Free At Last

During the dreary final days of last year’s presidential campaign, Christopher Ochoa’s wrongful imprisonment was just one more Texas story that would not stick to George W. Bush. Ochoa, along with fellow Pizza Hut employee Richard Danziger, was convicted in 1988 of raping and murdering an Austin woman, and sentenced to life in prison. In late October, the online publication Salon reported that Achim Josef Marino, another prisoner, had written a letter to Bush in 1998 confessing to the crime, but Bush’s office had failed to notify police, the district attorney, or lawyers for Danziger and Ochoa. The letter was simply filed away. Two years later, the story of that oversight came and went, doing no more harm to candidate Bush than any other part of his undistinguished Texas record.

No thanks to Bush, the police (to whom Marino had also written, in 1996) did investigate, and testing of the evidence matched Marino’s DNA to residue found on the victim, Nancy DePriest. On January 16 of this year, after serving 12 years of his life sentence, Ochoa was finally released-just as Bush left for Washington. Although it’s just a coincidence (or so one would hope) that Ochoa gained his freedom the same week that Bush became president, Ochoa’s press conference did serve to punctuate a growing feeling around the Capitol in January: that things might actually start to happen in Texas again. At last, after two-plus years of state government held hostage to a presidential campaign, the gears have begun to turn.

In particular, certain criminal justice reforms seem to stand a better chance now that Bush is gone. Among them are a life-without-parole option for juries, guaranteed access to post-conviction DNA testing, and standards for indigent defense. At the press conference, between silly soundbite questions (“How does freedom feel?”) and Ochoa’s thanking of everyone who had helped him in prison, speakers emphasized the need for those reforms and additional ones. It was a celebrity-studded affair, by wrongful imprisonment standards: New York attorney Barry Scheck, co-founder and co-director of the Innocence Project at Cardozo School of Law (which helps people like Ochoa prove they don’t belong in jail) flew into town to host the event, which also featured cameos by exonerated former inmate Randall Dale Adams (of The Thin Blue Line fame), and Vinson & Elkins attorney Scott Atlas, who spent four years working to free Ricardo Aldape Guerra from death row.

Ochoa, a small, soft-spoken man who confessed to DePriest’s murder after being worked over by the Austin Police Department, offered praise to God and harsh words for APD sergeant Hector Polanco. According to Ochoa, Polanco, who interrogated him in 1988, refused his request for a lawyer, threw chairs around the room, and threatened him with the death penalty unless he confessed and implicated Danziger. (Polanco, who has also been accused of coercing confessions in other cases, was fired from the APD in 1992 but later reinstated.)

In addition to Polanco, Ochoa also blamed his wrongful imprisonment on a more abstract culprit: “We are a nation built on revenge,” he said. That sentiment was echoed moments later by the next speaker, Jeannette Popp, Nancy DePriest’s mother. She criticized the Austin police for having misled her but had harsher words for police misconduct in general and for the death penalty. “I don’t believe anyone can be so positive to take a person’s life,” she said.

Anyone who is feeling positive on that point would do well to read Actual Innocence, the book Barry Scheck co-authored with his partner Peter Neufeld and journalist Jim Dwyer, or A State of Denial: Texas Justice and the Death Penalty, a report published last year by the Texas Defender Service. Both works document the ways in which our desire to avenge crimes has led to legions of wrongful convictions. Actual Innocence is both a page-turner and a point-by-point examination of how the criminal justice system ensnares the innocent: Scheck, Neufeld, and Dwyer tell stories of mistaken eyewitness identifications, the suspect “sciences” of hair and bite-mark analysis, forced confessions, laboratory fraud, racial profiling, unscrupulous snitches, police misconduct, and bad lawyers. A number of their examples come from Texas, among them the fraudulent forensic expert Fred Zain, who faked data for years in West Virginia before setting up shop in San Antonio, and Ralph Erdmann, a Lubbock medical examiner whom the authors call “another superstar of forensic deception.” The state does not appear to have run out of such superstars: in December, a Travis County grand jury indicted Department of Public Safety fingerprint analyst Dianna Boyd Monaghan on charges of falsifying lab reports.

Scheck and Neufeld’s Innocence Project has worked to free wrongfully convicted inmates through the use of DNA testing. As they note in the book, this magic-bullet style exoneration won’t be around for long. “The population of prisoners who can be helped by DNA testing is shrinking,” they note, “because the technology has been used widely since the early 1990s, clearing thousands of innocent suspects before trial. Yet blameless people will remain in prison, stranded because their cases don’t involve biological evidence.” Such cases require more than just DNA testing.

In Austin, Scheck called on the Legislature to enact four specific reforms: to provide meaningful compensation for those released after wrongful imprisonment, to ensure better access to post-conviction DNA testing, to improve indigent defense, and to create innocence commissions to try to determine how wrongful convictions occurred and how to prevent them in the future. Currently, says Scheck, “there’s no examination of what went wrong. We need something that looks at these cases and figures out what went wrong and how can we fix it.”

There is momentum behind at least two of these proposed reforms, from no less (or greater) a man than Governor Rick Perry himself. In a speech given the day after Ochoa’s release, Perry supported post-conviction DNA testing in any case in which a judge “determines there is a legitimate question about the guilt of the defendant.” The same day Senators Robert Duncan, Buster Brown, and Rodney Ellis introduced a bill to give prisoners with reasonable innocence claims access to DNA testing, at the discretion of a judge. The bill is not without its problems. According to Houston defense attorney Randy Schaffer, who has helped several clients (including Randall Dale Adams) overturn convictions, “no” is the better part of discretion for certain Texas judges. And in some cases it may not be DNA testing that frees a prisoner, but, say, venereal disease tests. Still, something is better than nothing, and currently “everything is done on an ad hoc basis,” says Schaffer of post-conviction testing. “Basically every prosecutor and every judge can create their own rules.” In some cases it has taken him years to get judges and prosecutors to agree to tests.

Perry also called for statewide standards in the selection of defense attorneys in capital cases. This was practically an acknowledgment of the state’s failure to provide decent lawyers to poor people, albeit a very weak acknowledgment-claims of inadequate counsel are often “desperate plea(s) by inmates and defense attorneys running out of options,” Perry told reporters. (The one reason he gave for improving the system was to cut down on those competency claims.) The Governor most certainly did not call for Texas to emulate other death-penalty states and provide state funding and state oversight for capital-case attorneys. And he refused to support a ban on the execution of mentally retarded convicts, saying he wanted to wait for the Supreme Court to rule in a Texas death penalty case involving Johnny Paul Penry, who is mentally retarded. (The Supreme Court case, which addresses a procedural issue, will not determine one way or another whether Texas may execute a mentally retarded person. Perry’s statement was either disingenuous or misinformed.)

Finally, Perry said it was time to “take a hard look at giving juries the option” of life without parole, as an alternative to the death penalty. The advantage here is that some death sentences could be avoided, while the danger is that this option could lead to no-parole sentences for others who would, under the current system, be given lesser sentences. Perry is not likely to call for a death penalty moratorium, as Illinois’ Republican Governor George Ryan did last year.

Also in attendance at the January 16 Ochoa press conference was A.B. Butler, who was released from prison last year after DNA tests cleared him of a 1983 rape. An hour beforehand, he held his own press conference, to announce he was filing a lawsuit against Smith County, the city of Tyler, and various public officials. A man whose intimidating size is offset by a round, mild face, Butler was dressed all in black-as were his attorney, Victor Bonner, and two other companions-so that it appeared they had come for a funeral rather than a press conference.

A chilly midday rain hounded them, in their long black coats and broad-brimmed hats, from the front steps of the federal courthouse, where they had planned to stage their announcement, to the State Bar of Texas building five blocks north. A man there told them to speak to the press in the spacious first floor lobby. Yet moments after the television tripods had been planted on the carpet, a cheerful but concerned-looking facilities manager appeared to ask the Butler entourage what exactly was going on.

“This man was released from prison. He was exonerated,” said Bonner.

“Well, congratulations to you, sir!” said the facilities manager. She then resumed her original line of questioning.

Butler, who spent 17 years in prison for a crime he did not commit, is evidently a patient person. He waited until the confusion had cleared, and then spoke into the microphones. “I feel like I deserve something instead of just my freedom,” he said, explaining why he had filed a $37.5 million lawsuit. “In today’s world, you just can’t go do 17 years and then just fit right in.” After his release, the state of Texas gave Butler $25,000-a little better than “congratulations,” but a pittance in light of what he suffered.

It seems unlikely that Butler will prevail in court, because the victim in the rape case identified him as the perpetrator. (For Butler to claim damages from the city and county, he must show that his conviction resulted from police or prosecutorial misconduct, not mistaken identification.) Still, his case calls attention to the need for better compensation of the wrongfully imprisoned. It also underscores the need for investigative commissions to examine what put them there in the first place, so that we won’t have to rely on lawsuits for answers.