Innocent on Texas Death Row

While working on my not-quite-ready-for-primetime book on Rick Perry, I ran each of the people on Texas death row through my coarse filter. Of the 300+ cases I reviewed, I found 23 that I think have a reasonable possibility of being factually innocent. I've listed the 23 below, in order of their last name. I've included with each a one-paragraph summary of the case.

In addition to Larry Swearingen and Hank Skinner, of whom I have written extensively, three cases struck me as particularly interesting.

The Delma Banks case has elements of both Byron Case and Larry Swearingen. The time of death indicators (which I understand because of my work with Byron Case) prove that Delma Banks could not have committed the crime. In both the Banks and Swearingen cases, the state provided the defendant an alibi. In Swearingen's case, the State had him in jail when the science said the victim died. In the Banks case, the State's own informants placed Banks far from the crime scene when the science said the victim died.

The Darlie Routier case struck me as more interesting this time around. I've read about it before, but was generally unpersuaded by her claims of innocence. However, I listened this time to the call she placed to 911. I'm not claiming that someone can't fake a such a call, though the Melendez brothers couldn't. And I'm not claiming that I could detect a good fake. Listening to the call, however, tended to make me believe her more than I had previously. You can listen to the call here.

Also, with respect to Routier, I now notice a claim that (at least some of) the state investigators took the Fifth during their cross-examination by Routier's attorneys. That makes me suspicious as hell since the case against her consists of inconsistencies between her story and the evidence as compiled and told by the investigators. I need to know a lot more about Routier's case before taking a firm position, but I admit to being more curious now.

The third case of particular interest to me at the moment is Preston Hughes III. A reader took me up on my request that one of you look into that case, and he has delivered a first draft of his findings. We both agree he has more work to do, but that is another interesting case.

Without further ado, I present my list of 23 people on Texas death row who I believe might be factually innocent.

Delma Banks, Jr.
Based on the victim's state of rigor and the victim's lack of corneal cloudiness, the victim in this case was murdered when Delma Banks was 180 miles away from the crime scene. The State simply failed to attribute any significance to the time-of-death indicators.

Lester Leroy Bower
Lester Bower is accused of killing four people, execution-style, in an aircraft hanger. There were no fingerprints, no witnesses, no murder weapon, and no confession to place him at scene of the crime. Four alternative suspects were identified post-conviction by an ex-girlfriend of one of them. Bower's defense has been attempting secure evidence from the State to see if items from crime scene include DNA from any of the alternative suspects.

Alfred Dewayne Brown

Brown is accused of being the third culprit in a store robbery that led to the death of two police officers. He was convicted primarily on the testimony of an accomplice who escaped the death penalty for his testimony. The accomplice testimony was corroborated by a jailhouse snitch who was released almost immediately after claiming Brown had confessed to her.  [UPDATE: Exculpatory evidence has recently been discovered in the garage of one of the homicide investigators who investigated the case.]

David Lynn Carpenter

Carpenter was accused of slashing a woman's throat for hire. He was convicted based on the testimony of his ex-girlfriend and a tainted photo lineup conducted seven years after the crime.

Cesar Fierro

Cesar Fierro was accused of murdering a cab driver in the border town of El Paso. He was convicted based primarily on his confession. To force Fierro to confess, the El Paso police coordinated with the police in Juarez, Mexico. The Juarez police took Fierro's parents into custody and threatened to torture them unless Fierro confessed. The appellate courts agreed that Fierro's confession was extracted by threats of torture, but declared the police behavior to be a harmless error.

Charles Don Flores

Flores was accused of killing an elderly woman during a home invasion robbery. He was convicted based on purchased testimony and on a photo lineup ID made by a woman. The woman could identify Flores only after being subjected to hypnosis.

Tony Egbuna Ford

Ford was accused of committing murder during a home invasion robbery. He was convicted based on being selected from a photo line-up by two surviving victims of the attack. Ford concedes he drove the two brothers to the crime scene, not knowing of their plans to harm anyone. Ford looks remarkably like the brother who was not charged in the case.

Cathy Lynn Henderson
Henderson was accused of murdering a 3-month-old she was babysitting. She was convicted based on testimony that the fatal injury could not have occurred by inadvertently dropping the baby on its head, as Henderson claimed. That expert later recanted his testimony, citing “a greater understanding of pediatric head trauma and the extent of the injuries that can occur in infants.”

Preston Hughes, III

Hughes was accused of murdering a young woman and her younger cousin during an attempted rape. Though no physical evidence tied him to the crime, he was convicted based on the strength of two confessions. Hughes claims each of the confessions were coerced. Given that each of the confessions contradicts the other, Hughes has a prima facie case that at least one of his confessions is false.

William Irvan

Irvan was accused of murdering his lover. He was convicted based on the presence of his sperm and the testimony of a snitch. Bloody fingerprints found at the crime scene, however, did not belong to him or the victim.

George Edward McFarland

McFarland was accused of murdering a store owner during a substantial cash transfer. No physical evidence tied him to the crime. None of his alleged accomplices testified against him or were even charged. He was convicted solely on the testimony of an eyewitness and a nephew. The eyewitness initially described the shooter as someone substantially shorter and lighter than McFarland. The nephew, who testified only that his uncle had lots of money after the murder, received a crime-stoppers reward and leniency for his own robbery case. After the trial, the nephew recanted his testimony.

Anthony Shawn Medina

Medina was accused of being the shooter in a drive-by shooting in which two children were killed. Though his fingerprints were not found on the murder weapon or in the car used for the crime, he was convicted based on the testimony of four witnesses.

Pablo Melendez, Jr.

Melendez was accused of shooting a man waiting for a drug drop. He was convicted based on the testimony of fellow gang member whose brother matched the description given by a witness to the shooting. A photo of Melendez, not shown during the guilt phase of Melendez' trial, shows that Melendez in no way matched the description of the shooter.

Louis Castro Perez

Perez was accused of killing two women and a girl. He was convicted based on his bloody palm print at the crime scene, scratches on his body, and his DNA under the fingernails of the girl. Perez admits to being at scene, discovering the bodies and fleeing due to fear of being accused. Perez claims the girl scratched him as he cradled her in his arms. Other DNA evidence at the scene points to someone other than Perez.

Charles Douglas Raby

Raby was accused of stabbing an elderly woman 15 times. No physical evidence tied him to the crime. He was convicted based on a false confession and shoddy work by the infamous Houston PD crime lab. Post-trial DNA testing of the victim's fingernail scrapings excluded Raby as her assailant.

Rodney Reed

Reed was accused of killing a woman after raping her. He was convicted based on the presence of his semen in her body and based on a previous denial that he knew her. After his arrest, Reed claimed he and the victim had been having an affair. Other DNA evidence withheld from the defense tended to exclude Reed as the killer. Evidence developed post trial points to the victim's husband as the killer.

Darlie Lynn Routier

Routier was accused of killing her children and staging a home invasion to cover the crime. She was convicted because the crime scene evidence allegedly contradicted her version of events. The investigators, however, invoked their Fifth amendment rights against self-incrimination when they were cross-examined by Routier's attorney. Post-trial, a fingerprint expert identified a bloody fingerprint from the scene as belonging to an unknown adult. Also post-trial, Darlie's husband conceded he searched for someone to burglarize the house so that he could benefit from an insurance scam.

Henry Watkins Skinner
Skinner was accused of murdering his live-in girlfriend and her two grown children. He was convicted based on his presence at the scene at the time of the murder and based on the inculpatory statements of a neighbor. Skinner has always maintained he was too intoxicated to have committed the murders. Bloody bootprints and a hand print at the scene point to an assailant other than Skinner. Post-trial investigations identified the girlfriend's uncle as a viable alternative suspect. Post-trial DNA testing of hairs clutched in the girlfriend's hand excluded Skinner. The State refuses to allow testing of other DNA evidence.

Max Soffar

Soffar is accused of killing three youths in a bowling alley. He was convicted based on multiple, nonsensical confessions. After his trial, a serial murderer imprisoned in Tennessee for killing seven people was identified by a witness as the man who had threatened to shoot people the bowling alley, on the very day of the shooting. The serial murderer had previously been in Texas.

Larry Ray Swearingen
Swearingen was accused of murdering a female college student. Her body was found more than three weeks later in a nearby forest. He had been in jail for three weeks before her body was discovered. He was convicted based on incriminating evidence found in or near his home, and because the medical examiner testified the victim died on the same day she disappeared. Multiple pathologists later determined that the victim died within days of her body being discovered. The medical examiner recanted her testimony regarding the date of death. Larry Swearingen, as it turns out, had been in jail for three weeks before the victim was murdered.

Manuel Velez

Velez was accused of killing the one-year-old son of his live-in girlfriend by striking the boy in the head. He was convicted based on the testimony of the girlfriend who said Velez was alone with the baby when the baby was injured. The State withheld from the defense that the girlfriend had already pled guilty to striking the boy in the head on the day he died.

Jorge Villanueva

Villanueva was accused of strangling and bludgeoning his 77-year-old female neighbor. He was convicted based on an allegedly coerced confession and more shoddy work by the Houston PD crime lab. Post-trial testing has revealed that the DNA results used to convict Villanueva would also have matched 136,000 other people in the county as well. His defense is attempting to conduct DNA testing on two pubic hairs found at the crime scene that were dissimilar from those of both the victim and Villanueva.

David Leonard Wood

Wood was accused of killing six women and burying them in the desert around El Paso. He was convicted based on the testimony of three snitches, a ball of orange fibers, and the testimony of a woman who claims he tried to rape and murder her in a similar fashion to the others. Wood's DNA was not found on any of the victims. The DNA of an unknown person, however, was found on at least one of the victims. A post-trial witness claimed the near-victim who testified against Wood lied in exchange for reduced sentencing for another crime. The same post-trial witness provided the name of a viable alternate culprit

The Skeptical Juror Is More Influential Than Barack Obama

At least according to GQ Magazine.

This adds to my ever growing list of accomplishments / endorsements. Though it is clearly bragging, I must point out that previously I have:

• Scooped the NY Times
• Been referenced in a NY Times editorial
• Been juxtaposed against Ann Coulter

I must admit, however, that this is the biggest, most surprising achievement yet. To be intentionally excluded from the GQ Magazine list of least significant people, while President Barack Obama is intentionally included, is an honor only a select few can hope to achieve.

I want to thank my wife, my parents, and both readers of this influential blog.

Regarding Flying Machines, Feedback Loops, and Criminal Justice: Redux

From 22 April 2010:

I've been away for a bit, both physically and mentally. I'm running behind on my posts. It seems I owe the second part of my essay on feedback loops.

If you missed the first part, you can read it here. It will reinforce the point I hope to make, but it's not critical.

In a previous career, I designed commercial transport aircraft for a major aircraft manufacturer. It would be far more accurate to say I helped design airplanes. No one person designs large aircraft. The jumbo jets are some of the most technologically advanced and complex pieces of machinery around today. Despite their complexity, the fact that they travel near the speed of sound, in a near vacuum, at -65 degrees Fahrenheit, and despite the fact they carry around a quarter million pounds of fuel, commerical aircraft are one of our safest forms of transportation. You are far safer flying from Los Angeles to New York than you are driving from Azusa to LAX. 

The safety doesn't result from mottos or mission statements, from pledges or codes of conduct. The safety results from a cadre of engineers who know nature will smite them should they fail to follow the rules. It comes from legions of regulators and auditors, customers and lawyers who will descend upon them should one of their elegant designs fall from the sky. The world of commercial aviation is a world of feedback loops. Planes are safe because those who err are fed back upon, with prejudice.

The world of criminal prosecution is largely absent feedback loops. Judges and prosecutors are, for the most part, legally immune any consequence resulting from their misdeeds, whether careless or willful. The populace returns them to office based on inflated conviction ratios rather than upon any measure of accuracy. The appellate system provides thinly veiled cover for all but the most egregious acts of misconduct. The bottom line is our judicial system deals grisly justice because it is unrestrained by any meaningful, negative feedback.

Consider the case of Charles Dean Hood. I started an Innocence Scorecard for the man, and though I haven't yet completed it, I figure he is good for the two murders for which he was convicted. The US Supreme Court recently declined to hear his case, so Texas can now proceed with his execution. Hood had argued that he had not been given a fair trial becaused the female judge and the male prosecutor had  been doing the judicial hokey pokey. She had ruled favorably on his motions. She sustained him repeatedly.

The point wasn't that Hood was incorrect in his accusations. Not at all. The judge and prosecutor both admitted to their affair. They claimed, however, that it was all over between them at the time of the trial. They didn't mention it to anyone, say the defense team, because the two star-crossed lovers would never let something like their runaway hormones get in the way of their jurisprudence.

The US Supreme Court sided with the judge and the prosecutor. Those two are, after all, servants of the State. The defendant, on the other hand, is a murderer. Off to the gallows with him.

Neither the judge, the prosecutor, nor the State of Texas were fed back upon. There simply is no effective feedback loop in our criminal justice system. Don't believe me? Give it a try. Withhold exculpatory evidence from the defense. The court will rule that you didn't, and that even if you did it would be a harmless error. Bribe a witness with time off, or threaten a witness with time in. Either will get a pass. Pay a discredited DA $86,000 to mount a pathetic defense in a murder case, and the appellate court will look the other way. 

Our judicial system will continue to strap innocent people to gurneys as long as the State exempts itself from any consequences for its bad behavior. Our judicial system is a plane wreck, and nobody plans to investigate. The people on board probably deserved what they got.

tsj

22 Apr 2010

We're Number One! Unfortunately! Redux!

Originally from 23 May 2010:

I'm unabashed in the love and pride I feel for this country. By this country, I of course mean the good ol' USA. Besides the circumstance of my birth, one feature that warms my heart to this little slice of Earth is its willingness to listen to me. Or at least its willingness to allow me to speak. At least for now.

That's important, because sometimes you have to find a way to tell the one you love that she it is making a big mistake. So here it goes. Wish me luck.

I think we imprison far too many of our fellow countrymen. I think we have too many laws, and we criminalize too many people. And I hate to say this, but we convict way too many people who are actually innocent. We even execute some of them. I know you don't like to hear it, but we need to talk.

I want to talk about the number of people we wrongfully convict. I don't just mean talk about individual cases, here and there. I already do that. What I'm saying here is that I want to talk about the magnitude of the problem. I want to try to quantify it. If our wrongful conviction rate is a mere 0.027%, as Supreme Court Justice Antonin Scalia claimed in Kansas v. Marsh, then I'm out of line.

If, on the other hand, our wrongful conviction rate is closer to 10%, which I fear, then we must talk. We absolutely must talk.

Over the next few months, I will be posting a sequence of articles dealing with various ways of estimating our rate of wrongful conviction. In each case, I will multiply that rate times the number of people we have incarcerated to arrive at the number of people who may be now serving time for a crime they did not commit. A starting point then, is to get a sense of how many people we have in prison.

I turned as usual to the source of all knowledge: the internet. Not only that, I took the easy way out for this tenuous first step: I checked with Wikipedia. The numbers and quotes immediately below came from the Wikipedia article. Their numbers came, in turn, from the U.S. Bureau of Justice.

American prisons and jails held 2,304,115 inmates in 2008. Approximately one in every 18 men in the United States is behind bars or being monitored.

70% of prisoners in the United States are non-whites.

In recent decades the U.S. has experienced a surge in its prison population, quadrupling since 1980, partially as a result of mandated sentences that came about during the "war on drugs." Violent crime and property crime have declined since the early 1990s. 

Nearly one million of those incarcerated in state and federal prisons, as well as local jails, are serving time for comitting non-violent crimes.

About 10.4% of all black males in the United States between the ages of 25 and 29 were sentenced and in prison, compared to 2.4% of Hispanic males and 1.3% of white males.

The United States has the highest documented incarceration rate in the world at 754 persons in prison or jail per 100,000 (as of 2008).

That last one hurts. (They all hurt, actually.) You can compare our rate of 754 convicts per 100,000 countrymen against the rate for other countries here. I'll save you the trouble. At 152, England has a rate just one fifth of ours. Australia, which served as a penal colony for England, has a rate of 129. Romania, formerly behind the Iron Curtain, has a rate of 125. France comes in at 96, Belgium at 93, Germany at 88, Denmark at 63.

Maybe it's unfair to point out our incarceration rate is five to ten times that of other "westernized" countries. Maybe we'll do better if we compare ourselves to Africa. Let's see.

Okay, we're not a whole lot worse than Rwanda. They have a rate 593, so we're only 33% worse than Rwanda. But South Africa, not known as a model of restraint when arresting its citizenry, has a rate well less than half of ours. Zimbabwe comes in at 136, Ethiopia at 98, Ghana at 59, Nigeria at 26.

I guess that didn't work out. Maybe the Middle East will provide a more favorable comparison, what with all the turmoil there and Sharia law and everything. Surely they must be doing worse. Hang on, I'll check it out.

Let's see. Israel has a rate of 326, but they're kind of a "westernized" country, so we can ignore them. (We already know we don't fare well against "westernized" countries.) I'll keep scrolling down the list. Here we go. Iran comes in at 222, Libya at 209, Saudi Arabia at 178, Kuwait 130, Iraq 93, Yemen 83, Pakistan 55, Afghanistan, 44. Crap!

There's stil hope. Surely we can't be worse than the communist states. I'll check.

Crap!

Russia is 626, Cuba is 531. China is 119.

Okay, that does it. Time to turn to Uncle Cecil to get The Straight Dope on this issue. Just as I suspected, the numbers for China are, well, suspect. Uncle Cecil tells it like it is.

China, though . . . well, 1.5 million prisoners is just the official figure. Chinese human rights activist Harry Wu, who spent 19 years in forced-labor camps for criticizing the government, estimates that 16 to 20 million of his countrymen are incarcerated, including common criminals, political prisoners, and people in involuntary job placements. Even ten million prisoners would make for a rate of 793 per 100,000. 

Another nation suspected to have a lot of prisoners is North Korea. The country isn't listed in ICPS statistics, but a recent NBC News investigation put the number of political prisoners alone at 200,000, or more than 900 per 100,000. 

Great, you're thinking. The only countries that might put away more of their own people than we do are both notorious authoritarian states.

So there's a chance we're not number one. There's a chance we're not as bad as North Korea.

America, we need to talk.

Pickings from the Devil's Dictionary: The Letter C

Courtesy of Ambrose Bierce

CALAMITY, n. A more than commonly plain and unmistakable reminder that the affairs of this life are not of our own ordering. Calamities are of two kinds: misfortune to ourselves, and good fortune to others.

CANNON, n. An instrument employed in the rectification of national boundaries.

CAT, n. A soft, indestructible automaton provided by nature to be kicked when things go wrong in the domestic circle.

CHILDHOOD, n. The period of human life intermediate between the idiocy of infancy and the folly of youth—two removes from the sin of manhood and three from the remorse of age.

CHRISTIAN, n. One who believes that the New Testament is a divinely inspired book admirably suited to the spiritual needs of his neighbor. One who follows the teachings of Christ in so far as they are not inconsistent with a life of sin.

CIRCUS, n. A place where horses, ponies and elephants are permitted to see men, women and children acting the fool.

CLAIRVOYANT, n. A person, commonly a woman, who has the power of seeing that which is invisible to her patron, namely, that he is a blockhead.

CLARIONET, n. An instrument of torture operated by a person with cotton in his ears. There are two instruments that are worse than a clarionet—two clarionets.

COMFORT, n. A state of mind produced by contemplation of a neighbor's uneasiness.

COMMENDATION, n. The tribute that we pay to achievements that resembles, but do not equal, our own.

COMPULSION, n. The eloquence of power.

CONDOLE, v.i. To show that bereavement is a smaller evil than sympathy.

CONFIDANT, CONFIDANTE, n. One entrusted by A with the secrets of B, confided by him to C.

CONGRATULATION, n. The civility of envy.

CONSERVATIVE, n. A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.

CONSOLATION, n. The knowledge that a better man is more unfortunate than yourself.

CONSULT, v.i. To seek another's disapproval of a course already decided on.

CONTEMPT, n. The feeling of a prudent man for an enemy who is too formidable safely to be opposed.

CONVERSATION, n. A fair to the display of the minor mental commodities, each exhibitor being too intent upon the arrangement of his own wares to observe those of his neighbor.

CORPORATION, n. An ingenious device for obtaining individual profit without individual responsibility.

COWARD, n. One who in a perilous emergency thinks with his legs.

CRITIC, n. A person who boasts himself hard to please because nobody tries to please him.

CURIOSITY, n. An objectionable quality of the female mind. The desire to know whether or not a woman is cursed with curiosity is one of the most active and insatiable passions of the masculine soul.

CYNIC, n. A blackguard whose faulty vision sees things as they are, not as they ought to be. Hence the custom among the Scythians of plucking out a cynic's eyes to improve his vision.