Old cases back to haunt Texas county

This article appeared in the Dallas Morning News on January 22, 2007:

Old cases back to haunt county
Why were exonerated convicts found guilty to begin with?

By STEVE McGONIGLE
The Dallas Morning News

Dallas County's emergence as a national leader in DNA exonerations of wrongfully convicted men raises fresh questions about the quality of justice the court system has dispensed over the past three decades.

Whether 12 innocent lives were shattered because of honest human error or overreaching by prosecutors remains to be determined. Craig Watkins, the county's new district attorney, said last week that he would investigate.

But, ironically, the high number of exonerations would not have occurred had Dallas County not had a policy of preserving – sometimes for more than 20 years – the biological evidence required for genetic testing.

Case reviews are a hard sell in Texas
Graphic: Dallas County is a leader in post-conviction DNA testing

Dallas has had more DNA exonerations than any other county in the U.S. – 12 since 2001, according to the Innocence Project, a New York-based nonprofit legal clinic dedicated to freeing those wrongfully convicted. The county accounts for half of Texas' 24 DNA exonerations, the group said. By comparison, Illinois has had 26 DNA exonerations and New York state 21.

The latest example of new DNA tests overturning old cases came last week for 50-year-old James Waller, who was convicted of raping a 12-year-old boy in 1982 – a crime he said he never committed. State District Judge John Creuzot apologized at Mr. Waller's hearing and said he anticipated one more DNA exoneration in his court.

Barry Scheck, the New York attorney who co-founded the Innocence Project, said Dallas County's rate of wrongful convictions was "very, very high," but he could not explain the reasons for it.

"It could be something as simple as we find the evidence more here," Mr. Scheck said after the hearing.

"I suspect other cities could have numbers that high if we could find other evidence," he added.

Keep everything

The lack of evidence available for testing around the country is routinely cited by advocates as one of the biggest obstacles to winning exonerations. More than half the time, evidence has been lost or destroyed.

But with the district attorney's backing, Dallas County's forensic lab long ago established a policy to maintain evidence indefinitely. The policy existed for at least a dozen years before state law lengthened the time biological evidence had to be retained.

Dr. Tim Sliter, chief of physical evidence at the county-run Southwest Institute of Forensic Sciences, estimated his lab has at least seven freezers full of rape kits and other biological evidence, each containing 10,000 samples dating to the early 1980s.

The lab has a policy of never consuming a sample in a DNA test, and it never destroys evidence. "It's basically just good practice," Dr. Sliter said.

John Rolater, who until recently handled post-conviction DNA applications for the district attorney's appellate section, said the approach to evidence was "keep everything forever" in case it might be needed for a retrial.

"It was more of a law enforcement motive, but it turns out to benefit everybody," said Mr. Rolater, now an assistant district attorney in Collin County.

Ten of the 12 Dallas County convictions invalidated by DNA occurred in or before 1989, when the first exoneration in the country took place in Chicago.

No state or local law enforcement agency is required to keep statistics on how often evidence has been available for DNA testing by those convicted.

Records of the Texas Department of Public Safety, which conducts the bulk of post-conviction DNA tests around the state, show that Dallas County cases accounted for 26 of the 112 tests processed since 1999 – twice the number of more populous Harris County. The DPS statistics do not explain the differences in numbers between counties.

Including work by private labs, 32 Dallas County cases have undergone post-conviction DNA testing, the district attorney's office said. Twelve produced exonerations, nine affirmed the defendant's guilt, and six are pending. Tests in five cases were inconclusive.

The cases where testing was ordered represent about 7 percent of the 464 applications submitted to Dallas County felony court judges since passage of a 2001 law that allowed for post-conviction genetic analysis.

To be granted a test, the law requires a convicted person to prove that identification was an element in his or her case, that evidence for DNA testing still exists and that the evidence, if known at the time, would have prevented the conviction.

Defense attorneys have complained that the law places too heavy a burden of proof on those convicted and that prosecutors routinely object to testing requests, which can effectively delay action, sometimes for years.

David Dow, director of the Innocence Network at the University of Houston Law Center, estimated thousands of felons have applied for genetic tests but said less than 100 of those applications have been granted by the courts.

"It's not that a lot have been denied," Mr. Dow said. "A lot of these cases sit there, and there's nobody there to move them."

Mr. Dow characterized the 12 DNA exonerations in Dallas as a "staggering" number. But he would not predict a larger number of wrongful convictions in Dallas County than any other jurisdiction. It's just that in Dallas "the evidence exists, and the judges are ordering testing," he said.

Criticism of prosecutors

The dozen Dallas County convictions overturned by DNA over the past six years involve sexual assault or murder cases prosecuted between 1981 and 2000.

A common thread in each is an eyewitness identification corroborated by little or shaky forensic evidence and no DNA test.

According to Mr. Scheck, eyewitness identifications are a crucial factor in about 75 percent of all wrongful convictions overturned by post-conviction DNA evidence.

Nine of the cases were prosecuted during the last four years of Henry Wade's legendary tenure as district attorney, which ended in 1986. His office had a national reputation for hardball tactics, high conviction rates and stiff punishment pleas.

Critics often alleged that Mr. Wade's prosecutors prized conviction rates over their oaths to uphold justice – a charge the DA's office routinely denied.

The first in a series of nationally publicized, non-DNA exonerations – the case of convicted robber Lenell Geter – came to light during Mr. Wade's final year in office. That case was soon followed by those of Randall Dale Adams, a convicted cop killer, and Joyce Ann Brown, a convicted robber. All were prosecuted under Mr. Wade and involved witness testimony that was later discredited.

Randy Schaffer, a Houston defense attorney who represented both Mr. Adams and Mr. Waller, contended a win-at-all-costs attitude of prosecutors is coming back to haunt Dallas County.

"The pool of applicants [for DNA testing] is that much larger because there were so many dirty prosecutions," Mr. Schaffer said.

Mr. Wade's successors, John Vance and Bill Hill, worked as prosecutors in his office and openly admired the folksy, cigar-chewing icon known as "The Chief." Both continued many of Mr. Wade's policies but vowed not to tolerate outlaw prosecutors.

Two DNA exonerations occurred on Mr. Vance's term; one was on Mr. Hill's.
Toby Shook was an assistant under all three men. He conceded that some prosecutors could be close-minded and that many believed in eyewitness identifications. But the Dallas office was not that different from most other prosecution offices, he said.

"I never knew of anybody that would willingly try to prosecute innocent people," said Mr. Shook, who left for private practice after losing the district attorney's race.

Mr. Watkins, who became the county's first black district attorney when he was sworn in Jan. 1, has never worked in the office. He campaigned on a pledge to restore credibility to the prosecutor's office.

Mr. Watkins was present in court last week when Mr. Waller was exonerated, as well as on Jan. 2 for the DNA exoneration of Andrew Gossett. He apologized to both men, an act that veteran observers of wrongful conviction cases called unprecedented.

He, too, wonders how many more wrongful convictions may surface.

"When you look at the facts of all the folks exonerated, you have to question whether past administrations had the best interests of the citizens in mind," he said. "I would hope that they did, but it may have been that they were overzealous."

Mr. Watkins said he plans to have the 12 exonerations reviewed to see if any patterns emerge. If they do, he may order a broader review of cases where DNA evidence could have made a difference in the outcome.

Jeff Blackburn, another of Mr. Waller's attorneys and a director of the Texas Innocence Project, said he is encouraged by Mr. Watkins' apparent willingness to give serious consideration to requests for post-conviction DNA tests.

"I think if you are wrongly convicted, Dallas is a good place to be," he said.

Staff writer Robert Tharp contributed to this report.
E-mail smcgonigle@dallasnews.com

County's Record of Misdeeds
DNA testing has exonerated a dozen Dallas County men since 2001.

DAVID SHAWN POPE, 45, was sentenced to 45 years in prison in the 1986 rape of a Garland woman. The victim in the case testified that a man matching Mr. Pope's description broke into her Garland apartment before dawn in July 1985, threatened her with a knife and raped her.

Mr. Pope had lived in the same apartment complex but was evicted about a month before the attack and at times had slept in his car on the apartment grounds. The woman failed to identify him in a photo lineup but later picked him out of a live lineup. Prosecutors also used "voice print analysis" to link Mr. Pope's voice to messages left on the woman's answering machine in the weeks after the attack. That technology has since come into question and is no longer used in court. Prosecutors voluntarily sought to retest evidence from Mr. Pope's case after an anonymous tipster in January 1999 cast doubt on his guilt. After he spent 15 years in prison, a 2001 DNA test exonerated him and identified a convicted rapist imprisoned in another state as the true attacker.

WILEY FOUNTAIN, 50, was sentenced to 40 years in prison in the rape of a pregnant woman in 1986. The woman picked Mr. Fountain out of a photo lineup and said he was the one who dragged her from a bus stop near Fair Park and raped her at knifepoint. At the time of his arrest, Mr. Fountain was on parole for a 1983 burglary conviction. He was paroled in 2001 after serving 15 years and was sent back to prison because he had failed to find a job and pay fees as a registered sex offender. After first seeking a DNA test in 2000, he was finally released two years later after two DNA tests supported his innocence. He was pardoned in 2003.

KEITH E. TURNER, 45, was sentenced to 20 years in prison after the 1982 rape of a co-worker. Although Mr. Turner provided an alibi, he was convicted in a 1983 trial after the woman identified him visually and by his voice. Mr. Turner served four years in prison and was on parole in 2005 when he was cleared by a DNA test and pardoned.

ENTRE NAX KARAGE, 36, was convicted in a nonjury trial and sentenced to life in prison in 1997 in the 1994 murder of his 14-year-old girlfriend. DNA was not an issue in his trial because prosecutors had theorized that Mr. Karage had beaten and strangled his girlfriend with a coat hanger after finding her having sex with another man. Her body was found in a creek behind an Old East Dallas grocery store. Mr. Karage was unable to provide a solid alibi, and police found the girl's blood inside his car, which she had been driving. Mr. Karage was exonerated after a DNA test linked evidence from the crime to a man convicted of a similar crime. He was pardoned in 2005.

EUGENE IVORY HENTON, 40, took a plea bargain offer and pleaded guilty to a 1984 sex assault charge in exchange for a four-year prison sentence. He was 17 when he was arrested after a woman said that a stranger broke into her home and raped her. The woman said that although the attacker wore a mask she could identify him because he stayed in her home a long time. She also said she watched the attacker from her window waiting at a bus stop and later identified Mr. Henton as the attacker. He was paroled after 18 months and was later convicted of two separate felony charges. Because of his status as a paroled sex offender, the judge stacked his new prison sentences: 20 years for aggravated assault and 42 years for drug possession. While in prison on the new charges, he continued to pursue exoneration, and a 2005 DNA test concluded that he was not guilty of the rape charge.

DONALD WAYNE GOOD, 46, was sentenced to life in prison in a 1983 sexual assault. Mr. Good was arrested and accused of breaking into an Irving home, tying up a young girl and raping her mother. The woman identified Mr. Good in a photo lineup. Mr. Good has alleged in a federal lawsuit that Irving police distorted his photo to increase the chances that the woman would identify him. He was paroled in 1993 as a sex offender but was sent back to prison in 2002 for a minor property crime and his life sentence was reinstated. He was exonerated of the rape charge by DNA analysis in 2004, but he is still serving a five-year sentence for the property crime.

BILLY WAYNE MILLER, 54, was sentenced to life in prison in the abduction and sexual assault of a Dallas woman in 1983. At the time of his arrest, Mr. Miller lived near where the attack occurred and was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store robbery. The victim in the sexual assault case later identified Mr. Miller as her attacker. A 2005 DNA test cleared Mr. Miller, and he was pardoned in December 2006.

BILLY JAMES SMITH, 54, was sentenced to life in prison in a 1986 aggravated sexual assault in which a woman was raped at knifepoint. He was convicted even though there was no eyewitness who could identify him as the attacker and detectives found no physical evidence implicating him. The woman's boyfriend identified him as the attacker, but he was not present when the attack occurred. Mr. Smith had an alibi that was supported by his sister at trial. He first requested DNA testing in 2001 but was not granted a test until 2005. Those test results set him free in July 2006 after he had spent 19 years in prison.

GREG WALLIS, 47, was sentenced to 50 years in prison in the 1988 sexual assault of an Irving woman. The woman identified Mr. Wallis as the man who talked his way into her condo and raped and assaulted her. Four months later a confidential informant in jail told police that Mr. Wallis had a tattoo similar to one described by the victim. The woman later picked him from a photo lineup. At trial, Mr. Wallis' wife testified that he had been with her at the time of the assault. A 2005 DNA test could not entirely rule out Mr. Wallis as the rapist, and he rejected an offer that would have freed him from prison provided that he register as a sex offender for life. A second test in 2006 proved that Mr. Wallis was not responsible for the attack, and he was released after 18 years in prison.

LARRY FULLER, 58, was sentenced to 50 years in prison in 1981 in the aggravated sexual assault of a Dallas woman. The victim said she woke up to find an intruder in her house straddling her with a knife in his hand. The victim initially told police that she could not provide a detailed description of her attacker because the assault occurred in the dark. She later picked Mr. Fuller, a 32-year-old Vietnam veteran, as the suspect only after she was presented with two photo lineups in which his picture was the only one present in both lineups. In his trial, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime. Mr. Fuller first contacted the Innocence Project in the mid-1990s. A 2003 DNA test was inconclusive, but a 2006 test ruled him out as the assailant and he was released.

ANDREW GOSSETT, 46, was sentenced to 50 years in prison in the 1999 sexual assault of a Dallas woman. The victim was abducted from her car in Garland and sexually assaulted. Mr. Gossett became a suspect because he matched a general description of the rapist, and he was seen at a convenience store near where the attack occurred. The victim later picked him from a photo lineup, although her descriptions of the attacker in statements to police and at her trial were inconsistent. Mr. Gossett passed a polygraph test, but such tests can't be used as evidence in a trial. Mr. Gossett began seeking a DNA test in 2001. Test results in December 2006 concluded that he was innocent, and he was released in January.

JAMES DOUGLAS WALLER, 50, was convicted in 1983 and sentenced to 30 years in prison after being accused of breaking into an Old East Dallas apartment and raping a 12-year-old boy. The boy said his attacker was wearing a cowboy hat and had a bandanna over his face, but the following day he believed he recognized Mr. Waller's voice and eyes as the attacker's. Mr. Waller, who was significantly taller and heavier than the boy's initial description, lived in the same apartment complex. Jurors in his trial deliberated less than an hour before convicting him. A 2003 DNA analysis was inconclusive, but a 2006 test concluded that Mr. Waller isn't the man who raped the boy.

Compiled by staff writer Robert Tharp
SOURCES: Dallas County court records; Innocence Project