'A Change Is Gonna Come'

by Katherine Scardino

My client, Anthony Graves, walked out of the Burleson County Jail on October 27,  2010, after having been incarcerated in jail and prison for a whopping total of 18 years.  Out of those 18 years, Anthony was on death row for 14.  Can you close your eyes and imagine how long 14 years is?  And, being locked in a box for that long for a crime that you know in your heart you did not commit.  I cannot imagine the confusion and terror that must build inside after only a very short period of time, not to mention 18 years.

Anthony Graves is free. But what now? Although no amount of money can replace nearly two decades of an innocent man's life, it seems obvious that the state of Texas should take some responsibility for this egregious wrongful conviction and imprisonment. In 2001, Texas passed a law that provided exonerated people monetary compensation for every year they were wrongfully imprisoned. This law awarded exonerated prisoners $25,000 for every year of wrongful incarceration, with a maximum allowance of $500,000 per person. Of course, this was only for wrongful incarceration claims that were approved through the state comptroller's office. From 2001 to 2006, only about half of the claims submitted were approved.

In May 2009, Texas passed the Tim Cole Compensation Act.  This legislation was named after and inspired by Timothy Cole, an inmate who was wrongfully convicted for rape and who received a 25-year sentence.  Mr. Cole died in prison in 1999, at age 39, from a heart attack, after spending 13 years locked up.  Naming a piece of Texas legislation after this man hardly seems like enough to do much for his family’s feelings.  But, this act did, in fact, increase the annual amount a wrongfully convicted man receives for each year, spent behind bars for doing nothing, from $50,000 to $80,000. In addition, the act also provides health insurance and college tuition. However, if someone accepts the state compensation, they lose their right to file a civil lawsuit against the State of Texas. Also, any wrongly incarcerated person who went on to commit other crimes would not be eligible for the compensation.

Currently, Anthony Graves should receive $80,000 for each year he was incarcerated.  That adds up to right under $1.5 million dollars.  I suppose we could discuss how much is really enough, but that may be for another day.  Unfortunately, there is a snafu with Anthony's claim to the state for compensation.

Last October, the district attorney and his special prosecutor held a press conference and stated that after a thorough investigation of the case, they were dismissing the indictment of capital murder against Anthony.  They both said that Anthony Graves was actually innocent of the charge of capital murder.  An Order of Dismissal was prepared by the district attorney and presented to the judge for her signature.  The order stated the following: “We have found no credible evidence which inculpates this defendant.” It was signed by both the district attorney and the judge.  Anthony Graves was released from the county jail that day, and we picked him up and took him home.

Now, several months later and after applying to the proper authorities for the funds under the Tim Cole Compensation Act, we have learned that there may be a problem.  The state has not yet officially responded to our application for funds, but the defense attorneys are anticipating a serious roadblock. We have been told that the words "actual innocence "must be included on the order of dismissal.

To try and straighten out this technical difficulty, we timely prepared and submitted to the district attorney of Burleson County an amended order of dismissal that included those two magic words--words that he had used in front of cameras last October.  Bill Parham, the DA, refused to sign the amended order, which would have assured that Anthony would be eligible for these funds. This is despite the fact that he had no problem discussing Anthony's innocence with the media on the day of the news conference. 

So, here we are, waiting and hoping for a miracle.  Anthony Graves has been learning a lot about life since October.  He has a new computer, a cell phone, a flat-screen television, and most recently, a used car to call his own, and even a job.  Most of those items were gifts to him from his lawyers, family and friends.  It is hard to walk out of jail or prison after 18 years and be expected to simply get a job.  He did not even know how to send an e-mail, God forbid.

But, he will overcome these hardships. Anthony Graves always has met, pondered and mastered the greatest adversities imaginable.  There are some good things that are happening to him, also.  He has spoken at several functions around Texas about his life experiences to try and convince young people to be careful about who they run with and what they put in their bodies.  He wants to do what he can to change lives.  And, he can.  

CBS’ 48 Hours is doing a special program on Anthony's conviction and release.  They have interviewed many people having to do with his case--even the DA who caused the entire fiasco.  Anthony told the reporter that when he was on death row, he entertained himself by singing, and eventually she convinced him to sing the song for her. I spoke with her yesterday and she described for me the scene when Anthony began singing for her and seemingly forgot the cameras were on.  He closed his eyes, and as tears fell down both cheeks, he sang  from his soul A Change is Gonna Come.   She started crying; I started crying.  There but for the Grace of God go I--or you.  

There been times that I thought I couldn't last for long
But now I think I'm able to carry on
It's been a long, a long time coming
But I know a change gonna come, oh yes it will 
- Sam Cooke

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Eyewitness MISidentification

by Katherine Scardino

My hometown of Houston, Texas, made headlines at the end of July for exonerating two innocent men in one week.

To be honest, I am still angry over the number of years these men spent in prison before being released. I discussed the exoneration of the first man, Mr. Allen Porter, in my last post titled “Free at Last, Free at Last.” The day that post was published on this site, news broke of another Harris County man who was released and exonerated.

Mr. Michael Anthony Green (below right) spent 27 years in prison after being convicted of rape mainly as a result of the testimony of one eyewitness. Other inmates who have been exonerated and later interviewed by the media were quoted as making fairly soft, understanding, Christian-like comments. Mr. Green did no such thing. He was angry. As a matter of fact, on the date the judge acknowledged his innocence of the rape offense, some of his pent up anger burst out at the deputy who insisted on putting him in leg restraints and handcuffs that were too tight for his walk from the County jail to the courthouse -- even though the deputy knew at that moment that Mr. Green was an innocent person. I am afraid that my attitude would be about the same, if not much worse, had I lost 27 years of my life to faulty witness identification and subsequent false testimony. Especially, to top it off -- the icing on the cake -- when an eager officer felt that tight handcuffs were appropriate under the circumstances.

Eyewitness identification is not reliable. From 1990 to 2007, there were 24 wrongful convictions in Texas due to eyewitness identification. The most serious case was that of Timothy Cole, who is not included in the list of 24 exonerated inmates because, unfortunately, he was only officially exonerated posthumously. Timothy Cole (below left) died in a Texas prison in 1999 while serving a 25 year sentence for a rape he did not commit. Nearly a decade later, on April 9, 2009, DNA evidence from the crime posthumously exonerated him and implicated another man as the perpetrator.

In 1985, a young female Texas Tech student was parking her car in a church parking lot across from her dormitory in Lubbock, Texas when an African-American man approached her and asked her to help him start his car. She told him she did not have any cable, and he then reached in through her window and unlocked her door. He then put a knife to her throat and forced her to lie down in her car. The man drove her car to a vacant field where he vaginally raped her. The white female student called the police and during the investigation, she described her attacker.

Timothy Cole was a 26-year-old Army veteran studying business at Texas Tech in 1985. Timothy said he was at home studying the night of the attack. Timothy Cole’s photograph was placed in a photo lineup as a result of a conversation he had at a pizza parlor near the Texas Tech campus with a female detective. Cole was identified by the victim of the rape and was arrested for aggravated sexual assault. The victim of the crime testified at trial and identified Timothy Cole. This identification, along with inaccurate testimony from a forensic examiner, got Timothy Cole convicted of Aggravated Sexual Assault after six hours of jury deliberations. He was sentenced to 25 years in prison.

Now, imagine that you are Timothy Cole. At the time of the rape, he was in college. He had a life, probably a girlfriend or two, and a family -- a past and a future. Until he died in prison in 1999, he had nothing. His appeals were exhausted and nobody could give him any hope that he would ever be released. He was one of those men I have described before. He lived in a box, knowing that he was an innocent person and that no one was doing anything to help find the real perpetrators.

In 1995, one man came forward to accept responsibility for the crime that Mr. Cole was serving time for. Jerry Wayne Johnson wrote to police and prosecutors in Lubbock County stating that he was the guilty party. Keep in mind, however, that this confession came only after the statute of limitations had expired on rape. No one wrote him back. No one did anything. Eventually Mr. Johnson got to the Innocence Project of Texas, where I happily sit on the Board, and told his story. Attorneys at the Innocence Project sought posthumous DNA testing. Cole was cleared by DNA tests in 2008. At a hearing in February 2009, Johnson again confessed his crime before a judge. Mr. Cole was officially pardoned by Gov. Rick Perry on March 1, 2010. Unfortunately, Timothy Cole never knew any of this.

There are many stories like Timothy Cole’s. I will repeat -- eyewitness identification is not reliable. It is the leading cause of wrongful convictions in the United States. Seventy-five percent of the convictions overturned by DNA evidence have involved a mistaken eyewitness.

The Supreme Court of the United States has recognized the uncertainties of eyewitness identification. In United States v. Wade, a 1967 Supreme Court opinion, the court stated: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”

One of the primary reasons that eyewitnesses to crimes have been shown to make mistakes in their recollection of the attackers is the police procedures used to collect eyewitness evidence. A common eyewitness identification issue arises when a witness or victim is asked to identify a stranger -- either in a line-up, or by viewing a photo spread.

So, how can this problem be solved? It has been recommended that police line-ups be conducted in a double-blind fashion, like any scientific experiment, in order to avoid the possibility that inadvertent cues from the officer who is conducting the line-up may suggest the “correct” answer. That means that neither the witness nor the officer conducting the line-up would know whether the suspect was even in the line-up. Some states have adopted reforms in eyewitness identification procedures. All states should adopt them, but no one wants to admit that they may be wrong. Texas has not adopted any reforms to change much of anything -- including eyewitness identification procedures.

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What's Wrong With Being Right?

by Katherine Scardino

Hank Skinner is about to die. He is a convicted capital murderer with an execution date of March 24, 2010. However, there's a problem. Hank Skinner has continuously said that he is an innocent man. We don't know that he's an innocent man. But there's one way to determine whether he's telling the truth. For fifteen years, Hank Skinner has asked for a DNA analysis of the evidence in his murder trial. He was convicted of bludgeoning to death his live-in girlfriend, Twila Busby, and stabbing to death her two mentally impaired sons, Randy Busby and Elwin Caler. The murders occurred on December 31, 1993. Skinner was convicted of the murders on March 18, 1994, and sentenced to death on March 23, 1995.

Skinner has filed numerous appeals. This article isn't about whether Hank Skinner is guilty or innocent. It's about whether his request for DNA testing should be granted. Regardless of the facts of any case, if there's a test that would resolve the issues, wouldn't most people say: Go ahead and do it? Let’s settle this issue once and for all. If Hank Skinner’s DNA is linked to evidence used to prove his guilt, then by all means, let’s show it. If Hank Skinner’s DNA isn't on that evidence, then let’s show that also. Who would object to that? Well, let’s answer that. Maybe the prosecutor, who wouldn't want it proven that he got the whole case wrong? The judge, who wouldn't want to be reversed -- and revealed as a total idiot whose every ruling and the theory of the case presented by the State were totally and provably wrong. Just wrong. No one wants to be proven wrong.

So what's the issue? It's that Hank Skinner has asked for a DNA analysis of the untested evidence ever since his 1994 trial, and has been refused every step of the way. My question is this: If a simple DNA analysis would prove this man innocent, or even throw some doubt on his guilt, what in holy hell is wrong with doing that?

I'm not saying Hank Skinner is innocent. I have no idea about whether he is actually innocent or guilty as sin. My question is simply -- if this man’s culpability can be shown by a simple test, why in the world would the State be opposed to it? He is about to die, for God’s sake. What would they be afraid of? Are we so into this idea of finality that we forget what is really fair? The State argues that finality is the goal, and the courts have ruled. But DNA testing is in the hands of the State. They could have answered this question years ago.

Hank Skinner has been accused and convicted of horrible crimes. Again, I reiterate, I have no knowledge whether Skinner is guilty or innocent. I just know that when a person proclaims his innocence, over and over to every appellate court possible, and the State refuses to do the simple DNA testing that would resolve several layers of appellate review, I get suspicious. Why the opposition? The DNA would show one way or the other, right?

It reminds me of the Timothy Cole case. Timothy Cole was convicted of the 1985 rape of a Texas Tech student and  sentenced to 25 years in prison. His conviction was based in part on the victim’s identification of him as her attacker, in part on what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole’s name. Cole died in prison in 1999, at age 39, after an asthma attack sent him into cardiac arrest. Cole was cleared by DNA in 2009, posthumously exonerating him, after repeated confessions by another man in 2008.

When Gov. Rick Perry pardoned Timothy Cole, it ended the Cole family’s long battle to clear Timothy’s name. But it did something else. It reminded all of us that Timothy Cole was wrongfully convicted of rape two decades ago, and DNA would have proved his innocence -- if someone had had the cajones to stand up and say we should give this man have the test he was asking for. DNA would have disposed of this case years ago. Why did we take so long? As I see it, there is only one answer. Pride. The prosecutor. The judge. The defense lawyer. What was the delay? If there is an iota of reason why a defendant should have DNA testing of any piece of evidence, why in the world would anyone object?

But what about the case of Cameron Todd Willingham? He was executed in 2004 for arson in a fire that killed his children. At his trial, forensic experts for the State said the fire was set intentionally. But later, other experts in forensic evidence involving arson found the forensic science used in the case was invalid and that the analysts should have known that it was faulty at the time of their testimony. Simply put, Texas executed an innocent man.

About four years ago, the Texas Innocence Project, of which I can proudly say that I am a board member, asked the Texas Forensic Science Commission to review the Willingham case and similar cases. The conclusion of the Texas Innocence Project is that there are likely other cases in Texas like those of Timothy Cole, Cameron Todd Willingham, and maybe Hank Skinner. Science proved Timothy Cole’s innocence 10 years too late. It threw Cameron Todd Willingham’s case into doubt several years too late. And it will soon be too late for science to prove whether Hank Skinner is an innocent man.

If an inmate says “I am innocent and I can prove it,” what's wrong with letting him prove or disprove his innocence with DNA testing? It seems silly to even try to argue that denying this testing serves justice in some way. When Gov. Rick Perry pardoned Timothy Cole this year, it was good for Cole's his family but embarrassing for the State of Texas. We had a governor who refused for a very long time to address this issue. It took years. Nor should Perry granted Cole a pardon. Cole should have been exonerated years ago; the television cameras would have been at the front door of the prison as he walked out, a free man.

The State of Texas needs to do some re-thinking, and our citizens should remember this at the voting booth.

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