innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, August 30, 2006

Asking a Rottweiler to Purr

This op-ed piece ran in the Hosuton Chronicle on August 30, 2006.
Asking a Rottweiler to purr

By RICK CASEY
Copyright 2006 Houston Chronicle

A statement by District Attorney Chuck Rosenthal in yesterday's front-page story about his decision not to prosecute Brandy Del Briggs a second time raises a $125,000 question.

Briggs had spent five years in prison before the Texas Court of Criminal Appeals last year threw out her conviction in the 1999 death of her 2-month-old baby.

The DA's office took eight months to reinvestigate the case before deciding not to prosecute her again.

"It's not a situation where I can say she's completely innocent," Rosenthal said. "It's a situation where we can't prove our case."

His second sentence is probably an understatement.

Briggs pleaded guilty in 2000 to a reduced charge of second-degree injury to a child. The plea came under pressure, she says, from her attorney.

He had told her he needed more money — money she didn't have — to hire experts to fight the prosecution's case. She says he told her she would receive probation under the plea bargain (something he denies) and avoid a possible life sentence if she lost her case to a jury.
She was sentenced to 17 years.

Autopsy finding reversedBriggs had told authorities that she found her baby lifeless in his bed and, in a panic, shook him to try to wake him. He died in a hospital a week later.

But an autopsy by then-Assistant Medical Examiner Patricia Moore found evidence of head trauma and ruled the baby's death a homicide.

A later investigation by the Houston Chronicle found Moore had been criticized by her boss for being prosecution-oriented and who reminded her "that our office is neutral and that we are not doing cases for the DA's office," according to an internal memo.

In 2000, after Briggs found a lawyer who would fight for her, Medical Examiner Dr. Luis Sanchez reviewed Moore's work on the Briggs case and found the evidence did not support her conclusion. He changed the cause of death to "undetermined."

A similar change of a Moore ruling was made in at least one other baby death.

No evidence of traumaOther problematic issues turned up. The baby had a urinary tract birth defect that may have caused sepsis, a severe infection of the blood.
He had been in an auto accident.

When he was taken to a hospital, a breathing tube was accidentally guided into his stomach rather than his lungs. The mistake wasn't found for 30 minutes, resulting in severe brain damage from lack of oxygen.

Finally, a pediatric pathologist hired by DA Rosenthal's office reviewed the autopsy report and brain scans and found no evidence of head trauma or of "shaken baby syndrome."

No wonder Rosenthal decided not to go to a jury with this case. Twelve people, honest and true, would have blasted prosecutors for wasting their time.

Under our legal standards, Briggs is not guilty.

Texas, like many states, has a law providing compensation to innocent people who have been wrongly imprisoned. It provides $25,000 per year of incarceration.

But unlike any other state, our law provides not only that the courts overturn a wrongful conviction but that the district attorney whose office won the conviction certify in writing that the person is innocent.

The problem is that the average district attorney doesn't have a gene that looks for innocence. It's not his vocation. It's not his personality. He is geared only to see if there's enough evidence to convict.

Asking a district attorney to declare a person innocent is like asking a Rottweiler to purr.

It's an even tougher hurdle to ask him to admit he sent an innocent person to prison. That's true even in a case such as this one, in which the wrongful conviction appears to be because of a poor defense, not prosecutorial overaggressiveness.

State Sen. Rodney Ellis, who has spearheaded compensation legislation, says the provision was apparently inserted into a lengthy bill in 2003 by someone in Comptroller Carole Keeton Strayhorn's office, and nobody noticed.

"I don't think Strayhorn had anything to do with it," he said. "I think a staffer wanted to protect her from the Willie Horton syndrome."

He referred to an infamous 1988 political ad blaming presidential candidate Michael Dukakis for a rape committed by a convicted murderer who had been furloughed from prison.

Ellis nearly removed the provision requiring the DA's certification last year, but the bill was blocked at the last minute by a fellow senator who was angry with him.

"I'm optimistic we can pass it next year," he said. "The district attorneys didn't testify against it."

Why should they? They didn't ask to be part of the innocence process, and they don't deserve to be asked to go against their nature.

You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at rick.casey@chron.com.

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