The Case of Preston Hughes III: Part 2 of 2

[Addendum, 16 November 2012: Preston Hughes III was executed yesterday. He was innocent. Previously, the author of this guest post requested that his last name be withheld. He now asks that I identify him by his full name, Al Fontova. Given that he helped in the effort to save Preston Hughes, even as the execution drew near, I am pleased to act on his request.]

I have a standing offer to make this blog available to anyone who wants to present a well-reasoned analysis of a criminal case. While a number of people have expressed interest, Al [last name withheld by request] is the first person to actually do the research, analysis, and writing necessary to submit a presentable post. I presented Part 1 of his work in the last post. Part 2 begins immediately below.

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PART 2

Preston Hughes III has been on Texas’ death row for the last 23 years, convicted of a double murder in 1988 of a 15 year old girl and her 3 year old cousin. How do you vote, sir?

I vote not guilty for these reasons.

Hughes was convicted based on the following:

1. He confessed to the crime.
2. Shandra Charles’ statement to Officer Hamilton naming ‘Preston’ as her attacker that night.
3. Evidence in the case.
4. Hughes’ criminal record.

Let’s examine each item.

Starting with the confessions, prima facie, at least one of the confessions is false since the two confessions differ wildly. As a skeptical juror, I would be inclined to toss both confessions away unless the physical evidence presented supports at least one of the statements made by the defendant or of course, if the defendant himself gets on the stand and confesses again in front of the jury – Hughes did the opposite, he recanted both confessions claiming coercion, and also the falsification of his signature across various documents using a copy machine. 

Let’s take a look at each confession and see if we can find one that closely matches what we know about the crime.

Confession #1:

Most obviously Hughes fails to mention stabbing the boy. A double homicide confession needs to detail two victims to be credible. Second item, Hughes states he stabbed Ms. Charles ‘6,8, may be 10 times’ which is inconsistent with the two stab wounds sustained by the victim.

The omission of Marcell Taylor from Hughes’ confession is remarkable on another level. If the police were coercing Hughes to confess wouldn’t they steer him in his statement to match the details of the crime? I wonder if it is  the case that Hughes did in fact make a statement, a fictional statement, to the police, even if he was innocent of the crime. Why would someone confess to a crime they didn’t commit? Our intuition tells us people would never confess if they are truly innocent. Empirical and experimental evidence tells us otherwise.

Consider that of the 271 citizens exonerated by the Innocence Project since 1994, an astounding 25% had confessed to the crime they were convicted of even though they were innocent as proven by a DNA test.

Recent research on the topic lands squarely on findings that show how unsettling it is to find out how commonplace it is for people to confess to acts they did not commit. A recent paper by Saul Kassin and Jennifer Perillo of the John Jay College of Criminal Justice in New York, found that 25% of the participants in the study falsely confessed when accused of an act they did not commit.

The Economist magazine, in article from their Aug 13th, 2011 issue quotes, the researcher, Dr Kassin suggesting, “... that participants may have the naive—though common—belief that the world is a just place, and that their innocence will emerge in the end, particularly in the case of the alleged video evidence[a video camera was prominently placed in the testing room with the participants]. One participant, for example, told him, “it made it easier [to sign the confession] because I had nothing to hide. The cameras would prove it.”

Hughes first statement to the police lacking key details of the crime, his voluntarily signing forms consenting to blood and a search of his apartment, suggest he may have been behaving as Dr. Kassin suggests above, believing it was best to say something to stop the interrogation, and that in the end his innocence would emerge since he did not commit the crime.  Hughes has consistently denied giving any statement and has over the last 23 years maintained that he was coerced into signing the typed confessions.

At the end of the day, if as jurors we are to believe the police , its mind boggling that the detectives would accept a confession to a double homicide that fails to account for two victims. As a juror, it would make me distrustful of their motives in the worst case, or of their competency in the grave matter of investigating a capitol murder in the best case.

Confession #2:

The second statement differs significantly from the first in that, (1) The motive, Hughes has moved from accidentally killing Ms. Charles in a case of mistaken identity, to killing her as the result of a sexual assault. (2), A fight occurs between him and Shandra. And, (3) The number of victims, Hughes’ second statement accounts for two victims now instead of just one.

Comparing the details of the confession to the crime scene, several details seem to be at odds:

First, In this confession, it states he stabbed Marcell Taylor in close proximity to Shandra but his body was found 10-15 yards away.

Second, the police report claims Hughes motive was sexual assault but the second statement description of the incident seems to suggest the alleged sex was consensual. In either case, where is the physical evidence that a sexual encounter would provide to an investigator?

Third, the statement describes a fight between the victim and her attacker. Again,  where is the evidence a close, intense physical encounter like this would produce such as blood on clothing, scratches and so forth?

Fourth, the fact of an outdoor crime scene itself. Hughes acknowledges he knew Shandra well, and she in fact visited his apartment on several occasions. Wouldn’t it be more prudent to assault Charles in his apartment where there would be no witnesses?  If she made a sexual advance towards him as this confession suggests, why wouldn’t Hughes have taken her to his apartment that was only 150 yards from the crime scene?

Shandra’s Statement to the Police:

It was Ms. Charles conversation with Sgt. Hamilton that led to Hughes’ arrest, specifically her naming ‘Preston’ as the perpetrator.

Several details are unsettling if a man is to be convicted of a capital crime based on this conversation.

First, Sgt. Hamilton admits that he had trouble understanding Ms. Charles and notes that he was unsure of her response to several questions. His uncertainty is  especially pronounced when the answers involved proper nouns like her and her cousin’s name, or the name of the apartment complex of her attacker. Considering the weight of this last piece of evidence played in the arrest of Hughes, let's look through the apartment complex name with more care.

Hamilton reports hearing Shandra say ‘Lakeside’ when asked where her attacker lived.  If we believe Hughes is the murderer then what she meant to say was  ‘LakeHurst’ because this is the name of the complex that Hughes lived in nearby. Based on this assumption, Hamilton was mistaken in interpreting Shandra's statement.  'Lakeside', to 'LakeHurst' isn't much of a stretch but what complicates the matter is the fact that the 'Lakewood Village' apartment complex was also near the crime scene. At this stage we now have two viable apartment complexes to search for the murderer.  But   per the police reports, the investigation focused only on the Lakehurst apartments, most likely because the LakeHurst security guards happened to be on the scene at the time. There is no mention in the reports of other complexes including the Lakewood apartments being included in the investigation. One out of two, a fifty-fifty chance the apartment complex Shandra Charles meant to communicate was actually searched.  Wouldn’t a scrupulous investigator pursue all possible avenues based on the information available?

If Hamilton misunderstood the name of the apartment complex, can we be sure he understood the attacker's name correctly as 'Preston' ? What do we make of the Charles' unintelligible response when asked about the last name? Can we be sure beyond a reasonable doubt that the police correctly identified the murderer based on Shandra's conversation with Hamilton?

Hard Evidence Presented at Trial:

There was no hard evidence presented at the trial that linked Hughes to the crime which is bewildering when you consider the amount of evidence that was collected.  Mull over the fact that this was a double homicide stabbing, Hughes must have been in close contact with the victims, yet the State did not present any hair, fiber, or fluid evidence to the jury linking Hughes’ cloths, shoes or even his knife with the victims. It makes the State’s case difficult to accept.

The testing of the knife in the court room is mindboggling considering a man’s life is at stake. This is in my mind, is represents a truly cavalier attitude on the part of the prosecution as the judge noted in the case and makes it difficult to trust the prosecution’s case.

Hughes Previous Sexual Assault Conviction

This is a difficult matter.  Hughes states that he ‘plead out’ this charge even though he was innocent of the crime. Do we believe this, especially considering the assault of Shandra Charles would be the second time this charge had been leveled at Hughes within a three year period?

Putting myself in place of a juror, I would be inclined to at least maintain some doubt about the conviction, and side with Hughes. First reason, Hughes serves no jail time, but is released on probation for sexually assaulting a 13 year old girl and then of threatening her with a gun after she filed a complaint with the police. In a law and order state like Texas, I don’t believe the state would release a violent criminal unless the prosecution’s case was exceptionally weak.   Second, Hughes was 20 at the time, so the possibility that the relationship with his accuser was consensual is plausible. Lastly, as a young man without the resources to defend himself, it’s highly probable that he would take a plea deal like to this since it involved no jail time rather than risk a trial.

As a juror, I find reasonable doubt in the state’s case.

23 years later….

Do I believe Hughes actually committed this crime?  At this stage, after researching this case, I will admit to having grave doubts about the reliability of Hughes’ conviction.  During the appeals process, Hughes has challenged his conviction, as is usually the case in capital murder cases, on procedural and technical legal issues without success. Based on my research including an interview with his mother, no new evidence has been introduced nor has any retesting of evidence occurred in the intervening years. Hughes has contacted the Texas Chapter of the Innocence Project though it’s not clear if his case has gained any traction. If the evidence is still available at the Houston police department for testing, this is could be his best bet at revealing the truth about his innocence.

What has time revealed during the last 23 years?

Hughes’ Criminal Record

During the sentencing phase of a capitol cases, the chief concern placed before the juror is the question of whether there is a probability that the defendant would commit criminal acts of violence in the future that would constitute a continuing threat to society.  In Hughes’ case, his previous conviction of sexual, and aggravated assault must have weighed heavily on the jury’s decision to impose a capitol sentence.  As stated previously in this post, I found it exceptionally peculiar that the prosecutor would plead Hughes out to a sentence of ten years probation, no jail time, for the rape and assault of a thirteen year old girl. What else can we learn about this case?

In interviewing Hughes’ mother, she stated that the woman who accused Hughes of rape, had a history of using rape accusations as a weapon. She explained that she had learned the woman had also accused an uncle of rape shortly after Hughes was accuse.  The woman’s mother was skeptical as to the validity of her daughter’s accusations in both cases.  I was not able to verify the second rape allegation online or find any other source for this information.  I will say I found Hughes’ mother to be credible.

Along with rape, Hughes was also accused of assaulting the woman with a deadly weapon, of shooting a gun in her direction from his car, to dissuade her from pressing forward with the rape case. The author of this blog makes a convincing case that it is unlikely the shooting occurred at all. The author notes the shooting occurred in broad daylight on a busy street, but no witnesses materialized, that no bullets were recovered from an apartment into which the shoots were directed.  Lastly, the author observes that Hughes had an alibi for the time of the shooting that was corroborated by two witnesses but apparently dismissed by the district attorney.

As to the question of why Hughes received no prison time for these crimes, an article in the Houston Chronicle has the prosecutor, Pam Derbyshire, addressing this question directly. To paraphrase, she explains that Hughes was placed on probation based the wishes of the victim and her family. She goes on to say, the judge, taking into consideration the victim’s wishes and the fact that Hughes had no prior criminal record, decided to grant Hughes a second chance.

As an outside observer, I find this result incredulous. From the victim’s point of view, how comfortable would you be having Hughes on the street? Again, at the risk of sounding repetitive, from the state’s perspective, how common is it in Texas, to grant child rapists second chances even if they have no prior record? How often does Texas concede a sentence of probation to men who shoot at thirteen year old woman, to dissuade them from testifying in a criminal case? Weigh these questions against the likelihood Hughes took the prosecution’s plea deal to avoid a trial.

Hughes has successfully appealed and overturned one of these convictions, the conviction for aggravated assault with a deadly weapon. The judge in the appellate decision ruled that Hughes was not properly warned by the judge as to the consequences of pleading guilty. The appellate judge did rule that the admonishments Hughes received related to the rape conviction were legally proper, hence this conviction still stands. Had the sexual assault conviction been reversed as well, it is likely he would have been able to successfully argue that these prior convictions were improperly considered at the punishment phase of his trial which could have resulted in his sentence being commuted.

Houston Police Department

Considering twenty years have passed, I became very curious to see if I could identify a pattern of police misconduct over the years, of coerced confessions or the systematic mishandling of evidence as has been seen in Hughes’ case.

You don’t need to look far or hard to uncover evidence of the Houston crime lab’s incompetence, during the time Hughes’ case was investigated and the years that followed. James Bolding, the crime lab manager who tested Hughes’ knife in the courtroom during his trial, resigned in 2003, according to several articles in the Houston Chronicle, to avoid being fired. An internal, two year, $5.3million study commissioned by the HPD found a pattern of systematic incompetence at the crime lab during Bolding’s tenure, resulting in the police and prosecutors agreeing to review 600 more cases for errors. The retested has resulted in several high profile exonerations including the release of a man wrongly imprisoned for 17 years.

Looking at the issue of coerced confessions, I was able to identify at least one case in which a Houston police officer admits to coercing a suspect into confessing. This crime occurred about 6 months after the murders of Shandra and Marcell, on April 26th, 1989. The details of the case come from Roger Rodela vs. Texas, an appellate court decision with details of the case.

Rodela was suspected along with Robert Salazar of killing a woman in Houston. In his confession, Rodela admits to serving as a look-out while Salazar murdered the victim.  The arresting officer, Sgt Kennedy, during a conversation over drinks with the judge working Rodela’s case, Judge Shaver, made several statements that Shaver understood to be an admission by Kennedy that he had struck and coerced Rodela into confessing.  Shaver reported this information to the Houston PD’s Special Crimes Unit, provided a sworn affidavit, and recused him self from Rodela’s trial. What’s interesting is that the appellate document notes that Rodela’s confession was taken by Sgt. Silva, and Sgt. Gafford, the same detectives that secured Hughes’ first confession.  Rodela’s case would be remanded back to the trial court as a result.  

Alternative Suspect

During the course of my interview with Hughes’ mother, she relayed the possibility of an alternative suspect.

  

Douglas Swanson was an acquaintance of Hughes at the time of the crime. Swanson lived in a different apartment complex than Hughes but his apartment was located within walking distance of the crime scene. Preceding the night of the murders, Swanson had vowed to get even with Hughes, after Hughes had embarrassed Swanson in front of several young women Swanson was flirting at the Fuddrucker’s restaurant next to the crime scene.

The night of the murders, Swanson was seen by a witness, a hairdresser with a salon nearby, with the two victims, in the vicinity of the crime scene. The witness told Hughes’ mother that she was sure it was Swanson because he usually wore a rolled white towel around his neck. The night of the murders, the man she saw with the two victims had a towel around his neck.

Shortly after the murders, Swanson disappeared from Houston.  Hughes’ mother tracked Swanson down and found him living with a relative in Tyler, Texas. She travelled to Tyler, found Swanson, and had a brief conversation with Swanson, asking him to return to Houston, to help straighten out this matter. She reported that Swanson appeared anxious to see her and was visibly uncomfortable during their conversation.

Swanson’s whereabouts, and her suspicions were conveyed by Hughes’ mother to the Houston police but the detectives or later on, the court investigators never explored Swanson as an alternative suspect.

Swanson is currently serving a Life Sentence in Texas for a string of 14 crimes committed in April and May of 1991.  Four of his fourteen convictions are for the crime of sexual assault with a deadly weapon.

This author opposes the execution of Preston Hughes III.

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I'm interested in your feedback regarding Guest Blogger Al's effort. Feel free to comment on his writing, presentation, or analysis. I withhold my observations until you have had an opportunity to comment.

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The Case of Preston Hughes III: Part 1 of 2

[Addendum, 16 November 2012: Preston Hughes III was executed yesterday. He was innocent. Previously, the author of this guest post requested that his last name be withheld. He now asks that I identify him by his full name, Al Fontova. Given that he helped in the effort to save Preston Hughes, even as the execution drew near, I am pleased to act on his request.]

I have a standing offer to make this blog available to anyone who wants to present a well-reasoned analysis of a criminal case. While a number of people have expressed interest, Al [last name withheld by request] is the first person to actually do the research, analysis, and writing necessary to submit a presentable post. Without further ado, I offer the case of Preston Hughes III as prepared and presented by Guest Blogger Al.

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PART I

Preston Hughes III has been on Texas’ death row for the last 23 years, convicted of a double murder in 1988 of a 15 year old girl and her 3 year old cousin.

For your consideration, the case against Preston Hughes III - 

During the night of September 26th, 1988, two patrol officers were flagged down by a man frantically searching for his missing wife in a wooded lot located in West Houston.  The man and his wife were traversing the lot using a trail that residents of several nearby apartment complexes use on a regular basis in their travels to get to and from their apartments and the businesses nearby.  As the pair walked across the lot, they felt the presence of a stranger in the tall grass that they believed was stalking them, they became spooked, ran down the trail, out of the wooded area and became separated. The man had been searching for some time for his wife when he spotted the two patrolmen.

The officers began to search the area, and as they entered the parking lot of a Fuddruckers restaurant near the lot where the woman was last seen (this is the address of the crime scene per the police report: 2475 S Kirkwood Rd Houston, TX 77077), an employee of the restaurant, ran up to the policemen yelling, “she’s back in there in the woods”.  The policemen entered the wooded lot, walking down a well worn path in the grass, finding a young female, down face first in the grass, and unconscious.  The young woman was bleeding but still alive.  The policemen continued to walk down the path searching for a suspect, and 10-15 yards away from the young woman they found a small boy, three years old, bleeding from multiple stab wounds to the chest and neck. Resuscitation efforts failed, the boy was dead.  The time was approximately 11.30pm on September 26th, 1988.

The young woman found in the wooded area was not the wife of the man who had flagged down the police officers who it turns out, had hitched a ride with some friends after becoming separated from her husband. The young woman was 15 year old Shandra Charles and the three old boy was her cousin.

More police officers were dispatched to the scene to search for the perpetrator. Sgt. Hamilton, who would play a key role in identifying a suspect, arrived on the scene soon after the victims were found. Hamilton states in the report that he felt the young woman was having trouble breathing and asked her if she would like help turning over onto to her back. The woman said she would, so Hamilton helped her do just that.

At approximately 11.43pm Hamilton held the following conversation with the victim paraphrased from Hamilton’s police report:

Hamilton: “What happen?”
Charles: “He tried to rape me”
Hamilton: “Who tried to rape you?”
Charles: “Preston”
Hamilton: “Do you know him?”
Charles: “Yes”
Hamilton: “What is the name ..?”
Charles: “Preston”
Hamilton: “What is his full name?”
Charles: “Response is unintelligible to Hamilton”
Hamilton: “Where does he live?”
Charles: “Lakeside”
Hamilton: “What is your name?”
Charles: Hamilton hears:  “LaShandra” or possibly “LaShanda”
Charles: “My Cousin..!”  Charles is visibly upset & distressed.
Hamilton: He picks up she is talking about the boy found nearby who must be her cousin.
Charles: “Marshell” or “Marcell”
Hamilton: He understands this is the boy’s name.

At 11.55pm, an ambulance arrives on the scene. A paramedic on the ambulance would be the only other person listed in the police reports documented to hear Shandra speak that night, stating that her heard her say “…my cousin”.  It is unclear if the paramedic heard her speak at the same time as Hamilton or if this occurred possibly later in the night on the way to the hospital. Shandra Charles is pronounced dead at the local hospital sometime between 11.55pm and 12.54 am.

Two homicide detectives, Gafford and Bloyd, arrive on the scene sometime just after midnight.  Based on Hamilton’s conversation with Shandra, the detectives make the decision to focus their efforts in searching the Lakehurst complex. The detectives, interview two part-time security officers from the nearby Lakehurst apartments (not to be confused with the LakeWood Village apartments which the police reports lists as also being close to the crime scene) who happened to be at the crime scene after noticing all the commotion near the complex.

The Lakehurst security officers provide the Detectives with a current list of tenants and by 2.30am the officers are knocking on the door of the only “Preston” on the lessee list. After waiting at the apartment door for 8 minutes or so, a man answers the door, confirming his first name as ‘Preston’, last name as ‘Hughes’. Hughes answers a few more questions, and voluntarily agrees to accompany the detectives to the police station for further questioning.

At 4.30am,on the morning of September 27th, Gaffordarrests Hughes after discovering the following: (1) Hughes knew Shandra Charles and had some kind of relationship with her, (2) Hughes was at this time, serving a sentence of 10 years probation for the sexual and aggravated assault of a 13 year old girl in 1985; and (3) Hughes’ proximity to the murder scene since his apartment was located about 150 yards away from the crime.

Two Confessions

Detective Gafford begins questioning Hughes at 4.10am at the police station. Hughes repeatedly states he is innocent of these crimes and tells Gafford he has not seen Charles in two months. At 5.30am Hughes signs a voluntary consent form to have his apartment searched by the police stating, “I told you, I don’t have nothing to hide.” The interrogation continues and within an hour Hughes breaks down and confesses to the double murder.

A summary of Hughes’ first confession based on the police report:

On the night of the murders, he was walking on the path between the Lakehurst apartments and the Fuddruckers.  At the time, he was carrying a knife on his belt as protection against the family of a woman who claimed she was recently sexually assaulted by Hughes.

The statement continues noting that as he was walking across the dark, wooded lot, he was tapped on the shoulder by someone standing behind him. Fearing it was the family of the fore mentioned woman he panicked, pulled the knife from his belt, turned quickly, stating that he ‘stabbed high and low a couple of times’ before realizing it was Ms. Charles. Hughes goes on saying that he was now ‘scarred  and crazy’ and kept stabbing Shandra ‘6,8, possibly 10 times’, after which he ran to his apartment.

Along with signing each page of this three page confession, the police report details that Hughes would also go on to sign a form to voluntarily provide blood and urine samples before leaving the interrogation room to go to the county jail for processing.

At 11.45am that morning, less than six hours after the confession, Sgt. Yanchak, and Sgt. Fergusson, two homicide detectives working the day shift and conducting a follow-up investigation, check Hughes out of the Men’s jail for further questioning.  The two detectives had  noted while reviewing Hughes’ prior statement that he had failed to provide any details surrounding the death of the second victim, Marcell Taylor.

At 1.15pm, the two detectives take the following statement from Hughes summarized from their police report:

Hughes states he was walking across the wooded lot when he met Shandra on the trail, noting that her cousin was with her at this time. Shandra made sexual advances towards Hughes, sex occurred after which she asked to borrow $50.00 from Hughes. Hughes declined to provide any money. She then became angry and threatened to go to the police to claim she had been raped by Hughes. The confrontation escalated as Shandra became angry and hit Hughes with her fists.  Hughes says fought back, striking her in the throat.  Angered, he pulled his knife from its sheath on his belt, and began to stab Shandra repeatedly.  As he was stabbing Shandra, the boy ran between him and her; and it was at this time that he stabbed the child.  Hughes then says he went home to his apartment.

The police report makes no attempt to reconcile these two remarkably different accounts of the crime.

Evidence Gathered from Hughes' Apartment

• Pair of prescription silver rim glasses found between cushions of couch (the glasses are alleged to belong to Ms. Charles)
• Pair of blue jeans
• 1 blue short sleeve shirt
• 1 blue short sleeve shirt with gold wrist watch in pocket
• 1 U. S. Army knife and sheath. The knife was found in a cardboard box at the bottom of a closet, the knife and sheath were separated.
• Maroon pullover shirt
• Small clear plastic bag containing green leafy substance, probably marijuana. Interestingly, the police reports are inconsistent, some officer’s report makes mention of marijuana, other reports do not list this item of evidence.

The police also took possession of Hughes’ white tennis shoes according to the police report when he was at the station.  These shoes were allegedly worn during the crime.

From the crime scene:

• The victims’ clothing including shorts, shirts, panties
• Jewelry from the victims
• Finger nail clippings and a vaginal swab
• A Busch beer can found near the victims which appeared to be recently left there
• Small amounts of money from the victims and a piece of paper with a phone number
• White shoulder strap which was used as a belt by Ms. Charles
• Palm prints from the victims

What else do we know in this case:

• Shandra Charles was last seen alive by her friend at 9.30pm on the night of the murder while visiting the LakeHurst apartments.
• Ms. Charles was found with her shorts unbuttoned, and lowered off her hip. Her belt, originally believed to be a white strap to a purse was found away from her body, at the feet of Marcell Taylor.
• The victims both died of injuries to the aorta and jugular veins.  Based on the police reports, Ms. Charles had a one stab wound to the left side of her chest as well as one stab wound to the neck. Marcell Taylor had 2 wounds in the left side of his chest and one more possibly in the neck, or ear.
• The bodies were found approximately 10-15 yards apart.
• Shandra Charles died sometime between 11.55pm and 12.54am on the night of September 27th based on information in the police reports.
• Time of the crime is not assessed in any of the police reports. A coroner’s report if it exists, is unavailable online.
• Forensic research found online related to knife wounds indicates that there is a wide variance in the time victims can live after being stabbed. One study noted that victims suffering wounds to the heart can live for up to an hour and can be capable of vigorous activity.  A loose guess at the time of crime using the one hour time window stated above and Shandra’s time death would place the time of the murders sometime near 11pm.
• Hughes has no alibi.  He had been drinking that night with his friends after work from 6.30 to 8pm.  He then caught a bus and cab to get home, and though there is no documentation in the police report, it’s likely he arrived at his apartment near 10.30pm. that night.
• Shandra and Marcell suffered no defensive wounds to the hands or arms. Interestingly, one study found online, notes that only 46% of stabbing victims suffer defensive wounds during an attack.
• Alternative suspects: The police did not pursue any investigation outside of Hughes.
• Motive per the police report was the sexual assault of Ms. Charles.
• Hughes’ criminal record suggests he has a history of violent crime towards young girls.  
• Hughes has repeatedly claimed he is innocent of these crimes over the years.

The Trial

Documentation related to Hughes’ original trial is sparse. Based on the appellate documents and testimony listed on Hughes’ web site, Hughes recanted his confessions, stating that he had involuntarily signed the statements because he was in fear of his life at the time.

Despite the numerous articles of evidence collected, the hard evidence presented at trial was meager. James Bolding from the Houston crime lab, tested the knife along with one of Hughes’ tennis shoes, in the court room, while the jury was excused from the room.  These tests were inconclusive, finding possibly animal but no human blood on the knife.  It’s unclear if the sheath was tested as well. In responding to the forensic testing of evidence in his courtroom, the judge chastised the prosecution for their ‘cavalier attitude’  but none the less, allowed the knife to be entered into the trial and presented as the murder weapon.

The remaining evidence gathered in the case was either not tested (finger nail clippings from Shandra Charles, the victims’ clothing, the suspect’s clothing, a vaginal swab) or the tests proved inconclusive. About this situation, the prosecutor, in his closing arguments remarks: “Where's the scientific evidence? Where is it at?" We did the best we could. It's inconclusive, I agree.”

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Guest Blogger Al requested that I present his article in two parts. I will therefore temporarily withhold Part 2 in which he provides his analysis. For now, comments are open for your observations and for your deliberation of the case.

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The Impending Execution of Nicholas Tate

Nicholas Tate sits on death row awaiting execution by the people of Georgia on 31 January 2012. Though he pleaded guilty to murdering a mother and her child, he appealed the resulting death sentence on technical grounds. The appellate courts upheld the sentence. Though Tate has appeals still available to him, he now declines to pursue them.

From the appellate decision in Tate v. State of Georgia, I offer the following pieced-together summary of the crime.

Chrissie Williams and her three-year-old daughter, Katelyn Williams, were found dead in their home. Chrissie Williams was found bound to a bed with handcuffs and duct tape, and she had a bullet wound to her head. Katelyn Williams was found naked on the floor of another room, and her throat had been slit. Nicholas Cody Tate pleaded guilty to both murders and to related crimes, and he waived his right to a jury trial as to sentencing for the murders. At the conclusion of a bench trial on sentencing, the trial court found the existence of multiple statutory aggravating circumstances and sentenced Tate to death for each of the murders. ... 

Tate argues that his guilty pleas to the two counts of kidnapping and the one count of child molestation were not supported by a showing of a sufficient factual basis ... 

The factual basis shown to the trial court for Tate's guilty pleas, including Tate's videotaped interrogation, correlated sufficiently with the definition of kidnapping ... 

The strongest portion of the factual basis for Tate's guilty plea to child molestation was his own statement in the plea hearing that he himself had undressed Katelyn Williams for the purpose of his sexual arousal. ... 

The trial court denied Tate's pretrial motion to suppress his videotaped interrogation. Despite the fact that the videotape is marked in the record as an exhibit of the State, a review of the sentencing trial record reveals that the videotape was actually introduced by Tate during his cross-examination of a witness for the State. Accordingly, we conclude that Tate has waived the right to complain on appeal about the introduction of the videotape as evidence at his sentencing trial. 

The evidence showed that Nicholas Tate directed Chad Tate, his 15-year-old brother, to silence Katelyn Williams, who was only three years old. Chad Tate emerged from the room where he had strangled the child with a telephone cord, likely with his hands showing obvious signs of what he had done. When the child regained consciousness and began screaming again, Nicholas Tate, who had initially sent Chad to silence the child, allowed Chad Tate to take his knife and to return to the room where the child was. The evidence also showed that Nicholas Tate had been intent upon eliminating potential witnesses and that Katelyn Williams had recognized him and had called him by name. Both Chad and Nicholas Tate's pants were shown to have been stained with Katelyn Williams's blood. The trial court, acting as the finder of fact, was authorized to find that Nicholas Tate directed his young brother to murder the child. As we have held, one "who directs a follower or lackey to commit murder" is guilty of the statutory aggravating circumstance addressing persons who cause or direct another to commit murder as an agent or employee.

Note that the police in this case did indeed record their interview with Tate, and they did preserve Tate's confession with that recording. Kudos to them. Given the preserved, unchallenged confession, there is no doubt that Nicholas Tate is factually guilty of the crimes for which he is scheduled to die.

In cases where factual guilt is clear, I neither oppose nor support the death penalty. Instead I stand mute.

With respect to the impending execution of Nicholas Tate, I stand mute.

The Execution of Rodrigo Hernandez

Though it is likely that Rodrigo Hernandez was factually guilty of the crime for which he was executed, I nonetheless opposed the execution. I opposed the execution because Hernandez was convicted in part on a disputed confession which the police failed to record. I'm weary of our justice system condoning such failure to preserve evidence and / or the willful manufacture of evidence.

One commenter provided a link to an article about Hernandez that I had not read. The article provided some additional information regarding both the alleged confession and the DNA evidence. First the DNA info:

With no sign of Verstegen or her 1991 Pontiac Firebird, a massive search began:  ... Susan Verstegen's brother-in-law and her boyfriend, Douglas Kirchner, found the Firebird. A handprint was on the driver's side door and “dragging finger marks were on the inside of the back window,” made by “smaller fingers,” according to police records. A wet spot was on the back seat.

Police cut the wet fabric and filed it as evidence, along with soil samples from beneath the car, cigarette wrappers, latent fingerprints, vacuum samples, the drum, nail clippings and swabs from Verstegen's body. ...

Four years later, when the national DNA system was established, the evidence was submitted. Monney would continue to get letters from SAPD detectives informing him they'd reopened the case. Four investigators took it up at different times.

Though they still do not make clear the nature of the DNA link to Hernandez, one might guess that they found Hernandez's DNA on the vaginal swab taken from the victim. This guess could be reinforced by Hernandez claim that he and the victim had consensual sex but that he did not kill her.

Hernandez now says he and Susan Verstegen had a months-long casual sexual relationship after they met at an H-E-B where he worked ...

It's the additional information about the alleged confession that most attracted my attention.

Almost by chance, Hernandez was linked to Verstegen's death in 2002, eight years after her half-naked body was found stuffed in a 55-gallon drum at a church.As a condition of his parole for an assault in Grand Rapids, Hernandez had to submit a DNA sample for a local, state and national database called CODIS, the Combined DNA Index System. When a match was found,George Saidler, then a San Antonio Police Department cold case detective who had reopened the probe in 2000, visited Hernandez in a Michigan jail. 

After about 20 minutes, Saidler recalled, Hernandez asked a Michigan officer to leave the room, then confessed to killing Verstegen, a single mother interested in photography who worked for Frito-Lay. 

“He gave me the facts of the case that only the killer had known,” said Saidler, now an investigator with the Bexar County district attorney's office. 

“He gave (the confession) up pretty easily to me. He had some tears, but I couldn't say if he was shedding tears for himself or for the victim.”

Not only did the Texas Rangers not record the interview, a Michigan police officer left the room just before Hernandez allegedly confessed. I find it extremely odd that Hernandez would insist a Michigan police officer leave the room as a condition of confessing to capital murder to two Texas Rangers. It sounds fishy. Of course I don't know if it is fishy, because no one bothered to preserve the evidence. That's the whole point.

Now I read this article about Rodriguez's execution that says he finally confessed to killing both woman in Texas and the woman in Michigan he was linked to by his DNA.

Right to the end, death-row inmate Rodrigo Hernandez – suspected in a 1991 killing in Grand Rapids – hoped for a last-minute reprieve. 

When it became apparent that wouldn't happen, Hernandez, who once lived here, admitted he shot and killed Muriel Stoepker, 77, near Grand Rapids Community College campus, and raped and strangled Susan Verstegen, 38, whose killing in San Antonio led to his execution Thursday. 

“I can tell you, Mr. Hernandez did not want (the execution) to happen,” Michigan State Police detective Sgt. Sally Wolter said Friday. 

Just minutes before his execution Thursday night, Rodrigo Hernandez confessed to the 1991 killing of Stoepker and 1994 killing of Verstegen, police said. He was put to death in Huntsville, Texas. ... 

Police in 2010 tried to talk to Hernandez, but he refused pending the outcome of appeals. After appeals were exhausted, police again tried to talk to Hernandez. He admitted to having sexual relations with Stoepker, but said he did not kill her. 

Wolter said Stoepker’s family took comfort in knowing that the person who killed her finally took responsibility. Police were confident based on the scientific evidence, but also wanted to rule out the possibility any others were involved. 

Wolter said police are confident Hernandez acted alone. She said that once Hernandez realized that the execution would occur, he consented to an interview with Texas Rangers and admitted to the killings. He told police that he had a gun that accidentally went off, killing Stoepker. 

“I think for the Stoepker family, and also for the family in Texas, the Verstegen family, he has now admitted responsibility for the crimes. That was their hope, for (the killer) to take responsibility and show some remorse,” Wolter said. 

She said it helps families to know “they have the right guy.” 

The Metro Cold Case Team, comprised of Grand Rapids police, Kent County sheriff's deputies and state police, also took satisfaction in the confession. Between his statements and physical evidence, police have determined he alone killed Stoepker and can close the case.

Hernandez, 38, maintained his innocence through it all. 

“It still doesn't seem real. I did not commit this murder; I'll take that to the grave,” he told the San Antonio Express-News recently.

Now Texas claims to have two confessions from Hernandez. They have the unrecorded confession, in the handwriting of a Texas Ranger, taken after Hernandez asked the Michigan police to leave the room. They also have a confession, apparently unrecorded, taken just before Hernandez was executed and soon after Hernandez claimed he would never confess.

I figured since Hernandez had finally decided to confess, he would mention it in his final statement, the one that is recorded. He might apologize to the victim's family. He might ask for forgiveness. But he did not. As best as I can find, here are his final words.

I want to tell everybody in the world I love everybody. Keep your heads up. We are all family, people of God Almighty. We're all good. I'm ready. This stuff stings, man.

So we have yet to hear Hernandez confess. We have only heard him say that he didn't do it, that he didn't confess, and that he would never confess. We have, however, been assured by the Texas police that he did confess, twice, to them and them only. And now they can magically close the other case as well, which they couldn't do if Hernandez had not conveniently and temporarily confessed.

Record the damn interviews.

Preserve the damn evidence.

I maintain my objection to the execution of Rodrigo Hernandez.

I Oppose the Impending Execution of Rodrigo Hernandez

Rodrigo Hernandez sits on death row awaiting execution by the people of Texas. Unlike most other death penalty cases, most of the appellate decisions regarding his case are not available on Google Scholar. I will therefore construct a summary of his case from bits and pieces. I begin with the standard media advisory from Texas Attorney General Greg Abbott.

The record reflects that in the early morning hours of February 18, 1994, victim Susan Verstegen was re-stocking snack products at a San Antonio grocery store from the storage bin in back of the store. While working at the storage bin, Verstegen was attacked, sexually assaulted, and strangled by Hernandez. The offense remained unsolved until 2002 when the results of DNA testing of evidence that had been collected from the crime scene, and that had been entered into a national database, matched the results of DNA testing on a sample that had been collected from Hernandez by the State of Michigan and entered into the same national database. After the reported match, another sample from Hernandez was tested, and the DNA pattern was found to match the DNA pattern from the sample collected from the crime scene. Hernandez’s written statement, which detailed his actions in attacking, sexually assaulting and killing Verstegen, was also introduced into evidence.

Though not mentioned in the advisory, it seems as if DNA has linked Hernandez to another murder. From mlive.com:

GRAND RAPIDS -- When Rodrigo Hernandez was about to be sentenced to prison in 1998 for severely beating a Grand Rapids man, he asked a judge for mercy because he had become a reformed "family man." 

"I have been living an honest life and staying out of trouble," he wrote in a letter. "I consider myself a family man. So I appreciate it if you would give me one more chance to be able to continue my life with my family, better my life and help the community." 

What Hernandez failed to tell the judge, police now say, is that he committed two as-then unsolved rapes and murders: the 1991 brutal beating, rape and shooting of 77-year-old homeless woman Muriel Stoepker in Grand Rapids and the 1994 killing of a 38-year-old San Antonio woman. 

Stoepker was known as Mary or the "bag lady" in downtown Grand Rapids because she carried her belongings in plastic bags. 

Evolving DNA evidence helped police link Hernandez to both crimes, the latest revelation coming Thursday as police announced they believe he was responsible for killing Stoepker. 

Hernandez, 37, has been on death row in Texas for six years, with his DNA part of a national database since Michigan prison officials took a mouth swab upon his 2002 parole for the 1998 assault. He was arrested six months later in Grand Rapids for the DNA match to the Texas homicide. 

Stoepker's case took longer, police say, because the semen sample was too small at the time to make a good profile. 

This year, the Kent County Metro Cold Case Team decided to resubmit the sample from her case, knowing the standards had changed. 

"Before it would have taken something the size of a bottle cap," said state police Detective Sally Wolter. "Today, it's the size of a pin head." 

Police have looked at whether Hernandez might be responsible for other unsolved murders in the Grand Rapids area from the 1990s, but they have no further DNA evidence to link him to any other crimes. And Hernandez is not cooperating. 

Cold case team detectives recently visited him in prison but could not get him to speak about Stoepker or anyone else.

I now include a segment from a post by Mike Farrell. Recall that Farrell played B. J. Hunnicutt on Mash. He is now an ardent death-penalty abolitionist. [Errata: My bad. The post was by a different Mike Farrell who is also an ardent abolitionist. See the comments.]

Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum. 

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder. 

On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since. 

In light of the confession, DNA and the absence of any evidence that  the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Despite the seemingly overwhelming evidence against him, Hernandez refuses to confess to the murder of Susan Verstegen. I don't know whether or not he affirmatively maintains his innocence.

I've found no one who seems bothered by the quality of either the DNA evidence or the confession. Even Mike Ferrell writes "there is nothing suggesting the conviction was unsafe." I guess I might be the first to suggest otherwise

I cannot actually object to the DNA evidence any more than I can accept it without question. While we are told Hernandez is linked to the Verstegen murder by his DNA, we are given no other details. Apparently the simple mention of DNA is sufficient proof for most readers.

I can and do object, however, to the confession evidence. Regarding that confession, I found the following from a U.S. Fifth Circuit decision.

The state trial court held an evidentiary hearing to determine whether Hernandez's written confession should be suppressed. The two officers who interviewed Hernandez testified that after he was given his Miranda warnings, he confessed to his involvement in Verstegen's death, claiming that he had raped her but had not intended to kill her. The officers also said that although Hernandez agreed to give a written statement, he asked one of them to write it for him because his hands were shaking too much. According to the detective who took the statement, Hernandez read it before initialing each page and signing the last page. Hernandez's attorney argued that the confession should be suppressed because it did not comply with Michigan law. The state trial court concluded that Texas and not Michigan law applied and that under Texas law the confession was proper, so it was admissible. 

Hernandez now asserts that it was unreasonable error for his attorney not to put him on the stand to testify during the hearing. Hernandez contends that he would have testified that he had signed a blank form and that his initials were forged. The lawyer testified during the state habeas proceeding, however, that Hernandez was extremely nervous and had an extensive criminal record, so his credibility likely could be impeached. It would have been Hernandez's word against that of two officers. The attorney did suggest at the proceeding that the confession may have been forged, but he chose to raise that argument during cross-examination of the officers.

I'll concede immediately that Hernandez's claim he signed a blank sheet of paper sounds bogus. I note, however, that it sounds less bogus than the claim of Texas death row inmate Cesar Fierro. Fierro, you may recall, claimed he signed a confession only after Mexican police, who were cooperating with the El Paso police, arrested his parents and threatened to torture them with a cattle prod.

In the more bogus case, the Fierro case, it turns out Fierro was telling the truth. Even the Texas Court of Criminal Appeals finally accepted his claim as true and accepted that the police had perjured themselves to help secure the conviction. Fierro remains on death row, however, because the TCCA declared the extorted confession and subsequent perjury to be "harmless."

Johnny Frank Garrett provides another sad example. He was probably innocent but certainly executed. He too was convicted based in part on a confession he claimed he never made. From the most popular post I have written for this blog, Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant:

Garrett confessed, at least according to the police, without being recorded, after asking for an attorney, but then refused to sign the confession they had typed up, and denied making the confession.

The problem in these cases, and in innumerable other cases, is that the police failed to properly secure the confession evidence by recording the interview / interrogation. It is unconscionable that police continue to conduct interviews and interrogations without recording them. The DNA equivalent would be to have the police merely assert that the DNA matched rather than taking the bother to document and preserve the test results.

The Fierro case (and possibly the Garrett case) proves that some police will go to extremes to extract a confession if unmonitored. They will be undaunted by any thought that their victim will claim coercion or falsification. Even the Fifth District Court laughed off such a concern. They noted that had Hernandez decided to testify, "his credibility likely could be impeached. It would have been Hernandez's word against that of two officers."

The appellate courts are party to coerced and falsified confessions because they don't insist that the interview evidence be preserved, because they automatically believe the police rather than the defendant, and because they declare even proven cases of coerced confessions to be "harmless."

While I suspect that Rodrigo Hernandez is factually guilty of murder, I nonetheless oppose his execution. Given the egregious police behavior regarding the confession, I refuse to stand mute.

Addendum: This story becomes even more troubling. See my follow-on post The Execution of Rodrigo Hernandez.