http://www.dallasobserver.com/2007-08-02/news/chains-of-evidence/full
Chains of Evidence
How did Dallas convict so many innocents? With faulty eyewitnesses,
sloppy police work and overzealous prosecutors.
By Glenna Whitley
Published: August 2, 2007
*
Mark Graham
Veteran defense attorney Michael Ware is working with Texas
Wesleyan School of Law students to review requests for DNA tests from
400 people convicted in Dallas County.
Veteran defense attorney Michael Ware is working with Texas
Wesleyan School of Law students to review requests for DNA tests from
400 people convicted in Dallas County.
*
Mark Graham
Since he was innocent, Gregory Wallis thought he didn't have
anything to worry about when police arrested him for rape. Eighteen
years in prison taught him otherwise.
Since he was innocent, Gregory Wallis thought he didn't have
anything to worry about when police arrested him for rape. Eighteen
years in prison taught him otherwise.
*
Mark Graham
A rape victim told police her attacker was 6-foot-3 and weighed
at least 200 pounds, but she positively identified Andrew Gossett, who
was 5-foot-8 and weighed 140 pounds at the time.
A rape victim told police her attacker was 6-foot-3 and weighed
at least 200 pounds, but she positively identified Andrew Gossett, who
was 5-foot-8 and weighed 140 pounds at the time.
*
Mark Graham
Billy Smith served 19 years, 11 months and 7 days for a rape he
didn't commit. He's never been compensated for it.
Billy Smith served 19 years, 11 months and 7 days for a rape he
didn't commit. He's never been compensated for it.
Subject(s): The Innocence Project, wrongful imprisonment, eyewitness
reliability, rape, DNA exonerees
A half-hour after her boyfriend left her Irving condo on an icy night
in January 1988, Marilyn M. heard pounding on her door. Thinking her
boyfriend might have had car trouble, Marilyn opened the door and
confronted a stranger who pushed his way into her home and dragged her
to the bedroom, dousing the lights as he went. From 8:45 p.m. until
1:20 a.m., the man sexually assaulted Marilyn in the darkened bedroom,
leaving only after she feigned sleep.
Marilyn later described her attacker as 5-foot-8 and stocky with a
light complexion, sandy-brown hair, a scraggly beard, a scar on his
cheek and several tattoos. He chain-smoked Marlboro Reds. During a
brief period in the lighted bathroom, Marilyn studied a tattoo on his
shoulder blade that depicted a woman with large eyes and cascading
hair. The day after the assault, Marilyn worked with police to create
a composite picture of her rapist and the tattoo.
Five months later, Gregory Wallis was buttering a piece of toast when
Irving police came to his door and arrested him for aggravated sexual
assault and burglary.
"You're crazy," Wallis said. At his arraignment, Wallis was baffled.
"I was carefree," he says. "I thought I didn't have anything to worry
about. They couldn't make it stick. [Rape] is just not in my nature."
At trial Wallis learned that Irving police had shown Marilyn five
different photo lineups with no success. Then an informant in the jail
saw a photo of the tattoo and identified Wallis.
Marilyn picked Wallis out of the last photo array and then identified
the tattoo on his arm as that of her attacker. Wallis' tattoo showed a
woman with long hair, but it was on his arm, not his shoulder blade.
The scar on his face was not on his cheek but on his forehead. No
physical evidence linked him to the crime.
"The only time I had seen this lady was when I went to court," Wallis
says. The trial lasted three days; the jury took an hour to convict him.
Sentenced to 50 years in prison, Wallis left his wife and 2-year-old
son behind. He had served 16 years when he learned from another inmate
of a new law that would allow Wallis to seek a DNA test.
It took nearly three years, but a judge finally assigned a public
defender to his case. A sophisticated DNA test on Marlboro cigarette
butts at the scene proved that Wallis could not have been the rapist.
After serving 18 years for a crime he didn't commit, Wallis was released.
Since 2001, when the option of discretionary DNA testing became
available to inmates, 13 men in Dallas County have been exonerated.
Given sentences as long as 50 years to life, these innocent men
struggle with lost years and the legacy of prison etched on their souls.
Around the country, DNA testing has exonerated more than 200 people so
far, and Dallas County has far more exonerations than any other county
in the nation.
"Dallas is ground zero for criminal justice change," says Jeff
Blackburn, an activist lawyer, founder and director of the Innocence
Project of Texas, a nonprofit consortium of attorneys and law students
who aid those who claim they have been falsely convicted. It's modeled
after the Innocence Project founded by lawyer Barry Scheck at Benjamin
N. Cardozo School of Law at Yeshiva University in New York.
"[Dallas County's] small enough to make it work but big enough to make
a difference," Blackburn says. "The only thing that's rare about
Dallas is we have this objective benchmark."
The benchmark is the result of two factors: The county's private lab,
the Southwestern Institute of Forensic Sciences, had to preserve the
evidence to maintain its accreditation, Blackburn says. And in case an
appeals court gave a convicted felon a new trial, the Dallas District
Attorney's Office wanted to maintain evidence to try to convict the
accused again.
"This is a perfect storm of accidental facts," Blackburn says. "I can
tell you, if 20 years ago the Dallas DA's Office thought those
convictions would be endangered they would never have gotten into this
system of saving samples."
Blackburn says wrongful convictions happen for three reasons:
eyewitness misidentification because police do not use objective
procedures; failure of prosecutors and police to turn over exculpatory
evidence, which he calls "pervasive"; and bad defense attorneys.
But the problem goes much further than Dallas County.
A study of 290 non-capital cases tried in four cities in 2000 and 2001
was released this spring by Northwestern University. It concluded that
juries got the verdict wrong in one out of six criminal cases.
One-fourth of those defendants pronounced guilty by juries were
actually innocent. Judges had an even higher rate of false
convictions; 37 percent of those deemed guilty by judges after "bench
trials" were actually innocent. The study also found that judges and
juries agreed on the outcome in only 77 percent of the cases.
In 35 Dallas DNA cases approved for tests so far, 13 men were found
innocent. What happened in the trials of these men? (One, Eugene
Henton, pleaded guilty and received a four-year sentence rather than
go to trial.) How did the system go so horribly wrong? The Dallas
Observer obtained the trial transcripts of 10 cases—all sexual
assaults—and combed through the proceedings to see what they have in
common.
Knowing in hindsight that the man on trial is innocent adds to the
shock when one sees how little evidence was needed to convict him. In
most cases identification of the defendant by the victim was all it
took for juries to overcome reasonable doubt. How could the victim be
wrong about who attacked her?
In years past, the Dallas District Attorney's Office earned a
reputation for caring more about convictions than justice. Many of the
DNA exonerations date to the 1980s when legendary District Attorney
Henry Wade still reigned. The county's chief prosecutor from 1951 to
1986, Wade hired top attorneys and set them loose to get the bad guys.
Former Judge Manny Alvarez was a prosecutor from 1985 to 1989. "As a
prosecutor I never lost a case," says Alvarez, now a defense attorney.
"It's not like we maliciously prosecuted people. I pled the ones that
were weak and tried the high-profile cases." But he could win in those
days taking the first 12 people who showed up for jury duty.
"These people wanted to believe you," Alvarez says. "All they needed
was a leader to take them down this road. It's white hat versus black
hat, good versus evil."
Black and white played a different role earlier in Wade's tenure. In
1986, The Dallas Morning News exposed a 1963 memo advising Dallas
County prosecutors on picking juries: "Do not take Jews, Negroes,
Dagos, Mexicans or members of any minority race on a jury, no matter
how rich or well-educated."
Though the majority of prosecutors and police officers were honest,
Alvarez says, a pattern would emerge over time with certain people who
prevaricated or fudged the rules. "Yeah, it happens," Alvarez says.
"Sure it does."
In 1984, a black engineer named Lenell Jeter won his freedom after
being convicted of armed robbery by a Dallas jury. His co-workers
insisted he hadn't done it and national publicity led the District
Attorney's Office to reopen and ultimately dismiss his case.
That was followed by the 1989 exoneration of a black woman named Joyce
Ann Brown. Convicted for armed robbery, Brown was released after the
District Attorney's Office admitted it made a mistake and a key
prosecution witness had lied on the stand.
The office's reputation took a national hit with the 1988 release of
Errol Morris' documentary The Thin Blue Line, about the conviction and
death sentence of Randall Dale Adams for the 1976 murder of a police
officer. Three days before he was to be executed, Adams' sentence was
commuted to life.
The documentary alleged that Wade's first assistant, Doug Mulder,
withheld exculpatory evidence from the defense. Adams' attorney
maintained Mulder manipulated key witnesses. Mulder denied that and
said he'd simply "forgotten" to turn over a witness statement pointing
to another man.
The Texas Court of Criminal Appeals ordered Dallas County to grant a
new trial, and then-District Attorney John Vance dropped the charges.
Then came the '90s. Under District Attorney Bill Hill, more than a
dozen innocent people were sent to prison by the Dallas County
District Attorney's Office during a fake drug scandal in which
confidential informants planted billiard chalk on innocent people and
testified they were dealing cocaine. The District Attorney's Office
had a policy of not testing the evidence unless asked by defense
attorneys and withheld or "missed" tests that showed the chalk was not
cocaine.
Jeter, Brown, Adams, several dozen victims of the fake drug scandal
and now 13 DNA-exonerated convicts and more expected—can it be
coincidence?
"I think it was a win-at-all-costs mentality," says a criminal defense
attorney who worked several years as a prosecutor under Wade. He asked
not to be named. "It was a culture built around Doug Mulder. He was a
very powerful first assistant. It was an environment of 'anybody can
convict the guilty; it takes real talent to convict the innocent.'
People actually said that laughing like 'yuk, yuk, yuk,' but it's
nothing to yuk about."
He does not blame Dallas police for wrongful convictions.
"The prosecutors would take control of making it all come out right,"
he says. "The police were just foot soldiers. They bring a case, and
then it's like, 'This asshole deserves to be hammered. What needs to
be said or done that's going to lead to a conviction?' The masterminds
on that were the prosecutors, but they had willing witnesses to work
with. I think it's just Dallas. That's just the way it works."
The mindset and practices put in place years ago, like not testing
drugs unless the case goes to trial, were still affecting the process
in 2000. He calls it ironic that the DNA evidence, originally
preserved in part just in case an appeal led to a retrial, is now
exposing the truth.
Defense attorney Peter Lesser calls the conviction of innocent
defendants "a combination of errors," including pressure on law
enforcement to solve and punish heinous crimes. He believes there are
far more innocent people convicted than guilty people acquitted.
"I'm not ready to say the reason we have all these exonerations is
that the DA was looking to convict innocent people," Lesser says.
"Some didn't have good lawyers. Sometimes you need better judges. The
police get away with a lot of unethical stuff. For the system to work
as it should work, everybody should be operating in good faith, and
that's not always happening."
Lesser puts much of the blame on the district attorney's "closed file"
system, in which prosecutors limit what information they give to the
defense. The rules require that "exculpatory evidence" be turned over,
but that's at the discretion of the prosecutor.
"When I walk into the District Attorney's Office in Hunt County,
there's a package with all the discovery, all the reports," Lesser
says. "They give me complete access to their files. If they don't give
you the information you need, bad things happen. There may be
something that, had a jury heard it, they might not have found him
guilty in the first place. The problem is judges don't throw cases out
and teach law enforcement a lesson. Things are better now, but back
then, Dallas prosecutors liked to play trial by ambush."
Current District Attorney Craig Watkins has instituted an open-file
policy, but Lesser says it comes with a 40-page explanation. "Now they
are saying we can't do this, we're going to have to black out names,"
Lesser says. "The rules are stupid. There's one way to avoid the problem."
Open the files.
Lesser was involved in the '90s in an effort to help James Curtis
Giles, convicted in the 1983 gang rape of a Dallas woman. He served a
decade in prison before being released on parole. His appeals went
nowhere. The District Attorney's Office blocked his efforts to get a
DNA test.
Then the Innocence Project of New York unearthed evidence the
prosecution had failed to disclose, that another man, James Earl
Giles, lived near the victim. Prosecutors had failed to disclose that
he was implicated in the crime and police had confused him with the
other Giles.
While DNA can be a silver bullet that rips the guts out of a jury
conviction in a sexual assault, what about cases in which DNA is not a
factor, where there's no silver bullet? It's a haunting question: How
many of those defendants are innocent?
On January 15, 1986, pregnant hospital worker Felicia W. left her home
near Fair Park at 6:25 a.m. to catch her bus to work. Felicia heard
steps behind her and glanced back to see a man striding toward her.
The man grabbed her and put a knife to her throat. He pulled Felicia
down the street, then pushed her to the ground on the driveway in
front of a car. He kissed her breasts for five or so minutes before
raping her. Then the man was gone as quickly as he had appeared.
Crying, Felicia ran to her apartment and told her husband what
happened. They called police.
Felicia described her attacker as black, about 5-foot-7, 145 pounds,
with short hair, wearing a light-colored jogging suit, black shoes and
a dark hat over a stocking cap or plastic bag. Felicia was confident
she would recognize him again. Although it was dark, Felicia claimed
she had a good look at her assailant in the light of a streetlamp.
By 10:30 a.m., police arrested a 30-year-old parolee named Wiley Fountain.
That afternoon, Officer T.L. Pettiet showed Felicia a photo lineup:
six men, all black, all supposedly matching the description given by
Felicia within a couple of hours of the assault. She picked Fountain.
Fountain went to trial on September 8, 1986, in the court of Judge
Faith Johnson. The lead prosecutor was Lana McDaniel, who would go on
to become a judge. Defense attorney Mike Rodgers represented Fountain.
As per the "closed file" policy of District Attorney Wade, the defense
had no prior access to important evidence like police reports, but
Rodgers did learn before trial that there were no fingerprints,
footprints or other physical evidence that tied Fountain to the rape.
During jury selection, the prosecutor asked potential jurors a key
question: Could you convict a defendant on the basis of one witness?
Those who said they could not were stricken from the jury.
On the stand, McDaniel queried Officer Pettiet about his search for
the rapist. Pettiet described driving around the corner to another
apartment complex looking for a man wearing a light jogging or warm-up
suit and a blue baseball cap over a plastic bag or stocking cap.
Within minutes, he'd found Fountain.
Q: Officer Pettiet, what went through your mind when you saw this man
standing there on the sidewalk of these apartments on Junction Street?
A: That's got to be the suspect.
One of the other men standing with Fountain on the sidewalk, Ralph
Dobbins, told the officer that earlier that morning he'd seen Fountain
walking from his mother's house in Pleasant Grove, about five miles
away, and had given him a ride. But Pettiet said Fountain seemed
nervous and gave the officer a fake name and birth date.
Dobbins allowed Pettiet to search his vehicle, but Pettiet didn't find
a knife or anything else that implicated Fountain. On
cross-examination Rodgers asked Pettiet if he had looked for anyone
else after he saw Fountain.
A: No.
Q: Is it unusual for black males to wear stocking caps or shower caps
or whatever it is you're talking about?
A: No, they wear it quite often.
Q: And of course, jogging outfits or sweat suits aren't anything
unusual, are they?
A: No.
Pettiet testified that he didn't bother to obtain a search warrant for
Fountain's home. He didn't take pictures of the other men. He didn't
ascertain whether Fountain had a driver's license or access to a
vehicle. (Fountain had neither.)
The afternoon after the attack, a detective came to Felicia's
apartment to show her photographs of six men and told her she didn't
have to pick anyone, but to let him know if her rapist was among them.
McDaniel: Is there any doubt in your mind that this man over here that
you identified in court is the same man who raped you on January 15?
Felicia: No.
But under Rodgers' cross-examination, Felicia testified that she never
noticed Fountain had a mustache, even though he supposedly kissed her
mouth and nuzzled her breasts. In fact she had told police her
assailant had no facial hair.
Rodgers also pointed out that Fountain was the only man in the
six-photo lineup dressed in a light jogging suit and cap.
Q: OK. So it wasn't just because of his face that you picked him out,
it was because of his clothes too, right?
A: Yes.
The lineup was flawed even under standards used in 1986, tainting
Felicia's memory of her attacker.
Rodgers got a detective to testify to all the ways Fountain did not
match the description of Felicia. He wasn't wearing jeans under his
sweat suit, as she had described. The sweatpants had a black stripe;
Felicia had told police the rapist's pants had none. Fountain had no
knife; she said he put a knife in his pocket but also described it as
a butcher knife. Police didn't test Fountain's pants to see if they
had seminal fluid on them.
Though Felicia told police she had talked to a woman immediately after
the attack, the detective had made no effort to find the potential
witness.
Because Felicia was pregnant, which created a "hostile environment"
for sperm, the results of other blood tests that might have linked
Fountain to the assault were negated. (DNA testing was not available.)
Fountain testified that at the time of the rape, he was home in bed.
His cousin Fredrick Williams had woken him up that morning, and
Fountain got out of bed about 7:30 a.m., when the teenager left for
school. He left the house about 8:45 a.m. on foot.
As he was walking to the bus stop about a mile from his house, Dobbins
offered him a ride. They went to a car wash, a convenience store to
buy beer and then the apartments on Junction Street to get another friend.
Fountain said Pettiet arrived and "asked me my name and told me I
looked like somebody he had been looking for." He gave the cop a fake
name because "I had a fine downtown [for public intoxication] and I
didn't have the money at the time to pay it."
Fountain testified that Pettiet never attempted to take a statement
from him.
Fountain's mother, Florence Fountain, said her son had been home that
evening when she went to bed. His cousin and Dobbins backed up
Fountain's alibi, but their credibility was undermined because they
both had criminal records.
"Come on, what's the theory here?" Rodgers asked. "Is the theory that
Wiley Fountain got up from his house over here and took a taxi? In the
middle of the night? Because I don't think the buses run then. How did
he get home? Where are the blue jeans? Where's the knife?"
The prosecution didn't have a theory. They had an eyewitness, the
victim. Fountain was convicted and sentenced to 40 years in prison. He
served 16 years before a DNA test unlocked the door to his prison cell
in 2002.
Prosecutor Lana McDaniel was later elected to a state district court
bench; she's now Judge Lana Myers. She remembers how shocked she felt
on learning about Fountain's exoneration.
"I really couldn't believe it," Myers says. "I wasn't convinced the
DNA test was even correct. The victim was very good and very credible
and she had no doubt."
She had no concerns about the police lineup. "I guess at the time it
wasn't unusual to me," Myers says, adding that victims often would
forget to mention a significant physical feature like facial hair.
Are they forgetting? Is it possible to make a positive identification
when such a salient fact is left out?
Myers has never talked to Fountain, but she has apologized to two
others exonerated by DNA. After her election to the bench, Myers
presided over their trials. As she pronounced their sentences, the
judge had harbored no doubt about their guilt.
The conviction of Entre Nax Karage, sent to prison in 1994 and
exonerated in 2005 for the murder of his 14-year-old girlfriend, was
based on false testimony by police investigators. But in the dozen
other exoneree cases, juries put their faith in the victims who
identified their attackers.
Though experts have long understood the fallibility of witness
identification, the system still operates much as it did decades ago.
"We know that eyewitness identification is unreliable, especially
under stress," Lesser says. He calls that the single most common
denominator in all wrongful convictions. "We know that techniques that
police use for lineups can be suggestive. It's awfully hard for a jury
when the witness can say, 'That's the man who raped me. His face is
ingrained in my memory.'"
Eyewitness memory is "trace evidence, malleable and contaminatable,
like blood on the ground," says Professor Roy Malpass of the
University of Texas-El Paso. "Some of the procedures that law
enforcement uses actually contaminate the memory."
Each time the victim or witness is shown a suspect's photograph, it
destroys the usefulness of any subsequent pictures, Malpass says. Does
the victim remember the suspect from memory, from the photo, from the
lineup, a pretrial hearing, at trial?
Gary Wells, professor of psychology at Iowa University, has studied
eyewitness identification for more than 30 years. "It has two
properties," Wells says. "It's readily believed by judges and juries,
especially if the witness indicates they are confident or certain of
their ID. But it's also highly unreliable. Even without DNA, we could
have predicted about three out of every four [false convictions],
maybe a bit higher, would be cases with mistaken identification."
Once convicted, except for DNA evidence these men had virtually no
hope of being freed.
"I don't see courts doing very much about [witness
misidentification]," Wells says. "They are not sure what to do. I
think courts could be more critical, more demanding of the standards
that this kind of evidence needs to pass before it's admitted at
trial. In the long run, the solution is going to be in reforming
police practices and how they do these lineups."
Wells has been pressing police departments to use only double-blind
lineups, shown to the victim by an officer who doesn't know who is the
suspect and who are fillers. That eliminates unconscious cues from
investigators.
The filler photos should be chosen by an officer of the same race,
since such an officer is likely more sensitive to differences in
features, Malpass says, and the strength of the witness' response
should be recorded.
Wells says the police should never do a photo lineup until they have
developed enough other evidence that indicates they are on the right
track. "They should have pretty good evidence before they put an
innocent person in jeopardy," Wells says.
Wells has met with the Dallas Police Department and says they are
"eager" to set up a double-blind system. "I don't think they want this
[false convictions] to repeat itself."
On July 24, 1985, Sharon L., 38, was shaken awake about 6 a.m. by a
stranger standing over her, his exposed penis thrust in her face and
one of her own steak knives at her throat. He had slipped in through
an unlocked sliding door on the balcony of her second-floor apartment
in Garland.
The man raped Sharon and shut her in a closet. She waited a few
minutes and, hearing nothing, opened the door.
Police arrived by 6:35 a.m. Sharon described the man as white, about
5-foot-8, 140 pounds, athletic, tanned and with very blond hair. He'd
been wearing no shirt, just light-colored or white jeans.
While she was talking to the officer, Sharon's phone rang. "Who is
there with you?" She recognized the rapist's voice.
That began a bizarre series of phone calls from the rapist, who said
he lived in her complex and had been watching her from his apartment.
He told Sharon that about 1 a.m., he had climbed a tree to her
second-floor balcony and entered the apartment sliding door, which she
had left open.
"I am sorry of the way it happened, the way I did it. I love you very
much. Will you see me again?" But he also said if she went to police
he'd kill her.
Sharon did a composite sketch and, at the encouragement of police,
taped his phone calls, which continued for a month.
In late August, a Garland detective showed Sharon six photos. She
didn't pick out any of the men. Later that afternoon, Sharon was shown
a live lineup with the same six people. This time Sharon picked out
24-year-old David Shawn Pope.
Pope, who had no criminal background, went to trial on February 4,
1986. Officer William David Thurman testified that he had been on
patrol at 6:30 a.m. on August 28 when he saw Pope on foot in the
Eastgate Apartments.
A house painter, Pope had been evicted from the apartment complex for
not paying rent. On August 28, Pope told Thurman he was living off and
on with a friend and out of his car and had taken a shower at the
complex gym that morning.
Thurman called another officer, who thought Pope resembled the
description of the rape suspect. When Pope consented to a search of
his vehicle, police found a pair of white pants, a knife and other
things in the trunk.
At first, Sharon didn't pick Pope out of the photo array, which all
but screamed he was the suspect: Five men were photographed in front
of blue backdrop wearing white overalls. Pope was photographed in a
T-shirt, standing in front of a tile wall at the jail. But Sharon said
she wasn't sure.
When she viewed the live lineup a few hours later, Sharon realized it
was the same six people. She asked if she could hear them speak. She
picked out Pope, the only one with a tan and blond hair.
Sharon testified that she was "shaking because, you know, I recognized
him and I felt all the fear and the death as when I was standing right
next to him."
But as defense attorney Curtis Glover would point out, the detectives,
feeling her identification was tentative, put Sharon in a room and
told her she needed to make a "definitive statement."
After being alone for a half-hour, Sharon emerged to say she was
"positive" he was the rapist.
At trial, Larry Howe Williams, an officer with the Houston Police
Department, presented "spectrographic" comparisons of the defendant's
voice reading into a tape recorder and the tapes made of the rapist's
repeated calls.
Williams had no college degree but had taken a two-week training
course. He showed how the recordings made similar zigzags on a paper
drum and testified that the tapes of the "unknown" matched David Pope.
There was no possibility of inaccuracy.
The prosecution also offered a pioneer in voice identification, who
likened voiceprints to fingerprints.
The defense called an expert on voice analysis who testified that
voice spectrographic analysis was "useless" because it had never been
scientifically proven. But the jury was left with the impression that
the match was "scientific."
After he was evicted, Pope lived with Craig Furche and his parents in
Garland. Both father and son Furche were painting contractors. Pope
worked for the son.
The night before the rape, Furche and Pope had gone to see the newly
released movie Back to the Future. Furche remembered it because Pope
had already seen the movie and liked it so much he wanted to see it
again; he had to borrow money from his boss until payday. Then the two
went home, went to bed and got up the next day to work. Pope couldn't
have been in Sharon's apartment.
Pope testified in his own defense, saying that he'd bought the white
pants found in the truck at a garage sale without trying them on,
thinking they'd be good painter's pants. They turned out to be much
too small for him, as he demonstrated to the jury. The steak knife in
the trunk was with a bunch of other utensils and household goods from
his move.
Prosecutor Kimberley Gilles connected the personal data the rapist had
given Sharon on the tape recordings: that he was 24 and went to
Eastfield Community College, just like Pope. But the rapist had also
said he was 20 and several other ages. And Pope went to Richland
Community College, not Eastfield. Gilles waved away that discrepancy
by saying the two schools were in the same community college system.
The jury took little time to convict. Sentenced to 45 years in prison,
Pope was pardoned in 2001.
Spectrographic analysis still is not considered reliable enough for
court. Instead of comparing the defendant's voice to the tape, Wells
says, police should have provided the expert with recordings of five
other male voices and asked which voice matched the perpetrator's
phone calls.
"Police say, 'We know this guy did it,'" Wells says. "'What we need is
for somebody to throw some electronic measurements on this so you can
come into court and say it's the same guy.'"
Wells calls this the "CSI effect," in which juries regard forensic
evidence such as bite marks, hair and fiber samples, and other
techniques as more scientific than they really are.
DNA is the only forensic tool that came from scientists, Wells points
out. "It's not scientists actually doing the work," he says. "It may
be a cop with a biology degree, but it's a cop. The co-opting of
forensic science has played well in the courtroom."
The TV show CSI has had one positive impact, says Judge Myers, by
raising jurors' expectations about the thoroughness of police
investigations. In the 13 Dallas DNA exonerations, once the victims
identified suspects, little effort was expended to gather more
physical evidence.
"As a judge, I've seen in the last five years that police are doing a
lot more than what they had done in the past as to collection of
physical evidence," Myers says. "Jurors expect it in light of CSI.
They are more skeptical."
Prosecutors still query potential jurors: If it comes down to the
testimony of one witness, could you convict? Myers says more jurors
are saying no.
On the morning of Saturday, April 26, 1981, Carol C. woke to being
rolled over and straddled by a man with a knife. She struggled for the
knife but after her attacker cut her several times, Carol stopped. He
raped her and within five minutes disappeared.
The police arrived at her Oak Lawn apartment within 10 minutes to find
Carol covered with blood.
At Parkland hospital, a doctor stitched up Carol's hand and gave her a
rape exam. Carol, who was white, described the man to police as black,
average build, in his 20s, with a short Afro and regular features.
Though the room was dark, she'd seen him with the light from a clock
radio.
Her attacker had removed a screen, broken a pane and unlocked a
window. He left muddy footprints on the carpet near the window but no
fingerprints.
Two days later, an officer came to her apartment with a photo array of
six black males. She studied the photographs and after about 10
minutes picked one: Larry Charles Fuller, who lived about a mile from
Carol's apartment and had a criminal record for an armed robbery. He'd
done his time and had been released in 1978.
Carol then asked if she could see a more recent picture.
A week later, a detective went to the home of Fuller and his
girlfriend. He asked Fuller if he could take his picture. The
detective didn't explain what the charges were; he simply said the
picture could exclude Fuller. Fuller agreed.
The detective showed Carol another photo array. Both arrays included
Fuller. She again picked Fuller.
"I was very slow in identifying him," Carol said at an examining
trial, "because I didn't want to identify an innocent man."
Carol had told police she didn't remember her rapist having facial
hair; Fuller had a beard.
An artist, Fuller, 32, went to trial before Judge McDaniel, now Myers.
Fuller's girlfriend, a bank teller, testified they'd gone to bed about
1:30 a.m., then woke and had sex early in the morning. There was no
physical evidence against him. Tests of the rapist's semen showed that
the rapist could have been Fuller and 20 percent of the black male
population.
Fuller took the stand in his own defense and insisted he wasn't
guilty. None of that overcame Carol's identification. Fuller was
convicted. Prosecutor Jim Jacks asked for a maximum sentence.
"He cannot be rehabilitated, because the first step to being
rehabilitated is to admit that you have made a mistake and that you
need help," Jacks said. "He has not done that. He will not do that,
apparently." Sentence: 50 years.
Fuller maintained his innocence. Finally Myers granted his petition
for a DNA test but was stunned when it showed he was not guilty.
Announcing the dismissal of the case against him in 2006, Myers
apologized to Fuller from the bench.
"I expected bitterness from him," Myers says. "And he didn't have
that. He came back with forgiveness. He said God had a plan, and he
never lost his faith. It had made him strong, and he held no grudges.
I was really having a hard time trying to conduct the hearing."
Crying, Myers got down from the bench and hugged him.
The knock woke 35-year-old Billy Smith from sleep on the couch in his
sister's apartment in 1986. At the door, the apartment manager asked
to talk to Smith, so he stepped out on the second-floor walkway. The
manager asked Smith if he'd heard anything unusual that night. Smith
said no and went back to bed, only to be awakened by police pounding
on the door and shouting, "Open up!"
They arrested Smith for aggravated sexual assault, taking with them
some of Smith's clothes and a kitchen knife.
The manager's common-law wife had been standing below to identify
Smith, who had just moved in. She would testify that Smith confronted
her in the complex's laundry room, dragged her to a vacant field and
raped her.
As a young man, Smith had used drugs, stolen a car and served time for
robbery. But he'd started going to Alcoholics Anonymous and church and
was getting a job the next day.
Even Smith's parole officer testified on his behalf, saying he didn't
find the accuser credible and that the manager's statements didn't
match the accuser's. Only the victim's identification linked him to
the crime.
Smith says his court-appointed attorney did little for him.
"He never once went to the scene of the crime to get any information,"
Smith says. "My attorney never talked to my sister or alibi witnesses.
"The day I got my verdict he had some kind of doctor's appointment,"
Smith says. Nor did the attorney attend court when Smith was sentenced
to life in prison.
Smith served "19 years, 11 months and 7 days" in prison. His mother
and six other close family members died while he sat in a cell. Even
after a DNA test proved Smith had not deposited the semen in the
victim, Dallas prosecutors fought his release, saying they needed
another sample from the victim to be sure.
Smith now is 55, a muscular man with a close-cropped head and beard
showing flecks of gray. A leather eyeglass case in the pocket of his
blue shirt is tooled with the name Al-Amin, the name Smith took after
converting to Islam in prison in order to survive the anger, the gangs
and his own bitterness.
"After the first two years, I contemplated suicide at least once a
year," Smith says.
When he was released in July 2006, Smith didn't have bus fare. No one
would give him a job; he still has received no monetary compensation.
Smith isn't bitter at the loss of 20 years of his life, but he can't
get excited about being out of prison.
"Something has been taken from you," Smith says. "I know now how easy
it is to be accused of something."
Poor legal representation is a major reason the innocent get
convicted, says Blackburn of the Innocence Project of Texas. In many
cases the defendants are indigent and can't afford experienced lawyers.
"Every lawyer who practices at the courthouse knows this dirty little
secret," Blackburn says. "You don't get appointed [to represent
indigent clients] if you aggressively defend clients. You won't be
paid enough to fight aggressively. Judges are typically byproducts of
the prosecutor's office, and no judge ever got re-elected acquitting
people."
Blackburn is on a crusade for Texas to build up a strong public
defender system. "These are horrible human stories we are talking
about. Being in prison for something you didn't do is hell on earth.
All these DNA cases do is show us how wrong the whole system is."
Moments after Sharon G. stopped her minivan at a Garland stoplight on
February 23, 1999, a strange man opened the door, pointed a gun and
told her to drive. It was about 9:30 p.m., and Sharon G. was on her
way to visit a friend.
The man directed her to a vacant lot. He forced her to give him oral
sex, then pushed Sharon G. to the ground and raped her.
The stranger then told her to drive back to the area where he'd gotten
into the car, climbed out and disappeared on foot.
Sharon G. described her attacker as white, about 6-foot-3 and on the
heavy side, 200 pounds at least. He had been wearing a dark T-shirt
under a brown tweed-type sport coat, dark baggy jeans and black tennis
shoes. He had not been wearing glasses, had a large scar on the right
side of his face and smelled bad. He had rough hands and had been
wearing a distinctive ring in the shape of Texas.
A Garland police officer heard about the assault as he started his
shift that night. He drove around the area and about 2 a.m. slowed
down when he saw a man rummaging in a vehicle at an apartment complex.
The man looked up "like a deer in the headlights," the officer said,
then shut the door and entered one of the apartments.
The next morning, Garland police talked to the man, Andrew Gossett,
39. The apartment belonged to his girlfriend's daughter. Gossett lived
with his parents.
After Gossett's parents gave police permission to search their home,
they confiscated a dark T-shirt, baggy camouflage pants, a blue plaid
flannel shirt, black tennis shoes and a brown winter coat.
A Wal-Mart stocker who had just gotten into the company's management
training program, Gossett gave a voluntary statement, saying he'd
spent the night with his girlfriend.
No physical evidence linked Gossett to the crime: no fingerprints on
the car, no seminal fluid. Police found no tweed coat, Texas-shaped
ring or gun. But a detective handling his first sexual assault put
together a photo array. Sharon G. picked out Gossett, who had five
DWIs and a conviction for methamphetamine distribution.
His defense attorney located a surveillance tape from a nearby
convenience store that showed Gossett entering about 10:15 p.m.
wearing a white T-shirt, glasses and camouflage pants, not jeans. He
stood all of 5-foot-8 and weighed 140 pounds. He was wearing glasses;
Sharon G. said her attacker didn't have on spectacles.
But Sharon G. insisted Gossett was her rapist.
On February 10, 2000, Gossett was convicted and sentenced to 50 years
in prison.
Over breakfast at a Garland diner, Gossett looks small and pensive.
He says talking to police led to his own destruction. "It hurt me more
than it helped me," Gossett says. "They put words in my mouth. I
didn't ask for an attorney."
Gossett passed a polygraph and voluntarily gave police a DNA sample,
but the test was "inconclusive."
In 2001, Gossett wrote to the Innocence Project in New York. One of
their attorneys told Gossett a more sophisticated test was available.
On an icy day in January, Gossett went to the Dallas County courthouse
and learned that the test cleared him. New District Attorney Craig
Watkins was there to shake his hand and apologize.
Watkins has since apologized to more exonerees. He lobbied the Dallas
County Commissioners Court to get funds to hire veteran defense
attorney Michael Ware to focus on the 400 people who have petitioned
his office for post-conviction DNA tests. Ware is teaming with 30
students from Texas Wesleyan School of Law, under the aegis of the
Innocence Project of Texas, to examine each case to see if testing
could confirm or deny their guilt.
Gossett has still received no compensation or a pardon.
Though Gossett has reunited with his girlfriend, they have no money
and no place to live. He can't get hired because his pardon hasn't
come through. Blackburn sent him $1,000, but a doctor's bill took $500.
"Seems like I'm still paying for it," Gossett says.
Greg Wallis spent 18 years in prison as a result of his wrongful
conviction for the rape of Marilyn M.. "I missed my boy growing up,"
he says. "I lost my wife, my first love." They managed to reconcile
and are now back together, but like all the exonerees, Wallis carries
with him the memory of harrowing experiences in prison.
So does Keith Edward Turner, who went to prison in 1983 at age 22 for
rape after the victim swore she would never forget his face.
Ten years after he was paroled, in 1999, Turner was told he'd have to
wear a monitor, register as a sex offender and put a sign in his yard.
A sign, a label of "monster," even though he was innocent.
After seeing a story on post-conviction DNA exonerations on Court TV,
Turner began writing letters. The Innocence Project said his case was
too old. Finally, in 2005, Turner marched into the courtroom of the
judge who had sentenced him.
"I told him that they were listing me as a sex offender and a rapist
and I wasn't guilty," Turner says. "The judge told me I needed to get
an attorney."
Turner said he had four kids and no money to hire a lawyer, so the
judge appointed an attorney and an investigator.
After Turner passed a polygraph, which cost him $250, prosecutors
agreed to the DNA test. Then the amazing news: "They had kept the
evidence in the same spot for 21 years," Turner says. "That was just
the Lord. When he got ready to do it, he preserved it for everything
to be possible."
The Lord or Henry Wade.
Turner got the news of his exoneration on December 23, 2005. Turner's
mother had died six months after he went to the penitentiary. After he
got the report that the DNA didn't match, he took it to her grave. "I
told her she didn't need to worry about me," Turner says.
Judge Manny Alvarez tried to right the wrongful conviction of a woman
for child abuse in a trial that happened in his own court. It cost him
his job.
In March 2006, Alvarez had gone to the courthouse and talked to Greg
Wallis—the exoneree he had prosecuted—and apologized. Wallis told him
he had no hard feelings, he understood Alvarez had a job to do.
Now a defense attorney, Alvarez says lawyers today have more tools to
ensure the right suspect is charged, but not every case can be solved
with DNA.
When he presided over the 2005 child abuse trial of Maria Hurtado, 26,
in a "shaken baby" case, Alvarez says, he kept expecting her attorney
John Read to present a defense, to answer obvious questions, to rebut
the prosecution's evidence.
"He did no cross-examination," Alvarez says. "There were no witnesses
called. There were CPS records that favored her. Read is a good
lawyer, but in this trial he wasn't worth a damn."
At the end of the two-day trial, Alvarez had serious doubts about
Hurtado's guilt. But the jury convicted her and sentenced her to eight
years in prison. So Alvarez began looking into the case himself.
"The evidence showed the baby had acute over-hemorrhaging," Alvarez
says, "meaning there was new blood over old blood," indicating
long-term problems. The baby had had seizures and convulsions in her
first two months. "What was so convincing to me, if she had been
shaken, there would have been bruising or broken ribs. There was
nothing along those lines."
Alvarez was accused of overstepping his bounds as a judge for
investigating and releasing Hurtado on her own recognizance. He lost
his race for re-election. But Hurtado got a new trial. "They worked
the case and presented it as it should have been, and she was
acquitted," Alvarez says. "Do I say something and take the heat? There
was no better feeling than when that jury came back with a 'not
guilty' verdict."
Maybe more prosecutors should be willing to fade the heat, he says.
When the fake drugs were resulting in convictions, someone should have
screamed, Wait a minute!
"I was part of the system. Every time I go to a conference, that's the
first thing out of their mouths," Alvarez says. "When all this stuff
was happening, nobody said, 'Hey, this is bullshit.' As a prosecutor,
your job is to seek justice, not convict people. It starts from the
top and works its way down."
No comments:
Post a Comment