Race for DA puts justice system on trial—-Bradford and Lykos emphasize
reform, so many minor offenders get treatment rather than a cell
Harris County voters looking for a district attorney candidate with a
"tough on crime" theme are out of luck this fall.
The situation is a startling departure from the law-and-order tone set for
the last 30 years by Republican former district attorneys John B. Holmes
Jr. and Chuck Rosenthal.
But Rosenthal resigned in disgrace early this year, opening the door for
Democratic candidate C.O. Bradford and Republican candidate Pat Lykos,
former police officers who have never prosecuted a criminal case, to put
the local justice system on trial instead.
Bradford, the former Houston police chief, and Lykos, a former felony
court judge, make sure to mention, in a county known nationwide for its
frequent use of the death penalty, that the worst criminal offenders
should be prosecuted to the hilt. But, despite substantive differences
between the contenders, they both put greater emphasis on reforming the
system so that many minor offenders get drug or mental illness treatment
rather than a cell in the already crowded jail.
"Simply locking everybody up for everything isn't going to get us out of
the process we are in now," Bradford said. "Our taxes are high, the jails
are full and crime continues to go up. So let's exercise good stewardship
of fiscal resources, reduce crime and understand that most people who
commit offenses are salvageable, they can be rehabilitated, but they must
be given realistic opportunities to reintegrate back into our society.
"That's not occurring and there are a number of reasons for that … There
are a lot of people who make a lot of money, billions of dollars,
designing, building, constructing (prisons) and there's not a concern
about whether you are guilty or innocent. They get paid to keep a warm
body there. That's not justice."
Lykos called this "a critical period in our county. We have a tarnished
law enforcement system. It is bad for justice, it is bad for public safety
and it's bad for business. I pledge to you to restore public trust and
confidence in the district attorney's office.
" I do not want to see youngsters with a (juvenile justice) record that
will irreparably cloud their future and will prevent them from going into
certain occupations," she said.
Besides party label, race and gender, the differences between the
candidates in the Nov. 4 election come down to background and experience
as well as a few of their proposals for running the district attorney's
Bradford, who would be the county's 1st black district attorney, was
police chief from 1996 to 2003 after starting in HPD as a street cop. For
most of his tenure, fear of crime declined as measured by public surveys.
But a trio of scandals splattered the police chief toward the end,
eventually leading to his retirement.
With roots going back several years before 1996, the incompetence and
falsifications of the HPD crime lab came to full light during Bradford's
watch, leading to exonerations for a few convicts. Bradford denied
allegations by former HPD workers that they had warned him of a deep
Both candidates call for an independent crime lab that would serve all law
enforcement agencies in the region.
Lykos makes sure to remind voters of the crime lab debacle and the
misguided arrest by HPD of almost 300 people on trespassing charges at a
Kmart in 2002, another incident that Bradford said he did not know about
"Surely I made some mistakes, as it relates to being chief of police, in
some capacity for seven years there," Bradford said. "But anyone who has
not made a mistake has not made decisions. Because (Lykos) hasn't led a
large organization and she hasn't supervised attorneys, she doesn't have
that type of experience."
He said there were 10 lawyers among the 2,000 civilians and 5,000 officers
on the police force when he was chief.
In 2002 a grand jury indicted Bradford on a perjury charge for allegedly
lying under oath in a disciplinary hearing about an officer. A judge threw
out the charges in 2003 for lack of evidence and Bradford called the case
a misuse of power by prosecutors.
Now Bradford calls for changes designed to make grand juries more diverse.
Former grand jurors and others say the recruitment of grand jury
volunteers favors older whites who can afford to meet 2 workdays a week.
Bradford said the county should consider choosing grand jurors at random
as is done in federal courts. Lykos, who impaneled dozens of grand juries
during two decades on the bench, said judges still need to screen
As chief, Bradford upgraded the domestic violence unit and established a
crisis intervention team for encounters with mentally ill suspects.
Coincidentally Lykos, who would be the county's first female DA, aimed
many of her creative sentencing approaches at healing family strife and
getting treatment for mentally ill inmates.
She also helped pioneer the requirements that probationers perform
community service and make restitution to their victims. And she oversaw
an update of the county's criminal justice data system, allowing federal
agents to check on the immigration status of inmates more conveniently.
But many prosecutors and defense lawyers saw Lykos as more contrary than
innovative: Houston Bar Association polls consistently gave her the worst
ratings among about two dozen judges. She frequently clashed with fellow
judges, the district attorney, the news media and others.
Criminal law experience
Lykos, a former HPD detective, said she has mellowed since those days. But
in Lykos' current job as legal adviser to the county judge for criminal
justice and related issues, her supervisor recommended in 2006 that she
take courses in listening skills and team-building.
As a judge, Lykos has been involved in thousands more criminal cases than
Bradford and has more experience with the performance of assistant
district attorneys. She said the experience, along with her current job of
working with social service agencies and youth programs, makes her the
most qualified contender for chief prosecutor.
Like Bradford, she also comes down hard on the perception that under
Rosenthal, prosecutors were more interested in winning convictions than
getting to the truth.
The next DA "must insist on ethics, principled leadership and
professionalism, and the rule of law," she said.
Bradford favors establishing a public defender's office, such as those
used in most Texas cities, to handle at least some criminal cases instead
of having judges appoint defense attorneys to represent poor defendants.
Lykos defended the current system and said the district attorney should
have no involvement in the issue, which is being studied by county
Each candidate started October with about $80,000 in campaign cash.
(source: Houston Chronicle)
AT THE DEATH HOUSE DOOR
The Pax Christi Film Series will present "At the Death House Door" at 3:00
p.m. on Sunday, October 12, in the Martyrs Room of St. Charles Seminary,
8330 Park Haven Avenue (just off St. Matthews Street, near North Loop
Drive). Sponsored by Pax Christi El Paso, El Pasoans Against the Death
Penalty, and the Peace & Justice Ministry of the El Paso Catholic Diocese.
Admission is free.
Information: 217-8190 or 874-8422
"At the Death House Door" follows the remarkable career journey of the
Rev. Carroll Pickett, who served 15 years as the death house chaplain to
the infamous "Walls" prison unit in Huntsville, Texas. During that time he
presided over 95 executions. After each execution, Pickett recorded an
audiotape account of that fateful day. The film also tells the story of
Carlos De Luna, a convict whose execution haunted Pickett more than any
other. He firmly believed the man was innocent and many years after his
execution, 2 Chicago Tribune reporters turn up evidence that strongly
suggests Pickett was right.
(source: Newspaper Tree – El Paso)
Mother laments son's death in US
Sitting on the bed in a dilapidated lodge at Guashala Friday afternoon,
Lila Bhattarai, 42, recalled the last words from her dead son.
"I will come home very soon, Mom," he had told her on the morning of
September 28 over the phone. "I will regularly send pictures."
The conversation had veered off to the festivals and he had wished his
dear ones a happy Dashain. He told her that he had sent 2 mobile sets–1
for his 20-year-old brother and another for his brother-in-law–with his
friend travelling to Nepal for the holiday season.
Surrounded by her female relatives and daughter Srishti Gautam, Lila's
voice quivered as she talked about her son, Ashok Bhattarai, 21. Just two
hours before his death, Ashok had called her in Parasi, Nawalparasi
At 3 pm the same day, her phone kept ringing. There were a number of
long-distance calls from the US. "First, a friend of his said Ashok had
met with an accident," said Lila. "Then another called to say he has
2 weeks ago, Ashok was shot dead by a masked gunman, Raymond Whitcher,17,
while he was about to close his counter at the First Food Stop in Missouri
City, Texas. The killer was arrested last Wednesday.
On September 28 at 10 pm, Raymond barged into the convenience store and
opened fire at Ashok. After shooting him, the gunman walked behind the
counter, robbed US$ 5,000 and fled. Ashok's co-worker, apparently, was
back in the cooler restocking, and didn't hear anything.
The convenience store did not have a bullet-proof glass at the counter,
said the slain man's roommate Sudeep Paudel, who is in Kathmandu for
Dashain. "It could have saved his life," he said. An undergraduate student
of biomedical engineering at Houston Community College, Ashok had dropped
him at Bush Continental Airport in Houston, Texas and driven an hour to
start the evening shift at the store where he worked part-time for $8.50
His relatives and friends described Bhattarai as an honest, religious,
hardworking and talented person who loved to sing. "He would hum Sugam
Pokhrel's songs," recalled his mother. Soon she let loose a shrill,
full-body wail. "Can you feel the pain of losing a son?" she asked, her
words punctuated by sobs.
His father, Gyanraj Bhattarai, 53, an accountant at District Land Reforms
Office in Nawalparasi, is numb with grief. A soft-spoken man with
pepper-and-salt beard, he has been hit by a double blow: loss of a young
son on a promising career track and the huge debt incurred to finance his
now lost career. Having spent Rs 900,000 for Ashok's dream trip to the US,
he expects to be in debt for the next several years.
After completing high school from Parasi in 2002, Ashok had enrolled at
NIST in Lainchaur as a student of biology and dreamed of becoming a
His dream was shattered in 2005. Despite scoring 76 % in I.Sc. exams, he
could neither get admission at TU Teaching Hospital nor a scholarship to
India. He did not want to place a huge debt – anywhere between Rs 2
million to 2.5 million – to self-finance the MBBS–on his parents'
It was at this point he decided to shift his career goals to
bioengineering. On January 2, 2006, Ashok left for Oklahoma, and six
months later moved to Texas where he shared a 1-bedroom apartment with two
Nepali students, Sudeep and Angikar Karki. In Texas, he did not change the
subjects but found more Nepali friends to spend time with.
On Friday, Sudeep had come to Gaushala to hand over the two mobile sets
Ashok had sent for his relatives. Instead, he found his roommate's
grieving parents who had several questions about their son's death.
(Sudeep came to know about the death in Singapore while on his way home).
He said black Americans lived in the neighbourhood where Ashok worked.
"It's a good neighbourhood," he said. He also said that the two discussed
the safety measures of the store. "My store has a bullet-proof counter",
he said. "We had discussed whether it would be a good idea to quit the
job," he said, "But he [Ashok] thought it [was] safe as the police
patrolled the area all the time." Moreover, Ashok also wanted to save
money to go to college in autumn.
Ashok's death has triggered an avalanche of Internet activities. A
facebook group, "Help send Ashok Bhattarai's body to Nepal," opened by
Sakar Bhusal, now has over 1,700 members. A picture of smiling Ashok
dressed in a yellow T-shirt, sporting a V sign, is posted on the group's
Nepalese Association of Houston has created Ashok Bhattarai Memorial Fund
that has raised over $41,000 in an Internet based donation drive.
According to Kamal Pandey, a Houston based Nepali, a portion of the fund
has been spent to ship his dead body to Nepal.
His dead body arrived in Kathmandu Friday at 9.30 pm and was cremated at
Pashupati Aryaghat on Saturday morning.
The remaining portion of the fund, according to Pandey, will be sent to
the dead man's parents.
The murder has also sent shockwaves to Nepali students in the US. Many of
those who posted their messages on the facebook group were furious at the
killer. One Nepali student from Colorado was happy that Texas allows
capital punishment, hinting that the gunman deserved it. "No one can bring
Ashok Dai back, all of us can help ourselves to remain as safe as
possible," a Nepali student remarked. "It's a festive season and they
(Ashok's parents) had to bear this irreparable loss," one student wrote.
On October 4, Nepalese Association of Houston organised a memorial service
in the First Food Stop, the store where Ashok worked and was killed.
Pictures of the memorial service posted on Facebook show white and black
Americans and local Nepalis, among others, flocking to the store to pay
tribute to Ashok. His casket is adorned with Nepali flags, his posters
hanging. People with flowers in hands were seen queuing up in front of the
While waiting for 2 days in Kathmandu for her dead son's casket to arrive,
Lila lamented the death not only of her son but also of a young man who
believed in prayers.
"He would always ask for blessings," she said. "He believed in God. He
went to Manakamana temple after receiving the [U.S.] visa." Following her
son's death, she said, she has lost faith in God.
Detectives criticize plea deal in murder case—-Sentence should have been
longer, they say.
A day after a murder victim's family members became physically hostile in
court when a plea bargain sentence of 25 years was announced for her
killer, an Austin homicide detective and sergeant said they, like the
family, are upset with prosecutors' handling of the case.
Homicide Sgt. Hector Reveles and Detective Richard Faithful said Friday
that they are unhappy that prosecutors did not seek a longer prison term
and did not tell them about the plea bargain offers to Larry Alexander and
a co-defendant before they were made.
"We could have gotten so much more on this guy, and he deserved a whole
lot more," Reveles said.
Alexander, 22, pleaded guilty to murder in the July 2007 fatal shooting of
21-year-old Priscilla Calderon in the parking lot of an apartment complex
near East Riverside Drive. A co-defendant, 25-year-old Paul Villareal,
last week pleaded guilty to aggravated robbery in exchange for a 17-year
It is rare for Austin police to speak publicly about a decision of the
district attorney's office. Reveles said that homicide detectives and
prosecutors have sometimes disagreed about cases, but it is not an
He said he was particularly irked in this case because prosecutors did not
call detectives before reaching a plea bargain, something they do
regularly in murder cases "to give us a shot at kind of selling our
Prosecutor Bill Bishop said he regrets that he did not contact detectives,
but he said the deals were appropriate, given the evidence and jury
verdicts in similar cases.
On July 18, 2007, Alexander met Calderon and a car full of her friends at
the Wal-Mart on Ben White Boulevard for what she thought was a drug deal,
Faithful said. She wanted to buy cocaine to later sell but figured out
that Alexander had fake drugs and called off the deal, Faithful said.
At Villareal's suggestion, Alexander followed Calderon and her friends to
the Longhorn Station Apartments, approached the car and tried to take
Calderon's purse at gunpoint, Faithful said. Calderon started to hit
Alexander, Faithful said. "He got (angry) and backed up and shot her."
Alexander and Villareal were charged with capital murder in connection
with killing someone intentionally during a robbery, a crime punishable by
life in prison or the death penalty.
"The suspect just simply tried to grab her purse, and when she resisted,
he shot and killed her," Reveles said. "That by state law is clearly
capital murder. This was a strong case."
Bishop said that there was evidence that the two were struggling over the
gun when it went off, which he said would make it difficult to prove that
Alexander intentionally killed Calderon.
Under a life sentence for capital murder, a defendant is eligible for
parole after serving 40 years. Alexander and Villareal will be eligible
for parole after serving half of their sentences 12 and 8 years
Bishop said Thursday that he anticipated that a jury weighing the case
would probably have factored in that Calderon put herself in the situation
by setting up a drug deal, and that might have precluded a capital murder
guilty verdict and led to a lighter sentence.
Bishop said that Calderon's family stopped communicating with prosecutors
this year when prosecutors informed them they would not seek the death
penalty. When the plea bargain was announced in court Thursday, some of
the 25 to 30 members of Calderon's family started yelling, and at least 2
tried to get past the courtroom rail toward the judge's bench, according
to lawyers in the case.
Sheriff's deputies used pepper spray to clear the room and physically
restrained several family members. 2 of them were arrested for hindering a
courtroom proceeding by disorderly conduct, a misdemeanor.
(source: Austin American-Statesman)
18 Dallas County cases overturned by DNA relied on heavily eyewitness
Wiley Fountain was the obvious choice among the six Polaroids police
assembled for the rape victim to view.
He was the only man wearing a dark baseball cap and light-colored warm-up
suit, similar to what the attacker had on. He fit the rapist's description
"to a T," a Dallas police officer later testified. The victim was sure.
Prosecutors believed her. So did the jury. But all of them were wrong.
In September 2002, after Mr. Fountain had spent 15 years in prison, DNA
testing proved his innocence. Today, he is free but homeless, scrounging
for aluminum cans on the rugged streets of South Dallas.
The story of his wrongful conviction and that of 18 others is lifting the
curtain on criminal justice in Dallas County, which has led the nation in
DNA exonerations since 2001. In every instance but one, a Dallas Morning
News investigation found, police and prosecutors built their case on
eyewitness accounts, even though they knew such testimony can be fatally
Research has long shown that memory is both fallible and malleable.
Initial recollections can be wrong, especially when a victim must identify
a stranger, and even more so if the stranger is of a different race. If a
victim later believes that a suspect, such as someone seen in a lineup,
was the attacker, the brain can rewrite history and create a false memory
that is as vivid and convincing as if it were real.
In such cases, witnesses can give false testimony with complete
confidence. And nothing convicts like a confident eyewitness.
Officially, law enforcement has said the false convictions were tragic
aberrations. No one has been charged with lying or disciplined for
incompetence or negligence in connection with the DNA exonerations. An
eight-month review by The News of previously closed prosecution files
found, however, that the faulty identifications were the predictable
consequences of a criminal justice system that ignored safeguards meant to
protect the innocent. The files reveal a law-and-order machine that
focused on securing and bolstering eyewitness testimony, regardless of the
victim's doubt or the lack of corroborating evidence.
That may be starting to change. In January 2007, Craig Watkins became the
state's first elected black district attorney and quickly focused on
wrongful convictions. The issue resonated with the former defense lawyer.
He was also the first district attorney in memory with no ties to the
prosecutor's office and has shown he is not afraid to reexamine its past.
So earlier this year, Mr. Watkins granted a request from The News to
review prosecution files to analyze the root causes of the wrongful
convictions. Reporters also consulted more than 70 current and former
prosecutors and police officers, defense lawyers, judges, jurors and
exonerees, as well as legal scholars and those who pursue wrongful
In addition to an almost slavish reliance on eyewitness testimony, a
review of the Dallas County DNA cases showed that:
13 of the 19 wrongly convicted men were black. Eight of the 13 were
misidentified by victims of another race. Police investigators and
prosecutors in the cases were all white, as were many of the juries of the
Police officers used suggestive lineup procedures, sometimes pressured
victims to pick their suspect and then cleared the case once an
identification was made.
Prosecutors frequently went to trial with single-witness identifications
and flimsy corroboration. Some tried to preserve shaky identifications by
withholding evidence that pointed to other potential suspects.
Judges, governed by case law that has not kept pace with developments in
DNA testing or research on eyewitness testimony, routinely approved even
tainted pretrial identifications as long as an eyewitness expressed
certainty in court.
As a result, victims who sought only justice sent innocent men to prison
while the real criminals went free and committed other violent crimes.
Taxpayers spent more than $3 million in compensation and incarceration for
the Dallas County cases alone. (17 exonerations have occurred elsewhere in
Texas.) And some of the discredited police practices continue to this day.
"It's almost like it's the whole system," Terri Moore, Mr. Watkins' top
assistant and a former federal prosecutor, said when presented with the
newspaper's findings. "Everybody drops the ball somewhere, starting with
the police investigation. And we just take the case and adopt what the
Eyewitness testimony is the crack cocaine of the criminal justice system.
Law officers know the potential risks but are addicted to its power to
"Eyewitness testimony was gold," said Kevin Brooks, who heads the district
attorney's felony trial bureau. "If the witness said they saw it, they saw
Misidentifications have been cited as a key factor in an estimated 75 5 of
the 220 wrongful convictions exposed by DNA testing nationwide since 1989.
No local jurisdiction other than Dallas County has had as many surface
since 2001, when state law allowed testing for prisoners.
2 things are clear: Dallas County did a better job than most of preserving
biological evidence, and all but 5 of the wrongful convictions occurred
under the late District Attorney Henry Wade.
Mr. Wade felt crime victims deserved their day in court. If a victim was
positive of an identification, that was usually good enough for him and
"No one ever thought a one-eyewitness case was good," said Joe Kendall, a
Wade prosecutor from 1980 to 1982. "But if you had a one-eyewitness case,
and it was a rape case, and the victim said that's the one, you couldn't
The Wade era, from 1951 to 1986, was marked by take-no-prisoner trial
tactics, conviction rates that topped 90 percent and record-length
Attorneys and investigators who work to free the innocent contend that
such an adversary mentality contributes to wrongful convictions.
"We are dealing with a deeply entrenched institutional attitude towards
criminal justice that works on an us-vs.-them philosophy," said Amarillo
attorney Jeff Blackburn, chief counsel for the Innocence Project of Texas.
"It cares about convictions because that gets you a bigger budget and
Bill Hill, the only surviving Wade protg who was district attorney before
Mr. Watkins, said he was confident his assistants verified the accuracy of
all eyewitness identifications.
"I had no reason to believe any of my prosecutors ever did anything that
would subject an innocent man to jeopardy," Mr. Hill wrote in an e-mail to
The News. "Matter of fact, I would be devastated to find out they had done
When told his office prosecuted one of the 19 DNA exonerees, Andrew
Gossett, Mr. Hill said the 2 prosecutors on the case were incompetent
holdovers from the previous administration.
Dallas County is not unique in its approach to eyewitness testimony. Most
prosecutors across the U.S. have maintained an equally deep devotion
despite the swelling number of wrongful convictions exposed by DNA
"These are systemic problems, absolutely," said Rob Warden, executive
director of the Center on Wrongful Convictions at Northwestern University
law school. "And they are closing their eyes to it. They are not doing so
in bad faith. They are doing so because they really believe it."
Eyewitness testimony is not always flawed, but no one really knows how
often it's wrong. But because the same identification procedures were
routinely used in cases that lacked biological evidence to test, Mr.
Watkins said, the number is "a lot more than 19."
It is likely, he said, that an innocent person has been convicted by
faulty eyewitness testimony during his first two years in office. He is
trying to instill in his prosecutors the need to be more skeptical and to
seek out corroboration, Mr. Watkins said.
"We know that eyewitness identification is faulty," he added.
Mr. Fountain's case epitomized many of the shortcomings The News found.
His was one of 14 DNA-based exonerations that relied on a photographic
lineup, by far the most widely used identification method by police.
Photo lineups gained popularity after the U.S. Supreme Court ruled in 1967
that suspects in live lineups had the right to have an attorney present.
Photo arrays are usually shown outside the presence of defense attorneys
and with no audio or video recordings.
Typically, 6 mug-shot photos are arrayed in 2 rows of 3 for a victim to
view. Dallas and many other police departments use computer programs to
generate "filler" photos for lineups based on general descriptions entered
by a detective.
As in Mr. Fountain's case, questions persist about the fairness police
officers demonstrated in obtaining identifications from photo lineups.
Mr. Fountain's photo was shown to the victim 4 hours after the rape. The
case was marked "cleared" by the lead detective the following day. The
only other evidence presented at trial was a blood-typing test that
concluded no living person could be eliminated as a suspect.
A review of the photo lineups in the other DNA exonerations showed that 1
wrongly convicted man from Dallas County was a former neighbor of the
victim. Another worked at the same business. A 3rd had the same name as a
man the victim knew was a suspect. 4 men were suspects in other unsolved
All but one of the exonerated men had prior arrest records and booking
photos that could be used in lineups.
The lead detectives were nearly all seasoned veterans. 2 had 2 cases each
with faulty photo identifications. Another had shown photo spreads in the
Lenell Geter case, one of Dallas County's most infamous wrongful
Police insist that faulty identifications from photo lineups are almost
always the result of human error, not intentional bad faith.
"Everyone gets sloppy," said P.E. Jones, a retired Dallas robbery and
homicide detective. "You think you have a slam-dunk case, and so you don't
go in there and dot your I's and cross your T's. And all of a sudden, it
comes back to bite you."
Critics contend photo arrays are inherently vulnerable to manipulation:
the detective's body language, the instruction the witness receives,
feedback provided by officers if an identification is made.
"I call them misconduct identifications," the Innocence Project's Mr.
Blackburn said. "I have yet to see one of these eyewitness IDs that goes
wrong that didn't have some element of deliberately suggestive behavior
going on by the cops."
After one witness hesitated to identify exoneree Patrick Waller from a
photo lineup, prosecution notes show, the lead detective pointed to Mr.
Waller's picture and said two other eyewitnesses had identified him. The
witness remained uncertain and was not called to testify at trial. Mr.
Waller spent 16 years in prison before DNA exonerated him in July. The
real criminal later was imprisoned for burglary.
Jim McCloskey, a nationally known prisoner rights' advocate, said his
investigations of wrongful convictions nationwide often involve photo
lineups that appear to be the result of police officers coaxing witnesses.
"Who looks most similar to the suspect?" said Mr. McCloskey, executive
director of Centurion Ministries Inc. of Princeton, N.J. "These
conversations go on, and they evolve until before you know it they have
got themselves an ID. Now they've got the guy [witness] locked in, and
he's afraid to go back."
The use of arrest photos with height lines in the background or
departmental identification placards in front can suggest involvement in
The angle at which a photograph is taken can distort a subject's true
size. A photo's age can obscure physical changes. The exposure can make
skin tones darker.
Exoneree Donald Wayne Good, in a federal civil rights lawsuit, accuses an
Irving police detective of deliberately underexposing his lineup photo to
obscure a facial scar and tattoo. Mr. Good spent 21 years in prison before
being freed in 2004.
Attorneys for the detective and the city have denied that Mr. Good's
placement in the lineup was retaliation for his lack of cooperation in
Five other exonerees have sued the cities of Dallas, Irving and Garland,
claiming that a lack of formal identification policies and inadequate
police training and supervision demonstrated "deliberate indifference" to
their civil rights.
Most police agencies don't have written policies on identification
techniques, and police officers receive little formal training. Only five
police departments in Dallas County, including the Dallas Police
Department, provided The News with written policies regarding eyewitness
Dallas Police Chief David Kunkle said investigators sometimes were too
focused on their suspect and ignored signs that someone else could be
guilty. That, in combination with bad witness identifications and
prosecutorial misconduct, contributed to the wrongful convictions, he
Law enforcement agencies have generally resisted calls to overhaul their
identification procedures and to use a sequential blind method. In it,
photos are shown one at a time, instead of simultaneously, by an officer
not involved in the case.
Social scientists have touted the sequential procedure for 20 years, and a
U.S. Justice Department task force recommended it in 1999.
A bill that died in the Texas Legislature last year would have created a
task force to draft voluntary guidelines for sequential blind procedures.
Dallas police have said for nearly 2 years they would participate in a
pilot project to use the sequential blind approach in some felony cases,
but the project has yet to begin.
Brad Lollar, a Wade prosecutor from 1978 to 1982, said he did not grill
police investigators about how they obtained a victim identification.
"You'd ask them just to make sure there wasn't any deviation from the
script," he said. "The script was always, 'No, I didn't tell her. No, I
didn't indicate. No, I didn't point out any particular photograph.' "
By the time a case got to trial, it was not unusual for the eyewitness to
have seen the defendant multiple times either through photos or in person.
Social scientists describe this as "confirmation bias," saying it shores
up a shaky identification.
"There is nothing as dramatic as being in front of a jury and that witness
says 'That's the man. I will never forget his face,' " said Mr. Brooks, a
veteran Dallas prosecutor. "The impact that has on a jury is unreal."
If an eyewitness exhibits certainty, records and interviews show, judges
do not suppress a prior identification no matter how the photo lineup was
"The fact that some particular process might not have been as pristine as
we'd like it to be does not in and of itself make them wrong," said state
District Judge John Creuzot.
U.S. Supreme Court decisions in the 1960s and 1970s set a high bar for
withholding an eyewitness identification from a jury. And in 1975, the
Texas Legislature amended state law to make it easier to prosecute sexual
assaults without evidence to corroborate eyewitness testimony.
The law was part of a national effort by women's groups to remove
provisions deemed unfair barriers to the prosecution of sexual assaults.
Each of the 19 Dallas County DNA exonerations occurred after that law
In Mr. Fountain's 1986 trial, state District Judge Jack Hampton sanctioned
the victim's identification, even though defense attorney Mike Rodgers
called it "the most suggestive photo spread I've ever seen in my life."
It didn't matter that Mr. Fountain wasn't wearing blue jeans under the
warm-up suit as the victim had described. Or that there was no
incriminating medical evidence. Or that Mr. Fountain had an alibi affirmed
by his teenage cousin.
Once he was identified, police declared him guilty and prosecutors built a
case around the victim's testimony. That, says Ms. Moore, first assistant
to Mr. Watkins, is "the assembly line" of criminal justice.
The lead prosecutor in the case said she didn't doubt the victim and was
not bothered by the way the photo lineup was constructed.
"I would say, knowing what I know now, that's not good procedure," said
Lana Myers, now a felony court judge. "But then, she was believable to me.
Obviously, she believed he was the one."
One juror, Michael Reeb, said any doubts about the prosecution's case were
overcome by the testimony of the victim, a young clerk pregnant with her
"It came to the point where she's identified him. I don't know what he's
done with the pants, but let's go with the identity," Mr. Reeb said.
The jury convicted Mr. Fountain and sentenced him to 40 years in prison.
Once behind bars, Mr. Fountain said he devoted himself to regaining his
freedom. He wrote letters to the trial judge, the district attorney,
anyone he thought might listen.
No one did until the results of a March 2002 DNA test finally proved Mr.
A life unraveled
Life outside prison has been bumpy.
Mr. Fountain said he collected $190,000 in compensation from the state,
gave most of it to his family, and a girlfriend drained the rest from his
"I was a fool for letting her know the number," he said.
Mr. Fountain took to the streets after his mother died in 2005. He sleeps
in an abandoned house and spends his days collecting cans to sell to scrap
yards along South Lamar Street. On a good day, he said, he can make $40,
which he spends on fast food and beer.
Sometimes he stays at his sister's home in Seagoville, but never long. He
said he refuses to live ever again under someone else's rules.
Looking back, the gaunt 52-year-old in ripped pants and a grimy T-shirt
said the justice system never gave him a chance.
"Back then, all they needed was testimony of the victim," he said. "If the
jury believed that, they didn't need nothing else."
AT A GLANCE: OVERTURNED CONVICTIONS
Of the 19 Dallas County convictions overturned by DNA testing, 18 were
based on faulty witness identifications. One murder case had no
A review of the case files by The Dallas Morning News found that:
8 of the wrongly identified men lived, worked or socialized near the
4 were suspects in unrelated crimes.
All the cases involved sexual assault though not all men were charged
14 cases were prosecuted during former District Attorney Henry Wade's
tenure, which ended in 1986 and was marked by hardball trial tactics and
high conviction rates.
5 faulty convictions were recorded during the terms of 2 Wade
lieutenants: John Vance, who had 4, and Bill Hill, who had 1.
Mr. Hill was district attorney in April 2001 when Texas prisoners won the
right to file for post-conviction DNA testing. His prosecutors opposed
genetic testing in 10 cases where that evidence ultimately invalidated the
Testing delays in 1 armed robbery-rape case made it legally impossible to
prosecute the true culprit.
Mr. Hill said his prosecutors opposed DNA testing only when they were
convinced of the defendant's guilt.
"I would never, ever knowingly refuse an innocent person's freedom," he
said. "I was a tough prosecutor, but I only wanted the guilty to be
charged and tried."
Eyewitnesses still play key roles in cases where DNA, other evidence is
The fallibility of eyewitness testimony revealed by DNA exonerations in
Dallas County and nationwide is not a relic of the past. Police and
prosecutors still depend on the same discredited identification procedures
to ensure convictions today.
Police use these techniques in a variety of crimes from murders to
robberies. The difference between today's cases and the 19 exonerations
involving sexual assaults is that often there is no DNA to ensure guilt or
"We've shown how unreliable eyewitness testimony is in sexual assault
cases," said Rob Warden, executive director of the Center on Wrongful
Convictions at Northwestern University law school. "But now the system
itself is pretending that all of these armed robbery cases are just hunky
dory when we know, if anything, it's no doubt less reliable in an armed
robbery case than in a sexual assault case."
It's impossible to estimate how many wrongful convictions might be
occurring in cases without genetic evidence, experts say.
"There is no question that there are many more mistakes that we will never
know about because there is no DNA in those cases," said Edwin Colfax, an
Austin researcher with the nonprofit reform group The Justice Project.
To examine whether the flawed practices highlighted by the DNA exoneration
cases were still in use, The Dallas Morning News examined robbery trials
in Dallas County from 2006 and 2007 the last year of former District
Attorney Bill Hill's tenure and the 1st year Craig Watkins was in office.
Eyewitness testimony is the most crucial element in robbery cases.
The newspaper found that law enforcement still relies heavily on
eyewitness testimony, even if corroborating evidence is weak and despite
decades of research showing its shortcomings.
' Eyewitness testimony can be unreliable for a variety of reasons. Victims
often get only a brief look at their attackers, especially in robberies,
and they tend to focus on the gun rather than the face, research shows.
Accurately identifying strangers, especially of a different race, is
difficult, and the stress of being a crime victim can distort memories.
Nonetheless, police and prosecutors say eyewitnesses are 2nd only to
genetic evidence in convincing jurors of a defendant's guilt.
"Nothing beats a victim or a witness standing there when the crime was
committed," Dallas homicide Sgt. Larry Lewis said. "The only thing that
would beat that is DNA."
The News reviewed 31 robbery trials over two years in which defendants
were found guilty and appealed their sentences. Only cases on appeal have
trial transcripts, which allow for an examination of what happened at
trial and, in part, during the investigation.
The cases reviewed represented about two-thirds of all appealed robberies.
However, more than 1,700 defendants during the same two years pleaded
guilty and were given prison time, probation or deferred adjudication
probation. As seen in some of the 19 exoneration cases, defendants
sometimes accept a plea bargain to ensure a shorter sentence.
The newspaper did not reinvestigate the cases to determine whether an
innocent defendant had been found guilty of the crime. But it found
several of the same practices discredited in the DNA exonerations,
including cases in which:
Witnesses often selected people from photo lineups when they could not
provide detailed descriptions of the robbers' faces. In a 2007 Dallas
robbery case, a pizza deliveryman did not provide details of the robbers'
faces or mention noticing a permanent grill on the defendant's teeth, but
he identified a suspect with a grill during a photo lineup.
Photo lineups were not always conducted according to best practices. In
two Dallas cases, officers asked two witnesses to identify a suspect at
the same time. Best practice dictates that witnesses view suspects
Victims sometimes picked suspects from lineups by eliminating other photos
and then selecting the remaining one who most resembled their attacker. In
a 2007 Coppell robbery case, the victim told jurors that she selected the
defendant because he had the darkest complexion and the largest forehead
of anyone in the photo lineup.
Police focused on suspects in spite of conflicting evidence. A man was
convicted in 2006 after a police dog tracked a scent from a store several
doors down from a Duncanville crime scene. The dog led officers to an
apartment complex where a man known to police lived. Investigators found a
gun in the man's bedroom that didn't match the robbery weapon. But he was
arrested after the victim identified him in a photo lineup.
Although defense attorneys questioned the unreliability of eyewitness
identification, they did not call experts to testify about studies proving
Victims in 6 cases could not identify their attackers, sometimes because
the robbers wore masks. In those cases, DNA or robbers using victims'
credit cards led to arrests.
DNA was found in only 3 cases: One involved a sexual assault; in the other
2, defendants left behind gloves with DNA.
The identification practice commonly known as "showups" occurred in about
20 % of the robbery cases examined. That tracks with the percentage of
showups involved in DNA exonerations nationwide.
Showups allow police to show witnesses a suspect 1-on-1, either in person
or by photo. The U.S. Supreme Court has discouraged but not banned the
In one 2006 trial involving a showup, a woman was robbed at gunpoint while
parking cars at the State Fair of Texas. She said the man who robbed her
was wearing a white tank top and jeans and took from her $15 or $16 in
cash, a cellphone and some wadded up toilet paper she had in her pocket.
Police put the woman in a squad car and drove her around the area until
police spotted a man on the street wearing the same kind of clothes as the
robber. After she identified him, police found $51 in his pockets but no
gun or the woman's cellphone. He did have some crumpled toilet paper in
his back pocket and was arrested. The man, who had a prior record, was
later convicted and sentenced to 70 years in prison. No one tracks how
often police conduct showups, but officers believe strongly in their
value. One officer in a Dallas County robbery case tried last year
testified that he preferred using showups to photo lineups.
Mr. Watkins has made righting wrongful convictions a hallmark of his
nearly 2-year administration. Presented with The News' findings, he
acknowledged that his office needs to do much more to improve how it
handles eyewitness testimony.
"This is just another indication of how far we need to go," Mr. Watkins
said in an interview. "I was thinking, 'Yeah we'll get there,' but we have
a long way to go."
However, he said, he cannot stop trying cases even if they are based on
little else but eyewitness testimony.
"You can't just throw the whole process out of the window," he said. "The
thing is to try to improve the process."
Mr. Watkins and his top assistant, Terri Moore, said they want to better
train prosecutors to ask questions of witnesses and police officers about
how identifications were obtained.
"Teaching them how to rethink some things, challenging ourselves," said
Ms. Moore, a former federal prosecutor.
"I don't think you are going to stop wrongful convictions today because of
a DNA test," Ms. Moore said, referring to how few cases have genetic
evidence that can be used to verify the verdict. "I think it goes well
Mr. Watkins said he would not support a law requiring all police
departments to follow a specific policy on the use of eyewitness
testimony. But he said he would lobby the Legislature to mandate that all
police departments adopt standards for how they handle witness
identifications. Only five Dallas County police departments could provide
The News written policies on how to conduct witness identifications.
The Dallas Police Department in recent years began requiring witnesses to
sign a form, acknowledging that the officer conducting the lineup warned
them that the photo spread may not include the actual suspect. The
department also has written guidelines for how to conduct photo lineups,
but police officials say there is little oversight.
Mr. Watkins said he also would not support a special jury instruction
warning that eyewitness identification can be unreliable. That point, he
said, is more appropriately handled by presenting expert witnesses on the
Texas law allows for convictions based on the testimony of a single
eyewitness. Potential jurors who cannot convict based on the testimony of
that lone witness if they believe the testimony beyond a reasonable doubt
cannot legally serve on a jury panel.
Longtime Dallas defense attorney John Read said that since Mr. Watkins
took office, county prosecutors have been more likely to question
eyewitnesses' reliability. But police departments in Dallas County and
prosecutors in other counties still base many of their cases on an
eyewitness picking out a suspect, he said.
Mr. Read said he also believes that police, intentionally or otherwise,
are still suggesting in lineups which suspect the victim should identify.
"I believe they do what they do whatever it is they do with their
suggestions because they think they've got the right person," Mr. Read
said. "They believe he's guilty."
Earlier this year, Richardson police changed how they handled photo
lineups after wrongly charging a man in a 1985 burglary and rape. The man,
Thomas McGowan, was cleared in April through DNA testing after serving 22
years in prison.
Richardson police Chief Larry Zacharias called the city's only DNA
exoneration "the revelation."
The photo lineup that led to Mr. McGowan's arrest and conviction included
color photos, black-and-white photos and photocopies of photos a
violation of the best practice that mandates all photos should be similar
in composition. Mr. McGowan was pictured in a color photo, wearing a
placard that read Richardson police.
Now, instead of the case investigator showing six photos at one time to a
witness, a detective not involved in the case shows witnesses one photo at
a time. The practice is known as a sequential blind lineup.
Investigators also video record all witness identifications conducted at
the station, which previously had not been done. Field identifications are
at least audio recorded.
Those seeking eyewitness identification reforms say videotaping reduces
the likelihood of suggestion by the detective and allows prosecutors to
show juries that the photo lineup was conducted properly.
Recording of some kind, Chief Zacharias said, is an "absolute" in
By contrast, Dallas police, who had 13 of the 19 exonerations, have been
considering for nearly 2 years whether to participate in a limited study
using sequential blind identification procedures. The study which would
focus primarily on robbery cases could begin as early as November,
departmental officials said.
When the new procedures begin, Dallas police Assistant Chief Ron Waldrop
said, officers will probably make an audio recording of the
identifications in photo lineups. Unlike Richardson, however, there are no
plans for Dallas police to videotape its lineups.
"It's not going to eliminate mistakes," Chief Waldrop said of the proposed
changes. "We just want to make sure the practices we put in place don't
aid the mistakes."
(source for both: Dallas Morning News)