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
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.
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.
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?
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?
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?
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 had never talked to Fountain, but she has apologized to two other men exonerated by DNA. After her election to the bench, Myers presided over hearings on their requests to have DNA tests; against the wishes of the District Attorney’s office, Myers ordered the tests. At their exoneration hearings, Myers apologized to them on behalf of the state of Texas.
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 on August 24, 1981, before Judge Marvin Blackburn.
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. After years of appeals, his request for a post-conviction DNA test was granted by Judge Lana Myers. Announcing the dismissal of the case against him in 2006, Myers apologized on behalf of the state of Texas 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."
Write Your Comment hide comments (7)
How did Dallas convict so many innocents? With faulty eyewitnesses, sloppy police work and overzealous prosecutors.By Glenna Whitley Published: August 2, 2007______________________________Glenna Whitley, part of the Swift Boat Veterans For Truth, who verbally bashed the career of a hero in order to get George W. Bush elected.....is now asking the above question.MORE FUN WITH HYPOCRISY....This is rich.
Comment by Jack Jett — August 2, 2007 @ 06:38AM
Excellent story. Glenna, your research is so extensive and time-consuming. You are the best!!!! I am sure the wrongly convicted persons are grateful for this revealing article.
Comment by Gloria Rehrig — August 2, 2007 @ 09:05AM
Glenna You and Jackie Collins are two of my favorite writers. I loved Hollywood Husbands, although I wasn't that crazy about the television movie. I like the way that you write about what you think is right. Like, you are a right writer. Funny huh? I also enjoy the works of your husband, Robert Bobo Burket. I hope someday that the two of you will work on another piece of science fiction together. In my opinion, John Kerry should be in prison for his lack of service in Viet Nam. The other day someone asked my wife, Bridgetta, who we would like to be stranded on a deserted island with and without missing a beat, we said in unison, Glenna, Bobo, George and Laura. One can dream, oh how one can dream. Of course, if John Kerry had become president, he would have outlawed dreaming. So keep up the right writing so we know who is right and who is not right. I've got 16 can of Pork & Beans to open as Bridgetta is preparing her famous Potted Meat and Beans Casserole (with melted Velvetta cheese on top) for our Friday night key party.Bob LevyToot Toot, heyBeep Beep
Comment by Bob Levy — August 3, 2007 @ 12:58PM
Incredible! Absolutely Incredible! No wonder we are headed down a path of destruction. We will soon be a 3rd world country. If that makes you mad; GOOD! Because you might step up and do or say something to make a difference. So freekin incredible! I have learned that I don't "fight" as much as I used to becasue it ain't about being right or wrong it is about winning and I usually pick a "fight" with somebody who holds the upper hand. ie: your boss will always win if he wants to. He don't have to be right. He just wants to win! Oh well, wwweeeee down we go. Enjoy the slide because you are on it. We been on it a long time it just becomes more evident each day that you poke your head out of that hole and look around. God it makes me sad!Cavebilly
Comment by Robbie — August 5, 2007 @ 12:37PM
Just more crap from Miss Swift Boater herself. Thank God for her as she helped to get George Bush elected and look how compassionate he has been. Good thing we didn't get someone in there who had actually been to a war...we wouldn't want that would be Glenna?Someone with experience...not good.....a drunk draft avoiding rich boy...yeah...that's the ticket.Here is another example of the compassionate conservatism that exist in Dallas.ARLINGTON, Texas — A megachurch canceled a memorial service for a Navy veteran 24 hours before it was to start because the deceased was gay.Officials at the nondenominational High Point Church knew that Cecil Howard Sinclair was gay when they offered to host his service, said his sister, Kathleen Wright. But after his obituary listed his life partner as one of his survivors, she said, it was called off."It's a slap in the face. It's like, 'Oh, we're sorry he died, but he's gay so we can't help you,'" she said Friday.Wright said High Point offered to hold the service for Sinclair because their brother is a janitor there. Sinclair, who served in the first Gulf War, died Monday at age 46 from an infection after surgery to prepare him for a heart transplant.The church's pastor, the Rev. Gary Simons, said no one knew Sinclair, who was not a church member, was gay until the day before the Thursday service, when staff members putting together his video tribute saw pictures of men "engaging in clear affection, kissing and embracing."Simons said the church believes homosexuality is a sin, and it would have appeared to endorse that lifestyle if the service had been held there."We did decline to host the service _ not based on hatred, not based on discrimination, but based on principle," Simons told The Associated Press. "Had we known it on the day they first spoke about it _ yes, we would have declined then. It's not that we didn't love the family."Simons said the decision had nothing to do with the obituary. He said the church offered to pay for another site for the service, made the video and provided food for more than 100 relatives and friends."Even though we could not condone that lifestyle, we went above and beyond for the family through many acts of love and kindness," Simons said.Wright called the church's claim about the pictures "a bold-faced lie." She said she provided numerous family pictures of Sinclair, including some with his partner, but said none showed men kissing or hugging.The 5,000-member High Point Church was founded in 2000 by Simons and his wife, April, whose brother is Joel Osteen, well-known pastor of the 38,000-member Lakewood Church in Houston. Now High Point meets in a 432,000-square-foot facility in Arlington, near Dallas.Wright said relatives declined the church's offer to hold the service at a community center because they felt it was an inappropriate venue. It ultimately was held at a funeral home, but the cancellation still lingered in some minds, she said.___On the Net:High Point Church: http://www.churchunusual.com
Comment by Jack Jett — August 11, 2007 @ 12:35AM
I wish they would have the balls to print this in the Dallas Morning News. Out of sight and out of mind.
Comment by Billy — August 29, 2007 @ 03:25AM
has anyone checked to see if anyone of these cops or the police department been involved in any other sloppy police work? Why isn't the State openning up an investigation on this matter? Why no one seems to care?
Comment by a — January 20, 2008 @ 07:40PM
Saturday, April 26, 2008
Chains of Evidence