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Convicting the Innocent:

T e x a s J u s tic e D e r a i l e d
Stories of Injustice and the Reforms
That Can Prevent Them

THE JUSTICE PROJECT EDUCATION


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“Any wrongful conviction is a tragedy
because it leaves the guilty unpunished
and condemns the innocent to prison,
or death.”
— W allace B. J efferson , C hief J ustice
of the T exas S upreme C ourt

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About The Justice Project


The Justice Project (TJP) is a non-profit, non-partisan
Convicting the Innocent:
organization dedicated to improving the fairness T e x a s J u s tic e D e r a i l e d
and accuracy of the criminal justice system. TJP’s
Campaign for Criminal Justice Reform seeks to
reaffirm America’s core commitment to fairness and
accuracy by designing and implementing national
and state-based campaigns to advance reforms that
address significant flaws in the American criminal
justice system.
The Justice Project has developed a national
program of initiatives designed to address and
affect the policies and procedures that perpetuate
errors and contribute to the conviction and
incarceration of innocent people. As such, TJP
advocates for 1) improvements in eyewitness
identification procedures; 2) electronic recording

Clay Graham
of custodial interrogations; 3) higher standards
for admitting informant or accomplice testimony
at trial; 4) expanded discovery in criminal cases;
5) improvements in forensic testing procedures;
6) greater access to post-conviction DNA testing;
7) proper standards for the appointment and
performance of counsel in capital cases; and Table of Contents
8) improving prosecutorial accountability.
Factors Leading to Wrongful Convictions......................................2
The Justice Project Staff Wrongful Convictions Threaten Public Safety...............................2
John F. Terzano, President
Joyce A. McGee, Executive Director The Limits of DNA Evidence..........................................................4
Robert L. Schiffer, Executive Vice President
Kirk Noble Bloodsworth, Program Officer Texas DNA Exoneration Facts.........................................................5
Edwin Colfax, Director of State Campaigns
Jurors Deserve the Most Reliable Evidence....................................6
Rosa Maldonado, Controller
Leah Lavin, Development Coordinator Reform: Improving the Reliability of Evidence.............................6
Alanna Holt, Policy Coordinator
Lauren Brice, Policy Associate Eyewitness Identification.................................................................6
Acknowledgements: The Justice Project would like
to thank Jennifer Willyard and Michelle Strikowsky for Electronic Recording of Custodial Interrogations.........................8
their contributions to this report.
Jailhouse Informant Testimony.......................................................9
For information on ordering additional copies of this
report, contact Edwin Colfax at (512) 391-2320.
For more information on The Justice Project, contact Forensic Oversight..........................................................................10
(202) 638-5855 or info@thejusticeproject.org.
Expanded Discovery.......................................................................11
1025 Vermont Avenue, NW, Third Floor
Washington, DC 20005
(202) 638-5855 • Fax (202) 638-6056 Stories of Injustice: The Texas DNA Exonerated.........................12
www.thejusticeproject.org
The Texas DNA Exonerated Chart................................................28
510 S. Congress Avenue, Suite 304
Austin, TX 78704
(512) 391-2320 • Fax (512) 391-2330
www.thejusticeproject.org/state/texas
Cover: upper right, Greg Kendall-Ball / Innocence Project of Texas;
Upper left, lower left and lower right, Dallas Morning News

©2009 The Justice Project — All Rights Reserved.

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Convicting the Innocent: Texas Justice Derailed

S ince 1994, Texas has exonerated


thirty-nine innocent people who served
over 500 years in prison for crimes they
did not commit. This report contains brief
overviews of these thirty-nine cases, all of which
have been exposed by DNA evidence, and analyz-
es the systemic problems that have resulted in the
as microscopic hair comparison or serology inclu-
sion), testimony from informants or accomplices
with incentives to lie, false confessions and guilty
pleas, suppression of exculpatory evidence, ineffec-
tive assistance of counsel, and investigative and pros-
ecutorial tunnel vision. The last two factors, while
undoubtedly at work, are difficult to pinpoint or
wrongful convictions of the innocent. By identifying quantify. As such, we have not attempted to measure
the causes of wrongful convictions and implement- specific instances of those problems in the remain-
ing practical reforms, Texas can der of the report, but briefly address them here.
These thirty-nine DNA increase the fairness, accuracy,
and reliability of its criminal
There is no question that the most fundamental
and important protection against wrongful convic-
cases expose a criminal justice system. tion is access to a qualified defense attorney. With
Because DNA evidence is appropriate investigative and expert resources, de-
justice system that is only available in a fraction of fenders can meaningfully test the evidence against
wrought with problems cases, the wrongful convictions their clients and argue an effective line of defense.
described in this report are only In practice, defenders frequently go without these
that lead to wrongful the beginning. There are many much-needed resources and may often lack training,
convictions. other wrongful convictions that skills, and support—all factors that put innocent de-
have been cleared without the fendants at risk.
benefit of DNA. While non-DNA exonerations are Tunnel vision refers to a normal psychological
more difficult to prove, they are similar to DNA cases tendency to seek information that fits a theory or be-
in that they trace back to the same flawed procedures lief and causes one to dis-
in need of reform. As such, these thirty-nine DNA count or ignore informa- Eyewitness
cases expose a criminal justice system that is wrought tion that does not fit within
with problems that lead to wrongful convictions. that theory or belief. While misidentification is
Although several of the exoneration cases in- investigators and prosecu- by far the leading
volve instances of intentional misconduct, inad- tors must eventually com-
vertent error is by far more common. It would only mit to a theory of who is factor in wrongful
compound these injustices, however, to assume that responsible for a crime, too convictions in Texas.
these mistakes were inevitable. Texas cannot ignore often this commitment to a
its broken criminal justice system. This report ad- theory is premature in the investigative process, and
dresses the common causes that lead to wrongful important leads or information are either rejected or
convictions, as echoed in each of these cases, and simply ignored.
presents practical reforms to prevent such errors. It
is critical for Texas to take action. When Texas gets
it wrong and convicts an innocent person, the true
perpetrator remains free to commit more crimes.
Wrongful Convictions
Threaten Public Safety
Factors Leading to
Wrongful Convictions
C onsidering the devastating consequences of
even one of these injustices, it is clear that all
reasonable steps to prevent wrongful convictions
must be taken. The injustice endured by an in-

T he thirty-nine DNA cases analyzed in this report


clearly indicate that eyewitness misidentifica-
tion is by far the leading factor in wrongful convic-
nocent person whose most basic liberty is denied
cannot be overstated. The nightmare of an unjust
imprisonment ruins lives and destroys families. For
tions in Texas. The majority of these misidentifica- the innocent, prison is a terrifying ordeal few can
tions occurred in either photo or live lineups. Other even imagine.
factors include: false forensic testimony, reliance on Beyond the personal cost to those wrong-
unreliable or limited forensic methodologies (such fully convicted and the millions of dollars spent re­

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Convicting the Innocent: Texas Justice Derailed

investigating cases and paying compensation, there a more plausible alternative suspect, but the judge
is another price we all pay—true perpetrators go un- rejected this line of defense. In May 2008, DNA test-
investigated and unpunished, putting public safety ing proved that Jerry Wayne Johnson had indeed
at risk. In each of these innocence cases, a criminal raped the victim of the crime for which Cole was
investigation into a serious violent crime was shut imprisoned.
down prematurely when authorities prosecuted the Johnson, however, continued to commit hor-
wrong person. rible crimes. On July 4, 1985, Johnson abducted a
In most cases, it took many years to bring these man and woman after a party and raped the woman
wrongful convictions to light. Most of the crimes in a cotton field. While out on bond awaiting trial
remain unsolved because the leads dried up long for that rape, Johnson raped a fifteen-year-old girl
ago. Fortunately, in some of these cases, the same at knifepoint. Additionally, Johnson was suspected
DNA results that freed the innocent also identified in the murder of insurance saleswoman Mary Lou-
the guilty. It is in those cases that we catch a glimpse ise Smith. Smith was found beaten with a blunt
of the full cost of a wrongful conviction. The crimes object and strangled. Though he was held on a two
that are committed in the time between a wrongful million dollar bond in that case, the investigation
conviction and the identification of stalled and Johnson was never
the true perpetrator are an immeasur- The crimes that are tried for Smith’s murder. He was
able cost to the community. convicted of the other two rapes,
The Innocence Project’s recent committed in the time however, and is now serving a
review of DNA exonerations has between a wrongful life sentence.
identified ninety-one actual perpetra- It is impossible to know for
tors from 233 exoneration cases—ap-
conviction and the sure what would have happened
proximately thirty-nine percent. The identification if more careful eyewitness iden-
Innocence Project also estimates that of the true perpetrator tification procedures were used
forty-nine rapes and nineteen mur- in the Texas Tech rape investi-
ders were committed by actual per- are an immeasurable gation. By presenting a photo
petrators following wrongful convic- cost to the community. lineup in which Cole’s picture
tions. Although Texas has identified stood out as different from the
actual perpetrators in about thirty-five percent of fillers, police undermined their ability to get reli-
DNA exoneration cases, Texas has been unable to able eyewitness evidence and mistakenly came to
prosecute some of those perpetrators because the believe they had their man. Had the investigation
statute of limitations has passed. continued, Johnson might have been stopped be-
One of the most troubling examples of the fore victimizing others. In September 2008, the
threat posed to public safety from wrongful con- victim of the crime for which Cole was convicted,
viction is found in the case of Timothy Cole, who Michele Mallin, spoke out publicly about her expe-
tragically died in prison in 1999 prior to exculpa- rience and her hope that reforms are implemented
tory DNA testing. Cole was convicted of one of a to avoid such mistakes in the future.
string of five rapes that occurred in 1985 near the The public was also put at risk following the
Texas Tech campus in Lubbock based largely on a wrongful conviction of Thomas McGowan, who
victim’s eyewitness identification. The photo lineup was convicted of rape and burglary in 1985 follow-
presented to the victim was highly suggestive. Cole’s ing a mistaken eyewitness identification. After DNA
picture stood out because the police used a color test results cleared McGowan of involvement in the
Polaroid photo of Cole while the other photos were crime in 2008, police ran the DNA evidence through
black and white mug shots. a national DNA database and found a match in
Cole was only convicted of one of the Texas Tech Kenneth Wayne Woodson. They found that while
rapes, but because of the similarities in the crimes, Woodson went uninvestigated for the McGowan
the police suspected that Cole was guilty of them all. case, he committed another rape and burglary in
Consequently, the investigation into the Texas Tech 1986. He was sentenced to thirty years in prison for
rapes ended once Cole was behind bars. that crime and was paroled in January 2006 after
During his trial, Cole’s defense lawyer tried to serving twenty years. He was then convicted of rob-
argue that a man named Jerry Wayne Johnson was bing a bank in Richardson, his parole was revoked,

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Convicting the Innocent: Texas Justice Derailed

and he was sent back to serve prison time for the Nevertheless, the devastating costs of wrongful con-
bank robbery. victions make it clear that Texas cannot afford to as-
Woodson confessed to the crimes for which sume that these cases are merely the cost of doing
McGowan had been wrongly convicted when he business in the criminal justice system. Texas must
was confronted with the DNA evidence. He cannot recognize that the system is flawed and can be im-
be charged for those crimes, however, as the stat- proved by implementing simple procedural reforms
ute of limitations has passed. Had the investigation that greatly reduce the risk of error.
into the 1985 rape not been prematurely shut down While the majority of this report focuses on the
by bad eyewitness evidence, police might have been wrongful convictions uncovered through DNA test-
able to prevent Woodson from committing other ing in Texas, they are only the tip of the iceberg. The
horrible crimes. The photo lineup that led to the advent of DNA technology has given our criminal
misidentification was sugges- justice system a tool that can pro-
tive and the mistake could have While a faulty eyewitness vide incontrovertible evidence of
been avoided. guilt—and innocence—in cases
The statute of limitations identification led the where the presence of biological
has also passed in another trou- investigators to mistakenly evidence is dispositive. Unfortu-
bling case in which incontro- nately, biological evidence is pres-
vertible DNA evidence came zero in on Taylor, ent in only a fraction of criminal
too late. Although Ronald Taylor Carroll victimized at least cases. While DNA is an invaluable
was convicted of the 1993 rape tool, it does not solve the problems
of a Houston woman, DNA tests two other women. of unreliable evidence that repeat-
later revealed the identity of the edly surface when wrongful con-
true perpetrator, Roosevelt Carroll. While a faulty victions are discovered. The vast majority of cases
eyewitness identification led the investigators to mis- simply do not have probative DNA evidence.
takenly zero in on Taylor, Carroll victimized at least In addition to the thirty-nine DNA exoneration
two other women. Carroll was convicted of two oth- cases in this report, there are scores of exonerations
er rapes and was serving a fifteen-year sentence when in Texas for which there is no DNA evidence. While
Taylor was finally exonerated. The victim of the 1993 a defendant is innocent until the prosecution proves
rape will never get justice. guilt, after a conviction occurs, the burden shifts to
Though these investigations and prosecutions the defendant to prove innocence. New evidence
were done in good faith, their accuracy was under- that merely casts doubt on the conviction is not
mined by unreliable evidence. If such tragic and nearly enough to overturn a conviction—which is
consequential errors in evidence were unavoidable, why DNA evidence, where it exists, is so successful
then one might be forced to accept them as “the cost in exonerating the innocent. Without DNA evidence,
of doing business.” However, the reality is that many inmates face an almost insurmountable challenge to
of the errors follow patterns that are predictable establish their innocence conclusively. Still, a surpris-
and preventable with the right kind of safeguards in ing number have been cleared against the odds.
place. Until those safeguards have been implement- In one high-profile set of non-DNA wrong-
ed, Texas faces the risk of more investigations end- ful convictions, dozens of people were framed in
ing prematurely while the true perpetrator remains a drug sting by a rogue undercover officer. In that
at large to commit additional crimes. 1999 case, forty-six residents of the small town of
Tulia, Texas were arrested for selling cocaine based
solely on the word of one undercover officer. After
The Limits of it was discovered that the undercover officer had
fabricated all the evidence in the cases, a collective
DNA Evidence lawsuit brought by the wrongly convicted was set-
tled for six million dollars.

I n a state with thousands of criminal convictions Perhaps one of the most well-known Texas
every year, the number of documented wrongful wrongful convictions was that of Randall Dale Ad-
convictions represents only a tiny fraction. There ams. Adams was convicted of the murder of a Dallas
can be no doubt that the system usually gets it right. police officer and sentenced to death. His case was

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Convicting the Innocent: Texas Justice Derailed

the subject of the documentary film The Thin Blue have emerged from Dallas County. The newspaper
Line. The true killer, David Harris, subsequently reviewed numerous cases and documented, for ex-
confessed on tape. After twelve years in prison, new ample, that eyewitness evidence is routinely relied
evidence of innocence came to light through Ad- upon in robberies, where it is rare to have DNA
ams’ appeals and he was eventually released. evidence, even with little or no corroboration of the
Another non-DNA exoneration occurred in eyewitness evidence.
the case of Clarence Brandley, a janitor who was It is no accident that the vast majority of DNA
wrongly convicted and sentenced to death in Mont- exonerations involve sexual assault cases where bio-
gomery County, Texas for the rape and murder of logical evidence is often present with the potential
Cheryl Ferguson in 1981. Brandley’s conviction was to clearly indicate guilt. In these cases, DNA testing
overturned in 1989 after new evidence showed that reveals errors and weaknesses in many types of evi-
authorities had suppressed exculpatory evidence. In dence and procedures. Our criminal justice system
addition, an investigation by the FBI and the U.S. relies on these same kinds of evidence and proce-
Department of Justice found additional misconduct dures in cases where DNA evidence is not available,
by the authorities in the case. All charges against putting additional innocent suspects at risk. DNA
Brandley were eventually dropped. exonerations are but a window to the larger, unseen
In 2004, Ernest Willis was released after serv- problem. We know that the same evidence suffers
ing almost seventeen years on Death Row for the the same flaws in non-DNA cases. What we do not
arson murder of two women. Willis
had been living in the house where the
fire occurred. Willis escaped uninjured Texas DNA Exoneration Facts
and investigators believed that he had
Texas has had more wrongful convictions exposed by DNA
intentionally set the fire. Years later, the
than any other state in the country.
Pecos County District Attorney hired
an independent arson expert who con- Collectively, these thirty-nine men have spent more than
cluded that the evidence used against 548 years in prison with an average of fourteen years.
Willis was without any scientific basis,
Over $17 million dollars have been paid by state and local
and there was no evidence of arson.
governments in civil settlements and statutory compensation
The prosecutor eventually apologized to those wrongfully convicted.
“for so many lost years” and said that
Willis “simply did not do the crime.” Twelve counties in Texas have uncovered wrongful convictions
In each of these cases—only a few through DNA evidence.
among many convictions overturned
Dallas County leads the state in the number of wrongful
in Texas without the benefit of DNA
convictions, a direct result of preserving DNA evidence while
evidence—flawed evidence was fortu- other counties destroyed it.
itously exposed. In some cases, evidence
of guilt evaporated under greater scru- Nine people have been released from Texas’ death row based
tiny; in others, affirmative evidence of on evidence of their innocence.
innocence was found. Yet in all of these
85% of the cases involve mistaken eyewitness identification.
cases it was exceedingly difficult to undo
the damage of flawed evidence in the 18% of the cases involve false forensic testimony.
courtroom and to rectify the wrongful
conviction. 28% of the cases involve the use of unreliable or limited
forensic methodologies (e.g., microscopic hair comparison,
A recent review of evidence used
serology inclusion, bite mark matches, or voiceprint analysis).
in non-DNA cases reinforces the im-
portance of implementing procedures 13% of the cases involve informant or accomplice testimony
that enhance the quality of evidence from witnesses with incentives to lie.
relied upon by the system. In October
13% of the cases involve false confessions or guilty pleas.
2008, the Dallas Morning News pub-
lished an investigative series on the 18% of the cases involve suppression of exculpatory
alarming number of exonerations that evidence or other misconduct.

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know is how many innocent individuals have been makes me sick to my stomach that those two men
convicted based on faulty evidence. were destroyed.”
The wrongful convictions of Ochoa and Dan-
ziger are a troubling reminder of the importance
Jurors Deserve the of giving jurors all the evidence they need in or-
der to reach justice. When custodial interrogations
Most Reliable Evidence are not recorded, jurors miss essential information
they need to effectively and accurately evaluate the

I n the criminal justice system, jurors determine


guilt or innocence by evaluating the evidence pre-
sented to them. If that evidence is incomplete, biased,
reliability of a confession. Had the evidence been
thoroughly documented by recording the interro-
gation, and jurors given the full story, they might
or incorrect and the innocent are wrongly convicted, have avoided the injustice suffered by the two men,
jurors are placed in a terrible situation that benefits not to mention the millions of dollars in settlements
no one involved. As one juror from the Richard Dan- the taxpayers had to pay.
ziger case stated, “I think any one of us resents the
position we were put in. You know, we were made a
party to ruining [Danziger’s] life.”
The only direct evidence in the case linking
Reform: Improving the
Danziger to the murder of Nancy DePriest in Aus-
tin was the confession of his
Reliability of Evidence
“I think any one of us
resents the position we
friend Christopher Ochoa—a
confession that DNA evidence
later revealed to be false. The
B y implementing a reform agenda, Texas can
ensure that the best evidence possible reaches
courtrooms and can enhance the fairness and accu-
were put in. You know, jurors were not given the full racy of its criminal justice system.
story of how that confession
we were made a party was elicited in a threatening Eyewitness Identification
to ruining [Danziger’s] and coercive interrogation that

life.”—a danziger juror


lasted more than twenty hours.
Without that context, the con-
fession and testimony from
E yewitness identification testimony is one of
the most widespread and powerful forms of
evidence in our criminal justice system. Much like
Ochoa led jurors to believe that there was no decision trace physical evidence, however, eyewitness evi-
other than to find Danziger guilty. dence is highly susceptible to contamination if it is
Another juror from the case said, “I think we not collected carefully according to scientific pro-
should hear how that testimony came about because tocols. In Texas, eighty-five percent of all wrongful
we had no choice with what we heard. . . . And I was convictions exposed by DNA testing have involved
uneasy about the verdict, but if you believed what incorrect eyewitness identifications.
you were hearing, and it was hard not to, you had to The criminal justice system cannot do with-
find him guilty.” Another juror agreed and stated, “It out eyewitness evidence. Though DNA exonera-
would have made a difference to me if I had known tions have highlighted its inherent flaws, the good
that [Ochoa] had sat there for nineteen hours before news is that extensive research conducted over
he was allowed to go home only if he confessed.” It decades has identified ways to minimize the risk
took the confession of the true killer and DNA con- of mistakes.
firmation years later to finally reach the truth. Texas currently has no statutory standards re-
One of the Danziger jurors said when she garding the conduct of photo or live lineups. Fur-
learned of the true killer’s confession and the DNA thermore, though scientifically-grounded best
evidence, “That’s when I really learned that you practices for conducting identification procedures
can make somebody say something or admit to have been around for more than a decade, a recent
something that’s just not true.” Knowing that they survey by The Justice Project of over one thousand
sentenced Danziger to prison based on a false con- Texas police and sheriff’s departments yielded an
fession has left these jurors with anger and guilt. even more troubling finding: eighty-eight percent
One juror stated, “I feel guilty for what I’ve done. It of law enforcement agencies have no written poli-

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cies or procedures for the conduct of photo or live lineup. Extensive research has demonstrated that
lineups. The few policies that do exist are more cautionary instructions reduce incorrect identifi-
often than not vague and incomplete. Only a tiny cations with no decrease in correct picks.
fraction of the departments have implemented best
practices for eyewitness procedures recommended • F  air lineup composition: Effective selection of
by the U.S. Department of Justice, the International fillers when composing a lineup can help reduce
Association of Chiefs of Police, the American Bar the risk of identifying an innocent suspect. Only
Association, and others. one suspect should appear in each lineup and at
Texas must require law enforcement agencies to least five fillers should be included. Rather than
adopt written policies and procedures for the conduct selecting fillers based on their resemblance to the
of photo and live lineups suspect, which makes the witness’s task
that implement the fol- Eighty-eight percent of more complicated, fillers should be se-
lowing key safeguards: lected to resemble the witness’s descrip-
Texas law enforcement tion of the perpetrator. Most importantly,
• C omplete documenta- agencies have no written the suspect or the suspect’s photo should
tion of identification not unduly stand out and should be pre-
procedures: Given the policies or procedures sented in a uniform format to that of the
overwhelming impor- for the conduct of fillers. Fair composition of photo and live
tance of eyewitness tes- lineups allows authorities to judge the re-
timony and the weight photo or live lineups. liability of an eyewitness effectively.
afforded to it by juries,
it is essential to fully document photo or live line- • N
 eutral blind lineup administration: The person
ups. Thorough documentation helps a jury to who administers the photo or live lineup to a wit-
assess the eyewitness evidence appropriately and ness should not know the identity of the suspect.
minimizes the effects of reinforcing feedback that The purpose of keeping the administrator “blind”
can distort the confidence level of an eyewitness as to which person in the lineup is the suspect is
between the time of the identification and the trial. to prevent the administrator from unintentionally
Documentation of an eyewitness identifica- influencing the results. This is generally done inad-
tion procedure must include the photos used in a vertently through verbal or
photo lineup or a photograph of a live lineup and non-verbal behavior. Wit- Regardless of whether
all dialogue and witness statements made during nesses may be very motivat-
the procedure. When an identification is made, it ed to make an identification the true perpetrator
is essential to have documentation of the witness’s and seek to interpret the be- is in a lineup, an
degree of confidence in the identification, in the havior of the lineup admin-
witness’s own words and prior to any feedback istrator for cues about the eyewitness may feel
from authorities. It is important to fully document suspect, even if no such cues pressure to make an
all procedures, even those that do not result in an exist. Finally, a double-blind
identification. Electronic recording of photo and protocol also eliminates the identification.
live lineups provides the most complete record of problem of investigators
these critically important investigative procedures. interpreting ambiguous witness comments and
other behavior through the lens of their theory of
• C autionary instructions: Regardless of whether a suspect’s guilt.
the true perpetrator is in a lineup, an eyewit-
ness may feel pressure to make an identification. • A  voidance of repeated exposure of the suspect
Prior to presenting the lineup, the eyewitnesses to a witness: Police departments must adopt
should be instructed that the perpetrator may or policies that address the inherent risk in repeat-
may not be included in the lineup and that they edly presenting a witness with a suspect or a
should not feel compelled to make an identifica- suspect’s photograph. In some exonerations, a
tion. Cautionary instructions of this sort remove witness did not identify a suspect in an initial
some of the pressure on the eyewitness to choose lineup but subsequently identified him in a later
a suspect when the culprit may not be in the lineup (in which the only common person was

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the one wrongfully convicted). Because of the While documented false confessions indicate
fragile nature of witness memory, particularly the need for safeguards, powerful benefits to law
the possibility of “memory transference” be- enforcement have also made recording very popu-
tween events, multiple exposures undermine the lar with the police who do it. A survey of police de-
reliability of an identification. partments that record interrogations conducted by
former United States Attorney Thomas P. Sullivan
• S equential presentation option: In addition to found overwhelming support for electronic record-
the above measures, police departments should ing of interrogations. Among the benefits cited were
consider implementing sequential presentation the protections against false claims of coercion or
of lineups. Traditionally, eyewitnesses are shown misconduct, the ability to concentrate on the sus-
a photo or live lineup in which the pect and his demeanor rather
lineup members are presented as Juries will sometimes than taking notes, and the use-
a group. An eyewitness viewing a fulness of recorded interroga-
lineup tends to make a judgment convict an individual tions for training officers. With
about which individual looks most based on a confession electronic recording, motions
like the perpetrator relative to the to suppress confessions are
other members of the lineup. This alone, so special care reduced, and the “he said-she
natural tendency toward “compari- must be taken to ensure said” swearing matches about
son shopping” is problematic when what took place in the inter-
the suspect in the lineup is not in that the suspect’s rogation room are essentially
fact the perpetrator. Presenting the statements are as reliable eliminated. The result is that
photos or lineup members one at judges and juries have the com-
a time discourages the tendency to as possible. plete story that allows them to
judge the lineup members against effectively weigh the evidence,
each other and to make an identification through convict the guilty, and protect the innocent.
a process of elimination, in favor of a more direct Although Texas currently requires that oral
comparison of each person to the witness’s memory. confessions be recorded to be admissible in court,
Many studies indicate that sequential presenta- there is no provision stating that the interrogation
tion reduces error, although some researchers be- preceding an oral confession must be recorded.
lieve that the superiority of sequential presenta- Further, authorities overwhelmingly rely on writ-
tion has not been established. Texas departments ten statements signed by the suspect, which have no
may want to consider the sequential option as requirement for electronic recording at all. In any
more field-testing data is accumulated. case, Texas currently does not require that interro-
gations that lead to confessions be recorded.
Texas should require the electronic recording of
full custodial interrogations in serious crimes with
Electronic Recording of the following considerations in mind:
Custodial Interrogations • “ Stem to stern” recording: In order to reap the

T he idea that someone would falsely confess to


a serious crime seems counterintuitive to most
people. False confessions are a well-documented
benefits that electronic recording affords police,
prosecutors, innocent suspects, and the system
as a whole, the entire custodial interrogation
reality, particularly among more vulnerable groups must be recorded—not merely the confession.
such as juveniles and the mentally disabled, and Recording should begin at and include the deliv-
they have resulted in wrongful convictions in Texas ery of the suspect’s Miranda rights and continue
and across the country. Confessions are so power- uninterrupted until the end of the interview.
ful, in fact, that they can even overcome other ex- Implementing this requirement guarantees that
culpatory evidence. Juries will sometimes convict the best, most complete evidence will be avail-
an individual based on a confession alone, so spe- able at trial. Questions as to whether Miranda
cial care must be taken to ensure that the suspect’s warnings were given and false claims of abuse
statements are as reliable as possible. or coercion will be avoided, resulting in fewer

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motions to suppress confessions. Recording may fact-finding tool for the criminal justice system.
also encourage guilty suspects to enter into plea The virtue of electronic recording of custodial in-
bargains rather than going to trial. terrogations lies not only in its ability to help guard
Innocent suspects will likewise be protected against false confessions, but also in its ability to
from wrongful conviction by providing courts develop the strongest evidence possible to help
with the information necessary to accurately as- convict the guilty.
sess whether a defendant’s statement is reliable
and voluntary.
Jailhouse Informant Testimony
• A
 udio or video: While video recording devices
are preferable, some departments have expressed
concern about the costs of implementation. Au-
B ecause jailhouse informants are so desperate to
attain sentence reductions and other benefits,
informant testimony is widely regarded as the least
dio recording is an acceptable alternative that can reliable testimony in the criminal justice system.
be implemented at very low cost. It should be left When the state offers a benefit in exchange for tes-
to the discretion of the agency to choose the sys- timony, whether that benefit is explicit or implied,
tem that best fits its needs and resources. the incentive for incarcerated
individuals to fabricate evi- When the state offers
• S cope of recording: Recording in all criminal cases dence dramatically increases.
promises the most benefits, but at a minimum, re- Some informants may fabri- a benefit in exchange
cording interrogations conducted in connection cate testimony in an effort to for testimony, whether
with felony investigations should be required. It is curry favor with prosecutors
especially urgent to record interrogations involv- apart from any promise or im- that benefit is explicit or
ing juvenile suspects and those whom authorities plied benefit. implied, the incentive for
have reason to believe are mentally disabled or The protections currently
mentally ill. in place have proven inad- incarcerated individuals
equate to safeguard against to fabricate evidence
• E
 xceptions: Recording requirements must include unreliable testimony by wit-
reasonable exceptions so as not to place an undue nesses with powerful incen- dramatically increases.
burden on law enforcement and to allow for the tives to lie. Remarkably, the
admission of voluntary statements that were not use of jailhouse informant testimony continues to
recorded for valid be largely unregulated by state legislatures or courts
reasons. For example, despite frequent, documented cases of injustice and
False confessions are a a suspect’s statement instances of wanton abuse. Texas is no exception as
well-documented reality, should be admis- no statutes regulating the use of jailhouse informant
particularly among more sible if officers made
a good faith effort to
testimony exist.
About fifteen percent of all DNA exonerations
vulnerable groups such record but were un- nationally included jailhouse informant testimony.
able to do so because Texas must implement safeguards designed to sub-
as juveniles and the of equipment mal- ject this testimony to more transparency and higher
mentally disabled. function or power scrutiny. Specifically, Texas should require the follow-
outage. Additionally, ing reforms:
spontaneous statements made by the defendant,
or statements made during routine processing of • W
 ritten pretrial disclosures: Texas should re-
the defendant, may be admissible in court because quire written pretrial disclosure of all induce-
they were made outside the context of an interro- ments a jailhouse informant may have been given
gation. Statements made by a suspect who refuses or promised in exchange for testimony, including
to speak if recorded might also be deemed admis- pay, immunity from prosecution, leniency in pros-
sible as long as the refusal itself is recorded. ecution, or other personal advantage, along with
the proffered testimony the prosecution seeks to
Electronic recording of custodial interroga- present. In addition, any past cooperation agree-
tions has emerged as a powerful innovation and ments of the informant should be disclosed along

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with other information bearing on the informant’s HPD lab. The establishment of the Texas Forensic
credibility. Timely disclosure of this information Science Commission provides an independent body
ensures that defendants can conduct meaningful to review allegations of forensic negligence and mis-
investigation and cross-examination. conduct and to recommend corrective action.
The statutory tasks of the Forensic Science Com-
• P
 retrial reliability hearings: Texas should follow mission are essentially backward-looking. While the
Illinois in providing for pretrial reliability hearings commission is able to make recommendations for
in cases where the prosecution remedial action regarding com-
intends to use informant testi- plaints of negligence and miscon-
mony. In a pretrial reliability Clearly, a lack of oversight duct, it is primarily oriented to be
hearing, the court performs a of forensic labs in Texas a reactive entity. It is essential to
“gatekeeper” function where establish a forensic oversight sys-
it should be required to deter- had devastating tem that is more proactive in set-
mine that the informant’s tes- consequences on the ting quality standards in order to
timony is sufficiently reliable ensure the best evidence possible.
to be presented to a jury. accuracy of the criminal While DNA tends to get the
justice system—to attention of the media and policy-
• R
 equire corroboration: Texas makers, forensic labs are engaged
should adopt corroboration date, three wrongful in a variety of sub-disciplines
requirements for informant convictions have been beyond DNA, and the need for
testimony to mitigate the in- oversight and quality standards
herent risks presented by wit- traced to the HPD lab. in those areas is great. The proac-
nesses with incentives to lie. tive quality assurance role needed
in Texas must address all aspects of forensic science
• C
 autionary jury instructions: Texas should adopt that are relied upon in criminal trials—not just
cautionary jury instructions in all cases where the DNA evidence. The following changes would help
testimony of a jailhouse informant is used. to implement those goals:

Greater scrutiny and transparency of jailhouse • T


 exas should give the Forensic Science Commis-
informant testimony in Texas will prevent unreli- sion a proactive role in reviewing, setting, and en-
able evidence from being used in the courts and will forcing quality standards: These expanded duties
produce more reliable outcomes in criminal cases. should include a review of existing private accredi-
tation program requirements and the development
Forensic Oversight of proposals for supplementing those requirements
as appropriate to best ensure objectivity and reli-

I naccurate forensic evidence and testimony is the


second leading cause of wrongful convictions
exposed by DNA in Texas. The Houston Police
ability. Commission staff and budget should be
augmented to accommodate these functions.

Department’s (HPD) crime lab debacle is a striking • I ndependence and blind testing: Texas should
example of how poorly a forensics lab can operate develop and require all forensic science labora-
without proper oversight. Independent investigator tories to adopt structures and policies to prevent
Michael Bromwich found that analysts at the HPD bias in testing and analysis, such as regulating the
crime lab repeatedly tested DNA samples incorrect- amount of extraneous contextual information
ly and, in some cases, made up results without actu- an analyst receives prior to testing to reduce the
ally testing evidence. Clearly, a lack of oversight of risk of confirmation bias or other observer ef-
forensic labs in Texas had devastating consequences fects. Forensic labs should also move toward be-
on the accuracy of the criminal justice system—to coming independent from law enforcement and
date, three wrongful convictions have been traced prosecutorial agencies to best insulate analysts
to the HPD lab. from the risk of “group think” that occurs from
Fortunately, Texas has taken important steps working closely with police as part of a crime-
forward since the disclosure of the problems in the solving “team.”

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Recent studies have demonstrated the risk of inad- ery to occur in advance of trial, often leaving de-
vertent bias affecting the outcome of forensic testing. fense counsel without adequate time to review the
One 2006 study in the Journal of Forensic Identification materials and prepare. While some jurisdictions
asked experienced analysts to evaluate a series of fin- have voluntarily adopted more expansive discovery
gerprints to determine if they matched. These analysts practices, the lack of statewide standards means too
believed they were examining prints for an open, many Texans are being tried without a fair oppor-
unsolved case, but they were in fact re-examining tunity to review the evidence the state wants to use
prints that they had previously against them in court.
analyzed accurately. The prints The adoption of open-file
were given to the analysts along
While some jurisdictions discovery rules for criminal trials
with artificial contextual infor- have voluntarily adopted creates a more level playing field
mation, such as the fact that the
suspect had confessed. In cases
more expansive discovery by ensuring that evidence can be
meaningfully challenged and test-
where analysts were given con- practices, the lack of ed, and by removing much of the
textual information about the uncertainty inherent in the discre-
fingerprints, they were wrong
statewide standards tionary disclosure decisions pros-
in almost seventeen percent of means too many Texans ecutors now make.
the cases. This study highlights The record of wrongful con-
the need to ensure that extra-
are being tried without victions has demonstrated that
neous contextual information a fair opportunity to exculpatory evidence can be with-
does not undermine the objec- held for years, even decades, while
tivity of analysts. By ensuring
review the evidence an innocent person sits in prison.
that labs are independent of law the state wants to use Whether the state fails to disclose
enforcement and prosecutorial evidence inadvertently or inten-
agencies, along with regulat-
against them in court. tionally, clear rules about what is
ing the flow of information subject to discovery—and clear
between investigators and forensic analysts, these consequences for failure to disclose discoverable
kinds of errors can be minimized. information—minimize the risk of these mistakes.
Texas should implement the following changes:
Expanded Discovery •R
 equire an open-file discovery policy to allow ac-

D iscovery is the process by which the prosecu-


tion discloses evidence to the defense attor-
ney and provides a basic foundation for accuracy
cess to all relevant, unprivileged information in the
possession, custody, or control of the state, subject to
appropriate regulation by the courts.
and fairness. Discovery preserves the integrity of
our adversarial criminal justice system by provid- •R
 equire automatic disclosure of key documents
ing the defense with a meaningful opportunity to such as police reports and witness statements prior
fully investigate and test the government’s evidence to trial.
in preparation for trial. Unfortunately in Texas, the
statutes and rules governing criminal discovery are •P
 rovide for adequate timelines to ensure access to
so minimal that they fail to guarantee the opportu- information to allow investigation and review.
nity for evidence to be fully investigated and mean-
ingfully challenged. •E
 nforce remedies in cases where discoverable
Unlike many other states, Texas has no statute material is willfully suppressed, or when discovery
that mandates automatic discovery of key case doc- obligations are not or only partially met.
uments, such as police reports and witness state-
ments. Instead, Texas requires the defense to file The Justice Project has published comprehensive
motions with the court requesting access to basic policy reviews on the above reforms in addition to a
information. The defense must also demonstrate policy review on post-conviction DNA testing. The
“good cause” in order to review such evidence. policy reviews can be downloaded from The Justice
There are no clearly defined timelines for discov- Project’s website at www.thejusticeproject.org.

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Stories of Injustice: The Texas DNA Exonerated


D espite the great injustices they have suffered,
the thirty-nine men whose stories are described
below are actually the lucky ones. Unlike most cases
because she said her face was covered with a pillow
during the attack. Although the defense questioned
the strength of her eyewitness identification, the
in the criminal justice system, each of these cases jury found Alejandro guilty.
involve DNA evidence, which can expose the guilty Because of the false testimony of forensic ex-
and reveal the innocent. It is fortuitous that DNA pert Fred Zain and the mistaken eyewitness identi-
was preserved and available for testing. Without fication, Gilbert Alejandro spent almost four years
DNA evidence, these profiles of injustices likely in prison for a crime he did not commit.
would never have been exposed, and the systemic
problems that caused these wrongful convictions
may never have been discovered. These thirty-nine
cases highlight the need for reform as it is impos-
Michael Blair
sible to know how many similar mistakes have been
made in cases without DNA evidence to expose
them. Texas must address these flaws and imple-
M ichael Blair became the prime suspect in the
1993 murder of seven-year-old Ashley Estell
of Plano when two crime scene investigators noticed
ment the reforms that can prevent them to ensure him near the scene and thought he looked suspi-
that no innocent person suffers as these thirty-nine cious. Police interrogated Blair for over nine hours.
men have suffered. Throughout the interrogation, Blair maintained his
innocence and was released. An eyewitness came
forward stating that he saw Blair in the park where
Gilbert Alejandro the girl was abducted.
At trial, a forensic scien- Michael Blair

G ilbert Alejandro was wrongfully convicted


of sexual assault in 1990 based largely on the
faulty testimony of forensic expert Fred Zain. At
tist testified that strands of
hair found at the crime scene
spent fourteen
on the day of the girl’s abduc- years on death
trial, Zain testified that DNA tests established that tion appeared to match hairs row due to faulty
semen found on the victim’s clothes “could only taken from the victim and forensic science
have originated from [Alejandro].” A reexamina- Blair. In addition, the foren-
tion of the original DNA testing years later showed sic expert testified that hairs
and a mistaken
that Alejandro was actually excluded as the perpe- found in Blair’s car closely eyewitness
trator. In fact, records showed that Zain’s testimony resembled hairs taken from identification.
was based on DNA testing that had the victim, and he could not
Gilbert Alejandro not yet been completed at the time “tell the difference, microscopically” between fibers
he testified against Alejandro. taken from Ashley’s body and fibers found in Blair’s
spent almost four Inaccurate eyewitness testimo- car. An FBI analyst also testified to similarities in the
years in prison due ny also contributed to Alejandro’s chemical composition of the fibers. The jury took
to false testimony wrongful conviction. He initially only ninety minutes to convict Blair and sentence
about DNA and a became a suspect when the victim him to death.
identified him from a book of mug Post-conviction DNA testing of the hair sam-
mistaken eyewitness shots. After the initial identifica- ples in 1998, 2000, and 2002 revealed that none of
identification. tion, police then showed the victim the hairs came from either the victim or Blair. In
several photo lineups that included 2006, DNA testing showed that material taken from
Alejandro, but she failed to identify him. Regard- under the victim’s fingernails did not come from
less, police still chose to focus on Alejandro because Blair. Blair’s conviction was thrown out in 2008.
of the victim’s initial identification from the mug Because of faulty forensic evidence and a mis-
book. The victim described her attacker as His- taken eyewitness identification, Michael Blair spent
panic, about six feet tall, and wearing a white cap. fourteen years on Texas’ death row for a crime he
She could not provide a more detailed description did not commit.

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A.B. Butler the time was not advanced enough to exclude him
as the perpetrator.

I n 1983, a mistaken eyewitness identification led


to the wrongful conviction of A.B. Butler for
the aggravated kidnapping of a woman in Smith
Harris County prosecutors used the victim’s iden-
tification as the centerpiece of their case against Byrd.
He was convicted and sentenced to life in prison. Not
County. The victim initially identified Butler as her everyone was convinced of Byrd’s guilt, though. The
attacker from a book of mug shots. She also identi- trial judge sent a letter to the chief of police complain-
fied him in a live lineup and again during the trial. ing about the investigation. In addition, although
The defense presented three evidence was routinely destroyed in Harris County, a
alibi witnesses who testified deputy district clerk happened to save the trial exhibit
Butler was with them during containing the biological evidence in Byrd’s case.
the attack. However, Butler Post-conviction DNA testing provided irrefut-
was convicted of aggravated able proof that Byrd was not the attacker. Byrd was
kidnapping and rape and released and eventually granted an official pardon
was sentenced to ninety-nine from Governor George W. Bush in October 1997.
years in prison. Because police and prosecutors ignored contra-
Clay Graham

After learning about dictions in a mistaken eyewitness’s testimony, Kevin


emerging DNA technology, Byrd spent twelve years in prison for a crime he did
Butler repeatedly petitioned not commit.
A.B. Butler for DNA testing of evidence
spent seventeen found at the crime scene.
years in prison In 1999, the first set of tests
were conducted by a private
Charles Chatman
due to one lab and the results were in-
mistaken conclusive. A second set of
eyewitness tests were conducted by a lab
identification. in New York using a newly
developed technique that al-
lowed scientists to better isolate male DNA and pro-
vide more sophisticated analysis. These tests proved
conclusively that Butler’s DNA did not match DNA
found on the victim. Butler was released in January
2000 and was granted an official pardon from Gov-
Dallas Morning News
ernor George W. Bush.
Because of one mistaken eyewitness identifica-
tion, A.B. Butler spent seventeen years in prison for
a crime he did not commit.

Kevin Byrd I n 1981, police placed Charles Chatman’s picture


in a photo lineup after a woman in his Dallas
County neighborhood was sexually assaulted. The

W rongfully identified as the perpetrator of a


violent rape in Harris County in 1985, sev-
enteen-year-old Kevin Byrd did not match the de-
victim told police that she remembered her attacker
as a neighbor. That same day she identified Chatman
from a photo lineup and a live lineup. The victim did
scription of the attacker that the victim originally not mention Chatman’s most distinguishing charac-
gave to police. The victim initially described the teristic in her initial description of the perpetrator—
perpetrator as a thirty-five-year-old white male Chatman was missing his front teeth.
with an unusual “honey brown” complexion. Byrd At trial, the state’s case consisted of little more
was arrested even though he was significantly than the victim’s previous identifications and her
younger than the description and more impor- in-court identification of Chatman. The state also
tantly, he is black. Byrd voluntarily provided blood, presented forensic results showing the assailant’s
saliva, and hair samples to police, but the science at blood type characteristics were consistent with

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those of Chatman. These characteristics were also of these attempted confessions until years later. Cole
consistent with forty percent of all black males. died in prison in 1999 from a severe asthma attack.
Chatman’s defense presented alibi testimony that he DNA testing conducted after Cole’s death re-
was at work, employed as a custodian, during the vealed that Johnson had indeed raped the Texas
attack. Chatman’s sister, who also worked at the cus- Tech student, not Cole. In an unprecedented hearing
todial service, corroborated his alibi. Nevertheless, in February 2009, Johnson took the stand and con-
Chatman was convicted of aggravated sexual assault fessed to the crime for which Cole had been convict-
and sentenced to ninety-nine years in prison. ed. As a result, Cole was exonerated and his criminal
Chatman applied for post-conviction DNA record was ordered expunged. Michele Mallin, the
testing. After two inconclusive results, a more ad- victim who misidentified Cole, came forward and
vanced DNA test proved that he did not commit the spoke out publicly in support of eyewitness identi-
rape. Chatman was released from prison on Janu- fication reform.
ary 3, 2008, and a formal exoneration followed on Because of one mistaken eyewitness identifica-
February 26, 2008. Chatman missed three chances tion, Timothy Cole spent thirteen years in prison
at parole because he refused to admit to the crime for a crime he did not commit.
or apologize for it.
Because of one mistaken eyewitness identifica-
tion, Charles Chatman spent twenty-seven years in
prison for a crime he did not commit.
Roy Criner
F our years after the 1986 Montgomery County
sexual assault and murder of Deanna Ogg, Roy
Timothy Brian Cole Criner became a suspect in the case. Three men al-
leged that Criner made statements in which he re-

T imothy Cole became the prime suspect in a se-


ries of rapes on the Texas Tech campus in 1985
after he engaged in small talk with an undercover
ferred to a hitchhiker with
whom he had he had sex. Roy Criner
There were numerous incon- spent ten years
female officer sent to the area where the sistencies among the stories
attacks occurred. The Lubbock police of the three men and with in prison due
placed the undercover officer in the area known facts in the case. to false witness
with the hope of luring out the “Texas At trial, a forensic analyst testimony.
Tech rapist.” with the Texas Department
The last victim in the Texas Tech rapes of Public Safety testified that numerous hairs col-
was shown a photo lineup that included a lected from the crime scene and from Criner’s truck
picture of Cole. The victim identified Cole could not link Criner to the crime. Serology tests on
as her attacker. Cole’s picture was the only semen from the crime scene did not yield probative
color Polaroid photo in a group of five results either. Further, several alibi witnesses testified
black and white mug shots, and the that Criner was at work at the time of the crime. De-
Timothy Cole victim later stated that police and spite the scant and questionable evidence tying him
prosecutors repeatedly described to the crime, Criner was convicted of murder and
was wrongfully Cole as a “low-life hood.” At a sub- sentenced to ninety-nine years.
convicted based on sequent live lineup, four other Texas In 1997, DNA testing excluded Criner as the
a false eyewitness Tech rape victims failed to identify source of the semen found on the victim, but his
identification. He Cole as their attacker. Only the final ordeal did not end there. The prosecution said the
victim of the most recent rape stat- semen found on the victim was the result of con-
died in prison after ed she had no doubt about Cole. sensual sex the victim had before the rape, and
serving thirteen years. Cole was convicted and sentenced they suggested Criner might have used a condom
to twenty-five years in prison. or simply did not deposit semen during the rape.
Years later, Jerry Wayne Johnson, the defense As such, Criner was denied a new trial. Additional
team’s prime suspect, made two attempts to confess to DNA testing on a cigarette butt found near the vic-
the crime that placed Cole behind bars, but they went tim matched that from the semen, undermining the
ignored. Cole and his family did not know about either prosecution’s theory that the semen did not belong

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to the perpetrator. Based on these findings, Criner Because of a suggestive photo lineup that led to
was released and he was granted an official pardon a mistaken eyewitness identification, Wiley Foun-
by Governor George W. Bush on August 15, 2000. tain spent sixteen years in prison for a crime he did
Because of faulty witness testimony, Roy Cri- not commit.
ner spent ten years in prison for a crime he did not
commit.
Larry Fuller
Wiley Fountain A fter a Dallas woman was attacked and raped in
her home in 1981, Larry Fuller’s picture was
included in a photo lineup, even though he had no
history of sex crimes. Fuller was a decorated Vietnam
veteran raising two young children. The victim failed
to conclusively identify Fuller as her attacker, and the
investigating officer issued a report recommending
that the investigation be suspended because the vic-
tim “was unsure of the suspect at this time.” Months
later, police showed the victim another photo
lineup. Fuller’s photograph was again included in
Dallas Morning News

the photo lineup and was the only picture that was
included in both lineups. This
time the victim identified Fuller
as her attacker.
The victim initially stated
Wiley Fountain
spent sixteen W iley Fountain’s pic-
ture was included in
a photo lineup and shown
that she did not remember any
facial hair on her attacker. How-
ever, the photo of Fuller she
years in prison to the victim of a sexual identified showed him with a
as a result of assault in Dallas. In that heavy and distinct beard. At tri-
a mistaken lineup, Fountain was the al, the prosecution relied heavily

Clay Graham
identification only man wearing a dark on the eyewitness identification,
baseball cap and a warm- saying that the victim had “never
from a photo up suit, the clothing worn wavered” in her identification.
lineup. by the attacker as described The prosecution also relied Larry Fuller spent
by the victim. The victim on misleading forensic testimo- almost twenty years in
picked Fountain as her attacker and police closed ny to convict Fuller. A serologist prison as the result of a
the case the following day. Even though semen was testified that Fuller was includ-
recovered from the victim’s clothing, samples were ed within twenty percent of the
mistaken identification
too small for serological analysis. Based entirely on population that shared blood and misleading
the eyewitness identification of the victim, Foun- type characteristics of the at- forensic testimony.
tain was convicted of aggravated sexual assault and tacker. Because the victim’s own
sentenced to forty years in prison. blood type was not properly considered, the eviden-
After spending fifteen years in prison, Fountain tiary value of that test was greatly overstated. Fuller
was paroled and required to register as a sex offend- was convicted of aggravated rape and sentenced to
er. Unable to find a job, his sex offender registration fifty years in prison.
fees went unpaid and Fountain’s parole was revoked. An initial DNA test in 2000 was unable to ob-
He was sent back to prison in 2001. tain a profile, but a more advanced DNA test con-
In 2002, post-conviction DNA testing proved ducted in November of 2004 conclusively excluded
Fountain’s innocence. He was released from prison Fuller as the attacker. Fuller was released on October
on September 27, 2002 and was granted an offi- 31, 2006 and granted an official pardon by Gover-
cial pardon by Governor Rick Perry on March 18, nor Rick Perry on January 25, 2007.
2003. Because of unreliable eyewitness and forensic

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evidence, Larry Fuller spent almost twenty years in cluded a photo of James Earl Giles, and he identified
prison for a crime he did not commit. James Earl Giles as one of the attackers. James Curtis
Giles was officially exonerated on June 20, 2007.
Because of faulty eyewitness evidence and mis-
James Curtis Giles conduct by police and prosecutors, James Curtis

S everal weeks after an attack on a Dallas couple


in their home, police received an anonymous tip
implicating two men in the crime. According to the
Giles spent ten years in prison for a crime he did
not commit.

tip, one of the accomplices was named James Giles.


In a photo lineup presented to the
Donald Wayne Good
victims a few days later, police in-
cluded a photo of James Curtis Giles, D onald Wayne Good was arrested in 1983 when a
police officer came to believe that he resembled
Greg Kendall-Ball / Innocence Project of Texas

a twenty-nine-year-old married con- the composite sketch of a man wanted for a rape
struction worker from Duncanville. and burglary. The officer placed Good’s picture in a
The female victim identified Giles, photo lineup shown to the victim and her daughter,
but her husband did not. Although who was present during the crime. The poor qual-
there were significant discrepancies ity of Good’s photo obscured his facial scar and
between Giles and the initial descrip- tattoo—two potentially important distinguishing
tion the victims gave of their attacker characteristics—and both women identified him as
(Giles was significantly older and the man who broke into
had two prominent gold teeth), Giles their home.
was arrested and charged with aggra- Good’s first trial
James Curtis Giles vated sexual assault in 1983. ended in a hung jury. At
spent ten years in At trial, the female victim iden- his second trial, Good
tified Giles from the stand, telling was convicted and sen-
prison due to a the jury she would “never forget his tenced to life in prison.
mistaken eyewitness face.” Giles and his wife testified to On appeal, his convic-

Dallas Morning News


identification and his alibi and explained that they lived tion was overturned
police and twenty-five miles from the crime based on prosecuto-
scene. Giles was convicted and sen- rial misconduct. Good
prosecutorial tenced to thirty years. After spending made an argument that
misconduct. ten years in prison, Giles was paroled the prosecutor had im-
and required to register as a sex of- properly told the jury to Donald Good
fender. He was not allowed to travel more than ten find him guilty because spent ten years
miles from his home without permission and was he did not show enough in prison based
required to have a chaperon present to spend time emotion when the victim
with his child. took the stand. A third on a mistaken
An investigation revealed that the lead detec- trial resulted in another eyewitness
tive and prosecutor withheld exculpatory evidence conviction, and he was identification.
from Giles’ defense team during trial. The investiga- again sentenced to life in
tion pointed to a man named James Earl Giles who prison in 1987.
had a history of violence and lived across the street The evidence presented at all three trials was
from the victims. In addition, his age matched the minimal, including little else than the eyewitness
initial description the victims gave of their attacker. testimony of the victim and her daughter and se-
In 2003, post-conviction DNA testing revealed rological testing that could not exclude Good—nor
the profiles of two perpetrators—neither of which thirty percent of the white male population—as
matched James Curtis Giles. The tests identified the perpetrator of the attack. In 2003, DNA testing
one man with links to James Earl Giles. The female proved Good’s innocence.
victim was contacted and was no longer certain of Because of a mistaken eyewitness identification,
her identification. Authorities contacted the victim’s Donald Wayne Good spent ten years in prison for a
husband and showed him a photo lineup that in- crime he did not commit.

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Andrew Gossett gain and was sentenced to four years in prison. He


was released on parole after eighteen months. While

A ndrew Gossett originally became a suspect in


the abduction and sexual assault of a Garland
woman after a patrol officer saw him in the vicinity
on parole, Henton was convicted of assault and two
felony drug charges. Because he was on parole, the
judge handed down a harsh sentence—twenty years
of the crime scene and thought he looked suspicious. for aggravated assault and forty-two years for the
Gossett was arrested and his photo was placed in a drug conviction.
photo lineup. The victim identified Gossett from In 2005, post-conviction DNA testing revealed
the photo lineup so quickly that the officers were that Henton was indeed innocent of the 1984 sexual
taken aback by her haste. Yet her confidence that he assault. Henton’s 1984 conviction was overturned
was her attacker ultimately assured police. At trial, and eventually his other sentence was thrown out
the testimony of the victim was significantly incon- because it was based on his wrongful conviction. He
sistent with earlier statements made to police. was re-sentenced to time already served and released
Gossett’s alibi placed him at his girlfriend’s on October 26, 2007.
apartment the entire night, except for two brief trips Because of a mistaken eyewitness identification,
to a convenience store. A surveillance video at the Henton spent nearly two years in prison for a crime
store showed a customer resembling Gossett mak- he did not commit.
ing a purchase around the time of the assault. In
addition, Gossett passed a polygraph test and hair
samples taken from the victim’s car were dissimi-
Entre Nax Karage
lar to those of Gossett. However, Gossett was con-
victed of aggravated sexual assault and sentenced to
fifty years in prison. Post-conviction DNA testing
W hen fourteen-year-old Nary Na was murdered
in Dallas in 1994, police quickly focused their
attention on her boyfriend, Entre Karage, despite
proved Gossett’s innocence and he was released on strong evidence indicating
January 4, 2007. an alternate suspect.
Because of a mistaken eyewitness identifica- At trial, a forensic ex-
tion, Gossett spent over seven years in prison for a pert testified that a hair
crime he did not commit. sample recovered from the
victim’s body had char-
acteristics consistent with
Eugene Henton an African-American, and
two other hairs had Cauca-
sian characteristics. Karage

Dallas Morning News


is Cambodian. In addi-
tion, the expert testified
that Karage’s DNA did not
match DNA samples taken
from the victim.
Prosecutors argued jealousy as a Entre Karage
Dallas Morning News

motive based on evidence that sexual spent seven years


intercourse had taken place and there in prison because
was no evidence of a rape. The state pre-
DNA evidence
E ugene Henton was just seventeen years old in
1984 when he was falsely identified as the attack-
er in a sexual assault. Although the attacker wore a
sented numerous witnesses, all of whom
provided remarkably different accounts pointing to the
of activities on the night of the murder. true perpetrator
mask, the victim told police she was certain she could However, they did present consistent was discounted.
identify him because he had spent such a long time testimony concerning the contentious
in her home. In addition, the victim also noted seeing relationship between Karage and the victim.
her attacker from her window while he waited at the Karage was convicted of murder and sentenced
bus stop and could thus identify him. to life in prison. Post-conviction DNA testing re-
Young and scared, Henton accepted a plea bar- vealed that sperm found in the victim actually be-

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longed to Keith Jordan, who was already in prison a year earlier. In addition to the highly problematic
for a similar offense. Jordan was convicted of aggra- nature of the photos being mailed to the witness,
vated sexual assault of a child and aggravated kid- the photo lineup itself was highly suggestive. Lind-
napping in Dallas in 1997. He has since been charged sey was one of only two men in
with the murder of Nary Na. Karage was officially the photo lineup not wearing Johnnie Lindsey
exonerated in December 2005 when Governor Rick a shirt, and the victim had de-
Perry pardoned him. scribed her attacker as shirtless. spent nearly
Because prosecutors neglected to pursue evidence The victim identified Lindsey as twenty-six years
pointing to the true perpetrator, Entre Karage spent her attacker. in prison as a
seven years in prison for a crime he did not commit. At trial, the victim’s identi- result of a highly
fication of Lindsey was the sole
piece of evidence against him. suggestive
Carlos Lavernia Lindsey presented an alibi that photo lineup.
he was at work, pressing pants at

F ourteen months after the 1983 sexual assault of


a jogger in Austin, Carlos Lavernia became the
primary suspect after the victim was shown three
a commercial laundry business during the time of the
attack. He even had time cards that showed he was
at work when the crime occurred. However, Lindsey
photo lineups and stated that Lavernia was the only was convicted and sentenced to life in prison.
one that “anywhere near resembled” her attacker. Post-conviction DNA testing of the biological
Based on this identification, police material from his case excluded Lindsey as the per-
Carlos Lavernia came to suspect Lavernia for a string of petrator of the rape, and he was released on Sep-
seven similar attacks in the area. The oth- tember 19, 2008.
spent nearly er victims were also shown a photo lineup Because of a mistaken eyewitness identification,
sixteen years that included Lavernia and two victims James Earl Lindsey spent almost twenty-six years in
in prison due identified him. Lavernia was placed in prison for a crime he did not commit.
to a mistaken a physical lineup and was identified by
two of the victims—the Austin jogger
eyewitness
identification.
victim and another victim who identi-
fied him in the photo lineup. Two addi-
Thomas McGowan
tional victims identified a filler standing
next to Lavernia in the physical lineup. Lavernia was
charged with the two rapes in which identifications
F ollowing a series of
flawed lineups, Thom-
as McGowan was charged
had been made, and the Austin jogger case went to with rape and burglary.
trial first. Lavernia was convicted of aggravated rape The victim was first shown
and sentenced to ninety-nine years in prison. The a live lineup that included
second case against Lavernia was dropped after this McGowan, two other sus-
Clay Graham
conviction and sentence. pects, and three fillers. Ex-
In 1999, Lavernia was questioned by Austin po- perts have long known that
lice about an unsolved murder, and the interview the inclusion of multiple
convinced them that Lavernia might be innocent of suspects in the same line- Thomas McGowan
the Austin jogger rape. DNA testing revealed Laver- up greatly undermines the spent twenty-three
nia’s innocence and his conviction was vacated. validity of the procedure. years in prison
Because of mistaken eyewitness testimony, Car- The victim did not identify
los Lavernia spent nearly sixteen years in prison for anyone as her attacker in due to suggestive
a crime he did not commit. that initial lineup. identification
Police then showed the procedures.
victim a photo lineup that
Johnnie Earl Lindsey also included a photo of McGowan. The victim hesi-

I n 1982, Johnnie Earl Lindsey’s picture was includ-


ed in a photo lineup that police sent in the mail
to a White Rock Lake woman who had been raped
tantly identified McGowan as her attacker. She later
said the detective conducting the lineup told her that
she “had to make a positive ID. I had to say yes or no.”

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The photo lineup was equally as problematic as the


live lineup because four of the seven photos, includ-
Brandon Moon
ing McGowan’s, were color originals. In addition,
three of the color photos were marked “Richardson
Police” and the other was marked “Garland Police.”

Greg Kendall-Ball / Innocence Project of Texas


The remaining black and white photos included one
original and two photocopies. The lack of uniformity
in the photos, combined with the multiple presenta-
tions of McGowan in photo and live lineups, tainted
the identification and contributed to the witness’s
mistaken identification of McGowan.
McGowan was eventually convicted and sen-
tenced to life in prison. Post-conviction DNA testing
excluded McGowan as the perpetrator and he was
released April 16, 2008. A DNA state database search
identified the true perpetrator, Kenneth Wayne
Woodson, who is currently serving a thirty-year sen-
F ollowing the sexual assault
of an El Paso woman in the
Brandon Moon spent
spring of 1987, police created seventeen years in
tence for another Dallas rape committed the year af- a photo lineup that included prison due to false
ter McGowan was arrested. Brandon Moon, a twenty-five- forensic testimony and
Because of the suggestive identification proce- year-old military veteran and
dures that led to a mistaken eyewitness identifica- aspiring jet pilot. The victim
the botched handling of
tion, Thomas McGowan spent twenty-three years tentatively chose Moon’s picture exculpatory DNA.
in prison for a crime he did not commit. and later firmly identified him
in a live lineup. Moon was the only person present
in both the photo and live lineups. Based on the
Billy Wayne Miller identification, police contacted two other women
who had been victims of similar attacks. Each vic-

I n 1983, a Dallas woman waiting at a bus stop ac-


cepted a ride from a man who subsequently as-
saulted her. The victim remembered some of the
tim identified Moon even though the crimes against
them had been committed years before these line-
ups were conducted.
numbers from the license plate of the car driven by At trial, a serologist testified that semen stains
her attacker. During the attack, the victim memo- from the crime scene definitively excluded the vic-
rized street names and the location of a house where tim’s husband and indicated Moon could have been
a part of the assault took place. Following up on the the source. This testimony would later prove to be
victim’s statements, police found a car in front of patently false.
the house with a license plate that differed from the In 1989, DNA testing showed that Moon was
victim’s memory by only one digit. Police entered not the source of the semen taken from the crime
the house and arrested Billy Wayne Miller. The car scene, but the results were considered inconclusive
was registered to his father. because reference samples were not collected from
The lead prosecutor in the case now believes the victim’s husband or teenage son. Eventually,
that the victim’s memory of specific details—down testing revealed that the victim’s husband’s DNA
to the brand of beer the attacker drank—was likely a matched a stain on the comforter, but not the bath-
result of the police having fed her that information. robe. Additional testing proved that the son was not
Post-conviction DNA testing excluded Miller the source of the bathrobe stain, leaving only the
as the attacker. He was released in May 2006 and rapist, whom previous tests had already revealed
officially pardoned by Governor Rick Perry in De- could not be Moon. In December 2004, Moon was
cember of 2006. released from prison.
Because of a mistaken eyewitness identifica- Because of false forensic testimony and the
tion, Billy Wayne Miller spent over twenty-two years mishandling of exculpatory DNA, Brandon Moon
in prison for a crime he did not commit. spent seventeen years in prison for a crime he did
not commit.

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Arthur Mumphrey ten by the police and accepted the state’s offer of a life
sentence. In exchange, Ochoa pled guilty to murder

D uring a police interrogation in 1986, Steve


Thomas admitted to raping a thirteen-year-old
girl and implicated Arthur Mumphrey as his accom-
and testified against Danziger at trial. Danziger was
convicted of aggravated sexual assault and sentenced
to life in prison.
plice in the crime. Police made a deal with Thomas, While Ochoa and Danziger were serving life
offering him a fifteen-year sentence in exchange for sentences, a Texas inmate named Achim Josef Ma-
his “truthful testimony” against Mumphrey. rino confessed to DePriest’s murder. Marino pro-
At trial, Thomas testified to the same horrific de- fessed he alone committed the crime and provided
tails he had relayed to the police during his interro- a detailed description of the crime scene and infor-
gation. In addition, another witness testified that he mation regarding the location of items stolen from
saw Thomas and Mumphrey one night and Thomas the Pizza Hut.
told him all about the crime while Mumphrey stood DNA testing of semen collected from the crime
silent, tacitly endorsing the story. The victim testified scene conclusively proved the innocence of Ochoa
that she did not look at the faces of her attackers and and Danziger. Ochoa and Danziger both settled
could not identify them. Mumphrey was convicted. civil lawsuits with the City of Austin. Danziger sus-
Mumphrey was paroled in 2000, but he failed tained permanent brain damage as a result of a vio-
to meet the strict terms of his parole and returned lent prison assault, rendering him unable to care for
to prison in 2002. Post-conviction DNA testing on himself without help.
the rape kit evidence confirmed that Thomas was Because of the threatening and intimidating
indeed one of the perpetrators, but the other perpe- interrogations that led to Ochoa’s false confession,
trator was not Mumphrey. Richard Danziger and Christopher Ochoa each
Mumphrey was released on January 27, 2006, spent twelve years in prison for a crime they did not
and was granted an official pardon by Governor commit.
Rick Perry on March 17, 2006.
Because of the false testimony of Steve Thomas,
Mumphrey spent nearly eighteen years in prison for
a crime he did not commit.
Steven Charles Phillips

Christopher Ochoa and


I n 1982, Steven Phillips became the chief suspect in
an unusual string of sexual assaults and burglar-
ies in Dallas, Texas and
Kansas City, Missouri.
Richard Danziger Police were confident that

C hristopher Ochoa was working at a Pizza Hut


when he and his friend, Richard Danziger, be-
came suspects in the 1988 murder of Nancy DePriest,
the same assailant was re-
sponsible for the crimes
in both cities.
Dallas Morning News
a manager for another of the chain’s After Dallas police
Christopher Ochoa restaurants in Austin. Employees of turned their focus to Phil-
and Richard the restaurant contacted police af- lips, ten separate victims
Danziger each spent ter Ochoa and Danziger were seen
giving a toast in the victim’s honor.
picked his photo out of
dozens shown by police.
twelve years in Acting on the tip, police brought None of the photo line- After serving
prison as a result of Ochoa in for questioning. ups were preserved as evi- twenty-six years in
a long, intimidating During the interrogation, Ochoa dence, however, making prison, DNA testing
was subjected to both physical and it impossible to analyze
interrogation that verbal intimidation, and police offi- the accuracy and quality exonerated Steven
produced Ochoa’s cers threatened him with the death of the procedures used. Charles Phillips
false confession. penalty unless he confessed to the Phillips was convicted of of multiple crimes
crime. After two days of intense sexual assault and bur- and exposed many
questioning and threats, Ochoa eventually gave the glary based largely on the
police what they wanted. He signed a confession writ- eyewitness accounts, and investigative errors.

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he was sentenced to forty years in prison. The victim was shown a physical lineup one
In 2007, post-conviction DNA testing on the month after the photo lineup in which Pope was the
biological material from the Dallas case cleared only man who had the blonde hair and tan skin de-
Phillips of the sexual assault and burglary charges. scribed by the victim. The victim identified Pope as
Because police and prosecutors believed the same her attacker.
person committed all the crimes, the Court of In 1986, Pope was convicted of aggravated sex-
Criminal Appeals fully exonerated Phillips on Au- ual assault and sentenced to forty-five years in pris-
gust 5, 2008. on. The prosecution’s case rested primarily on the
A reinvestigation of the case revealed that Kan- victim’s identification of Pope from the live lineup
sas City police had previously identified another and expert testimony about “voice print analysis”
suspect, Sydney Alvin Goodyear, and notified the that was said to match Pope’s voice to the taped calls
Dallas police. At least one Dallas victim identified made to the victim. The victim testified at trial that
Goodyear from a photo lineup, and a warrant had she not only recognized him as her attacker, but also
been issued for his arrest prior to Dallas police fo- that she could unequivocally identify his voice.
cusing on Phillips. This exculpatory information In January of 1999, prosecutors received an
was never disclosed to Phillips’ defense. anonymous tip that someone else had committed
Because of misconduct and mistaken eyewitness the crime. By that time, voice print analysis was no
identifications, Steven Charles Phillips spent twenty- longer considered reliable evidence, and prosecu-
six years in prison for crimes he did not commit. tors decided the anonymous tip warranted serious
consideration. Post-conviction DNA testing proved
Pope’s innocence and identified the true perpetrator:
David Shawn Pope a convicted rapist imprisoned in another state. Pope
was granted an official pardon by Governor Rick
Perry in February 2001.
Because of faulty forensic evidence and a mis-
taken eyewitness identification, David Shawn Pope
spent fifteen years in prison for a crime he did not
commit.

Ricardo Rachell
Dallas Morning News

T he 2002 sexual assault conviction of Ricardo


Rachell rested solely on testimony from the
eight-year-old victim and a friend
DNA testing
proved David I n August 1985, a wom-
an who lived in David
Shawn Pope’s apartment
who was with the boy before the at- Ricardo Rachell
tack. Police relied so heavily on the
identifications made by the victim spent six years in
Pope’s innocence complex was sexually and his friend that they did not con- prison while the
fifteen years after assaulted at knifepoint. duct DNA testing on either the bio- biological evidence
he was wrongfully Police included a pho- logical evidence collected in the case that would
to of Pope in a photo or on the reference sample voluntarily
convicted based lineup presented to the provided by Rachell. exonerate him
on junk science. victim. Even though the Although both the victim and sat untested in a
victim did not identify his friend identified Rachell, it is dif- Houston crime lab.
Pope as her attacker, police suspected him based ficult to understand how this identi-
on the sound of his voice. In the days after the at- fication held up in court because Rachell’s face was
tack, the victim received several threatening phone significantly disfigured in a shotgun accident years
calls from her attacker. In addition to an answering ago, making it difficult for him to talk. The victim’s
machine message, police recorded a phone call from friend told police that the man spoke clearly. Rachell
the attacker lasting about ten minutes. took the stand in his own defense and demonstrated

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that the gunshot wound had left him with a signifi- own test, they still did not believe Robinson to be
cant speech impediment. Despite these discrepan- an innocent man. The DA’s office argued that the
cies, Rachell was convicted and sentenced to forty semen came from an unknown man with whom the
years in prison. victim had consensual sex and that Robinson still
In October of 2008, DNA testing established had something to do with the crime. There was no
that Rachell could not have committed the crime evidence to back up this theory.
and Harris county prosecutors endorsed the rever- On November 7, 2000, the Texas Board of Par-
sal of his conviction. dons and Paroles unanimously voted to recom-
Because of two mistaken eyewitness identifica- mend Robinson’s pardon, and he was granted an
tions and the failure to disclose DNA evidence, Ri- official pardon by Governor George W. Bush seven
cardo Rachell spent six years in prison for a crime days later. After spending a decade behind bars for
he did not commit. a crime he did not commit, Robinson went back to
school and received his law degree from the Thur-
good Marshall School of Law at Texas Southern
Anthony Robinson University.
Because of a mistaken eyewitness identifica-
tion, Anthony Robinson spent ten years in prison
for a crime he did not commit.
Greg Kendall-Ball / Innocence Project of Texas

George Rodriguez
F ollowing her 1987 abduction and sexual assault,
a fourteen-year-old Houston girl gave police
basic descriptions of the two perpetrators. The vic-
tim said that one of her attackers called the other
“George,” though she told police that she believed
it was a fake name. Based on the victim’s descrip-
tion of the house where
Anthony Robinson
spent ten years in
I n 1986, Anthony Robinson,
a twenty-six-year-old college
graduate and U.S. Army veteran,
the crime occurred and George Rodriguez
the surrounding area, po- spent seventeen
lice went to the home of
prison due to a was put on trial for the rape of a Manuel and Uvaldo Bel- years in prison
mistaken eyewitness University of Houston woman. tran. George Rodriguez after compelling
identification. The victim told police that her became a suspect in the evidence of
attacker was a black man with a case because he was an ac- his innocence
moustache wearing a plaid shirt. That same day Rob- quaintance of one of the
inson was on campus picking up a car for a friend. Beltran brothers. was overlooked
Even though Robinson did not have a moustache, Police conducted a in favor of
police arrested him. Robinson was placed in a lineup photo lineup and the vic- a mistaken
and identified by the victim. Although no physical tim identified Rodriguez eyewitness.
evidence linked him to the crime, the victim’s confi- as one of the attackers.
dent identification led to Robinson’s conviction and Even though Manuel Beltran confessed to police
he was sentenced to twenty-seven years in prison. that he had sexually assaulted the girl and stated that
After being released on parole in 1997, Rob- Isidro Yanez was his accomplice, police continued to
inson took odd jobs to save enough money to hire focus on Rodriguez. In a one-person show-up, the
an attorney and pay for post-conviction DNA tests victim again identified Rodriguez as her attacker.
on the case’s biological material. On September The victim was also shown a collection of photos
19, 2000, DNA test results proved Robinson’s in- that included both Rodriguez and Yanez, but the
nocence. Even though the Harris County District victim again identified Rodriguez as her attacker.
Attorney’s Office confirmed the results with their At trial, a forensic analyst testified that a pubic

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hair found on the victim’s underwear was micro- attacker. Defense attorneys would later note that
scopically similar to Rodriguez’s hair, and that the Salazar was wearing a turquoise shirt in the second
semen from the rape kit could not exclude Rodri- picture the police showed the victim, the same color
guez as the perpetrator, and it could not belong to shirt from her description.
Yanez. Even though Rodriguez presented evidence Salazar voluntarily gave blood, saliva, and hair
that he was at work during the time of the crime, samples to prove his innocence, but the results of
Rodriguez was convicted of aggravated sexual as- the forensic testing could not exclude him as the
sault and kidnapping and sentenced to sixty years source of the semen found on the victim. At trial, a
in prison. forensic analyst testified that the blood typing char-
In 2004, DNA testing established that Rodri- acteristics found could only come from two percent
guez was not the source of the pubic hair found on of the Hispanic population which included Salazar.
the victim’s clothing, and Yanez could not be ex- Salazar was convicted of aggravated sexual assault
cluded. Further testing also established that Yanez and sentenced to thirty years in prison.
was mistyped by the Houston Crime Lab during Post-conviction DNA testing excluded Sala-
the initial testing and could not have been excluded zar as the source of the semen found on the vic-
as the source of the semen—directly contradicting tim. Two additional DNA tests were performed to
the forensic testimony at trial. Rodriguez’s convic- finally convince prosecutors and the parole board
tion was vacated in August 2005 and all charges that Salazar was indeed innocent. He was granted
were dismissed a month later. an official pardon by Governor George W. Bush on
Because of faulty forensic testimony and a mis- November 20, 1997.
taken eyewitness identification, George Rodriguez Because of a mistaken eyewitness identifica-
spent seventeen years in prison for a crime he did tion, Ben Salazar spent five years in prison for a
not commit. crime he did not commit.

Ben Salazar Billy James Smith


I n 1991, Ben Salazar’s
photo was chosen out of
a book of mug shots as the
B illy Smith became a suspect for rape and rob-
bery when his building manager requested he
step out on the balcony of Dallas County apartment
perpetrator of a rape fol- in 1986. The building manager’s girl-
lowing an attack in an Aus- friend stated that Smith was the man
tin home. The victim gave who had robbed and raped her two

Greg Kendall-Ball / Innocence Project of Texas


a detailed description of hours earlier and they immediately
her attacker — a Hispanic called police.
Clay Graham

male, in his late twenties to An extensive search of Smith’s


early thirties, between five belongings did not reveal any cloth-
Ben Salazar feet, five inches and five ing matching the description given
spent five years feet, seven inches tall and
weighing approximately
by the victim, nor did it turn up any
physical evidence tying him to the
in prison due 160 to 180 pounds, and crime. Despite the lack of evidence,
to a mistaken wearing a turquoise short- the case proceeded to trial. The pros-
eyewitness sleeved t-shirt and brown ecution argued that the victim had
work boots. Because she not had sex with anyone twenty-four Billy James Smith
identification. was certain she could iden- hours prior to the rape, and therefore, spent nineteen
tify her assailant, police showed her two books with the presence of semen in the rape kit
mug shots of Hispanic males and she picked Salazar must prove that a rape occurred. The
years in prison
as her attacker. prosecution then used the eyewitness due to a mistaken
Salazar agreed to go to the station to have his identification to solidify the case. eyewitness
picture taken. The victim viewed several new line- Although Smith and his sister identification.
ups and again identified Salazar’s new photo as her both testified that he was home dur-

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ing the time the crime occurred, he was convicted


of aggravated sexual assault and sentenced to life in
Ronald Gene Taylor
prison. Smith petitioned for post-conviction DNA
testing, but the prosecution argued that the semen
from the rape kit could belong to her live-in boy-
R onald Gene Taylor became a suspect in a 1993
rape in Houston when a neighbor told police
that he saw Taylor near the crime scene on the night
friend and as a result could not be probative. The of the attack. Police placed Taylor in a video lineup
argument was the exact opposite of the argument because the victim was unable to travel to the po-
made at trial, where prosecutors maintained that the lice station to view a live
presence of semen meant a rape occurred. lineup. After two viewings
Eventually, Smith was given access to testing of the lineup, the victim
that revealed he did not rape the victim. Smith was identified Taylor as her
released in July 2006 and officially exonerated on attacker.
December 13, 2006. At trial, the victim’s
Because of a mistaken eyewitness identification, identification testimony
Billy James Smith spent nineteen years in prison for was the primary evidence

Clay Graham
a crime he did not commit. against Taylor. When the
witness included new de-
tails that were not present
Josiah Sutton in her initial statement,
however, Taylor’s attorneys
Ronald Gene
Taylor spent
I n October 1998, the victim of an abduction and
rape in Houston initially described her attacker as
five feet, seven inches tall and weighed 135 pounds.
argued that police leaked
details of the investigation
to her and that her iden-
fourteen
years in prison
Even though he was six tification of Taylor was due to forensic
An eyewitness feet tall weighing 200 tainted. A forensic analyst work and a
pounds, Josiah Sutton from the Houston Police
identification was identified as the Department also testified mistaken
and false DNA perpetrator and was ar- for the prosecution stating eyewitness
testimony resulted rested. that there was no semen identification.
in the wrongful The Houston Crime on the sheets found at the
Lab compared DNA crime scene and Taylor could not be eliminated as a
conviction of samples from Sutton to suspect through DNA testing. Taylor was convicted
Josiah Sutton. the two DNA profiles and sentenced to sixty years in prison.
obtained from the bio- A re-examination of the sheets from the crime
logical evidence at the crime scene. According to the scene revealed that the sheets actually did contain
lab, Sutton’s DNA was a match. At trial, an analyst biological evidence that could be used to extract a
from the crime lab testified that the DNA match profile. Post-conviction DNA testing excluded Tay-
was solid—the DNA profile was shared by only one lor and revealed the identity of the true perpetrator,
person in almost 700,000. Sutton was convicted and Roosevelt Carroll. Carroll lived just a mile from the
sentenced to twenty-five years in prison. victim at the time of the attack and had already been
In 2002, journalists with KHOU-TV in Hous- convicted of two other rapes. He was serving a fifteen-
ton exposed pervasive flaws with the Houston Police year sentence for failing to register as a sex offender
Department Crime Lab, causing several cases to be when Taylor was finally exonerated. Unfortunately,
reexamined, including Sutton’s. Independent experts the statute of limitations had already passed on the
concluded that the forensic testimony at Sutton’s tri- 1993 rape case and Carroll could not be charged.
al was false. When the lab retested the evidence, the Taylor was released on October 9, 2007.
DNA results excluded Sutton as the perpetrator. Because of faulty forensic work and a mistaken
Because of faulty forensic testing, false forensic eyewitness identification, Taylor spent fourteen
testimony, and a mistaken eyewitness identification, years in prison for a crime he did not commit.
Sutton spent over four years in prison for a crime he
did not commit.

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THE JUSTICE PROJECT EDUCATION
FUND

Convicting the Innocent: Texas Justice Derailed

Victor Larue Thomas On appeal, Turner’s conviction was reversed


based on a prosecutorial error at trial. A higher

W hen a woman was raped during the robbery


of a Waxahachie convenience store in 1985,
Victor Larue Thomas was a suspect in an unrelated
court overruled that decision and Turner’s sentence
was reinstated.
Turner was paroled after spending four years
sexual assault that occurred in the area. Although in prison. In 2005, post-conviction DNA testing
their initial suspicions of Thomas in the unrelated proved Turner’s innocence and he received an of-
case were unsubstantiated and police did not pur- ficial pardon by Governor Rick Perry on December
sue that case against Thomas, he was taken in for 22, 2005.
questioning for the convenience store rape. Because of a mistaken eyewitness identifica-
Statements made by Thomas during his inter- tion, Keith Turner spent four years in prison for a
rogation eventually led police to suspect him in the crime he did not commit.
convenience store rape case. The victim identified
Thomas as her attacker, and he was arrested and
charged with robbery, kidnapping, and rape. Based
almost entirely on the victim’s in-court eyewitness
James Douglas Waller
identification, Thomas was convicted of all charges
and sentenced to life in prison.
Post-conviction DNA testing proved that Thom-
W hile shopping in a conve-
nience store in his neigh-
borhood, James Waller was identi-
as had not committed the crime, and he was released fied by a twelve-year-old boy as the
on June 27, 2001. The District Court Judge noted that man who had sexually assaulted
Thomas should never have been prosecuted. Thom- him in his family’s apartment. The
as was granted an official pardon by Governor Rick boy initially described the intruder

Greg Kendall-Ball / Innocence Project of Texas


Perry in 2002. as an African-American man who
Because of a mistaken eyewitness identification, wore a cowboy hat and a bandana
Victor Larue Thomas spent fifteen years in prison around the lower half of his face.
for a crime he did not commit. Waller and his family lived in the
same apartment complex and
were the only African-American
Keith E. Turner residents of the complex.
Police arrested Waller based
on the boy’s identification. The
Keith E. Turner apartment manager had also re-
spent four years ported seeing an unknown male Questionable voice and
in prison and with a cowboy hat and bandana.
eyewitness identifications
eight years on After the boy’s identification, the
apartment manager also identified put James Waller
parole after a rape
Dallas Morning News

Waller as the person she had seen. in prison for eleven


victim incorrectly At trial, the state’s case rested years for a crime
identified him. almost solely on the testimony of
he did not commit.
the two eyewitnesses. The victim

I n 1982, Keith Turner was wrongly identified as the


perpetrator of a Dallas coworker’s rape. The victim
called police when she thought she recognized Turn-
testified that he knew Waller was his attacker based
on Waller’s eyes and voice. The boy admitted that
he had been unable to see his assailant’s face. More-
er at work as her attacker. She also picked Turner out over, Waller was substantially taller and heavier than
of a lineup police arranged that same day. At trial, the the man described by the victim in his initial con-
victim testified that she could identify Turner based versation with the police. The apartment manager
on his basic physical appearance and the sound of his also identified Waller at trial as the man she spot-
voice. Turner provided an alibi for his whereabouts ted wearing the hat and bandana near the scene.
during the attack, but he was convicted of rape and However, her testimony was inconsistent with her
sentenced to twenty years in prison. original description because she had previously de-

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THE JUSTICE PROJECT EDUCATION
FUND

Convicting the Innocent: Texas Justice Derailed

scribed an “unknown” man and she knew Waller as it matched with Byron Demond Bell, a man who
a resident of the building. had been paroled in February of 2008 after serving
Despite the discrepancies in the identifications, fifteen years of a forty-five-year sentence for bur-
and alibi testimony given by Waller’s girlfriend, glary. When questioned, Bell admitted to the attack
Waller was convicted of aggravated sexual abuse and named Lemondo Simmons as his accomplice in
and sentenced to thirty years in prison. the crimes. Both men testified to their guilt in front
Waller was paroled in 1993 after spending of a grand jury, but neither would be prosecuted for
eleven years in prison and was required to register the crimes because the statute of limitations had
as a child sex offender. In 2003, post-conviction expired. Bell’s parole officer stated that the crimes
DNA tests were unable to extract a DNA profile would be taken into consideration if Bell ever vio-
from the small amount of biological evidence avail- lated the terms of his parole.
able, but Waller received permission to have previ- Because of mistaken eyewitness identifica-
ously unavailable advanced DNA testing conducted tions, Patrick Waller spent more than fifteen
on liquid extracts of the semen evidence that had years in prison for a crime he did not commit.
been preserved. In 2006, those results conclusively
proved that Waller did not commit the rape. Waller
was officially pardoned by Governor Rick Perry in
March 2007.
Gregory Wallis
Because of the mistaken eyewitness identifica-
tions in his case, James Douglas Waller spent eleven
years in prison for a crime he did not commit.
F our months after police circulated a flier and
composite sketch in a local jail about a 1988
sexual assault of an Irving woman, an inmate told
police that Gregory Wallis had a tattoo similar to
the description given by
Patrick Waller the victim. A photo of Gregory
Wallis was included in a Wallis spent

P atrick Waller was


identified by four vic-
tims as one of two attack-
photo lineup presented to
the victim and she identi-
eighteen years
fied Wallis as her attacker. in prison due
ers in a 1992 robbery and Investigators found no to a mistaken
sexual assault in Dallas. physical evidence linking eyewitness
Though all four victims Wallis to the attack.
identified Waller as one of Although biological
identification
Clay Graham

the attackers, one witness evidence was taken from the scene, forensic DNA
was not certain. Records analysis was not available at the time. At trial, the
indicate that the detective prosecution relied entirely on the victim’s eyewitness
pointed toward Waller’s testimony, and Wallis was convicted and sentenced
False eyewitness picture and said that two to fifty years in prison.
identifications other eyewitnesses had al- In 2004, DNA testing could not entirely ex-
sent Patrick ready identified Waller as clude Wallis as the attacker, but the test results had
Waller to prison the perpetrator. Even so, cast enough doubt to motivate prosecutors to offer
for over fifteen the eyewitness remained
uncertain and did not tes-
a deal. Prosecutors offered Wallis his freedom if he
agreed to spend the rest of his life as a registered
years. tify at trial. sex offender. Wallis refused and remained in prison.
Waller was convicted A few months later, a more sophisticated DNA test
of aggravated robbery and sentenced to life in prison. proved that Wallis was not the perpetrator. Wallis
He pled guilty to two counts of kidnapping to avoid was released in March 2006.
more jail time, but he proclaimed his innocence Because of a mistaken eyewitness identifica-
throughout his appeals. tion, Gregory Wallis spent eighteen years in prison
In June of 2008, DNA testing excluded Waller for a crime he did not commit.
in the crime. Investigators ran the DNA profile from
the crime scene through the state DNA database and

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THE JUSTICE PROJECT EDUCATION
FUND

Convicting the Innocent: Texas Justice Derailed

Calvin Washington James Lee Woodard


J ailhouse informants provided damaging testi-
mony against Calvin Washington and Joe Syd-
ney Williams for the March 1986 rape and murder
J ames Lee Woodard quickly became a suspect in
the December, 1980 rape and murder of his for-
mer girlfriend, Beverly Ann Jones. Woodard was
of Juanita White of Waco. One man testified that taken into custody on New Year’s Day.
he walked past a hotel room in the middle of the Two eyewitnesses placed Woodard with the
night and overheard Williams and Washington im- victim close to the time when the crime occurred,
plicating themselves. Several other witnesses testi- but there was no evidence that tied Woodard to the
fied that Washington and Williams were spotted crime. The defense provided
in the victim’s car after the murder and that they two alibi witnesses who stated
had sold some of her property. The testimony of a that Woodard had been thirty
dental expert, Homer Campbell, who claimed that miles away from the scene on
the marks on the victim’s body were bite marks that the night of the murder. Wo-
matched Williams’ teeth, helped convict both men. odard was convicted and sen-

Dallas Morning News


Williams’ conviction was overturned on direct ap- tenced to life in prison.
peal, and he was released when the prosecutor de- DNA testing excluded
clined to retry him. Woodard as the perpetrator of
Washington remained in prison. He was re- the sexual assault, but because
leased when post-conviction DNA testing showed the other charge against him
that blood found on a shirt in Washington’s home was murder, he needed to prove James Lee Woodard
was not the victim’s, as the prosecutor had alleged. that the same person commit- spent twenty-seven
Also, DNA found on the victim implicated another ted both crimes. years in prison due
man, Bennie Carroll, who had previously confessed An investigation by Wo-
to raping Juanita White’s next door neighbor prior odard’s lawyers revealed that to prosecutorial
to committing suicide. the Dallas County prosecutors misconduct and two
Because of unreliable jailhouse informants, withheld key evidence from the mistaken eyewitness
Calvin Washington spent thirteen years in prison defense in 1981. Several days identifications.
for a crime he did not commit. before Woodard’s trial, authori-
ties learned that three men had been with the victim
on the night of her death: a man told investigators
Mark Webb he went with Jones to a South Dallas convenience
store where she got into another car with three men

M ark Webb was wrongfully convicted of a 1985


rape based on the victim’s mistaken eyewit-
ness identification.
and left. He could not identify the car or the men
in question. In addition, police neglected to inves-
tigate the three men as suspects, even though one
Although biological evidence from the crime was in prison on a charge of aggravated rape during
scene was tested and the results were presented in Woodard’s trial. This finding, along with a forensic
court, the tests at the time were not sophisticated pathologist’s conclusion that the rape and murder
enough to exclude Webb as the attacker. The tests “were tied together in such a way that the rape re-
also could not exclude a large portion of the rest of sults would conclusively show who the perpetrator
the population. The defense called several alibi wit- was,” helped prove Woodard’s innocence. Woodard
nesses who testified that Webb was at work at the was released on April 29, 2008.
time of the crime. Unfortunately, the eyewitness Because of two mistaken eyewitness identifi-
identification held more weight with the jury, and cations and prosecutorial misconduct, James Lee
Webb was convicted of rape and sentenced to thirty Woodard spent twenty-seven years in prison for a
years in prison. In 2001, post-conviction DNA test- crime he did not commit, more time than any other
ing proved Webb’s innocence. DNA exoneree in the country.
Because of a mistaken eyewitness identifica-
tion, Mark Webb spent thirteen years in prison for a
crime he did not commit.

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THE JUSTICE PROJECT EDUCATION
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Convicting the Innocent: Texas Justice Derailed

The Texas DNA Exonerated

Mistaken Eyewitness

Exculpatory Evidence
Unreliable or Limited

Jailhouse Informant

or Other Misconduct

Approximate Years
Forensic Methods

False Confession
Year Exonerated

Faulty Forensic
Year Convicted

Suppression of
& Accomplice
Identification

Testimony

Testimony

in Prison
County

or Plea
Crime
Last Name First Name
Alejandro Gilbert 1990 1994 Uvalde rape P P 4
Blair Michael Nawee 1994 2008 Collin rape, murder P P P 14
Butler A.B. 1983 2000 Smith rape, kidnapping P 17
Byrd Kevin 1985 1997 Harris rape P P 12
Chatman Charles 1981 2007 Dallas rape P P 27
Cole* Timothy Brian 1986 2008 Lubbock rape P P P 13*
Criner Roy 1990 2000 Montgomery rape, murder P 10
Danziger Richard 1990 2001 Travis rape, murder P P P 12
Fountain Wiley 1986 2003 Dallas rape P 16
Fuller Larry 1981 2006 Dallas rape P P 20
Giles James Curtis 1983 2007 Dallas rape P P 10
Good Donald 1984 2004 Dallas rape P P P 10
Gossett Andrew 2000 2007 Dallas rape P 7
Henton Eugene 1984 2006 Dallas rape P P 2
Karage Entre Nax 1997 2004 Dallas murder 7
Lavernia Carlos 1985 2000 Travis rape P 16
Lindsey Johnnie Earl 1983 2008 Dallas rape P 26
McGowan Thomas 1985 2008 Dallas rape, burglary P 23
Miller Billy Wayne 1984 2006 Dallas rape P 22
Moon Brandon 1988 2005 El Paso rape P P P 17
Mumphrey Arthur 1986 2006 Montgomery rape P 18
Ochoa Christopher 1989 2001 Travis murder P 12
Phillips Steven Charles 1983 2007 Dallas rape, burglary P P P P 26
Pope David Shawn 1986 2001 Dallas rape P P 15
Rachell Ricardo 2003 2008 Harris child sex assault P P 6
Robinson Anthony 1987 2000 Harris rape P 10
Rodriguez George 1987 2004 Harris rape, kidnapping P P P P 17
Salazar Ben 1992 1997 Travis rape P P 5
Smith Billy James 1987 2006 Dallas rape P 19
Sutton Josiah 1999 2004 Harris rape P P 4
Taylor Ronald 1995 2007 Harris rape P P 14
Thomas Victor Larue 1986 2002 Ellis rape P 15
Turner Keith E. 1983 2005 Dallas rape P 4
Waller James 1983 2007 Dallas rape P 11
Waller Patrick 1992 2008 Dallas robbery, kidnapping P P 16
Wallis Gregory 1989 2007 Dallas rape P 18
Washington Calvin 1987 2001 McLennan rape, murder P P 13
Webb Mark 1987 2001 Tarrant rape P 13
Woodard James Lee 1981 2008 Dallas murder, rape P P 27
TOTALS 33 7 11 5 5 7 548
*Died in prison in 1999
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“Law’s evolution is never done,
and for every improvement made
there is another reform that is overdue.”
— J ustice W illiam J. B rennan , J r .

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Convicting the Innocent:
T e x a s J u s tic e D e r a i l e d
Stories of Injustice and the Reforms
That Can Prevent Them

Texas has had more wrongful convictions exposed


by DNA evidence than any other state in the country.
The thirty-nine cases in this report—all of which
have been exposed by DNA evidence—highlight the
systemic problems that have resulted in the wrongful
convictions of the innocent. By identifying the causes
of wrongful convictions and implementing practical
reforms, Texas can increase the fairness, accuracy,
and reliability of its criminal justice system.

THE JUSTICE PROJECT EDUCATION


FUND

510 S. Congress Avenue, Suite #304 1025 Vermont Avenue, NW, Third Floor
Austin, TX 78704 Washington, DC 20005
(512) 391-2320 (202) 638-5855
Fax: (512) 391-2330 Fax: (202) 638-6056
www.thejusticeproject.org/state/texas www.thejusticeproject.org

40801.indd 30 3/11/09 8:09:15 PM

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