Convicting the Innocent - TX Justice Derailed, Justice Project, 2009
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Convicting the Innocent: T e x a s J u s tic e D e r a i l e d Stories of Injustice and the Reforms That Can Prevent Them THE JUSTICE PROJECT EDUCATIO FUND “Any wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the innocent to prison, or death.” — W allace B. J efferson , C hief J ustice of the T exas S upreme C ourt THE JUSTICE PROJECT The Justice Project (TJP) is a non-profit, non-partisan organization dedicated to improving the fairness and accuracy of the criminal justice system. TJP’s Campaign for Criminal Justice Reform seeks to reaffirm America’s core commitment to fairness and accuracy by designing and implementing national and state-based campaigns to advance reforms that address significant flaws in the American criminal justice system. The Justice Project has developed a national program of initiatives designed to address and affect the policies and procedures that perpetuate errors and contribute to the conviction and incarceration of innocent people. As such, TJP advocates for 1) improvements in eyewitness identification procedures; 2) electronic recording of custodial interrogations; 3) higher standards for admitting informant or accomplice testimony at trial; 4) expanded discovery in criminal cases; 5) improvements in forensic testing procedures; 6) greater access to post-conviction DNA testing; 7) proper standards for the appointment and performance of counsel in capital cases; and 8) improving prosecutorial accountability. The Justice Project Staff John F. Terzano, President Joyce A. McGee, Executive Director Robert L. Schiffer, Executive Vice President Kirk Noble Bloodsworth, Program Officer Edwin Colfax, Director of State Campaigns Rosa Maldonado, Controller Leah Lavin, Development Coordinator Alanna Holt, Policy Coordinator Lauren Brice, Policy Associate Acknowledgements: The Justice Project would like to thank Jennifer Willyard and Michelle Strikowsky for their contributions to this report. For information on ordering additional copies of this report, contact Edwin Colfax at (512) 391-2320. For more information on The Justice Project, contact (202) 638-5855 or firstname.lastname@example.org. 1025 Vermont Avenue, NW, Third Floor, Washington, DC 20005 (202) 638-5855 • Fax (202) 638-6056 www.thejusticeproject.org 510 S. Congress Avenue, Suite 304 Austin, TX 78704 (512) 391-2320 • Fax (512) 391-2330 www.thejusticeproject.org/state/texas Cover: upper right, Greg Kendall-Ball / Innocence Project of Texas; Upper left, lower left and lower right, Dallas Morning News ©2009 The Justice Project — All Rights Reserved. Convicting the Innocent: T e x a s J u s tic e D e r a i l e d Clay Graham About The Justice Project EDUCATION FUND Table of Contents Factors Leading to Wrongful Convictions......................................2 Wrongful Convictions Threaten Public Safety...............................2 The Limits of DNA Evidence..........................................................4 Texas DNA Exoneration Facts.........................................................5 Jurors Deserve the Most Reliable Evidence....................................6 Reform: Improving the Reliability of Evidence.............................6 Eyewitness Identification.................................................................6 Electronic Recording of Custodial Interrogations.........................8 Jailhouse Informant Testimony.......................................................9 Forensic Oversight..........................................................................10 Expanded Discovery.......................................................................11 Stories of Injustice: The Texas DNA Exonerated.........................12 The Texas DNA Exonerated Chart................................................28 THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed S ince 1994, Texas has exonerated thirty-nine innocent people who served over 500 years in prison for crimes they did not commit. This report contains brief overviews of these thirty-nine cases, all of which have been exposed by DNA evidence, and analyzes the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can the fairness, accuracy, These thirty-nine DNA increase and reliability of its criminal cases expose a criminal justice system. Because DNA evidence is justice system that is only available in a fraction of wrought with problems cases, the wrongful convictions described in this report are only that lead to wrongful the beginning. There are many convictions. other wrongful convictions that have been cleared without the benefit of DNA. While non-DNA exonerations are more difficult to prove, they are similar to DNA cases in that they trace back to the same flawed procedures in need of reform. As such, these thirty-nine DNA cases expose a criminal justice system that is wrought with problems that lead to wrongful convictions. Although several of the exoneration cases involve instances of intentional misconduct, inadvertent error is by far more common. It would only compound these injustices, however, to assume that these mistakes were inevitable. Texas cannot ignore its broken criminal justice system. This report addresses the common causes that lead to wrongful convictions, as echoed in each of these cases, and presents practical reforms to prevent such errors. It is critical for Texas to take action. When Texas gets it wrong and convicts an innocent person, the true perpetrator remains free to commit more crimes. as microscopic hair comparison or serology inclusion), testimony from informants or accomplices with incentives to lie, false confessions and guilty pleas, suppression of exculpatory evidence, ineffective assistance of counsel, and investigative and prosecutorial tunnel vision. The last two factors, while undoubtedly at work, are difficult to pinpoint or quantify. As such, we have not attempted to measure specific instances of those problems in the remainder of the report, but briefly address them here. There is no question that the most fundamental and important protection against wrongful conviction is access to a qualified defense attorney. With appropriate investigative and expert resources, defenders can meaningfully test the evidence against their clients and argue an effective line of defense. In practice, defenders frequently go without these much-needed resources and may often lack training, skills, and support—all factors that put innocent defendants at risk. Tunnel vision refers to a normal psychological tendency to seek information that fits a theory or belief and causes one to discount or ignore informaEyewitness tion that does not fit within misidentification is that theory or belief. While investigators and prosecuby far the leading tors must eventually comfactor in wrongful mit to a theory of who is responsible for a crime, too convictions in Texas. often this commitment to a theory is premature in the investigative process, and important leads or information are either rejected or simply ignored. Wrongful Convictions Threaten Public Safety C Factors Leading to Wrongful Convictions onsidering the devastating consequences of even one of these injustices, it is clear that all reasonable steps to prevent wrongful convictions must be taken. The injustice endured by an innocent person whose most basic liberty is denied cannot be overstated. The nightmare of an unjust imprisonment ruins lives and destroys families. For the innocent, prison is a terrifying ordeal few can even imagine. Beyond the personal cost to those wrongfully convicted and the millions of dollars spent re T he thirty-nine DNA cases analyzed in this report clearly indicate that eyewitness misidentification is by far the leading factor in wrongful convictions in Texas. The majority of these misidentifications occurred in either photo or live lineups. Other factors include: false forensic testimony, reliance on unreliable or limited forensic methodologies (such w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed investigating cases and paying compensation, there a more plausible alternative suspect, but the judge is another price we all pay—true perpetrators go un- rejected this line of defense. In May 2008, DNA testinvestigated and unpunished, putting public safety ing proved that Jerry Wayne Johnson had indeed at risk. In each of these innocence cases, a criminal raped the victim of the crime for which Cole was investigation into a serious violent crime was shut imprisoned. down prematurely when authorities prosecuted the Johnson, however, continued to commit horwrong person. rible crimes. On July 4, 1985, Johnson abducted a In most cases, it took many years to bring these man and woman after a party and raped the woman wrongful convictions to light. Most of the crimes in a cotton field. While out on bond awaiting trial remain unsolved because the leads dried up long for that rape, Johnson raped a fifteen-year old girl ago. Fortunately, in some of these cases, the same at knifepoint. Additionally, Johnson was suspected DNA results that freed the innocent also identified in the murder of insurance saleswoman Mary Louthe guilty. It is in those cases that we catch a glimpse ise Smith. Smith was found beaten with a blunt of the full cost of a wrongful conviction. The crimes object and strangled. Though he was held on a two that are committed in the time between a wrongful million dollar bond in that case, the investigation conviction and the identification of stalled and Johnson was never the true perpetrator are an immeasurtried for Smith’s murder. He was The crimes that are able cost to the community. convicted of the other two rapes, committed in the time however, and is now serving a The Innocence Project’s recent review of DNA exonerations has life sentence. between a wrongful identified ninety-one actual perpetraIt is impossible to know for conviction and the tors from 233 exoneration cases—apsure what would have happened identification proximately thirty-nine percent. The if more careful eyewitness idenInnocence Project also estimates that of the true perpetrator tification procedures were used forty-nine rapes and nineteen murin the Texas Tech rape investiare an immeasurable ders were committed by actual pergation. By presenting a photo petrators following wrongful conviccost to the community. lineup in which Cole’s picture tions. Although Texas has identified stood out as different from the actual perpetrators in about thirty-five percent of fillers, police undermined their ability to get reliDNA exoneration cases, Texas has been unable to able eyewitness evidence and mistakenly came to prosecute some of those perpetrators because the believe they had their man. Had the investigation statute of limitations has passed. continued, Johnson might have been stopped beOne of the most troubling examples of the fore victimizing others. In September 2008, the threat posed to public safety from wrongful con- victim of the crime for which Cole was convicted, viction is found in the case of Timothy Cole, who Michele Mallin, spoke out publicly about her expetragically died in prison in 1999 prior to exculpa- rience and her hope that reforms are implemented tory DNA testing. Cole was convicted of one of a to avoid such mistakes in the future. string of five rapes that occurred in 1985 near the The public was also put at risk following the Texas Tech campus in Lubbock based largely on a wrongful conviction of Thomas McGowan, who victim’s eyewitness identification. The photo lineup was convicted of rape and burglary in 1985 followpresented to the victim was highly suggestive. Cole’s ing a mistaken eyewitness identification. After DNA picture stood out because the police used a color test results cleared McGowan of involvement in the Polaroid photo of Cole while the other photos were crime in 2008, police ran the DNA evidence through black and white mug shots. a national DNA database and found a match in Cole was only convicted of one of the Texas Tech Kenneth Wayne Woodson. They found that while rapes, but because of the similarities in the crimes, Woodson went uninvestigated for the McGowan the police suspected that Cole was guilty of them all. case, he committed another rape and burglary in Consequently, the investigation into the Texas Tech 1986. He was sentenced to thirty years in prison for rapes ended once Cole was behind bars. that crime and was paroled in January 2006 after During his trial, Cole’s defense lawyer tried to serving twenty years. He was then convicted of robargue that a man named Jerry Wayne Johnson was bing a bank in Richardson, his parole was revoked, w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed and he was sent back to serve prison time for the Nevertheless, the devastating costs of wrongful conbank robbery. victions make it clear that Texas cannot afford to asWoodson confessed to the crimes for which sume that these cases are merely the cost of doing McGowan had been wrongly convicted when he business in the criminal justice system. Texas must was confronted with the DNA evidence. He cannot recognize that the system is flawed and can be imbe charged for those crimes, however, as the stat- proved by implementing simple procedural reforms ute of limitations has passed. Had the investigation that greatly reduce the risk of error. into the 1985 rape not been prematurely shut down While the majority of this report focuses on the by bad eyewitness evidence, police might have been wrongful convictions uncovered through DNA testable to prevent Woodson from committing other ing in Texas, they are only the tip of the iceberg. The horrible crimes. The photo lineup that led to the advent of DNA technology has given our criminal misidentification was suggesjustice system a tool that can protive and the mistake could have While a faulty eyewitness vide incontrovertible evidence of been avoided. guilt—and innocence—in cases identification led the The statute of limitations where the presence of biological has also passed in another trouinvestigators to mistakenly evidence is dispositive. Unfortubling case in which incontronately, biological evidence is preszero in on Taylor, vertible DNA evidence came ent in only a fraction of criminal too late. Although Ronald Taylor Carroll victimized at least cases. While DNA is an invaluable was convicted of the 1993 rape tool, it does not solve the problems two other women. of unreliable evidence that repeatof a Houston woman, DNA tests later revealed the identity of the edly surface when wrongful contrue perpetrator, Roosevelt Carroll. While a faulty victions are discovered. The vast majority of cases eyewitness identification led the investigators to mis- simply do not have probative DNA evidence. takenly zero in on Taylor, Carroll victimized at least In addition to the thirty-nine DNA exoneration two other women. Carroll was convicted of two oth- cases in this report, there are scores of exonerations er rapes and was serving a fifteen-year sentence when in Texas for which there is no DNA evidence. While Taylor was finally exonerated. The victim of the 1993 a defendant is innocent until the prosecution proves rape will never get justice. guilt, after a conviction occurs, the burden shifts to Though these investigations and prosecutions the defendant to prove innocence. New evidence were done in good faith, their accuracy was under- that merely casts doubt on the conviction is not mined by unreliable evidence. If such tragic and nearly enough to overturn a conviction—which is consequential errors in evidence were unavoidable, why DNA evidence, where it exists, is so successful then one might be forced to accept them as “the cost in exonerating the innocent. Without DNA evidence, of doing business.” However, the reality is that many inmates face an almost insurmountable challenge to of the errors follow patterns that are predictable establish their innocence conclusively. Still, a surprisand preventable with the right kind of safeguards in ing number have been cleared against the odds. place. Until those safeguards have been implementIn one high-profile set of non-DNA wronged, Texas faces the risk of more investigations end- ful convictions, dozens of people were framed in ing prematurely while the true perpetrator remains a drug sting by a rogue undercover officer. In that at large to commit additional crimes. 1999 case, forty-six residents of the small town of Tulia, Texas were arrested for selling cocaine based solely on the word of one undercover officer. After it was discovered that the undercover officer had fabricated all the evidence in the cases, a collective lawsuit brought by the wrongly convicted was settled for six million dollars. n a state with thousands of criminal convictions Perhaps one of the most well-known Texas every year, the number of documented wrongful wrongful convictions was that of Randall Dale Adconvictions represents only a tiny fraction. There ams. Adams was convicted of the murder of a Dallas can be no doubt that the system usually gets it right. police officer and sentenced to death. His case was The Limits of DNA Evidence I w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed the subject of the documentary film The Thin Blue have emerged from Dallas County. The newspaper Line. The true killer, David Harris, subsequently reviewed numerous cases and documented, for exconfessed on tape. After twelve years in prison, new ample, that eyewitness evidence is routinely relied evidence of innocence came to light through Ad- upon in robberies, where it is rare to have DNA ams’ appeals and he was eventually released. evidence, even with little or no corroboration of the Another non-DNA exoneration occurred in eyewitness evidence. the case of Clarence Brandley, a janitor who was It is no accident that the vast majority of DNA wrongly convicted and sentenced to death in Mont- exonerations involve sexual assault cases where biogomery County, Texas for the rape and murder of logical evidence is often present with the potential Cheryl Ferguson in 1981. Brandley’s conviction was to clearly indicate guilt. In these cases, DNA testing overturned in 1989 after new evidence showed that reveals errors and weaknesses in many types of eviauthorities had suppressed exculpatory evidence. In dence and procedures. Our criminal justice system addition, an investigation by the FBI and the U.S. relies on these same kinds of evidence and proceDepartment of Justice found additional misconduct dures in cases where DNA evidence is not available, by the authorities in the case. All charges against putting additional innocent suspects at risk. DNA Brandley were eventually dropped. exonerations are but a window to the larger, unseen In 2004, Ernest Willis was released after serv- problem. We know that the same evidence suffers ing almost seventeen years on Death Row for the the same flaws in non-DNA cases. What we do not arson murder of two women. Willis had been living in the house where the Texas DNA Exoneration Facts fire occurred. Willis escaped uninjured and investigators believed that he had Texas has had more wrongful convictions exposed by DNA intentionally set the fire. Years later, the than any other state in the country. Pecos County District Attorney hired an independent arson expert who conCollectively, these thirty-nine men have spent more than 548 years in prison with an average of fourteen years. cluded that the evidence used against Willis was without any scientific basis, Over $17 million dollars have been paid by state and local and there was no evidence of arson. governments in civil settlements and statutory compensation The prosecutor eventually apologized to those wrongfully convicted. “for so many lost years” and said that Willis “simply did not do the crime.” Twelve counties in Texas have uncovered wrongful convictions through DNA evidence. In each of these cases—only a few among many convictions overturned Dallas County leads the state in the number of wrongful in Texas without the benefit of DNA convictions, a direct result of preserving DNA evidence while evidence—flawed evidence was fortuother counties destroyed it. itously exposed. In some cases, evidence Nine people have been released from Texas’ death row based of guilt evaporated under greater scruon evidence of their innocence. tiny; in others, affirmative evidence of innocence was found. Yet in all of these 85% of the cases involve mistaken eyewitness identification. cases it was exceedingly difficult to undo the damage of flawed evidence in the 18% of the cases involve false forensic testimony. courtroom and to rectify the wrongful 28% of the cases involve the use of unreliable or limited conviction. forensic methodologies (e.g., microscopic hair comparison, A recent review of evidence used serology inclusion, bite mark matches, voiceprint analysis). in non-DNA cases reinforces the importance of implementing procedures 13% of the cases involve informant or accomplice testimony that enhance the quality of evidence from witnesses with incentives to lie. relied upon by the system. In October 13% of the cases involve false confessions or guilty pleas. 2008, the Dallas Morning News published an investigative series on the 18% of the cases involve suppression of exculpatory alarming number of exonerations that evidence or other misconduct. w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed know is how many innocent individuals have been convicted based on faulty evidence. makes me sick to my stomach that those two men were destroyed.” The wrongful convictions of Ochoa and Danziger are a troubling reminder of the importance of giving jurors all the evidence they need in order to reach justice. When custodial interrogations are not recorded, jurors miss essential information they need to effectively and accurately evaluate the reliability of a confession. Had the evidence been thoroughly documented by recording the interrogation, and jurors given the full story, they might have avoided the injustice suffered by the two men, not to mention the millions of dollars in settlements the taxpayers had to pay. Jurors Deserve the Most Reliable Evidence I n the criminal justice system, jurors determine guilt or innocence by evaluating the evidence presented to them. If that evidence is incomplete, biased, or incorrect and the innocent are wrongly convicted, jurors are placed in a terrible situation that benefits no one involved. As one juror from the Richard Danziger case stated, “I think any one of us resents the position we were put in. You know, we were made a party to ruining [Danziger’s] life.” The only direct evidence in the case linking Danziger to the murder of Nancy DePriest in Austin was the confession of his friend Christopher Ochoa—a “I think any one of us confession that DNA evidence resents the position we later revealed to be false. The jurors were not given the full were put in. You know, story of how that confession we were made a party was elicited in a threatening and coercive interrogation that to ruining [Danziger’s] lasted more than twenty hours. life.”—a danziger juror Without that context, the confession and testimony from Ochoa led jurors to believe that there was no decision other than to find Danziger guilty. Another juror from the case said, “I think we should hear how that testimony came about because we had no choice with what we heard. . . . And I was uneasy about the verdict, but if you believed what you were hearing, and it was hard not to, you had to find him guilty.” Another juror agreed and stated, “It would have made a difference to me if I had known that [Ochoa] had sat there for nineteen hours before he was allowed to go home only if he confessed.” It took the confession of the true killer and DNA confirmation years later to finally reach the truth. One of the Danziger jurors said when she learned of the true killer’s confession and the DNA evidence, “That’s when I really learned that you can make somebody say something or admit to something that’s just not true.” Knowing that they sentenced Danziger to prison based on a false confession has left these jurors with anger and guilt. One juror stated, “I feel guilty for what I’ve done. It Reform: Improving the Reliability of Evidence B y implementing a reform agenda, Texas can ensure that the best evidence possible reaches courtrooms and can enhance the fairness and accuracy of its criminal justice system. Eyewitness Identification E yewitness identification testimony is one of the most widespread and powerful forms of evidence in our criminal justice system. Much like trace physical evidence, however, eyewitness evidence is highly susceptible to contamination if it is not collected carefully according to scientific protocols. In Texas, eighty-five percent of all wrongful convictions exposed by DNA testing have involved incorrect eyewitness identifications. The criminal justice system cannot do without eyewitness evidence. Though DNA exonerations have highlighted its inherent flaws, the good news is that extensive research conducted over decades has identified ways to minimize the risk of mistakes. Texas currently has no statutory standards regarding the conduct of photo or live lineups. Furthermore, though scientifically-grounded best practices for conducting identification procedures have been around for more than a decade, a recent survey by The Justice Project of over 1000 Texas police and sheriff’s departments yielded an even more troubling finding: eighty-eight percent of law enforcement agencies have no written policies or w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed procedures for the conduct of photo or live lineups. lineup. Extensive research has demonstrated that The few policies that do exist are more often than cautionary instructions reduce incorrect identifinot vague and incomplete. Only a tiny fraction of cations with no decrease in correct picks. the departments have implemented best practices for eyewitness procedures recommended by the • Fair lineup composition: Effective selection of U.S. Department of Justice, the International Assofillers when composing a lineup can help reduce ciation of Chiefs of Police, the American Bar Assothe risk of identifying an innocent suspect. Only ciation, and others. one suspect should appear in each lineup and at Texas must require law enforcement agencies to least five fillers should be included. Rather than adopt written policies and procedures for the conduct selecting fillers based on their resemblance to the of photo and live lineups suspect, which makes the witness’s task that implement the folmore complicated, fillers should be seEighty-eight percent of lowing key safeguards: lected to resemble the witness’s descripTexas law enforcement tion of the perpetrator. Most importantly, suspect or the suspect’s photo should • C omplete documentaagencies have no written the tion of identification not unduly stand out and should be prepolicies or procedures procedures: Given the sented in a uniform format to that of the overwhelming imporfillers. Fair composition of photo and live for the conduct of tance of eyewitness teslineups allows authorities to judge the rephoto or live lineups. timony and the weight liability of an eyewitness effectively. afforded to it by juries, it is essential to fully document photo or live line- • Neutral blind lineup administration: The person ups. Thorough documentation helps a jury to who administers the photo or live lineup to a witassess the eyewitness evidence appropriately and ness should not know the identity of the suspect. minimizes the effects of reinforcing feedback that The purpose of keeping the administrator “blind” can distort the confidence level of an eyewitness as to which person in the lineup is the suspect is between the time of the identification and the trial. to prevent the administrator from unintentionally Documentation of an eyewitness identificainfluencing the results. This is generally done inadtion procedure must include the photos used in a vertently through verbal or photo lineup or a photograph of a live lineup and non-verbal behavior. WitRegardless of whether all dialogue and witness statements made during nesses may be very motivatthe true perpetrator the procedure. When an identification is made, it ed to make an identification is essential to have documentation of the witness’s and seek to interpret the beis in a lineup, an degree of confidence in the identification, in the havior of the lineup admineyewitness may feel witness’s own words and prior to any feedback istrator for cues about the from authorities. It is important to fully document suspect, even if no such cues pressure to make an all procedures, even those that do not result in an exist. Finally, a double-blind identification. identification. Electronic recording of photo and protocol also eliminates the live lineups provides the most complete record of problem of investigators these critically important investigative procedures. interpreting ambiguous witness comments and other behavior through the lens of their theory of a suspect’s guilt. • Cautionary instructions: Regardless of whether the true perpetrator is in a lineup, an eyewitness may feel pressure to make an identification. • A voidance of repeated exposure of the suspect Prior to presenting the lineup, the eyewitnesses to a witness: Police departments must adopt should be instructed that the perpetrator may or policies that address the inherent risk in repeatmay not be included in the lineup and that they edly presenting a witness with a suspect or a should not feel compelled to make an identificasuspect’s photograph. In some exonerations, a tion. Cautionary instructions of this sort remove witness did not identify a suspect in an initial some of the pressure on the eyewitness to choose lineup but subsequently identified him in a later a suspect when the culprit may not be in the lineup (in which the only common person was w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed the one wrongfully convicted). Because of the fragile nature of witness memory, particularly the possibility of “memory transference” between events, multiple exposures undermine the reliability of an identification. While documented false confessions indicate the need for safeguards, powerful benefits to law enforcement have also made recording very popular with the police who do it. A survey of police departments that record interrogations conducted by former United States Attorney Thomas P. Sullivan • Sequential presentation option: In addition to found overwhelming support for electronic recordthe above measures, police departments should ing of interrogations. Among the benefits cited were consider implementing sequential presentation the protections against false claims of coercion or of lineups. Traditionally, eyewitnesses are shown misconduct, the ability to concentrate on the susa photo or live lineup in which the pect and his demeanor rather lineup members are presented as than taking notes, and the useJuries will sometimes a group. An eyewitness viewing a fulness of recorded interrogaconvict an individual lineup tends to make a judgment tions for training officers. With about which individual looks most electronic recording, motions based on a confession like the perpetrator relative to the to suppress confessions are alone, so special care other members of the lineup. This reduced, and the “he said-she natural tendency toward “comparimust be taken to ensure said” swearing matches about son shopping” is problematic when what took place in the interthat the suspect’s the suspect in the lineup is not in rogation room are essentially fact the perpetrator. Presenting the statements are as reliable eliminated. The result is that photos or lineup members one at judges and juries have the comas possible. a time discourages the tendency to plete story that allows them to judge the lineup members against effectively weigh the evidence, each other and to make an identification through convict the guilty, and protect the innocent. a process of elimination, in favor of a more direct Although Texas currently requires that oral comparison of each person to the witness’s memory. confessions be recorded to be admissible in court, Many studies indicate that sequential presenta- there is no provision stating that the interrogation tion reduces error, although some researchers be- preceding an oral confession must be recorded. lieve that the superiority of sequential presenta- Further, authorities overwhelmingly rely on writtion has not been established. Texas departments ten statements signed by the suspect, which have no may want to consider the sequential option as requirement for electronic recording at all. In any more field-testing data is accumulated. case, Texas currently does not require that interrogations that lead to confessions be recorded. Texas should require the electronic recording of full custodial interrogations in serious crimes with the following considerations in mind: Electronic Recording of Custodial Interrogations • “ Stem to stern” recording: In order to reap the benefits that electronic recording affords police, prosecutors, innocent suspects, and the system as a whole, the entire custodial interrogation must be recorded—not merely the confession. Recording should begin at and include the delivery of the suspect’s Miranda rights and continue uninterrupted until the end of the interview. Implementing this requirement guarantees that the best, most complete evidence will be available at trial. Questions as to whether Miranda warnings were given and false claims of abuse or coercion will be avoided, resulting in fewer T he idea that someone would falsely confess to a serious crime seems counterintuitive to most people. False confessions are a well-documented reality, particularly among more vulnerable groups such as juveniles and the mentally disabled, and they have resulted in wrongful convictions in Texas and across the country. Confessions are so powerful, in fact, that they can even overcome other exculpatory evidence. Juries will sometimes convict an individual based on a confession alone, so special care must be taken to ensure that the suspect’s statements are as reliable as possible. w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed motions to suppress confessions. Recording may also encourage guilty suspects to enter into plea bargains rather than going to trial. Innocent suspects will likewise be protected from wrongful conviction by providing courts with the information necessary to accurately assess whether a defendant’s statement is reliable and voluntary. fact-finding tool for the criminal justice system. The virtue of electronic recording of custodial interrogations lies not only in its ability to help guard against false confessions, but also in its ability to develop the strongest evidence possible to help convict the guilty. Jailhouse Informant Testimony B • A udio or video: While video recording devices are preferable, some departments have expressed concern about the costs of implementation. Audio recording is an acceptable alternative that can be implemented at very low cost. It should be left to the discretion of the agency to choose the system that best fits its needs and resources. ecause jailhouse informants are so desperate to attain sentence reductions and other benefits, informant testimony is widely regarded as the least reliable testimony in the criminal justice system. When the state offers a benefit in exchange for testimony, whether that benefit is explicit or implied, the incentive for incarcerated individuals to fabricate eviWhen the state offers dence dramatically increases. a benefit in exchange Some informants may fabricate testimony in an effort to for testimony, whether curry favor with prosecutors that benefit is explicit or apart from any promise or implied benefit. implied, the incentive for The protections currently incarcerated individuals in place have proven inadequate to safeguard against to fabricate evidence unreliable testimony by witdramatically increases. nesses with powerful incentives to lie. Remarkably, the use of jailhouse informant testimony continues to be largely unregulated by state legislatures or courts despite frequent, documented cases of injustice and instances of wanton abuse. Texas is no exception as no statutes regulating the use of jailhouse informant testimony exist. About fifteen percent of all DNA exonerations nationally included jailhouse informant testimony. Texas must implement safeguards designed to subject this testimony to more transparency and higher scrutiny. Specifically, Texas should require the following reforms: • S cope of recording: Recording in all criminal cases promises the most benefits, but at a minimum, recording interrogations conducted in connection with felony investigations should be required. It is especially urgent to record interrogations involving juvenile suspects and those whom authorities have reason to believe are mentally disabled or mentally ill. • E xceptions: Recording requirements must include reasonable exceptions so as not to place an undue burden on law enforcement and to allow for the admission of voluntary statements that were not recorded for valid reasons. For example, False confessions are a a suspect’s statement well-documented reality, should be admisif officers made particularly among more sible a good faith effort to vulnerable groups such record but were unable to do so because as juveniles and the of equipment malmentally disabled. function or power outage. Additionally, spontaneous statements made by the defendant, or statements made during routine processing of the defendant, may be admissible in court because they were made outside the context of an interrogation. Statements made by a suspect who refuses to speak if recorded might also be deemed admissible as long as the refusal itself is recorded. • W ritten pretrial disclosures: Texas should require written pretrial disclosure of all inducements a jailhouse informant may have been given or promised in exchange for testimony, including pay, immunity from prosecution, leniency in prosecution, or other personal advantage, along with the proffered testimony the prosecution seeks to present. In addition, any past cooperation agreements of the informant should be disclosed along Electronic recording of custodial interrogations has emerged as a powerful innovation and w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed HPD lab. The establishment of the Texas Forensic Science Commission provides an independent body to review allegations of forensic negligence and misconduct and to recommend corrective action. The statutory tasks of the Forensic Science Com• P retrial reliability hearings: Texas should follow mission are essentially backward-looking. While the Illinois in providing for pretrial reliability hearings commission is able to make recommendations for in cases where the prosecution remedial action regarding comintends to use informant testiplaints of negligence and misconClearly, a lack of oversight duct, it is primarily oriented to be mony. In a pretrial reliability hearing, the court performs a a reactive entity. It is essential to of forensic labs in Texas “gatekeeper” function where establish a forensic oversight syshad devastating it should be required to detertem that is more proactive in setmine that the informant’s testing quality standards in order to consequences on the timony is sufficiently reliable ensure the best evidence possible. accuracy of the criminal to be presented to a jury. While DNA tends to get the attention of the media and policyjustice system—to makers, forensic labs are engaged • Require corroboration: Texas date, three wrongful should adopt corroboration in a variety of sub-disciplines requirements for informant beyond DNA, and the need for convictions have been testimony to mitigate the inoversight and quality standards traced to the HPD lab. herent risks presented by witin those areas is great. The proacnesses with incentives to lie. tive quality assurance role needed in Texas must address all aspects of forensic science • C autionary jury instructions: Texas should adopt that are relied upon in criminal trials—not just cautionary jury instructions in all cases where the DNA evidence. The following changes would help testimony of a jailhouse informant is used. to implement those goals: with other information bearing on the informant’s credibility. Timely disclosure of this information ensures that defendants can conduct meaningful investigation and cross-examination. Greater scrutiny and transparency of jailhouse informant testimony in Texas will prevent unreliable evidence from being used in the courts and will produce more reliable outcomes in criminal cases. Forensic Oversight I naccurate forensic evidence and testimony is the second leading cause of wrongful convictions exposed by DNA in Texas. The Houston Police Department’s (HPD) crime lab debacle is a striking example of how poorly a forensics lab can operate without proper oversight. Independent investigator Michael Bromwich found that analysts at the HPD crime lab repeatedly tested DNA samples incorrectly and, in some cases, made up results without actually testing evidence. Clearly, a lack of oversight of forensic labs in Texas had devastating consequences on the accuracy of the criminal justice system—to date, three wrongful convictions have been traced to the HPD lab. Fortunately, Texas has taken important steps forward since the disclosure of the problems in the • T exas should give the Forensic Science Commission a proactive role in reviewing, setting, and enforcing quality standards: These expanded duties should include a review of existing private accreditation program requirements and the development of proposals for supplementing those requirements as appropriate to best ensure objectivity and reliability. Commission staff and budget should be augmented to accommodate these functions. • Independence and blind testing: Texas should develop and require all forensic science laboratories to adopt structures and policies to prevent bias in testing and analysis, such as regulating the amount of extraneous contextual information an analyst receives prior to testing to reduce the risk of confirmation bias or other observer effects. Forensic labs should also move toward becoming independent from law enforcement and prosecutorial agencies to best insulate analysts from the risk of “group think” that occurs from working closely with police as part of a crimesolving “team.” 10 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Recent studies have demonstrated the risk of inad- ery to occur in advance of trial, often leaving devertent bias affecting the outcome of forensic testing. fense counsel without adequate time to review the One 2006 study in the Journal of Forensic Identification materials and prepare. While some jurisdictions asked experienced analysts to evaluate a series of fin- have voluntarily adopted more expansive discovery gerprints to determine if they matched. These analysts practices, the lack of statewide standards means too believed they were examining prints for an open, many Texans are being tried without a fair opporunsolved case, but they were in fact re-examining tunity to review the evidence the state wants to use prints that they had previously against them in court. analyzed accurately. The prints The adoption of open-file While some jurisdictions were given to the analysts along discovery rules for criminal trials have voluntarily adopted with artificial contextual inforcreates a more level playing field mation, such as the fact that the ensuring that evidence can be more expansive discovery by suspect had confessed. In cases meaningfully challenged and testpractices, the lack of where analysts were given coned, and by removing much of the textual information about the uncertainty inherent in the discrestatewide standards fingerprints, they were wrong tionary disclosure decisions prosmeans too many Texans in almost seventeen percent of ecutors now make. the cases. This study highlights The record of wrongful conare being tried without the need to ensure that extravictions has demonstrated that a fair opportunity to neous contextual information exculpatory evidence can be withdoes not undermine the objecheld for years, even decades, while review the evidence tivity of analysts. By ensuring an innocent person sits in prison. the state wants to use that labs are independent of law Whether the state fails to disclose enforcement and prosecutorial evidence inadvertently or intenagainst them in court. agencies, along with regulattionally, clear rules about what is ing the flow of information subject to discovery—and clear between investigators and forensic analysts, these consequences for failure to disclose discoverable kinds of errors can be minimized. information—minimize the risk of these mistakes. Texas should implement the following changes: Expanded Discovery •R equire an open-file discovery policy to allow access to all relevant, unprivileged information in the possession, custody, or control of the state, subject to appropriate regulation by the courts. D iscovery is the process by which the prosecution discloses evidence to the defense attorney and provides a basic foundation for accuracy and fairness. Discovery preserves the integrity of our adversarial criminal justice system by providing the defense with a meaningful opportunity to fully investigate and test the government’s evidence in preparation for trial. Unfortunately in Texas, the statutes and rules governing criminal discovery are so minimal that they fail to guarantee the opportunity for evidence to be fully investigated and meaningfully challenged. Unlike many other states, Texas has no statute that mandates automatic discovery of key case documents, such as police reports and witness statements. Instead, Texas requires the defense to file motions with the court requesting access to basic information. The defense must also demonstrate “good cause” in order to review such evidence. There are no clearly defined timelines for discov- •R equire automatic disclosure of key documents such as police reports and witness statements prior to trial. •P rovide for adequate timelines to ensure access to information to allow investigation and review. •E nforce remedies in cases where discoverable material is willfully suppressed, or when discovery obligations are not or only partially met. The Justice Project has published comprehensive policy reviews on the above reforms in addition to a policy review on post-conviction DNA testing. The policy reviews can be downloaded from The Justice Project’s website at www.thejusticeproject.org. 11 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Stories of Injustice: The Texas DNA Exonerated D espite the great injustices they have suffered, the thirty-nine men whose stories are described below are actually the lucky ones. Unlike most cases in the criminal justice system, each of these cases involve DNA evidence, which can expose the guilty and reveal the innocent. It is fortuitous that DNA was preserved and available for testing. Without DNA evidence, these profiles of injustices likely would never have been exposed, and the systemic problems that caused these wrongful convictions may never have been discovered. These thirty-nine cases highlight the need for reform as it is impossible to know how many similar mistakes have been made in cases without DNA evidence to expose them. Texas must address these flaws and implement the reforms that can prevent them to ensure that no innocent person suffers as these thirty-nine men have suffered. because she said her face was covered with a pillow during the attack. Although the defense questioned the strength of her eyewitness identification, the jury found Alejandro guilty. Because of the false testimony of forensic expert Fred Zain and the mistaken eyewitness identification, Gilbert Alejandro spent almost four years in prison for a crime he did not commit. Michael Blair M ichael Blair became the prime suspect in the 1993 murder of seven-year-old Ashley Estell of Plano when two crime scene investigators noticed him near the scene and thought he looked suspicious. Police interrogated Blair for over nine hours. Throughout the interrogation, Blair maintained his innocence and was released. An eyewitness came forward stating that he saw Blair in the park where the girl was abducted. At trial, a forensic scien- Michael Blair tist testified that strands of spent fourteen hair found at the crime scene on the day of the girl’s abduc- years on death tion appeared to match hairs row due to faulty taken from the victim and forensic science Blair. In addition, the forenand a mistaken sic expert testified that hairs found in Blair’s car closely eyewitness resembled hairs taken from identification. the victim, and he could not “tell the difference, microscopically” between fibers taken from Ashley’s body and fibers found in Blair’s car. An FBI analyst also testified to similarities in the chemical composition of the fibers. The jury took only ninety minutes to convict Blair and sentence him to death. Post-conviction DNA testing of the hair samples in 1998, 2000, and 2002 revealed that none of the hairs came from either the victim or Blair. In 2006, DNA testing showed that material taken from under the victim’s fingernails did not come from Blair. Blair’s conviction was thrown out in 2008. Because of faulty forensic evidence and a mistaken eyewitness identification, Michael Blair spent fourteen years on Texas’ death row for a crime he did not commit. Gilbert Alejandro G ilbert Alejandro was wrongfully convicted of sexual assault in 1990 based largely on the faulty testimony of forensic expert Fred Zain. At trial, Zain testified that DNA tests established that semen found on the victim’s clothes “could only have originated from [Alejandro].” A reexamination of the original DNA testing years later showed that Alejandro was actually excluded as the perpetrator. In fact, records showed that Zain’s testimony was based on DNA testing that had not yet been completed at the time Gilbert Alejandro he testified against Alejandro. spent almost four Inaccurate eyewitness testimoyears in prison due ny also contributed to Alejandro’s wrongful conviction. He initially to false testimony became a suspect when the victim about DNA and a identified him from a book of mug mistaken eyewitness shots. After the initial identificaidentification. tion, police then showed the victim several photo lineups that included Alejandro, but she failed to identify him. Regardless, police still chose to focus on Alejandro because of the victim’s initial identification from the mug book. The victim described her attacker as Hispanic, about six feet tall, and wearing a white cap. She could not provide a more detailed description 12 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed A.B. Butler the time was not advanced enough to exclude him as the perpetrator. Harris County prosecutors used the victim’s identification as the centerpiece of their case against Byrd. He was convicted and sentenced to life in prison. Not everyone was convinced of Byrd’s guilt, though. The trial judge sent a letter to the chief of police complaining about the investigation. In addition, although evidence was routinely destroyed in Harris County, a deputy district clerk happened to save the trial exhibit containing the biological evidence in Byrd’s case. Post-conviction DNA testing provided irrefutable proof that Byrd was not the attacker. Byrd was released and eventually granted an official pardon from Governor George W. Bush in October 1997. Because police and prosecutors ignored contradictions in a mistaken eyewitness’s testimony, Kevin Byrd spent twelve years in prison for a crime he did not commit. n 1983, a mistaken eyewitness identification led to the wrongful conviction of A.B. Butler for the aggravated kidnapping of a woman in Smith County. The victim initially identified Butler as her attacker from a book of mug shots. She also identified him in a live lineup and again during the trial. The defense presented three alibi witnesses who testified Butler was with them during the attack. However, Butler was convicted of aggravated kidnapping and rape and was sentenced to ninety-nine years in prison. After learning about emerging DNA technology, Butler repeatedly petitioned A.B. Butler for DNA testing of evidence spent seventeen found at the crime scene. In 1999, the first set of tests years in prison were conducted by a private due to one lab and the results were inmistaken conclusive. A second set of eyewitness tests were conducted by a lab in New York using a newly identification. developed technique that allowed scientists to better isolate male DNA and provide more sophisticated analysis. These tests proved conclusively that Butler’s DNA did not match DNA found on the victim. Butler was released in January 2000 and was granted an official pardon from Governor George W. Bush. Because of one mistaken eyewitness identification, A.B. Butler spent seventeen years in prison for a crime he did not commit. Charles Chatman Dallas Morning News Clay Graham I I n 1981, police placed Charles Chatman’s picture in a photo lineup after a woman in his Dallas County neighborhood was sexually assaulted. The victim told police that she remembered her attacker as a neighbor. That same day she identified Chatman from a photo lineup and a live lineup. The victim did not mention Chatman’s most distinguishing characteristic in her initial description of the perpetrator— Chatman was missing his front teeth. At trial, the state’s case consisted of little more than the victim’s previous identifications and her in-court identification of Chatman. The state also presented forensic results showing the assailant’s blood type characteristics were consistent with Kevin Byrd W rongfully identified as the perpetrator of a violent rape in Harris County in 1985, seventeen-year-old Kevin Byrd did not match the description of the attacker that the victim originally gave to police. The victim initially described the perpetrator as a thirty-five-year-old white male with an unusual “honey brown” complexion. Byrd was arrested even though he was significantly younger than the description and more importantly, he is black. Byrd voluntarily provided blood, saliva, and hair samples to police, but the science at 13 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed those of Chatman. These characteristics were also consistent with forty percent of all black males. Chatman’s defense presented alibi testimony that he was at work, employed as a custodian, during the attack. Chatman’s sister, who also worked at the custodial service, corroborated his alibi. Nevertheless, Chatman was convicted of aggravated sexual assault and sentenced to ninety-nine years in prison. Chatman applied for post-conviction DNA testing. After two inconclusive results, a more advanced DNA test proved that he did not commit the rape. Chatman was released from prison on January 3, 2008, and a formal exoneration followed on February 26, 2008. Chatman missed three chances at parole because he refused to admit to the crime or apologize for it. Because of one mistaken eyewitness identification, Charles Chatman spent twenty-seven years in prison for a crime he did not commit. of these attempted confessions until years later. Cole died in prison in 1999 from a severe asthma attack. DNA testing conducted after Cole’s death revealed that Johnson had indeed raped the Texas Tech student, not Cole. In an unprecedented hearing in February 2009, Johnson took the stand and confessed to the crime for which Cole had been convicted. As a result, Cole was exonerated and his criminal record was ordered expunged. Michele Mallin, the victim who misidentified Cole, came forward and spoke out publicly in support of eyewitness identification reform. Because of one mistaken eyewitness identification, Timothy Cole spent thirteen years in prison for a crime he did not commit. Roy Criner F our years after the 1986 Montgomery County sexual assault and murder of Deanna Ogg, Roy Criner became a suspect in the case. Three men alleged that Criner made statements in which he referred to a hitchhiker with whom he had he had sex. Roy Criner There were numerous incon- spent ten years sistencies among the stories of the three men and with in prison due to false witness known facts in the case. At trial, a forensic analyst testimony. with the Texas Department of Public Safety testified that numerous hairs collected from the crime scene and from Criner’s truck could not link Criner to the crime. Serology tests on semen from the crime scene did not yield probative results either. Further, several alibi witnesses testified that Criner was at work at the time of the crime. Despite the scant and questionable evidence tying him to the crime, Criner was convicted of murder and sentenced to ninety-nine years. In 1997, DNA testing excluded Criner as the source of the semen found on the victim, but his ordeal did not end there. The prosecution said the semen found on the victim was the result of consensual sex the victim had before the rape, and they suggested Criner might have used a condom or simply did not deposit semen during the rape. As such, Criner was denied a new trial. Additional DNA testing on a cigarette butt found near the victim matched that from the semen, undermining the prosecution’s theory that the semen did not belong Timothy Brian Cole T imothy Cole became the prime suspect in a series of rapes on the Texas Tech campus in 1985 after he engaged in small talk with an undercover female officer sent to the area where the attacks occurred. The Lubbock police placed the undercover officer in the area with the hope of luring out the “Texas Tech rapist.” The last victim in the Texas Tech rapes was shown a photo lineup that included a picture of Cole. The victim identified Cole as her attacker. Cole’s picture was the only color Polaroid photo in a group of five black and white mug shots, and the victim later stated that police and Timothy Cole prosecutors repeatedly described was wrongfully Cole as a “low-life hood.” At a subconvicted based on sequent live lineup, four other Texas Tech rape victims failed to identify a false eyewitness Cole as their attacker. Only the final identification. He victim of the most recent rape statdied in prison after ed she had no doubt about Cole. serving thirteen years. Cole was convicted and sentenced to twenty-five years in prison. Years later, Jerry Wayne Johnson, the defense team’s prime suspect, made two attempts to confess to the crime that placed Cole behind bars, but they went ignored. Cole and his family did not know about either 14 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed to the perpetrator. Based on these findings, Criner was released and he was granted an official pardon by Governor George W. Bush on August 15, 2000. Because of faulty witness testimony, Roy Criner spent ten years in prison for a crime he did not commit. Because of a suggestive photo lineup that led to a mistaken eyewitness identification, Wiley Fountain spent sixteen years in prison for a crime he did not commit. Wiley Fountain A Larry Fuller Dallas Morning News fter a Dallas woman was attacked and raped in her home in 1981, Larry Fuller’s picture was included in a photo lineup, even though he had no history of sex crimes. Fuller was a decorated Vietnam veteran raising two young children. The victim failed to conclusively identify Fuller as her attacker, and the investigating officer issued a report recommending that the investigation be suspended because the victim “was unsure of the suspect at this time.” Months later, police showed the victim another photo lineup. Fuller’s photograph was again included in the photo lineup and was the only picture that was included in both lineups. This time the victim identified Fuller as her attacker. The victim initially stated that she did not remember any facial hair on her attacker. However, the photo of Fuller she identified showed him with a heavy and distinct beard. At trial, the prosecution relied heavily on the eyewitness identification, saying that the victim had “never wavered” in her identification. Larry Fuller spent The prosecution also relied on misleading forensic testimoalmost twenty years in ny to convict Fuller. A serologist prison as the result of a testified that Fuller was includmistaken identification ed within twenty percent of the and misleading population that shared blood type characteristics of the atforensic testimony. tacker. Because the victim’s own blood type was not properly considered, the evidentiary value of that test was greatly overstated. Fuller was convicted of aggravated rape and sentenced to fifty years in prison. An initial DNA test in 2000 was unable to obtain a profile, but a more advanced DNA test conducted in November of 2004 conclusively excluded Fuller as the attacker. Fuller was released on October 31, 2006 and granted an official pardon by Governor Rick Perry on January 25, 2007. Because of unreliable eyewitness and forensic Wiley Fountain spent sixteen years in prison as a result of a mistaken identification from a photo lineup. W Clay Graham iley Fountain’s picture was included in a photo lineup and shown to the victim of a sexual assault in Dallas. In that lineup, Fountain was the only man wearing a dark baseball cap and a warmup suit, the clothing worn by the attacker as described by the victim. The victim picked Fountain as her attacker and police closed the case the following day. Even though semen was recovered from the victim’s clothing, samples were too small for serological analysis. Based entirely on the eyewitness identification of the victim, Fountain was convicted of aggravated sexual assault and sentenced to forty years in prison. After spending fifteen years in prison, Fountain was paroled and required to register as a sex offender. Unable to find a job, his sex offender registration fees went unpaid and Fountain’s parole was revoked. He was sent back to prison in 2001. In 2002, post-conviction DNA testing proved Fountain’s innocence. He was released from prison on September 27, 2002 and was granted an official pardon by Governor Rick Perry on March 18, 2003. 15 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed evidence, Larry Fuller spent almost twenty years in prison for a crime he did not commit. cluded a photo of James Earl Giles, and he identified James Earl Giles as one of the attackers. James Curtis Giles was officially exonerated on June 20, 2007. Because of faulty eyewitness evidence and misconduct by police and prosecutors, James Curtis Giles spent ten years in prison for a crime he did not commit. James Curtis Giles everal weeks after an attack on a Dallas couple in their home, police received an anonymous tip implicating two men in the crime. According to the tip, one of the accomplices was named James Giles. In a photo lineup presented to the victims a few days later, police included a photo of James Curtis Giles, a twenty-nine-year-old married construction worker from Duncanville. The female victim identified Giles, but her husband did not. Although there were significant discrepancies between Giles and the initial description the victims gave of their attacker (Giles was significantly older and had two prominent gold teeth), Giles was arrested and charged with aggraJames Curtis Giles vated sexual assault in 1983. At trial, the female victim idenspent ten years in tified Giles from the stand, telling prison due to a the jury she would “never forget his mistaken eyewitness face.” Giles and his wife testified to identification and his alibi and explained that they lived twenty-five miles from the crime police and scene. Giles was convicted and senprosecutorial tenced to thirty years. After spending misconduct. ten years in prison, Giles was paroled and required to register as a sex offender. He was not allowed to travel more than ten miles from his home without permission and was required to have a chaperon present to spend time with his child. An investigation revealed that the lead detective and prosecutor withheld exculpatory evidence from Giles’ defense team during trial. The investigation pointed to a man named James Earl Giles who had a history of violence and lived across the street from the victims. In addition, his age matched the initial description the victims gave of their attacker. In 2003, post-conviction DNA testing revealed the profiles of two perpetrators—neither of which matched James Curtis Giles. The tests identified one man with links to James Earl Giles. The female victim was contacted and was no longer certain of her identification. Authorities contacted the victim’s husband and showed him a photo lineup that in- Donald Wayne Good D onald Wayne Good was arrested in 1983 when a police officer came to believe that he resembled the composite sketch of a man wanted for a rape and burglary. The officer placed Good’s picture in a photo lineup shown to the victim and her daughter, who was present during the crime. The poor quality of Good’s photo obscured his facial scar and tattoo—two potentially important distinguishing characteristics—and both women identified him as the man who broke into their home. Good’s first trial ended in a hung jury. At his second trial, Good was convicted and sentenced to life in prison. On appeal, his conviction was overturned based on prosecutorial misconduct. Good made an argument that the prosecutor had improperly told the jury to Donald Good find him guilty because spent ten years he did not show enough in prison based emotion when the victim took the stand. A third on a mistaken trial resulted in another eyewitness conviction, and he was identification. again sentenced to life in prison in 1987. The evidence presented at all three trials was minimal, including little else than the eyewitness testimony of the victim and her daughter and serological testing that could not exclude Good—nor thirty percent of the white male population—as the perpetrator of the attack. In 2003, DNA testing proved Good’s innocence. Because of a mistaken eyewitness identification, Donald Wayne Good spent ten years in prison for a crime he did not commit. 16 w w w . T h e J u s t i c e P r o j e c t. o r g Dallas Morning News Greg Kendall-Ball / Innocence Project of Texas S THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Andrew Gossett gain and was sentenced to four years in prison. He was released on parole after eighteen months. While on parole, Henton was convicted of assault and two felony drug charges. Because he was on parole, the judge handed down a harsh sentence—twenty years for aggravated assault and forty-two years for the drug conviction. In 2005, post-conviction DNA testing revealed that Henton was indeed innocent of the 1984 sexual assault. Henton’s 1984 conviction was overturned and eventually his other sentence was thrown out because it was based on his wrongful conviction. He was re-sentenced to time already served and released on October 26, 2007. Because of a mistaken eyewitness identification, Henton spent nearly two years in prison for a crime he did not commit. A ndrew Gossett originally became a suspect in the abduction and sexual assault of a Garland woman after a patrol officer saw him in the vicinity of the crime scene and thought he looked suspicious. Gossett was arrested and his photo was placed in a photo lineup. The victim identified Gossett from the photo lineup so quickly that the officers were taken aback by her haste. Yet her confidence that he was her attacker ultimately assured police. At trial, the testimony of the victim was significantly inconsistent with earlier statements made to police. Gossett’s alibi placed him at his girlfriend’s apartment the entire night, except for two brief trips to a convenience store. A surveillance video at the store showed a customer resembling Gossett making a purchase around the time of the assault. In addition, Gossett passed a polygraph test and hair samples taken from the victim’s car were dissimilar to those of Gossett. However, Gossett was convicted of aggravated sexual assault and sentenced to fifty years in prison. Post-conviction DNA testing proved Gossett’s innocence and he was released on January 4, 2007. Because of a mistaken eyewitness identification, Gossett spent over seven years in prison for a crime he did not commit. Entre Nax Karage hen fourteen-year-old Nary Na was murdered in Dallas in 1994, police quickly focused their attention on her boyfriend, Entre Karage, despite strong evidence indicating an alternate suspect. At trial, a forensic expert testified that a hair sample recovered from the victim’s body had characteristics consistent with an African-American, and two other hairs had Caucasian characteristics. Karage is Cambodian. In addition, the expert testified that Karage’s DNA did not match DNA samples taken from the victim. Prosecutors argued jealousy as a Entre Karage motive based on evidence that sexual spent seven years intercourse had taken place and there in prison because was no evidence of a rape. The state preDNA evidence sented numerous witnesses, all of whom provided remarkably different accounts pointing to the of activities on the night of the murder. true perpetrator However, they did present consistent was discounted. testimony concerning the contentious relationship between Karage and the victim. Karage was convicted of murder and sentenced to life in prison. Post-conviction DNA testing revealed that sperm found in the victim actually be- Dallas Morning News Eugene Henton E ugene Henton was just seventeen years old in 1984 when he was falsely identified as the attacker in a sexual assault. Although the attacker wore a mask, the victim told police she was certain she could identify him because he had spent such a long time in her home. In addition, the victim also noted seeing her attacker from her window while he waited at the bus stop and could thus identify him. Young and scared, Henton accepted a plea bar17 w w w . T h e J u s t i c e P r o j e c t. o r g Dallas Morning News W THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed longed to Keith Jordan, who was already in prison for a similar offense. Jordan was convicted of aggravated sexual assault of a child and aggravated kidnapping in Dallas in 1997. He has since been charged with the murder of Nary Na. Karage was officially exonerated in December 2005 when Governor Rick Perry pardoned him. Because prosecutors neglected to pursue evidence pointing to the true perpetrator, Entre Karage spent seven years in prison for a crime he did not commit. a year earlier. In addition to the highly problematic nature of the photos being mailed to the witness, the photo lineup itself was highly suggestive. Lindsey was one of only two men in the photo lineup not wearing Johnnie Lindsey a shirt, and the victim had described her attacker as shirtless. spent nearly The victim identified Lindsey as twenty-six years her attacker. in prison as a At trial, the victim’s identi- result of a highly fication of Lindsey was the sole piece of evidence against him. suggestive Lindsey presented an alibi that photo lineup. he was at work, pressing pants at a commercial laundry business during the time of the attack. He even had time cards that showed he was at work when the crime occurred. However, Lindsey was convicted and sentenced to life in prison. Post-conviction DNA testing of the biological material from his case excluded Lindsey as the perpetrator of the rape, and he was released on September 19, 2008. Because of a mistaken eyewitness identification, James Earl Lindsey spent almost twenty-six years in prison for a crime he did not commit. Carlos Lavernia F ourteen months after the 1983 sexual assault of a jogger in Austin, Carlos Lavernia became the primary suspect after the victim was shown three photo lineups and stated that Lavernia was the only one that “anywhere near resembled” her attacker. Based on this identification, police Carlos Lavernia came to suspect Lavernia for a string of seven similar attacks in the area. The othspent nearly er victims were also shown a photo lineup sixteen years that included Lavernia and two victims identified him. Lavernia was placed in in prison due a physical lineup and was identified by to a mistaken two of the victims—the Austin jogger eyewitness victim and another victim who identiidentification. fied him in the photo lineup. Two additional victims identified a filler standing next to Lavernia in the physical lineup. Lavernia was charged with the two rapes in which identifications had been made, and the Austin jogger case went to trial first. Lavernia was convicted of aggravated rape and sentenced to ninety-nine years in prison. The second case against Lavernia was dropped after this conviction and sentence. In 1999, Lavernia was questioned by Austin police about an unsolved murder, and the interview convinced them that Lavernia might be innocent of the Austin jogger rape. DNA testing revealed Lavernia’s innocence and his conviction was vacated. Because of mistaken eyewitness testimony, Carlos Lavernia spent nearly sixteen years in prison for a crime he did not commit. Thomas McGowan F Clay Graham ollowing a series of flawed lineups, Thomas McGowan was charged with rape and burglary. The victim was first shown a live lineup that included McGowan, two other suspects, and three fillers. Experts have long known that the inclusion of multiple Thomas McGowan suspects in the same lineup greatly undermines the spent twenty-three validity of the procedure. years in prison The victim did not identify due to suggestive anyone as her attacker in identification that initial lineup. Police then showed the procedures. victim a photo lineup that also included a photo of McGowan. The victim hesitantly identified McGowan as her attacker. She later said the detective conducting the lineup told her that she “had to make a positive ID. I had to say yes or no.” Johnnie Earl Lindsey I n 1982, Johnnie Earl Lindsey’s picture was included in a photo lineup that police sent in the mail to a White Rock Lake woman who had been raped 18 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Brandon Moon Greg Kendall-Ball / Innocence Project of Texas The photo lineup was equally as problematic as the live lineup because four of the seven photos, including McGowan’s, were color originals. In addition, three of the color photos were marked “Richardson Police” and the other was marked “Garland Police.” The remaining black and white photos included one original and two photocopies. The lack of uniformity in the photos, combined with the multiple presentations of McGowan in photo and live lineups, tainted the identification and contributed to the witness’s mistaken identification of McGowan. McGowan was eventually convicted and sentenced to life in prison. Post-conviction DNA testing excluded McGowan as the perpetrator and he was released April 16, 2008. A DNA state database search identified the true perpetrator, Kenneth Wayne Woodson, who is currently serving a thirty-year sentence for another Dallas rape committed the year after McGowan was arrested. Because of the suggestive identification procedures that led to a mistaken eyewitness identification, Thomas McGowan spent twenty-three years in prison for a crime he did not commit. F ollowing the sexual assault Brandon Moon spent of an El Paso woman in the spring of 1987, police created seventeen years in a photo lineup that included prison due to false Brandon Moon, a twenty-five- forensic testimony and year-old military veteran and the botched handling of aspiring jet pilot. The victim tentatively chose Moon’s picture exculpatory DNA. and later firmly identified him in a live lineup. Moon was the only person present in both the photo and live lineups. Based on the identification, police contacted two other women who had been victims of similar attacks. Each victim identified Moon even though the crimes against them had been committed years before these lineups were conducted. At trial, a serologist testified that semen stains from the crime scene definitively excluded the victim’s husband and indicated Moon could have been the source. This testimony would later prove to be patently false. In 1989, DNA testing showed that Moon was not the source of the semen taken from the crime scene, but the results were considered inconclusive because reference samples were not collected from the victim’s husband or teenage son. Eventually, testing revealed that the victim’s husband’s DNA matched a stain on the comforter, but not the bathrobe. Additional testing proved that the son was not the source of the bathrobe stain, leaving only the rapist, whom previous tests had already revealed could not be Moon. In December 2004, Moon was released from prison. Because of false forensic testimony and the mishandling of exculpatory DNA, Brandon Moon spent seventeen years in prison for a crime he did not commit. Billy Wayne Miller I n 1983, a Dallas woman waiting at a bus stop accepted a ride from a man who subsequently assaulted her. The victim remembered some of the numbers from the license plate of the car driven by her attacker. During the attack, the victim memorized street names and the location of a house where a part of the assault took place. Following up on the victim’s statements, police found a car in front of the house with a license plate that differed from the victim’s memory by only one digit. Police entered the house and arrested Billy Wayne Miller. The car was registered to his father. The lead prosecutor in the case now believes that the victim’s memory of specific details—down to the brand of beer the attacker drank—was likely a result of the police having fed her that information. Post-conviction DNA testing excluded Miller as the attacker. He was released in May 2006 and officially pardoned by Governor Rick Perry in December of 2006. Because of a mistaken eyewitness identification, Billy Wayne Miller spent over twenty-two years in prison for a crime he did not commit. 19 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Arthur Mumphrey ten by the police and accepted the state’s offer of a life sentence. In exchange, Ochoa pled guilty to murder and testified against Danziger at trial. Danziger was convicted of aggravated sexual assault and sentenced to life in prison. While Ochoa and Danziger were serving life sentences, a Texas inmate named Achim Josef Marino confessed to DePriest’s murder. Marino professed he alone committed the crime and provided a detailed description of the crime scene and information regarding the location of items stolen from the Pizza Hut. DNA testing of semen collected from the crime scene conclusively proved the innocence of Ochoa and Danziger. Ochoa and Danziger both settled civil lawsuits with the City of Austin. Danziger sustained permanent brain damage as a result of a violent prison assault, rendering him unable to care for himself without help. Because of the threatening and intimidating interrogations that led to Ochoa’s false confession, Richard Danziger and Christopher Ochoa each spent twelve years in prison for a crime they did not commit. D uring a police interrogation in 1986, Steve Thomas admitted to raping a thirteen-year-old girl and implicated Arthur Mumphrey as his accomplice in the crime. Police made a deal with Thomas, offering him a fifteen-year sentence in exchange for his “truthful testimony” against Mumphrey. At trial, Thomas testified to the same horrific details he had relayed to the police during his interrogation. In addition, another witness testified that he saw Thomas and Mumphrey one night and Thomas told him all about the crime while Mumphrey stood silent, tacitly endorsing the story. The victim testified that she did not look at the faces of her attackers and could not identify them. Mumphrey was convicted. Mumphrey was paroled in 2000, but he failed to meet the strict terms of his parole and returned to prison in 2002. Post-conviction DNA testing on the rape kit evidence confirmed that Thomas was indeed one of the perpetrators, but the other perpetrator was not Mumphrey. Mumphrey was released on January 27, 2006, and was granted an official pardon by Governor Rick Perry on March 17, 2006. Because of the false testimony of Steve Thomas, Mumphrey spent nearly eighteen years in prison for a crime he did not commit. Steven Charles Phillips I n 1982, Steven Phillips became the chief suspect in an unusual string of sexual assaults and burglaries in Dallas, Texas and Kansas City, Missouri. Police were confident that the same assailant was responsible for the crimes in both cities. After Dallas police turned their focus to Phillips, ten separate victims picked his photo out of dozens shown by police. After serving None of the photo lineups were preserved as evitwenty-six years in dence, however, making prison, DNA testing it impossible to analyze exonerated Steven the accuracy and quality Charles Phillips of the procedures used. Phillips was convicted of of multiple crimes sexual assault and burand exposed many glary based largely on the investigative errors. eyewitness accounts, and Christopher Ochoa and Richard Danziger C Dallas Morning News hristopher Ochoa was working at a Pizza Hut when he and his friend, Richard Danziger, became suspects in the 1988 murder of Nancy DePriest, a manager for another of the chain’s Christopher Ochoa restaurants in Austin. Employees of the restaurant contacted police afand Richard Ochoa and Danziger were seen Danziger each spent ter giving a toast in the victim’s honor. twelve years in Acting on the tip, police brought prison as a result of Ochoa in for questioning. During the interrogation, Ochoa a long, intimidating was subjected to both physical and interrogation that verbal intimidation, and police offiproduced Ochoa’s cers threatened him with the death false confession. penalty unless he confessed to the crime. After two days of intense questioning and threats, Ochoa eventually gave the police what they wanted. He signed a confession writ20 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed he was sentenced to forty years in prison. In 2007, post-conviction DNA testing on the biological material from the Dallas case cleared Phillips of the sexual assault and burglary charges. Because police and prosecutors believed the same person committed all the crimes, the Court of Criminal Appeals fully exonerated Phillips on August 5, 2008. A reinvestigation of the case revealed that Kansas City police had previously identified another suspect, Sydney Alvin Goodyear, and notified the Dallas police. At least one Dallas victim identified Goodyear from a photo lineup, and a warrant had been issued for his arrest prior to Dallas police focusing on Phillips. This exculpatory information was never disclosed to Phillips’ defense. Because of misconduct and mistaken eyewitness identifications, Steven Charles Phillips spent twentysix years in prison for crimes he did not commit. The victim was shown a physical lineup one month after the photo lineup in which Pope was the only man who had the blonde hair and tan skin described by the victim. The victim identified Pope as her attacker. In 1986, Pope was convicted of aggravated sexual assault and sentenced to forty-five years in prison. The prosecution’s case rested primarily on the victim’s identification of Pope from the live lineup and expert testimony about “voice print analysis” that was said to match Pope’s voice to the taped calls made to the victim. The victim testified at trial that she not only recognized him as her attacker, but also that she could unequivocally identify his voice. In January of 1999, prosecutors received an anonymous tip that someone else had committed the crime. By that time, voice print analysis was no longer considered reliable evidence, and prosecutors decided the anonymous tip warranted serious consideration. Post-conviction DNA testing proved Pope’s innocence and identified the true perpetrator: a convicted rapist imprisoned in another state. Pope was granted an official pardon by Governor Rick Perry in February 2001. Because of faulty forensic evidence and a mistaken eyewitness identification, David Shawn Pope spent fifteen years in prison for a crime he did not commit. David Shawn Pope Dallas Morning News Ricardo Rachell T he 2002 sexual assault conviction of Ricardo Rachell rested solely on testimony from the eight-year-old victim and a friend who was with the boy before the at- Ricardo Rachell tack. Police relied so heavily on the identifications made by the victim spent six years in and his friend that they did not con- prison while the duct DNA testing on either the bio- biological evidence logical evidence collected in the case that would or on the reference sample voluntarily exonerate him provided by Rachell. Although both the victim and sat untested in a his friend identified Rachell, it is dif- Houston crime lab. ficult to understand how this identification held up in court because Rachell’s face was significantly disfigured in a shotgun accident years ago, making it difficult for him to talk. The victim’s friend told police that the man spoke clearly. Rachell took the stand in his own defense and demonstrated I n August 1985, a woman who lived in David Shawn Pope’s apartment complex was sexually assaulted at knifepoint. Police included a photo of Pope in a photo lineup presented to the victim. Even though the victim did not identify Pope as her attacker, police suspected him based on the sound of his voice. In the days after the attack, the victim received several threatening phone calls from her attacker. In addition to an answering machine message, police recorded a phone call from the attacker lasting about ten minutes. DNA testing proved David Pope’s innocence fifteen years after he was wrongfully convicted based on junk science. 21 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed that the gunshot wound had left him with a significant speech impediment. Despite these discrepancies, Rachell was convicted and sentenced to forty years in prison. In October of 2008, DNA testing established that Rachell could not have committed the crime and Harris county prosecutors endorsed the reversal of his conviction. Because of two mistaken eyewitness identifications and the failure to disclose DNA evidence, Ricardo Rachell spent six years in prison for a crime he did not commit. own test, they still did not believe Robinson to be an innocent man. The DA’s office argued that the semen came from an unknown man with whom the victim had consensual sex and that Robinson still had something to do with the crime. There was no evidence to back up this theory. On November 7, 2000, the Texas Board of Pardons and Paroles unanimously voted to recommend Robinson’s pardon, and he was granted an official pardon by Governor George W. Bush seven days later. After spending a decade behind bars for a crime he did not commit, Robinson went back to school and received his law degree from the Thurgood Marshall School of Law at Texas Southern University. Because of a mistaken eyewitness identification, Anthony Robinson spent ten years in prison for a crime he did not commit. Greg Kendall-Ball / Innocence Project of Texas Anthony Robinson George Rodriguez F ollowing her 1987 abduction and sexual assault, a fourteen-year-old Houston girl gave police basic descriptions of the two perpetrators. The victim said that one of her attackers called the other “George,” though she told police that she believed it was a fake name. Based on the victim’s description of the house where the crime occurred and George Rodriguez the surrounding area, po- spent seventeen lice went to the home of Manuel and Uvaldo Bel- years in prison tran. George Rodriguez after compelling became a suspect in the evidence of case because he was an ac- his innocence quaintance of one of the was overlooked Beltran brothers. Police conducted a in favor of photo lineup and the vic- a mistaken tim identified Rodriguez eyewitness. as one of the attackers. Even though Manuel Beltran confessed to police that he had sexually assaulted the girl and stated that Isidro Yanez was his accomplice, police continued to focus on Rodriguez. In a one-person show-up, the victim again identified Rodriguez as her attacker. The victim was also shown a collection of photos that included both Rodriguez and Yanez, but the victim again identified Rodriguez as her attacker. At trial, a forensic analyst testified that a pubic I n 1986, Anthony Robinson, a twenty-six-year-old college graduate and U.S. Army veteran, was put on trial for the rape of a University of Houston woman. The victim told police that her attacker was a black man with a moustache wearing a plaid shirt. That same day Robinson was on campus picking up a car for a friend. Even though Robinson did not have a moustache, police arrested him. Robinson was placed in a lineup and identified by the victim. Although no physical evidence linked him to the crime, the victim’s confident identification led to Robinson’s conviction and he was sentenced to twenty-seven years in prison. After being released on parole in 1997, Robinson took odd jobs to save enough money to hire an attorney and pay for post-conviction DNA tests on the case’s biological material. On September 19, 2000, DNA test results proved Robinson’s innocence. Even though the Harris County District Attorney’s Office confirmed the results with their Anthony Robinson spent ten years in prison due to a mistaken eyewitness identification. 22 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed hair found on the victim’s underwear was microscopically similar to Rodriguez’s hair, and that the semen from the rape kit could not exclude Rodriguez as the perpetrator, and it could not belong to Yanez. Even though Rodriguez presented evidence that he was at work during the time of the crime, Rodriguez was convicted of aggravated sexual assault and kidnapping and sentenced to sixty years in prison. In 2004, DNA testing established that Rodriguez was not the source of the pubic hair found on the victim’s clothing, and Yanez could not be excluded. Further testing also established that Yanez was mistyped by the Houston Crime Lab during the initial testing and could not have been excluded as the source of the semen—directly contradicting the forensic testimony at trial. Rodriguez’s conviction was vacated in August 2005 and all charges were dismissed a month later. Because of faulty forensic testimony and a mistaken eyewitness identification, George Rodriguez spent seventeen years in prison for a crime he did not commit. attacker. Defense attorneys would later note that Salazar was wearing a turquoise shirt in the second picture the police showed the victim, the same color shirt from her description. Salazar voluntarily gave blood, saliva, and hair samples to prove his innocence, but the results of the forensic testing could not exclude him as the source of the semen found on the victim. At trial, a forensic analyst testified that the blood typing characteristics found could only come from two percent of the Hispanic population which included Salazar. Salazar was convicted of aggravated sexual assault and sentenced to thirty years in prison. Post-conviction DNA testing excluded Salazar as the source of the semen found on the victim. Two additional DNA tests were performed to finally convince prosecutors and the parole board that Salazar was indeed innocent. He was granted an official pardon by Governor George W. Bush on November 20, 1997. Because of a mistaken eyewitness identification, Ben Salazar spent five years in prison for a crime he did not commit. Ben Salazar Billy James Smith B n 1991, Ben Salazar’s photo was chosen out of a book of mug shots as the perpetrator of a rape following an attack in an Austin home. The victim gave a detailed description of her attacker — a Hispanic male, in his late twenties to early thirties, between five feet, five inches and five Ben Salazar seven inches tall and spent five years feet, weighing approximately in prison due 160 to 180 pounds, and wearing a turquoise shortto a mistaken sleeved t-shirt and brown eyewitness work boots. Because she identification. was certain she could identify her assailant, police showed her two books with mug shots of Hispanic males and she picked Salazar as her attacker. Salazar agreed to go to the station to have his picture taken. The victim viewed several new lineups and again identified Salazar’s new photo as her illy Smith became a suspect for rape and robbery when his building manager requested he step out on the balcony of Dallas County apartment in 1986. The building manager’s girlfriend stated that Smith was the man who had robbed and raped her two hours earlier and they immediately called police. An extensive search of Smith’s belongings did not reveal any clothing matching the description given by the victim, nor did it turn up any physical evidence tying him to the crime. Despite the lack of evidence, the case proceeded to trial. The prosecution argued that the victim had Billy James Smith not had sex with anyone twenty-four hours prior to the rape, and therefore, spent nineteen the presence of semen in the rape kit years in prison must prove that a rape occurred. The due to a mistaken prosecution then used the eyewitness eyewitness identification to solidify the case. Although Smith and his sister identification. both testified that he was home dur23 w w w . T h e J u s t i c e P r o j e c t. o r g Greg Kendall-Ball / Innocence Project of Texas Clay Graham I THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Ronald Gene Taylor ing the time the crime occurred, he was convicted of aggravated sexual assault and sentenced to life in prison. Smith petitioned for post-conviction DNA testing, but the prosecution argued that the semen from the rape kit could belong to her live-in boyfriend and as a result could not be probative. The argument was the exact opposite of the argument made at trial, where prosecutors maintained that the presence of semen meant a rape occurred. Eventually, Smith was given access to testing that revealed he did not rape the victim. Smith was released in July 2006 and officially exonerated on December 13, 2006. Because of a mistaken eyewitness identification, Billy James Smith spent nineteen years in prison for a crime he did not commit. onald Gene Taylor became a suspect in a 1993 rape in Houston when a neighbor told police that he saw Taylor near the crime scene on the night of the attack. Police placed Taylor in a video lineup because the victim was unable to travel to the police station to view a live lineup. After two viewings of the lineup, the victim identified Taylor as her attacker. At trial, the victim’s identification testimony was the primary evidence against Taylor. When the witness included new details that were not present in her initial statement, Ronald Gene however, Taylor’s attorneys Taylor spent argued that police leaked fourteen details of the investigation years in prison to her and that her identification of Taylor was due to forensic tainted. A forensic analyst work and a from the Houston Police mistaken Department also testified eyewitness for the prosecution stating that there was no semen identification. on the sheets found at the crime scene and Taylor could not be eliminated as a suspect through DNA testing. Taylor was convicted and sentenced to sixty years in prison. A re-examination of the sheets from the crime scene revealed that the sheets actually did contain biological evidence that could be used to extract a profile. Post-conviction DNA testing excluded Taylor and revealed the identity of the true perpetrator, Roosevelt Carroll. Carroll lived just a mile from the victim at the time of the attack and had already been convicted of two other rapes. He was serving a fifteenyear sentence for failing to register as a sex offender when Taylor was finally exonerated. Unfortunately, the statute of limitations had already passed on the 1993 rape case and Carroll could not be charged. Taylor was released on October 9, 2007. Because of faulty forensic work and a mistaken eyewitness identification, Taylor spent fourteen years in prison for a crime he did not commit. Josiah Sutton I n October 1998, the victim of an abduction and rape in Houston initially described her attacker as five feet, seven inches tall and weighed 135 pounds. Even though he was six feet tall weighing 200 An eyewitness pounds, Josiah Sutton identification was identified as the and false DNA perpetrator and was artestimony resulted rested. The Houston Crime in the wrongful Lab compared DNA conviction of samples from Sutton to Josiah Sutton. the two DNA profiles obtained from the biological evidence at the crime scene. According to the lab, Sutton’s DNA was a match. At trial, an analyst from the crime lab testified that the DNA match was solid—the DNA profile was shared by only one person in almost 700,000. Sutton was convicted and sentenced to twenty-five years in prison. In 2002, journalists with KHOU-TV in Houston exposed pervasive flaws with the Houston Police Department Crime Lab, causing several cases to be reexamined, including Sutton’s. Independent experts concluded that the forensic testimony at Sutton’s trial was false. When the lab retested the evidence, the DNA results excluded Sutton as the perpetrator. Because of faulty forensic testing, false forensic testimony, and a mistaken eyewitness identification, Sutton spent over four years in prison for a crime he did not commit. 24 w w w . T h e J u s t i c e P r o j e c t. o r g Clay Graham R THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Victor Larue Thomas On appeal, Turner’s conviction was reversed based on a prosecutorial error at trial. A higher court overruled that decision and Turner’s sentence was reinstated. Turner was paroled after spending four years in prison. In 2005, post-conviction DNA testing proved Turner’s innocence and he received an official pardon by Governor Rick Perry on December 22, 2005. Because of a mistaken eyewitness identification, Keith Turner spent four years in prison for a crime he did not commit. W hen a woman was raped during the robbery of a Waxahachie convenience store in 1985, Victor Larue Thomas was a suspect in an unrelated sexual assault that occurred in the area. Although their initial suspicions of Thomas in the unrelated case were unsubstantiated and police did not pursue that case against Thomas, he was taken in for questioning for the convenience store rape. Statements made by Thomas during his interrogation eventually led police to suspect him in the convenience store rape case. The victim identified Thomas as her attacker, and he was arrested and charged with robbery, kidnapping, and rape. Based almost entirely on the victim’s in-court eyewitness identification, Thomas was convicted of all charges and sentenced to life in prison. Post-conviction DNA testing proved that Thomas had not committed the crime, and he was released on June 27, 2001. The District Court Judge noted that Thomas should never have been prosecuted. Thomas was granted an official pardon by Governor Rick Perry in 2002. Because of a mistaken eyewitness identification, Victor Larue Thomas spent fifteen years in prison for a crime he did not commit. James Douglas Waller W Greg Kendall-Ball / Innocence Project of Texas hile shopping in a convenience store in his neighborhood, James Waller was identified by a twelve-year-old boy as the man who had sexually assaulted him in his family’s apartment. The boy initially described the intruder as an African-American man who wore a cowboy hat and a bandana around the lower half of his face. Waller and his family lived in the same apartment complex and were the only African-American residents of the complex. Police arrested Waller based on the boy’s identification. The apartment manager had also reported seeing an unknown male Questionable voice and with a cowboy hat and bandana. eyewitness identifications After the boy’s identification, the apartment manager also identified put James Waller in prison for eleven Waller as the person she had seen. At trial, the state’s case rested years for a crime almost solely on the testimony of he did not commit. the two eyewitnesses. The victim testified that he knew Waller was his attacker based on Waller’s eyes and voice. The boy admitted that he had been unable to see his assailant’s face. Moreover, Waller was substantially taller and heavier than the man described by the victim in his initial conversation with the police. The apartment manager also identified Waller at trial as the man she spotted wearing the hat and bandana near the scene. However, her testimony was inconsistent with her original description because she had previously de- Keith E. Turner Dallas Morning News Keith E. Turner spent four years in prison and eight years on parole after a rape victim incorrectly identified him. I n 1982, Keith Turner was wrongly identified as the perpetrator of a Dallas coworker’s rape. The victim called police when she thought she recognized Turner at work as her attacker. She also picked Turner out of a lineup police arranged that same day. At trial, the victim testified that she could identify Turner based on his basic physical appearance and the sound of his voice. Turner provided an alibi for his whereabouts during the attack, but he was convicted of rape and sentenced to twenty years in prison. 25 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed scribed an “unknown” man and she knew Waller as a resident of the building. Despite the discrepancies in the identifications, and alibi testimony given by Waller’s girlfriend, Waller was convicted of aggravated sexual abuse and sentenced to thirty years in prison. Waller was paroled in 1993 after spending eleven years in prison and was required to register as a child sex offender. In 2003, post-conviction DNA tests were unable to extract a DNA profile from the small amount of biological evidence available, but Waller received permission to have previously unavailable advanced DNA testing conducted on liquid extracts of the semen evidence that had been preserved. In 2006, those results conclusively proved that Waller did not commit the rape. Waller was officially pardoned by Governor Rick Perry in March 2007. Because of the mistaken eyewitness identifications in his case, James Douglas Waller spent eleven years in prison for a crime he did not commit. it matched with Byron Demond Bell, a man who had been paroled in February of 2008 after serving fifteen years of a forty-five-year sentence for burglary. When questioned, Bell admitted to the attack and named Lemondo Simmons as his accomplice in the crimes. Both men testified to their guilt in front of a grand jury, but neither would be prosecuted for the crimes because the statute of limitations had expired. Bell’s parole officer stated that the crimes would be taken into consideration if Bell ever violated the terms of his parole. Because of mistaken eyewitness identifications, Patrick Waller spent more than fifteen years in prison for a crime he did not commit. Gregory Wallis F our months after police circulated a flier and composite sketch in a local jail about a 1988 sexual assault of an Irving woman, an inmate told police that Gregory Wallis had a tattoo similar to the description given by the victim. A photo of Gregory Wallis was included in a Wallis spent photo lineup presented to eighteen years the victim and she identified Wallis as her attacker. in prison due Investigators found no to a mistaken physical evidence linking eyewitness Wallis to the attack. identification Although biological evidence was taken from the scene, forensic DNA analysis was not available at the time. At trial, the prosecution relied entirely on the victim’s eyewitness testimony, and Wallis was convicted and sentenced to fifty years in prison. In 2004, DNA testing could not entirely exclude Wallis as the attacker, but the test results had cast enough doubt to motivate prosecutors to offer a deal. Prosecutors offered Wallis his freedom if he agreed to spend the rest of his life as a registered sex offender. Wallis refused and remained in prison. A few months later, a more sophisticated DNA test proved that Wallis was not the perpetrator. Wallis was released in March 2006. Because of a mistaken eyewitness identification, Gregory Wallis spent eighteen years in prison for a crime he did not commit. Patrick Waller Clay Graham P atrick Waller was identified by four victims as one of two attackers in a 1992 robbery and sexual assault in Dallas. Though all four victims identified Waller as one of the attackers, one witness was not certain. Records indicate that the detective pointed toward Waller’s False eyewitness picture and said that two identifications other eyewitnesses had alsent Patrick ready identified Waller as Waller to prison the perpetrator. Even so, eyewitness remained for over fifteen the uncertain and did not tesyears. tify at trial. Waller was convicted of aggravated robbery and sentenced to life in prison. He pled guilty to two counts of kidnapping to avoid more jail time, but he proclaimed his innocence throughout his appeals. In June of 2008, DNA testing excluded Waller in the crime. Investigators ran the DNA profile from the crime scene through the state DNA database and 26 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Calvin Washington James Lee Woodard J J ames Lee Woodard quickly became a suspect in the December, 1980 rape and murder of his former girlfriend, Beverly Ann Jones. Woodard was taken into custody on New Year’s Day. Two eyewitnesses placed Woodard with the victim close to the time when the crime occurred, but there was no evidence that tied Woodard to the crime. The defense provided two alibi witnesses who stated that Woodard had been thirty miles away from the scene on the night of the murder. Woodard was convicted and sentenced to life in prison. DNA testing excluded Woodard as the perpetrator of the sexual assault, but because the other charge against him was murder, he needed to prove James Lee Woodard that the same person commit- spent twenty-seven ted both crimes. years in prison due An investigation by Woodard’s lawyers revealed that to prosecutorial the Dallas County prosecutors misconduct and two withheld key evidence from the mistaken eyewitness defense in 1981. Several days identifications. before Woodard’s trial, authorities learned that three men had been with the victim on the night of her death: a man told investigators he went with Jones to a South Dallas convenience store where she got into another car with three men and left. He could not identify the car or the men in question. In addition, police neglected to investigate the three men as suspects, even though one was in prison on a charge of aggravated rape during Woodard’s trial. This finding, along with a forensic pathologist’s conclusion that the rape and murder “were tied together in such a way that the rape results would conclusively show who the perpetrator was,” helped prove Woodard’s innocence. Woodard was released on April 29, 2008. Because of two mistaken eyewitness identifications and prosecutorial misconduct, James Lee Woodard spent twenty-seven years in prison for a crime he did not commit, more time than any other DNA exoneree in the country. Dallas Morning News ailhouse informants provided damaging testimony against Calvin Washington and Joe Sydney Williams for the March 1986 rape and murder of Juanita White of Waco. One man testified that he walked past a hotel room in the middle of the night and overheard Williams and Washington implicating themselves. Several other witnesses testified that Washington and Williams were spotted in the victim’s car after the murder and that they had sold some of her property. The testimony of a dental expert, Homer Campbell, who claimed that the marks on the victim’s body were bite marks that matched Williams’ teeth, helped convict both men. Williams’ conviction was overturned on direct appeal, and he was released when the prosecutor declined to retry him. Washington remained in prison. He was released when post-conviction DNA testing showed that blood found on a shirt in Washington’s home was not the victim’s, as the prosecutor had alleged. Also, DNA found on the victim implicated another man, Bennie Carroll, who had previously confessed to raping Juanita White’s next door neighbor prior to committing suicide. Because of unreliable jailhouse informants, Calvin Washington spent thirteen years in prison for a crime he did not commit. Mark Webb M ark Webb was wrongfully convicted of a 1985 rape based on the victim’s mistaken eyewitness identification. Although biological evidence from the crime scene was tested and the results were presented in court, the tests at the time were not sophisticated enough to exclude Webb as the attacker. The tests also could not exclude a large portion of the rest of the population. The defense called several alibi witnesses who testified that Webb was at work at the time of the crime. Unfortunately, the eyewitness identification held more weight with the jury, and Webb was convicted of rape and sentenced to thirty years in prison. In 2001, post-conviction DNA testing proved Webb’s innocence. Because of a mistaken eyewitness identification, Mark Webb spent thirteen years in prison for a crime he did not commit. 27 w w w . T h e J u s t i c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Convicting the Innocent: Texas Justice Derailed Michael Nawee 1994 2008 Collin rape, murder Butler A.B. 1983 2000 Smith rape, kidnapping Byrd Kevin 1985 1997 Harris rape Chatman Charles 1981 2007 Dallas rape Cole* Timothy Brian 1986 2008 Lubbock rape Criner Roy 1990 2000 Montgomery rape, murder Danziger Richard 1990 2001 Travis rape, murder Fountain Wiley 1986 2003 Dallas rape Fuller Larry 1981 2006 Dallas rape Giles James Curtis 1983 2007 Dallas rape Good Donald 1984 2004 Dallas rape Gossett Andrew 2000 2007 Dallas rape Henton Eugene 1984 2006 Dallas rape Karage Entre Nax 1997 2004 Dallas murder Lavernia Carlos 1985 2000 Travis rape Lindsey Johnnie Earl 1983 2008 Dallas rape McGowan Thomas 1985 2008 Dallas rape, burglary Miller Billy Wayne 1984 2006 Dallas rape Moon Brandon 1988 2005 El Paso rape Mumphrey Arthur 1986 2006 Montgomery rape Ochoa Christopher 1989 2001 Travis murder Phillips Steven Charles 1983 2007 Dallas rape, burglary Pope David Shawn 1986 2001 Dallas rape Rachell Ricardo 2003 2008 Harris child sex assault Robinson Anthony 1987 2000 Harris rape Rodriguez George 1987 2004 Harris rape, kidnapping Salazar Ben 1992 1997 Travis rape Smith Billy James 1987 2006 Dallas rape Sutton Josiah 1999 2004 Harris rape Taylor Ronald 1995 2007 Harris rape Thomas Victor Larue 1986 2002 Ellis rape Turner Keith E. 1983 2005 Dallas rape Waller James 1983 2007 Dallas rape Waller Patrick 1992 2008 Dallas robbery, kidnapping Wallis Gregory 1989 2007 Dallas rape Washington Calvin 1987 2001 McLennan rape, murder Webb Mark 1987 2001 Tarrant rape Woodard James Lee 1981 2008 Dallas murder, rape P P P P P P P P Approximate Years in Prison Blair P P P P P P Suppression of Exculpatory Evidence or Other Misconduct 1990 1994 False Confession or Plea Gilbert Jailhouse Informant & Accomplice Testimony First Name Alejandro Unreliable or Limited Forensic Methods rape Last Name Faulty Forensic Testimony Crime Uvalde Mistaken Eyewitness Identification County Year Exonerated Year Convicted The Texas DNA Exonerated 4 P 14 17 P P P P 12 27 P P P 13* 10 P 12 16 P 20 P P P 10 10 7 P 2 7 P P P P P P P P P P P P P P P P P P P 16 26 23 22 P P P 33 17 18 P P 12 P 26 15 P 6 10 P P P P 17 5 19 P P 4 14 15 4 11 P 16 18 P P P TOTALS P P P 13 13 7 *Died in prison in 1999 28 w w w . T h e J u s t i c e P r o j e c t. o r g 11 5 5 P 27 7 548 “Law’s evolution is never done, and for every improvement made there is another reform that is overdue.” — J ustice W illiam J. B rennan , J r . Convicting the Innocent: T e x a s J u s tic e D e r a i l e d Stories of Injustice and the Reforms That Can Prevent Them Texas has had more wrongful convictions exposed by DNA evidence than any other state in the country. The thirty-nine cases in this report—all of which have been exposed by DNA evidence—highlight the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can increase the fairness, accuracy, and reliability of its criminal justice system. THE JUSTICE PROJECT 510 S. Congress Ave., Suite #304 Austin, TX 78704 (512) 391-2320 Fax: (512) 391-2330 www.thejusticeproject.org/state/texas EDUCATION FUND 1025 Vermont Ave., NW, Third Floor Washington, DC 20005 (202) 638-5855 Fax: (202) 638-6056 www.thejusticeproject.org