How many innocent men must die?

You know it's happened. We all know it's happened. We all try to pretend that there is no way it could happen. But that's just a fantasy we create to get through the day.

The Columbia Human Rights Law Review has dedicated an entire issue to a case in Texas where it appears far more likely than not that the State of Texas murdered an innocent man. In 1989 Carlos DeLuna was strapped to a gurney and killed for the 1983 murder of Wanda Lopez. But a professor and his students have made a compelling case that Mr. DeLuna wasn't the killer.

Mr. DeLuna was convicted largely on the word of one eyewitness. And it turns out that the witness isn't so sure it was Mr. DeLuna he saw. The evidence uncovered by the law students points to another Carlos - Carlos Hernandez - as the murderer.

And if the law students are right - how does that change the way we think about the death penalty? Can we really trust twelve citizens to make the decision whether or not to take someone's life? What safeguards are there to prevent an innocent man from being executed?

Actual innocence isn't grounds for an appeal. There must be some procedural error in the record in order to overturn a verdict. Disagreeing with the verdict won't cut it.

The case raises questions about just what constitutes a fair trial. Is a procedurally fair trial that generates a wrong verdict (convicting a factually innocent man) actually a fair trial? And what does that say for our system of justice when a trial can be conducted by the rules and a jury still finds that a factually innocent man is guilty?

The answers are troubling indeed. If those things can happen, can we allow the state to take the life of an inmate under any circumstances? If we have no safeguards to prevent one innocent man from being convicted, can we, in good conscience, take a life?

Even if we assume that Mr. DeLuna is the only innocent man to be executed in the United States, isn't that one person too many? How do you balance the risk of murdering an innocent man with killing an infinite number of guilty men?: At what point does that one life no longer tip the scale?

We have seen too many examples of men who have watched their lives pass by in prison before being exonerated. There are few things worse than the knowledge that an innocent man has sat behind bars while the state does everything they can to keep him there. The knowledge that an innocent man was killed by the state is one of those things.

The scale of justice demands that we end the madness of the death penalty before another innocent person is put to their death. Enough is enough.


Click here to read Los Tocayos Carlos, the spring edition of the Columbia Human Rights Law Review.

Williamson County DA dragged kicking and screaming toward justice

John Bradley did his best to keep Michael Morton locked up behind bars. Even while presiding over the (emasculated) Texas Forensic Science Commission, the Williamson County District Attorney fought efforts by Mr. Morton's attorneys to conduct DNA testing on evidence introduced during in 1987 trial. Mr. Morton was charged with and convicted for the murder of his wife.

But it was all to no avail.

Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.

There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.

Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!

Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.

"You do have my sympathies," Harle said. "We don’t have a perfect system of justice, but we do have the best system in the world."

Unless you're behind bars for over two decades for a crime you didn't commit, I suppose.

Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.

According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.

Williamson County District Attorney John Bradley said that the new developments - which he said were a lightning bolt type of discovery - warranted a reversal of Morton's murder conviction. 

"It is my just, as district attorney, to make sure that justice is done," Bradley said after the court action today.

Well, I guess it's too late to worry about whether justice was served when Cameron Willingham was murdered by the state of Texas for a crime he didn't commit. After all, he was already dead, what good is justice when you're six feet under?

Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?

Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.

Morton Findings

See also:

"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)

"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)

"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)

"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)

Book Review: False Justice

Jim Petro is a rock-ribbed Republican who is a former Attorney General of Ohio. He is the most unlikely person to get involved in the innocence movement -- but involved he is. In his book False Justice: Eight Myths that Convict the Innocent, Mr. Petro takes us on a journey that shows how innocent folks find themselves in prison and the struggle to exonerate them.

The eight myths to which Mr. Petro refers are:

1. Everyone in prison claims innocence
2. Our system almost never convicts an innocent person
3. Only guilty people confess
4. Wrongful convictions are the result of innocent human error
5. An eyewitness is the best evidence
6. Conviction errors get corrected on appeal
7. It dishonors the victim to question a conviction
8. If the justice system has problems, the pros will fix them

Mr. Petro spends a good deal of ink discussing the problems with eyewitness testimony. He points out that 25% of rape suspects are cleared when their DNA is tested against crime scene DNA prior to being indicted. He notes that 30% of witnesses choose one of the "fillers" in lineups.

In Manson v. Braithwaite, the US Supreme Court held that even if eyewitness identification process is unduly suggestive, the testimony will be heard if it meets a five point "reliability" test. Those five points are:

1. The witness' opportunity to view the suspect at the time of the alleged crime,
2. The witness' degree of attention,
3. The accuracy of the witness' prior description of the suspect,
4. The witness' level of certainty at the time of identification, and
5. The time between the alleged crime and the identification.

Ironically enough, research has indicated that the level of the witness' certainty at the time of the identification bears no relationship to the accuracy of the identification.

Another myth that deserves being addressed is this notion that somehow questioning the legitimacy of a conviction dishonors the victims of the crime. As Mr. Petro points out, if the person convicted of the crime is, indeed, innocent, that means the real perpetrator is still on the loose. A false conviction means that an innocent man suffers, a criminal walks free and other people may have been victimized.

Of course, because the book is also an autobiography, we are subjected to Mr. Petro's political exploits in stunning detail. But, I suppose, anytime the theme of your discourse is taking the other fork in the road, you have to set yourself for the great conversion. Just read the first half of The Autobiography of Malcolm X and you'll see what I mean. It is, however, just a minor quibble, because, no matter how Mr. Petro arrived at that fork in the road, he clearly took the right path.

As a postscript to the book, in December 2010, Dean Gillispie was once again denied a new trial.

Adding insult to injury

It's not enough that the State of Texas took 18 years away from Anthony Graves for a crime he didn't commit. Now Susan Combs, the state comptroller, has decided Texas will not reimburse Mr. Graves for the years he spent behind bars.

The state calculated that 18 years of Mr. Graves' life was worth about $1.4 million. But then Ms. Combs decided that because the order releasing Mr. Graves didn't state that he was innocent that he wasn't entitled to one red cent.

If you'll recall, Mr. Graves was convicted of capital murder in 1994 but that conviction was overturned by the US 5th Circuit Court of Appeals in 2006 on the grounds that the prosecutor failed to disclose exculpatory material to the defense and relied on perjured testimony. The state was prepared to retry Mr. Graves in 2010 but the charges were dismissed in October and Mr. Graves was ordered released.

The man responsible for robbing Mr. Graves of his liberty, Charles Sebesta, is still practicing law with very little chance the State Bar will ever disturb him.

The irony is that the current District Attorney for Burleson and Washington Counties, Bill Parham, acknowledged Mr. Graves' innocence when he and Kelly Siegler stood around soaking up praise for (finally) doing the right thing. Apparently that's not enough for Ms. Combs.

Mr. Graves can't go to Governor Goodhair for a pardon because he would have to admit he was guilty -- which we all know he isn't.

So, Bill and Kelly, if you really want to deserve the unearned praise you received, now's the time to do the right thing and petition for Mr. Graves to be compensated for the years he lost.

Burying the truth like a bone

The blow-dried one, Gov. Rick Perry of Texas, is willing to do whatever he can to erase the stink of an innocent man being executed under his watch -- and his lapdog, Williamson County District Attorney John Bradley, is doing just as his master commands.

This morning in Houston, the Texas Forensic Science Commission met with Mr. Bradley's move to bury the Cameron Willingham matter heading the agenda. Bradley has prepared a memorandum that would remove the Commission's authority to investigate the Willingham matter any further. According to the Houston Chronicle's Rick Casey, the memo is unsigned and undated but states it was drafted, edited and approved by Mr. Bradley and two other members of the Commission - one of whom, Lance Evans, is a defense attorney and member of TCDLA.

Ever since questions arose regarding the evidence the state used to convict, and later murder, Cameron Willingham, Gov. Goodhair has done everything in his power to make the elephant in the corner disappear. The last thing Perry wants to have to do is answer questions about the Willingham case during the fall campaign for the Governor's Mansion.

The governor's toady, Mr. Bradley, has been only too glad to do Perry's bidding as he continues to disregard his ethical duty as a prosecutor to see that justice is done.

UPDATE:

Based on this Houston Chronicle report, Gov. Perry will be a happy camper tonight as four members of a committee found "insufficient evidence" to suggest that arson investigators were negligent or committed acts of misconduct in their investigation.

Members of a commission reviewing the disputed conclusion that a Texas man committed arson, which led to his 2004 execution for the deaths of his three children, say they do not believe fire investigators in the case committed negligence or misconduct.

Members of the four-person panel within the Texas Forensic Science Commission that is reviewing the probe said Friday their initial findings conclude there is insufficient evidence to establish whether there was negligence or misconduct on the part of the arson investigators. The investigators concluded Cameron Todd Willingham set a 1991 fire at his family's Corsicana home that killed his three young daughters.

A final report on the probe was set to be presented at a commission meeting later this year.

Gov. Perry had the opportunity to discover the truth in the Willingham matter but, instead, chose political expediency. What does this say about the other men sitting in Texas prisons based on testimony of junk scientists?

Skinner execution stayed despite Perry's best efforts

changeJustice: Execution set for 6pm CST tomorrow, Hank Skinner needs us now...Tell TX Governor to grant stay!http://cot.ag/bsEfCP

PrisonReformMvt: Call to action! Demand a stay for#HankSkinner Gov Perry 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000

thetrialwarrior: SPEAK OUT AGAINST INJUSTICE: Call Texas Gov. Perry 512-463-1782 and urge him to stay #HankSkinner's execution to allow a DNA test.

Messages bounced everywhere across the Twitterverse yesterday regarding the pending execution of Hank Skinner. Scarely an hour before the State of Texas was set to pump poison through Mr. Skinner's veins, the United States Supreme Court granted a stay of execution.

For an excellent analysis of the procedural history of Mr. Skinner's case, please see Houston criminal defense attorney Mark Bennett's blog post.

Back in Twitterville, tweeple were congratulating each other for their efforts in sparing Mr. Skinner's life (at least for now). However, social media had nothing to do with the Supremes' decision late yesterday afternoon. Moreover, the blow-dried one, Governor Rick Perry, ignored the deluge of phone calls, faxes, e-mails, and tweets. You see, there's nothing to be gained for Gov. Perry in delaying the execution. The votes of death penalty abolitionists and criminal defense attorneys aren't enough to make the governor think twice about allowing the murder of a man to go forward.

Perry has sabotaged (successfully to date) the work of the state forensic science commission in looking at the Cameron Willingham case. Perry's supporters don't care about due process and claims of actual innocence -- they want blood. And that blood is what will keep Perry on the public dole for another four years.

Judge overturns conviction based upon actual innocence

In New York, Manhattan Supreme Court (trial court) justice John Cataldo reversed a conviction on appeal on the grounds that the defendant had proven his actual innocence by clear and convincing evidence.

It has long been the rule that in order to appeal a conviction a defendant had to show he was harmed by a trial court's ruling or that there was no evidence that was not available at his trial. Whether one was factually innocent or not was not a question the appellate courts were concerned about.

Judge Cataldo's order in New York v. Bermudez might change the calculus. In his order, Judge Cataldo released Mr. Bermudez, after serving 18 years in prison, and ordered the indictment dismissed without prejudice.

Forensic panel cancels meeting after Gov. Perry dismisses three members

Forty-eight hours before the Texas Forensic Science Commission was set to meet to discuss a report that was critical of the arson investigation in the Cameron Willingham case, Governor Rick Perry replaced three members of the commission, forcing it to cancel Friday's meeting.

The impeccably coiffed governor named Williamson County District Attorney John Bradley and forensic scientist Norma Jean Farley to take the now-vacant seats on the commission. The third new member will be named after the Texas Association of Criminal Defense Lawyers (of which I am a member) provides a recommendation.

Perry told The Associated Press the terms of the dismissed board members were expiring and replacing them "was pretty standard business as usual." But several board members have served more than one term and had their appointments renewed.

Earlier this month, Perry expressed confidence in Willingham's guilt and derided reports questioning the arson investigation, referring to their authors as "supposed experts." He said he had not "seen anything that would cause me to think that the decision" to execute Willingham "was not correct."

Craig Beyler, an arson expert from Baltimore, issued a report that was highly critical of the investigation undertaken by Deputy State Fire Marshal Manuel Vasquez in the Willingham case. Appointing a prosecutor, especially from Williamson County (north of Austin), is a nice touch from the blow-dried one since most prosecutors just assume that if you're a defendant that you must be guilty.

Nixon had his Saturday night massacre, Perry has his Wednesday night drive-by.

I guess the anticipation was just too much for Perry to bear -- after all, it doesn't do much for one's reputation to be the one in charge when an innocent man was sent to his death.

In other news, the fox has been been chosen to guard the hen house.

Evidence mounts that Texas executed an innocent man

In August 2008, I wrote about the case of Cameron Willingham who was murdered by the State of Texas for allegedly setting a fire that killed his three children. Today there is more evidence than before that Texas murdered an innocent man.

In the upcoming issue of The New Yorker is a piece by reporter David Grann that looks at the Willingham case inside and out. Mr. Grann's portrait of incompetence and intellectual dishonesty casts the blame for Mr. Willingham's murder by lethal injection far and wide.

While he castigates Deputy State Fire Marshal Manuel Vasquez for his junk science, laziness and perjured testimony and Mr. Willingham's court-appointed attorneys for their (shall we say) failure to provide a vigorous defense, Mr. Grann provides a haunting look at the hell Mr. Willingham endured during his years on death row.

The article also makes me wonder how much longer we will have to put up with pseudo-scientific evidence such as bite mark analysis, handwriting analysis, tire tread analysis and all the other expert testimony that is "more art than science." When will our judiciary finally understand that criminal trial work is not merely an academic exercise? How many times will we have to hear the Court of Criminal Appeals state that factual innocence alone is insufficient to overturn a conviction? When will our lawmakers realize that the death penalty never has been, and never will be, an effective deterrent?

How many more innocent men have been murdered in the death house in Huntsville?

Same song, different verse

Stop me if this sounds all-to familiar... a man, after spending decades in prison, based on forensic evidence examined and evaluated by the Houston Police Department Crime Lab, is eliminated as a suspect by independent forensic testing.

"This is yet another reason why we need an independent crime lab. How many more reasons will it take?" -- Pat Lykos, Harris County District Attorney

Gary Alvin Richard was convicted of rape and robbery in 1987 based, in large part, on testimony from James Bolding, a supervisor in the HPD Crime Lab. Ironically enough, an analyst named Christy Kim performed the lab tests. Ms. Kim was also the analyst who tested samples in the Josiah Sutton case (Mr. Sutton has since been exonerated). It turns out that the crime lab withheld exculpatory evidence that could have led to Mr. Richard's acquittal.

The victim identified Mr. Richard some seven months after the attack took place. Lab tests apparently came back with differing conclusions but only test results that confirmed Mr. Richard as the attacker were reported.

Mr. Richard's attorney, Bob Wickoff, is leading an investigation into 160 cases an independent investigator flagged as problematic.

This case, as well as other exonerations, points out what can go wrong when an investigation is tailored to prove a certain person committed an act. Of course it's always more efficient to start with your conclusion and cherry-pick the facts that lead you to it. However, it's much more intellectually honest to test the evidence and follow the trail to where it leads you.

You can't always believe what you (think) you see

On Wednesday The Justice Project released a scathing report entitled "Convicting the Innocent: Texas Justice Derailed" in which TJP analyzed the reasons that thirty-nine innocent citizens spent over 500 years in prison before being exonerated by DNA evidence. According to the research, eyewitness identification "is by far the leading factor in wrong convictions in Texas." 

"Any wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the innocent to prison, or death." -- Wallace B. Jefferson, Chief Justice, Texas Supreme Court

My colleague, Houston criminal defense attorney Mark Bennett commented on my blog post about Harris County DA Pat Lykos' report on the Rachell exoneration, that eyewitness identification was a much more serious issue than faulty DNA analysis. Mr. Bennett is correct in that assessment as DNA evidence is present in but a small minority of cases.

Per TJP's report:

"While the majority of this report focuses on the wrongful convictions uncovered through DNA testing in Texas, they are only the tip of the iceberg. The advent of DNA technology has given our criminal justice system a tool that can provide incontrovertible evidence of guilt - and innocence - in cases where the presence of biological evidence is dispositive. Unfortunately, biological evidence is present in only a fraction of criminal cases. While DNA is an invaluable tool, it does not solve the problems of unreliable evidence that repeatedly surface when wrongful convictions are discovered. The vast majority of cases simply do not have probative DNA evidence."

This lack of probative DNA evidence presents a substantial hurdle to most citizens seeking exoneration - how do you prove your innocence?

"While a defendant is innocent until [should really read "unless"] the prosecution proves guilt, after a conviction occurs, the burden shifts to the defendant to prove innocence. New evidence that merely casts doubt on the conviction is not nearly enough to overturn a conviction - which is why DNA evidence, where it exists, is so successful in exonerating the innocent. Without DNA evidence, inmates face an almost insurmountable challenge to establish their innocence conclusively."

The report lists the following facts regarding exonerations in Texas:

• Texas has had more wrongful convictions exposed by DNA (39) than any other state in the country;
  
• The 39 exonerated citizens spent over 548 years in prison (an average of 14 years each);
  
• State and local governments have paid out over $17 million in compensation to the exonerated;
  
• Twelve Texas counties have uncovered wrongful convictions through DNA evidence;
  
• Dallas County leads in the number of wrongful convictions because Dallas County preserves DNA evidence while other counties destroy it;
  
• Nine citizens have been freed from death row based on evidence of innocence;
  
• 85% of the wrongful convictions involved eyewitness identification;
  
• 28% of the wrongful convictions involved the use of unreliable or limited forensic methodologies;
  
• 18% of the wrongful convictions involved false forensic testimony;
  
• 18% of the wrongful convictions involved the withholding of exculpatory evidence or other prosecutorial misconduct;
  
• 13% of the wrongful convictions involved accomplice testimony; and
  
• 13% of the wrongful convictions involved false confessions or guilty pleas.
  

While I will come back to this report in a future posting, today I am focusing on the reliability of eyewitness identification and what should be done to lessen the impact of mistaken eyewitness identification in the future.

The report points out that Texas has no statutory rules or standards regarding how live lineups or photo arrays are conducted. More troubling is the fact that some 88% of law enforcement agencies have no written policies regarding lineups and photo arrays.

TJP calls on Texas to adopt the following safeguards when conducting lineups and photo arrays:

• Law enforcement agencies should document lineups or photo arrays by providing the photos used in a photo array or a photograph of the live lineup as well as all dialogue and witness statements made during the procedure.
• Law enforcement agencies should inform eyewitnesses, prior to viewing a live lineup or photo array that the accused may or may not be in the lineup. Eyewitnesses should not feel compelled to make an identification.
• Lineups and photo arrays should be composed "fairly." The report calls for fillers to be selected based not on their resemblance to the accused but, instead, on their resemblence to the description provided by eyewitnesses.
• The person conducting the lineup or photo array should not know the identity of the accused. Having a "blind" person conduct the lineup reduces the chances of the officer influencing the results of the lineup or photo array.
• Law enforcement agencies should avoid exposing eyewitnesses to multiple viewings of the accused.
• Law enforcement agencies should consider using sequential arrays instead of traditional arrays. In a sequential array, an eyewitness views one individual at a time which prevents the witness from making an identification through process of elimination.
  

While juries seem to accept eyewitness testimony as the most accurate evidence, we know instinctively that such testimony is fraught with problems: lighting, time, memory, excitement, fear, anger and ethno-centrism among others. The proposals in The Justice Project's report are a meaningful first step in reducing the number of wrongly convicted citizens behind bars.

Anatomy of an exoneration

On March 12, 2009, Harris County District Attorney Pat Lykos and Houston Police Chief Harold Hurtt released a chronology, entitled the Rachell Report, of the wrongful conviction and (eventual) exoneration of Ricardo Rachell. Here is how a miscarriage of justice unfolded:

On October 20, 2002, the complaining witness told two women at a Wyatt's Cafeteria on Griggs Road that a man had tried to kill him. Once he was taken home, the child told the police that a black male offered him $10 to pick up trash and then took him to the 3700 block of Southlawn.

The following morning, the child's mother kept him out of school. As she returned home after taking her oldest son to school she saw the man she thought assaulted her son. She, and a couple of friends, walked around the neighborhood until she saw him again. Her son told her that was the man and she followed him to his mother's house and then called the police.

When the police arrived they placed Mr. Rachell in the backseat of a patrol car and asked the complaining witness if Mr. Rachell was the person who kidnapped him. The boy said he was. The boy then told Officer Wilson that Mr. Rachell took him to a vacant house, pulled down his pants and grabbed him from behind around the waist. ADA James Alston, who was working intake, declined to accept charges at that time.

Officer Wilson found a vacant new house on Foster Street with signs of forced entry and muddy footprints leading to the second floor. He also found bicycle tracks in the yard next door.

The case was then assigned to Ofc. Clemons of HPD's Juvenile Sex Crimes division. Ofc. Clemons contacted the complaining witness' mother to arrange for an interview with her son at the Children's Assessment Center. The boy described his attacker as a light-skinned black man having a "messed up eye" and no teeth. He told Ofc. Clemons he had seen Mr. Rachell in the neighborhood before. Deborah Parks, R.N., then performed a sexual assault examination on the boy and delivered the examination kit to Ofc. Clemons who tagged it.

Ofc. Clemons then spoke to the boy's mother who could not explain why she believed Mr. Rachell was the man who attacked her son. The mother told Ofc. Clemons she saved the clothes her son was wearing that day because a "yellowish cream substance" in his underwear made her uneasy. Ofc. Clemons then placed the sexual assault examination kit and the clothes in the HPD property room.

On October 22, 2002, ADA Serna accepted a charge of aggravated sexual assault of a child against Mr. Rachell. The following day Ofc. Clemons presented the facts of the case to ADA Freyer in person at the DA's office.

The 185th Judicial District Court appointed Ron Hayes to represent Mr. Rachell on October 28, 2002. Mr. Hayes was the only attorney appointed to represent Mr. Rachell and he never requested that tests be performed on the DNA samples.

Mr. Rachell had three prior arrests for possession of marijuana, trespass of a habitation and burglary of a habitation. He had pled guilty to the burglary charge was sentenced to six years in the penitentiary (he was paroled in 1985).

Mr. Rachell was arrested on October 24, 2002 and submitted a sample of DNA to Ofc. Clemons. That sample was also checked into the HPD property room. During an interview recorded by Ofc. Clemons, Mr. Rachell repeatedly denied any involvement in the attack.

On December 12, 2002, the complaining witness and a friend identified Mr. Rachell from a photo array.

Then ADA (now President-elect of the Harris County Criminal Laywer's Association) Joanne Musick presented the case to a grand jury which returned an indictment on January 30, 2003. There were no requests made to test the DNA evidence.

Jimmy Ortiz (also now a criminal defense attorney) took over the case from the departed Ms. Musick on April 25, 2003 and tried the case to a jury in June 2003. Mr. Ortiz never requested tests on the DNA evidence in the state's possession. During the trial of the case, Mr. Hayes brought out testimony that DNA samples were taken but never tested. He brought up the lack of testing again during his closing argument.

At trial, the mother testified that she was not certain the man she saw in the neighborhood the morning after the attack was the man who assaulted her son. She made no mention of Mr. Rachell's deformed face. The complaining witness also failed to mention Mr. Rachell's face.

Mr. Rachell was convicted of aggravated sexual assault of a child on July 3, 2003 and was sentenced to 40 years in prison.

Hon. Shawna Reagin (now a judge in the 176th Judicial District Court) was appointed to handle Mr. Rachell's appeal. She filed an appellate brief on January 9, 2004. The Court of Appeals affirmed the conviction on September 30, 2004.

Mr. Rachell then filed a petition for a Writ of Habeas Corpus on September 11, 2005 that was denied on November 7, 2007.

Mr. Rachell sent Ofc. Rodriguez a letter on September 21, 2007 in which he stated that Andrew Wayne Hawthorne was the man who committed the assault for which he was convicted. Lt. Staney reviewed the case and, although he noted similarites in the attack for which Mr. Rachell was convicted and attacks committed by Mr. Hawthorne, he was unconvinced. He did, however, find the untested forensic evidence and requested that the DNA material be analyzed.

In the Spring of 2007, Mr. Rachell filed a Chapter 64 (Texas Code of Criminal Procedure) request in the 185th Judicial District Court asking that DNA testing be performed on the items in evidence. According to the report, Mr. Rachell's attorney failed to file the necessary motion to begin the process of testing the biological evidence. ADA Sally Ring obtained the required affidavits and requested the trial court to order DNA testing.

The Texas Department of Public Safety issued a report on October 28, 2008 that concluded that Mr. Rachell's DNA did not match the DNA samples found on the items collected in this case. A bench warrant was issued for Mr. Rachell and a personal bond was granted (releasing Mr. Rachell from custody) while the state prepared the writ that would lead to the conviction being overturned.

Mr. Hawthorne was identified as the man who assaulted the complaining witness in a DPS lab report dated December 12, 2008. Mr. Hawthorned confessed to the crime on January 13, 2009 and charges were filed against him on February 24, 2009.

According to the report, "[t]he wrongful conviction of Ricardo Rachell and the length of his incarceration [were] the result of a series of unfortunate events, blunders and omissions. There was a cascading, system-wide breakdown."

One of the system failures was the shuttering of the HPD Crime Lab in December 2002 (it would not reopen until May 11, 2005). During the period in which the lab was closed, biological material had to be submitted either to the DPS or to a private lab for testing. This, however, does not explain why neither the state nor the defendant's attorney requested testing on the material.

Mr. Hayes may not have requested testing as part of his defense strategy - raising reasonable doubt. After all, the burden of proof is on the state and it is, therefore, the state's responsibility to test biological evidence in a case. The fact that no tests were conducted could raise a reasonable doubt that Mr. Rachell committed the crime.  Mr. Hayes was aware that a DNA analysis could be evidence that Mr. Rachell did commit the crime (sometimes it's better not to conduct tests on evidence).

At the time of the assault, the Harris County DA's Office did not have a policy regarding the testing of biological evidence.

The officers who responded to the initial call did not document the description of the alleged assailant; this, according to the report, may have led to the misidentification of Mr. Rachell.

The report also notes that Ofc. Clemons requested testing on the biological material but that no one ever followed up on his request. But "considering the deplorable conditions and incompetence in the lab, it may have ironically been beneficial to Rachell" that no tests were performed.

Finally, no one in the Juvenile Sex Crimes division was able to detect a pattern in child sexual assaults "virtually identical" to the one in this case that occurred less than one month after Mr. Rachell was arrested. While investigators eventually detected a pattern, no one bothered to review the file in Mr. Rachell's case.

So, in retrospect, we have a police investigation that was inadequate and a district attorney's office more interested in obtaining a conviction than in discovering the truth. How many other people are wrongly sitting behind bars today in cases in which there is no biological evidence to exonerate them?

Giving credit where credit is due

Harris County District Attorney Pat Lykos blasted the Houston Police Department and her predecessor for their roles in the wrongful conviction and imprionment of Ricardo Rachell, who was exonerated in a sexual assault after DNA was (finally) performed on samples taken back in 2002. Mr. Rachell spent more than five years in prison.

Ms. Lykos called for DNA testing in every case in which testing is available and relevant. In addition, Ms. Lykos repeated her call for the shuttering of the HPD Crime Lab and the creation of a regional crime lab, possibly under the auspices of the Harris County Medical Examiner's Office.  The National Academy of Sciences called for the creation of regional crime labs in a recent report exposing problems in today's forensic sciences.

County Judge Ed Emmett, Houston Mayor Bill White and HPD Chief Harold Hurtt all expressed support for the proposal.

Mr. Rachell proclaimed his innocence before, during and after his trial, even going so far as to blame Andrew Wayne Hawthorne for the assaults. Mr. Hawthorne has since been charged with the assault. The DNA testing performed on the rape kit from 2002 excluded Mr. Rachell and pointed toward Mr. Hawthorne.

Ms. Lykos deserves credit for acknowledging that there are innocent people serving time in prison. She likewise deserves credit for her proposal to take the crime lab out of HPD's jurisdiction and put it under a department with no stake in the outcome of a criminal case.

DNA testing clears Texas man who died behind bars

Travis County District Judge Charles Baird has ordered the posthumous expunction of Timothy Cole's record. Mr. Cole died in prison while serving a sentence for a rape he did not commit. Judge Baird called the exoneration the "saddest case" he'd ever handled.

Mr. Cole, a student at Texas Tech with no criminal record, was charged with and convicted for the rape of fellow Texas Tech student Michele Mallin in 1985. Mr. Cole rejected the state's offer of probation in exchange for a guilty plea and refused to confess to the crime before the parole board. He died behind bars in 1999 as the result of complications from asthma.

Assuming that Mr. Cole received a fair trial, fairness does not equate to correctness. Juries get things wrong. It's yet another reason to question elected officials who have toiled to limit the right of inmates to seek post-conviction relief.

DNA tests conducted in 2008 linked inmate Jerry Wayne Johnson to the crime. Mr. Johnson testified in court on Friday that he was the rapist. He apologized to Ms. Mallin and to Mr. Cole's family. Mr. Johnson's attempted confession in 2001 was discarded because the court required physical proof of his involvement in the crime before anyone would consider the exoneration of Mr. Cole.

Ms. Mallin picked Mr. Cole out of a photo array. Of the six photos in the array, five were mug shots and one was a polaroid of Mr. Cole.

Mr. Cole's family, The Innocence Project and Ms. Mallin have all asked that Mr. Cole's name be cleared.

"No person deserves what that man got. He could have been a father, he could have been a grandfather right now." -- Michele Mallin

This tragic case brings up so many questions. Why wasn't the rape kit tested before Mr. Cole was tried? How reliable is eyewitness testimony? How much influence does the make-up of a photo array or lineup exert on the eyewitness or complaining witness? And, biggest of all, how many other innocent men and women are there locked behind bars in Texas?

See also:

• National Public Radio's coverage (Feb. 5, 2009)


• Grits for Breakfast (July 1, 2008)


• StandDown Texas Project (Feb. 4, 2009)


• Houston Chronicle (Feb. 6, 2009)


• Interview given by Judge Baird to PBS Frontline about the Roy Criner case

Is innocence a bar to execution?

This just in...the State of Texas has decided that executing an innocent citizen is, after all, a violation of the Eighth Amendment.  

Since 1992, the official stance of Texas (and the U.S. Supreme Court) was that (f)actual innocence is not a bar to execution.  In arguments before the U.S. Supreme Court, assistant Texas Attorney General Margaret Griffey argued that it was not a violation of the Eighth Amendment for Texas to execute a man they knew was innocent.

Now, in response to a question from Houston Chronicle columnist Lisa Falkenburg, Jerry Strickland, a spokesman for the Attorney General's Office, stated that executing an innocent citizen would be a "miscarriage of justice."

Of course, just last month the state argued against Larry Swearingen's claim of actual innocence before the 5th Court of Appeals on the grounds that he had missed the deadline to file his claim.

So, is it okay to execute an innocent man or not?

See also:

• Innocent plea needs court hearing (Houston Chronicle, Jan. 26, 2009)
  

Actual innocence

One of the hardest tasks for a criminal defense attorney is to defend a citizen who is (absolutely) innocent of the charge filed against him. The actually innocent citizen expects a dismissal or, if the prosecutor won't listen to reason, an acquittal.

The job becomes thankless as the process drags on and the innocent citizen is inconvenienced by having to take off work, drive downtown, pay for parking and sit in the courthouse for hours.

I had a client who had been charged with stealing books from a university bookstore. We had a dozen alibi witnesses who would have testified that he was in class at the time of the theft. There was an eyewitness who described the thief to the police -- but her description bore no resemblance to my client. Given all of that, it still took multiple settings before the prosecutor found the courage to let the case go.

After the ordeal was over, my client looked at me and asked how he could get his reputation back -- I had no answer for him. We couldn't even get an expunction because the statute of limitations hadn't run and the DPS would oppose it.