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Ogg to review Temple case

We’ll see how this goes.

Kim Ogg

Harris County District Attorney Kim Ogg said Wednesday she will personally lead a review of the case of David Temple, whose conviction of murdering his pregnant wife was overturned by the state’s highest court amid findings of prosecutorial misconduct, before deciding if her office will retry the former Katy football star and Alief high school coach.

Temple, 48, was released from prison Dec. 28, but remains charged with murder in the 1999 shooting death of his wife, Belinda Lucas Temple. He is free on $30,000 bail while the district attorney determines how to proceed.

After a court appearance Wednesday, Temple said he wanted to be declared actually innocent in Belinda Temple’s murder.

His attorney, Stan Schneider, said the review panel will be composed of lawyers and investigators in the DA’s office, two of whom – Steve Clappart and John Denholm – have previously investigated the case and have publicly declared their belief that Temple was innocent.

Schneider said the other two members of the panel are veteran trial prosecutor Donna Cameron, who initially took the Temple case to a grand jury that investigated the allegations without result, and appellate attorney Andrew Smith, who has spent years opposing Temple’s attorneys and arguing that their client is guilty and got a fair trial.

Temple’s defense team said they expect a thorough review from Cameron, Smith, Denholm and Clappart.

“They are quite knowledgeable about the case,” Schneider said.

Ogg and staffers will likely spend months reviewing mountains of evidence from the lengthy investigation and reams of trial transcripts from weeks of testimony before moving forward with a new trial or dismissing the case.

“The district attorney’s office decides whether to pursue criminal charges based on evidence,” Ogg said in a statement. “The David Temple file consists of thousands of pages and it is important to review them thoroughly. I will personally conduct the review.”


Temple’s declaration that he is innocent stands in stark contrast with the beliefs of the family of the victim. The Lucas family have long maintained that Temple is guilty of killing his wife, which is what a Harris County jury determined in 2007.

“They’ve never once doubted what the jury came up with,” said Andy Kahan, with the City of Houston’s Crime Victims Office. “There’s no ifs, ands or buts, from their perspective, that the outcome was correct.”

See here for the background. Ogg is going to be criticized no matter what she chooses to do, so she may as well take her time and reach a decision she’s confident in. Temple’s statement that he wants to be exonerated and will pursue a ruling that he is actually innocent will be a much tougher bar for him to clear. Ogg may reasonably oppose that even if she doesn’t try him again. Like I said, we’ll see what happens.

David Temple released on bond

We’ll see what happens next.

More than 17 years after the shooting death of his pregnant wife, former football coach David Temple walked out of the Harris County jail Wednesday and into the waiting arms of his family, ready to stand trial again if necessary for a murder he steadfastly maintains he didn’t commit.

Wearing a bright red shirt, Temple embraced his mother, father and two brothers, telling the media his release was possible only through God and the support of his family and attorneys.

“It’s been a long journey, and fortunately a portion of that journey has been completed,” Temple said. “We’re waiting for justice to be served, and for the people who put me there, who lied and cheated, be held accountable … .”

But Temple’s appellate attorney, Stan Schneider, cut him off, advising him not to speak further about the case.

Temple, 48, was released on a $30,000 bond and is set to appear in court Jan. 4 to show he will cooperate with any potential retrial or other proceedings. His conviction was overturned by the state’s highest criminal appeals court amid findings of prosecutorial misconduct.


Temple was convicted and sentenced to life in prison in 2007 after a volatile trial that pitted prominent defense attorney Dick DeGuerin against legendary prosecutor Kelly Siegler, who later became the star of her own TV show.

The Texas Court of Criminal Appeals concluded last month that prosecutors withheld significant evidence from defense attorneys, including information about an alternative suspect. Siegler has defended her actions in the case but could not be reached for comment.

Incoming District Attorney Kim Ogg – who takes office next week – has indicated her office will review the case and decide whether to proceed with a new trial.

Temple was granted a new trial late last month, with the district court ruling that found prosecutorial misconduct coming down last July. It will be interesting to see how Kim Ogg handles this, as it’s not clear to me there’s an obviously correct path to follow. One could reasonably conclude that despite the misconduct findings, Temple is still guilty and should be tried again, this time with all of the known evidence available to the defense so there are no further questions about the DA’s behavior. One could also conclude that even if Temple did do it, the odds of convicting him now are too slim to be worth the investment of resources it would take to re-try him, and he did serve nine years so it’s not like he got away with it. I don’t envy Ogg the decision.

One more thing:

The appeals court ruled DeGuerin was denied access to approximately 1,400 pages of offense reports, including an investigation of another possible suspect – a teenage neighbor accused of stealing two shotguns similar to the one used in the murder.

It was the fifth time since 2015 that the state’s highest appeals court has ordered a review of murder convictions based on prosecutorial misconduct in the Harris County District Attorney’s office.

Emphasis mine. Whatever you think of Kim Ogg or Devon Anderson or Pat Lykos or whoever else, if at the end of her tenure we can say that the Court of Criminal Appeals did not question any of her murder convictions based on prosecutorial misconduct, she will have accomplished something significant. The Press has more.

David Temple granted new trial


Kelly Siegler

The state’s highest criminal court on Wednesday granted a new trial to David Temple, a former Katy football coach accused of killing his pregnant wife in 1999.

In an opinion posted online Wednesday morning, the court of criminal appeals sided with Temple’s lawyers, who argued in state district court in 2015 that Harris County prosecutors had illegally withheld crucial information during the 2007 trial.

“First things first: We get David out of jail,” said attorney Stan Schneider Wednesday in his downtown office.

Schneider said Temple will be eligible to bond out of jail in a few weeks, barring appeals from the state. If Temple’s case gets a new trial, Schneider will lead the defense, though he couldn’t say if the evidence withheld in the 2007 trial seemed likely to change the outcome.

It will be up to the incoming Harris County District Attorney, Kim Ogg, whether to appeal the court’s latest ruling or agree to go forward with a new trial.

The court filing Wednesday said several hundred pages of police reports had been withheld from the defense until sometime during the trail, in violation of legal precedent.

“The prosecutor believed, as evidenced by her testimony at the writ hearing, that she was not required to turn over favorable evidence if she did not believe it to be relevant, inconsistent or credible,” the filing said.

See here for previous blogging. The CCA isn’t exactly known for second-guessing prosecutors, so this is a big deal. Kelly Siegler has vigorously defended her actions since the allegations about her withholding evidence came out during the district court hearing last year, but as yet I have not seen a statement from her. It will be interesting to see what Kim Ogg decides to do with this – she could decline to go forward, try to work a plea deal, or ask the court to reconsider its decision. Whatever she decides to do, I’m guessing she’ll take her time making that decision.

Meanwhile, the CCA issued another big decision on what was clearly a big day before Thanksgiving for them.

Four San Antonio women who were imprisoned for sexually assaulting two girls more than 20 years ago are innocent and exonerated, the Texas Court of Criminal Appeals ruled Wednesday.

In the summer of 1994, the two girls – ages 7 and 9 – stayed at the home of their aunt, Elizabeth Ramirez, while their mother was away in Colorado, according to court records. Ramirez’s one-time girlfriend, Kristie Mayhugh, lived with her, and another couple – Anna Vasquez and Cassandra Rivera – would visit the apartment frequently. When the girls returned home, their grandmother reportedly notice a change in the girls’ behavior.

“[T]hey were subdued, scared, and refused to make eye contact. In mid-September, [their grandmother] noticed the girls playing with their dolls in a sexual manner,” according to court papers. “When she asked the girls why they were doing this, [one of the girls said] she and her sister had been sexually assaulted at their aunt’s apartment by the four women.”

In 1997, Ramirez, considered the ringleader, was sentenced to nearly 40 years in prison. The following year, the other women each were handed down 15-year sentences. In 2012, one of the victims announced she was coerced into making a false accusation. That same year, Vasquez was released from prison on parole, and in 2013, the other women were released as the case received another look.

The women are collectively known as the San Antonio Four, and getting a ruling of actual innocence, which qualifies them to receive recompense from the state, is not an easy thing to do; in fact, the visiting judge that originally freed them from prison didn’t think they met the standard for actual innocence. This Texas Monthly story about a documentary that was released last year, is a good overview of the case, so go give it a read. Happy Thanksgiving to you, Elizabeth Ramirez and Kristie Mayhugh and Anna Vasquez and Cassandra Rivera. Grits and the Current, which also has some good background and links to further reading, have more.

UPDATE: More from Texas Monthly.

Roadside drug tests

Maybe this isn’t such a good idea.


A Houston police officer pulled Barry Demings over as he headed to work in Beaumont and plucked a spot of white powder off the floorboard of Demings’ year-old Ford Explorer.

Demings had just detailed the SUV – and wondered later if a speck of soap upended his life.

“I never even saw it,” he said, explaining how the officer dropped the speck into a small test kit and said “it came back for cocaine.”

Demings was charged with felony drug possession based on the results of the primitive test that costs about $2 and has been found to have a high error rate. He was told he could face a sentence as long as 30 years based on old prior convictions – no one mentioned waiting for a crime lab to verify the officer’s roadside result.

He insisted he was innocent but got scared and accepted a plea deal. He lost his job, his girlfriend and his Explorer. Upon release, he decided to leave Texas behind forever.

In 2015 – seven years later – the Harris County District Attorney’s Office notified him that Houston’s crime lab found no cocaine in the sample. He filed a writ of habeus corpus with the Texas Court of Criminal Appeals and was finally exonerated.

He is among 298 people convicted of drug possession even though crime lab tests later found no controlled substances in the samples, according to a far-reaching audit of drug cases by the Harris County District Attorney’s Office. So far, 131 of them, like Demings, have had their convictions overturned in cases that go back to 2004. About 100 other cases remain under review for potential dismissal.

In all 298 cases, prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed. The $2 roadside tests, which officers use to help establish probable cause for an arrest, cannot be used at trial as evidence under Texas law.


The Harris County audit of drug possession convictions and related lab results going back to 2004 was launched in 2014 by Inger Chandler, an assistant district attorney in charge of the DA’s conviction integrity unit, after a reporter from the Austin American-Statesman called her about reversals of several drug convictions by the Court of Criminal Appeals.

The following year, Harris County District Attorney Devon Anderson changed her policies and directed prosecutors generally to stop accepting guilty pleas in felony drug cases before receiving lab reports confirming the evidence. Plea deals are still accepted prior to lab testing in misdemeanor drug cases, and in some felony cases in which jailed defendants can qualify for probation.

The forensic evidence problems uncovered by Chandler’s unit began around 2005, when Houston’s city crime lab – then overseen by HPD – lost several staff members and simultaneously saw a huge increase in drug cases, which created a backlog.

Lab officials implemented a triage system for drug testing with the DA’s office: Drug cases slated to go to trial would get processed first. For defendants who had accepted plea deals, the crime lab would later go back and test samples, often months or years after the guilty plea had been entered.

Chandler’s audit of wrongful convictions has been possible because the Houston Forensic Science Center, formerly HPD’s crime lab, preserved and tested the evidence even in the plea deal cases.

“We were keeping the evidence, and with the agreement with the District Attorney’s Office that we would continue to process even if it was pled,” said James Miller, manager of the center’s controlled substances section. “Because we both understood there was always the possibility that the substance may not actually be illegal.”

So far, prosecutors have identified and examined 456 flawed cases. Of those, 298 people had been convicted despite having no illegal controlled substances in their possession at all. In 29 of the 298 wrongful convictions, there had been no filing for relief because a defendant declined to pursue the case or faced other legal obstacles.

In other cases among the 456, the types or quantities of controlled substances were misidentified or there was too little evidence left to perform a confirmatory test.

About 78 percent of the 456 flawed cases came from the Houston Police Department, which still uses roadside tests that were developed in the 1970s. Chemicals in small vials turn colors when exposed to cocaine and other illegal drugs but can be easily misinterpreted by officers and can have high false positives, Miller and other experts said.

Emphasis mine. This article is a followup to a much longer ProPublica piece that explored the history and background of these roadside tests; another story, about the chemist who created these kits in 1973, is here. You should read them both – I don’t know about you, but I had no idea about any of this before now. We could have a debate about whether it’s reasonable for police officers to conduct roadside drug tests like this, but the high error rate for this test, which hasn’t been updated sine the 70s, makes it a particularly poor reason to hold people in jail or encourage them to plead out on a charge that is based on a crime that may never have existed. The point, again and again and again, is that there are way too many people in our jails who should not be there. The cost of this, both to the people who have been subjected to this and to us taxpayers who foot the bill for it, is unacceptable. When are we going to do something about it?

America’s deadliest prosecutors


In anticipation of the 40th anniversary of the U.S. Supreme Court’s landmark death penalty decision, Gregg v. Georgia, today the Fair Punishment Project released a new report called America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty.

The report identified America’s five deadliest head prosecutors out of the thousands that have held that office across the country in the last 40 years. Three of the five prosecutors (Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; and Bob Macy of Oklahoma County, Oklahoma) personally obtained more than 35 death sentences each, while the other two (Lynne Abraham of Philadelphia County, Pennsylvania and Johnny Holmes of Harris County, Texas) oversaw District Attorney offices that obtained more than 100 and 200 death sentences respectively during their tenures. Together, they have put the equivalent of 1 out of every 7 people currently on death row.


The report notes that these “overzealous” personalities disproportionately drove up death sentencing rates in their counties and their states–leaving an outsized impact on death sentencing statistics nationwide.

“The legitimacy of the death penalty is seriously undermined when it is only being used in a small handful of places by an even smaller group of prosecutors who continually engage in misconduct,” said Robert J. Smith, a legal fellow at Harvard Law School and one of the report’s researchers.

“This report suggests that the ‘win-at-all-costs’ mentality adopted by a small group of prosecutors has led to shockingly high rates of prosecutorial misconduct and wrongful convictions,” notes Harvard Law Professor Ronald Sullivan.

Findings include:

  • Three of the top five deadliest prosecutors (Macy, Britt, and Myers) had misconduct found by courts in 33%, 37%, and 46% of their death penalty cases respectively. (Rates are not available for the other two prosecutors who oversaw, but did not personally try, all of the death penalty cases in their counties.)
  • Four of the five deadliest district attorneys prosecuted, or oversaw the prosecution of, eight individuals who were later exonerated and released from death row. This total represents approximately one out of every 20 death row exonerations that have occurred nationwide.
  • Together, these five prosecutors obtained at least 440 death sentences, which is equivalent to approximately 15% of the current U.S. death row population, or approximately one out of every seven people currently sentenced to death.
  • After four of the five deadliest prosecutors left office (the fifth prosecutor is still in office), death sentencing dramatically declined in these jurisdictions, indicating that it was these individual personalities, not an excessive attachment to the death penalty by local residents, that drove up the rates of death sentencing.

Despite the fact that we have witnessed historic declines in death sentencing in the 40 years since Gregg, a small handful of prosecutors continue to use the death penalty at a disproportionate rate, which contributes to a misperception that the death penalty is widely used when in fact it isn’t. In 2015, death sentences were handed down in just 1% of counties nationwide,” said Professor Emily Hughes of the University of Iowa College of Law.

Professor Daniel S. Medwed of Northeastern University School of Law noted, “When there are so few prosecutors still using the death penalty today and these prosecutors regularly engage in inappropriate behavior, it begs the question about whether the death penalty can be constitutional under these circumstances.”

“What’s striking is the extent to which death sentencing rates plummeted in these jurisdictions after these individual prosecutors left office. Harris County has had 12 times fewer death sentences in the years since Johnny Holmes and his former deputy Chuck Rosenthal departed. While other factors have also contributed to this decline, it is clear that a handful of individuals have had an outsized impact on the death sentencing in Texas and nationwide,” notes Professor Jordan Steiker of the University of Texas Law School. “Without the sentences sought and obtained by these outliers, we would have an even clearer picture of the death penalty’s marginal and declining significance within American criminal justice.”

The report also names five additional District Attorneys who have earned a reputation in their respective states for their zealous pursuit of death sentences, and provides a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America.

Read the report, it’s well worth your time. I’ve never been philosophically opposed to the death penalty, but I’ve never been attached to it, either. If and when it gets outlawed some day, that will be fine by me. Link via Daily Kos.

Darlie Routier, 20 years later

Here’s an update on one of the more notorious murder cases in recent history.

If it hadn’t been for that crazy Silly String, Darlie Lynn Routier might be a free woman today.

At least, that’s what many people believe about the notorious Rowlett woman now on death row after savagely stabbing her 5- and 6-year-old sons 20 years ago Monday as her husband and 7-month-old son slept upstairs.

Shortly after the murders, NBC5 (KXAS-TV) captured video of Routier — with bleached hair, smacking gum and giggling — spraying Silly String on her sons’ graves. Jurors in Kerr County watched the video at least seven times before convicting Routier of capital murder in 1997 for the deaths of one of the boys.

“They ended up deliberating on the Silly String,” her mother, Darlie Kee, told The Dallas Morning News this week. “Silly String is not a lethal weapon.”

Routier’s family says the Silly String, provided by Darlie’s sister, was part of a birthday celebration. Her oldest son, Devon, would’ve turned 7 that day. The party followed a prayer service for both Devon and his younger brother Damon, but TV cameras didn’t capture the tears, Kee said, only a frolicking Routier.

Kee maintains her daughter’s innocence, saying an intruder killed the boys. And even two decades later, there are lingering questions in some minds about Routier’s guilt.

Some point to a bloody sock found in the alley behind the family’s home as proof Routier was telling the truth about an intruder. Others don’t believe Routier is innocent but wonder if she really acted alone. And many people still have a hard time believing that a young mother could butcher her babies in cold blood.

Prosecutors in the case believe the matter is settled, but it continues to wind its way through the state’s appellate court system. No date has been set for Routier’s execution.

Her attorney and family say they believe new DNA testing will prove that someone else was in the home that night 20 years ago. They say the pending tests could give Routier, now 46, a chance at a new trial.

“This is not solved,” Kee said. “They have not found who killed my grandsons. That person is still walking the streets.”

I don’t know what to think about this one. It’s easy enough to imagine that Routier was not given a fair shake at trial, given the hysteria and the way she was portrayed in the media, but as far as I know there haven’t been any of the usual allegations about specific wrongs – prosecutorial misconduct, lying witnesses, tainted evidence, etc – that generally accompany cases where a clear injustice has occurred. Routier’s conviction was upheld by the CCA in 2003, though given the CCA’S notorious pro-prosecution tendencies, that in itself doesn’t mean much. She was granted the right to pursue further DNA testing by the CCA in 2008, but if anything has happened with that since then there’s no news of it I can find. This story about Routier appeared on the same day as stories about Kerry Max Cook’s exoneration after 39 years, Sonia Cacy winning a ruling of actual innocence in the death of her uncle, and the Supreme Court agreeing to review two Texas death row cases. Perhaps one day Darlie Routier will get another chance to convince a court she didn’t kill her sons.

Sonia Cacy

A long-time-coming story of actual innocence.

A judge has ruled that Sonia Cacy, a West Texas woman convicted of setting her uncle on fire, is innocent of murder, basing his decision on new analysis of evidence presented at her 1993 trial.

“The cumulation of evidence supports Applicant’s claim of actual innocence,” visiting state District Judge Bert Richardson said in his ruling, filed Monday in Pecos County. “This court finds that Applicant makes a compelling case for actual innocence, given the overwhelming evidence.”


Cacy had served five years of a 99-year murder sentence for the 1991 death of her uncle, Bill Richardson. The two were living in his Fort Stockton home when it caught fire. Prosecutors said Cacy had set her uncle on fire, also burning the home, to get the money he left to her in his will.

But multiple experts — including the State Fire Marshal’s office — concluded that Cacy did not set her uncle ablaze. Some suspected that Richardson, a smoker, likely died of a heart attack and that the fire was accidental. Cacy was released on parole after The Texas Board of Pardons and Paroles received one of the reports, but her conviction was never lifted. The Pecos County District Attorney and the Bexar County medical examiner’s office had stood by the original investigation results.

Judge Richardson’s ruling was largely based on a 2013 state Fire Marshal’s Office report that discredited trial testimony that there was an accelerant found at the crime scene.

“The findings of the State Fire Marshal’s Office — a state organized and endorsed office — are the strongest evidence that no accelerant was present and that Bill Richardson likely died of a heart attack before being burned,” Judge Richardson wrote in a ruling that comes two years after Richardson first heard Cacy’s petition for relief in Fort Stockton.

I have to admit, this story is not one I was familiar with. The link in the quoted bit above is to a Trib story from 2010, but it goes back much farther than that. Texas Monthly adds some details to what happened this week.

Cacy’s journey through the legal system has been long, winding, and complicated. During at punishment retrial in 1996, her new attorney enlisted Dr. Gerald Hurst, the late Cambridge-educated chemist from Austin, to evaluate the forensic evidence that clinched conviction against her. Hurst discovered that the original tests, conducted by Joe Castorena of the Bexar County Forensics Lab, had been completely misread. The results didn’t find the indicators of an accelerant as he claimed. Castorena, a toxicologist by training, had in fact identified the products of pyrolysis—compounds created by burning plastic, which in many ways are similar to those of an accelerant.

Hurst was convinced these compounds came from rubberized curtains and a polyurethane foam mattress, both of which were found burned at the crime scene. Cacy’s uncle was a chain smoker who was notoriously careless with lit cigarettes, one of the most common causes of household fires. Yet in spite of the evidence, a jury affirmed Cacy’s conviction in 1996 and re-sentenced her to life in prison.

By 1998, Hurst had become obsessed with the case, and had enlisted a panel of at least a dozen respected arson experts and pathologists, all of whom concluded that the fire was accidental, and that Richardson—a man of poor health—had died of a heart attack, possibly while attempting to extinguish the flames. The Board of Pardon and Paroles was moved by the reports and promptly released Cacy that year. Now, they would go about the work of establishing her innocence.

Her attorneys filed a complaint with the Texas Forensic Science Commission in 2010, but they could not have encountered a more unsympathetic audience; the commission’s presiding officer, John Bradley, was the law-and-order Williamson County district attorney who spent years opposing DNA testing in the Michael Morton case, testing that later cleared Morton of the murder of his wife. Bradley petitioned then-state attorney general Greg Abbott for a legal opinion preventing the commission from reviewing Cacy’s case. Abbott delivered, opining that any cases prior to the formation of the commission in 2005 were out of bounds—namely Cacy’s.

Her attorneys turned to the newly reformed State Fire Marshal’s Office, whose scientific advisory panel conducted a lengthy examination of the case and concluded that there was no evidence of arson. Cacy took the report to the Texas Court of Criminal Appeals in 2012, along with some shocking new evidence: Castorena, the toxicologist, admitted in a letter to her counsel, Dallas lawyer Gary Udashen, that the clothing samples he’d tested had been contaminated in either the morgue or the lab. Thus, his baffling reasoning went, anyone who didn’t know about the contamination couldn’t accurately interpret the results. Asked why he never reported this, Castorena replied, “nobody asked me.”

It gets more ridiculous from there. Texas Monthly has three other stories about the history of the case, which as the second one notes was one of the driving forces in reforming how fire investigations are done in Texas and why old arson cases are being reviewed to see which ones relied on bogus, outdated investigative techniques. It’s a little jolting to see John Bradley’s name pop up in this discussion, but hardly surprising. And please, can we scrub the descriptor “law-and-order” from stories involving Bradley? We know full well by now that he was the opposite of “law-and-order” – he was an unscrupulous liar who worked tirelessly to keep innocent people in jail. The adjectives he deserves are all some variation on “disgraced”. Anyway, click on all the links and learn more about Sonia Cacy and how terribly wronged she was by the justice system. The fact that this wrong is finally being made right doesn’t change any of what happened in the past.

Sebesta remains disbarred


Anthony Graves

The disciplinary board of the Texas State Bar on Monday affirmed the agency’s decision to disbar Charles Sebesta, the former prosecutor who oversaw the wrongful death sentence of Anthony Graves.

Graves, who spent 18 years in prison, including 12 on death row, for a fiery multiple murder he did not commit, filed a complaint against Sebesta in January 2014. He asked the Bar to hold Sebesta accountable for withholding critical evidence of his innocence.

“The bar stepped in to say that’s not the way our criminal justice system should work,” Graves said. “This is a good day for justice.”


In their ruling on the Sebesta’s disbarrment Monday, the disciplinary board called his conduct in the Graves case “egregious.”

The board’s decision on Sebesta’s appeal is final.

See here for the background. At the time of the appeal, Sebesta’s attorney said the board’s decision would be final, which I take to mean he won’t try to find some other avenue to keep fighting this, like a lawsuit or something. I hope that’s the case, and I hope this will finally force the man to come to terms with his actions, and to try to make amends while he still can. I don’t expect that he will, but I hope that he will. If not, he will forever serve as a bad example.

Sebesta appeals disbarment

This saga that I thought was over still has another chapter in it.

Anthony Graves

Lawyers for Charles Sebesta, the ex-prosecutor who secured the wrongful death sentence of Anthony Graves, told a panel of the State Bar of Texas on Friday that he should not be disbarred based on technicalities in the rules that govern lawyer discipline.


Jane Webre, who was defending Sebesta before the disciplinary board, argued that bar rules prevent the board from making a different ruling on Graves’ recent complaint after it already determined the former prosecutor wasn’t subject to disbarment for his role in that conviction.

“In order for the system to function properly, it’s important that the bar apply the rules fairly and consistently,” Webre told the Texas State Bar Board of Disciplinary Appeals.

Sebesta argued that the bar dismissed the previous complaint not only because of the time bar but also because they found no merit in the accusations against him.

Cynthia Hamilton, senior appellate lawyer for the commission for lawyer discipline at the State Bar, told the panel that Sebesta’s disbarment should remain in effect. In dismissing the previous claim, she said, the Bar did not address the merits of the claims of misconduct, only the statute of limitations, which lawmakers have since extended.

“It was Mr. Sebesta’s own flawed analysis of the definition of just cause that led him to that conclusion,” Hamilton said.

Additionally, she said, if the disciplinary rules were applied as Sebesta contends they should be, lawyers would not face discipline in instances where additional evidence of serious wrongdoing came to light after an initial complaint was dismissed. That would give lawyers – who are not required to cooperate with bar investigators – an incentive to conceal information, she said.

Further, she argued, lawmakers changed the statute of limitations governing prosecutor discipline in 2013 specifically to allow the kind of sanction Sebesta is facing.

“The Legislature gave the [chief disciplinary counsel] its marching orders,” Hamilton said.

See here for the background. I love how guys like Sebesta always reach for the technicalities when the spotlight turns to their own behavior. I’m sure he was ever so solicitous of those finer points of law when he was DA. Be that as it may, he is entitled to a review, and if his argument is deemed valid, then so be it. I personally think Ms. Hamilton has by far the stronger case, and I hope the State Bar sees it that way as well. I agree completely with what Anthony Graves says:

Graves said he said he is confident the panel will uphold Sebesta’s disbarment. And their decision, he said, will have consequences for prosecutors statewide.

“If they uphold the ruling, it says we’re not going to allow prosecutors to just do what they want in the courtroom and not be held accountable,” Graves said. “If they reinstate him, it says to the public that we really don’t care about you, we just protect our own.”

Amen. I don’t know when the State Bar will rule on this, but I hope they get it right.

John Bradley does John Bradley things

From Grits for Breakfast:

Former Williamson County District Attorney and Texas Forensic Science Commission Chairman John Bradley – who left Texas to become Attorney General of the island nation of Palau after facing national disapprobation, losing reelection, and struggling to find work in Texas as a prosecutor – has been suspended “for ten working days without pay on grounds of insubordination” by Palau’s Vice President, reported Pacific Beat.

In response, according to this source, Bradley issued a statement declaring the VP had no authority to suspend him, defending his record in Texas, suggesting the veep committed a felony by suspending him, and threatening a defamation suit.

Some people seem to make friends wherever they go.

This is vintage John Bradley; our man appears in top form.

The President, who is out of the country, was quoted as saying he hadn’t reviewed Bradley’s suspension but expected the vice president’s decision was made in the “best interest of the Republic.”

See here and here for the background. I admit, it’s a bit unseemly to keep piling on the man, who clearly can’t help himself. But honestly, how can one resist?

Another view of the Temple case

The Press devotes a cover story to the David Temple case and the allegations that then-Assistant DA Kelly Siegler withheld evidence from the defense.

Kelly Siegler

In July 2015, visiting Judge Larry Gist issued his damning decree: 36 findings of prosecutorial misconduct in which Siegler either suppressed evidence or disclosed it too late, depriving Temple of a fair trial. He also accused Siegler of interfering with developments in the case four years after she left office, saying she worked in concert with a detective to intimidate a witness who came forward with information pointing to the real killer.

Ultimately, Gist recommended to the Texas Court of Criminal Appeals that Temple’s conviction be overturned and that he receive a new trial. The appeals court decision is pending. When contacted by the Houston Press, Gist declined comment.

Siegler stands by her work on the case. As she told the Press, “David Temple was convicted by a fair and impartial jury after a long and hard-fought six-week trial. Nothing improper was done by anyone with the Harris County Sheriff’s Office, the DA’s office or by me on this case. Dick DeGuerin and his team have done everything they can to mislead…and manipulate the press and the system in their attempts to blame a 16-year-old teenage boy instead of Temple as being the murderer of Belinda and Erin. We believe in the system and that the truth will prevail.”

After Gist issued his findings, local media pounced on Siegler with a stinging rebuke of her performance in the Temple case. A tough-as-nails former prosecutor with a cable TV show was the perfect target, especially in Texas, which had recently witnessed the exoneration of Michael Morton, an innocent man who, like Temple, was convicted of killing his wife, and who spent 25 years in prison because an overzealous district attorney sat on exculpatory evidence.

The Houston Chronicle excoriated Siegler in an editorial: “While Temple has been sitting behind bars for eight years, Siegler has climbed the ladder to D-list celebrity status. That’s not the payoff the public should expect for prosecutors.” The editorial board stated, “For someone who built a career playing to juries, perhaps there should be little surprise that Siegler tried to pull the strings on the entire courtroom.”

Siegler’s career was tarnished overnight. Held to the highest standards — and rightly so — prosecutors can be accused of nothing worse than railroading an innocent defendant. And the proof seemed to be right there in Gist’s findings, just as Temple’s attorneys had promised.

But in the rush to persecute Siegler and make a martyr of Temple, the media neglected to compare Gist’s findings to the trial record. If they had, they would have seen that the findings don’t stand up to scrutiny — they’re a flawed and often contradictory assessment of what actually occurred at trial. A closer look doesn’t suggest proof of a reckless prosecutor caught in her tracks but of shrewd defense attorneys able to kick up enough dust to cloud a judge’s vision.

Gist’s findings state that witnesses said things they never said; they misstate when DeGuerin was given access to certain records; and they mischaracterize dubious statements as material and exculpatory.

Ultimately, the findings tell a misleading story of yet another innocent man sacrificed on the altar of prosecutorial ego. They don’t tell the story of what really happened at trial, or what happened on a January night in 1999, when Belinda Temple was killed with a shotgun blast to the back of her head, on her knees and in cold blood.

See here, here, and here for the background. The story is very skeptical of the allegations made against Siegler – it’s basically a fuller version of this post – and it does a good job of making Judge Gist’s findings seem shaky. Read the whole thing and see what you think. I can’t wait to see what the Court of Criminal Appeals does with this.

DA’s office responds to Temple case allegations

Their view differs, to say the least.

Kelly Siegler

Three months after a judge ruled that a Katy man convicted of murdering his wife did not get a fair trial and excoriated the prosecutor who handled the case, saying she withheld evidence, the Harris County District Attorney’s Office filed objections to the decision, tackling it point-by-point, and defended its attorney.

In an 80-page court filing released Wednesday, prosecutors objected to findings made by state District Judge Larry Gist, who in June issued a long-awaited ruling in the case involving the 2007 murder trial of David Temple.


In the district attorney’s objections to Gist’s ruling, prosecutors offer a point-by-point rebuttal.

“(Gist’s) findings concerning alleged exculpatory evidence are either directly contradicted by the record, not supported by the record, or refer to information that is not exculpatory and/or material so that Brady is neither implicated nor violated …,” according to prosecutors. The objections note that four of Gist’s findings address issues that happened after the trial, so they did not affect whether he got a fair trial.

Siegler has denied any wrongdoing in the case. In a response to the ruling, she said she disagreed with Gist and looked forward to a detailed and documented response from the District Attorney’s Office.

That response arrived Wednesday with hundreds of points of contention arguing that the evidence was handed over with enough time for Temple’s defense attorney Dick Deguerin to make use of it.

See here and here for the background. I don’t have anything to add here, I’m just looking forward to what the Court of Criminal Appeals has to say. The Press, which is skeptical of Judge Gist’s findings, has more.

Forensic Science Commission to examine bite mark evidence


The board charged with ensuring that reliable scientific evidence is used in Texas courtrooms agreed on Friday to investigate cases in which bite mark analysis was used to secure a conviction.

“We’re talking about the whole field, the validity of the field of bite marks,” said Dr. Vincent DiMaio, the chief presiding officer at the Texas Forensic Science Commission, and the former Dallas County medical examiner. “The problem justifies an investigation.”

The board voted to review bite mark cases to determine whether faulty evidence resulted in wrongful convictions after a presentation from Chris Fabricant, director of strategic litigation at the New York-based Innocence Project.

Last year, the American Academy of Forensic Sciences conducted a study of forensic odontologists and concluded that the analysis could not even accurately determine which marks were bite marks. In 2009, the National Academy of Sciences published a report that concluded there was insufficient scientific basis to conclusively match bite marks. Additionally, the Jo Handelsman, the White House Office of Science and Technology Policy, has said that bite mark evidence should be eradicated from courtrooms.

Bite mark evidence, Fabricant said, has contributed to 24 wrongful convictions nationally, including two in Texas.

“Overwhelmingly, it was the chief evidence in those cases,” he said. “Sometimes, it turned out they weren’t bite marks at all.”


The Innocence Project is urging the commission to institute a moratorium on the use of forensic odontology in criminal cases.

Dr. Nizam Peerwani, a commission member and the chief medical examiner in Tarrant County, said his agency abandoned the practice more than two decades ago. He recalled one instance in which a dentist identified a bite mark that turned out to be an injury from a crow bar.

“We have no respect, absolutely no regard for bite marks,” Peerwani said.

Grits has been on this for years. I’m a lifelong fan of crime fiction, and I know I’ve read more than a few examples of literary detectives using this technique. I’m surprised there are more cases that will need to be reviewed. Anyway, isn’t it amazing how much good work a body like the Forensic Science Commission can get done when people like John Bradley aren’t around to muck things up?

Siegler gets sued

Oy vey.

Kelly Siegler

Prominent former Houston prosecutor Kelly Siegler built a 20-year career out of securing convictions in tough murder cases, especially those that for years had been unsolved.

It was that reputation for tenacity and pluck that landed the local legend a starring role on “Cold Justice,” a nationally televised reality show, after she left the Harris County District Attorney’s Office in 2008.

But this week, she found herself again fighting for her reputation after an Ohio man who was acquitted earlier this year of a 1981 slaying sued Siegler, her TV show and law enforcement for defamation.

Steven Noffsinger filed suit last week because of an August 2014 broadcast in which he was accused of killing his ex-wife, Alma, more than 30 years earlier.

Noffsinger was found not guilty in May after spending nine months in jail without bail after being indicted in the Ohio slaying.

“The defendants’ collective investigations, which occurred in 2014, were an attempt to resurrect a “cold case,” and resulted in an unreasonably reckless disregard for and malicious prosecution of plaintiff in violation of the United States and Ohio Constitutions and state law,” the lawsuit states.


Across the country, at least two other people have said allegations by the show have devastated their lives.

Earlier this year in Des Moines, Iowa, Theresa Supine was found not guilty in the 1983 beating deaths of her husband and his teenage girlfriend. She was charged last year, after being targeted by the show.

Supine told the Des Moines Register in February that she was considering suing “Cold Justice.”

Last year in Tennessee, a boat repairman filed a lawsuit alleging defamation after the show televised an episode implicating him in the 2010 stabbing deaths of a woman and her 8-year-old son.

Joshua Singletary claims police and the television painted him in a false light and violated his rights, according to published accounts. Although he was charged after the crime, those charges were dropped. The case remains open.

I haven’t watched the show, and I know nothing of these cases, so I have no comment on the merits of the claims against Siegler and others associated with Cold Justice. It is a reminder that an arrest is not a resolution to a case, no matter how much fanfare there is. Be all that as it may, it sure has been a tumultuous couple of months for Kelly Siegler, hasn’t it?

Siegler responds to Temple case allegations

She comes out swinging.

Kelly Siegler

Legendary former prosecutor Kelly Siegler for the first time has responded to allegations of 36 instances of prosecutorial misconduct during an infamous 2007 murder trial.

In a statement to the Houston Chronicle by her lawyer, noted Atlanta attorney Lin Wood, Siegler said:

“The Chronicle has neglected to mention that the findings made by Judge Gist in the latest Temple hearing are made by the 13th judge to hear the exact same assertions previously made by Dick DeGuerin on behalf of his client,” she said. “While I always respect any judge I practice in front of, I do disagree with these findings and look forward to detailed and documented response to be filed by the District Attorney’s office in the near future.”


The statement is the first that Siegler has released since the rulings were issued on July 9. She has steadily refused to return calls for comment, which she addresses in the remainder of her statement on the case.

“I have refrained from commenting to the Chronicle because its coverage appears to be slanted – the Chronicle has neglected to include statements from the District Attorney’s office or the lawyers who represent the then-teenagers who are being portrayed as potential suspects in the murder of Belinda Temple, the family of Belinda Temple who lost both Belinda and her unborn daughter Erin, any member of law enforcement who worked the case for nine years, or that of a single of more than 40 witnesses who testified during the six week trial.”

See here for the background. This isn’t the only accusation of prosecutorial misconduct by Siegler in recent months, but it is the only one she addressed at this time. I think the charges are serious enough to merit investigation, but I suppose if I were Kelly Siegler, I’d refuse to give any ground, too. We’ll see what happens in the other case, or if anything else comes out of the Temple retrial if the CCA agrees with the recommendation to grant him one.

The David Temple case

I have not followed this very closely, but it definitely deserves all the attention it has received.

Kelly Siegler

There’s a 1,300-page offense report detailing the investigation into the fatal shooting of Belinda Temple in 1999. There are audio tapes of witnesses who saw the pregnant teacher at Katy High School on the day she was killed later than previously thought. There’s a statement from a teenage neighbor that the Temples’ dog, known for its viciousness, would calm down after sniffing him.

Those are three examples of evidence withheld from David Temple’s defense lawyers that could have helped him at his 2007 trial, lawyers said Monday, as they called for a special prosecutor to investigate the notorious Katy slaying and the Harris County District Attorney’s Office. Their request comes days after a judge outlined 36 different instances of prosecutorial misconduct by former prosecutor Kelly Siegler and said Temple deserves a new trial.

“David is innocent. He has been convicted of a crime he did not commit,” David Temple’s brother, Darren, told reporters. “We are horrified by the voluminous suppressed evidence, the lies and the prosecutorial misconduct that has occurred over the last 10 years.”

Temple was convicted in 2007 of murder in the fatal shooting death of his wife, Belinda Lucas Temple.


With the ruling from state District Judge Larry Gist, Temple could get a new trial. The judge’s findings will be forwarded to the state’s highest criminal court to decide.

In the wake of that 19-page decision from Gist, Temple’s family called for District Attorney Devon Anderson to agree that Temple should be free on bail while the case winds its way through the appeals process. They also asked that Anderson reopen the murder case. Both requests were denied by the elected district attorney, who said her office disagrees with Gist’s ruling.

“The Court of Criminal Appeals will rule on the Temple case after a thorough review of the judge’s findings, and the objections filed by our office,” Anderson said in a prepared statement. “Any actions such as reopening an investigation into this case would be premature.”

In his ruling, Gist looked at several assertions by the defense, including that Temple was “actually innocent.” The judge found that he did not hear enough evidence during a 26-day hearing beginning in December to justify “actual innocence.”

He did agree that evidence that could have helped Temple was either delayed so much that it was not helpful or withheld completely.

On Monday, Temple’s attorneys said they will seek the appointment of a special prosecutor to reinvestigate the murder case and the prosecutors accused of withholding evidence and interfering with the appeals process.

“There’s a systemic problem in Harris County,” said Temple’s defense lawyer, Stanley Schneider. “Maybe it’s time for an attorney pro tem to be appointed.”

He blamed a “win at all costs” culture and said it permeated the office from 2002 to 2008 under former District Attorney Chuck Rosenthal.

Attorney Casie Gotro said prosecutors who are still at the office continue to “stonewall” defense efforts to look at all of the evidence.

“We’ve been repeatedly told that things ‘don’t exist’ only to find out later that they do,” Gotro said. “And without fail, they either benefit the defense theory or undermine the state’s theory.”

Here’s the written opinion by the judge in the habeas case, in which the court concluded “the defendant has shown he was denied a fair trial because of the state’s failure to disclose or timely disclose favorable evidence; and that had evidence been disclosed or disclosed timely, the results of the trial would have been different”. Both Lisa Falkenberg and the Chron editorial board have excoriated Siegler and sided with the call for a special prosecutor to take over. I think they’re right about that, and I think given DA Devon Anderson’s past history of being reluctant to act against someone with whom she is connected, she will need to be pressured about it. Kelly Siegler did the world a big favor by helping to expose rogue prosecutor Charles Sebesta, who was recently disbarred for activities similar in nature to the ones Siegler now stands accused of. Justice demands that someone like Kelly Siegler, with no connection to the Harris County DA’s office, now lead an investigation into her behavior in this trial. I respect Siegler’s work as a prosecutor and now as a crusading TV cold case investigator, but reputation only counts for so much. The facts need to be followed, and David Temple deserves his new day in court. Harris County needs to get out of the way. Let’s get going on this. Grits and Murray Newman, a friend and former colleague of Siegler’s, have more.

Sebesta disbarred

A fitting end to this story.

Anthony Graves

The former prosecutor who won a wrongful conviction of Anthony Graves for capital murder, sending him to Texas death row where he was nearly executed twice, has been disbarred.

In a ruling released Thursday, the State Bar of Texas found that Charles Sebesta committed “professional misconduct” as Burleson County District Attorney when he prosecuted Graves in 1994 for a family’s murder. Graves’ co-defendant, Robert Carter, who was executed in 2000, admitted he was the lone killer.

The bar complaint against Sebesta was filed by Graves, who was freed in 2010 after serving 18 years in prison, 16 of them on death row. Graves said his complaint was “nothing personal,” but an attempt to correct the criminal justice system.

“That ruling is more for the system than it is about me,” Graves told The Texas Tribune. “It’s about holding everyone responsible, and this is all part of it.”

The bar’s disciplinary panel found several prosecutorial mistakes by Sebesta. Even though Carter denied Graves’ involvement when he testified before a grand jury, Sebesta did not correct Carter’s false testimony against Graves at Graves’ trial.

Also during the trial, Sebesta told the court that an alibi witness about to testify on Graves’ behalf was a suspect in the same murders. She was not. But after the courtroom statement by Sebesta was made, the witness, Graves’ girlfriend at the time, Yolanda Mathis, refused to testify.

“Sebesta had no evidence or information tending to show Yolanda Mathis was suspect or had any involvement in the murders,” the bar’s disciplinary panel found.

See here and here for the background, and here for a copy of the ruling. This action is entirely appropriate, and I only wish it could have happened sooner. Prosecutors who lie, cheat, and flout the rules of justice need to be held accountable for their actions. Anthony Graves is right, it’s not about him, it’s about making justice more fair for everyone. We’re a little bit closer to that now. The Chron has more.

UPDATE: Here’s Pamela Coloff‘s take.

Fraser and Ratliff to step down

There’s good news:

Sen. Troy Fraser

State Sen. Troy Fraser, R-Horseshoe Bay, announced Tuesday that he is not running for re-election, ending a tenure at the Capitol that has spanned four decades.

“There comes a time when leaders must take a look at the trail they have blazed and reflect on all they have done,” Fraser wrote in a letter to colleagues and friends. “There also comes a time when leaders must allow others the opportunity to leave their mark. Today marks that time for me.”

Fraser, who chaired the Natural Resources Committee this past session, was the seventh-most senior member of the Senate, having taken office in January 1997. From 1988 to 1993, he served in the House.


He said his “proudest accomplishment” was passing Texas’ voter ID law in 2011, considered the toughest in the nation. A legal challenge to the statute is still working its way through federal courts.

That last paragraph sums up why this is good news, as Fraser had his fingerprints on a ton of bad legislation, with not much good to balance it out. The district is solidly Republican – as Greg commented, it envelops all of Rep. Jimmie Don Aycock’s House district – but Fraser is bad enough to have some hope that whoever replaces him might be at least a little better. No guarantees of course – it can always be worse, and it’s never comfortable having to hope for a good outcome in a Republican primary – but there is plenty of room to go up.

And there’s bad news:

Thomas Ratliff

State Board of Education Vice Chairman Thomas Ratliff has decided not to seek another term on the board next year, saying he has accomplished most of his goals. Ratliff, R-Mount Pleasant, who has been on the board since 2011, has generally received high marks during his tenure.

Ratliff, son of former Lt. Gov. Bill Ratliff, made news back in 2010 when he upset former board Chairman Don McLeroy of College Station in the GOP primary that year. McLeroy was the leader of the social conservative bloc on the education board and drew national attention for his efforts to limit coverage of evolution in science textbooks.

When he ran for the seat, which now represents northeast Texas, Ratliff said he wanted to reduce the influence of partisan politics on the board and improve the strained relationship between the board and the Legislature. At the time, there was support among lawmakers for scaling back the authority of the board.

“I feel these goals have been largely accomplished through a combination of my efforts, the efforts of several of my colleagues and voters across the state,” he said, adding he will serve out the final year and a half of his current term.

Being the candidate who sent the infamous Do McLeroy back to private life, Ratliff is Exhibit A for “best possible outcome in a GOP primary in deep red turf”. We can only hope that his successor is like him and not like the man he ousted.

Finally, some poignant news:

Rep. Ruth Jones McClendon

One of the best speeches of this year’s legislative session also was one of the more difficult to watch.

It came in the closing days as the House OK’d a bill addressing one of the Great State of Texas’ greatest disgraces. HB 48, which Gov. Greg Abbott signed Monday, sets up a state panel to figure out how wrongful convictions happen and how to avoid them. All together now: “About time.”

Approval culminated a persistent battle by a lawmaker now fighting a personal one – one that reminds us of the better side of our lawmakers. The more shrill partisans among us could learn something from the friendships and respect that develops when 182 people of varying philosophies and backgrounds spend 140 days in relatively close quarters at the Capitol in odd-numbered years.

Rep. Ruth Jones McClendon, D-San Antonio, was helped to the front microphone Thursday to move final approval of her HB 48. A cancer survivor, McClendon now is struggling with health issues that have affected her mobility and speech. In December, she underwent surgery to remove water from her brain.

Supported on her left by Rep. J.D. Sheffield, R-Gatesville, and her right by Rep. Dennis Bonnen, R-Angleton, McClendon needed help to get the bill across the finish line.

“You move to concur in Senate amendments,” Bonnen said quietly into her ear, followed by an awkward pause as the House waited for McClendon to form the words.

“You can do it,” Bonnen told McClendon. “We got you.”

They did, literally.

“You’re going to say, ‘Members, I move to concur,'” Sheffield told McClendon.

“Members,” McClendon, surrounded by supportive colleagues, said slowly, “I move to concur with Senate amendments.”

The voting bell rang. Bonnen again assured McClendon, “We got you,” and HB 48 was approved, to applause, by a 137-5 margin.

His right arm around McClendon, co-sponsor Rep. Jeff Leach, R-Plano, called the vote “a tremendous victory for this House, for the Legislature and for this lady right here whom all of us know and love.”

“This is a wonderful, wonderful lady and many, many lives are going to be saved and changed because of her work on this issue,” said Leach, adding that serving with McClendon, with whom he shares little political common ground, “has been the honor of a lifetime.”

McClendon then spoke about this legislation in particular and legislative life in general.

“I just want to briefly say that I appreciate those who stuck with me,” she said slowly as a legislative battle she began seven years ago headed to successful conclusion. “Some said it wasn’t going to work, that we couldn’t do it.”

I knew Rep. McClendon had been ill for some time, but I hadn’t realized just how tough for her this session must have been. I don’t know if her health will impel her to step down or not, but if it does, she finished her career on a high note with the passage of innocence commission bill. That bill should have rightfully passed in 2013, but it was derailed by the egotistical gamesmanship of Sen. Joan Huffman. Thankfully, Sen. Huffman managed to put a lid on it this time.

I’ve seen a few snarky Facebook posts since sine die by folks who are playing at the “disaffected cool kid who’s just so over all this stuff” thing. I get the frustration – it’s definitely been a rough 12 months, with less reason to feel optimistic about the near term political future around here – and Lord knows I’m not above cynicism. Dems did their share of puzzling and dispiriting things this session, most notably on the Denton anti-fracking ban bill. But it’s people like Rep. McClendon and what they are able to accomplish out of the spotlight and against sizable obstacles, that are what it’s about to me. I think we lose something fundamental if we lose sight of that. I know it’s hard having to play defense all the time, but that doesn’t mean there aren’t still chances to move the ball forward here and there. Thank you, Rep. Ruth Jones McClendon, for all you do.

State Bar accuses Willingham prosecutor of misconduct


In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

The bar action was filed Mar. 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro county seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery Webb was accused of committing but promising to reduce his sentence if he testified against Willingham.

Jackson has repeatedly denied that he made any pre-trial agreement with Webb in exchange for his testimony. The former prosecutor acknowledged that he and others made extraordinary efforts to help Webb, but said they were motivated only by concern for a witness who had been threatened by other prisoners because of his testimony.

A lawyer for Jackson, Joseph E. Byrne, on Wednesday urged that people withhold judgment about the case until all the evidence was presented and took issue with the grievance filed against his client by the Innocence Project, a legal advocacy group.

“I disagree with much of the information that was put together by the Innocence Project and do not find it to be objective,” Byrne said.


Told of the state bar’s action, Willingham’s stepmother, Eugenia, said, “John Jackson committed a crime, and I want him punished. If the appeals court had known the truth, Todd would probably be alive today.”

A staff attorney for the Innocence Project, Bryce Benjet, said the group was encouraged by the bar’s disciplinary action. “Withholding exculpatory evidence and the presentation of false testimony in a death penalty case is quite possibly the most serious ethical breach for a lawyer you can imagine,” he said.

The disciplinary petition contends that “Jackson failed to make timely disclosure to the defense details for favorable treatment for Webb, an inmate, in exchange for Webb’s testimony at trial for the state.”

“During a pre-trial hearing on July 24, 1992, (Jackson) told the trial court that he had no evidence favorable to Willingham,” the complaint continues. “That statement was false.”

The Marshall Project disclosed earlier this month the existence of a letter sent by Webb to Jackson in 1996 asking Jackson to comply with what he called their “agreement” to reduce his judgment from aggravated robbery to robbery. Within a few weeks, Jackson obtained a court order that reduced the charge.

The grievance that led to this charge was filed last year after the evidence from Webb about his testimony being coerced first came to light. The Trib had a story last week that reviewed all this and that indicated that the charges against Jackson were coming. Go read that to get up to speed if you need to. As I said when this grievance was filed, we have started to see some rogue prosecutors be held accountable for their illegal actions. It would be a small but fitting piece of justice if John Jackson were to be held accountable for his. The Chron has more.

Michael Morton still has work to do

We should be glad he’s doing it.

Michael Morton, who spent nearly 25 years in prison for a murder he didn’t commit, said Monday that under current DNA testing requirements, he wouldn’t have had access to the evidence that led to his release.

Morton joined state Sen. Rodney Ellis, D-Houston, and lawyers from the New York-based Innocence Project at a press conference to urge passage of a bill to expand access to DNA testing in criminal cases.

“This is about making sure the right person is convicted and making sure our communities are safe,” Ellis said.

Senate Bill 487 would allow courts to grant DNA testing for pieces of evidence that have a “reasonable likelihood” of containing biological material, like saliva or sweat, that may not be visible to the naked eye.

A February 2014 ruling by the Texas Court of Criminal Appeals set a precedent of only granting DNA testing on pieces of evidence if there was proof that DNA evidence existed on those items. The court denied death row inmate Larry Swearingen’s request for DNA testing on the pantyhose used to strangle the victim because it wasn’t clear that tests would turn up any evidence.

“If the interpretation of the law as it stands now was enforced when I was trying to get access, I would not have been able to see that access,” Morton said. “We would not have been allowed to test it.”

SB487 would clarify another bill by Sen. Ellis from last session (SB1292) that mandated DNA testing for all biological evidence in death penalty cases. That’s in addition to the Michael Morton bill that will more tightly control the disclosure of evidence by prosecutors to the defense. The Observer highlights the importance of this session’s effort.

Innocence Project attorney Nina Morrison, who represented Morton, said that the bill “strikes the right balance” by giving judges the appropriate amount of discretion to order testing without turning the courts into DNA testing mills.

In Morton’s case, it took a court five years to grant permission to run a DNA test on relevant evidence.

“For somebody to be in a court battle about whether there is evidence for testing when the labs can just tell us—it just seems like a real waste of everybody’s time,” Morrison said.

Who knows, maybe if now-former Williamson County DA John Bradley hadn’t worked so hard to waste everyone’s time back then, he’d still be DA now. Too bad for him. SB487 should have bipartisan support but there still needs to be a House sponsor. Let’s get on with this, y’all. Grits has a copy of Sen. Ellis’ press release, and the Innocence Project has more.

Endorsement watch: State Senate

The Chron makes another curious choice.

District 17: Joan Huffman

In District 17, which includes parts of Harris County and counties to the east, Republican incumbent Joan Hoffman has a credible Democratic opponent in Rita Lucido, 58, a family law attorney and activist with such organizations as the Houston Area Women’s Center and Planned Parenthood.

Huffman, also 58, who initially won her seat in a 2008 special election, is vice chair of the Senate Criminal Justice Committee and has built strong working relationships with members of both parties. She is a strong advocate for mental health issues, particularly as they intersect with criminal justice, and she’s gaining in seniority.

Although Lucido is a strong candidate with an impressive command of the issues, we endorse Huffman.

Perhaps they missed what Texas Monthly had to say about Sen. Huffman’s tenure on the Criminal Justice Committee.

Sen. Joan Huffman

Intransigence, thy name is Joan Huffman. Consider, if you will, the evidence. She initially opposed one of the session’s most celebrated bills, the Michael Morton Act, named for a Williamson County man who served nearly 25 years after being wrongly convicted of murdering his wife. Huffman’s concerns about the bill, which requires prosecutors to share evidence with a defendant’s legal team, endangered the bill’s prospects for passage. Then there was a measure to create an innocence commission to review the convictions of the 117 people who have been exonerated in Texas, which was supported by Texas Supreme Court Chief Justice Wallace Jefferson and passed the House handily 115–28. What was Huffman’s opinion of the proposed legislation? “There’s nothing you can do to fix this bill for me,” she fumed as she closed out her ten-minute speech in a Criminal Justice Committee hearing. Huffman, the committee’s vice chair, had rattled off twenty pieces of legislation that, in her estimation, adequately reformed Texas’s criminal justice system, making the creation of the commission unnecessary. Cory Session, the brother of Tim Cole, the state’s first posthumous DNA exoneree, was especially incensed by Huffman’s remarks: “That’s your job—to figure out what went wrong in this state,” he said. “You don’t like it? Go find another.” (Session ultimately stormed out of the hearing room, calling Huffman a name for which he later apologized.)

Huffman’s monologue, which she began by saying, “ ’Cause I’m chair, I can take as much time as I want,” helped kill the bill in committee, making her guilty of Behavior Unbecoming a Senator. But the former prosecutor and district judge, who exerts a huge influence on her colleagues when it comes to criminal justice issues, received her own punishment for practicing such bad politics. The House sponsor of the innocence commission bill, Democrat Ruth Jones McClendon, talked to death several of Huffman’s bills on the local and consent calendar. Here’s a case where an eye for an eye made perfect sense.

Now Texas Monthly isn’t the final arbiter of things, and one could make a case that Huffman’s other contributions have outweighed this bit of petty bullying. But if you’re going to laud her for her ability to work with people, you might at least acknowledge that it isn’t always the case. My interview with Rita Lucido is here if you’d like to consider the alternative, and my interview with Sen. John Whitmire is here if you missed it back in January.

The slow decline of the death penalty in Texas

Maybe a little.

Perhaps nothing symbolizes this state’s swagger over being tough on crime like “Old Sparky,” an electric chair that was used to execute 361 inmates and is now the centerpiece of a prison museum.

It sits just minutes from the Texas penitentiary where it was forever unplugged 50 years ago this summer following the execution of Houston’s Joseph Johnson Jr. for murdering a grocer.

While the oak chair is now a capital punishment relic photographed daily by visitors, this state’s death row is undergoing what looks to be a historic shift.

Texas forged an international reputation as it has executed far more inmates than any other state in the nation since 1982, when it resumed capital punishment with lethal injection. But this year, Texas just may lose its distinction as the state carrying out the most executions annually, sitting in a three-way tie with Missouri and Florida. Each state has executed seven people so far this year.

In Texas, a slew of changes in capital punishment that have been trotted out over the past decade or so and are taking hold. Those include requiring better legal representation for people facing the death penalty, giving jurors the option of sentencing defendants to life in prison without parole, and increasing the use of DNA and other scientific testing. And significant to the change is the realization by lawmakers and others that the system that condemns someone is not bulletproof.

The state executed an average of 29 people annually from 1997 to 2007, with 40 in 2000, according to statistics maintained by the Death Penalty Information Center. But it is now on track to have no more than 11 this year, according to the Texas Department of Criminal Justice, the fewest number in 23 years.

Texas is not getting weaker on crime, but getting smarter about who is sentenced to death by reducing the chances of condemning an innocent person, said former Texas Gov. Mark White.

“We are starting to recognize that being tough on crime doesn’t mean you have to be tough on innocent people,” White said. “We have learned a lot: use the cutting edge of science, and not just the fast draw of the Old West.”

Not sure how much credit I’m willing to give the Lege for this, other than the passage of life without parole, which has definitely had an effect. If there’s a greater awareness about wrongful convictions and the need to safeguard against them, it’s mostly due to the efforts of groups like the Innocence Project, local officials like Dallas County DA Craig Watkins, and the compelling stories of exonerated men like Michael Morton, Anthony Graves, and the late Timothy Cole. The fact that insufficient enthusiasm for the death penalty can still be used as a political attack suggests we haven’t come that far from the old days. Though I am not a death penalty abolitionist, I will be perfectly happy if this trend continues.

Palau catches a little heat for hiring John Bradley


The president of Palau has defended appointing a US lawyer who left his previous role as Texas county prosecutor amid controversy over an innocent man who spent almost 25 years behind bars.

President Tommy Remengesau confirmed former Williamson County district attorney John Bradley would take up a position as assistant attorney general in the tiny Pacific nation later this month.


Remengesau said Bradley acknowledged he was wrong to block the DNA testing and “is painfully aware that his actions kept an innocent man locked up for longer than he should have been”.

But he said Bradley deserved a second chance and was seeking it in the island nation of 22,000 people, which is best known for its spectacular diving sites.

“Mr. Bradley says that the Morton case has changed him as a person and has made him a more balanced, fair, and humble prosecutor,” Remengesau said in a statement.

He said Bradley had more than 25 years of prosecution experience and had never been found to have violated any law or ethical rule over the Morton case.

“The Republic hired Mr. Bradley because our nation needs experienced and skilled prosecutors to help keep our community safe Mr. Bradley fits that bill,” he said.

See here for the background. Like Grits, who found this story, I don’t buy Bradley’s claims that he’s a changed man. As noted in that previous post, he has made claims to that effect before, but so far has not backed them up with action. I hope, for his sake but more importantly for the sake of the people of Palau, that he’s sincere this time. I’d nonetheless advise President Remengesau to keep a close watch on him.

Charles Sebesta may finally have to face responsibility for his actions against Anthony Graves

Very good news.

Anthony Graves

It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences. The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder, he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this January. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,” said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

See here and here for the background. I find it utterly risible that Sebesta wants a closed hearing given the way he has (and continues to) run off his mouth about Anthony Graves, but whatever. Have a fair hearing and then disbar the SOB. Anything less would be insufficient. The Trib, the AusChron, and Grits, who has statements from Graves, the Texas Defender Service, and Kathryn Kase (all of whom amusingly and appropriately reference the actions of “honest” prosecutors in getting to the truth of the matter), have more.

John Bradley’s second act

Lisa Falkenberg brings a fascinating and unexpected update to the story of John Bradley, the former Williamson County DA and Texas Forensic Science Commissioner who served as one of the main villains in the Michael Morton case.

Since losing elected office, Bradley has tried to find work. In 2012, I wrote about him applying to lead the state’s Special Prosecution Unit.

No one would take him. Until now. It seems Bradley has landed another prosecutor’s post. Not in Texas. Not in the United States. In the tiny Republic of Palau, where, according to several sources, Bradley has accepted a position in the attorney general’s office.

The former U.S. territory of about 20,000 people in Micronesia was granted independence in 1994, and now operates in “free association” with the United States.

Barry Scheck, co-founder and co-director of the New York-based Innocence Project, said he learned about Bradley’s new job in a mass email from Bradley’s wife.


Rob Kepple, executive director of the Texas District and County Attorneys Association and a former colleague of Bradley’s at the Harris County District Attorney’s Office, said he hoped the island nation would provide a fresh start for his friend.

“It’s been awhile,” Kepple said, referring to the Morton revelations. “You know, maybe he gets another chance. Maybe he’s got to go all the way to Palau to get it. But I wish him well.”

Scheck, at the Innocence Project, echoed that sentiment.

“He’s certainly going quite a few thousand miles away in order to reinvent himself and we’re all in favor of second acts in American lives,” Scheck told me Tuesday.

Even Michael Morton maintained his graciousness when I asked what he thought about the prosecutor who wronged him returning to prosecuting.

“I don’t wake up every morning gnashing my teeth and shaking my fist at, you know, ‘where’s John Bradley?’ I’ve literally and figuratively moved on,” he said.

“At this stage of the game, I wish him well,” Morton said. “And, you know, adios.”

Morton’s Houston-based attorney John Raley, who worked the case for free, and fought Bradley at every turn as he tried to stymie Morton’s appeals, was a tad less gracious.

“I’m not aware of any evidence that he has learned the lessons of the Morton case,” Raley said of Bradley. “His actions in the future will answer that question.”

Part of me thinks everybody, even John Bradley, has the right to make a living, to learn from mistakes and to get on with life after grievous errors.

The other part thinks Bradley is still a danger to justice everywhere, even 8,000 miles away.

I’ve said repeatedly on this blog that I’m a believer in redemption. It’s the Catholic in me – I may not be a churchgoer any more, but what I learned while I was stays with me and still shapes how I think. The thing is, as we Catholics also know, you can’t be absolved of a sin until you stop committing it. Other than one brief feint in the direction of acknowledging his responsibility in the Morton saga, John Bradley has never shown any indication that he thinks he did anything wrong. If it were up to him, Michael Morton would still be in jail, Ken Anderson would still be on the bench, and the evidence that exonerated Morton and ousted Bradley and Anderson would be in a box somewhere, if it hadn’t been destroyed. So count me in the tad-less-gracious group here. It’s fine by me if John Bradley wants to put his life back together, but he can do that outside the practice of law. Flip burgers, sell cars, groom dogs, dig ditches, paint houses – there’s tons of honest, dignified jobs John Bradley can hold that won’t put him in a position of power over someone’s freedom. If he truly wants redemption, he knows what he has to do to earn it. Grits, who is more gracious than I, has more.

Some things are worth paying more for

How much would you pay for fewer faulty convictions?

Prosecutors say the state’s new Michael Morton Act, a measure designed to prevent wrongful convictions by forcing district attorneys to be more transparent in criminal cases, is driving up evidence costs.

“That is an issue for a lot of folks,” said Rob Kepple, executive director for the Texas District and County Attorneys Association.

Kepple says prosecutors will have to hire more people and invest in better technology to streamline the release of documents to criminal defense lawyers.

Lawyers on both sides of the criminal courtroom say the Michael Morton Act — named after an Austin man who spent nearly 25 years wrongfully imprisoned for his wife’s murder — has raised awareness of the importance of sharing evidence. Prosecutors, however, are concerned about the cost to taxpayers of reproducing reams of information. And defense lawyers worry that some prosecutors could use the law to keep some evidence away from them.

Kepple said that he’s heard from several counties that “documentation has been a strain.”

The new law requires Texas prosecutors to release all “exculpatory” evidence — information that could prove a defendant’s innocence — to defense attorneys. That means a lot of copying costs and document storage and delivery concerns for Texas prosecutors and the law enforcement agencies who investigate crimes, Kepple and others said.


In 1963, the U.S. Supreme Court decided in Brady v. Maryland that prosecutors must produce “exculpatory” information that points to the innocence of a defendant.

But in Texas, prosecutors had been responsible for deciding which information would be considered exculpatory. A Texas Tribune investigation found that among 86 overturned convictions from 1989 to 2011, in 17 cases courts found that prosecutors failed to give defense lawyers exculpatory evidence.

“The Michael Morton Act has codified Brady,” said Kathryn Kase, executive director of the Texas Defender Service, which represents defendants facing the death penalty.

All due respect, but prosecutors need to suck it up and follow the law here. I guarantee, whatever the cost of complying with the Michael Morton Act, it’s a lot less than the cost of locking up an innocent person, whether that person is subsequently exonerated or not. The criminal justice system is never going to be perfect, but the Michael Morton Act is a step in the direction of making it better. It’s worth the extra cost on your county’s DA office. Grits has more.

How much will science advance in the courts?

It’s up to the CCA to decide.

Texas’ highest criminal court will hear arguments Wednesday in a case that could affect how evolving scientific evidence is used in courtrooms across the state.

For Neal H. Robbins, the high court’s decision will determine whether he gets another shot at arguing his innocence.

In 1999, a jury convicted Robbins of killing his girlfriend’s 17-month-old infant. A key witness in the case was Patricia Moore, a Harris County medical examiner who ruled the child’s death was homicide by asphyxiation.

But in 2007, after a different medical examiner reviewed the original findings and disagreed, Moore recanted her trial testimony. In a letter to the district attorney, she wrote that while the infant’s death remained “suspicious,” she had come to believe that “a cause and manner of death of ‘undetermined’ is best for this case,” rather than homicide.

Robbins appealed, but in 2011, the Texas Court of Criminal Appeals, the state’s highest criminal court, denied a new trial by a vote of 5-4. In the majority opinion, Justice Larry Meyers wrote that despite her recantation, Moore’s original trial testimony had not been “proven false.”

Now, Robbins is hoping a new law passed by the Legislature in 2013 will cause the court to change course and give him another shot to prove his innocence. The law, Senate Bill 344, by Sen. John Whitmire, D-Houston, allows courts to grant post-conviction relief in cases where scientific testimony that was essential to a conviction has been contradicted. A lower court judge has recommended that Robbins be granted a new trial, but the CCA will make the final call.

Scott Henson, who was quoted in the story, adds some context.

[I]t was the CCA’s ruling in exactly this case that caused prosecutors to back off and agree to the bill’s passage. The court’s ruling in Ex Parte Robbins made clear the CCA would allow convictions based on junk science to stand if the Legislature didn’t change the law. After Robbins, the Harris County DA’s office (which had been the only significant opposition) acquiesced and helped negotiate the final language that’s now in the statute. It would be ironic if Robbins did not now prevail, since this particular case was the one that pushed the bill over the finish line at the Lege.

This is the same new statute under which the San Antonio Four and Fran and Dan Keller were released – they’re now out on bail though the CCA hasn’t given final approval in those cases yet. Those junk science cases are considered more likely to be easily approved, while the Robbins case – which involves an ME who gave erroneous testimony and changed her opinion after she learned more science – is considered the first test case that will provide an indication how the CCA will interpret the new writ.

He has more links and information in his post, so go read it. It’s clear what the CCA needs to do in this case, it’s just a matter of them doing it. I’m not sure what else the Legislature could do if they don’t do their job here. Hair Balls has more.

State Bar investigating Charles Sebesta


Anthony Graves

The State Bar of Texas has opened an investigation into Charles Sebesta, the former Burleson County District Attorney who prosecuted death row exoneree Anthony Graves.

The organization that oversees lawyers is investigating alleged professional misconduct by Sebesta, which, if proven, could result in his disbarment. The investigation was prompted by a complaint that Graves filed in January. Sebesta will have 30 days to file a response to the complaint.

“It sets a precedent for other state prosecutors that they have to act ethically,” said Ramota Otulana, a clerk at the law firm that represents Graves.

Graves spent 18 years behind bars — 12 of them on death row, where he twice neared execution — before the U.S. 5th Circuit of Appeals overturned his conviction in 2006, ruling that Sebesta had used false testimony and withheld favorable evidence in the case.


State Bar officials have said the previous complaint was dismissed because the statute of limitations on the alleged violations had expired. In 2013, lawmakers approved Senate Bill 825, which changed the statute of limitations, allowing a wrongfully imprisoned person to file a grievance up to four years after their release from prison in cases of alleged prosecutorial misconduct. Previously, the four-year statute began on the date the misconduct was discovered.

State Sens. Rodney Ellis and John Whitmire, and state Rep. Senfronia Thompson, all Houston Democrats, joined Graves in calling for accountability for Sebesta at a Wednesday press conference.

“I’m asking prosecutors to cooperate with the highest of integrity,” Graves told reporters in January. “It took me 18 and a half years to get back home. Two execution dates. All because a man abused his position.”

See here for the background. I hope they nail him. Sen. Ellis has more on his Facebook page.

More evidence of Cameron Willingham’s innocence

The scientific evidence against Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three children, has long been discredited. The other piece of evidence used against him at trial was the testimony of a jailhouse informer, who said that Willingham confessed to him. Now that piece of evidence is under attack.

Cameron Todd Willingham’s stepmother and cousin, along with exoneree Michael Morton, joined the Innocence Project on Friday to call on Gov. Rick Perry to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Willingham, who was executed in 2004.

“We are forever passionately committed to the mission of clearing Cameron’s name,” said Patricia Cox, Willingham’s cousin.


The [Innocence Project] says it discovered evidence that indicated the prosecutor who tried Willingham had elicited false testimony from and lobbied for early parole for a jailhouse informant in the case.

The informant, Johnny Webb, told a Corsicana jury in 1992 that Willingham had confessed to setting the blaze that killed his three daughters. The Innocence Project also alleges that the prosecutor withheld Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Willingham.

Former Judge John H. Jackson, the Navarro County prosecutor who tried Willingham, said the Innocence Project’s claims were a “complete fabrication” and that he remained certain of Willingham’s guilt.

“I’ve not lost any sleep over it,” Jackson said.


During the trial, Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.

In a 1996 letter, Jackson told prison officials Webb’s charge should be recorded as robbery, not aggravated robbery.

But in legal documents signed by Webb in 1992, he admitted to robbing a woman at knife point and agreed to the aggravated robbery charge.

In letters to the parole division in 1996, the prosecutor’s office also urged clemency for Webb, arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.

In 2000, while he was incarcerated for another offense, Webb wrote a motion recanting his testimony, saying the prosecutor and other officials had forced him to lie.

That motion, [Barry] Scheck said, was not seen by Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Willingham’s innocence and prevent his death.

An investigation is needed, Scheck said, to improve the judicial process.

I’ve written extensively about the Willingham case. To me, the dismantling of the arson investigator’s evidence is more than enough to convince me that he did not receive a fair trial and very likely would not have been convicted – quite possibly, not even arrested – if valid investigative techniques had been used at the time. Having the non-scientific evidence called into doubt as well – surely there was a failure to disclose, at the least – makes me wonder what anyone might base a continued belief in Willingham’s guilt on. That doesn’t stop Rick Perry from keeping a closed mind about it, of course. Grits, who notes the story here, is clearly correct to say that the best chance for anything to happen with this case begins in 2015, with a new Governor. I personally think the chances are better with one candidate than with the other, but for sure there’s no chance with the current Governor. EoW has more.

More details on the rape kit backlog results

HPD reports to Council about the progress of testing done on the backlogged rape kits.

No false arrests by Houston police have been uncovered during an ongoing $4.4 million testing of thousands of old rape kits, but new suspects have been developed with DNA, leading to an undisclosed number of arrests, police commanders told City Council members Tuesday.

Houston Police Department Assistant Chief Matt Slinkard told the council’s Public Safety Committee that 280 “hits” from DNA profiles resulted from the 6,170 cases returned so far to HPD from private labs. Last year, two labs began processing nearly 10,000 cases for usable evidence, including 6,600 untested sexual assault kits, the oldest stretching back to 1987, that were stored in the HPD property room.

DNA testing at HPD’s crime lab was suspended in 2002 after an independent audit revealed shoddy forensic work including unqualified personnel, lax protocols and inadequate facilities that included a roof that leaked rainwater onto evidence.

Slinkard and Capt. Jennifer Evans said that so far, the DNA testing has not found any instances of HPD mistakenly arresting someone.

“There are zero indications of false arrests at this time,” said Evans, who heads HPD’s Special Crimes Division.


Ray Hunt, president of the Houston Police Officers’ Union, emphasized the 280 hits does not mean HPD is looking for hundreds of active sexual predators.

“I think there’s been an handful of arrests already, but it’s very rare when you get a hit where it’s somebody who is still on the street,” said Hunt, explaining the criminal is usually in jail on another charge.

See here for the previous entry. As of that story, there were still 2410 kits that were being reviewed by HPD to ensure they met standards for federal DNA testing. I don’t know if that has been completed or not, based on this new story. In any event, we got 280 hits in CODIS, of which I presume some are people that are already incarcerated for something, some are the offenders that had been convicted in these cases on other evidence, and some are people that had not been previously identified or arrested as the offender. We don’t have a whole lot more information than that, most likely because the cops don’t want to tip off someone they’re planning to track down. I am certain that the first arrest made based on this evidence will be sufficiently publicized. Beyond that, I’m glad there’s progress. I look forward to seeing this all brought to a completion.

Not just DNA

There are a lot of other exonerations that happen around the country, for crimes major and minor, that don’t involve DNA.


In September 2006, [Corey] Love was charged by Houston police with possession of between one and four grams of cocaine, a felony. He was 20 years old and indigent.

He had two choices when he made his first appearance before a judge: Stay in jail waiting for laboratory tests to confirm the substance found on him was cocaine, or accept the prosecutor’s offer to plead guilty to a lesser charge, do his time in state jail and go home.

He chose the latter, received a credit of two days for every day served, and was released on Dec. 23, 2006. Six days later, Love was arrested and charged with robbing someone at the barrel of a BB gun, to which he pleaded guilty and was sentenced to three years in state prison.

In December 2012, the Houston Police Department crime lab finally got around to testing the substance taken from Love. It wasn’t cocaine. And it weighed less than 1 gram, which means that, even had he been carrying cocaine, Love would have faced a lesser charge in the first place.

The Harris County District Attorney’s Office notified the trial court, which appointed attorney Tom Moran to file a writ of habeas corpus on Love’s behalf. It was granted in June last year. Love’s conviction was vacated, and he was declared innocent.

That bit of good news likely hasn’t reached Love – neither Moran nor an investigator from the district attorney’s office has been able to find him to tell him.

“He has no clue,” Moran said. “I have no idea where he’s at. He was out of Louisiana. I checked with the Louisiana prison system but couldn’t find him.”

Nationally, the registry reported that the number of exonerations in 2013 based on DNA testing continued to decline and non-DNA exonerations were on the rise.

Nearly a third of the exonerations last year involved cases in which no crime had occurred. Fifteen individuals were declared innocent of crimes to which they had pleaded guilty but did not commit.

Seven of those cases, including Love’s, were in Harris and Montgomery counties, and six of them involved convictions for drug possession that were overturned after crime lab analysis determined no drugs were involved.

All seven defendants were convicted after accepting plea bargains, which is how the vast majority of convictions in the country’s federal and state courts are obtained – 97 percent of federal convictions and 95 percent of state convictions.

Grits was on this last week. The registry in question is the National Registry of Exonerations, which is a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. You can see their report here; the embedded graph is from this page. The thing to keep in mind here is that Corey Love spent about three months in jail for something that wasn’t actually a crime. His is an extreme case, but there are a lot of people in our county jails like him, people who couldn’t make bail and wound up pleading to something so they could get their ordeal over with. We spend a lot of money on people like that, for no good purpose. We also spend a lot of money fighting to keep from re-examining the evidence in cases where strong doubt exists about the integrity of a conviction. There’s an awful lot more that we could be doing here, to either increase this number, or make it so that we don’t have to. The Atlantic has more.

Charles Sebesta needs to be held accountable

Amen to this.

Anthony Graves

Former Texas death row inmate Anthony Graves, who spent 18 years behind bars before he was exonerated in the bloody 1992 slaying of a Somerville grandmother, her daughter and four grandchildren, is seeking justice against the man who put him there.

In 2006, the 5th U.S. Circuit Court of Appeals overturned Graves’ capital murder conviction when a three-judge panel said he deserved a new trial after ruling that Burleson County District Attorney Charles Sebesta elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves, who was released from prison in October 2010, is taking advantage of a new state law that allows a grievance against a prosecutor to be filed within four years of a wrongfully imprisoned person’s release.

State Sens. Rodney Ellis, John Whitmire and state Rep. Senfronia Thompson, all Houston Democrats, stood behind Graves on the campus of Texas Southern University on Monday as he and his attorneys urged the Texas State Bar to investigate and discipline Sebesta.

“I am asking prosecutors who operate with the highest integrity to support me,” Graves, 48, told reporters. “I am seeking justice for the man who wrongfully prosecuted me.”


Graves and his attorney, Bob Bennett, said the new law remedies the statute of limitations rule.

“There’s been no final order,” Bennett said. “Even if it was dismissed, you still have the option of coming back because there’s been no final order.”

Whitmire and Thompson sponsored the bill that was one of several that passed last year as details of Michael Morton’s wrongful murder conviction and exoneration came to light.

Anthony Graves deserves justice in the same way and for the same reasons as Michael Morton. In many ways, the injustice done to Graves was worse. If you’re not familiar with Anthony Graves, read this report by Texas Monthly writer Pamela Colloff, who is the authoritative source on Graves and Morton. That article was published on the day that Graves was freed after the charges against him were dropped.

Not until yesterday morning did Burleson County district attorney Bill Parham and special prosecutor Kelly Siegler explain why they had made such a dramatic about-face. At a press conference at the D.A.’s office in Brenham—just across the street from the courthouse where Graves’s retrial was to have taken place early next year—Parham told reporters that he was “absolutely convinced” of Graves’s innocence after his office conducted a thorough examination of his case. Parham was clear that this was not a matter of having insufficient evidence to take to trial; charges were not dropped because too many witnesses had died over the years or because the evidence had become degraded. “There’s not a single thing that says Anthony Graves was involved in this case,” he said. “There is nothing.”

Former Harris County assistant district attorney Kelly Siegler, who has sent nineteen men to death row in her career, went even further in her statements. Siegler laid the blame for Graves’s wrongful conviction squarely at the feet of former Burleson County D.A. Charles Sebesta. “Charles Sebesta handled this case in a way that would best be described as a criminal justice system’s nightmare,” Siegler said. Over the past month, she explained, she and her investigator, retired Texas Ranger Otto Hanak, reviewed what had happened at Graves’s trial. After talking to witnesses and studying documents, they were appalled by what they found. “It’s a prosecutor’s responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,” she said. “And unfortunately, what happened in this case is all of these things.” Graves’s trial, she said, was “a travesty.”

So yeah, this is a big deal. You need to read Colloff’s two feature stories to get the full measure of outrage at this horror. Sebesta avoided any repercussions for his abhorrent actions initially because Texas’ law at the time started the clock on the statute of limitations way too soon. Here’s Colloff again with the details.

At first glance, the bar’s lack of action against Sebesta is confounding. Why would the statute of limitations prohibit the agency from taking action against Sebesta, who prosecuted Graves in 1994, but not against Anderson, who prosecuted Morton seven years earlier, in 1987? The answer lies in one simple detail: the statute of limitations does not begin to run until the facts of the offense—such as withholding evidence favorable to the accused—are discovered (or, in legalese, “become discoverable”). In the recent proceedings against Anderson, the bar persuasively argued that the statute of limitations did not begin running until 2011, when the transcript describing Morton’s son’s account of the killer was found in Anderson’s files. Such a strategy was not possible with Sebesta, Acevedo told me, because “the information at issue”—i.e., that he withheld favorable evidence—“was known more than four years before the grievance was filed.”

Bennett, who filed the grievance, takes issue with that, arguing that the Fifth Circuit’s ruling “was the official notice of what had taken place.” And Graves’s attorney, Cásarez, believes that’s key. While it’s true that Graves’s lawyers learned in 1998 that Carter had repeatedly told Sebesta of Graves’s innocence, when they took a deposition from Carter at that time, it was simply a defendant’s word against that of a sitting district attorney. It was not until 2006 that the Fifth Circuit made an official finding that Sebesta had withheld evidence. “Now, how can someone file a grievance and expect to get anywhere until a court finds that the prosecutor engaged in misconduct?” Cásarez wondered.

Thankfully, SB825 took care of that loophole last year. Now maybe Charles Sebesta will finally be held to account for his actions. The Trib and Colloff again have more.

Anthony Robinson named to crime lab LGC

Excellent choice.

Anthony Robinson

Anthony Robinson

The latest appointment to the city’s crime lab oversight board brings a unique perspective to the post.

Anthony Robinson spent 10 years in prison for a rape he did not commit before being exonerated by the kind of DNA testing the proposed new crime lab will perform.

“I am very sensitive to the errors made by the defense bar in the use, misuse, or failure to properly use forensics, particular when the evidence is presented (or not presented) by the state,” Robinson wrote in an email from Beijing, where he had traveled on business. “Science is objective when properly performed and utilized.”

The City Council approved his appointment by Mayor Annise Parker on Wednesday.

Parker said Robinson’s appointment to the board of Houston Forensic Science LGC Inc., the local government corporation created by the City Council last year to develop a crime lab independent of the Houston Police Department, was based on more than just his compelling personal history.

“He’s going to be an even better board member because he has skills as an attorney and his being very familiar with the criminal justice system,” she said. “And community contacts and ties, as well.”

My interview with Robinson from his campaign for District D is here. He’s an impressive person, and he will be an insightful and much-needed voice on the crime lab’s board. Well done.

We need a Conviction Integrity Unit in Harris County

From the DMN:

Craig Watkins

Dallas County District Attorney Craig Watkins has gained a national reputation for spearheading prisoner exonerations.

As he prepares to seek a third term, Watkins said Thursday he wants to expand on that role and add a few others. …

Watkins, a Democrat who was first elected in 2006, gained attention for using DNA tests to overturn convictions, and he said his office has a few more such cases pending.

When prosecutors finish with those next year, Watkins said, he wants his team to take another look at people convicted of arson and those accused of shaking their babies to death. Watkins said he has concerns about the science used in the prosecution of both types of cases.

“The science has changed. We need to revisit it,” Watkins said without elaborating.

That was via Grits for Breakfast, who adds the following:

With the passage of SB 344 by Whitmire/Turner, people convicted based on junk science now have a clear path to pursue habeas corpus writs to challenge their convictions, with old arson and shaken-baby cases high on the list of bad science likely to be challenged. It will be welcome news if Watkins takes leadership and gets out in front of those issues the way he did on DNA testing. The main difference will be that, until the Legislature changed the law in 2011 (SB 122 by Ellis), DAs could prevent DNA testing in old cases if they chose, just as Williamson County DA John Bradley thwarted testing in the Michael Morton case for many years simply by objecting. By contrast, the passage of SB 344 means junk science cases can now get back into court via habeas writs on their own, so Watkins and other District Attorneys will be forced to revisit them whether they want to or not.

Craig Watkins has done groundbreaking work in Dallas reviewing old convictions for which DNA evidence was available to allow for it. This was possible in part because Dallas County obsessively kept all their old case evidence, but it was Watkins who had the vision to look at old cases where the potential existed for a conviction that had been based on potentially shaky evidence and for which a more definitive answer could be established. Dozens of wrongly convicted men were freed as a result. DNA evidence only exists in a small percentage of cases, but there are other kinds of cases that can and should be reviewed, beginning with the “junk science” cases highlighted in SB344. It’s way past time for Harris County to conduct a systematic review of its own of old cases to see which of them deserve a closer look. We will be under the mandate of SB344 for some of these cases, but there’s no reason to limit ourselves, or to wait till the last minute. It’s beyond question that there are people currently in jail after being convicted in Harris County that are provably innocent of the crimes they were convicted for. In some cases, as with the just-released “San Antonio Four”, the crime in question never actually occurred. We already have to take action for some of these. Let’s commit to doing a thorough and exhaustive job of it. I look forward to hearing what Devon Anderson and Kim Ogg have to say about this.