Hughes News: Quick Update 2

This may be the last of the quick updates.

Yesterday, Preston Hughes filed a pro se Chapter 64 motion for DNA testing. A nearly final version of that motion, without exhibits, is here.

Preston Hughes also filed a motion for stay of execution while the Chapter 64 motion is being resolved.

Today, Preston Hughes filed two civil suits in federal court against separate government entities in Texas for their violation of his constitutional rights.  One of those suits, the one against the City of Houston is here.

Details to follow after I take some time off.

I won't close this post, however, without noting my admiration of Ward Larkin for all that he has done to right this and other wrongs.

Hughes News: Bad News / Quick Update

The CCA took a week to consider Mr. McCann's application for Writ of Habeas Corpus. The CCA received Mr. Hughes' pro se application yesterday in the mail and rejected without considering it before the close of work. As I noted previously, the previous application placed another, nearly insurmountable hurdle in front of Mr. Hughes.

I have no time to detail all this or to whine of it. There is much to do. I won't specify in public any longer on what we intend to do, since that seems to have worked to Preston's disadvantage. I'll say only this. We have four options we are considering, two that we are considering seriously, and one that I stopped working on just now to post this update.

Stay tuned.

The Content of Our Character

With one week left before our scheduled execution of Preston Hughes, an innocent man, I choose to use the words of Martin Luther King for the title of this post. If you have not listened to or at least read Mr. King's I Have a Dream speech in its entirety, it is your loss. From that speech, I selected my title from this sentence.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I fear for the content of our nation's character.

As I was working on Mr. Hughes' petition for Writ of Habeas Corpus, I incidentally became aware of this seemingly unrelated graphic.

It summarizes our drone raids against just one country, Pakistan, a purported ally. The size of the circles indicates the estimated number of militants we killed. The ring surrounding the circle represents the number of non-militants we killed. Another word for non-militants is innocent civilians. The ring surrounding the circle represents the number of innocent people we killed.

The red circles represent the strikes that took place under the leadership of President George W. Bush. We elected him in 2000 and reelected him in 2004. The blue circles represent the strikes that took place under the leadership of President Barack Obama. We elected him in 2008 and reelected him just this week. Not only does President Obama hold the distinction of being granted the Nobel Peace Prize, he holds the distinction that his blue circles are larger and more numerous than are President Bush's red circles. President Obama holds the distinction as well that the pale rings surrounding his circles are more numerous and even wider than the pale rings surrounding his predecessor's circles.

I saw the figure, I studied it, and I went back to work on Mr. Hughes' petition.

Some days later, I can't be more specific for I've lost my sense of time, I turned on Turner Classic Movies to play in the background. Judgement at Nuremberg was playing. I had seen it before, several times, but it somehow demanded my attention.

It was more poignant than before. Suddenly I was watching it just as I was accusing our government of manufacturing evidence, of perjury, of coercion, of sentencing an innocent man to death. With only ten days or so before we execute another innocent man, I heard Spencer Tracy utter his verdict regarding four judges charged at Nuremberg.

"[T]he charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice, in violation of every moral and legal principle known to all civilized nations. ... The real complaining party at the bar in this courtroom is civilization. ... Men who sat in black robes in judgment on other men. ... The principle of criminal law in every civilized society has this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty. 

... [T]his trial has shown that under a national crisis, ordinary, even able and extraordinary men, can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat through the trial can ever forget them. ... 

There are those in our own country too who today speak of the 'protection of country,' of 'survival'. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient, to look the other way. Well, the answer to that is 'survival as what'? A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult. Before the people of the world, let it now be noted that here, ... this is what we stand for: Justice, truth, and the value of a single human being.

The movie ended soon thereafter with American Judge Spencer Tracy speaking behind bars with one of the men he had just sentenced to life, German Judge Burt Lancaster.

Burt Lancaster: "Judge Haywood ... the reason I asked you to come: Those people, those millions of people ... I never knew it would come to that. You must believe it. You must believe it." 

Spencer Tracy: "Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent."

I went back to work.

And then Benghazi. Through gross incompetence, we put our foreign mission in harm's way; we failed to provide the security it needed, requested and deserved; we then did nothing to save them during a seven hour battle that claimed the lives of four of them. We then lied to ourselves about what happened.

Angry, I went back to work.

And then the Texas Tribune / New York Times article came out. In that article, Mr. Hughes' own attorney, Mr. Patrick F. McCann, planted suspicion in our nation's consciousness about some deep, dark secret Mr. McCann holds of his own client's guilt. He speaks of ethics as he does this, as he violates his client's privilege of confidentiality.

I went back to work.

And then I learned that Mr. Hughes' case has for five years been on a list of cases that should be reviewed from beginning to end.

In 2002, the city of Houston was shaken by a series of devastating disclosures focusing on its police crime lab. From the executive summary:

The people of Houston and many of the city’s public officials quite appropriately questioned how many wrongful convictions may have been obtained based on flawed forensic evidence and its presentation to Harris County juries.

The city of Houston and the HPD therefore commissioned an independent investigation to answer the profound questions about the depth and breadth of the problems infecting the lab. James Bolding would turn out to be the central figure in the scandal. It was the same James Bolding that fabricated evidence of Mr. Hughes guilt and withheld actual evidence of his innocence.

The results of the investigation cast serious doubt on the quality of the convictions in which the HPD crime lab serology section had been involved. In 21% of the 850 cases where the defendant was still incarcerated, the investigators "found major issues calling into question the reliability of the serology work performed by the Crime Lab or the accuracy of the results it reported". In 41% of the 29 cases in which the defendant had already been executed, the investigators found similar "major issues".

The commission made five recommendations to the city and the police department that had requested the report, as well as to Harris County and the District Attorney's Office. In short, the recommendations were to re-investigate each and every case identified in the report as having major issues with the HPD crime lab, to appoint a special master for each case, to conduct all possible DNA testing at their expense.

Mr. Hughes' case was on the list of those having "major issues" due to the sloppy and fraudulent work of the HPD crime lab. Everyone knew or should have known that Mr. Hughes' conviction and his sentence were based on the work of a crime lab and a specific individual known to be untrustworthy, known to have engaged in fraud. Yet no one did anything rather than pursue his execution.

My anger grew, and I went back to work.

And then Mr. Hughes' attorney, Mr. Patrick F. McCann, filed yet another application for Writ of Habeas Corpus, against the express wishes of his client, and by so doing prejudiced his own client in ways too complicated to discuss here. In that poorly written, incomplete, and insufficiently substantiated application, Mr. McCann never once claimed his client was innocent. For 25 years, Mr. Hughes had been trying to get his claim of innocence before the Court, and Mr. McCann had deprived him of his last opportunity.

Rather than present evidence of his client's innocence, Mr. McCann planted seeds of suspicion in the minds of the very justices who would rule on Mr. Hughes' last chance to live. Mr. McCann adopted the claim, developed in this blog, that Shandra Charles' must have been dead when Sgt. Hamilton claimed she provided him a dying declaration. Mr. McCann then undermined that claim with a completely unnecessary, completely unsubstantiated suggestion that the police fabricated the dying declaration to protect someone who had actually witnessed the crime.

Not surprisingly, Mr. McCann's application was quickly rejected by the Court as an "abuse of the writ without considering the merits of the claims." Mr. McCann had placed yet another nearly insurmountable hurdle before his client.

I seethed, and I went back to work.

Regarding the content of our nation's character, my faith has been restored somewhat. I have met and worked with some amazing people, and two of them in particular have helped give Mr. Hughes his chance to proclaim his innocence before the highest court in Texas.

Yesterday, in a series of last minute twists and turns worthy of a John Grisham novel, Mr. Hughes finally filed his application for Writ of Habeas Corpus with 174th Judicial District Court of Harris County and Court of Criminal Appeals in Texas. He finally, after 25 years, has the opportunity to tell the Court that he is innocent, that he should therefore not be executed, that he should therefore be released or granted a new trial.

Stay tuned.

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.