Hughes News: Framing the Guilty?

Framing the Guilty is a term I first heard associated with the OJ Simpson case. It is the classic case of Framing the Guilty. I have no doubt whatsoever of Simpson's guilt and I wouldn't soil these pages arguing otherwise. However ...

.... ta dum dum ...

I find it exceptionally suspicious that the glove didn't fit. I believe, but cannot prove, that the glove was indeed planted. I believe that the OJ case is the preeminent example of Framing the Guilty.

When familiarizing others with this case, I find myself asking if they have ever heard of the concept Framing the Guilty. Some have and some haven't. Either way, with that concept now part of the discussion, it is easier for people to understand why the police (and others) acted the way they did in the case of Preston Hughes III. They were satisfied he was guilty, so they framed him.

To be absolutely clear, I am not attempting to save Preston Hughes because I believe he is guilty but was framed. To be absolutely clear, I believe that Preston Hughes is actually innocent of the crime, that he had no involvement in or knowledge of the crime. I'm not claiming that his case is a case of Framing the Guilty. I'm claiming that his case is one of Framing the Presumed Guilty but Actually Innocent.

Jordan Smith of the Austin Chronicle has adopted the phrase Framing the Guilty for the title of her just published article. She quite properly, in my opinion, added a question mark.

Framing the Guilty?

In her lengthy article (4,323 words by my count), she spends most of the time with the details of the case. She has clearly researched them well. Near the end, she discusses the conflict with the Patrick McCann, Preston's purported attorney.

There has been much going on of which I haven't written. It is not my desire to withhold information from the public. Instead, the demands on my time to stop the execution of an innocent person are so persistent and insistent that I have insufficient time to write to you as frequently as I should.

Ward Larkin and I are still investigating the case as we attempt to complete the petition. New discoveries occur frequently, and each demands more editing and more new content in the petition.  We hope to file soon.

As part of our ongoing investigation we have recently learned that a DNA test conducted early this century detected one spot of Shandra Charles' blood on Preston's blue jeans. I suspect that is the deep dark secret to which McCann alludes each time he violates attorney client privilege (at least twice now) by publicly claiming he has some deep, dark, compelling evidence of his own client's guilt. The most recent violation is included in Jordan Smith's article. "Ethically, I am prohibited from advancing before the court a theory that I know to be false."

McCann has it 100% backwards. He is ethically bound not to prejudice his client such as he does with his public pronouncements. On the other hand, he is ethically bound to defend his client as aggressively as possible and permissible. No rule prevents him from presenting compelling evidence of his client's innocence. No rule prevents him from submitting a habeas petition arguing that under the Supreme Court ruling in Schlup v. Delo his client wants to present a compelling case of actual innocence. He may not lie about the compelling evidence, but he is ethically bound to present it.

Furthermore, I argue that McCann is ethically bound to present the evidence of innocence in a Schlup-type claim. Failure to do so will result in his client being executed when his client could have otherwise been saved. In the absence of a Schlup claim, he is not permitted to raise the serious constitutional issues that helped convict his client, such as the withholding of evidence, the manufacture of evidence, the admission of perjured testimony, and ineffective counsel.

Patrick McCann has, however, complicated the situation enormously. He filed another habeas despite Preston's clear and unambiguous desire that McCann not do so. Worse yet, McCann did not base the petition on Schlup.

For legal reasons I won't detail here, the petition will almost certainly fail as it stands. There is much more to be written on this issue, but I have not the time. For now, I'll simply place McCann's petition to SkepticalJurorDocs and allow you to read it for yourself. (The lastest version of Preston's desired petition will be available early tomorrow morning.) With respect to McCann's petition, I'll make only one compound comment. Mr. McCann knew or should have known that this petition is legally weak, insufficiently unsubstantiated, and almost certainly bound to fail.

Before closing, I'll add just a few comments regarding the spot of Shandra's blood found on Preston's blue jeans.

1. Those blue jeans had no blood apparent on them.
2. Those blue jeans had been previously sprayed with luminol (or equivalent) as a screening test to highlight all areas having possible blood.
3. Those areas were cut out from the blue jeans.
4. Those areas were subjected to two separate confirmatory tests for blood. No blood was detected in either case. This information was withheld from the jury.
5. More than a decade later, a DNA lab conducted another screening test for blood, this time on only the remainder of the jeans where the previous screening test had failed to detect blood.
6. The screening test by the DNA lab, however, revealed a single new spot of blood, one that was invisible to the naked eye, one that had somehow been missed by the previous screening test.
7. The DNA testing of that spot revealed Shandra's DNA but not Marcell's.

In addition, consider this. It is approaching certainty that the police perjured themselves (about the dying declaration, the first search of Preston's apartment, the conditions of Preston's confession) and fabricated evidence (the eyeglasses in Preston's couch and the blood on Preston's knife). It is clear that the blue jeans were removed from the proper chain of control and custody at least once. It is now clear as well that Shandra Charles shorts were not stored in a plastic bag. (Ward Larkin took photos of them just days ago, at the courthouse. Much more about those later.)

It is under those conditions that an invisible drop of blood was discovered on Preston's blue jeans, when it is clear that his jeans, and shirt, and shoes, and knife, and its sheath, and his person should have been covered in blood.

This case has long been a travesty, and now Preston's own attorney (purported attorney) is making it worse, all the while claiming some non-existent moral high ground.

Stay tuned.

Hughes News: The Battle Goes Public

Maurice Chammah of the Texas Tribune has published an article not so much about the the guilt or innocence of Preston Hughes, but about the life-and-death tug-of-war between Preston's attorney and those of us who believe someone should be able to argue they are innocent before the State puts a needle in their arm.

Wow! That's an overly long introductory sentence, but I think I'll leave it as is.

Mr. Chammah's article was published simultaneously in The New York Times. Given his word count limit, and given that he stepped into the midst of an exceptionally high stakes disagreement, I credit him for providing a balanced presentation of the dispute. Before writing the article, he talked to all parties involved and then some. He presented quotes and arguments from both sides, but had little space in which to develop them.

(Pssst. Don't tell anyone, but Mr. Chammah completely misrepresented what I said, though he got the portion between the quote marks correct. My position has always been that this is a seemingly overwhelming case of guilt. Mr. Chammah wrote: "'This is a seemingly overwhelming case' of innocence, Allen said."  I'm chuckling as I type. The whole point is that it is definitely not a seemingly overwhelming case of innocence, or we wouldn't be talking right now.)

Now on to Mr. McCann, Preston's purported appellate counsel. Mr. McCann had some kind, if condescending words for our effort to save Preston Hughes.

This week, he said Mr. Allen “sounds like a very sincere man who is attempting to right a wrong.” 

“Like in fantasy football,” he said, “I think lots of people are happy to offer thought without skin in the game.”

What's Mr. McCann's skin in "this game"? His reputation? The State payment he receives for each writ he files not arguing Preston's innocence?  I'm not bothered by the flippant metaphor because of any skin I have in this game. I'm bothered by the fact that the only person whose skin is on the line is that of Preston Hughes III, now scheduled for execution 20 days hence for a crime he did not commit.

I will admit also that I'm disappointed by Jeff Blackburn's comment. I hold Jeff Blackburn in high regard for his successful efforts to right the terrible wrongs of Tulia and for his work for the Innocence Project of Texas. Here's his quote:

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Hahaha. Good one. I challenge anyone to point to Mr. McCann's "spadework". Mr. McCann has done no more shovel ready work than the $800,000,000,000 stimulus money that did a swirly down our national drain. On the other hand, Mr. McCann acknowledged some of the stuff we dug up.

Mr. McCann agreed that Ms. Charles would have “been unconscious in a matter of seconds based on the blood loss,” and so she could not have said Mr. Hughes’s name to the police. Despite being troubled by this evidence, he is not filing a claim of innocence.

Okay, that's another good one. Mr. McCann didn't spade that insight from seemingly infertile earth. Someone else did it for him. Furthermore, I'm aware that Mr. McCann also now believes that the HPD planted the glasses in Preston's apartment, and he certainly didn't dig that one up either. I offer the following from a recent letter from Preston Hughes.

I received a visit from McCann Friday afternoon. He told me he had talked to you. Was he lying or not?

I guess I should interrupt here. I have attempted to contact Mr. McCann and/or his associate Carmen Roe by phone and by email. I have attempted to make them aware of all the evidence we have uncovered regarding Preston Hughes' actual innocence. I have not heard back from either of them. Now back to the letter. I'll not interrupt again.

He told me he had spoke to you concerning the fact that the police planted the glasses in my apartment and he said "that was fucked up that the police planted those glasses in your apartment." He also told me that he planned to file something about the prosecutor's prosecutorial misconduct and so on. I believe he was just saying things he thinks I would like to hear. As I said I don't trust him and I'll never believe anything he has to say to me. For me to trust him would be like placing a cat in a bird cage and believing the cat wouldn't harm the bird. That just isn't going to happen. So I find it hard to believe that someone who had admitted to me that they don't like me would all of a sudden be willing to help me after all the years of fucking over me. [sic]

So Mr. McCann now believes that the Houston PD fabricated a dying declaration, and perjured themselves, so that they could frame someone they believed was guilty. And Mr. McCann now believes that the HPD planted evidence in Preston's apartment, and perjured themselves, so they could frame someone they believed was guilty. And surely Mr. McCann must be aware that the Houston PD crime lab was so corrupt and crappy that it was shut down not long after it assisted the HPD in their framing of Preston Hughes. Surely a "great lawyer" would be aware of that.

Still, Mr. McCann refuses to defend Preston Hughes based on his innocence. He explains that attorney-client privilege prevents him from revealing why he won't do so, then immediately violates that privilege, in the most obscene manner possible, by telling everyone he believes his client is guilty.

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. ... “I find myself in an odd position,” he said, “because I’m ethically bound not to advance a claim I think is false.”

Holy ethics violation, Batman!

Everyone will of course now conclude that Mr. McCann has inside knowledge of devastatingly inculpatory information that he simply cannot share with you. Nor will he share it with me, though Preston would waive the privilege which belongs to Preston, not to McCann. The most stunning and most telling point is that Mr. McCann will not share even with his own client his reason for not filing a claim of actual innocence.

The only odd position McCann finds himself in is being paid by the State for over a decade to defend a person he cannot and will not effectively defend. And, most shockingly, he resists the effort by his own client  to replace him with someone who will.

Mr. McCann makes no motion that will save Preston's life. He files only a motion that at best could result in his client being injected with three lethal chemicals instead of one. He vows not to defend his client's innocence until his client is executed.

Mr. McCann plans to follow the case to the end. In September, he sued the Texas prison system, saying that by using a single drug for the execution, as a result of a recent policy change, officials would be experimenting on his client. The Court of Criminal Appeals, Texas’ highest criminal court, has ordered the civil court overseeing the case not to stay Mr. Hughes’s execution.

The writ of habeas corpus, "The Great Writ", came into existence because States would lock their citizenry away in undisclosed locations for indefinite time. The term comes from medieval Latin meaning "have the body" or "produce the body." A petition for writ of habeas corpus is therefore unique: anyone can file it. It would be of no use if only the person constrained from filing it was allowed to file it.

That bizarre situation, however, is exactly what Mr. Patrick McCann has created. He will not file based on Preston's actual innocence, and Preston cannot file pro se (by himself) as long as Mr. McCann purportedly represents him. The court will not allow an inmate hybrid representation. It will not allow an inmate to defend himself if he accepts the attorney the court appointed for him.

We attempted to resolve that problem once. We will try again.

In any case, a petition for writ of habeas corpus will be filed for Preston Hughes, and it will be based on his actual innocence. The most recent draft of one possible petition is here.

Stay tuned.

Hughes News: Bloody Pristine Shorts

It has been an amazing 36 hours.

The amazement began Sunday night. (I just checked, since I'm losing track of the days. Today is indeed Tuesday.) While searching the transcripts to reinforce a relative minor point, I became confused about the testimony regarding Shandra Charles' shorts. The prosecutor seemed to be showing those shorts to the last-minute fill-in, prosecution-friendly medical examiner (LMFIPFME). The prosecutor was using those shorts as an example of how Shandra's attacker need not necessarily have blood on his clothes.

I didn't understand. I seemed to recall, in fact I was pretty certain, in fact I knew that the serology lab report showed that a pair of white shorts had blood apparent on them. Allow me to refresh your memory of a somewhat earlier post.

There it is. Third column. "1Pr. white shot PANTS Bld is App"

I checked all the photos. Marcell was wearing blue shorts with large white stripes running down the sides. Elsewhere in the documents, Marcell's shorts are described as blue shorts, or blue and white shorts. I've yet to see his shorts described as simply white.

I looked for a photo of Shandra's shorts. I didn't recall seeing one, but I checked everything again. There is no photo of the Shandra's shorts, at least not among the collection of "all" evidence provided in response to Barbara Lunsford's open records request. Officer Hale, the CSU officer responsible for collecting the evidence and taking the photographs, had collected the shorts from West Houston Medical Center, but he had (purportedly) not photographed them.

I searched the transcripts for each occurrence of "short", hoping to capture both "shorts" and "short pants". That increased the false hits, but it did allow me to find where Sgt. Hamilton (of dying declaration fame) testified that the white shorts introduced as Exhibit 10 by the prosecution were indeed those being worn by Shandra Charles when he found her that night. At least, he hedged, they look like them.

I read once again, and again, and again, the transcript segment where the prosecutor showed the white shorts to his friendly ME. The prosecutor was trying to convince the jury that Preston Hughes could have stabbed Shandra without getting any blood on his clothes.

Q. When we say a gushing, bleeding wound, are we talking about something that is shooting out away from the body or is it something that's ozing [sic] out of the body? Is there a difference in your mind? 

A. Well, arterial pressure is considerably higher than veinous [sic] pressure; and usually when an artery is severed, it is followed by spurting of blood and it can go some distance. 

Q. Now, would the angle of the head, given the nature of these wounds, have anything to do with where it spurted? 

A. Certainly. 

Q. For example, if Shandra Charles had been wearing these white shorts at the time she was stabbed, depending on the angle that the blood was going, there may not have been any blood on these shorts, could there? 

A. That is correct. 

Q. Even though she was stabbed right here in the neck and right here in the chest, her shorts could still have no evidence of blood on them? 

A. That is correct. 

Q. Certainly if her shorts could have no evidence of blood, the man who or woman who stabbed her might have had no evidence of blood on them; is that correct? 

A. Yes, sir.

It hit me hard. I slapped my hands over my face, covering my eyes, blocking out everything but the realization that they had switched Shandra's bloody shorts for a pair of pristine shorts. I became agitated. I got up and started pacing like a caged animal, as I am apt to do when I'm agitated. I left the house and walked the quiet dark neighborhood for more than an hour. I couldn't work any more, so I went to bed and, surprisingly, fell asleep quickly. I guess I was tired.

I got up before daybreak and started hunting for something to convince me that I was wrong or that I was right. I found it.

Be aware that Exhibit 10 is Shandra's pair of white shorts and Exhibits 11 and 12 are Shandra's white shoes. Officer Hale collected those items as a group from West Houston Medical Center. From his examination:

Q. Did you also, in addition to tagging several of these items, go to a West Houston hospital and recover some personal effects concerning the female victim in this case? 

A. After I had left the scene there on South Kirkwood, I went to the hospital and recovered some personal property belonging to the No.2 Complainant. 

Q. And among those items which you recovered, did they include State's Exhibits 11 and 12? 

A. Yes. 

Q. And on 11 and 12, there's some handwritten notations in black ink. Did you put those on there? 

A. No, sir, I did not. 

Q. And State's Exhibit No. 10? 

A. These are the shorts that we recovered. 

Q  And these were recovered -- 

A. At the hospital, yes.

I suddenly note the use of the word "we", as in "the shorts that we recovered." Now I want to know the other person who was with Officer Hale when he recovered those shorts. But I digress.

It was Officer Hale's responsibility to tag the evidence so that it could not be later confused, and he clearly testified earlier about tagging evidence. He denied, however, adding the notations to the shoes but did not identify how he otherwise tagged them.

Now back to transcripts. Earlier, while Sgt. Hamilton (of dying declaration fame) was being cross examined, he offered this tidbit.

Q. Officer, with regard to this pair of shorts that's been marked as State's Exhibit 10, did you make any identifying marks on these -- this item of clothing out there that night in the dark? 

A. No, sir, I didn't.

It's not what Hamilton said that is important. What is important is the understanding that comes from that brief exchange. There were no identification markings on the pair of white shorts the State was presenting as its Exhibit 10. Had there been, the prosecution would have asked Hale if he had made the marks found on the shorts, or the defense would have asked Hamilton if he made the marks.

Of the three items collected as a group from West Houston by CSU Officer Hale, who was supposed to tag all the evidence he collected, the shoes have notations written on them but the shorts do not.

That's because the State switched the shorts. They withheld the bloody shorts from the defense and the jury, and they withheld the lab test results that noted the shorts had blood apparent on them. The State then presented a pristine pair of white shorts to the jury as if those shorts were the ones Shandra was wearing that night. They used those pristine white shorts to help convince the jury that Preston Hughes was guilty and that he should die.

And now the State of Texas has come within 23 days of seeing that wish come true. I assure you, however, that Ward Larkin and I intend to see that does not happen.

It has been an amazing 36 hours.

Stay tuned.

Hughes News: Habeas Brady

The latest version of the draft habeas is available here. The most noticeable change is that I have completed the section on Brady violations. A Brady violation is where the prosecution withholds exculpatory evidence from the defense. That has long been deemed, ever since Brady v. Maryland (1963) to constitute a constitutional violation of a defendant's right to due process. There were several egregious Brady violations in Preston's case. They can now be argued even though they might otherwised be barred because Preston is claiming his actual innocence as part of a Schlup-type habeas claim.

The Brady discussion begins at page 37.

In addition to the Brady section, I have added a summary of claims at the beginning of the petition, and I have more clearly identified the claims of actual innocence. Those changes were prompted by feedback from someone with trained eyes on the petition.

I have also improved the (by both additions and deletions) the Statement of Facts and the claims of actual innocence.

The most recent draft has just the very beginning of the ineffective assistance of counsel claim. I plan on completing that section today, or very early tomorrow morning. I will still need to complete the closing arguments and the appendices.

I'm limited to 50 pages. That count does not include the first six pages of standardized material, and it does not include the appendices.  By continually working and reworking the document, I'm in a position where I can soon finish it within the page limit.

I continue to welcome comments and criticisms, even of grammar, spelling, and typos. The comments so far, both in this blog and via email, has been of substantial value.

Substantial.

I'll update again once I have completed the section on ineffective counsel.

Hughes News: Habeas New Evidence 02

The most recent version of my working draft habeas for Preston Hughes is now available at Skeptical Juror Docs.

In my last post, I whined, complained, bitched, lamented, grumbled, grieved, whimpered and kvetched about the newly discovered 50 page limit with which I found myself to be so harshly and unjustly burdened. I was tired, as I am now. However ... ...

[double ellipses for dramatic impact]

The 50 page limit has turned out to be a godsend. It forced me to once again consider the organization of the entire petition, to focus on the most critical issues (rather than on all cognizable claims), and to remember that  the petition must, at its heart, tell a story that will capture and compel the reader.

I spent most of the last 28 hours putting the draft petition on a low-carb diet, leaving behind only the bacon and the cheese dip.The intro is one page. The table of contents is one page and will remain one page. The table of authorities is one page and will remain one page. The procedural history is one page and will remain one page. The statement of facts has been slimmed way down. The new evidence items have been reduced from 10 items to 5. The due process items have been reduced from more than 10 to 5.

All decisions regarding what stayed and what went were made in light of the parallel case Allen, since that case is so similar and since that case was decided favorably by the Texas Court of Criminal Appeals. That's the story I want to tell.

The most recent working draft reflects many of the changes and completes the discussion of the 5 new evidence issues. The most recent of the new evidence items begins on page 23 of the current draft.

Also, I have received a number of comments and criticisms regarding the draft petition. I cannot respond to each, due to time constraints, so I will respond to all here. Each comment causes me to think about what I am trying to accomplish and about how I might best accomplish it. Most comments cause me to adjust my thinking, if only a wee bit. All comments are sincerely appreciated.

In the next 24 hours or so, I hope to complete the due process portion. In the 24 hours after that, I hope to complete the ineffective counsel portion. Over the weekend, I hope to complete the draft. It's a challenging schedule demanding more efficiency that I have yet been able to muster, but it's my intent nonetheless.

I'll update again tomorrow.