released.

      Seven years out of prison, Pope is still looking for full-time employment. He spends a lot of time playing guitar and writing songs.

      But he hasn't written anything about his time in prison.

      "I haven't been able to put it together probably because it was so painful." Pope said

      DNA Cleared

      May 16, 2008

      Till proved innocent
      As DNA proves more prisoners have been wrongly convicted, Texas needs an innocence commission

      Copyright 2008 Houston Chronicle

      It's become a media staple: A man incarcerated for years, wrongfully convicted of murder or rape or kidnapping, is finally free, free to go out and try to mend his shattered life, because DNA evidence has conclusively proved his innocence.

      Nowhere does this happen more frequently than in Texas, where 33 prisoners have been cleared by such testing since 2000, at least 18 of them in Dallas County.

      Nine of those men, along with judges, prosecutors and police officials, joined state Sen. Rodney Ellis, D-Houston, for discussions in Austin last week to urge Gov. Rick Perry to establish an innocence commission to address the flaws in Texas' criminal justice system that can lead to wrongful convictions.

      The problem has become so "grotesque," Ellis said, that Texas needs to establish a commission with strong executive powers immediately, rather than waiting for lawmakers to take action in the next legislative session, beginning in January 2009.

      Forensic DNA testing has been used since the late 1980s. Several states, including California, Illinois and North Carolina, now have innocence commissions, either appointed or legislated. These panels have made useful recommendations on problems such as eyewitness misidentification (the most common cause of wrongful conviction), unreliable science, false confessions, government misconduct, snitches and bad lawyering.

      Given that Texas leads the nation both in exonerations and executions, it would make eminent sense to promptly create a commission with a broad mandate to detect and prevent innocent people from being punished.

      In 2002, horrendous problems were exposed in Houston Police Department's crime lab, casting doubt on thousands of convictions and resulting in the lab's temporary closure. Today, the lab is still struggling to cope.

      Dallas County, however, kept all DNA evidence since the 1980s — not necessarily driven by altruism, since the district attorney's office was also experiencing a decades-long period of corruption. But last year Craig Watkins, who campaigned on a pledge to restore integrity to the office, was elected district attorney. His commitment, plus generous funding for DNA testing ( not to mention all that evidence), has enabled Dallas to far outstrip Houston in exonerations.

      Kenneth Magidson, Harris County's interim district attorney, while not endorsing the creation of a commission, told the Chronicle he is not averse to anything that will further the cause of justice. He had representatives at the Austin meeting and is working on specific cases with the private Innocence Project of Texas. "I have faith," he said, "that the Harris County office, under my leadership, will do the right thing, and not just in DNA cases."

      DNA factors into just a small percentage of wrongful convictions. Jeff Blackburn, an attorney with the Innocence Project of Texas, said that by the most conservative estimates, 2,000 innocent people are locked up in Texas prisons with no way out.

      He is working on legislation to reform the "procedural shuffle" by using DNA standards, in which a case can be revisited if a trial court finds there's a reasonable probability that the outcome would have been different with new evidence.

      Ellis is also committed to such a bill, but he has raised the issue of an innocence commission in previous sessions, to no avail.

      There is nothing to be gained by lawmakers' debating yet again whether a problem exists. The evidence is overwhelming that it does. Far better to create a commission now, so that next session the Legislature can begin to work to free all Texans who have been wrongly convicted.

      DNA cleared them, but never feel free

      May 09, 2008

      More from the Texas Innocence Summit

      Just wanted to mention a couple more highlights from yesterday's "Innocence Summit" in the Texas Chambers before putting my notes away:

      Robert Wilonsky cited AP for the money quote from Dallas DA Craig Watkins' presentation, that "It can be argued that Texas ... may have one of the worst criminal justice systems in this country." A couple of heads shot up in the audience for sure, I can tell you, when he made that comment (though nobody spoke up to argue the point).

      Some of the strongest exoneree testimony came from Billy Smith, who actually declared that "nineteen years in prison made me a better person," even though he believes strongly that "I am a victim." Why then, is he "better"? "I'm not mad anymore," he declared, "because if I'd hung onto my anger and rage I wouldn't have survived." If he's not mad about what happened, he's certainly a better man than I am.

      "It doesn't make a difference if I was in prison two times before," said Smith, "I didn't do this one." Like the other men, Smith knew he was lucky that DNA testing ultimately cleared him. "A lot of innocent people are going to die in prison," he said, "I'll guarantee you that."

      Another exoneree, Alejandro Hernandez from El Paso, mentioned an issue I'd like to learn more about: He's concerned that Texas' statute (Chapter 64 of the Code of Criminal Procedure) allowing post-conviction DNA testing only contemplates new tests if the "identity" of the defendant is at question, but he wants to expand the use to help identify other suspects, which he said would have helped in his case. (If I remember correctly, Steven Phillips was also caught in that legal conundrum.) One of the terrific things about so many exonerations occurring back to back to back is that each one is just a little bit different, and frequently, with 20/20 hindsight, it's possible to identify unnecessary barriers, like these limits on post-conviction DNA testing, to clearing more innocent people.

      Barry Scheck of the original NYC based Innocence Project emphasized that while some exonerations had come in cases that clearly resulted from prosecutor misconduct, an even more common contributing factor to wrongful convictions is "ineffective assistance" by criminal defense lawyers. He suggested complaints against lawyers on both sides of the aisle should be more thoroughly tracked and vetted (and I would add, publicized). Those sentiments were repeated in some vein by several speakers, including Sen. Ellis.

      Senate Criminal Justice Committee Chairman John Whitmire had several poignant comments and questions that are worth recording. For starters, he declared (with Chief Harold Hurtt in the audience) that he thinks Houston PD should not operate its own crime lab, that forensic science work should be done by an independent body who think of themselves as scientists first instead of police. Good point! Regular readers know I'm not a great believer in the supposed neutrality of most forensic science.

      Whitmire told the public officials in the room that "You need to read your mail," implying (accurately) that many elected officials pay little attention to jail mail and don't take letters from prisoners seriously. That mentality has contributed to wrongful convictions by sweeping legitimate voices under the rug, he said.

      He also emphasized that any legislator who wants to be "tuff on crime" should also be tough on wrongful convictions, because that meant the guilty person went free. Whitmire criticized the Houston crime lab for ending its investigation into possible wrongful convictions before the lead investigator, Michael Bromwich, thought he was finished.

      An audience member from Houston protested that they only ended the investigation after the city spent $6 million dollars on it, but Whitmire shot back that they hadn't gone through all the cases, and the Harris DA had $20 million sitting in its asset forfeiture fund that Chuck Rosenthal could have used to finish the job. No rebuttal was offered amidst the awkward silence that followed that declaration!

      See yesterday's post about the event for more on the topic.

      Posted by Gritsforbreakfast
      Labels: DNA, Innocence, Texas Legislature

      May 08, 2008

      Innocence summit drew officials, opinion leaders from around the state

      I attended this afternoon an interesting "summit" on innocence and wrongful convictions in the Senate chamber at the Texas capitol. (UPDATE: See Part Two above)

      I was a bit annoyed when I was told bloggers couldn't go onto the Senate floor because we're not real journalists, so I didn't get to take the photos I'd hope to get. (That crap really needs to change next session - in all modesty, this blog reports circles around some of the reporters who had credentials to get on the floor.) But even from my perch in the gallery, the discussion was awfully interesting.

      Nine exonerated men were on the dais along with Senators Rodney Ellis, John Whtimre, Bob Deuell, and other notables. There were reps from the criminal defense lawyers and the prosecutors lobby, the Texas Criminal Justice Coalition, the Innocence Project of Texas, the Governor's office, two judges from the Court of Criminal Appeals, several members of the House of Representatives, a police union rep, and several DAs and police chiefs, mostly from larger cities.

      I was particularly impressed with commentary from James Lee Woodard, a writ writer who spent his entire 27 years wrongfully incarcerated trying to get courts to hear his innocence claims. He suggested that judges needed to look at prisoner writs with a more open mind, and that "jail mail" shouldn't just be dismissed out of hand. Quite a few folks in the room were people who Woodard had personally written about his plight but from whom he never heard a response.

      Alejandro Herndandez, an innocent man who spent 13 years for a crime he didn't commit in El Paso, emphasized that in most cases no DNA existed to be tested, and that efforts to discover "innocence" needs to look beyond those cases with available DNA, which are increasingly few and far between.

      Hernandez also echoed a call from Brandon Moon, another writ writer freed after 17 years incarcerated for a rape he didn't commit, also from El Paso. Three years ago Moon told a Senate committee that prisoners needed greater access to public records via open records requests in order to get a chance to prove their innocence.

      Legislators have balked in the past for fear open records requests wold be abused, but denying information to actually innocent inmates clearly inhibits their ability to prove up their defense.

      Finally, Court of Criminal Appeals Judge Barbara Hervey said she intends to request more money during the next legislative session to pay for grants for innocence related trainings, and to my surprise declared the court is interested in pursuing either statutory or court-ordered changes in eyewitness ID methodologies, which account for the lion's share of wrongful convictions identified through DNA testing. She also wants an inspection team created to do surprise visits to state and local crimes labs to root out ongoing problems with shoddy forensic science.

      I was encouraged so many opinion leaders were there from across the political spectrum, and representing a wide array of interests that are frequently at odds. There is room for consensus on some of these questions, if participants coming at the topic from different angles can each set aside their parochialism and actually look for solutions instead of ways to block them.

      UPDATE: See more coverage from AP , The Houston Chronicle, and the Fort Worth Star Telegram.

      BLOGVERSATION: Scott Greenfield at Simple Justice is offended on my behalf that Texas bloggers don't qualify for capitol press passes, lamenting "the fact that he types articles that never kill trees renders him less important than the kid from the Podunk Gazette, readership 278." (For the record, according to SiteMeter, Grits had just over 62,000 visitors last month, averaging more than 2,000 visitors per day.) Muchas gracias, Scott, for the supportive commentary.

      Posted by Gritsforbreakfast
      Labels: DNA, Innocence

      May 8, 2008

      Summit On Wrongful Convictions Meets At State Capitol

      CBS 42 Reporter: Annalisa Petralia
      Email: apetralia@keyetv.com

      Serious flaws in our criminal justice system have sent people to prison for crimes they didn't commit.

      Texas leads the nation in overturned convictions, and more than 100 people Thursday gathered at the State Capitol to discuss how to prevent another wrongful conviction.

      “I'm tearing up my sex registration card now. I've got a voting card,” James Giles said.

      It was a liberating experience for Giles, who spent years behind bars for a crime he didn't commit. DNA testing freed him, and Thursday's wrongful conviction summit gave him a voice.

      “Helping somebody that's still left behind and helping ourselves that are still trying to go forward,” Giles said.

      “They're going to continue to fail until something is done, until something is put in place to prevent wrongful conviction,” exoneree Billy Smith said.

      As they told their stories on the senate floor, lawmakers, activists and law enforcement leaders from all over the state listened.

      “Remember as all these men said, every time an innocent person is convicted the real assailant is out there committing more crimes,” Barry Scheck, Director of the Innocence Project, said.

      It's the first summit of its kind held at the Capitol to discuss flaws in the Texas criminal justice system.

      “You stand in front of a glass and I watched them kill him. That's not easy. That is one of the hardest things that you will ever do,” said Leeatriss Greenwood, whose son was executed.

      Greenwood’s son Joseph Nichols was executed last year.

      “Imagine how it was for Joseph as he died and knowing that he didn't do anything, and the state knowing that he didn't do anything,” she said.

      Since 1994, 33 Texas convictions have been overturned.

      Copyright 2008, Four Points Media Group LLC. All Rights Reserved.

      Summit On Wrongful Convictions Meets At State Capitol

      Dallas County district attorney wants unethical prosecutors punished

      May 4, 2008

      The Dallas Morning News
      jemily@dallasnews.com; smcgonigle@dallasnews.com

      The Dallas County district attorney who has built a national reputation on freeing the wrongfully convicted says prosecutors who intentionally withhold evidence should themselves face harsh sanctions – possibly even jail time.

      "Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized. "

      Wrongful convictions, nearly half of them involving prosecutorial misconduct, have cost Texas taxpayers $8.6 million in compensation since 2001, according to state comptroller records obtained by The Dallas Morning News. Dallas County accounts for about one-third of that.

      Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

      Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.

      "Most prosecutors would say, 'No, no, no,' " said Bennett Gershman, a Pace University law professor who studies prosecutorial misconduct.

      It is rare for a prosecutor to advocate strict penalties for misconduct – even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors, " he said.

      State Sen. Rodney Ellis, chief author of the Texas law that created the compensation system for wrongfully convicted inmates, said he, too, would support criminalizing the intentional withholding of evidence by prosecutors. No criminal charge exists in Texas for a prosecutor who intentionally commits a "Brady violation."

      That term refers to the 1963 U.S. Supreme Court ruling in Brady vs. Maryland, which held that prosecutors violate defendants' constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.

      "What better way to get to the truth?" said Mr. Ellis, a Houston Democrat who will chair a summit on wrongful convictions Thursday in Austin. "Why wouldn't we have a criminal statute to keep prosecutors from lying when they know the truth?"

      'Tipping point'

      Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County's DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.

      "I think there is a growing realization that we are clearly at a tipping point in Texas," Mr. Ellis said. "And people of conscience have got to be willing to look at it and see what we can do to make the system work better."

      State law allows wrongfully convicted inmates to receive $50,000 for each year of incarceration, up from $25,000 per year of incarceration during the first six years of the compensation program.

      Mr. Ellis said the total amount paid so far confirms his suspicion that wrongful convictions are far more common in Texas than people realize. Taxpayers should expect to pay "considerably" more as the number of exonerations rises.

      Texas already accounts for 14 percent of the estimated 216 DNA-based exonerations around the nation. Dallas County, with 17 exonerations from genetic testing, tops every other local jurisdiction in the U.S. since 2001.

      In the most recent exoneration last week, prosecutors originally pursued a murder case against James Lee Woodard but did not tell the defense that three men were with the victim just before she was raped and killed in 1980. Two of the men were later convicted of sexual assault in separate cases.

      Mr. Woodard spent 27 years and four months in prison – longer than anyone in the country exonerated by DNA. In comments late last week, he said prosecutors who violate the law should at least be fined.

      "Money is the only thing that matters," he said.

      Fellow exoneree James Curtis Giles said he favors prosecuting attorneys who break the rules. Mr. Giles was wrongly convicted in a 1982 gang rapeafter the victim incorrectly picked him from a photo lineup and prosecutors withheld the confession of a co-defendant who indicated another man with a similar name – James Earl "Quack" Giles – was one of the rapists.

      "A crime is a crime," said Mr. Giles, who attends each new exoneration to support the newly freed. "We've got to set an example – prison time or barred from practicing law."

      But such violations are rarely prosecuted even in extreme circumstances.

      One notable exception was the highly publicized case involving three members of the Duke University lacrosse team who were charged with rape. Former prosecutor Mike Nifong was disbarred and spent one day in jail for criminal contempt because he withheld DNA evidence that ultimately cleared the accused.

      An 'overreaction'

      John Bradley, the district attorney for Williamson County near Austin, said taking criminal steps against prosecutors, even when they intentionally withhold evidence, is a "ridiculous step" and an "overreaction."

      But he said he supports changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later.

      Toby Shook, now a defense attorney but formerly a prosecutor under three Dallas County district attorneys, said he does not support criminalizing Brady violations either.

      However, Mr. Shook said prosecutors who intentionally withhold evidence to win cases against those they know are innocent violate federal civil rights laws and "belong in prison."

      The State Bar of Texas oversees the conduct of lawyers. But it does not prosecute crimes and, legal experts say, rarely sanctions prosecutors for misconduct.

      Maureen Ray, an attorney in the bar's disciplinary section, recalled one recent example in which the bar did sanction a prosecutor for withholding evidence.

      In 2005, the bar gave the former district attorney of Hale and Swisher counties, Terry McEachern, a two-year probated suspension of his law license for hiding evidence at trial in the discredited Tulia drug bust. In that case, 39 of 46 defendants were black, prompting questions about whether the arrests were racially motivated.

      The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.

      "If he can do 27 years behind bars," she said of Mr. Woodard, "the prosecuting attorney can face time for hiding evidence."

      The Innocence Project plans to push for that in the next legislative session, she said, but she speculated that chances of success at "slim to none." State prosecutors are a powerful lobby in Austin.

      Without a strong state bar to take action, Mr. Watkins said he would fire any prosecutor who intentionally withheld evidence from the defense. Two prosecutors accused of Brady violations already have resigned because of Mr. Watkins' stance.

      And, according to Terri Moore, Mr. Watkins' top assistant, job applicants are asked what they know about Brady vs. Maryland.

      If they don't know much – as was the case with one applicant last week – they are unlikely to get the job.

      Staff writer Diane Jennings contributed to this report.


      Allegations of prosecutorial misconduct, known as "Brady violations," are often made in criminal cases, but few result in relief for the defendant or discipline for the prosecutor. Here are some examples of Texas cases in which evidence was withheld.

      RANDALL DALE ADAMS: Mr. Adams, depicted in the documentary The Thin Blue Line, was sent to death row in 1977 after being convicted of murdering a Dallas police officer. In late 1988, a state district judge concluded that a Dallas County prosecutor knowingly suppressed evidence about inconsistent statements by a key eyewitness and her failure to identify Mr. Adams in a lineup. The judge also concluded that the prosecutor allowed the eyewitness to perjure herself by saying that she had picked him in the lineup. The Texas Court of Criminal Appeals granted Mr. Adams a new trial in 1989. Prosecutors chose not to retry him, and he was freed.

      DELMA BANKS: Mr. Banks was convicted of killing a 16-year-old co-worker near Texarkana in 1980. The U.S. Supreme Court overturned Mr. Banks' death sentence and sent the case back to lower courts for review in 2004. The opinion noted that prosecutors concealed the fact that a witness was a paid police informant and that another witness had been intensively coached by prosecutors and law enforcement officers. Texas Department of Criminal Justice records show that he is still on death row.

      CLAY CHABOT: A state district judge ruled in March that then-Dallas County prosecutor Janice Warder committed Brady violations that could have changed the outcome of Mr. Chabot's 1986 murder trial. The judge recommended that Mr. Chabot get a new trial. The prosecutor should have disclosed inconsistent statements to the defense by Mr. Chabot's brother-in-law, the judge said. DNA tests later showed the brother-in-law raped the victim, but prosecutors believe both men were involved in the murder and plan to retry Mr. Chabot for murder. The brother-in-law is being prosecuted for capital murder.

      JAMES CURTIS GILES: A Dallas County jury convicted Mr. Giles in the 1982 gang rape of a pregnant North Dallas woman and sentenced him to 30 years in prison. Prosecutors did not disclose to Mr. Giles' defense attorney that a co-defendant had given police a statement before trial in which he identified two teenage acquaintances, one named James, as his accomplices. The statement was not turned over by prosecutors until the Innocence Project of New York conducted a new investigation. Mr. Giles, who served 10 years in prison, was exonerated last year after the victim said she was no longer certain he was her attacker.

      FREDA S. MOWBRAY: A Cameron County jury convicted Ms. Mowbray of murdering her husband in 1988. She claimed he committed suicide. In 1996, the Texas Court of Criminal Appeals ruled that she should get a new trial, noting in its majority opinion that conclusions by a noted blood spatter expert that her husband probably committed suicide were suppressed by the prosecution "until its hand was forced by the trial judge only days before trial." She later was acquitted.

      STEVEN CHARLES PHILLIPS: Mr. Phillips was believed to be the man who, in 1982, victimized as many as 61 people in a six-week period in apartment complexes, gyms and spas in Dallas and Kansas City. When he was tried, Dallas County prosecutors did not disclose an arrest warrant for Sidney Alvin Goodyear, whom DNA tests showed this year to be the perpetrator. DNA tests have cleared Mr. Phillips of two convictions of aggravated sexual abuse and burglary of a habitation. Mr. Goodyear died in a Texas prison where he was serving time for another sexual assault.

      DAMON JEROME RICHARDSON: Mr. Richardson's capital murder conviction in Lubbock County was set aside in 2002 by the Texas Court of Criminal Appeals. Prosecutors were accused of failing to disclose the existence of a diary kept by a former Lubbock police officer that would have provided powerful impeachment evidence against the state's only eyewitness. The court noted that the witness's credibility was "fatally impeached by her ever-increasing number of self-admitted perjuriousstatement s" and that, had the diary been available to defense attorneys, her "credibility would have not only been impeached, but severely undermined."

      TULIA DRUG CASES: The State Bar of Texas in 2005 sanctioned Terry McEachern, the former district attorney for Swisher and Hale counties, alleging that he failed to disclose to defense attorneys "negative information" about an undercover officer who was the chief witness against their clients. That information included an arrest, criminal charges, a reputation for being racially prejudiced, and questions about his honesty and trustworthiness. Nearly 40 defendants were found guilty or pleaded guilty to narcotics charges based solely on the undercover officer's testimony. Many of the convictions in the notorious Tulia drug scandal later were reversed. The state bar disciplined Mr. McEachern with a two-year probated suspension of his law license.

      JAMES LEE WOODARD: Dallas County prosecutors in Mr. Woodard's 1981 trial did not disclose to the defense that the victim was seen with three men – two of whom were later convicted of unrelated sexual assaults – the night she was raped and murdered. Mr. Woodard served more than 27 years in prison after six requests for a new trial were denied. He was cleared by a DNA test that excluded him as the rapist and a change in witness and expert testimony. He was released from prison last week.

      DA wants unethical prosecutors punished

      As 18th Person is Freed Based on DNA in Dallas, Summit on Wrongful Convictions in Texas Is Set for May 8

      ‘We’ve reached a tipping point on wrongful convictions in Texas,’ Senator Ellis says

      Austin, TX; May 03, 2008

      State Senator Rodney Ellis today announced that a day-long Summit on Wrongful Convictions will be held May 8 at the State Capitol in Austin to determine the causes of wrongful convictions in Texas and identify reforms that can prevent them.

      Today’s release of James Lee Woodard in Dallas — based on DNA tests showing that he did not commit a murder 27 years ago for which he was wrongfully convicted — comes just one week after Thomas McGowan was freed based on DNA results showing he did not commit the Dallas County rape and burglary for which he spent 23 years in prison. Woodard is represented by the Innocence Project of Texas; McGowan is represented by the Innocence Project. Eighteen people have now been freed based on post-conviction DNA testing in Dallas, and more than 30 people in Texas have been fully exonerated based on DNA results.

      As a result of the unprecedented number of exonerations in Texas, key leaders from across the state will gather in Austin on May 8 for a landmark Summit on Wrongful Convictions. Judges, lawmakers, defense attorneys, prosecutors, exonerees, professors and many others will come together for the Summit. The Summit will mark the first time any state’s criminal justice leaders have initiated a high-level meeting themselves to address wrongful convictions. Texas State Senator Rodney Ellis is spearheading the Summit, and Innocence Project Co-Director Barry Scheck will attend. The Summit will be open to the public.

      “We’ve reached a tipping point on wrongful convictions in Texas. Nobody can seriously doubt that there’s a problem, and next week leaders from across our criminal justice system will come together to start solving it,” Senator Ellis said today. “We will bring a wide range of leaders, experts and exonerees together for a full day to develop concrete, common-sense remedies to make our system of justice more fair and accurate. We won’t solve these serious problems in one day, but we will make historic strides toward restoring confidence in our criminal justice system.”

      The Summit on Wrongful Convictions will be held on the Senate Floor at the State Capitol from noon to 5 p.m. on Thursday, May 8. Additional details will be circulated early next week.

      The Summit on Wrongful Convictions

      May 01, 2008

      Arson cases may be next venue for innocence claims

      I spent yesterday afternoon with Jeff Blackburn of the Innocence Project of Texas, who was in Austin to visit with legislators and media about James Lee Woodard, an innocent man who spent 27 years in prison for a crime he didn't commit. Woodard walked out of court in Dallas a free man on Tuesday.

      Blackburn predicted that beyond DNA cases, which are increasingly few and far between (because most cases have no DNA evidence, and most DNA evidence collected wasn't preserved), arson cases could constitute the next wave of exonerations in Texas. More than 800 people are in Texas prisons over arson convictions, he said, and dozens if not hundreds were convicted based on forensic science that's no longer considered valid.

      Texas' most infamous arson case targeting a possibly innocent man resulted in the execution of Todd Willingham in 2006, and a Chicago Tribune investigative report concluded that he was likely innocent and the fire could have been an accident:

      Before Willingham died by lethal injection on Feb. 17, 2006, Texas judges and Gov. Rick Perry turned aside a report from a prominent fire scientist questioning the conviction.

      The author of the report, Gerald Hurst, reviewed additional documents, trial testimony and an hourlong videotape of the aftermath of the fire scene at the Tribune's request last month. Three other fire investigators- -private consultants John Lentini and John DeHaan and Louisiana fire chief Kendall Ryland--also examined the materials for the newspaper.

      "There's nothing to suggest to any reasonable arson investigator that this was an arson fire," said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. "It was just a fire."

      Ryland, chief of the Effie Fire Department and a former fire instructor at Louisiana State University, said that, in his workshop, he tried to re-create the conditions the original fire investigators described.

      When he could not, he said, it "made me sick to think this guy was executed based on this investigation. ... They executed this guy and they've just got no idea--at least not scientifically- -if he set the fire, or if the fire was even intentionally set."

      Even Edward Cheever, one of the state deputy fire marshals who had assisted in the original investigation of the 1991 fire, acknowledged that Hurst's criticism was valid.

      "At the time of the Corsicana fire, we were still testifying to things that aren't accurate today," he said. "They were true then, but they aren't now.

      "Hurst," he added, "was pretty much right on. ... We know now not to make those same assumptions."

      For the record, of course, forensic assessments couldn't be "true then, but [not] now." The science was flawed at the time of the conviction, but arson investigators portrayed their ignorance and flawed assumptions to the court as "expert testimony." As a result, Todd Willingham paid with his life. Now it appears those experts may have sent dozens or even hundreds of innocent people to prison.

      If it's true hundreds of others were convicted based on the same, flawed forensic science, in the future we may see arson cases ending in exonerations at a greater frequency, even, than DNA cases today.

      Related Dallas News editorial:
      Even Non-DNA Cases Deserve Scrutiny
      Posted by Gritsforbreakfast
      Labels: arson, DNA, Innocence

      Arson cases may be next venue for innocence claims

      April 30, 2008

      Exonerations prompt forum on convictions
      Summit's topic will be how to keep innocent people out of jail

      Copyright 2008 Houston Chronicle Austin Bureau

      AUSTIN — With two Dallas men freed in recent weeks on the basis of DNA evidence, Sen. Rodney Ellis on Wednesday promoted a forum scheduled for next week on how to prevent the conviction of innocent people.

      On Tuesday, James Lee Woodard became the 18th person freed based on post-conviction DNA testing done in Dallas County.

      He served 27 years in prison after being convicted of the rape and murder of his girlfriend in 1981.

      Statewide, more than 30 people have been exonerated based on DNA results.

      Several of those individuals are expected to attend the May 8 Summit on Wrongful Convictions, along with judges, prosecutors, police and lawmakers.

      The public is invited to the summit, which will begin at noon in the Texas Senate Chamber.

      "We've reached a tipping point on wrongful convictions in Texas," said Ellis. "Nobody can seriously doubt that there's a problem, and next week leaders from across our criminal justice system will come together to start solving it."

      Ellis has tried since 2003 to pass legislation to create a state- funded Innocence Commission to review convictions.

      He is meeting this week with Gov. Rick Perry and Attorney General Greg Abbott, asking them to use their authority to set up a panel.

      Criminal justice reforms to prevent people from being wrongly convicted may include improving indigent defense, taking steps to ensure that eyewitness identification is reliable and videotaping confessions, Ellis said.


      Exonerations prompt forum on convictions

      DNA evidence frees man imprisoned 27 years in Dallas County

      April 30, 2008
      The Dallas Morning News

      James Lee Woodard finally got what he had long sought Tuesday when a judge released him from prison after spending 27 years and four months behind bars for a crime he did not commit.

      "Unfortunately, you're not getting justice today," State District Judge Mark Stoltz told Mr. Woodard, 55. "You're getting the end of injustice."

      17th Man Freed by DNA Evidence
      April 29, 2008

      The release of Mr. Woodard came after DNA tests and changes in witness testimony proved that he did not rape and murder his 21-year-old girlfriend in 1980. Mr. Woodard, who spent more time behind bars than any other inmate in the country freed by DNA evidence, said Tuesday he was just glad that someone finally listened to his pleas of innocence. He was denied parole because he would not admit killing Beverly Ann Jones.

      "I thank God for letting me live through the experience," said Mr. Woodard. "I never learned to give up, especially when I'm right."

      Mr. Woodard is the 17th inmate since 2001 to be exonerated by DNA in Dallas County, which has more exonerations than any county in the nation. Judge Stoltz urged Mr. Woodard to speak out about injustices in the criminal justice system. Mr. Woodard said he intends to help the Innocence Project of Texas, which worked to release him from prison, however he can.

      "The system did something for me," he said after the hearing. "It's only fair that I give something back."

      Mr. Woodard, dressed in a suit with a snazzy purple tie, seemed at ease talking with reporters after the hearing despite his long prison sentence. But he confessed that though he seemed calm on the outside, his heart was pounding. His calm demeanor, he said, also made police believe in his guilt.

      Tuesday's proceedings took longer than previous similar hearings. The newsmagazine 60 Minutes filmed the hearing for an upcoming segment and participants wore microphones.

      Man cleared by DNA tests freed after serving 23 years for 1985 Richardson rape, burglary...

      Unlike with other exonerations, officials went beyond simply using DNA results to prove Mr. Woodard's innocence because his conviction was for murder, instead of rape as it is in most of the other exoneration cases.

      Police focused on Mr. Woodard at the time because Ms. Jones' stepfather said Mr. Woodard came to their apartment the night she died and asked for her. The stepfather has since said he believes Mr. Woodard was not the man and that Mr. Woodard is innocent. A neighbor also testified she saw – from far away and at night – Mr. Woodard and Ms. Jones together.

      Prosecutors and the Innocence Project of Texas reinvestigated his case and consulted a forensic pathologist who determined that Beverly Ann Jones was sexually assaulted when she was killed.

      Additionally, prosecutors illegally withheld evidence in the case. After Mr. Woodard's 1981 trial, the defense learned that three other men were with Ms. Jones the night she was killed. Two of the men were later convicted of sexual assault.

      Of the two, one absconded while on probation. The other, Timothy Blaylock, was shot and killed in 1982 by a woman as he raped her inside her car.

      Jeff Blackburn, chief counsel for the Innocence Project of Texas, called the misconduct in Mr. Woodard's case a "classic and terrible example of police and prosecutors playing games with the truth."

      Dallas County District Attorney Craig Watkins ate a hearty breakfast with Mr. Woodard on Tuesday, and later apologized to him during the hearing for his wrongful conviction.

      Mr. Woodard said after the hearing that he was not angry at his attorney or the prosecutors or police who worked to send him to prison. But he said he has a "low opinion" of their "work ethic."

      "Integrity of police officers and public servants can never be ignored or overstated," he said. Then he said, "I didn't know there was such a thing as a good attorney, bad attorney."

      DNA evidence frees man imprisoned 27 years

      Posted on Apr. 29, 2008

      Student helps free man imprisoned in Dallas 27 years




      James Lee Woodard meets Texas Wesleyan Law School student Alexis Hoff on Monday at the Dallas County district attorney's office.


      DALLAS -- About a year after going to work in the Dallas County district attorney's office, a law school student working with the Innocence Project of Texas on Monday finally got a chance to tell an inmate that he will soon go free.

      A Texas Wesleyan University School of Law student told James Lee Woodard that DNA tests will likely lead to his exoneration for a 1980 slaying. That would make Woodard the 17th person in Dallas County to be cleared through DNA testing since 2001.

      If Woodard is finally cleared, he will be the longest-serving inmate in the U.S. to be released as a result of DNA evidence, the Innocence Project said.

      "I haven't touched the ground yet," Woodard, 55, said in an interview with the Star-Telegram. He is expected to be released at a court hearing today.

      "I never lost hope -- but I had my doubts," Woodard said.

      This is the first of the 17 Dallas County DNA exonerations to be initiated and then partially handled by a student.

      Alexis Hoff, 25, the Texas Wesleyan student who has been handling Woodard's case since October, said she was convinced of Woodard's innocence soon after reading the transcript of his trial.

      "I knew he didn't do it," Hoff said. "It just didn't all add up."

      Mistaken identity

      Woodard was arrested on New Year's Day 1981 and charged with the murder of Beverly Jones, 18, a woman he had dated whose body was found in the Trinity River bottoms in south Dallas. She had been sexually assaulted and killed on or about Dec. 29, 1980, records show.

      He immediately became a suspect after Jones' stepfather said Woodard had come to their home in the early morning of Dec. 29. Neighbors said they had heard the couple fighting.

      But there was no evidence that Jones had been in Woodard's car or that the car had been in the muddy Trinity River bottoms.

      Woodard had two felony convictions, one for burglary and one for unauthorized use of a vehicle.

      From behind bars, Woodard maintained that he was innocent in letters to the detectives and to then-Dallas District Attorney Henry Wade. He gave the police a list of witnesses who confirmed his whereabouts at the time of the slaying.

      And several days before Woodard went on trial, authorities learned of three other witnesses who saw Jones shortly before she died -- Ed Mosley, Theodore Blaylock and Eddie Woodard -- and who told investigators she had gotten into a car with several men at a 7- Eleven. Mosley and Blaylock couldn't identify the men or their car.

      It was the last time Jones was seen alive.

      About three weeks after Jones' murder, Blaylock was arrested on a charge of sexually assaulting a woman whom he threatened to kill.

      Blaylock was in jail on that charge when James Woodard went on trial in Jones' slaying.

      James Woodard's defense attorney wasn't told about the other witnesses until after his client received a life sentence in May 1981 for a conviction based largely on circumstantial evidence.

      Blaylock, who was convicted on the sexual assault charge, was eventually killed in 1982 by a woman he was trying to rape. Eddie Woodard, a registered sex offender, can't be found, officials said.

      Missing evidence

      Soon after the Texas Legislature passed a law in 2001 allowing prison inmates to ask for post-conviction DNA testing, James Woodard filed such a request.

      The Dallas County district attorney's office fought the request, and Woodard was told twice that the evidence was lost. But after another request, the lab said it had found the evidence in April 2007.

      The case was among about 500 that Dallas County District Attorney Craig Watkins asked the Innocence Project of Texas to review starting in May. The project is a collection of student volunteer programs at Texas Wesleyan, Texas Tech School of Law, the University of Texas at Arlington, the University of North Texas and the University of St. Thomas in Houston.

      The test results were returned to prosecutors in December.

      Mike Ware, head of the conviction integrity unit in the Dallas County district attorney's office, said that both offices have interviewed several witnesses and that the stepfather has recanted his testimony from the trial.

      An exciting day

      Sitting in an interview room wearing a striped jail uniform and shackles, Woodard still couldn't believe that he may soon be a free man.

      He marveled at the sound of a cellphone's ring tone. He relished the taste of a Diet Coke. He eagerly awaited the chicken dinner that investigators were bringing.

      "I feel like I'm old Jed Clampett," Woodard joked.

      Woodard's parents died while he was in prison, and he has no place to go after his release. But he said he doesn't feel any anger with the system that put him away for 27 years.

      "I don't want to waste my time on negative energy," Woodard said. "I don't have any retaliatory or vindictive thoughts about it. I'm just glad it's over."

      For Hoff, the case has been the highlight of a legal career that officially has not begun. She will graduate in May.

      "I've been waiting for this day. Walking in today, it felt real for the first time," Hoff said.

      MAX B. BAKER, 817-390-7714 maxbaker@star-telegram.com

      Student helps free man imprisoned

      Posted on Apr. 27, 2008

      Editorial: The Innocence Project

      Fighters for freedom

      Hardly a month goes by anymore without news of another person's being released from prison for a crime he didn't commit. The release usually comes after the wrongly convicted person has spent years behind bars.

      The organization behind the effort to right the wrong is often the Innocence Project.

      The New York-based nonprofit was founded in 1992 to help inmates fight wrongful convictions through the use of DNA evidence.

      To date, the Innocence Project has helped to exonerate more than 200 people, including 16 who were sentenced to death. Those who have won release spent an average of 12 years in prison.

      The success of the Innocence Project has spawned a network of affiliated offices in nearly every major city and state across the country. Offices have also opened in Australia, Canada, New Zealand and the United Kingdom.

      With much of the country and several continents covered, there remains a gaping hole right here: Philadelphia is the biggest city in the country without a locally based Innocence Project office.

      It's not because of a lack of need. Even without a local office, the Innocence Project has helped free nine people in Pennsylvania and five in New Jersey who were convicted wrongfully.

      Nationally, four people have had their convictions overturned this year. Most reversals involve rape, since DNA is most often available.

      Many other cases, including murder, don't always produce DNA evidence. As such, scores more are believed to be behind bars for crimes they didn't commit both here and around the country. Most are poor and lack the resources to hire an attorney.

      Overturning a wrongful conviction is difficult even with incontrovertible evidence in hand. Mounting a legal challenge often requires smart, dedicated lawyers. Not to mention lots of time, reasonable judges, and fair-minded prosecutors.

      The leading cause of the wrongful convictions in the 200 plus cases has been eyewitness misidentification. Other factors include false confessions, forensic fraud, government misconduct, lying snitches and bad lawyers.

      All of those issues have cropped up in cases in Philadelphia over the years. That's all the more reason why an Innocence Project office is needed here. In fact, it's surprising the city lacks such an office, given its rich legal history.

      Often the office is housed at a law school or a law firm. Most offices require anywhere from $150,000 to $400,000 a year to run, depending on size and office rents. That seems like peanuts, given that what's at stake is a person's freedom or even his life.

      The Pennsylvania Prison Society and others have discussed the idea for some time. With the right champion, an office could open quickly.

      The need is there. Just ask the more than 200 people who spent years in jail for crimes they didn't commit who have been set free.

      The Innocence Project

      Dallas district attorney steps up scrutiny of cases where DNA can't prove innocence

      April 27, 2008
      The Dallas Morning News
      jemily@dallasnews.com; smcgonigle@dallasnews.com

      For 16 wrongly convicted defendants in Dallas County, DNA testing was the key that set them free after years – even decades – in prison.

      Now, because of the doubt those exonerations raised, Dallas prosecutors are taking an unprecedented look at convictions in which DNA evidence cannot conclusively prove guilt or innocence.

      And that may lead to a significant departure from the way prosecutors traditionally have responded to claims of innocence by inmates.

      DNA cases "are the very tiniest tip of a gigantic iceberg of injustice in Texas," said Jeff Blackburn, an Amarillo civil rights attorney who also serves as chief counsel for the Innocence Project of Texas.

      The decision to pursue non-DNA cases broadens a review of convictions begun a year ago by Dallas County District Attorney Craig Watkins and the Innocence Project of Texas amid a wave of DNA exonerations.

      Fred Moss, a law professor at Southern Methodist University and a former federal prosecutor, said the effects of Mr. Watkins' work with the nonprofit legal clinic could ripple through courthouses across the state.

      By letting defense advocates search for misfires in the judicial system, Mr. Moss said, Mr. Watkins has opened a Pandora's box.

      "And now," he said, "it's 'Oh, my God.'"

      Other prosecutors, he said, could feel pressure to review old cases, and further revelations could add to public skepticism of the justice system.

      Dallas County already leads the nation in DNA exonerations. By agreeing to investigate innocence claims in non-DNA cases, Mr. Watkins has enhanced the possibility that exonerations will rise.

      Mr. Watkins, a career defense lawyer before his election in 2006, said he is convinced that systemic problems he describes as "rampant" in the DNA exonerations provide a valuable road map for further investigations.

      The number of cases in which untested DNA evidence is available continues to diminish with time.

      But problems such as faulty identifications, inept defense attorneys or evidence suppression still may be found in non-DNA cases. Soon, Mr. Watkins' year-old conviction integrity unit and the Innocence Project may take on even more non-DNA cases that most prosecutors routinely resist.

      Some prosecutors balk at what is unfolding in Dallas.

      John Bradley, the Williamson County district attorney in Georgetown, Texas, said reviews of claims are time-consuming and seldom result in confirmations of innocence.

      Instead of forming conviction integrity units, he said, district attorneys should teach their prosecutors to scrutinize cases from the start.

      "I don't mean to minimize the harm to those people" exonerated by DNA, Mr. Bradley said. "[But] I guarantee you a lot more people were killed in drunk-driving accidents and car wrecks and in wars than were falsely imprisoned."

      Claims of innocence made by prison inmates – without an agreement between the district attorney and the inmates' attorneys – typically have difficulty prevailing.

      The Texas judicial system does not track the number of post- conviction innocence claims filed. But since the Texas Court of Criminal Appeals first recognized "actual innocence" as a claim in 1994, it has ruled on fewer than 30 contested cases.

      The Austin court exonerated inmates in five non-DNA cases – each involving victim recantations. Three of those cases were sexual assaults from Dallas County.

      More cases could find their way before the court as Dallas County prosecutors and the Innocence Project continue their investigations. Their unique partnership originally focused on whether 350 inmate requests for DNA testing were appropriately rejected during the tenure of former District Attorney Bill Hill.

      Mr. Watkins' prosecutors have reviewed 149 of the defendants' requests for testing that were originally denied, and granted 17.

      One of the 16 exonerations comes from this review, which confirmed the guilt of two others. Other cases are still under investigation.

      More than 20 of the reviewed cases fell into a new category. In these cases, DNA cannot provide an answer – but further investigation might produce new evidence. The DA's office already has agreed that eight of these cases merit further investigation.

      The Innocence Project declined to name the eight defendants, saying that is its policy in cases under investigation.

      Prosecutor Mike Ware, who oversees the conviction integrity unit, said despite the partnership, the DA's office will conduct a separate investigation into whether inmates deserve a new trial.

      Sometimes, Mr. Ware said, the DA's office might acknowledge that a defendant deserves a new trial because the case was tried unfairly, but still questions his innocence.

      DNA cleared Clay Chabot in the rape of a murdered Garland woman. Mr. Chabot was convicted mainly on the perjured testimony of his brother- in-law, who DNA tests show was the rapist. Prosecutors agreed to a new trial, but still believe Mr. Chabot was involved in her 1986 shooting death.

      In another pending case, prosecutors have opposed Ben Spencer's bid for a new trial in a 1987 fatal robbery. But state District Judge Rick Magnis recently ruled that Mr. Spencer actually was innocent of the crime because of problems with eyewitness testimony.

      The Court of Criminal Appeals, which must rule on Judge Magnis' recommendation, has not rendered a decision.

      Mr. Blackburn of the Innocence Project said he doesn't think the district attorney's stances on the Spencer and Chabot cases will affect how open prosecutors are to other claims of innocence. While prosecutors are willing to work with the Innocence Project, he said, they are "appropriately skeptical."

      "Anyone who thinks Dallas County is a Mecca for people who want to get out," Mr. Blackburn said, "is mistaken."

      Still, Dallas County is developing a very different reputation from the days when many defense attorneys claimed that prosecutors put conviction rates above justice.

      Dallas County is unlike any other when it comes to listening to inmates' pleas of innocence, especially when DNA testing is available, said Jason Kreag, an attorney for the Innocence Project in New York, another independent nonprofit legal clinic. He noted that the district attorney's office didn't even require a formal DNA test request in this month's exoneration of Thomas Clifford McGowan Jr. "The Dallas district attorney's office has been remarkably responsive and quick to find the evidence, which is often the biggest challenge," Mr. Kreag said.

      "And that obviously makes Dallas different from many jurisdictions." Dallas district attorney steps up scrutiny of cases where DNA can't prove innocence


      Lawyer: New evidence found in yogurt shop case
      Prosecutors dispute claim that DNA exonerates defendant.

      By Steven Kreytak
      Thursday, April 17, 2008

      The lawyer for Robert Springsteen, one of two defendants expected to be retried this year in Austin's infamous 1991 yogurt shop murders of four teenage girls, wrote in a court filing this week that new DNA evidence in the case exonerates Springsteen, co-defendant Michael Scott as well as two former defendants, something prosecutors dispute.

      On Wednesday, defense lawyer Joe James Sawyer petitioned for Springsteen' s release on bail before trial. That petition, which cites the new evidence, was first reported in the Austin Chronicle's online edition.

      The petition disclosed for the first time that in preparation for Scott and Springsteen' s upcoming retrials, prosecutors ordered new DNA testing in the case. Through that testing, investigators found male DNA in a vaginal swab taken from 13-year-old victim Amy Ayers that is not from Springsteen or Scott, the petition said. Forrest Wellborn, whose murder charges in the case were dismissed after a grand jury declined to indict him, and Maurice Pierce, whose indictment in the case was later dismissed by prosecutors, also do not match the DNA, according to the petition.

      "This exonerates defendant Springsteen and makes it clear someone else committed these murders," Sawyer wrote in the petition.

      Ayers was killed along with Eliza Thomas, 17, and sisters Jennifer and Sarah Harbison, ages 17 and 15, during a 1991 robbery at the I Can't Believe It's Yogurt store near Northcross Mall. The store was then set on fire, destroying much of the physical evidence.

      The case stymied police until 1999 when they arrested the four men.

      Scott and Springsteen were both convicted of capital murder, based mostly on their alleged confessions to the crimes. Lawyers for the men said their statements were coerced and noted that police had received dozens of other confessions that were discounted. An appeals court overturned the convictions, saying prosecutors improperly used Springsteen' s confession against Scott and vice versa.

      The Supreme Court has ruled that using such statements and not live testimony deprives the defendant of his right to cross-examine witnesses against him.

      Scott's May trial has been postponed, with no new date set; Springsteen will be tried sometime after Scott.

      Prosecutor Gail Van Winkle today disputed Sawyer's assertion that the DNA evidence exonerates the men.

      "We still have testing going on to determine the identity of that profile," she said. Van Winkle noted that DNA not linked to any of the defendants or former defendants had been found before — on Jennifer Harbison. That DNA was later determined to be Harbison's boyfriend's, Van Winkle said.

      Van Winkle said that Sawyer's disclosure of the evidence may have violated a protective order issued by state District Judge Mike Lynch that prevents lawyers from making out-of-court statements about any evidence, including witness statements or DNA test results.

      Lynch might have ordered the petition sealed. It did not appear Thursday in a check of the court files. Sawyer could not be reached for comment.

      Van Winkle said that the newly found DNA is not in a form that can be entered into the state database of DNA, which includes convicted felons.

      "It's fairly new" technology that recovered the DNA, she said. "It's my understanding it's effective on degraded samples."

      Defense lawyers on Tuesday won the right to conduct new DNA tests on some other evidence in the case, including several articles of clothing and materials used to bind and gag the victims. Prosecutors argued the evidence is unreliable and tainted, because it has been handled by many people since being publicly introduced at trial several years ago.

      Lynch warned any new evidence could still be excluded from trial if shown to be tainted.

      skreytak@statesman.com; 912-2946


      DNA evidence clears another Dallas County inmate

      April 15, 2008

      The Dallas Morning News

      A former Richardson man who has spent 23 years in prison for a 1985 rape and burglary is set to become the 16th Dallas County inmate to be cleared by DNA evidence.

      Thomas Clifford McGowan Jr., 50, is expected to be released Wednesday after a hearing before state District Judge Susan Hawk. At the hearing, prosecutors will agree that Mr. McGowan was wrongly convicted by a flawed identification.

      The victim, a 19-year-old secretary, selected Mr. McGowan’s photograph from a lineup that mixed color and black-and-white originals with black-and-white copies. Mr. McGowan’s photo was in the array because of a recent traffic arrest.

      Barry Scheck, an attorney for Mr. McGowan, attributed the conviction to the suggestive nature of a detective telling the victim when she tentatively identified Mr. McGowan that she had to make a positive identification.

      “This one statement cost McGowan 23 years of his life,” Mr. Scheck said.

      Dallas County leads the nation in DNA exonerations.

      DNA evidence clears another Dallas County inmate

      Gerald Britt: Prisoners of the streets

      We must give restitution to the wrongly imprisoned, says GERALD BRITT

      March 3, 2008

      At the risk of overstating the obvious, the world was a different place 27 years ago.

      There were no cellphones, DVDs were unknown, and VCRs were budget- busting toys. "Green" was just a primary color, the Cold War was still raging, and the Reagan era had just begun.

      And Charles Allen Chatman was sentenced to 99 years for rape.

      On Jan. 3, Mr. Chatman became the 15th man in Dallas County to be released from prison, exonerated by DNA evidence. This will probably be categorized as old news by some readers; others won't even recognize the name or the case. And, for me, that's troubling.

      Meeting recently with Judge John Creuzot, who signed the dismissal of Mr. Chatman's charges, I learned some of the incidents surrounding Mr. Chatman's release: his unfamiliarity with a knife and fork when he was taken out to eat, his lack of knowledge about what a cellphone is and, perhaps saddest of all, the fact that he hadn't seen a dentist in those 27 years.

      Mr. Chatman's remarkable journey from incarceration to exoneration is an episode in a much larger story of the burden under which poor communities struggle – and how injustice further complicates that struggle.

      A quasi nonprofit cottage industry has developed around what is labeled "the re-entry population": formerly incarcerated residents returning to communities poorly prepared for them and for which they are equally poorly prepared.

      According to the Urban Institute, most of those released from Texas prisons are male and African-American; the average age is 34. Their crimes ranged from drug offenses to property crimes, violent offenses and parole violations. About a fourth of the nearly 59,000 falling in this category have been imprisoned at least five years.

      They need jobs, education, housing and a nurturing environment. In our poorest communities, the scarcity of opportunity, the presence of the same temptations and pressures of the street combined with their new responsibility for their lives can be challenges that set them up for devastating failure. If they are not effectively restored, the streets will reclaim them.

      This is a daunting challenge that many throughout North Texas are seeking solutions for – with varying degrees of success.

      But Charles Chatman and others like him are an entirely different profile. Someone who's been exonerated from a prison sentence through a determination of innocence faces the same challenges as others re- entering society, regardless of his innocence.

      Barry Scheck and the Innocence Project have been the catalyst for freeing more than 200 such inmates across the country. Nationally, on average, these exonerees served at least 12 years and were 26 when convicted.

      Thirty of those wrongful convictions have been in Texas, half of those in Dallas County. District Attorney Craig Watkins should be lauded for his vigorous efforts to address the travesty of these people's ordeal.

      They have lost years of productivity, in some cases relationships with family members and, much more significantly, freedom. The horrible fact is that there will be more.

      Texas is one of 28 states that provide some compensation to exonerees. But financial help is not enough. Job training, assistance in obtaining medical, legal and counseling services, and an instantaneous public recognition of wrongful incarceration must be a part of redressing this wrong.

      Society rightly demands that those who commit crimes owe a debt that must be paid. But where that right has been unjustly or mistakenly demanded, society has an obligation to make immediate and comprehensive restitution. We impose a terrible burden on the falsely imprisoned. And we compound a problem that we already struggle to address: the restoration of the lives of residents to productivity in a time when we don't have lives to waste.

      The Rev. Gerald Britt Jr. is vice president for public policy at Central Dallas Ministries and has worked on civic affairs and social justice issues as a community leader in Dallas for more than 25 years.

      His e-mail address is

      Prisoners of the streets

      Feb. 27, 2008

      Rape charge tossed in Dallas wrongful conviction case

      Associated Press

      DALLAS — A Dallas man who spent 27 years in prison for a rape he didn't commit saw the aggravated rape charge against him officially dismissed.

      "It's just a relief," Charles Chatman, 47, said Tuesday after his court appearance. "I don't have to worry about court no more."

      Chatman, 47, won his freedom Jan. 3 after new DNA testing excluded him as the rapist in a 1981 sexual assault. He is the 15th inmate from Dallas County since 2001 to be freed by DNA testing, and he served more time than any of the others.

      Dallas has freed more inmates after DNA testing than any other county nationwide, according to statistics from the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions. Texas leads the country in prisoners freed by DNA testing, with at least 30 since 2001.

      Chatman was 20 when the rape victim picked him from a lineup. She identified him in court as the attacker, and serology tests showed that the type of blood found at the crime scene matched that of Chatman, along with 40 percent of black males.

      Chatman's alibi was that he was working at the time of the assault, a claim supported by his sister, who was also his employer. Nevertheless, he was convicted of aggravated sexual assault in 1981 and sentenced to 99 years in prison.

      Rape charge tossed

      Triumph, tragedy mark lives of men exonerated in '88 murder

      In 1988, one man confessed to a murder he didn't commit
      and accused an innocent friend

      February 24, 2008
      JEFF MILLER/Special Contributor
      The Dallas Morning News

      MADISON, Wis. – How could you do it?

      Chris Ochoa, in his law office in downtown Madison, Wis., went on to earn a law degree from the University of Wisconsin, whose Innocence Project helped release him from a life sentence in prison.

      The question dogs Christopher Ochoa. It always will.

      In 1988, Mr. Ochoa, then a naive 22-year-old, confessed to a brutal rape and murder he didn't commit, and accused an innocent friend, Richard Danziger, of the same crime to avoid the death penalty.

      The two men were sentenced to life in prison. Twelve years later, they were exonerated by DNA evidence and among the first of a parade of people who have made Texas the national leader in acknowledging wrongful convictions. Their shocking tale still reverberates around the state Capitol, where legislators keep passing laws to fix flaws that the case revealed in the criminal justice system.

      Mr. Ochoa, now 41, triumphed over his past. He is now a criminal defense attorney, having graduated from the University of Wisconsin Law School – the same school that helped free him. Thanks to a multimillion- dollar civil settlement, he has set up a modest office across from the scenic Wisconsin Capitol, where he can pick and choose cases. He's planning to buy a house and get married.

      Victim's mother says exonerations shattered her faith in justice system "This is what I dreamed of" during years hemmed in by guards and razor wire, he says softly.

      But Mr. Danziger's story is one of tragedy. Mr. Danziger, who always maintained his innocence, suffered brain damage when another inmate repeatedly kicked him in the head with steel-toed boots. He now lives under his sister's guardianship in Florida, his multimillion- dollar settlements providing medical care and personal assistance.

      "Everybody involved in this case has drug himself through the desert behind a Jeep trying to figure out what happened," says Travis County District Attorney Ronnie Earle. "It is far and away the strangest case I can remember."

      The real killer came forward and is in prison. The criminal justice system has changed for the better. But many affected by the Ochoa-Danziger case say their faith in the system was permanently shaken.

      "In the end, justice did prevail," says John Pray, a law professor at the University of Wisconsin. But "you look at both those [men] and you don't know what to make of it. ... One is very exhilarating, and the other is just downright depressing."

      The confession

      How could you do it?

      It's one thing to make a false confession about yourself; it's another to implicate someone else.

      Austin American-Statesman

      Chris Ochoa was wrongly convicted in the murder of 20-year-old Nancy DePriest.

      Mr. Ochoa responds patiently. Being threatened with the death penalty during interrogation, the choice seemed clear: lie or die.

      Shy by nature, Mr. Ochoa says, "I never liked conflict. I always wanted to make people happy."

      He'd been a good student at an El Paso high school, never in trouble with the law.

      He moved to Austin to make money for college, getting a job at Pizza Hut. He shared an apartment with fellow employee Richard Danziger, 18, and another restaurant worker.

      In the fall of 1988, Austin was buzzing about the brutal rape and murder of 20-year-old Nancy DePriest. Early one October morning, the young wife and mother was assaulted while alone mixing dough at a different Pizza Hut. She was bound, raped and shot in the back of the head.

      A couple of weeks later, Mr. Danziger suggested that after work, he and Mr. Ochoa grab a beer at the restaurant where the killing occurred. "I found that strange," Mr. Ochoa says. "I just wanted to go home."

      But he went along, joining Mr. Danziger in a toast to the dead woman's memory.

      Mr. Ochoa says he was nervous because Mr. Danziger was underage.

      On their way out, Mr. Danziger chatted with a security guard about the killing.

      Suspicious employees called the police.

      When officers approached Mr. Ochoa two days later on a Friday at work, he assumed they were interviewing all employees. He went willingly to the police station.

      "Aren't we all taught that police officers are there to protect you, if you haven't done nothing wrong?" he said. "And I hadn't done nothing wrong."

      In an interview room, Mr. Ochoa says, one detective introduced himself by slamming his fist on the table and telling him he was known as el cucuy on the streets – "the boogeyman" in Spanish.

      Officers asked him why he and Mr. Danziger had inquired about the robbery.

      "Just curious," Mr. Ochoa responded.

      "Nobody is just curious," an officer replied. "You've got to know something."

      The detectives soon told him "somebody's gotta die" in such a highly publicized case.

      "Police officers form a tunnel vision that they think, 'This is our guy,'" Mr. Ochoa explains with the clarity of hindsight. "They're not looking for the truth. They're just trying to find something."

      Mr. Ochoa doesn't know how long he sat in the interrogation room because it was "like Vegas casinos – no clocks."

      He says he asked for an attorney, but he was wrongly told he couldn't have one unless charged.

      Finally, an exhausted Ochoa told them Mr. Danziger had told him about the crime. "At some point you think, 'If I just get out of here, if this will just stop, I can go talk to an attorney,'" he now says.

      That night, he says, the officers took him to a motel for his safety because he'd "cooperated."

      When the two officers picked him up Monday morning, Mr. Ochoa still hoped the system – a judge, a prosecutor, a defense attorney, somebody – would realize a mistake was being made.

      But that morning, officers suggested he'd been the lookout. As his denials continued, so did the specter of the death penalty.

      "By then, I am really mentally exhausted," Mr. Ochoa recalls. "I think back on this and sometimes it just gives me the chills."

      The hours dragged on.

      Through the two days of interrogation, detectives showed him autopsy pictures, pointed to the vein where the lethal injection would be administered, told him that he'd never hug his mother again and that he'd be "fresh meat to prisoners."

      "I kept telling them I didn't know what they were talking about," Mr. Ochoa says.

      Once, an officer threw a chair, which bounced off the wall above Mr. Ochoa's head. "That scared me even more."

      When another officer offered to "bring out the typewriter and help you with your statement," Mr. Ochoa finally gave in.

      His second statement was written with details about the crime apparently provided by the police – such as how the restaurant had been flooded in an effort to destroy evidence. When Mr. Ochoa got a detail wrong, he said, officers went over it with him until it fit the evidence.

      That second statement said Mr. Ochoa and Mr. Danziger entered the building, tied Ms. DePriest's hands behind her back, and raped her repeatedly. Mr. Danziger shot Ms. DePriest, Mr. Ochoa said.

      That statement came after two days and at least 15 hours of interrogations. Mr. Ochoa says he knows people look at him expecting to see shame or guilt for confessing falsely. "But you know what?" he says. "In your mind, you were trying to survive."

      An Austin Police Department review later found "strong indications that investigators supplied Ochoa with information, " but there wasn't enough evidence to prove that the confession was coerced.

      Two of the detectives could not be reached for comment. A third has since died.

      Jamie Balagia, a police officer-turned- defense attorney and the brother of the deceased detective who interviewed Mr. Ochoa, frequently represents police officers. Courts have ruled that it's acceptable for officers "to yell, to scream, to threaten the death penalty," he says, "but never, ever should an officer feed not even one detail."

      Michael Burnett, who represented another of the detectives in subsequent civil suits, which were settled by the city and county with no admission of wrongdoing, said some of the blame lies with Mr. Ochoa. Some also lies with the Police Department "for having an understaffed homicide department that relied too heavily on confessions."

      Any mistakes were unintentional, both men say.

      The plea bargain

      Even after his arrest, Mr. Ochoa thought someone in the criminal justice system would realize an injustice was occurring.

      He says he told his court-appointed attorney, Erik Goodman, why he'd confessed. But he says Mr. Goodman told him there was "no way an innocent person would give such a detailed statement."

      Mr. Goodman declined to comment.

      Mr. Ochoa says he also told a second attorney he was innocent.

      That attorney, Nate Stark, says he can't recall Mr. Ochoa telling him he had falsely confessed. "That's far too long ago," he says.

      But "I never believed that anyone would, No. 1, testify against another person in the compelling way he did and also testify basically against himself, unless a person's committed the crime," Mr. Stark says.

      Mr. Ochoa had already confessed when Mr. Stark took the case. Mr. Stark says he performed his job as he should have.

      Mr. Ochoa says he felt pressured by his attorneys to plead guilty, "probably because they believed I was guilty – but also because it was easier for them; it was less work," he says. And he admits, "They were trying to save my life."

      Mr. Stark denies pressuring any client to plead.

      Mr. Ochoa's mother, who believed in his innocence, also encouraged him to take a plea bargain, he says, because "they're going to kill you." When her health deteriorated, possibly from stress, Mr. Ochoa said, he finally agreed.

      Four months after his confession, Mr. Ochoa took a polygraph exam as part of the plea bargain, Mr. Stark says. When the examiner reported "deception" to the question of whether Mr. Danziger had been the shooter, Mr. Ochoa changed his confession yet again: He identified himself as the killer.

      Mr. Ochoa was offered a life sentence if he testified at Mr. Danziger's trial for aggravated sexual assault. "It was a really hard decision," he says.

      He took it.

      The trial

      Chris Ochoa was a meek, mild-mannered young man. Richard Danziger was an angry one.

      Mr. Danziger is the youngest of four in a military family. His world collapsed when his parents waged a nasty divorce, says his sister, Barbara Oakley.

      Ms. Oakley declined an interview on her brother's behalf. He "doesn't talk to the media," she explains. "He finds them just as much at fault as he does Chris."

      Mr. Danziger dropped out of high school in Beeville but earned a GED. His criminal record was short: five years' probation for forging a $55 check from his mother.

      She pressed charges because "she was trying to prove a point to him," Ms. Oakley says. "I think it just made him angrier."

      That anger probably kept him from caving in when questioned about the murder. "He was more angry than Chris was," Ms. Oakley says. "More defiant, less willing to give in to authority."

      Austin American-Statesman

      Richard Danziger was sentenced to life in prison after Chris Ochoa, seeking to avoid the death penalty, testified that Mr. Danziger played a role in Nancy DePriest's death.

      But with the naiveté of youth, Mr. Danziger didn't seem overly concerned when charged. His attitude was, "I didn't do it, so don't worry about it," Ms. Oakley says.

      He told police he was asleep with his girlfriend at the time of the murder.

      Ms. Oakley, who is five years older, knew her brother wasn't capable of that kind of violence. "You figure the system is going to work," she says.

      It didn't.

      When the state's star witness took the stand to lie about his friend, press accounts, largely from the Austin American-Statesman, painted Mr. Ochoa's testimony as riveting. According to reports about trial testimony, he concocted an elaborate, excruciating tale:

      Mr. Danziger planned the robbery, because he needed cash. Mr. Danziger told Ms. DePriest "to shut up and give him the money." He pointed the gun at her, hit her, pulled off her pants and blouse and made her lie down.

      Mr. Ochoa tied Ms. DePriest's hands with her bra and Mr. Danziger raped her. "He got me to sit down on her shoulders. ... She was kicking. He told her not to move or he'd blow her away."

      Then Mr. Danziger told him, "It's your turn now. ... You're going to have fun with her, too."

      "She was scared, she was crying. She was asking for help. ... Mr. Danziger said, 'You kill her.' ... I pulled the trigger." Then, he said the two men raped her again.

      In contrast, when Mr. Danziger took the stand – wearing a bulletproof vest because of death threats – he was "flat, no passion there," says Judge Bob Perkins, who presided over the trial.

      "I just thought, 'Man, this guy is a coldblooded killer.'"

      Mr. Danziger simply told jurors he didn't know why Mr. Ochoa and other witnesses were lying.

      In about three hours, jurors returned a guilty verdict; they took less than eight minutes to sentence Mr. Danziger to life in prison.

      Days later, Mr. Ochoa received the life sentence he expected.

      Life in prison

      After his conviction, Mr. Danziger's letters home were mostly about working out. The mind-numbing monotony of daily prison life didn't have much chance to sink in because, about a year after he was sentenced, "he got hurt," Ms. Oakley says.

      "Hurt" doesn't begin to describe what happened to Mr. Danziger, who, while watching TV, was attacked from behind by another inmate in a case of mistaken identity. The inmate kicked him in the head repeatedly with steel-toed boots.

      He survived brain surgery, but he wasn't the same cocky young man. Part of his brain had been removed, leaving him subject to seizures, impairing his mobility, causing memory lapses and slurred speech.

      Back in prison, Mr. Danziger found coping difficult. Sometimes he fell out of his bunk, once fracturing his skull. At other times he would get lost, and guards would find him crying in a corner. Sometimes he refused to shower because he was afraid of other inmates. If he didn't take his medication, he suffered from depression and hallucinations.

      In December 1991, Mr. Danziger cut his wrist. Other suicide attempts followed.

      Meanwhile, Mr. Ochoa learned to survive prison life. He was warned to be ready to fight, but it only happened once. "Then they respect you and you settle down," he says.

      His low point came in December 1996. For years, he'd marked the weddings, births and job promotions of old friends through his hometown newspaper.

      "A man usually looks at life when he's 30 and [asks] ... 'What have you done? Where are you at? How successful are you?' " he says. "I was a failure but not through fault of my own."

      When Christmas Eve came and went without a card from his family, Mr. Ochoa says, he broke open a razor and planned to kill himself. A cut across the wrist is "a cry for help," he explains dispassionately. "Up [the arm] will do it."

      But he remembered Catholic nuns telling him no one had the right to take a life, including his own.

      "I dropped the blade in the toilet water, and the rest of the night I just cried," he says.

      Despite his circumstances, Mr. Ochoa managed to make a life in prison. He renewed his faith, joined a prison choir and earned an associate's degree. Today, no prison mementos decorate his law office. But a large, framed picture of an eagle in flight – a gift from law school friends – dominates one wall. "When I was in prison, I would think how nice it would be to be an eagle," Mr. Ochoa says softly, "to be able to go wherever I wanted." The real killer

      Mr. Danziger and Mr. Ochoa were not the only inmates struggling because of the DePriest murder. So was Achim Josef Marino. But Mr. Marino wrestled with guilt.

      That morning in 1988, Mr. Marino, an assistant manager at a flower shop, posed as a soda machine repairman. He talked his way into the Pizza Hut, bound Ms. DePriest's arms with handcuffs, raped her and shot her in the head as she knelt beside a sink.

      Achim Josef Marino

      Ms. DePriest was selected at random, Mr. Marino says. The killing was part of a satanic ritual, as well as an effort "to get back at society."

      Mr. Marino says he showed symptoms of mental illness – torturing animals, destroying property, assaulting others – from an early age. He's been in and out of the legal system for decades.

      In an interview at the South Texas prison where he's serving multiple life sentences, Mr. Marino, who has thick black glasses and the pasty complexion of someone who rarely sees the sun, was articulate and quick. But he's no criminal mastermind.

      Still, no one ever suspected him in the DePriest killing.

      Shortly after the murder, he was arrested in El Paso for carrying a weapon, which is illegal for ex-felons. The gun was the one used to kill Ms. DePriest, but no connection was made.

      A couple of years later, Mr. Marino landed in the Travis County Jail. He received two life sentences for robbery and three more 10-year sentences for sexual assault, possession of a firearm and retaliation.

      While in jail, another inmate told him about the confession in the DePriest killing.

      "That's impossible," he says he replied. "I know the person who did that." In prison, he joined Narcotics and Alcoholics Anonymous and embraced Christianity. Both groups and his new faith mandated that he "make amends to the persons you have hurt in the past."

      Prison conversions aren't unusual, but they don't always last. Mr. Marino says he "decided to make a real conversion, not a shallow one."

      In 1996, he wrote to Austin police and the American-Statesman, confessing to the DePriest rape and murder. "Chris and Richard needed to get out of prison," he says. "They didn't belong here."

      "I don't like innocent people being hurt," he says, in spite of what he did to Ms. DePriest.

      In his letter, Mr. Marino told police where to find the bank bag and handcuffs used in the attack. Authorities collected the evidence – but inexplicably did nothing else.

      Two years later, the Travis County district attorney received a letter.

      "I do not know these men nor why they plead guilty to a crime they never committed. I can only assume that they must have been facing a capital murder trial with a poor chance of acquittal," Mr. Marino wrote. "But I tell you this sir, I did this awful crime and I was alone."

      Mr. Marino surmises Mr. Ochoa confessed after aggressive questioning. He's never met Mr. Ochoa but believes "he was very weak and not very assertive."

      The district attorney's office interviewed Mr. Ochoa in prison. Without mentioning Mr. Marino's name, new investigators asked Mr. Ochoa about a third party to the crime.

      Mr. Ochoa told them there was none. "I did this crime," he reiterated. "I did it, and let me do my time."

      Mr. Ochoa says he stuck to his confession because acknowledgement of your crime helps at parole reviews. He says he also feared that remaining evidence might be destroyed if police realized they'd made a mistake. "I just wanted them to think I'm guilty" while getting help from outside the system.

      In June 1999, he contacted the Innocence Project at the University of Wisconsin. Most requests for assistance are rejected because evidence often isn't available, says co-director John Pray. But in Mr. Ochoa's case, DNA was available.

      False confessions are "a leading cause of wrongful convictions, " Mr. Pray says. "We also knew that the reason that Chris gave was the death penalty.

      In Texas, it's not an idle threat. ... I can see how you confess to try to save your own life."

      After the Innocence Project located the DNA evidence, the district attorney's office tested the material. About then, Mr. Ochoa's lawyers learned that someone else had confessed to the crime.

      In September 2000, Mr. Ochoa was notified that DNA tests excluded him and Mr. Danziger. But they included Mr. Marino.

      Mr. Ochoa was confused.

      "Who's Marino?" he asked.

      Authorities eventually sifted through all the evidence and conflicting stories, and in January 2001, Mr. Ochoa walked out of a courtroom and into the arms of his mother.

      "She was happy," Mr. Ochoa remembers. "She was crying. She wouldn't let go of me."

      Danziger's life

      Richard Danziger's mother was not there to watch her son walk free a few weeks later. His release took longer because officials had to find a place for Mr. Danziger to stay until guardianship could be arranged. His mother had died three months earlier.

      "What happened to you was horribly wrong," Judge Perkins told Mr. Danziger, according to the American-Statesman. "I can't say it enough, but we are sorry for what happened to you."

      FILE 2001/Austin American-Statesman

      Richard Danziger couldn't wait to taste freedom as he walked with his neice Amber Oakley after his release from prison.

      Mr. Danziger, who recovered more than anyone expected, said he didn't want "to be an object of pity."

      When asked about Mr. Ochoa, he told reporters that he was "a pretty stupid dude."

      Mr. Ochoa soon met with him and his sister to "make peace."

      "Richard wouldn't talk to him," Ms. Oakley says. "Richard was in the room but he wouldn't acknowledge him."

      Today, Mr. Danziger "has the best quality of life that he's capable of having," Ms. Oakley says. He can't drive and suffers from short-term memory loss. He may leave the stove on or forget to take his medication.

      Mr. Danziger now lives a few blocks away from her, where he has a staff to look after him. That was made possible by civil lawsuit settlements – $9 million from the city of Austin, $950,000 from Travis County and $500,000 from Mr. Ochoa. A suit against the state is pending.

      The money pays for not only medical care but for the video games he enjoys.

      Sometimes Mr. Danziger visits a friend at the Skyview prison in Rusk, Texas.

      "Most of the staff there knows him," Ms. Oakley says. "They go out of their way to be polite to him. But when he goes to the bathroom, he still goes to the guards to ask permission. It makes me mad."

      Ms. Oakley would like to thank Mr. Marino for his role in releasing her brother.

      Despite the likelihood that he'll die in prison because of his confession, Mr. Marino says, he doesn't regret it. "No, I was deep in the faith," he says.

      He's never heard from either Mr. Ochoa or Mr. Danziger.

      Mr. Ochoa has no desire to contact him.

      "I'm not a fan," he says. "He still took a life. And it was because of him ... me and Danziger lost our freedom."

      Ochoa's life

      As soon as Mr. Ochoa regained his freedom, he got an inkling of how the outside world had changed when a student handed him a cellphone. "I'm like, 'Whoa, this is cool. I'm talking on this little thing without a cord," he remembers.

      FILE/Austin American-Statesman

      Jeanette Popp, Nancy DePriest's mother, comforted Chris Ochoa at a hearing in January 2001 in Austin after DNA evidence led to his exoneration.

      The thrills kept coming – quiet moments at church; a steak instead of prison 'meat substitute'; a trip to Wal-Mart, where he marveled at the merchandise; his first new pair of pants with pockets and a belt.

      "In prison, you don't have pockets" says law professor John Pray. "That was a moment of amazing joy."

      After Mr. Ochoa's release, the only place he felt comfortable was in the company of lawyers, so he applied to the University of Wisconsin Law School.

      His settlement money paid for school and made it possible to open his practice.

      Today, he enjoys a few luxuries such as his $40,000 truck, a flat-screen TV and international travel. But he occasionally flashes back to his days behind bars. If he's pulled over for a traffic violation, he gets nervous. And walking into a police station makes him uncomfortable.

      Gradually, with therapy, he's put those prison years behind him.

      He'll always be an exoneree, he says. "But I want to be respected as an attorney first. ... I want to do more."

      Practicing criminal law with his unique perspective is one way to do that, he says. He also speaks about his experience, about how false confessions occur, and makes occasional appearances with Nancy DePriest's mother, now a friend, in opposition to the death penalty.

      Everyone agrees the person most wronged was Mr. Danziger.

      "What happened to Richard Danziger is a crime," Judge Perkins says. He blames the injustice primarily on police officers who crossed the line by feeding details to Mr. Ochoa to fit the evidence, and partially to Mr. Ochoa, who made the confession.

      The system "worked ultimately," Judge Perkins says, "but it took way too long."

      Mr. Danziger's sister is angry at the system that failed her brother, but not at Mr. Ochoa.

      She says she understands Mr. Ochoa feared for his life, but "it's not right to lie and destroy somebody else's life."

      Still, Ms. Oakley is glad Mr. Ochoa has done well after exonerationbecoming a criminal defense lawyer.

      "Maybe Chris can help somebody else," she says, "to where they're not in the same situation him and Richard were."

      Mr. Balagia, the brother of one of the detectives, says Mr. Ochoa bears some responsibility for the lost years. "If Ochoa had just said, 'Screw you, get your needle,' he couldn't have been convicted," he says.

      Mr. Ochoa says the police are to blame, but he's reflected on how much responsibility he bears. "I used to wrestle with it," he says. "Two percent? Three percent? That's logical, right?"


      The murder of Nancy DePriest left a trail of broken lives – but it also changed the criminal justice system. "Everybody has a horror of convicting the wrong person," says Ronnie Earle, Travis County district attorney. Changes include:

      Austin Police Department: After a series of troubling cases, reforms had already begun in Austin by the time Christopher Ochoa and Richard Danziger were exonerated. Today, Austin is one of a handful of departments that videotapes interrogations. Unlike some states, Texas has not passed a law requiring taping.

      Travis County district attorney's office: After the Ochoa/Danziger wrongful convictions, and two others, Mr. Earle's office reviewed 445 cases dating to the 1970s where DNA evidence had been preserved. No other mistakes were found.

      The office also established a protocol to examine innocence claims.

      State of Texas: Texas is one of 22 states, plus the federal government and the District of Columbia, that provides financial compensation for wrongful convictions. The compensation was increased last year after Mr. Ochoa and others testified before the state Legislature. Today, Texas offers $50,000 for each year of wrongful imprisonment – $100,000 if time is served on death row.

      The state also provides some funding for mental health counseling, medical expenses, child support and attorney fees.

      SOURCE: Dallas Morning News research


      Number of people exonerated by post-conviction DNA testing nationwide since 1989: 213

      Number of states with DNA exonerations: 31

      Number of people exonerated in Texas: 32

      Number of people exonerated in Dallas: 15

      Average length of time served by exonerees: 12 years

      Average age at time of wrongful conviction: 26

      Factors in wrongful convictions:

      77% include eyewitness testimony

      65% include lab error or junk science

      25% include false confessions

      15% include jailhouse informants

      The Innocence Project;
      Dallas Morning News research

      Life after exoneration:

      About 66% are not financially independent

      Almost 50% depend on others for living arrangements

      About 25% suffer from some form of anxiety, depression or post-traumatic stress disorder

      Life After Exoneration Program 2005 study

      How could you do it?

      Do Your Part to Exonerate the Innocent

      By Lee Mather, Managing Editor

      The Innocence Project, a non-profit, national organization that works to identify wrongfully convicted people, comprises attorneys, professors of law, law students, and other experts in the field to work together to exonerate the innocent.

      Shortly after DNA testing was introduced, Barry C. Scheck and Peter J. Neufield, professors at NY-based Yeshiva University’s Benjamin N. Cardozo School of Law, founded the Innocence Project in 1992. The Innocence Project continues to work to expand its dialogue with the forensic science community, which also fights for recognition in the criminal justice system. The hope is that the two will join forces more than ever before to help the wrongfully convicted get the justice that they deserve.

      At Forensic Magazine®, we aim to educate our readers about the importance of exonerating the innocent. No matter what your breadth of knowledge may be, there are ways to contribute and make a difference – large and small.

      The Innocence Project offers an e-mail list for updates and in-depth news and analysis, and extends an invitation to donate – all donations help pay for DNA tests, provide litigation and case intake staffing, and support reform initiatives nationwide. Justin Brooks, Project Director and Institute Professor for the California Innocence Project at the California Western School of Law, claims that their research, which includes evidence searches, crime scene evaluations, transcripts, and witness interviews, drums up many expenses.

      Elected federal and state representatives are also resources for discussing innocence-related policy concerns; call or meet with yours before the legislative session begins to establish a relationship that will most likely lead to the support of legislation to protect the innocent.

      Becoming more knowledgeable about wrongful conviction and using word of mouth are great ways to raise awareness. Going one step further and reaching out to the media to share thoughts and perspectives via a letter to the editor or a phone call to a reporter can also garner attention to the cause.

      This is just a sampling of the number of things anyone can do to get involved – visit What Can I Do to view more suggestions.

      Lee Mather

      Do Your Part

      January 10, 2008

      EDITORIAL - The New York Times

      More Than a Steak Dinner

      A Texas judge was so delighted last week to free a wrongly convicted inmate — after 27 years in prison — that the judge bought him a steak dinner and taught him how to use a cellphone to spread the news. The fact that this happened in Texas, famous for its draconian criminal punishments, was heartening. Most heartening of all was that Dallas County, where it occurred, is turning into a model for the rest of the nation in preserving potentially exonerating evidence in capital cases.

      There are more than two million inmates in American prisons and jails, and some studies estimate that as many as 5 percent may be innocent. There are few procedures in place, however, for the wrongly convicted to put forth evidence to exonerate themselves.

      The Texas inmate, Charles Chatman, who was serving 99 years for rape, was fortunate that Dallas County has saved many specimens. When the specimen in his case, a swab taken from the rape victim, was tested, Mr. Chatman’s DNA did not match. He became the 15th prisoner to be exonerated in Dallas County since 2001 and one of more than 200 inmates nationally freed from prison through the pioneering use of DNA by the Innocence Project, a nonprofit legal group.

      While DNA evidence has captured the popular imagination, Mr. Chatman’s story — and that of many postconviction exonerations — is also in large part about eyewitness misidentification, the most common factor in wrongful convictions. The Innocence Project has proposed some important reforms that states should use in upgrading their criminal justice system. These include improvements in the use of eyewitness testimony and electronic recording of interrogations.

      Better oversight and funding of crime labs is also crucial, along with creation of innocence commissions to manage claims of wrongful conviction. A groundbreaking federal law now grants federal inmates access to DNA testing. Most states and localities are lagging in doing this, and in properly preserving evidence.

      Finally, for all the instant joy, most of the exonerated are never compensated for their lost lifetime. Society owes those who wrongly spend years in prison more than a steak dinner and cheering courtroom.

      Copyright 2008 The New York Times Company

      Steak Dinner

      Dallas man cleared, freed after 27 years in prison

      Dallas man jailed since 1981 exonerated, freed after DNA test

      Friday, January 4, 2008
      The Dallas Morning News
      smcgonigle@dallasnews.com KYE R. LEE/DMN

      After his release, Charles Allen Chatman, with his family and friends, said his only plan was to get something good to eat.

      Surrounded by a small but joyous cadre of family, friends and attorneys, Mr. Chatman walked out of the same Dallas court that sent him to prison in 1981 for an aggravated rape that recent genetic testing shows he could not have committed.

      He is the 15th former convict from Dallas County to make that same walk to freedom based on DNA testing since 2001. He served more time than any of the others. Four of the exonerated men were in the courtroom to witness his release.

      Mr. Chatman acted overwhelmed at times during a brief court hearing. He looked small in his new dark suit. His eyes darted nervously. His voice barely rose above a whisper. He told reporters his only plan was to "get myself something good to eat."

      He is 47 years old now. He hasn't been free of state custody since Ronald Reagan was inaugurated as president in January 1981. He will have to relearn how to use a knife or fork to cut his food. He had not seen a cellular telephone until he called his family Wednesday to tell them the news that he had been cleared.

      With his aunt, Ethel Bradley, seated beside him, he thanked his family for never giving up on him. He also thanked his attorneys and state District Judge John Creuzot for helping to prove he could not have been the man who raped a former neighbor in her Oak Cliff home.

      Judge Creuzot pushed for the specialized DNA test that cleared Mr. Chatman after becoming concerned that he might be innocent. At the hearing, the judge introduced Mr. Chatman to a dentist who has agreed to repair his teeth and to prisoner advocate Joyce Ann Brown, who herself was wrongly imprisoned for almost a decade.

      "I'll do anything and everything I can to help you," the judge said.

      With Mr. Chatman watching, the judge signed documents that accepted the DNA results, released him on a personal bond, declared him to be innocent of the rape and recommended that the Texas Court of Criminal Appeals affirm that judgment.

      The only time Mr. Chatman's temper flared was when he was asked about the victim, who provided the identification that formed the backbone of the prosecution's case.

      The victim is now 77 years old and living in a nursing home. Prosecutors said she had little reaction when told Wednesday that the man she accused had been cleared.

      Mr. Chatman said he and the victim lived five houses apart for 13 years and knew one another by sight and by name. His arrest, he contended, was racially motivated. He was black and the victim was white.

      "I don't believe it was an accident," he said. "I believe it was animosity."

      Mr. Chatman, who was a 20-year-old, part-time janitor on probation for burglary at the time of the rape, always maintained his innocence. He told the jury that he was working as far away as Arlington the night the assault occurred near the Dallas Zoo.

      The lead prosecutor at the trial called Mr. Chatman a liar and insisted that since the victim was a nurse, she was a trained observer and incapable of making a mistake.

      The trial judge, John Mead, said there was nothing to mitigate the rape. He sentenced Mr. Chatman to 99 years in prison.

      Mr. Chatman said he had been eligible for parole three times, most recently in 2006. Each time he was denied release, he said, because he refused to admit his guilt.

      "I had too much family that loved me," he said. "I wanted to make them proud."

      When a state law changed in 2001 to allow prisoners to request DNA tests, Mr. Chatman began filing for relief. Two times he was approved for genetic testing, and two times the results came back inconclusive.

      He was told after a test in 2004 that a third test probably would consume all the genetic material available from the rape kit performed on the victim. Until a few months ago, he had decided to wait until DNA technology could be improved.

      The test that cleared him, known as a Y-STR test, is capable of identifying genetic markers with microscopically small samples of genetic material. The test showed that sperm extracted from the victim could not have come from Mr. Chatman.

      District Attorney Craig Watkins, who has made DNA-based exonerations a hallmark of his first year in office, apologized to Mr. Chatman, shook his hand and praised his long effort to clear himself.

      "You are an example of how justice is supposed to work," Mr. Watkins told him.

      Amarillo attorney Jeff Blackburn, president of the Innocence Project of Texas, which had assisted Mr. Chatman, said the wrongful conviction was not an anomaly.

      "The remarkable thing about this case is it's not that remarkable," he said. "What happened in Dallas County 20 years ago is equally common today throughout the state."

      Patterns behind the wrongful convictions are already apparent, he said. He listed racial bias, eyewitness identifications and inadequate defense services for the poor.

      While he praised Mr. Watkins and Judge Creuzot for their efforts to correct the criminal justice system's past mistakes, he said many more reforms are needed.

      He said he took offense at notions that the system worked for Mr. Chatman.

      "It works here," Mr. Blackburn said. "But I can tell you about 150 counties in this state where it doesn't work at all."

      23 Yrs, Innocent in prison

      Jan. 2, 2008

      Lawyers say DNA testing clears another Dallas County inmate

      By PAUL J. WEBER
      Associated Press

      DALLAS — A man given a life sentence in 1981 for raping a woman learned Wednesday that DNA evidence has cleared his name, according to attorneys who have helped free 14 other wrongfully convicted inmates in Dallas County.

      Charles Chatman, 47, is expected to be released from prison Thursday after serving more than 26 years, said Natalie Roetzel of the Innocence Project of Texas.

      Chatman would become the 15th inmate from Dallas County since 2001 to be freed by DNA testing, which the Innocence Project says is more than any other prosecuting office in the nation.

      "Charles has always maintained his innocence," said Michelle Moore, a Dallas County public defender.

      Jamille Bradfield, a spokeswoman for the Dallas County District Attorney's Office, confirmed the Thursday morning court hearing in which Chatman is expected to win his release.

      Since 2001, DNA tests have exonerated at least 30 wrongfully convicted inmates in Texas, the most of any state, according to the Innocence Project, a New York-based legal clinic that seeks to uncover wrongful convictions.

      Chatman was 20 when the victim, a young woman in her 20s, picked him from a photo lineup, Moore said. His nearly 27 years in prison for aggravated sexual assault make him the longest-serving inmate in Texas to be freed by DNA evidence, she said.

      Mike Ware, who heads the Conviction Integrity Unit in the district attorney's office, said the rape occurred during a break-in at the victim's house.

      "I'm not sure why he ended up on that photo spread to begin with," Ware said.

      Ware said Chatman would likely be released on a personal recognizance bond until the Texas Court of Criminal Appeals makes an official ruling on his case.

      Moore said Chatman applied for DNA testing in 2004 but was told the process could be risky. The only evidence containing DNA was from a vaginal swab of the victim, Moore said, and a single test would consume the entire sample. An inconclusive test would exhaust all evidence.

      Chatman was again warned of the gamble when he reapplied for testing early last year.

      "This is a guy who's had to face horrible decisions," Moore said.

      Dallas County District Attorney Craig Watkins has started a program in which law students, supervised by the Innocence Project of Texas, are reviewing about 450 cases in which convicts have requested DNA testing to prove their innocence.

      One of the inmates helped freed by the Innocence Project, Clay Reed Chabot, is expected to be retried. DNA tests refuted the testimony of a key prosecution witness in the case, but prosecutors say another DNA test did not exonerate Chabot in the murder.

      Associated Press Writer Jeff Carlton contributed to this report.

      DNA testing clears Inmate

      Dec. 30, 2007

      Taylor starts new chapter with new bride

      'We're just going to get in the car and ride. We're married now. That's what's important.' — Ronald Taylor

      Copyright 2007 Houston Chronicle

      ATLANTA — More than 20 years after they forged a connection that endured his wrongful imprisonment for a Houston rape, Ronald Taylor and Jeannette Brown wed Sunday in a simple ceremony that marked another passage of progress for the recently exonerated man.

      The groom wore a three-piece white suit with black pinstripes; the bride wore ivory. They held hands in her brother's basement and repeated vows under wisps of crepe paper that softened the stark, utilitarian surroundings.

      The ceremony, attended by 15 people, came together with the efforts of family and friends.

      Brown's brother officiated. Her sister-in-law assembled the three- tiered cake. The Georgia Innocence Project, a legal clinic that seeks to free the wrongly convicted, helped with flowers. An Atlanta man, himself exonerated of a rape in 2004, stood as best man. Anonymous donors, moved by the couple's commitment, donated money for Brown's dress and gave Taylor the ring he placed on her finger more than 20 years after they first talked of marrying.

      "This day has been a long, long time coming," Taylor said. "Jeannette, she has been loyal to me throughout all of this, and I want to make her happy. That is what I want to do with my freedom."

      Their union represents the bond unbroken between Taylor and Brown, the support that helped him emerge from 14 years of wrongful imprisonment in October free of bitterness and anger. It also signifies Taylor's advance on the uncertain path of reinventing his life.

      Victim's ID only evidence

      Taylor served time for the 1993 rape of a Houston woman, who was attacked at knifepoint in her Third Ward home, less than one mile from where Taylor was living. The victim identified Taylor as her assailant in a police lineup, in which he was included because a neighbor said Taylor had been in the area that night.

      With no evidence except the victim's identification, Harris County prosecutors proceeded with a case against Taylor. He maintained his innocence. An analyst from Houston's troubled crime lab testified that there was no forensic evidence to support Taylor's claims. Jurors found him guilty, and a judge sentenced Taylor to 60 years in prison.

      This year, with the aid of his family, lawyers from the New York Innocence Project and a crime lab scandal that cast doubt on thousands of criminal cases, DNA tests cleared Taylor. Scientists at a private lab analyzed evidence that the Houston Police Department failed to find when it originally handled the case. They found no evidence pointing to Taylor and instead identified the DNA profile of another man, a rapist currently in a Texas prison for failing to register as a sex offender.

      Prosecutors agreed to Taylor's innocence, and a judge ordered his release from prison Oct. 9. Ten days later, he was on a plane bound for Atlanta and a reunion with his fiancee, Jeannette Brown.

      Stability and peace

      Brown and Taylor had met in the 1980s when they were living in Atlanta. Taylor, a troubled wanderer, found stability and peace with Brown, a nursing assistant and mother of three, whom he had planned to marry before he was accused of rape.

      Brown remained loyal to Taylor through his incarceration, traveling to Texas by bus to visit him at the Coffield Unit, the Tennessee Colony prison where he served most of his time, and frequently writing letters.

      "I always knew that someday the truth would be known and he would be set free," Brown said. "My faith never wavered."

      After Taylor was released, he began to rebuild his life in Atlanta, starting with the most basic of tasks that dominate the lives of the recently exonerated: finding work, getting a driver's license, finding transportation. Taylor secured a maintenance job for a posh restaurant chain and, in December, purchased the gleaming black pickup he had eyed since his release.

      He also monitored the case against him. The Court of Criminal Appeals, Texas' highest court for criminal cases, ruled Taylor "actually innocent" this month, making Taylor the 30th wrongful incarceration and DNA exoneration in Texas. The ruling clears the way for him to apply for a pardon and to receive some $700,000 in reparations, if he agrees not to sue over his ordeal.

      As Taylor worked to reclaim his life, he also planned to honor his promise to marry Brown. The two applied for a marriage license and debated dates and plans before settling on a small gathering with family and friends around Christmas. Brown's sister, Claudia Ratcliff, who introduced the couple in 1984, traveled from Colorado to make the ceremony. Absent was Taylor's large Texas family.

      "My mom just wants to see us married after all this time," Taylor said. "She did not want us to wait for a time when we could get everyone together. Soon, we'll get to Texas and renew these vows for them."

      Brown's nephew, Donald Adams, escorted her to the makeshift altar as witnesses hummed the wedding march. She wore a long skirt and jacket, new silver shoes and a double helix bracelet on her left wrist, representing the DNA that freed her groom.

      The Rev. Marvin Adams, Browns brother, led the short, spirited ceremony, filled with laughter and audience participation as he preached about the union of husband and wife.

      "Oh, Lord," Adams prayed, "They have walked a long path to get here.

      Let they who were once two, now become one."

      After the ceremony, the couple posed with friends and family, shouting "freedom" before each picture was snapped. The family caravaned to a Golden Corral for a post-wedding lunch, and then the couple drove off in Taylor's new truck for parts unknown.

      "I had my thoughts on the wedding and hadn't even begun to think about what we would do after," Taylor said. "We're just going to get in the car and ride. We're married now. That's what's important."


      New Life with Bride

      Dec. 12, 2007

      Debt to society

      Texas is a leader in paying debt to wrongly imprisoned, but we still owe them the tools to survive.

      Copyright 2007 Houston Chronicle

      ''I decided, if I ever got another chance," said the wrongly imprisoned Texan Ronald Gene Taylor, "I would do things right." After 14 years behind bars, Taylor finally has been given his chance, released after a sentence sealed by Houston's corrupt, inept former crime lab. Taylor is eligible for up to $700,000 for his lost years.

      But succeeding in his new life will take more than money.

      Taylor is one of more than 200 inmates exonerated by DNA evidence nationally. He is fortunate in that Texas has now become one of the most responsible states in compensating the wrongly convicted for their stolen lives. Even so, Texas — like all but three states — offers its wronged citizens no job training, no health insurance and no mental health support. Without them, many will not succeed.

      The Legislature in its last session doubled the amount the state compensates those it wrongly imprisoned: Texas now grants $50,000 for each year wrongfully confined. Twenty-eight states give no compensation at all; some that do, offer truly insulting sums — like Louisiana, which gives those its criminal justice system victimized $15,000 per year, with a cap of $150,000.

      The direct credit for Texas' policy goes to state Sen. Rodney Ellis, according to the nonprofit Innocence Project. Ellis, a Houston lawmaker, worked for years to make the compensation more just, often bringing exonerees to testify at the Statehouse in Austin.

      "You had legislators who looked into the eyes of these individuals who lost 10 or 15 years of their lives ... and they felt an obligation," recalled Innocence Project spokesman Eric Ferrero.

      But even financial compensation can't correct the engulfing handicaps that exonerees, including Taylor, now face. To start with, his payment may take up to two years to arrive — if he receives any money at all. Taylor is eligible for compensation, but first the governor has to grant him what is called a pardon for innocence (which Taylor is expected to get).

      Still, that's two years in which a traumatized man with few skills and a blot on his name must try to support himself — and two years in which his past destructive habits could easily catch up with him.

      Most exonerees, a recent New York Times series reported, rely on family, friends or even strangers as they await their recompense.

      When they do get it, they often squander it, many times through ignorance.

      That is why the Innocence Project now offers financial guidance to those exonerees it helps, as well as a special fund to help them survive while they wait for their checks from the state. This year, the project added a third component: a full-time social worker, to be joined by a second next year. The caseworkers are especially needed to help the wrongly imprisoned find pro bono health care, since many leave prison with serious untreated health problems.

      The Innocence Project also has a special exoneree fund that provides counseling when other sources are absent. As Chronicle writer Roma Khanna's recent story showed, even exonerees like Taylor — who was buoyed during years in prison by his fiancée — face dizzying emotional challenges. How to rebuild a relationship interrupted by years of separation? How to overcome grief and rage for all the wasted time? How to stave off depression, anxiety and paranoia, all aggravated by a life in prison?

      Simply having been in prison, even wrongly, creates a stigma that can make job-hunting daunting. Add to this the reality that many exonerees went into their sentences with limited education or skills, and the prospects for finding work unaided can be bleak.

      Texas, which must bear the responsibility for its wrongful imprisonments, should look to the Innocence Project for ways to exonerate itself. A full-time social worker would help the system's 30 current exonerees navigate the bewildering new life they return to.

      Free tuition at community college and state schools, as Montana offers, would train intellects wrongfully deprived behind bars. Access to health care, mental and physical, would help repair minds and bodies scarred by prison. Money is the state's symbolic way of atoning for its wrongs to innocent citizens. But only physical and mental support will give men like Ronald Taylor the chance to truly be free.

      Debt To Society

      Innocence Project wants more DNA tests for Dallas convicts

      November 26, 2007
      The Dallas Morning News

      The Dallas County district attorney's office has agreed to DNA testing for seven convicted inmates out of 57 cases that were previously denied testing, the district attorney and the Innocence Project of Texas said Monday.

      Attorneys from the Dallas County district attorney and the public defender's offices must still review about 350 more requests that were denied by the previous district attorney.

      Dallas County has more exonerations than any other county in the United States. DNA tests have cleared 14 men since 2001 although one man has yet to be officially exonerated by the courts. Unlike many other counties, Dallas County preserved its evidence following convictions.

      Mike Ware, who oversees the district attorney's public integrity unit, said it's impossible to speculate how many inmates could eventually be exonerated or how many tests the district attorney's office will agree to.

      The tests are performed by a private lab, which is quicker than the Texas Department of Public Safety lab and can provide additional tests.

      Mr. Ware said the district attorney's office agrees to DNA testing if it could show the convicted person was not involved. He said the DA's office is especially interested in tests that could lead to the arrest of additional perpetrators or the actual perpetrator.

      Natalie Roetzel, executive director of the Innocence Project of Texas, also announced that the Texas Bar Foundation donated $25,000 to aid the investigation of innocence claims and pay for DNA testing.

      An additional $15,000 was raised at a fundraiser ball held Saturday.

      The Innocence Project is a nonprofit organization that works to free inmates its attorneys believe were wrongly convicted.

      Dallas County District Attorney Craig Watkins said donations were being used to pay for DNA testing – which costs about $5,000 per inmate.

      "We don't expect to have to use government funds, but if we are unsuccessful [at raising money], we will," he said.


      November 25, 2007

      A Long Road Back After Exoneration, and Justice Is Slow to Make Amends


      Christopher Ochoa graduated from law school five years out of prison and started his own practice in Madison, Wis. He has a girlfriend and is looking to buy a house.

      Michael Anthony Williams, who entered prison as a 16-year-old boy and left more than two years ago as a 40-year-old man, has lived in a homeless shelter and had a series of jobs, none lasting more than six months.

      Gene Bibbins worked a series of temporary factory jobs, got engaged, but fell into drug addiction. Four and a half years after walking out of the Louisiana State Penitentiary at Angola, he landed in jail in East Baton Rouge, accused of cocaine possession and battery.

      The stories are not unusual for men who have spent many years in prison. What makes these three men different is that there are serious questions about whether they should have been in prison in the first place.

      The men are among the more than 200 prisoners exonerated since 1989 by DNA evidence — almost all of whom had been incarcerated for murder or rape. Their varied experiences are typical of what The New York Times found in one of the most extensive looks to date at what happens to those exonerated inmates after they leave prison.

      The Times worked from a list of DNA-exonerated prisoners kept by the Innocence Project — widely regarded as the most thorough record of DNA exonerations. The Times then gathered extensive information on 137 of those whose convictions had been overturned, interviewing 115.

      The findings show that most of them have struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.

      Typically, testing of blood or semen from the crime scene revealed DNA pointing to another perpetrator. The authorities in some of the cases have continued to insist they convicted the right men, and have even fought efforts by some of them to sue for money.

      About one-third of them, like Mr. Ochoa, found ways to get a stable footing in the world. But about one-sixth of them, like Mr. Bibbins, found themselves back in prison or suffering from drug or alcohol addiction.

      About half, like Mr. Williams, had experiences somewhere between those extremes, drifting from job to job and leaning on their family, lawyers or friends for housing and other support.

      And in many cases the justice system has been slow to make amends.

      The Times researched the compensation claims of all 206 people known by the Innocence Project to have been exonerated through DNA evidence as of August 2007. At least 79 — nearly 40 percent — got no money for their years in prison. Half of those have federal lawsuits or state claims pending. More than half of those who did receive compensation waited two years or longer after exoneration for the first payment.

      Few of those who were interviewed received any government services after their release. Indeed, despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance-abuse treatment, housing assistance and other services — than some states offer to paroled prisoners.

      "It's ridiculous," said Vincent Moto, exonerated in 1996 of a rape conviction after serving almost nine years in Pennsylvania. "They have programs for drug dealers who get out of prison. They have programs for people who really do commit crimes. People get out and go in halfway houses and have all kinds of support. There are housing programs for them, job placement for them. But for the innocent, they have nothing."

      The Times's findings are limited to those exonerated inmates the newspaper reached and do not represent the experiences of exonerated prisoners everywhere. (More on the research and a full list of contributing reporters are at nytimes.com/ nyregion.)

      Most of the 137 exonerated inmates researched by The Times entered prison in their teens or 20s, and they stayed there while some of their peers on the outside settled on careers, married, started families, bought homes and began saving for retirement. They emerged many years behind, and it has been difficult to catch up.

      To be sure, many in the group were already at a disadvantage when they entered prison. More than half had not finished high school.

      Only half could recall holding a job for more than a year. Some admitted to abusing drugs or alcohol or running with the wrong crowd.

      But dozens of them had been leading lives of stability and accomplishment. More than 50 had held a job for more than two years in fields as varied as nursing, mail delivery, welding, fishing, sales and the military. Five had college degrees, and 20 others had completed some college or trade school.

      Still, many of those were as unlucky as the most modestly educated when it came to finding work after their release. Most found that authorities were slow to wipe the convictions from their records, if they did so at all. Even newspaper articles about their exonerations seemed somehow to have had a negative effect in the public's mind.

      "Any time that anyone has been in prison, even if you are exonerated, there is still a stigma about you, and you are walking around with a scarlet letter," said Ken Wyniemko, who spent more than nine years behind bars in Michigan after a rape conviction.

      Before his conviction, he managed a bowling alley. After his release in 2003, he spent two fruitless years job hunting, and he estimates he applied for at least 100 jobs. Today, he lives off money he received in a legal settlement with Clinton Township in Macomb County, Mich.

      Many of the jobs the newly released found proved short-lived, often lasting no more than a year. A few ex-prisoners like Kevin Green, who went from bingo caller to utility crew supervisor, changed jobs to advance their careers, but most drifted from job to job with little gain in status or salary.

      Ryan Matthews, with a fiancée and 2-year-old to support, lost a series of jobs after he was exonerated from Louisiana's death row. He lost a shipyard job after his employer saw a news report about his exoneration on television.

      Short of suing, few received substantial compensation from the government.

      Given the hodgepodge of state compensation laws, an exonerated prisoner's chances of receiving any significant sum depend on the state where he was convicted and whether he can find a lawyer willing to litigate a difficult case. One man who served three years in California sued and won $7.9 million. Another, who had served 16½ years in Texas, filed a compensation claim and received $27,850.

      President Bush and Congress moved in 2004 to improve the compensation the wrongly convicted received, adopting legislation that increased payments for people exonerated of federal crimes to $50,000 per year of imprisonment, and $100,000 per year in death penalty cases. The legislation included a clause encouraging states to follow suit, at least for wrongly convicted prisoners who had been on death row.

      Lawyers and others involved with helping the exonerated have seized on that recommendation in pushing for improved compensation laws nationwide. But their efforts have gained little.

      Only one state — Vermont — has adopted a compensation law since the bill passed. Twenty-one other states and the District of Columbia already had procedures for compensating the exonerated; half cap awards below $50,000 per year of incarceration.

      Of the 124 prisoners exonerated through DNA and known to have received compensation, 55 got at least $50,000 for each year in prison. And most of them sued in federal court, claiming their civil rights had been violated by overzealous police officers, crime lab specialists or prosecutors. Lawyers say such cases are very difficult to win.

      Twenty-five were convicted in states that provide no compensation and have collected nothing. Among them is Mr. Moto, who said he struggled this summer to raise his 10-year-old daughter on $623 a month in disability payments.

      "You give no compensation to none of those guys who were wrongfully incarcerated and proved their innocence?" he said in an interview. "How can you say we believe in justice?"

      Copyright 2007 The New York Times Company

      After Exoneration

      ‘After Innocence,’ then what?

      Documentary follows ‘exonerees’ who turn activists
      by DANA DUGAN

      Nick Yarris, who spent 23 years on death row in solitary confinement for a murder he did not commit.

      One of the biggest nightmares a person can live through has to be being arrested, tried, convicted and jailed when you are in fact totally innocent.

      The long battle to prove your innocence can steal years away from you. For many people who died in jail before DNA testing was available, the battle became a life sentence.

      Today, DNA testing is one of the most effective means of proving innocence other than having the real culprit confess.

      However, despite the widespread acceptance of DNA testing as a reliable form of forensic evidence, many prisoners don't have the means to secure testing on evidence in their case. Sometimes that comes down to the state in which a person is convicted.

      As of July 1, 2007, 42 states have some form of law permitting inmates access to DNA testing. The other eight states have no law granting such access. OK, let's say you are exonerated, based on DNA testing. Then what happens?

      "After Innocence," an award-winning documentary directed by Jessica Sanders, tackles just this touchy subject. Hosted by The Community Library, it will be screened at 2 p.m. Sunday, Nov. 11, at the Magic Lantern cinema in Ketchum.

      The Community Library hopes that high school students will make a point of attending this important film. The proceeds will benefit the Ketchum library.

      "Most of these guys went in (to prison) right after high school at 19, 20 years old," Sanders said. "I say to students, 'Imagine the duration if from now on you were locked away.' It could happen to anybody. It really can happen. When students have seen it, they're really angered by the way our system works. You see it in a really intimate fashion."

      The film tracks the lives of seven men through different stages of their resettlement into society. Dennis Maher of Lowell, Mass., spent 19 years proclaiming his innocence for three rapes in Massachusetts. Calvin Willis of Shreveport, La., spent almost 21 years in prison. Scott Hornoff of Providence, R.I., was a cop when he was arrested for murder. Released in 2002, after the real killer confessed, he was sent to Afghanistan last week to help train Afghanistan solders.

      Sounding concerned, Sanders said, "It's very dangerous." She has remained in touch with the men featured in the movie and involved in their lives and battles to some degree.

      Vincent Moto, of Philadelphia, who was released after more than 10 years, was never compensated nor granted an apology by the state of Pennsylvania. He was convicted on the basis of eyewitness misidentification, said to be the most common reason for mistakes made in wrongful arrests and convictions.

      "Right now we're doing a fundraising effort for him," Sanders said. "His neighbor's house burned down and burned half his house too. He needs money to rebuild. He's a single dad and a great person. He's had so many unfortunate things happen."

      Nick Yarris, also of Philadelphia, now lives in London, and has a book deal with Harper Collins, Sanders said. "He's doing really well."

      Herman Atkins, another former prisoner, just received $2 million in compensation from the state of California.

      The only man still in prison during the filming of "After Innocence" and ultimately released is Wilton Dedge, of Cocoa Beach, Fla. The first exoneree in Florida, he still has a criminal record.

      "If he didn't have his family he'd literally have been homeless," Sanders said. "The Florida Legislature passed a private compensation bill just for him and recently gave him $2 million dollars.

      "So he's fighting on behalf of other others. Everyone continues to fight the battle and trying to help others. We're part of this larger community. A couple months ago we all celebrated the 15th anniversary of the Innocence Project. Fifty exonerees were there at a big gala event in New York City."

      Sanders will be in attendance to answer questions following the screening of the film at the Magic Lantern. Along with Marc Simon, Sanders also wrote and co-produced the film in association with The American Film Foundation.

      At the time, Simon was a student the Benjamin N. Cardozo School of Law who was working with the Innocence Project. He brought the idea to Sanders. Lawyers Barry Scheck and Peter Neufeld, founders of the Innocent Project—which has helped to exonerate more than 150 people through the use of DNA testing in the last decade—are featured in the documentary, along with human rights activist Lola Vollen, co-founder of the Life After Exoneration Program.

      The film doesn't delve deeply into the political nature of the situation but rather explores the human toll that wrongful imprisonment can have on people, both within prison and once outside, after being exonerated.

      "The main idea is that innocent people get nothing," Sanders said. "Not even an apology."

      One of the most dramatic stories in the film is that of Dedge.

      "He fought for 15 years to get DNA testing done," Sanders said. "The prosecutors resisted. Even after he was proved innocent, he still sat in prison another three years. The DNA proved he was innocent but once you're convicted it's very difficult. You get nothing; guilty people get more social services (when released) than the exonerated."

      "After Innocence" premiered at Sundance Film Festival in 2005 and won the Special Jury Prize. It also won top awards at the Seattle Film Festival, Boston Independent Film Festival, Nantucket Film Festival, Newport Beach Film Festival, and Full Frame Documentary Festival.

      "The fight continues on, on a more national level," Sanders said. "The film has been used as a major educational tool by different states, and law schools. It's helping to open dialogue. When we stared there were 127 exonerees. Now there are 210."

      In 2002, Sanders produced the documentary "Sing!" which was nominated for an Oscar and Emmy and aired nationally on PBS. Her next project is a film she will be shooting in Brazil about community samba schools that participate in Carnival, Brazil's annual festival.

      Then What?

      Nov. 1, 2007

      More than 150 inmates want evidence reviewed

      Copyright 2007 Houston Chronicle

      More than 150 inmates whose convictions may be based on faulty Houston crime lab evidence have asked that their cases be reviewed, a judge said Thursday.

      Since Oct. 22, Judge Mary Bacon, a retired state district judge overseeing the review of 180 convictions with flawed blood-typing evidence, has conducted hearings with all inmates currently incarcerated in those cases. Of 160 inmates contacted at various Texas prisons via video conferences, all but four agreed to have their cases reviewed.

      The hearings are the first step in a plan that Harris County's 22 criminal state district judges developed last month to review cases with problematic blood-typing evidence from the Houston Police Department's crime lab.

      A team will review the 156 cases to determine how essential HPD's analyses were to securing the convictions, according to attorney Bob Wicoff. Wicoff will be joined by two other lawyers, who should be named next week, and volunteers including other lawyers, students and academics.

      "I am trying to marshal all the help I can get for this undertaking, " said Wicoff, who represented Josiah Sutton, the first man exonerated in the HPD crime lab scandal.

      The team will contact defendants they have not yet reached.

      Lawyers are expected to report to Bacon in early December on who has been assigned to what case and what progress has been made.

      "With past reviews of the DNA cases, it just laid around and lawyers let some cases linger," Wicoff said. "(Bacon) wants to avoid that and regularly measure our progress."

      The review of these 180 serology cases is the latest in a string of reviews of work from the HPD crime lab, which has been under scrutiny since 2002 when news reports and an audit exposed errors in the crime lab's DNA analyses.


      150+ Inmates

      Friday, October 19, 2007

      What Would Jesus Do about uncorroborated snitch testimony?

      It really is time right now to demand corroboration for testimony in court by criminals who receive leniency for their own crimes. I don't think it overstates the case to say the integrity of the entire justice system is at stake.

      I can't stand to read too many more stories' like Clay Chabot's. He's the latest Texas convict for whom a new trial was ordered after DNA evidence concluded the primary witness against him in 1986 committed "aggravated perjury," according to Mike Ware of the Dallas County DA's office.

      Bottom line, the real rapist accused another man who may not have even been there. The man he accused spent 21 years in prison, while the snitch walked, sentenced to time served on a misdemeanor theft charged. Reported the Houston Chronicle ("DNA evidence leads to new trial for inmate after 21 years," Oct. 19):

      [Gerald] Pabst testified that he helped tie up Crosby [the victim], but that Chabot raped and killed her. Chabot told police he had not been involved in Crosby's death and was home with his family. But Pabst testified that Chabot was there seeking revenge for a drug deal gone bad.

      Chabot was convicted of the rape and murder, and Pabst was released for time already served on a misdemeanor theft charge, according to the district attorney's office.

      The argument for allowing compensated snitch testimony (paid for by either cash or reduced culpability for crimes they've committed), is that Texas law currently leaves assessing witnesses' credibility entirely to a jury. So somehow, the argument goes, it would take away jurors' "rights" to require corroboration.

      I say thats a bunch of horsehockey. Prejudicial evidence may be excluded from the jury's consideration for any number of reasons. More importantly, the "let the liars testify" argument ignores solid research that shows deception and lying often succeeds. People are commonly fooled by liars. You CAN fool some of the people some of the time, not infrequently including prosecutors, judges and jurors.

      At the Deception blog recently I was interested, if unsurprised, as a parent, to learn that, "according to a study by Leif A. Strömwall, Pär Anders Granhag and Sara Landström, by the ages of 11-14, children are able to deceive adults 54% of the time, when given the chance to prepare their lies (and even when they can't prepare the figure is 43% …)." Indeed, even babies are able to deceive their parents!

      How much more effective would an adult liar be, especially one hyper- motivated because their own life and freedom were at stake?

      Given that some people clearly are effective, believable liars, well- practiced from an early age, how can a conviction be obtained "beyond a reasonable doubt" when we rely on jurors' assessment of the credibility of someone they don't know, particularly when that person is compensated and has a huge motivation to lie?

      Clay Chabot's case shows how deal-cutting for testimony can corrupt the judicial process, suborn perjurious testimony and ultimately cause wrongful convictions. Adding insult to injury, after the trial Dallas prosecutors let the snitch who actually committed the rape free to return to the community, where one speculates he probably went on to commit more crimes.

      Requiring corroboration for eyewitnesses, even those who aren't compensated, dates as a legal concept at least back to Mosaic Law which required that, "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. " (Deuteronomy 19:15) Christ formally affirmed this doctrine as part of the New Testament covenant in Matthew 18: 15- 16, as the Apostle Paul did in Second Corinthians.

      I don't know the history about when, why, or by whom requirements for corroboration of witnesses were discarded from western legal and religious canons, but every time I see a case like Clay Chabot's, I think the rule needs to stage a comeback.

      Posted by Gritsforbreakfast

      Labels: DNA, Innocence, Snitching

      Oct. 6, 2007

      Dreams coming true: freedom, marriage

      Taylor's first obligation is to the woman who waited for him for 14 years

      Copyright 2007 Houston Chronicle

      TENNESSEE COLONY — Ronald Gene Taylor was engaged to be married 14 years ago when Houston police rousted him out of bed on a summer morning and told him he'd been accused of raping a woman who lived nearby.

      "They took me to jail that day and I ain't been out since," Taylor said Friday during an interview at a Tennessee Colony prison where he has been serving a 60-year sentence for a crime that new DNA evidence shows he did not commit.

      He expects to leave Texas for Georgia, once prosecutors follow through on a promise to recommend his release, and finally marry the woman who has waited for him all this time.

      "The first thing I am going to do is get to Atlanta to see Jeannette and marry her like I should have years ago," Taylor said of his fiancee, Jeannette Brown, who has stood by his side throughout his ordeal. "Knowing that she was there for me all this time was such a blessing."

      Brown, a 51-year-old nursing assistant, said she never once considered the possibility that Taylor was guilty.

      "I know that man, and I know he is not capable of doing something that awful," she said by telephone Friday from Atlanta.

      Freedom now should be just days away for Taylor, whose name was cleared by DNA tests completed this summer. Next week he will begin the journey from the Coffield Unit to Houston, where a judge is expected to release him on a personal recognizance bond.

      Video lineup

      Taylor, 47, is a quiet man with a quick smile whose face is framed with short salt-and-pepper hair more white than when he first was charged in 1993. During an hourlong prison interview he spoke of his conviction, time in prison and dreams interrupted.

      Taylor was accused of attacking a woman while she slept in her Third Ward home. Taylor, who lived less than a mile from the site of the rape, was placed in a video lineup after a neighbor told police he had seen him in the area the night of the assault. The victim identified Taylor and he was charged.

      Taylor maintained his innocence. "I was so sure that the truth would come out that they knew it was not me that I told my lawyer not to even tell me if (prosecutors) offered a plea bargain," Taylor said. "I did not want to hear it."

      The case went to trial, with the victim's identification serving as the crux of the case against Taylor. An analyst from the Houston Police Department also testified, telling jurors that there was no semen on a sheet from the crime scene and that Taylor could not be eliminated as a suspect through DNA testing. Jurors sentenced Taylor to 60 years.

      But 12 years later, with the assistance of the New York-based legal clinic the Innocence Project, Taylor won the right to have the sheet retested. A private lab, ReliaGene Technologies Inc., re-examined the samples this summer and found there indeed was semen on the sheet.

      The profiles they identified pointed not to Taylor but another man, Roosevelt Carroll.

      Taylor is the third man to be exonerated after new forensic evidence discredited the work of the troubled HPD crime lab. The lab's analyses have been under scrutiny since late 2002 when news reports and an independent audit uncovered poorly trained personnel and shoddy work in the lab's DNA division.

      Since then, errors have been exposed in the work of four other lab divisions, including those that test firearms and illegal drugs, casting doubt on hundreds of criminal convictions and affecting the criminal justice system in Harris County and statewide.

      Harris County prosecutors this week agreed that Taylor is innocent and should be freed from prison. After Taylor's release, his lawyers and prosecutors will file paperwork with the state Court of Criminal Appeals, which will determine what to do with his conviction.

      Assuming that he later receives a pardon based on innocence, Taylor would be eligible for compensation of $50,000 per year of incarceration — likely more than $600,000.

      The real rapist

      Meanwhile, Carroll, twice convicted of rape, will continue serving a 15-year sentence for failing to register as a sex offender. He cannot be prosecuted for the 1993 rape because the time frame for filing charges against him has expired. Prosecutors have vowed to work so that he stays in prison until 2019, though he could be paroled in 2010.

      Carroll declined to be interviewed for this story, according to a Texas Department of Criminal Justice spokeswoman.

      Taylor said he feels no anger toward Carroll.

      "If he did it, then he is sick," Taylor said. "But it ain't going to do me no good to think about it. I just try to spend my time changing things that I can and not worry about those that I can't."

      Still, Taylor finds it hard to reconcile the fact that Carroll was free, and committing other crimes, while he was an innocent man labeled as a rapist in prison.

      "Rape is one of the worst crimes you can do," he said. "I don't even understand rape, but I have lived for all these years with that mark." His hardship, Taylor said, has helped him have sympathy for the woman whom Carroll appears to have attacked.

      During his time at the Coffield Unit, Taylor said he worked jobs such as cooking breakfast "because you have to keep your mind distracted," and wrote daily letters to his family and fiancee.

      When he leaves, he plans to find a way to rebuild his life, likely in Atlanta. Mostly, Taylor said, he wants to "put away" his prison memories.

      One thing, however, that he will be unable to leave behind is his haunting certainty that others are innocent like him but will never get help.

      "I would almost bet my freedom that I could show you three or four guys who are in the same situation I was in," Taylor said. "But I wonder if anyone will ever help them."



      Grits for Breakfast

      Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

      October 04, 2007

      El Paso conference brought together top minds to prevent false confessions

      Ed. note: Thanks to Edwin Colfax, the Austin director of the Justice Project, for providing this excellent update from last week's conference in El Paso on interrogations and confessions.

      I believe it was Jeff Deskovic, a recent DNA exoneree from New York, who said he felt like he was at the Super Bowl, his way of saying that we were in the presence of the best of the best. Jeff was talking about the international conference titled "Interrogations and Confessions: A Conference Exploring Current Research, Practice and Policy," held last week at the University of Texas at El Paso. Having been to a fair number of conferences on issues related to wrongful convictions, I have to say he was really on to something. The conference lineup was a who's who of leading researchers on interrogations and false confessions, including most of the pioneering social psychologists and legal experts who have helped us understand the reality of false confessions and how they occur.

      And, of course, Jeff was there to tell us his story about a grueling interrogation he endured at 17 after a classmate was murdered in Peekskill, New York. His eloquent effort to provide a glimpse into his experience is in many ways a tall order, given that most people have a hard time wrapping their head around how an innocent person (especially one who is not mentally disturbed) can be led to confess to a serious crime. Of course, the reality of the phenomenon is increasingly well known and well documented.

      Saul Kassin, Richard Leo, Gisli Gudjonsson, Steven Drizin, Ray Bull and Allison Redlich are among the leaders in the field, and anyone interested in learning about interrogations would be well served to review their pioneering work and recent publications. Below are some highlights of the conference Grits readers might find of interest.

      Recording Interrogations Benefits Everybody

      Confessions are regarded as the most powerful evidence that can be presented at trial, and can even overcome other exculpatory evidence, even forensic evidence, as was the case in the Norfolk Four case.

      One of the most straightforward policy responses to false confessions is to electronically record custodial interrogations, thereby creating a complete record of suspect statements and the process that led up to them. Having a complete record eliminates the swearing contests about who said what, when and in what context, and allows judges and juries to make fully informed calls about the voluntariness and reliability of suspect statements.

      My own presentation reviewed the unmistakable national trend toward requiring recording of complete custodial interrogations, which is driven in large part by an increasing awareness among law enforcement that the policy serves their own interests as well as the protection of the innocent. My review showed at least 10 states plus the District of Columbia with some statewide recording policy, either in statute or by court ruling, the most recent being North Carolina. California Governor Arnold Schwarzenegger has a recording bill on his desk now.

      Recording modernizes police procedures in a way that ensures the best evidence possible against the guilty, and protects police from bogus claims of misconduct. The Justice Project's Policy Review on recording is a great overview of the issue, including case profiles, a model policy, and an overview of the research.

      While police and prosecutors in jurisdictions that do not record often express skepticism, those who do record give unequivocal endorsements to the policy. Thanks to the hard work of Thomas P. Sullivan, a former federal prosecutor who has extensively interviewed experienced detectives who record, we know that recording is a valuable law enforcement tool. Sullivan has published several must- read articles on the benefits to law enforcement, available here and here. This work is sure to move us toward more recording as law enforcement hears from peers about the benefits and practicality.

      Since Grits reported recently on Prof. Daniel Lassiter's 20 year's worth of research on camera angle bias, I'll only mention that recording needs to be done carefully and properly to ensure that the evidence is documented in a complete, fully objective way. (Prof. Lassiter was one of the organizers of the El Paso conference, along with Prof. Christian Meissner, both of whom have made important contributions to the development of the literature.)

      The Reid Technique and the Detection of Deception

      Any serious discussion of interrogations in the U.S. will quickly move to the Reid Technique, which Grits has discussed before. Reid is the dominant interrogation methodology used by law enforcement in the U.S., and delivers trainings all over the country. The President of Reid and Associates, Joseph Buckley, gave an overview of the Reid Methods to a tough audience. Many of the researchers there have been highly critical of the Reid Technique because of the substantial risk of its generating unreliable statements from suspects.

      One part of the Reid Technique involves asking a series of particular questions to suspects which are designed to elicit signals of deception from suspects. In fact, a fundamental assumption of the Reid Technique is that these questions, asked early on, are a reliable way to determine if the suspect is truthful or deceptive. If the interrogator determines that the suspect is deceptive, the Reid system moves into a confrontational interrogation mode, in which the interrogator does almost all the talking, and in which the suspect is offered to choose between alternative accounts, which maximize and minimize the suspect's culpability (but each of which presupposes the suspect's guilt).

      One presenter, however, pointed out that the assumptions about outward signals of deceptive behavior that Reid relies on are based on paltry and questionable research, and what little there is uses a very small sample size and ignored ground truth about when a confession is true or false. Professor Aldert Vrij's research actually shows that police are "generally rather poor" at distinguishing deceptiveness. Vrij has published a new edition of his book which he characterizes as an alternative to the Reid Technique that has a much more solid empirical foundation. Given that the high- powered interrogations that have elicited false confessions got cranked up as a result of a mistaken judgment about the truthfulness of a suspect, this research may help to put fewer people in the inherent jeopardy of those psychologically coercive interrogation sessions.

      One of Vrij's examples I found particularly interesting. Many people think that excessive blinking may be a sign that someone is deceptive, presumably because they are more nervous about the situation and what they are saying. But research suggests otherwise.

      First off, innocent people are very nervous in interrogations, too— they are nervous about not being believed! But Vrij has pointed out that lying is, cognitively speaking, harder work than truth telling.

      Because the liar has to think more about what he is saying, he actually tends to blink less, while focusing all that cognition on keeping his story straight.

      Many other bits of `folk psychology' about deception are similarly dubious.

      Juvenile Interrogation Tactics Ignore Developmental Vulnerabilities

      Another significant criticism of the Reid Technique is that juvenile suspects (as well as those who are mentally retarded or mentally ill) are especially vulnerable to deceptive and psychologically coercive interrogation techniques now standard because they are more compliant and suggestible. There is significant research to show that juveniles are more susceptible to false confessions, but Reid training does not address the relevant differences between kids and adults, and indicates that their standard methods are appropriate for juveniles.

      In what I thought was one of the most instructive studies presented, Professor N. Dickon Reppucci from the University of Virginia demonstrated that American police officers, while they generally demonstrated a decent understanding of the developmental differences between youth and adults, seemed to ignore those differences in the context of interrogating young suspects. Repucci and his colleagues did an extensive national survey of police in representative jurisdictions across the country, asking their knowledge about child development and developmental limitations, as well as their views about interrogating youths. There was an unmistakable disconnect between their general appreciation of some basic and relevant developmental factors and their belief that youth can be dealt with in the same manner as adults when it comes to interrogation.

      England's Different Approach

      Professor Ray Bull gave an overview of the evolution of practices in England, which contains important lessons for those of us in the U.S. who are concerned about false confessions. After some high profile exonerations, the British revised policies in the 1980's away from confrontational, accusatory models of interrogation (like Reid's) to an information- gathering model. And, of course, the British have required recording of custodial interrogations for many years now, too. According to Prof. Bull, these changes have been embraced by the police service and have proven effective, and there is no effort to go back to the old ways of doing things.

      How Innocence Can Work Against You

      Saul Kassin gave a fascinating presentation on how the "phenomenology of innocence" can actually contribute to false confessions. Kassin described research that shows that innocent suspects are much more likely to waive their rights and to be open and forthcoming. This seems to be the result of a somewhat naïve but natural faith in the transparency of their innocence. While innocent people are able to offer more plausible denials, they actually seem to trigger harsher tactics from guilt-presumptive interrogators (see Kassin's study from 2003).

      On top of all this, there is a distrust of what are perceived as "weak" alibis, such as that one was at home, sleeping in bed, or with family members or friends watching television. Those kinds of things are the reality of most people's everyday lives, yet investigative tunnel vision can make them seem "weak." All these factors contribute to what Kassin calls an innocence/confessio n paradox.

      Even misrepresentations of evidence, a common, legally permissible interrogation tactic, can, under the right conditions, actually contribute to a false confession. If one is told that his fingerprints are on the gun, or his DNA is at the scene, if he believes in the criminal justice system and in his own innocence, he may actually be more likely to confess to get himself out of a particularly nasty, confrontational interrogation. Such a confession is motivated by the belief that the physical evidence will, when reviewed properly, clear up the mistake. But often that evidence does not exist at all, and was only a bluff by the interrogator to extract a confession. Youths and others with developmental disabilities, in particular, are susceptible to such an ill-advised short-term strategy for getting out of a nasty interrogation.

      - Edwin Colfax

      Posted by Gritsforbreakfast

      Labels: Innocence, Police

      Exoneration Using DNA Brings Change in Legal System

      Published: October 1, 2007

      State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.

      Dwayne Allen Dail, right, leaving a North Carolina court after DNA evidence led to the overturning of his child-rape conviction.

      All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.

      At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. One of them, the California Commission on the Fair Administration of Justice, will hold a hearing this month on remedies for people who have been wrongfully convicted.

      Laws in several states, including Illinois, New Jersey and North Carolina, have bipartisan backing, with many Democrats supportive on civil rights grounds and Republicans generally hoping that tighter procedures will lead to fewer challenges of convictions.

      “Technology has made a big difference,” said Margaret Berger, a DNA legal expert who is on a National Academy of Sciences panel that is looking into the changing needs of forensic scientists. “We see that there are new techniques for ascertaining the truth.”

      Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures.

      Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions.

      Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states.

      “It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

      Two states, Vermont and Maryland, passed laws this year to improve crime lab oversight to eliminate errors and omissions. Maryland recently passed a law that will hold its crime labs to the same standards as clinical labs, a much more rigorous requirement. Other legislative changes to crime lab oversight are pending in 21 states, including New York.

      More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project.

      The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor.

      Advocates of efforts to use DNA to exonerate those wrongfully convicted say the changes in the state laws are welcome and long overdue.

      “The legislative reform movement as a result of these DNA exonerations is probably the single greatest criminal justice reform effort in the last 40 years,” said Peter J. Neufeld, co-director of the Innocence Project.

      But some law enforcement officials oppose some of the changes, saying they create legal minefields for the police and prosecutors. Any deviation from the new standards, no matter how minor, could be taken up by defense lawyers in an appeal, the critics say.

      The California State Sheriffs’ Association is fighting two bills there that would mandate electronic recording of interrogations and corroboration of informant testimony. The bills have been passed by the Legislature and are awaiting final approval by Gov. Arnold Schwarzenegger, a Republican.

      “Simply put, these two bills create loopholes for defendants to get an edge in court on technicalities,” according to a letter from the sheriffs’ organization to the California Commission on the Fair Administration of Justice. The association also opposed a state bill that would create guidelines for suspect lineups.

      Even some proponents of the new standards balk at making them state law, insisting they are better dealt with by local law enforcement agencies.

      “I’m not fond of legislation,” said Lieutenant Patenaude, the Massachusetts police commander. “I’ve been asked to review bills in several states, and I haven’t seen one that mirrors the best practices that we’ve put out here. I’d like to see police agencies mold the procedures instead of legislatures or courts.”

      Studies of wrongful convictions suggest that there are thousands more innocent people in jails and prisons. The Innocence Project, the nation’s most prominent organization devoted to proving wrongful convictions, is pursuing 250 cases and at any given time is reviewing 6,000 to 10,000 additional cases for legal action. Approximately 1 percent of those cases will be accepted, and half of those accepted cases are closed because evidence has been lost or destroyed.

      Other smaller efforts to overturn wrongful convictions also receive thousands of letters from inmates.

      In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found.

      DNA evidence was used to exonerate 144 of those inmates.

      In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004

      Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions.

      “Of the 340 exonerations I looked at” in the 2005 study, Professor Gross said, “96 percent are for rape and murder.” He added: “Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes.”

      The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen Dail, who served 18 years in North Carolina for a false conviction of child rape. Prosecutors had used the victim’s identification of Mr. Dail and hair found at the crime scene to convict him. Years later, after repeated inquires from defense lawyers, the police found a box of additional evidence in the case that contained the victim’s semen-stained nightgown. DNA analysis ruled out Mr. Dail and implicated another man. Mr. Dail was released from prison in August.

      The proposed laws on witness identification are intended to reduce cases like Mr. Dail’s by requiring things like sequential photo lineups of suspects, in which police officers show witnesses photographs of one suspect at a time. Studies have shown that witnesses tend to compare photos when they are shown them simultaneously, a tendency that can lead to errors.

      The legislation would also create “double blind” systems so that the police officers administering the photo lineups are unaware of the suspects’ identities in order to avoid influencing witnesses.

      The North Carolina legislature adopted both lineup procedures this year.

      Crimes labs are also getting additional scrutiny in some states.

      William E. Marbaker, president of the American Society of Crime Lab Directors, an independent accreditation body, said the group had accredited more than 300 crime labs. But some law enforcement agencies are finding that even more oversight is needed.

      A two-year review of the Houston Police Department’s crime lab called into question more than 600 cases. The review was initiated after a court found in 2005 that faulty forensic evidence led to the conviction of George Rodriguez in 1987 for kidnapping and assaulting a child. Mr. Rodriguez served 17 years of a 60-year sentence before his release two years ago.

      Houston crime lab officials erroneously concluded that hair found at the crime scene belonged to Mr. Rodriguez. The crime lab also failed to rule out Mr. Rodriguez as a suspect after finding that semen collected from the scene matched that of another man.

      Eight states — Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming — do not have laws that give inmates access to DNA evidence.

      Advocacy groups, including the Innocence Project, said they intend to lobby for the passage of access laws in those states during the next legislative session.

      DNA Brings Change

      Sept. 30, 2007

      DNA test clears man, but not completely, in Dallas case
      One charge is negated; however, the 9 he pleaded guilty to still stand

      Copyright 2007 Houston Chronicle Dallas Bureau

      DALLAS — The word "bizarre" peppered news accounts of the 1982 crime spree at issue in Dallas County's most recent DNA exoneration case.

      In a single Saturday afternoon that May, a man in a hooded gray sweat shirt that was pulled up to cover his face went to three suburban Elaine Powers Figure Salons, brandished a handgun and forced groups of women to disrobe. At one, the gunman ordered his terrified captives to climb onto the salon's vibrating exercise belts while he exposed and touched himself.

      A day earlier, a similarly disguised man confronted 10 women in five North Dallas apartment complexes and condos. All were forced to strip at gunpoint, one was molested and one was raped while her 2-year-old son played on the other side of the bedroom door.

      Juries in two separate trials convicted roofer Steven Charles Phillips, then 24, of burglary and aggravated rape, sentencing him to 30 years in prison.

      Two weeks ago, Dallas prosecutors announced that a DNA test of a biological sample from the rape victim taken 25 years ago supports Phillips' long-standing claim of innocence. He likely will become the 14th man from Dallas County to be exonerated through post-conviction genetic testing.

      Because of another twist, however, the Phillips matter is far from settled.

      After his second trial, Phillips pleaded guilty to nine other felonies connected with the 1982 spree. Among the various charges — aggravated assault with a deadly weapon, indecency with a child, burglary — was an aggravated sexual abuse charge for which he accepted a 40-year sentence that has kept him in prison.

      Phillips' lawyers say he should be cleared of those convictions as well. But Dallas prosecutors are hesitant.

      "I think it is very hard for him to undo those that he admitted to absent something really to unravel it, something like another (DNA) test," First Assistant District Attorney Terri Moore said in an interview last week. "He pleaded guilty to one that kept him in there longer than (the jury sentences), so I'm thinking there is some legitimacy to the guilty pleas."

      Nina Morrison, an attorney with the Innocence Project, a New York- based legal clinic representing Phillips, said she will ask that all the convictions be overturned because of "strong evidence that the same individual committed all of them."

      Admits to problems

      Morrison said her client pleaded guilty and accepted the 40-year sentence because he was facing a possible life sentence if convicted in the molestation case. Juries in two trials had already believed the eyewitnesses and rejected his alibi, which was supported by his wife and a housemate.

      "He made that painful decision to plea, with the possibility of parole, and hoped to see daylight one day," Morrison said.

      Phillips, who was arrested five days after the Elaine Powers salon assaults for allegedly exposing himself to two young women at two North Dallas apartments, was paroled briefly in the mid-1990s. But he was sent back to prison after he admitted to trespassing and trying to peek into the apartment window of a woman who was undressing, prosecutors and defense lawyers said.

      "We know he's not good for one. We know the DNA came back and exonerated him. Whether he's good for the rest, I don't know," Moore said.

      Because of those doubts, Phillips will remain behind bars, but only for a few months. He is scheduled to be freed at the end of this year under mandatory release rules in effect when he was convicted and with credit for good conduct, Texas prison records show.

      His lawyer, who declined to make him available for an interview, said Phillips has admitted having a problem with voyeurism and exhibitionism.

      "He has been very candid about the fact that for many years he has struggled with that. And he admits he broke the law," Morrison said, referring to the peeping and indecent exposure incidents.

      Until this summer, Dallas prosecutors had long opposed Phillips' request for a DNA test in the rape case, which he has pursued since 2001. They claimed in legal papers that so many victims picked Phillips in live and photo lineups that identity was not an issue in the cases.

      Phillips' request was being considered in appeals court when District Attorney Craig Watkins, who took office earlier this year, reversed his office's stance and agreed to testing.

      To clear Phillips of the other cases, the nine guilty pleas, Morrison must convince a judge to grant a hearing and consider what she calls "overwhelming evidence" that the crimes were committed by the same man.

      The woman who was molested and the rape victim — attacked within two hours of each other — both described their attacker as a white male, 5 feet 11 inches tall, with a receding hairline, blue eyes and a muscular build, dressed in a gray, hooded sweat shirt.

      He told each woman he would "blow (her) head off" if she looked at him, defense papers argue.

      Phillips fit their physical descriptions, except he has green eyes.

      'They are super-glued'

      Police repeatedly described the crimes as part of a spree, with one, a Carrollton police lieutenant quoted as saying he was "99 and nine- tenths percent " certain the same man conducted the attacks because "the physical description, the M.O. and the gun used are identical."

      "To be honest about the theory under which these cases were prosecuted, it is only fair to say that the evidence shows the same man committed them today," Morrison said.

      Prosecutor Mike Ware, who occupies a new post in the Dallas office overseeing conviction integrity, said there is no other physical evidence to test in the nine guilty-plea cases.

      He said his office was gathering reports from its files and from various police departments in an effort to re-examine the case.

      Southern Methodist University law professor William Bridge said a judge is likely to look through "a very narrow window" in considering whether to overturn Phillips' guilty pleas. "They might not be in cement, but they are super-glued, " Bridge said.

      A lot of defendants get "buyers' remorse" and attempt to revisit their voluntary pleas of guilt, he said, but judges seek to preserve the finality of those convictions and are resistant to reopening them.

      On the other hand, Bridge said, a judge might find that the two jury verdicts, now discredited, coerced Phillips' plea in the other cases.


      DNA test clears man

      Sep. 30, 2007

      Push for Innocence Panel is renewed


      A state lawmaker is making a renewed push for a Texas Innocence Commission to investigate cases of wrongful conviction after the 14th exoneration of a prison inmate by the Dallas County district attorney's office.

      Sen. Rodney Ellis said he hopes the Dallas County situation will help revive his plan to create a nine-member commission to examine innocence claims, identify problems in the criminal justice system and recommend reforms. Ellis' bill creating such a commission died in this year's legislative session.

      "I think the exonerations are clear and convincing evidence that the system is broken," said Ellis, a Houston Democrat. "In no other sphere of public policy would rational people see this many exonerations and not be willing to be able to pull together a panel of experts to ask what went wrong and what can be learned from those cases."

      This month, Dallas County prosecutors said DNA evidence proved that Steven Phillips, who served 25 years in prison, did not rape a Dallas woman in 1982. Since 2001, Dallas County has had more DNA exonerations than any other county in the United States.

      Ellis is talking to his Senate colleagues about an innocence commission. He has also asked Lt. Gov. David Dewhurst to order an interim study on the need for an innocence commission during the Legislature' s hiatus.

      Texas Supreme Court Chief Justice Wallace Jefferson and Ellis have also talked about reforms. Jefferson said he agrees that the state should create some type of innocence commission but added that he is still studying the issue.

      "We can't open up every conviction in the state. We've got to be careful how we do this," Jefferson said. But he added that "to me, it is unthinkable that you and I would be sitting in jail for a crime we did not commit. It shows that something didn't work."

      For people who have been exonerated after spending years behind bars, an innocence commission is long overdue. "We badly need some reconstruction in the criminal justice system," said James Giles of Dallas, who was exonerated last year after serving 10 years on a rape conviction. "We ought to be able to come together and get this thing right."

      The details

      Ellis' bill would have allowed the governor, the lieutenant governor and the speaker of the House to make appointments to the commission, among others. The commission would have had the power to investigate individual cases, identify defects in the system and suggest reforms to the Legislature.

      Ellis compared the commission to the National Transportation Safety Board, which sends in teams of experts to investigate airplane crashes.

      "We are talking about looking at cases where it is undeniable that the system made a mistake," said Ellis, who also serves on the board of directors of the Innocence Project in New York.

      Ellis' bill passed the Senate 20-10 but failed in the House. It was opposed by the state's prosecutors, and some lawmakers said the state has adequate systems for this kind of review, including the state and federal judicial appeal process as well as the Texas Board of Pardons and Paroles.

      'Prime time'

      Sen. Kim Brimer, R-Fort Worth, said he voted against Ellis' bill because he didn't think that the issue had been studied enough or that the bill offered much improvement. He added, however, that it is a "prime time" to do an interim committee report on a commission.

      "At that time it just looked like another level of bureaucracy to me that needed more study," Brimer said.

      Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is not convinced the commission is necessary, saying the state already has a progressive attitude toward innocence claims. The Court of Criminal Appeals is the state's highest criminal court.

      "I think that the system is working fairly well right now and evidence of that are the exonerations in Dallas," Keller said. "I don't know what an innocence commission would add."

      Six states have already created similar commissions, according to the Innocence Project in New York.

      North Carolina was first when it approved an eight-member Innocence Inquiry Commission last year after several long-term inmates were exonerated. The commission has received requests to review more than 200 cases.

      "It is forward-thinking for this state. People are open to watching what we give them," said Kendra Montgomery-Blinn, the commission's executive director. "It doesn't matter where you fall on the political scale, you don't want innocent people in prison."

      Texas Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee, said any proposed reforms will have to be supported by stakeholders in the state's criminal justice system.

      Whitmire said he is more hopeful about getting an innocence commission approved after the Dallas County exonerations. Whitmire said he will encourage Dewhurst to let legislators study the idea.

      He said prosecutors and judges have expressed concern that an innocence commission would give rise to political retaliation and not an honest effort to clean up the system.

      "It can't be about 'I gotcha!' It ought to be about going forward and not repeating the same mistakes," Whitmire said. Honest judges and prosecutors will welcome outside review of their cases, he said.

      But clearly, after what has happened in Dallas County, Whitmire said, there is room for improvement in the criminal justice system.

      "What we don't know should scare the hell out of us," he said.

      Commissions across the United States

      At least six other states have created innocence or criminal justice reform commissions.

      California: Lawmakers created the California Commission on the Fair Administration of Justice in 2004. The 18-member agency includes prosecutors, defense attorneys and a member of the judiciary. In 2006, the commission began looking into wrongful convictions.

      Connecticut: Created in 2003, the Connecticut Innocence Commission has 12 members, including a chief administrative judge, a police chief and a state representative. It does not review individual cases but adopted a broader reform mandate.

      Illinois: After then-Gov. George Ryan issued a moratorium on executions in 2000, he created a commission to study capital punishment that made 85 recommendations for additional safeguards. In 2007, lawmakers considered a permanent innocence commission.

      North Carolina: The Innocence Inquiry Commission, created in 2006, grew out of a study of the state's criminal justice system. It has eight members and eight alternates representing judges, prosecutors, defense attorneys and the public.

      Wisconsin: After a high-profile exoneration, lawmakers created the Criminal Justice Reform Package, which produced recommendations aimed at minimizing factors in wrongful convictions, including preservation of biological evidence.

      Pennsylvania: In 2006, the state Senate approved an advisory committee for wrongful prosecutions after nine DNA exonerations. The committee, with about 30 members, is scheduled to make recommendations to the Senate by 2008.

      Source: The Innocence Project

      Innocence commission

      Under a bill sponsored by state Sens. Rodney Ellis and Leticia Van de Putte in the last session, a Texas Innocence Commission would be composed of nine members:

      Two gubernatorial appointees, one of whom must be the dean of a law school and the other a law officer.

      One appointee by the lieutenant governor, who may be a member of the Legislature.

      One appointee by the speaker of the House, possibly a member of the Legislature.

      A member of the judiciary appointed by the presiding judge of the Texas Court of Criminal Appeals.

      A forensic scientist picked by the Texas Forensic Science Commission.

      A prosecutor named by the Texas District and County Attorneys Association.

      A criminal-defense attorney picked by the Texas Criminal Defense Lawyers Association.

      An attorney with appellate experience representing one of the three innocence projects at three state law schools.

      Source: Senate Bill 263

      Max B. Baker, 817-390-7714

      Innocence Panel

      Posted on Aug. 17, 2007

      Lawsuit filed over wrongful conviction


      Billy Smith loves his life on Quiet Lane.

      It's even sweeter because it is far from the noisy, dangerous prison cell that he in lived in for almost 20 years for a crime he didn't commit.

      "No amount of money can give me back what I lost. That is something I'll never get back -- something has been taken from my insides," said Smith, 55. "There is nothing I can do to them that can give me back the freedom I lost."

      Attorneys hope the lawsuit they filed in federal district court Thursday on Smith's behalf, which seeks unspecified damages, will make his life a bit easier. They also hope to learn more about how Smith and at least 12 other innocent men were wrongfully convicted in Dallas.

      The lawsuit alleges that a Dallas County prosecutor and the Dallas Police Department violated Smith's civil rights when he was wrongfully convicted and given a life sentence for the 1986 rape of a woman at his apartment complex.

      He was released a year ago after DNA tests cleared him.

      "We need to find out why these cases turned like they did," said Jeff Blackburn, chief counsel for the Innocence Project of Texas, which works to exonerate the wrongfully convicted. "It is a very important part of the overall process of figuring out what went wrong in Dallas County and what it is going to take to fix it."

      Nearly 20 years

      Smith, who was on parole for car theft and armed robbery, was charged with sexually assaulting a woman at his apartment complex.

      He volunteered to give blood and hair samples and take a polygraph test, but police took no action.

      He continued to profess his innocence while handling his own appeals. In 2005, the Texas Court of Criminal Appeals ruled that a DNA test should be conducted, and the results cleared him.

      Smith was released from prison in July 2006, after spending 19 years, 11 months and seven days behind bars.

      Culture of conviction

      The lawsuit, filed in federal district court in Dallas, alleges that:

      Dallas police performed an illegal search in an effort to find clothes similar to those the victim said her attacker wore.

      An officer perjured himself at the trial.

      Dallas police were negligent for not taking DNA samples from Smith.

      Howard Wilson, Smith's court-appointed attorney, was part of a conspiracy to convict Smith by not investigating his claims of innocence or even speaking to his witnesses. Shortly after Smith's conviction, Wilson joined the Dallas County district attorney's office as a prosecutor.

      Kevin Glasheen, the Lubbock attorney representing Smith, said he expects his firm to file similar lawsuits soon on behalf of three others who were exonerated.

      Recent changes in the law allow wrongfully convicted people to collect up to $50,000 for each year behind bars.

      Chris Bowers, chief of the Dallas city attorney's litigation division, said city lawyers are studying the lawsuit but wonder why Smith did not make these claims years ago.

      Several of the allegations "have nothing to do with DNA," Bowers said. "Why did he wait 21 years to bring those claims?"

      Wilson, now 77 and living in Georgetown, said he does not remember the case. He denied being part of a conspiracy.

      Glad, not excited

      Smith recently got a job making deliveries for an auto parts chain. He credits his faith -- he converted to Islam while in prison -- for keeping him out of trouble in prison and since his release.

      While he said no amount of money can replace the years he lost in prison, he hopes the lawsuit will bring about change.

      "I never got my day in court, and I feel that with this lawsuit I think I will finally get a chance to be heard," Smith said. "The truth will finally get out, and the people will know I'm innocent."

      Max B. Baker, 817-390-7714

      wrongful conviction

      Once again, innocence commission unjustly fizzles

      Web Posted: 05/23/2007
      By - Rebeca Chapa
      San Antonio Express-News

      A good proposal to create a state innocence commission has failed again in the Texas Legislature.

      This is a disheartening development and one that really has no reasonable explanation.

      The proposal makes considerable sense: Create a nine-member body to review documented cases of wrongful conviction.

      The goal: discover what factors contributed to the conviction and possibly change policies to avoid the problem in the future.

      The commission, for example, might have looked into the case of James Curtis Giles, a Dallas man who spent 10 years in prison for a brutal rape he didn't commit.

      Giles was exonerated last month through DNA testing. The victim has acknowledged she may have been wrong about his identity.

      As it stands, there will be no commission to review such cases for at least two years, until the Legislature can once again consider the bill.

      Unlike so many other things that come out of Austin, there were few costs attached to this bill. Members would serve on a volunteer basis and would receive only travel expenses.

      (A more recent watered-down version didn't even address executed felons — a salve for those who might consider such a bill a back-door assault on the sacrosanct Texas death penalty.)

      An attempt was made to revive it by wrapping the proposal into a different bill, but that too was shot down.

      The bill languished in the House criminal jurisprudence committee for nearly a month, and when it came up for a vote, three of the nine members were absent.

      Rep. Terri Hodge, D-Dallas, was in another committee hearing at the time but said she would have voted for the bill, even though it didn't go far enough in providing services to those still in prison who might have been wrongfully convicted.

      That would have provided the fifth needed vote for passage of the bill, which died 4-2.

      Edwin Colfax, director of Texas reform campaigns for the Justice Project, said hopes were high for the bill this session.

      Recent news accounts of the 29 DNA-related wrongful convictions in Texas since 2001 brought the issue to the forefront. And it did get closer to passage this time around than in previous sessions, when it didn't even get a hearing in the house.

      But a dead bill is still a dead bill.

      "It was a victim of the calendar," Colfax said.

      It was also a victim of misplaced opposition from the prosecutorial lobby, which claims this bill is a precursor to more punitive subpoena power legislation aimed at persecuting prosecutors.

      Also, during a recent House criminal jurisprudence committee hearing, Shannon Edmonds, a lobbyist for the Texas District and County Attorneys Association, pointed out that the wrongfully convicted are not necessarily not guilty.

      In other words, just because someone received a shabby trial doesn't mean he didn't commit the crime. True. But what about the nearly 30 Texas criminals exonerated based on DNA evidence?

      Surely, genetic testing is ironclad evidence that they didn't commit the crime. We should review those cases to determine how that happened.

      For example, honest mistakes can lead to a wrongful conviction, such as mistaken eyewitness identifications.

      "This is not an effort to be punitive or an attempt to go after anyone; it's really a good government bill," Colfax said. "If the state is spending money to keep us safe and the wrong person is convicted, that means the real criminal is still out there."

      Two related bills are still fighting for passage in the waning days of the session as amendments to other bills.

      Senate Bill 799, also authored by Sen. Rodney Ellis, D-Houston, would improve the accuracy and reliability of the state's eyewitness identification procedures.

      Another bill, Senate Bill 262, seeks to double compensation from $25,000 to $50,000 for each year a wrongfully convicted person spent in prison.

      Rebeca Chapa; rchapa@express-news.net
      Innocence Commission Unjust

      Should experts be sued?

      Case seeks to hold pathologists and others accountable for their mistakes in criminal probes

      Dec. 18, 2006

      When the pathologist who conducted an autopsy on 7-year-old Sharon Reynolds' body concluded she had been stabbed more than 80 times, police suspected her mother, Louise ignoring a more likely killer, a pit bull named Hat Trick.

      A review of Dr. Charles Smith's findings and a second autopsy confirmed the injuries were consistent with dog bites and Reynolds was eventually freed, but not before losing custody of another daughter and going into debt to defend herself on a charge of murder.

      Reynolds, 37, is fighting for the right to sue Smith and her case is expected to have ramifications for anyone wrongly accused or convicted of a crime.

      They include Brenda Waudby, who was also charged with killing her 21-month-old daughter, Jenna, on the basis of Smith's conclusions.

      Last week, a man in his mid-20s pleaded guilty to manslaughter in her death.

      Reynolds' case, set to be heard by the Ontario Court of Appeal early next year, will determine whether victims of miscarriages of justice can use the civil court system to hold pathologists and other scientific experts accountable for negligence in criminal investigations.

      If so, the case could open up a new avenue of compensation for the wrongly convicted and establish a tool for changing behaviour that contributes to miscarriages of justice, including tunnel vision and bad science.

      Negligent investigations were found to have played a key role in the wrongful convictions of Donald Marshall, Guy Paul Morin and Thomas Sophonow, as well as Gregory Parsons, Ronald Dalton and Randy Druken, three Newfoundlanders wrongly convicted of murder.

      Druken was awarded $2.1 million compensation last week, but waited a long time for the money, said his lawyer. He's been out of jail for seven years.

      Dalton, charged with killing his wife after a pathologist wrongly concluded she'd been strangled, has yet to receive compensation. He was acquitted six years ago.

      "To bar civil claims against pathologists and other investigative workers performing their duties negligently, recklessly or otherwise in bad faith is tantamount to denying wrongly accused and/or convicted persons access to this important means of compensation, " Paul Copeland, co-president of the Association in Defence of the Wrongly Convicted, said in an affidavit filed with the appeal court.

      The association is seeking to intervene in Reynolds' case. The court is expected to consider its request on Jan. 16.

      The question of whether police and other crime scene experts can be held accountable for mistakes isn't exclusive to Canada. Courts in England and the U.S. have wrestled with the issue.

      Eighteen years ago, police chasing the "Yorkshire Ripper" were sued for negligence by the mother of one of 13 women slain by serial killer Peter Sutcliffe.

      Britain's House of Lords rejected the idea that police owed the public a "duty of care" and could be sued if investigations fell below expected standards. Its chief concern was that the threat of lawsuits would deter police from vigorously pursuing suspects and divert resources away from investigations and into the lawyers' pockets.

      British law lords revisited the issue last year in connection with a lawsuit stemming from the murder of Stephen Lawrence, a black teenager attacked by a gang of white thugs in 1993.

      Although a public inquiry found "a litany of derelictions of duty" in the police investigation, the House of Lords didn't budge from its previous stance.

      Canadian courts have taken the opposite approach, confirming in Ontario and Quebec that police can be sued for negligent investigations.

      The Supreme Court is currently considering whether that right should be abolished. In that case, Hamilton police argue that exposing police to negligence claims amounts to bad public policy. The force was sued for $3 million by Jason George Hill, who was charged but later acquitted of a credit union robbery committed by a person dubbed the Plastic Bag Bandit.

      At issue in Reynolds' case is whether the principle of witness immunity can be used to insulate pathologists and other scientific experts from lawsuits for mistakes made during the investigative phase of a case.

      The theory behind immunity is that witnesses should be able to come to court and testify without fear of consequences.

      In a 2-1 ruling last year, Ontario's Divisional Court said the principle protected Smith from liability at all stages of his involvement in the case, including his findings at Sharon's autopsy.

      In appealing that decision, Reynolds argues a distinction should be drawn between the courtroom testimony of scientific experts and their work during an investigation.

      In materials filed with the court, she alleges Smith negligently carried out the first autopsy and was negligent in expressing an opinion on Sharon's cause of death.

      Smith denies the allegations.

      Reynolds' claims against Smith relate directly to his conduct as a public official investigating a suspicious death, not to his later role as a witness in her criminal prosecution, according to her lawyer, Peter Wardle.

      There is no public policy rationale for extending witness immunity to Smith's investigative duties, he said. British and American courts have recognized a difference between the two roles, Wardle said.

      One judge on the Divisional Court thought Reynolds' lawsuit deserved to go to trial.

      In a dissenting opinion, Justice Janet Wilson said the scope of witness immunity is evolving in Canada and there is much uncertainty in the law. No case has yet considered the extent to which the rule applies to a pathologist' s work.

      Apart from the merits of Reynolds' case, wrongly convicted people should use be able to use tort law to change the behaviour of experts whose mistakes play a role in a miscarriages of justice, the association says.

      In material filed with the court, the group says recent history is filled with examples of civil lawsuits having this effect. These include automobile manufacturers adding new safety features and the refusal of bar owners to serve drunk patrons.

      Short of a lawsuit alleging negligence, the wrongly convicted have few legal options.

      Should experts be sued?

      Dec. 15, 2006

      After 8 years in prison,
      inmate walks free for now
      Retrial possible in assault
      he says he didn't commit

      Copyright 2006 Houston Chronicle


      Key events in the Gilbert Amezquita case:

      • Feb. 6, 1998: Kathy Bingham is found badly beaten at her father's company. After 10 days in a coma, she tells police, "Gilbert did it"

      • March 1998: Gilbert Amezquita, who worked at the company, is charged.

      • July 1998: State District Judge Belinda Hill refuses to delay the trial to allow DNA testing. Amezquita is convicted and sentenced to 15 years in prison.

      • February 1999: The DNA evidence is destroyed by the HPD.

      • August 2000: Attorney Roland B. Moore III appeals Amezquita's conviction. He cites new information, including the fact that the victim had argued with another employee named Gilbert shortly before the attack and that the second man had the victim's cell phone after the attack.

      • July 2003: Judge Hill recommends that the Texas Court of Criminal Appeals grant a new trial.

      • Feb. 2, 2005: The appeals court denies the request.

      • Feb. 17, 2005: In a rare move, the court reverses itself.

      • March 4, 2005: Alonzo Gilbert Guerrero, the "other" Gilbert, is sentenced to seven years in prison for burglary in Cameron County. His record also includes violent offenses.

      • Nov. 22, 2006: Citing ineffective counsel, the appeals court orders Amezquita released or retried.

      • Dec. 14, 2006: Judge Hill sets $5,000 bail while prosecutors consider retrying the case.

      Despite bureaucratic confusion that threatened to spoil his coming home party and delayed his release by several hours, Gilbert Amezquita walked out of the Harris County Jail a free man early this morning — at least for the time being.

      But after spending the past eight years trying to prove that he did not commit the near-fatal assault that sent him to prison, the extra time behind bars did not diminish Amezquita's excitement.

      "It's been seven years, so I can deal with a few more hours," said Amezaquita as he and his relatives wepted and hugged in the early morning fog outside the Harris County Inmate Processing Center on Commerce in downtown Houston.

      "I know that I am innocent, and I know I'm going to have my day in court," he added. "But it's just a slow process, and it's taken too long."

      Amezquita said he plans to spend time in the next few days just staying close to his family.

      Amezquita's release came after the Texas Court of Criminal Appeals, citing ineffective assistance of council, last month ordered that the 29-year-old either be retried or released from prison.

      State District Judge Belinda Hill on Thursday set Amezquita's bail at $5,000. She also granted a request by the Harris County District Attorney's Office for an additional six weeks to determine whether Amezquita should again be prosecuted in the beating that left Kathy Bingham in coma for 10 days.

      Among the members of Amezquita's family on hand to greet him was his mother.

      "I just thank God for giving us this good Christmas," Maria Amezquita, 54, said earlier in the day. She added that, on her son's instructions, she has thrown out all of his old clothes so that he could get a fresh start in life.

      However, Bingham said news of Amezquita's release frightens her and that she now plans to acquire a weapon.

      "So I'm going to go get a gun. I already feel like there's a hundred Mexicans following me every day," said Bingham, who insists that her eyewitness identification as Amezquita as her attacker was correct.

      Following Hill's order, Amezquita remained in the county jail, where he had been transferred from state prison, for the next 16 hours until he finally was released at 1:30 a.m. this morning. The glitch appeared to lie with the appeals court, which had been criticized for taking four years to rule on Amezquita's appeal. Although the court issued its opinion on Nov. 22, the Harris County Clerk's Office did not receive a copy of the court's mandate until Thursday night.

      "We didn't know about the mandate until (Amezquita's) attorney brought a copy in (on Wednesday)," said district clerk spokesman Fred King. "But we can't act on that. We have to know that it's coming from the Court of Criminal Appeals."

      In its decision, the court cited ineffective assistance of counsel as the reason for ruling in Amezquita's favor.

      'I did the best I could'

      During his trial, Amezquita was represented by attorney Philip M. Campa. On Thursday, Campa defended his work.

      "The Amezquita family did not have money for an investigator, " Campa said. "I did the best I could with the resources that were available."

      Amezquita's father condemned Campa's representation. "He took our money and then led Gilbert to the slaughter," said Ramiro Amezquita, 58.

      In placing the blame for Amezquita's conviction on Campa, the court repeatedly pointed to evidence never presented during the 1998 trial.

      Amezquita, now 29, was convicted primarily on the eyewitness testimony of the victim. Shortly after coming out of a 10-day coma, the still-hospitalized Bingham whispered to police that it was "Gilbert" who had assaulted her at her father's plumbing company in February 1998. Amezquita, an Army reservist with no prior criminal record, was arrested.

      DNA evidence denied

      The case went to trial in July of that year despite a joint request from the defense and prosecution to Hill, who presided over the case, for additional time to allow for DNA testing of crime-scene evidence.

      Hill denied the request. She later explained she made her decision because the case had been on her docket "for quite some time." Court records show that the case had been on Hill's docket for four months and that in 1998 almost 40 percent of Hill's cases took at least that long to come to trial.

      Amezquita was convicted and sentenced to 15 years in prison. The DNA evidence was later destroyed.

      Roland B. Moore III, Amezquita's appellate attorney, eventually found that prosecutors had failed to consider that a second Gilbert — Alonzo Gilbert Guerrero — also worked at the plumbing company. Moore discovered that Bingham and Guerrero had argued a few days before the attack and that Guerrero had Bingham's missing cell phone after the beating.

      Guerrero is serving a seven-year sentence for burglary. On Thursday, Hill ordered Amezquita be in her court this morning so that she can explain the terms of his bail.

      Meanwhile, Assistant District Attorney Jimmy Ortiz said he and other senior prosecutors, as well as District Attorney Chuck Rosenthal, will determine whether they will re-try Amezquita. Hill has given the prosecution until Jan. 29 to decide.


      After 8 years in prison

      Dec. 14, 2006

      Houston man claiming wrongful conviction could be released from prison

      Copyright 2006 Houston Chronicle

      A judge this morning cleared the way for a Houston man's release while he awaits word on whether he will get a new trial in a case in which he says he was wrongly imprisoned.

      Gilbert Amezquita, 29, could walk free as soon as this afternoon.

      State District Judge Belinda Hill set his bail at $5,000.

      Today's decision resulted from a ruling last month by the Texas Court of Criminal Appeals, which granted Amezquita a hearing.

      Amezquita has been in prison since his 1998 conviction for the aggravated assault of a Houston woman. As she lay in a hospital, Kathy Bingham told police, "Gilbert did it." She later identified Amezquita, a co-worker, in a photo lineup.

      But his attorney, Roland Moore, argued in his appeal that Harris County prosecutors failed to consider another Gilbert: Alonzo Gilbert Guerrero, who also worked with Bingham.

      On the day of the attack, Guerrero, who had a criminal record that included assault, argued with the victim. Court records also show he had the woman's cellular phone after the attack.

      Guerrero is serving a seven-year sentence in a state prison for a 2004 burglary in Cameron County, according to state records.

      Before Amezquita's trial, Judge Hill refused to allow the testing of DNA evidence, which has since been destroyed.

      In a 2003 interview with the Houston Chronicle, Moore said that "everything that could have gone wrong in (the Amezquita) case did go wrong."

      The Harris County District Attorney's Office has not announced how it will proceed in the case.

      After the appeals court's ruling last month, however, an assistant district attorney noted that the ruling was not based on Amezquita's claim of actual innocence but on ineffective assistance of counsel in the trial.


      wrongful conviction

      Wrongfully Convicted Man Awarded $450K

      Texas Awards $450,000 to Man Who Spent 18 Years in Prison Before Being Exonerated by DNA

      HOUSTON Nov 10, 2006 (AP)— Texas has awarded more than $450,000 to a man who was exonerated by DNA evidence after spending 18 years in prison for a sexual assault conviction.

      Arthur Mumphrey was released from prison in January after his lawyer found DNA evidence clearing him in the rape of a 13-year-old girl. Mumphrey had been sentenced in 1986 to 35 years in prison.

      Gov. Rick Perry pardoned Mumphrey in March, clearing his record and making him eligible for compensation. Under state law, a person pardoned based on innocence is eligible for up to $25,000 for each year in prison with a cap at $500,000.

      Mumphrey recently got his first payment of $226,041, according to the Texas Comptroller's Office. An official there said Mumphrey will have to report the compensation to the Internal Revenue Service. It will be up to tax officials to decide if and how much he will be taxed.

      Mumphrey, who was 42 when he was released, declined to talk about his plans for the money.

      His brother, Charles, confessed to the rape while serving time in jail for unauthorized use of a motor vehicle, shortly after his brother's release. No criminal charges will be filed against Charles Mumphrey because the statute of limitations has expired, prosecutors said.

      Copyright 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

      Posted on Sun, Nov. 05, 2006

      Justice demands fixing system

      By Bob Ray Sanders
      Star-Telegram Staff Writer

      Today I shall give you 10 reasons why Texans ought to be ashamed of their criminal justice system and should be mourning the number of lives that have been ruined by those sworn to uphold the law.

      Consider this list of victims -- and, yes, I said "victims":

      1. David Shawn Pope, sentenced to 45 years for a 1985 aggravated sexual assault.

      2. Wiley Fountain, given a 40-year sentence in 1986 after being convicted on an aggravated sexual assault charge.

      3. Donald Wayne Good, convicted of rape and burglary in 1984 and sentenced to life in prison.

      4. Keith E. Turner, sentenced to 20 years for aggravated sexual assault in 1983.

      5. Entre Nax Karage, given a life sentence for a 1994 murder.

      6. Eugene Ivory Henton, convicted in 1984 for sexual assault and sentenced to four years in the penitentiary.

      7. Gregory Wallis, given a 50-year sentence in 1989 for burglary of a habitation with intent to commit sexual assault.

      8. Billy Wayne Miller, sentenced to life on a conviction of abducting and sexually assaulting a woman in 1983.

      9. Billy James Smith, convicted of aggravated sexual assault in 1986 and given a life sentence.

      10. Larry Fuller, given a 50-year sentence in 1981 for aggravated rape.

      What these men have in common is that they are innocent of the charges, served time in prison for crimes they never committed and have been released in the past five years after new DNA testing proved they had been falsely convicted.

      All of these cases, highlighted by the New York-based Innocence Project, are from one Texas county: Dallas.

      "Nowhere in the nation have so many individual wrong convictions been proven in one county in such a short span of time," Barry Scheck, co-director of the Innocence Project, said in a statement last week. "It is clear today that there's an alarming pattern of wrongful convictions in Dallas County."

      Fuller, 58, walked out of prison last week, 25 years after being locked up for a crime that we now know was committed by someone else. He has had a cloud hanging over him for almost half his life.

      A summary of the case, provided by the Innocence Project, states:

      "In the pre-dawn hours of April 26, 1981, a woman woke up to find a man sitting on top of her with a knife in his hand. When she resisted, he cut her hand, both sides of her neck, and her buttocks. He then raped her and left. The victim claimed that she could see her attacker from a crack of light from her window and the light of her digital alarm clock. She identified Fuller from a photo array and also at trial. The victim was shown two photo arrays. She was unable to make a positive identification from the first array. In the second array, a more recent picture of Fuller was included showing him with a full beard. She identified Fuller from this photo -- even though she didn't remember her attacker having any facial hair and the photo had been taken only one week after the attack. Fuller was the only man to appear in both arrays."

      The Fuller case underscores the problems with photo lineups, eyewitness testimony and the tendency of prosecutors to be so focused on getting a conviction that they lose sight of justice. And too often, after the egregious deed has been done, it is difficult to get anyone involved to admit a mistake was made.

      A spokesman for the Dallas County district attorney's office seemed to dismiss the number of recent exonerations as being indicative of serious problems in his department, suggesting that the mistakes in the 10 cases noted would not be made today.

      Do I dare mention the recent fake-drugs scandal that rocked the Dallas Police Department and should have rocked the DA's office as well?

      When one considers these cases alone, it is only natural to ask, "How many more innocent people are in prison?"

      The Innocence Project data reveal that, in addition to Fuller, DNA testing has exonerated 185 people in 32 states. But Scheck is quick to point out that in 90 percent of criminal cases, DNA is not a factor, so imagine the number of innocent people who may be behind bars without having any way to prove they were wrongly convicted.

      "Texas needs a statewide mechanism to identify and address the causes of wrongful convictions, but Dallas County can't wait for the state to act," Scheck said in a statement. "When one plane crashes, the NTSB launches an immediate investigation to determine the cause and prevent it from happening again. These wrongful convictions in Dallas County are like a series of plane crashes at the same airport, in the same era, and they require immediate, serious action."

      Indeed they do. Before there are more crashes, we should demand an investigation and corrective action from Dallas County and the state.

      Otherwise, we should hang our heads in shame.

      Bob Ray Sanders' column appears
      Sundays, Wednesdays and Fridays.
      817-390-7775 bobray@star-telegram.com

      © 2006 Star-Telegram and wire service sources.
      All Rights Reserved.

      September 1, 2006

      Man freed after wrongful imprisonment sentenced in drug case

      FORT WORTH, Texas — A man who spent five years behind bars for a robbery he did not commit is heading back to prison, this time for a drug conviction.

      James Levi Byrd, 43, was sentenced Thursday to 15 years in prison for drug possession.

      Byrd's attorney, Les Johns, said Byrd decided to plead guilty in a deal with prosecutors rather than put his fate in the hands of jurors who could send him to prison for life.

      "He didn't want to chance it again," Johns said.

      In 1998, Byrd was sentenced to 30 years in prison after being convicted of robbery by threat for stealing lawn equipment from a Fort Worth woman's garage.

      The case gained national attention years later when Byrd's brother, Donnie Johnson, confessed to the crime in an on-air interview with a Dallas television reporter. That reporter and others took up Byrd's cause. Johnson eventually went to prison on unrelated charges.

      Two days before Christmas 2002, Gov. Rick Perry granted clemency to Byrd, who had spent five years behind bars. Byrd returned home to Fort Worth, married his longtime girlfriend and worked to put his life back together.

      But in October, police arrested Byrd outside a vacant house. Officers said they were investigating residents' complaints when they saw two men engaged in a drug deal.

      On Aug. 21, Byrd pleaded guilty to possession of a controlled substance in exchange for a 15-year sentence. Byrd had two felonies on his record before the wrongful conviction and had faced from 25 years to life if convicted.

      Byrd was sentenced Thursday during a brief hearing.

      After the plea, Johns said that Byrd was in the "wrong place at the wrong time" when he was arrested. He said a man had hired Byrd to do some cleanup work at a nearby house. Johns said that after police arrived, people started throwing drugs, which "landed by him."

      Johns said that Byrd had no witnesses and, after weighing his options, decided to plead guilty.

      "He is a good man. He was out there trying to do right. He had a job," Johns said. "He just felt like society had failed him before and would be worse on him this time. He didn't think it would go his way."

      Information from:
      Fort Worth Star-Telegram,
      September 1, 2006

      Find this article at:
      Freed Man

      Posted on Aug. 06, 2006

      Panel is ray of hope for innocent inmates

      Star-Telegram Staff Writer

      Who would have thought that North Carolina, or any Southern state for that matter, would take the lead in trying to free innocent people from prison?

      But with a newly created commission, that Southeastern state has done just that, and it would behoove other states -- including, and perhaps especially, Texas -- to take note and quickly try to copy the innovative criminal justice procedure.

      After a series of high-profile cases in which wrongly convicted inmates were proved innocent, a former state Supreme Court justice convened a conference four years ago. Eventually a recommendation emerged that the state create a commission to consider individual claims of innocence, according to The News & Observer of Raleigh, N.C.

      Last year, the state's House of Representatives passed legislation to form such a body, and the state Senate voted 47-1 last month to send it to the governor's desk.

      Gov. Mike Easley signed the bill last week to create the eight- member North Carolina Innocence Inquiry Commission, making his state the first in the country to give inmates who say they are innocent another avenue once all appeals have been exhausted.

      It is not a perfect piece of legislation, for it sets a pretty high hurdle for inmates before their cases reach the final step, which could lead to freedom.

      But it does offer hope for those who have been locked away and whose pleas have fallen on the deaf ears of justice.

      In recent years, law students in North Carolina, Texas and other states -- through a number of "innocence projects" -- have done a better job of ensuring justice for the falsely accused than have lawyers in district attorneys' offices whose main mission is to convict.

      Two of the cases that led to formation of North Carolina's new commission involved inmates Alan Gell and Darryl Hunt. Their plights are described on the Web site of the North Carolina Center on Actual Innocence.

      "After years under lock and key in North Carolina for crimes they didn't commit, both men were recently released from prison," the Web site says. "Mr. Gell won his freedom after nine years through acquittal in a retrial. The retrial occurred in part because vital evidence pointing to Mr. Gell's innocence was withheld by the prosecution during his original trial. That trial led to the death sentence for Mr. Gell.

      "Darryl Hunt didn't receive a death sentence, but he did lose eighteen years of his life to the Department of Corrections before, with the help of a tireless defense team, being fully exonerated in February of 2004. Meanwhile, the real perpetrator, the man who raped and murdered the young victim, was free -- to commit other crimes."

      That's the other point about having the wrong person behind bars. In addition to the injustice for that individual, the real criminal is still running loose, still a threat to society.

      ABC News' Nightline on Thursday featured another North Carolina case that attests to that fact.

      Jennifer Thompson-Cannino was raped at knifepoint. She later identified Ronald Cotton as the rapist. That was in 1985, but 11 years later Cotton was proved innocent when new DNA technology pointed to another man -- one who was in prison when the test was done but who had committed other rapes after attacking Thompson- Cannino.

      So, with this tarnish on its justice system, North Carolina has tried to at least offer a way for inmates to prove their innocence.

      Under the new law, the inmate is required to present new evidence that was not offered at trial. Anyone who pleaded guilty to the crime must wait two years before applying to the commission. (About 4 percent of the inmates who have been proved innocent through DNA testing had pleaded guilty.)

      A majority of the commission members, which would include a sheriff, a judge, a prosecutor, a defense attorney and a victims' advocate, would have to agree to hear the new evidence.

      The commission's findings would be sent to a three-judge panel, which would have to agree unanimously to overturn the conviction.

      In Texas, where we've seen numerous claims of post-conviction innocence and have seen several men and women released after being falsely imprisoned, lawmakers ought to be lining up to draft a bill for the next legislative session that would offer a similar procedure for inmates insisting on their innocence.

      For the state that holds the U.S. record for executions (371 since 1982), the least we can do is create a way to make sure the right person was punished.

      What would be the harm in that?

      Bob Ray Sanders' column appears Sundays,
      Wednesdays and Fridays. 817-390-7775
      © 2006 Star-Telegram and wire service sources.
      All Rights Reserved.

      July 24, 2006, 1:05AM

      Law and order dilemma: Who checks prosecutors?


      WITH a recent uptick in crime, tough prosecutors who are ready to convict and imprison perpetrators are likely to be more popular than ever.

      But a warning flag is being hoisted by American University law professor Angela J. Davis, past director of the District of Columbia Public Defender Service (and no relation to the more famed liberal activist Angela Y. Davis).

      Prosecutors, notes Davis, are "the most powerful officials in the criminal justice system" — more so even than judges. Why? "The charging and plea-bargaining power they exercise almost predetermines the outcome of most criminal cases. Over 95 percent of all criminal cases are resolved by a guilty plea."

      Consider a person arrested for having a quantity of drugs on them. Depending on the amount, the prosecutor can charge simple possession (a misdemeanor), or possession with intent to distribute (a felony that in most jurisdictions means a mandatory prison sentence). So it's the prosecutor, through his charge and plea-bargaining powers, who really decides prison time (and most likely a wrecked life) for the defendant, or not.

      The most serious systemwide issue, argues Davis in her forthcoming book, Arbitrary Justice: The Power of the American Prosecutor, isn't the isolated, fairly rare case of a prosecutor coercing witnesses, fabricating evidence or consciously targeting racial minorities.

      Rather, it's the lack of controls on, or accountability for, the everyday decisions of prosecutors. Their legal responsibility isn't just to represent the state in seeking convictions; it's to pursue justice. But too often, Davis asserts, prosecutors exercise their discretion "haphazardly at worst and arbitrarily at best, resulting in inequitable treatment of both victims and defendants."

      There's the "win-win-win" ethos in many prosecutors' offices — elected prosecutors and their staffs out to show how tough they are on crime, or how eager to impose death penalties in heinous cases (especially when there's strong media interest, or photogenic victims). Sometimes prosecutors overcharge grossly so they can wring heavier plea bargains out of defendants. Or adopt a "don't ask, don't tell" policy toward potential police abuses in the arresting phase.

      Views on class and race, even unconsciously, lead prosecutors to make shoot-from-the-hip decisions at odds with true justice, Davis asserts: "I saw it all the time in the D.C. system. A rich kid comes in (though few are arrested) with parents and family lawyer, explaining 'Little Johnny has a drug problem and let's put him in a program, not lock him up.' The prosecutor usually agrees. But a poor, black or Latino kid comes in on a parallel drug case, maybe with a public defender, and the prosecutor figures — 'I can't let you back into the neighborhood, I'll send you to jail."'

      Davis also pinpoints how appointed U.S. attorneys, pursuing the country's "war on drugs," have focused relentlessly on convicting and incarcerating even small-time neighborhood drug dealers and their girlfriends and family members, especially from inner-city neighborhoods, even on the scantiest of evidence. Federal drug prosecutions tripled between 1981 and 1990.

      Under our system, all officials wielding government power should be and are subject to checks — but we've ended up, Davis asserts, "giving prosecutors a pass" — no effective control by voters, legislatures or the judiciary itself. Voters have little idea of how prosecutors are actually handling cases. Legislatures (and Congress) pay scant attention beyond frequently bolstering prosecution powers.

      The U.S. Supreme Court has severely circumscribed conditions under which prosecutors' judgment can be questioned at all, referring cases to states' attorney disciplinary authorities that are themselves known to be weak. From 1970 to the mid-1990s, one study found, there were only 44 cases nationwide in which prosecutors faced disciplinary hearings of misconduct; even then, a reprimand was generally the worst punishment.

      So what's to be done? Prosecutors themselves have traditionally resisted oversight. The public has been inundated with television programming that justifies prosecutors going right up to the edge on ethics and the law to get the "bad guys." The American Bar Association publishes standards of behavior for prosecutors, but the strictures have no teeth — they're just "aspirational," Davis notes.

      Davis would have national, state and local bar associations conduct in-depth investigations to determine the adequacy of current prosecutorial misconduct controls, and possible reforms. She'd have bar associations set up state and/or local prosecution review boards — not only to receive specific complaints brought by the public, but to undertake random reviews of prosecutions and (with colleges and universities) launch surveys to reveal discriminatory practices by race or class. The idea is that an outside eye could discourage arbitrary, hard-to-justify choices by prosecutors without chilling the essential, fair law enforcement we all depend on prosecutors to perform.

      Against the formidable, entrenched power of today's federal-state- local prosecutorial systems, any prospect of significant culture reform seems remote. But if we're ever to dare a start, Davis offers a group of eminently reasonable first steps.

      Peirce is a syndicated columnist who specializes in city and state affairs. (nrp@citistates.com)

      This article is:
      Who checks prosecutors?

      Posted on Jul. 21, 2006

      Wrongly convicted man remains in Texas prison

      In My Opinion

      Texas prison inmate Gregory Bruce Dunagan, 39, is a giant step closer this month to proving that he is serving time for a crime he did not commit.

      Unfortunately, he is not one inch closer to being free.

      You see, in Texas, once a defendant is found guilty by a jury, innocence really doesn't matter. Only the conviction counts.

      Besides, who in any police department, district attorney's office or judge's chamber is ever willing to admit a mistake?

      It rarely happens.

      So, despite the mounting evidence (and the lack of evidence at the time of trial) indicating that Dunagan is an innocent man, he will remain in legal limbo -- and behind bars -- until someone in our broken criminal justice system has the moral backbone to stand up for what is right.

      Last October, in a series of three columns, I told Dunagan's story, explaining that he had been convicted by a Dallas County jury for the 1997 robbery and fatal shooting of Barkat Ali, 41, a Grand Prairie convenience store operator. Ali's wife, Ishrat Khan, witnessed the early morning crime.

      For 18 months, police could not find the killer. Then a jailhouse informant who had been charged in another killing told police that Dunagan had told him that he had committed the Grand Prairie crime. A detective at the time acknowledged that the informant cooperated with police to get a lesser sentence in his own case.

      Dunagan was charged with capital murder, but as I pointed out before, he was really convicted for four reasons: 1) his criminal record from an incident when he was 18, 2) a setup by a lying jailhouse informant, 3) sloppy police work, and 4) ineffective trial representation by his defense attorney.

      Three times during the trial, Ali's wife identified someone other than Dunagan as the killer. Observers believe that she picked out the only black man with green eyes she saw in the courtroom. All she saw of the killer was his eyes because he was wearing a bandanna over his face. Dunagan has black eyes.

      Dunagan's defense attorney, who is a former state district judge and Dallas prosecutor, called no witnesses, not even Dunagan's parole officer, who would have testified that he met with Dunagan on the morning of the crime. Instead, the defense's entire argument was that the prosecution, with no physical evidence, had not proved its case.

      Also, prosecutors never called the one person who said Dunagan had admitted the crime: the informant.

      A federal magistrate ruled that Dunagan should be granted a new trial, but his decision was overturned by the 5th U.S. Circuit Court of Appeals, and the U.S. Supreme Court refused to hear the case.

      In 1999 Dunagan was sent to prison for life. Because all his appeals have been exhausted, he's likely to be there until he dies unless a district attorney and a court are willing to listen to new evidence in the case.

      And there is new evidence.

      On the cover of this month's D magazine is a headline promoting a story inside: "FRAMED FOR MURDER: GREG DUNAGAN DIDN'T DO IT."

      An in-depth investigation by writer Paul Kix quotes two witnesses, both inmates in a state prison, who knew the informant, Dave Spencer. Both have signed affidavits implicating Spencer himself in the slaying of Ali and the framing of Dunagan.

      One of those witnesses said he overheard Spencer and another Dallas County Jail inmate planning to pin the crime on Dunagan. The witness said he was prepared to testify to that fact at Dunagan's trial, but he was never called. The other witness, a friend of Spencer's, said the informant told him one night that he had killed a convenience store operator in Grand Prairie.

      "Some Pakistani guy," D quotes Quenten Jordan as saying.

      "The store owner wouldn't get Spencer the money fast enough," Kix writes, adding this quote from Jordan: "Dave said, 'I had to kill him.'"

      The magazine notes that Spencer denies ever making that statement. But these witnesses appear to have nothing to gain for implicating Spencer.

      Dunagan's brother Kevin Boykins, who has spent more than $60,000 trying to clear his brother's name, points out that the same prosecutor who tried Dunagan also tried Spencer two months later. He notes that both of the witnesses who have signed affidavits vindicating Dunagan testified for the prosecution in convicting Spencer on another murder charge.

      "If their testimony was credible in that case, then their statements ought to be credible now," Boykins said.

      Although he realizes that there is still much work to be done before his brother is freed, Boykins said: "I'm feeling optimistic about it. I'm feeling that people are starting to listen and understand that an injustice was done. So, it gives me hope. It gives me a lot of hope."

      As I said earlier, district attorneys don't like to admit mistakes, especially after winning a murder conviction against a defendant.

      But this is one case that the Dallas County district attorney's office ought to reopen. Justice is crying out for another look.

      Bob Ray Sanders' column
      appears Sundays,
      Wednesdays and Fridays.
      bobray@star-telegram. com
      © 2006 Star-Telegram and
      wire service sources.
      All Rights Reserved.

      July 18, 2006
      Father says wrong man named as son's killer
      Recantation means charges will be dropped

      Copyright 2006 Houston Chronicle

      After his 18-month-old son was shot and killed during a botched drug deal and robbery last year, the father said he'd recognize the toddler's killer by his "cold eyes."

      But Ernest L. Naquin now claims he identified the wrong man, forcing a capital murder charge against Miguel Angel Castro to be dropped Monday the day jury selection was to begin.

      Naquin's son, Aiden, was shot in the head on April 12, 2005, at the family's mobile home park in Huffman when a drug deal turned into a robbery attempt.

      Naquin had sold Xanax to a gang member's wife just before the shooting and was then followed by a group of men who tried to rob him of the drug sale money, according the Harris County Sheriff's Office.

      Naquin told the Chronicle last year that he would never forget his son's killer.

      "If I see his eyes, I can pick him out. They were without a soul, evil, like he was a demon possessed," Naquin said.

      Harris County District Attorney Chuck Rosenthal said the boy's father, who had said he saw Castro shoot his son, now claims someone else did the shooting.

      "This weekend was the first time he had ever come with the new version of the facts," Rosenthal said.

      He said his office had no choice but to dismiss the charge.

      "We certainly also don't want to try someone for the offense if we believe there may be somebody else who may have committed the offense," Rosenthal said.

      Naquin recanted his story from his Harris County Jail cell where he is being held pending trial on two charges of delivery of a controlled substance and two charges of possession with intent to deliver a controlled substance.

      Authorities believe Castro, 22, is a member of the violent Central American gang known as MS-13.

      Five gang members were arrested in connection with the April 2005 shooting incident, but only Castro was charged with capital murder.

      Rosenthal said authorities have no reason to believe that anyone intimidated Naquin into changing his story, but he couldn't explain why he singled out someone else two days before the trial.

      Naquin's attorney, Lucinda "Cindy" Marshall, could not be reached for comment.

      The defendant's attorney, Elihu Dodier, said Castro will remain in custody until he can be handed over to immigration authorities. Dodier said he believes immigration officials will return him to his native Honduras.

      Though he expects the district attorney's office to pursue other charges against Castro, he doubts any further charges will be filed against his client.

      "It's very unusual for a capital murder case to be dismissed in Harris County, but I just felt the state had a very weak case without a key witness," he said.

      He said the prosecution' s case hinged on Naquin's eyewitness testimony.

      He did not know why Naquin changed his story at the 11th hour, but suspects he did not want to testify about his involvement in a drug transaction when he's facing his own drug-trafficking trial.

      "The guy is looking out for himself," Dodier said of Naquin. "The bottom line is that the guy is looking out for himself that father, I have absolutely zero respect for."

      But, he said, Castro had always maintained he had not pulled the trigger when the toddler was killed.

      "The father is the one who created this whole thing by bringing the child with him, and the father was the one who ran away from the car and left his children behind," Dodier said.


      HoustonChronicle.com -- This article is:

      A Criminal Defense Attorney's
      View of False
      Child Sexual Assault Allegations

      by Paul G. Stuckle

      "Our Prisons Are Full of Innocent Persons"

      The Special Nature of Sexual Assault
      Public hysteria regarding child molestation has changed the rules of the criminal justice system. Child physical and sexual abuse cases must be defended in an entirely different manner than the normal criminal case. In theory the constitutional rights of the defendant are still in place, however in reality those rights do not apply. The truth is: The accused is presumed to be guilty.

      There is merely an appearance of constitutional rights for the accused in a child abuse case. The judge will still inform the jury that it must presume the defendant to be innocent and require the state to prove guilt beyond a reasonable doubt. However in reality, once a false allegation is made, the defendant must both prove himself innocent and that something did not happen.

      Our criminal justice system states that if the jury has a "reasonable doubt" then it must find the defendant "not guilty." This theory simply does not apply to child sexual assault cases. The jury must be convinced they are not letting a child molester off and back into the community. The jury must absolutely believe in the innocence of the defendant. The state does not have to prove guilt, but simply make the accusation. Once the accusation is made, the defendant must prove innocence beyond a reasonable doubt. Failing that, the jury will not take a chance the defendant may be a child molester, and will convict.

      How Did We Come to This?

      The media, legislature and the "child saving industry" has created a national child molestation hysteria. Through their well-funded efforts, the general public is convinced a child molester lurks behind every tree, waiting for the golden opportunity to snatch a child. In addition, not satisfied with just terrifying the public, these forces have created a perception that child abuse is rampantly occurring behind the closed doors of our neighbors and friends.

      Many politicians seek and maintain their positions by running campaigns aimed at the voter's emotional desire to protect children. An effective way to follow this campaign promise is to enact laws that eliminate basic rights of criminal defendants charged with any form of child abuse.


      Prosecutors and the child saving industry have convinced the legislature that merely creating hysteria is not enough to insure conviction for those accused. In addition, rights originally created in our constitution to protect the criminal defendants must be eliminated.

      All across our nation, state legislatures have supported child advocacy special interest groups. The following illustrates how constitutional rights have been taken away in child sexual assault trials:

      1. No Right to Confront Your Accuser: Criminal law codes have been rewritten to where in many cases, the child accuser does not have to appear in court and face the accused. Instead, the state can offer the child's testimony through a video tape made by agents of the prosecution.

      2. "Hearsay Evidence"
      "Hearsay" evidence is when a witness testifies about something they do not personally know, but were told by someone else. Hearsay is considered unreliable and is normally inadmissible as evidence against an accused. In child abuse cases however, hearsay evidence is admitted as evidence of guilt. A so called "outcry" witness can testify as to what a child supposedly said to them regarding the alleged abuse.

      3. "Syndrome Evidence" Is Admissible Against the Accused:
      In most states, the prosecution can have an expert witness testify that the child is suffering from "Child Sexual Abuse Accommodation Syndrome" (CSAAS). This psychological "mumble jumble" is an unscientific theory of supposed traits of abused children. The psychologist who came up with this syndrome many years ago has since indicated that this theory is not reliable evidence in a court of law. Prosecutors do not care! This junk science makes its appearance in courtrooms across the country daily.

      With syndrome evidence, the state replaces its lack of real proof with speculation. CSAAS theorizes that because an alleged victim is supposedly demonstrating certain behavioral patterns that he/she must have actually been abused. Unfortunately, a big problem with this and other syndromes is that the character traits offered to show abuse are also common for non-abused children. If the child has been crying, he/she must have been abused. If the child has nightmares, he/she must have been abused. If the child is withdrawn, he /she must have been abused. If the child is outgoing, he/she must have been abused. If the child is happy around the accused, its because the child enjoyed the abuse. The list of factors goes on forever. But to a jury, when an expert witness is connecting typical childhood behavior with indicators of abuse, the testimony is extremely damaging to the falsely accused.

      4. Convictions Without Physical Evidence:
      Our prisons are full of persons who have been convicted of child molestation without any physical evidence ever introduced against them at trial. In other words, the typical evidence in which the state offers to convict a defendant, such as body fluids, blood, semen, hair, DNA, are not introduced at trial to link the accused to a crime.

      Medical nurses and employees whose livelihoods depend upon their contracts with child advocacy centers will give opinions that a child was abused. Failure to give the right opinion will mean the contract is not renewed. These opinions from medical "experts" will say the findings are "consistent with" sexual abuse. Of course, "consistent with" is not a true medical diagnosis. This testimony, as demonstrated by a competent defense attorney will reveal the findings given as "consistent with abuse" are just as "inconsistent with abuse."

      Instead of physical and medical evidence, the falsely accused are convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juries fear of releasing a child molester back into the community. T