Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:

We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

Baird argues that the department has not taken the lessons from wrongful convictions to heart:

She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?

While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.

The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors

I was amazed to read that, at Hank Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one. In point of fact, and as somebody paid by the Innocence Project of Texas to lobby on behalf of the bill I can say this with certainty: Skinner's case was not only cited in testimony surrounding the bill, his US Supreme Court victory essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA testing a fait accompli. After that, prosecutors at the capitol seemed to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially critical since Texas has no comparable state cause of action for civil rights abuses, though the state does have a special chapter of the Code of Criminal Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were faced with a choice: They could retain restrictive language insisted upon  by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral grounds for objecting to tests. But if they let prosecutors keep that power, local taxpayers would find themselves on the hook for expensive, time consuming federal civil rights litigation. It was in that context that the Texas Legislature limited prosecutors' discretion to oppose such "Chapter 64" motions, at least when there's a chance it could prove innocence, a move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley fighting Michael Morton's DNA testing motion tooth an nail for 6 years before the motion was finally granted and the results cleared Morton's name. Michael Morton was finally granted DNA testing not because John Bradley suddenly saw the light on the road to Damascus, but because the law changed and the grounds on which he'd previously objected to DNA testing under Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent 20 years on death row for a 1978 murder, ultimately bartering his freedom for a guilty plea in order to prevent a fourth trial, facing prosecutors who once again said they would seek the death penalty. (Maybe it's happened before, but Grits knows of no other guilty plea to a capital murder where the defendant walked away free essentially for time served - not if responsible prosecutors honestly think them guilty of a heinous act.) At the time Cook went free, DNA testing still a relatively new technology, certainly for East Texas courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later, DNA testing ultimately exonerated him, but never the courts. Even so, as a practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing necessary clear his name formally through the habeas corpus process until recently because of virulent, Bradley-style opposition from a succession of local Smith County DAs. The possibility only glimmered anew after SB 122 stripped away the means by which Smith County prosecutors and judges (in this case kinda the same thing) could prevent him from exposing, with finality and legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that questioning from the Court of Criminal Appeals seemed to favor liberal access to DNA testing. These quotes were recorded in an account from David Protess at the Huffington Post:

• Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
• Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
• Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."

Judge Keasler's comments are particularly notable as he more frequently votes with Judges Keller and Hervey on the court's more extremist right wing. Judge Alcala so far ranks among "moderates" on the court, to the extent there is such a thing. Judge Cochran's comment is also notable because she's so often a swing vote among competing conservative factions. Counting heads, if she and Keasler side with Skinner, Grits would offer an educated (perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas Tribune:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.

Ouch! That was NOT the response Mr. Mitchell was looking for from Judge Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if DNA evidence inculpates him? No more than I would if it exculpates. I agree with Judge Cochran that "[The evidence against Skinner] is not overwhelming. It's circumstantial." So why not test? And as the Legislature understood, if the CCA rules against Skinner, the US Supreme Court has said he can file a Sec. 1983 civil rights suit and it's likely a federal judge would order the testing down the line, anyway. That's why, in this non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of Criminal Appeals, not to mention an object lesson for Texas prosecutors on how they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.

Two latest Dallas DNA exonerees spent nearly 30 years behind bars

Congratulations to James Williams and Raymond Jackson, Texas' two latest DNA exonerees out  of Dallas who were liberated yesterday after a nearly unimaginable 29+ years inside based on false accusations of  rape and kidnapping. Reported a local TV station, "Their biggest hurt? Relatives, including their mothers, died believing they were criminals."

As an aside, the Fort Worth Star-Telegram coverage mentioned that "Dallas County has now exonerated 32 people since 2001, most of them during Watkins' tenure. Most of the cases -- including Monday's -- involved faulty eyewitness identifications." But it should be mentioned that that figure only includes DNA exonerations and a handful of non-DNA exoneratoins under Craig Watkins. There was also the infamous Dallas fake-drug scandal from 2001, where police officers collaborated with a corrupt informant to set up two dozen  innocent, mostly Spanish-speaking immigrants on false drug charges. Adding in those alone gets you at least 56 over that time span. Most counts you see of exonerations include only DNA exonerees,  not the large coterie of drug war cases like those in Dallas, Hearne, and Tulia.

Serendipitously, Mr. Williams "has re-connected with his childhood sweetheart, and she says they're now engaged to be married," while Mr. Jackson has reconnected with his family. Grits wishes both of them all the best.

Read more here: http://www.star-telegram.com/2012/04/30/3924291/2-dallas-men-cleared-in-1983-rape.html#storylink

Seeking compensation for non-DNA innocence claims

Here's a story about the difficulty in proving "actual innocence" without DNA and one man's quest seeking compensation in a non-DNA Texas innocence case: Billy Frederick Allen, who was falsely imprisoned for 25+ years based on a case of mistaken identity and evidence the defense failed to unearth before trial. Comptroller Susan Combs says Allen's release was based on claims of ineffective assistance of counsel, not actual innocence, and now the Texas Supreme Court is considering whether Allen may receive compensation like the DNA exonerees in a similar position. The mixup began at the crime scene with the victim's dying words:

The police officer testified that when he asked Sewell who attacked him, he answered, "Billy Allen." But a defense investigator after the trial found two paramedics who heard Sewell saying three names as he was dying, the Court of Criminal Appeals said. One said he heard [victim James] Sewell say "Billy Wayne Allen," the name of another possible suspect. The other paramedic remembered hearing a middle name but couldn't recall it.

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

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

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

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

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

Allen's case eerily parallels that of James Giles, who was also the victim of a wrong-name mixup that cost him ten years in prison and another 14 as a registered sex offender. The only difference:, DNA evidence existed in Giles' case to prove him innocent, whereas here that absolute standard can't be met.

The Texas Supreme Court has a tough job setting the standard for compensation in non-DNA cases, and if they find the current law is inadequate to compensate Mr. Allen, the Lege should revisit the standard in light of non-DNA exonerations. Where that line gets drawn is a multi-million dollar decision for the state, but we also know DNA exonerations represent just a small fraction of the total number of false convictions. The compensation law should accommodate the types of innocence cases actually out in the world. The Tulia defendants received compensation, after all: DNA has never been a pre-requisite for compensation under Texas' statute and I hope the court doesn't create a precedent now that would make that the case.

Read more here: http://www.star-telegram.com/2012/03/17/3817535/former-inmate-struggles-to-collect.html#storylink=cpy

Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

Having mentioned the other day that Kerry Max Cook is seeking post-conviction DNA testing he hopes will formally exonerate him, and that local prosecutors were blasting him for it in the press, Grits wanted to point out some keen commentary by former Dallas Morning News reporter David Hanners, the journalist who first uncovered problems with Cook's conviction. Texas Monthly's Michael Hall wrote a notable blog post titled "What the 'Tyler Morning Telegraph' failed to tell you about Kerry Max Cook," and Hanners replied with this remarkable comment (edited only to break it into more readable paragraphs).

As the reporter for The Dallas Morning News whose stories initially raised doubts about Mr. Cook’s guilt, I believe I have a few observations I can offer to the discussion. The first would be that when it comes to Mr. Cook’s saga — and there’s no other word for it — the Tyler Morning Telegraph has never acquitted itself well. I’m usually hesitant to disparage another journalist or publication, but the Tyler paper’s history of coverage in this case has been a sad entry in the annals of objective and fair journalism. The paper has, time after time, taken the word of local police and prosecutors as gospel in Mr. Cook’s case and has done little, if any, real journalism. And, as the record reflects time after time, the word of police and prosecutors in this case has not been worth much.

I am probably one of the few people who has taken an objective look at Mr. Cook’s case. I wasn’t out to convict him and I wasn’t out to set him free. When I began looking into his case, it was to try and get an answer to a very simple question: Why did it take the Texas Court of Criminal Appeals nearly eight years to rule in his case? (As I would later find out, it was because the court basically lost the file.) Whether he was guilty or innocent really wasn’t an issue to me. But as I sat in the basement of the Supreme Court Building reading his trial transcript and looking through the exhibits, it became increasingly evident to me that, at the very least, Mr. Cook had not received a fair trial and, at may well have been innocent. The record (and the Texas Court of Criminal Appeals, eventually) has proven the former, and I am firmly convinced of the latter. I just don’t believe he killed Linda Jo Edwards.

In discussing this case with others, I have often described it as Murphy’s Law personified. Everything that could go wrong, did. The initial police investigation was hopelessly incompetent and relied on pseudo-science that was bad even for 1976. The police just didn’t do what a basic police investigation would have or could have done. (To underscore that fact — and this is directed at “Kelly”[another TM commenter] — Ms. Edwards had indeed been married and divorced. I have the records and I’ve spoken to her ex-husband. At the time of the murder, he was in the military out on the east coast, and detectives made the trip out to interview him. In a bit of irony, the detectives couldn’t be bothered to head out to the university to interview Mr. Mayfield or Ms. Edwards’ co-workers. When those co-workers complained to the police about not being talked to, the detectives went out to the school and basically waited for people to come to them — in full view of Mr. Mayfield.)

As another example of the utter ineptitude of the police investigation, consider the “missing” sock. As those conversant with the case know, police said they found only one sock at the scene, and so the prosecution turned that “theft” into one of the elements making it a capital murder case and the description they offered at Mr. Cook’s trial was quite graphic: After killing Ms. Edwards, the killer allegedly cut out body parts and stuffed them in the sock and took them as “trophies” of his kill. Imagine if you’re a member of the jury and you hear that and it is never refuted by the defense. Well, no body parts were ever taken, and when the jurors in the first re-trial had the evidence back in the jury room, they opened the evidence bag containing Ms. Edwards’ jeans, pulled out out the pants and held them up. Out dropped the “missing” sock. The cops were too incompetent to even find a sock in a pant leg. That type of conduct permeates the police investigation, so it is legitimate to question how anyone can have any faith in it. Still, the “he-took-body-parts-in-a-sock” bit remains part of the accepted mythology surrounding this case.

I’ve covered many murder cases over the years and realize that often they come down to circumstantial evidence. But even the circumstantial evidence in this case had to be stretched and in some cases fabricated to win a conviction. And Mr. Cook’s initial defense team did little to nothing in the way of investigation, or at least the type of investigation you’d like to see in a capital murder case.

Over the years, I have developed my own theory and belief into who killed Ms. Edwards, and it is a theory that fits the available evidence (direct and circumstantial) and is not inconsistent with those factors. I’ll not share that theory here, but suffice to say that it doesn’t involve Mr. Cook. Not to put too fine a point on it — and this is something I’ve spoken to him about, so he knows what I’m about to say — but Mr. Cook was not a good enough criminal or a lucky enough criminal to have committed a crime of this fury and magnitude and NOT leave a ton of evidence. He was young, immature and just didn’t think that far ahead. As “iffy” as fingerprints can be, he could not have committed this crime and not left bloody fingerprints everywhere in that apartment.

I also wish to speak to the DNA evidence and the way the prosecution has handled it. I clearly remember Mr. Dobbs telling me, prior to the testing, that they were excited about the prospects of a test because the semen sample “could only have been left by the killer.” Those were his exact words to me and I remember him saying it as if it were yesterday. So then the sample is tested and, lo and behold, it belongs to someone other than Mr. Cook. Suddenly, the prosecution’s story changes. So now the prosecution says, “Well, of course it was somebody else. But Mr. Cook is still the killer.” That last point is emblematic of how the police and prosecution have behaved over the lifetime of this case. They have wanted to have it both ways. When they claimed the evidence said one thing, they claimed it pointed to Mr. Cook’s guilt, but when it was demonstrated or proven that the evidence said the exact opposite of what they claimed, they said it still proved Mr. Cook’s guilt.

Absent confessions from the guilty parties, I doubt we’ll ever know for sure what happened to Ms. Edwards. The investigation was so screwed up that it can’t be trusted and there’s no way to go back in time and fix that. You don’t get a do-over when it comes to collecting evidence from the scene of a 1976 crime. Mr. Cook deserves more than what the system has given him. For that matter, Ms. Edwards deserves more than what the system has given her. She, like Mr. Cook and justice itself, deserves the truth, and we do them all a disservice by perpetuating the lies that led to this abhorrent conviction.

Well-said; you can see how Mr. Hanners had the writing chops to win a Pulitzer. He and Michael Hall couldn't be more right about the Tyler Morning Telegraph, and this case isn't the only time the paper has demonstrated such shortcomings.

BTW, among attorneys doing innocence work, there's a phrase for the situation where prosecutors insist only the rapist and/or killer could have left the DNA, then change their theory of the case after exculpatory results come back vindicating the person they've accused, as happened in Mr. Cook's case: They're basically alleging there was an "unindicted co-ejaculator." Usually once you reach that point, the defense has already won the substantive debate and the prosecution just hasn't realized it yet, or won't admit it. But you'd expect the local newspaper to be able to figure it out.

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.

Louis Sturns to oversee Michael Morton 'court of inquiry' over alleged prosecutor misconduct

Gerry Goldstein, Michael Morton, John Raley and Barry Scheck, via AP

Last week, Texas Supreme Court Justice Wallace Jefferson named the judge in the Micheal Morton "court of inquiry" - fellow black Republican state District Judge Louis Sturns of Tarrant County. (Bob Ray Sanders at the Startlegram provides background, for those who need it.) A defense attorney who's practiced a great deal under Sturns told me he's the "nicest guy you'd ever want to meet," though that doesn't mean he won't also hand down extremely long sentences. Most folks seem to think he will be fair, which is all one can ask. See AP's acccount, and Brandi Grissom's coverage. If you're really interested and have the stomach for it, here's the 140+ page report (pdf) that convinced Chief Justice Jefferson to appoint a judge to oversee these unusual proceedings. Fittingly, his decision comes days after the silver (25th) anniversary of Morton's false conviction, a coincidence whose force is heightened by the protagonist's silver hair and beatific camera visage. In most pictures I see of Michael Morton he has a big grin on his face, like the cat who just ate the canary. In the one above he shows no teeth, but his eyes are smiling.

Courts of inquiry are strange birds - a seldom used, Texas specific vehicle for making an end-run around the DA's office to seek an indictment for alleged criminal wrongdoing without ever having the case heard by a grand jury. Lately, attorneys like my boss Jeff Blackburn from the Innocence Project of Texas (Timothy Cole) and Barry Scheck of the national Innocence Project (Todd Willingham) have sought (with 50-50 success) to use the procedure as a truth-seeking vehicle in posthumous innocence cases. Now Raley, Scheck and Co, hope to  use it to punish prosecutorial misonduct. These are mostly uncharted legal waters  for all involved, both for the attorneys and Judge Sturns.

What a dramatic hearing that will be! Grits may have to drive up to Cowtown for that one.

Read more here: http://www.star-telegram.com/2012/02/21/3752088/important-move-forward-on-holding.html#storylink=cpy

Congratulations to Richard Miles, Dallas' latest non-DNA exoneree

Congratulations to Richard Miles, his attorneys, and supporters in Dallas after his exhilarating exoneration last week, as the Court of Criminal Appeals formally dismissed charges against him - a rare instance indeed given that there was no DNA evidence in his case, which is how most recent Texas exonerees have been sprung. Reported Leslie Minora at The Dallas Observer:

Congratulations to Richard Miles. Hurrah!

Free for two years, Richard Miles has nevertheless waited and waited for today -- the official acknowledgement that he did not commit the  murder and attempted murder at a Texaco near Bachman Lake in 1994 for which he was sent to prison. The detailed 52-page opinion handed down from the Texas Court of Criminal Appeals reads like the outline of a Hitchcock film, detailing two police reports that weren't disclosed at the time of Miles's conviction, a 2010 recantation from the only uninvolved eyewitness and the determination that the small amount of gunshot residue on Miles' hand was inconclusive. All of which amounted to the decision that the wrong man spent 14 years behind bars.

"When we balance the newly available evidence ... with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence," reads the court's opinion released today.

The Dallas County District Attorney's office recommended Miles's release in 2009 after they determined that flaws in his trial violated his constitutional rights. Since his release more than two years ago, he's been working, piecing his life back together and finding support in other exonerees as he waited for a decision from the state court, which must rule on all exoneration cases. But finally, as of today Miles can file for state compensation for his years spent locked up.

"This is going to be great for him because now he can do some of the things he wanted to do" like help his mother, said Charles Chatman, an exoneree who was released in 2008. Chatman and the other exonerees, including Miles, meet monthly, and Chatman tells Unfair Park that he and the other guys have given Miles a helping had since his release.

"We have helped him," Chatman says, quickly adding that Miles isn't "the kind of person who just depends on nobody." Miles has been getting by working at a hotel, Chatman said, but even finding a job was difficult without a declaration of "actual innocence."

The state court's decision comes a year after The Dallas Morning News checked in with him as he continued to await the ruling. Miles was released after Centurion Ministries, a non-profit that explores wrongful convictions, found previously withheld evidence that linked another man to the 1994 murder and compiled evidence in favor of Miles's innocence.

In a December feature, the Observer explored the complexity of exoneration cases where there is no DNA evidence to definitively prove guilt or innocence. Miles's case, a non-DNA exoneration, rested squarely on eyewitness testimony, and when the case was explored years later, it was discovered that two police reports were never turned over to the defense, as is required of the prosecution.

Wherever you are, take a moment to stand and applaud, or issue a triumphant "Hurrah!" on Mr. Miles' behalf. With no DNA evidence, and the recent Ex Parte Robbins ruling that raised the bar to near impossible heights to challenge tainted, inaccurate forensic testimony, it's unlikely Miles could have been exonerated if they couldn't prove prosecutors withheld exculpatory evidence, which once again was discovered after the fact via the Public Information Act. But the fact that all that other existed surely contributed to the convicting court recommending, with the assent of the Dallas DA's office, that Miles be granted habeas relief based on "actual innocence" as a result of the "Brady" violations.

This case provides another data point for Grits' hypothesis that, because of limitations imposed by the Court of Criminal Appeals in Robbins as well as an array of other court precedents and statutes over the years that chipped away at the efficacy of state habeas claims, today "prosecutorial misconduct - particularly withholding exculpatory evidence ... may be the quickest route to exoneration."

That was the path taken here. Miles' lawyers almost had to go that route because it's the main avenue the Sharon Keller Court and the Texas Legislature have left open, so byzantine and restrictive has modern Texas habeas law become. In truth, there were many grounds to call Miles' conviction into question that in an ideal world should have garnered him relief in addition to the Brady claims: As a reader put it via email, this was an "Amazing case that involved the Dallas Police not turning over exculpatory evidence, a show-up ID, and an expert who changed her opinion of the gun-shot residue evidence. A perfect storm of the various causes of wrongful convictions."

False convictions occur for a vast array of reasons, but under Texas habeas law, proving prosecutors violated Brady v. Maryland is one of the few areas besides DNA testing where Texas courts seem willing to provide relief.

Anyway, back to Richard Miles' exoneration. The same day the court's ruling was announced, an elated paralegal named Jena Parker, who formerly worked for the Dallas DA's office and now works for two former Craig Watkins-lieutenants now in private practice, sent out an mass email rejoicing and praising everyone involved. She worked on the case both at the DA's Office and in private practice, and certainly has forgotten more about it than I'll ever know, so let's close out this post by reprinting Jena's email here with her permission:

I am just emailing everyone that I have in my address book so if you get offended then hit your delete key.  Most of you know that I  have been very fortunate to work for Mike Ware for 18 years.  When Craig Watkins got elected D.A. in Dallas County he hired Terri Moore as his first assistant.  I could go on and on about what a remarkable job she did and that was brilliant that Mr. Watkins hired her.  Terri Moore came up with the idea of the Conviction Integrity Unit (CIU).  She knew that there were cases prior to Mr. Watkins taking office that had been turned down for DNA testing and she knew that there were already 10 exonerees.  So she came up with the idea of creating the CIU to look at cases where defendants were saying that they were innocent.   But she knew that in Dallas County, SWIFS had kept the evidence in these old cases.  So Terri asked Mike to head up the CIU.  I was very fortunate that I worked for Mike so he took me with him. 
 
To try to make this short.  I truly believe 100% if Craig Watkins wasn’t elected District Attorney then the other 17 exonerees (I think there are 28 exonerees now.  We had just finished working on Ricky Dale Wyatt when we left so it might be 29 exonerees total now.  I lose track  But I think after Craig Watkins was elected the CIU had a part in 17 or 18 of the 28 or 29 exonerees).
 
Back to my story.  In 2009, Jim McCloskey from Centurion Ministries came to talk to Terri about a defendant, Richard Miles.  Cheryl Wattley from Centurion Ministries and Jim had been investigating Richard’s claims of actual innocence.  Richard was convicted of a 1994 murder. Jim had done an TPIR request on the Dallas Police Dept and found 2 reports of 2 other suspects.  Jim had interviewed one of the possible suspects. Jim brought the case to Terri and Terri immediately had me try to get the D.A. file which I did and the CIU began its investigation.  This was a non DNA case.  Through our investigation we talked to the only witness that identified Richard as the shooter.  When we were interviewing him, he told us that when he got to court, he had told the prosecutor that he couldn’t identify the shooter.  The prosecutor told him to identify the guy at defense table. (The prosecutor was Tom D’Amore.)  After the CIU investigated this case along with Michelle Moore and John Stickels, they were also exonerated.) The witness signed an affidavit to that effect of what the prosecutor (Tom D’Amore) said about identifying Richard at trial.

The only other witness was the trace analyst from SWIFS. We sent her trial testimony and other evidence to her for her to re-review then Mike spoke to her.  She told Mike and also signed an affidavit that she would not have testified now to what she testified at Richard’s trial regarding the gun residue.  This was huge as it could open the door for other gun residue cases.  Based on this newly discovered evidence, Richard filed another writ which we agreed to his innocence.  This was over 2 years ago.  Today, the Court of Criminal Appeals wrote a published 26 page opinion which can be found here. The opinion stated all the investigation on his case including that there was a fingerprint on top of the victim’s car where the shooter would have put his hand.   Mike had our investigator, Jim Hammond (who is the greatest) to run it through AVIS and sure enough it came back to this guy.  Jim and Mike interviewed him and also he did a polygraph which he failed about the shooting.  I think it is a great opinion but what it does not do is name the prosecutor....

I have worked on cases that Michelle Moore (several) Gary Udashen, John Stickels, Jason Kreag from Innocence Project, Shirley Baccus-Lobel and other defense attorneys who had clients that the previous administration fought against from finding out the truth.  Patrick Waller’s case is another example of how I could go on and on about what Gary went through and then all the investigation CIU did to find the truth.  (And brother the CIU did an extensive investigation)  Steven Phillips another example of a WOW case.  Anyway, I could get on a roll about each case.  How in some of those cases the real perpetrator was in the previous administration’s file all along .  Just makes me ill thinking about all the injustice that went on.

Back to my story.  It has been over 2 years since Richard’s actual innocence writ was filed and today the court agreed that Richard is innocence.  Oh by the way.  On a different case that we worked on, Mike told the truth about a previous prosecutor not disclosing evidence and it was printed.  John Bradley, Williamson County District Attorney (and who all know about him fighting DNA testing in Michael Morton case for 2 years or longer.  And we all know that Michael Morton is innocent) called Mr. Watkins up and wanted Mr. Watkins to fire or discipline Mike.  (I forgot which one) Why did Bradley want Mike fired.  Because the previous prosecutor withheld Brady and Bradley didn’t like that Mike told the truth about her withholding Brady.  (Guess he figured that withholding Brady was ok as long as there was a conviction.)

Again, there is no doubt in my heart that if Craig Watkins had not got elected and if Terri Moore and  Mike Ware were not hired to be First Assistance and Chief of the Conviction Integrity Unit then those other exonerees would still be in prison today.  There is no doubt in my mind.  I hope I don’t get in trouble by sending this email as Mike and Terri don’t know but you all know me and my mouth.  I am sure it won’t be the last time I open it or type it.  I just hope this makes some sense because my emails are really confusing especially when I am trying to explain things.

Please take the time to read the opinion and if anyone has any pull its time we stood up to prosecutors who hide the truth.  Because as you know for every innocence guy in prison there is a guilty person still committing crimes on other victims.  Just ask the other victims in Stephen Phillips case or Thomas McGowan case or Stephen Brodie case or Michael Morton’s case. . . .

Stephen Brodie (false confession).  Another case you know I can talk about but I will shut up.  I got to work.

As you all know, Mike and Terri are back in private practice and I am really truly blessed that I am still working for Mike and Terri where they continue to seek justice. And Thank Goodness that the Court of Criminal Appeals did the right thing in finding that Richard Miles is innocent of murder.

Amen. Congratulations again to everyone involved.

Blind administration would improve accuracy of forensics

The Economist argues that even the most powerful forensic tools, including DNA can be tainted by "cognitive bias" when scientists are given too much "contextual information" about the case, citing a study where DNA analysts unfamiliar with case details were less likely to find a match than the original examiners who knew the case details. The magazine grants that:

one example does not prove the existence of a systematic problem. But it does point to a sloppy approach to science. According to Norah Rudin, a forensic-DNA consultant in Mountain View, California, forensic scientists are beginning to accept that cognitive bias exists, but there is still a lot of resistance to the idea, because examiners take the criticism personally and feel they are being accused of doing bad science. According to Dr Rudin, the attitude that cognitive bias can somehow be willed away, by education, training or good intentions, is still pervasive.

Medical researchers, by contrast, take great care to make drug trials “blind”, so that neither the patient nor the administering doctor knows who is receiving the drug being tested, and who is getting a control drug or placebo. When someone’s freedom—and, in an American context, possibly his life, as well—is at stake, it surely behooves forensic-science laboratories to take precautions that are equally strong.

Blind administration turned out to be a key reform for eyewitness identification, and your correspondent has long believed the same approach is justified in other forensic disciplines. Why does a DNA analyst need to know case details before deciding if two samples match? Not only is it irrelevant to the analysis, it may actually turn out to reduce its accuracy.

Good blogging by others

Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:

Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world.  Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.

Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."

Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:

• New development in seeking DNA testing in Lake Waco murders for sole surviving defendant (other defendant David Spence already executed)
• Did George W. Bush execute an innocent person: David Wayne Spence?

While I'm interested in this case, regular readers know Grits doesn't believe "proving" an innocent person was executed will be the silver bullet many death-penalty abolitionists hope. Moreover, I've learned from harsh experience that one never knows what the results of DNA testing will be until it comes back from the lab. If the two men convicted are actually innocent, for the sake of the remaining fellow I hope the DNA can prove it; if they were guilty, I hope that's proven, too. The worst outcome where a past execution is involved would be if the tests came back inconclusive (as happens, I'm told, about a third of the time) or if DA Abel Reyna were to succeed (as seems unlikely) in his effort to suppress DNA testing. You don't want more cases hanging out there like Todd Willingham's where unresolved doubts linger forever, undermining public confidence almost more than if the execution of an innocent had been definitively proven.

Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.

'Beyond DNA': Innocence focus in Dallas shifting to non-DNA cases

There's an excellent piece in the Dallas Observer this week (Dec. 29) by Leslie Minora titled "Beyond DNA, Difficult Tests for the Justice System," which brings readers up to speed on a pair of non-DNA exonerations in Dallas this year and the future of innocence cases. Particularly troubling was the case of Dale Duke, who accepted a no-contest plea on a 1992 sexual assault he always denied in order to stay out of prison, but

In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

Watkins' Conviction Integrity Unit found corroborating evidence for Duke's innocence claims in their files that had never been turned over to the defense, which was the basis for overturning his case. The judge ruled that, with the evidence prosecutors concealed back in 1992, no reasonable jury would have convicted him. Though four of the 17 exonerations under DA Craig Watkins have been non-DNA cases, former public defender

Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

Grits has said in the past that non-DNA case are "the future of the innocence movement," and this article aptly explains why. DNA exonerees, Minora points out:

occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

Tis true. In most older cases, DNA either wasn't collected or wasn't kept, and it only exists in the first place in around 10% of violent crimes. In essence, DNA provided the equivalent a statistical sampling of innocence cases and a unique window into their causes.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Williamson County DA John Bradley raised his head out of his electoral foxhole long enough to put a devilish spin on the quest for non-DNA exonerations. He:

said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Ironically, given that Mr. Bradley is commenting on it, in the near term, prosecutorial misconduct - particularly withholding exculpatory evidence, as notoriously occurred in the Michael Morton case on his predecessor's watch - may be the quickest route to exoneration. That's what got Mr. Duke out.

Besides so-called "Brady violations," though, the concern was expressed by others, IMO accurately, that "DNA evidence may have raised the bar to a level too often unattainable by cases without it." Certainly there are still categories of non-DNA cases to mine for valid innocence claims. An examination of arson cases by my employers at the Innocence Project of Texas and the state fire marshal, initiated at the recommendation of the Forensic Science Commission, could discover false convictions based on flawed forensics testimony. Nobody has thoroughly vetted (nor to my knowledge, even identified) the 2,000 or so cases where former Fort Bend Sheriff's Deputy Keith Pikett claimed to have used his dogs in "scent lineups." And there are other similarly discrete categories of cases to explore.

But looming over all such cases, and indeed, though unstated, over this entire article, was a decision by the hard-line wing of the Texas Court of Criminal Appeals this summer in Ex Parte Robbins, in which the court overtly realized fears that DNA "raised the bar" for exoneration too high. Particularly in cases centered around bad forensics, the Legislature will likely need to adjust the habeas statutes for anyone to actually make use of them in junk science cases.

So I agree, the future of the innocence movement must inevitably move "beyond DNA," and on the policy side in Texas where I work, it has, with the passage of eyewitness ID legislation and requiring corroboration for confidential informants, in particular. But those are front-end fixes. On the back end, access to DNA testing has been expanded and the Lege has provided compensation for exonerees. But after Ex Parte Robbins, there likely needs to be a separate legislative fix before the courts will be able or willing to act on significant numbers of non-DNA "actual innocence" habeas corpus claims - particularly regarding junk science, from arson cases to dog-sniffs - however valid or compelling.

Audit discovers thousands more unexamined rape kits at Houston PD

The more the Houston crime lab inventories its backlog of untested rape kits, they're discovering thousands of biological samples they didn't even know they had. Reported the Houston Chronicle ("More rape kits than thought remain untested at HPD," Dec. 15):

The Houston Police Department's backlog of untested rape kits totals between 6,000 and 7,000 - 50 percent more than what officials previously acknowledged, according to a memo from Chief Charles McClelland.

HPD for years has insisted that the backlog of untested rape kits was around 4,000. The details from the chief's memo confirm a Houston Chronicle report that the backlog likely was far greater.

The backlog also is likely to continue to grow. According to McClelland's memo, HPD receives some 930 new rape kits each year. HPD officials previously have said the department is able to test only 30 to 40 a month.

The data resulted from "a two-phase, $1.14 million award from the NIJ. The bulk of the money will go toward determining the reasons rape kits go untested and how to reduce the backlog more quickly." The Chron story, by Zain Shauk, reminds readers that:

The department conducted an audit that determined that between 16,000 and 17,000 rape kits dating back to the 1980s are stored in HPD's property division, the memo said. Of those, roughly a third, or between 6,000 and 7,000, have not been examined.

DNA testing at HPD's crime lab was temporarily suspended in 2002, after an independent audit revealed shoddy forensic work, including unqualified personnel, lax protocols and facilities that included a roof that leaked rainwater onto evidence.

Since the lab resumed operations five years ago, the roof and other interior problems have been fixed. The lab also has reduced or eliminated backlogs in areas such as narcotics and ballistics.

Cutting down the rape kit backlog has been a challenge because of a lack of resources and personnel, HPD officials have said.

I'm assuming, but am not certain, that the phrase "examined" in the story is a synonym for "tested." Conceivably, though, the department could "examine" a sample but decide not to test it - e.g., where it was contaminated by water damage from a leaky roof or where consent, not identity, was the central issue in a sexual-assault case. If "examined" and "tested" are not synonymous, the number of untested rape kits could be even higher than 7,000.

There have been mostly muted criticisms of the NIJ  grant to HPD, particularly from outgoing city councilmember Jolanda Jones, for merely assessing the reasons for the backlog instead of just paying for testing to clear it up (though there are also some testing funds included in the grant). But with similar backlogs cropping up all over the state and nation, this work is extremely important. Police departments and crime labs need to create practical protocols for when testing is necessary, when it's not, and what types of cases should be prioritized given scarce resources. That's what the Houston grant is working toward, and IMO it's important, cutting edge work. At a minimum, by focusing on assessment instead of just testing, now we know there are half again more unexamined rape kits than HPD knew about just a few months ago. That's a start.

Waco DA issues spurious 'guidelines' on post-conviction DNA testing

McLennan County District Attorney Abel Reyna appears to be struggling with the conflict between enforcing the law and promoting his own policy preferences in the courtroom, at least when it comes to DNA testing in the so-called Lake Waco murder cases, which he continues to oppose despite having no legal basis to do so. As Cindy Culp reports in the Waco Tribune Herald (behind paywall), Reyna's stance sets him apart: "In stark opposition to prosecutors in some of Texas’ largest jurisdictions, ... Reyna has no plans to adopt a policy generally supporting prisoners’ requests for DNA testing after conviction," the story opens.

Wrote Culp, "Reyna, who took office in January, said he won’t support testing requests unless a case meets a rigorous set of guidelines."

The problem is, his "guidelines" have no basis in law and in fact contradict a Texas statute passed earlier this year expanding access to post-conviction DNA testing. Quoting my colleague Nick Vilbas from the Innocence Project of Texas, the story described how, in the past, prosecutors who opposed testing "usually [did] so on the grounds that other evidence proved the defendant’s guilt." But the Legislature this year eliminated those grounds as a reason to prevent testing. Instead:

Under current law, inmates can ask for DNA testing if biological evidence in their case has never been tested, regardless of the reason why.

They also can ask for new analysis of previously tested evidence if newer methods that might yield more accurate results have become available since the initial testing.

“The fight shouldn’t be about getting the testing done,” Vilbas said. “The fight should be about what does the testing mean.”

Not only does the DA's opposition have no basis in law, the practical concerns he expressed in the story have no basis in reality: “What does any person who’s ever been pled or been tried have to lose [from requesting testing]?” Reyna said. “McLennan County would probably need another felony district court to just handle (testing) motions.” However, wrote Culp, "That’s not the experience of some of Texas’ largest jurisdictions, where DNA testing requests are generally supported by their offices, prosecutors there said." For example:

Austin’s Travis County, for example, usually gets two to three requests per month. The county has a population of more than 1 million people.

Dallas County — which has a population of 2.4 million people and has had more DNA exonerations than any jurisdiction in the nation — gets fewer than 10 testing requests per month.

Judges in Waco must have pretty light caseloads if that volume would require creating a new district court. These are ignorant comments by someone who was seemingly unaware of the law until recently and now, having read it, wishes to substitute his own policy preferences for those of the Legislature.

Bizarrely, Reyna continues to couch his opposition to testing in the Lake Waco murder case as respect for "jury verdicts," seemingly ignorant of or oblivious to the fact that the case ended in a plea bargain, not a jury trial. In this instance the defendant pled guilty then later recanted, "saying he falsely confessed because his attorneys told him he would almost certainly get the death penalty if he went to trial." In that light, Reyna's commentary about respect for juries comes off as weird and out of context. As Scott Greenfield noted, "the inability to test DNA at the time makes this new evidence, and there's no disrespect to the jury (even if there had been one) or the system's interest in finality when new evidence comes to light."

Bottom line, as I suspect Reyna will learn definitively when the court rules on the pending motion, the new law means it doesn't matter much whether Reyna supports or opposes DNA testing and his "guidelines" are mainly useful as toilet paper: The law no longer includes those caveats and he cannot impose them by fiat.

See related Grits posts:

• McLennan DA wants law changed to restrict post-conviction DNA testing
• McLennan DA fights DNA testing because it overrides juries
• DNA testing, innocence claims pursued in 30-year old Lake Waco murders
• New DA in Waco off to rocky start: Announces new hire who's then indicted

On the Road to Damascus: The Conversion of John Bradley?

Saul, Saul, why persecutest thou me?

-Voice of Jesus speaking to St. Paul on the road to Damascus, Acts 9:4, KJV

Just bizarre: Like Saul's conversion on the road to Damascus, Williamson County DA John Bradley claims to have suddenly seen the light after Michael Morton's DNA exoneration. He now plans to repent his sins and henceforth will walk the path of righteousness, we're asked to believe. Brandi Grissom at the Texas Tribune has a remarkable and lengthy story today featuring Bradley eating humble pie over the Michael Morton DNA exoneration. The article opens with the line, "John Bradley is a man evolving." I hope and pray that's true, but this "evolution" is also conveniently timed as the DA approaches a tough primary challenge.

In the Trib story, Bradley describes his former vision of the prosecutor's role literally as that of a "predator": “I always felt like I was swimming among sharks,” he said. “And you had to defend yourself, and you have to be the same predator back.” I've never seen a prosecutor openly compare their role to a "predator," usually aiming such inflammatory language toward their adversaries (as Bradley more comfortably does in the first half of the quote). But it's a revealing statement, nonetheless.

If Bradley-the-prosecutor cared little about building relations with the local defense bar, the story tells us, he certainly knew which relations to develop to advance his political career:

As then DA Ken Anderson's first assistant, "Bradley developed a close relationship with his boss. They co-wrote two law books. Under Anderson, he began working with lawmakers at the Capitol, just a 30-minute drive south of Georgetown. When Gov. Rick Perry appointed Anderson as a state judge in 2002 he also appointed Bradley to take over as district attorney."

So we've got a self-described "predator" who came to Williamson County from Houston with the mentality of a shark who treated the small pond full of perch and catfish in the defense bar essentially as prey while spending his spare time currying favor with officials in Williamson County and Austin. Largely thanks to those powerful patrons, particularly Judge Anderson and the Governor, until now Bradley has never faced a serious electoral challenge since Perry first appointed him. (He lost the only truly competitive race he's ever run, for the the Court of Criminal Appeals in the '90s.)

Like Ken Anderson's second chair Mike Davis, Bradley attempted to shift blame and focus for the Morton fiasco onto Judge Anderson, whose situation increasingly appears untenable. (I'm quite looking forward to reading his forthcoming deposition.) But Anderson's failings don't excuse Bradley's own decisions to fight disclosure of exculpatory evidence and DNA testing that eventually exonerated Mr. Morton. Grissom provides a detailed recital of Bradley's own role in this mess for which there's no one to blame but him:

In 2005, Morton began asking the state to test DNA evidence on a number of items, including a bloody blue bandana found near their home the day after the murder.

Bradley tenaciously fought the requests. In the press, he berated the idea that DNA would lead to some “mystery killer.” And he said Morton’s lawyers were “grasping at straws.” ...

Morton’s lawyers also asked Bradley, through public information requests, for investigative materials in the case. From the time of his conviction, Morton’s lawyers suspected that prosecutors had withheld key evidence that could have caused jurors to doubt his guilt. Bradley fought that request, too, arguing it would interfere with the DNA litigation.

Eventually, Bradley lost that fight and turned over the files. Reports from the sheriff’s department showed that in 1987 investigators had several clues that pointed to someone other than Morton as the killer. There was a transcript in which Morton’s mother-in-law told a sheriff’s deputy that the couple’s 3-year-old son saw a “monster” with a big mustache attack his mother — and the monster wasn’t his father. There were reports that Morton’s credit card had been used and a check had been cashed with her forged signature days after her death. Morton’s lawyers, though, had seen none of that information during his trial. ...

While the Willingham controversy continued in 2010, the Morton case was beginning to unravel. An appeals court ordered the prosecutor’s office to allow DNA testing on the bandana found near the murder scene. In June, the test results revealed that Christine Morton’s blood was mixed with the hair of a man who was not her husband. In August, a national DNA database search matched that DNA to a felon with a record in California....

But it wasn’t just the DNA.

The court in August also ordered the unsealing of a file that was supposed to contain all of the reports from the initial investigation of Morton’s murder. During a dispute in 1987 over evidence, the judge had ordered Anderson, the prosecutor, to provide him all of the investigator’s reports so that he could determine whether there was any information that could help Morton prove his innocence.

When that file was opened two decades later, Bradley and Morton’s lawyers found a paltry six pages of police reports.

Both Bradley and Morton’s lawyers knew that there were many more pages. Despite his order, the judge was not given the transcript that included the Mortons’ son’s description of the murder or the financial transactions that occurred after Morton’s death.

For the defense attorneys, it seemed to confirm their suspicions: the prosecutor’s office had withheld critical information so they could secure a conviction. For Bradley, the development was a shocking revelation that raised serious questions about his former boss and friend.

“I fully expected that that sealed file would contradict some pretty strong accusations,” Bradley said. “It didn’t.”

In September, Travis County investigators linked the DNA from the Morton bandana to DNA found on a hair at the scene of the 1988 murder of Debra Masters Baker. The man whose DNA was on those items during the 1980s lived only blocks away from Baker and about 12 miles away from the Morton’s home.

“It’s the kind of thing that happens only in Hollywood movies,” Bradley said. "I am still awed by the combination of circumstances that came together at the right time."

Corroborating reports of a closed-door shouting match between the two, Grissom writes: "Because of the continuing investigation, Bradley won’t say whether he believes [Judge Ken] Anderson knowingly hid exculpatory evidence. But, for now, he said, their personal relationship is gone. 'It saddens me, but that’s the facts,' he said."

For Grits, the supposed transformation in Bradley's thinking brings to mind not a Hollywood story but a biblical one: The Apostle Paul's miraculous conversion from persecutor of Christians to their champion. Your correspondent was quoted at the end of Grissom's article making that allusion: "Scott Henson, who writes the well-regarded criminal justice blog Grits for Breakfast, said Bradley could demonstrate his changed perspective by joining with innocence advocates to promote reforms to the Texas justice system. 'He’s got a long record,' Henson said. 'And it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

Somewhat ironically, Bradley now says, "I consider Barry Scheck a good friend," so perhaps Barry can play Ananais to Bradley's St. Paul, causing the scales to fall from his eyes and leading him toward a path of righteousness. Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. As Christ warned Saul on the road to Damascus, "it's hard for thee to kick against the pricks."

MORE: See the transcript from the Trib's Bradley interview.

AND MORE: From Wilco Watchdog. Also, from Jordan Smith at the Austin Chronicle, "Morton prosecutor wrote the book on crime." YET MORE: From Wilco Watchdog on John Bradley's "election transformation."

John Bradley's Willie Horton?

The blog Wilco Watchdog goes for the jugular vs. District Attorney John Bradley and District Judge Ken Anderson, attacking their "tuff on crime" credentials head on by exploring a plea deal they cut with an alleged child molester - from a 3rd degree felony to a Class A misdemeanor -  who later showed up on NBC Dateline's "To Catch a Predator" series:

• To UNCatch a Predator: Another Travesty of Justice
• To UnCatch a Predator: The Full Story

Thanks to the reduced charges, the defendant spent 97 days in jail for the misdemeaor then went on his merry way until Dateline caught up to him. Wrote the Watchdog, "It is one thing to just be sloppy or have temporary lapses in judgment, but it is quite another thing to turn a child predator loose with a slap on the wrist, freeing him to act again." That's a rough and tumble attack, but it's also the kind of thing John Bradley slings at others all the time in the press without giving it a second thought: Live by "gotcha" politics and you may well die by it.

In a past life, Grits was a professional opposition researcher for around 13-14 years, working in a total of roughly 68 campaigns, and I can't recall a candidate with as much negative research handed to the opposition on a platter before you even get started digging. Offhand:

1. Delaying the Todd Willingham investigation at the Forensic Science Commission, leading to a refusal by the Republican-controlled Texas Senate to confirm his nomination (lots of negative quotes about his performance just a Google search away).
2. The Michael Morton fiasco: Opposing DNA testing and disclosure of exculpatory evidence withheld from the defense. Dismissive comments about Morton to the press while he was in prison.
3. Cynical attitude toward innocence and DNA testing.
4. Tried to water down Texas' much-praised probation reforms.
5. Behaves like a bully.
6. The UnCatch a Predator angle, which includes footage that would make a devastating TV commercial.

These are messages that, combined with a general anti-incumbent sentiment among voters, create plenty of fodder for attacks against John Bradley in the electoral arena. And those are just the easy ones. A full-blown opposition research effort would inevitably discover more given how long he's been in office. You'd want to poll them to see which ones resonated most with the public, but any one could be devastating. Collectively they could wipe the incumbent off the electoral map if he faces opposition with enough money to deliver those messages to the voters. Bradley already has drawn a Democratic opponent in 2012, but anyone with a D by their name is at best a longshot in Williamson County. However, rumors are swirling that Bradley may face an opponent in the GOP primary, which would be an even greater threat.

UPDATE: For another, similar tale from the Wilco Watchdog, see also "To Uncatch a Predator: Another predator, another catch and release." In that sordid tale, a local law enforcement official was allegedly given a relatively light sentence when accused of fondling his underage step daughter.

McLennan DA wants law changed to restrict postconviction DNA testing

Readers may recall rookie McLennan County DA Abel Reyna declaring last month to the Waco Tribune Herald that he opposed post-conviction DNA testing because it undermines jury decisions. Rather than back off that absurd statement, Reyna is now doubling down. He seems as oblivious to the history of Texas' DNA testing statute as he has been to its actual language (he earlier opposed testing for the sole-surviving Lake Waco murder defendant but now apparently realizes he had no valid legal grounds to do so under the new statute). At least you can tell by the latest TV news story that Reyna has finally read the law, though his understanding remains dubious, at best. Reported the local ABC affiliate KVVX:

District Attorney Abel Reyna says a change in law allows convicted criminals to file unnecessary requests for DNA testing to reverse their conviction.

"Technically you have any and every defendant who ever pled to a crime or was convicted of a crime potentially could file a post-conviction DNA motion," Reyna says.

The change in Chapter 64 of the Code of Criminal Procedure could mean more money spent carrying out the requests, which are unlimited, but cost isn't the only problem worrying Reyna.

"What concerns me most as District Attorney is that there is absolutely nothing in Chapter 64 with regard to victims and their families," Reyna says.

A new motion in a case closed decades ago could mean new heartache for the family of a victim.

"A defendant could use Chapter 64 to continue to torment a victim's family," Reyna says.

The root of the problem, Reyna says, is that nothing is at stake for the prisoner who files the request. "They can just file it, and it comes back, and it's them and they can just say, 'Ah, darn,' and continue serving their sentence," he says. ...

Reyna supports post-conviction DNA testing and the justice it can yield, but he says there needs to be checks and balances to prevent abuse.

"Was there a confession? Several eye witnesses? Was it on video tape?" Reyna asks.

Those conditions should be considered, he says, on a case-by-case basis to filter out manipulation of the system.  He also says the DNA request must actually relate to the charge in each conviction.

If Reyna had been in a coma these past few years, maybe you could forgive him. But he's been mostly conscious, so he should know about all the recanted confessions and mistaken eye witnesses that litter recent history, frequently only uncovered because of the Ch.64 postconviction DNA testing he now decries. (Texas' statute first took effect in 2001 and was revised in 2011 to minimize DAs' ability to oppose testing). About a quarter of DNA exonerations include confessions or guilty pleas later proven false by DNA. Ditto, and then some, for eyewitnesses: roughly 3/4 of DNA exonerations included faulty eyewitness identifications.

Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.

Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)

Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.

Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.

I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.

In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.

My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.

RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."

See related Grits posts:

• McLennan DA fights DNA testing because it overrides juries
• DNA testing, innocence claims pursued in 30-year old Lake Waco murders
• New DA in Waco off to rocky start: Announces new hire who's then indicted