Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.


Two days after Young’s murder a witness name Gladys Oliver went to the police to report what she had seen in the alley the night Young’s BMW was located. She informed the police that there were other witnesses besides her who also saw what transpired in the alley that night. She told investigators she belatedly decided to come forward with her information after learning they had arrested a man named Van Mitchell Spencer for stealing Young’s vehicle. She said the police had the wrong man in custody because she saw Benjamine John Spencer, not Van Mitchell Spencer, getting out of Young’s vehicle in the alley. Another witness, Charles Stewart, whose name was supplied by Oliver, told the police Benjamine Spencer got out of the passenger side of the vehicle, jumped Oliver’s fence, and went through her back yard. He said that when the car door of the vehicle opened a light came on and, besides Spencer, he saw a second man named Nathan Robert Mitchell in the vehicle as he was getting out on the driver’s side. A third witness named Donald Merritt told the police he saw a white man lying in the street, bleeding from the head and struggling to breathe. Merritt also saw the BMW in the alley with an individual named Nathan Robert Mitchell standing next to it. Finally, a fourth witness named Jimmie Cotton told the police that he was cooking dinner in his kitchen when he saw the BMW drive into the alley and Spencer exit the vehicle on the passenger side shortly afterwards.


Based on the information provided by these four witnesses, the Dallas police arrested Spencer and Mitchell for the murder/robbery of Young. All the witnesses testified at Spencer’s trial. Their testimony revealed that the alley in which the BMW pulled into ran behind Oliver’s residence. All the witnesses testified they could see everything in the alley because a nearby street light was on as well as a neighbor’s back porch light. Stewart added that in addition to these lights the light inside the vehicle came on when its doors were open, allowing him a clear view of occupants. Oliver also added that she did not provide the police with this information the day after Young’s murder when the police did a door-to-door canvassing because she feared for her life.


The conditions under which these eyewitness identifications were made are important in this case because, as the New York-based Innocence Project has reported, 75 percent of the 269 DNA exonerations in this country since 1989 involved eyewitness misidentifications. Dallas prosecutors bolstered these eyewitness identifications with testimony from a “jailhouse snitch” named Danny Edwards who was one of Spencer’s cellmates in the county jail. Edwards informed the police that Spencer had told him that he struck Young several times in the head with a pistol before placing him in the backseat of the BMW at which time he struck him several more times as Mitchell drove the vehicle. Edwards testified at Spencer’s trial that Spencer then kicked Young out of the vehicle. Spencer, according to Edwards, killed Young for the BMW which he planned to take to a “chop shop.”



Spencer presented an alibi defense at his trial. He told the jury he took Ramona Williams and one of her friends to church after which he spent the rest of the evening with Ramona’s sister, Christie. Spencer said the couple spent some time as Christie’s house before going to a nearby park where Ramona testified she saw Spencer’s car parked at around 11 p.m. as she returned home from church.


The jury was not persuaded. Spencer was found guilty and the jury recommended a 35-year prison sentence. Spencer filed a motion for a new trial which was granted by the trial court. The district attorney’s office elected not to retry to murder case and instead tried Spencer for aggravated robbery in 1988. A second jury also convicted him and this time recommended that a life sentence be imposed. Mitchell was also found guilty on much of the same eyewitness testimony that was presented against Spencer.


Some years after his conviction had been upheld on direct appeal, Spencer filed an application for a writ of habeas corpus. He raised four issues in his writ application: 1) That the prosecution failed to disclose favorable evidence; 2) that the prosecution knowingly used perjured testimony; 3) that he was denied effective assistance of counsel at trial; and 4) that he is actually innocent of the robbery/murder of Young. The trial court conducted an evidentiary hearing on the writ application, and after hearing exhaustive testimony and evidence, recommended to the Court of Criminal Appeals that the writ application be granted. The trial court specifically made three hundred findings of fact which found no merit in Spencer’s first three claims but did find sufficient evidence had been presented at the habeas hearing for a finding of the “actual innocence” of Spencer.


The trial court’s finding of “actual innocence” was based almost exclusively on the testimony of a “forensic visual science expert” named Dr. Paul Michel who said “the eyewitnesses could not have seen the face of the person exiting the BMW because of darkness, distance, and movement.” Specifically, the expert said Cotton would have been unable to make a “facial identification” of the person reportedly jumped Oliver’s fence because he was 113 feet away from the fence. The expert undermined Stewart’s testimony by pointing out that the witness was so far away he could not have made a facial identification of anyone exiting the BMW even in the daylight.  Likewise, because Oliver was 123 feet away, she could not have made a reliable facial identification.


Based on this expert testimony, the trial court found that at the time of Spencer’s trial in 1987, “the evidence generated by the application of forensic visual science was unavailable and undiscoverable.” Influenced by Dr. Michel’s testimony, the trial court also found “Cotton did not actually see the person exiting the BMW,” that “Cotton was not able to make an identification of the person he claimed to have seen at that point,” and, therefore, Cotton was not a credible witness, worthy of belief. The court also found that “Stewart was so far from the BMW that even in daylight it would take a super human [sic] abilities to make a facial identification” and “that it was not possible for Charles Stewart to see well enough to make to make a facial identification of any persons exiting the BMW.” Likewise, the trial court found Gladys Oliver’s testimony was not worthy of belief because she was not a credible witness. Finally, the trial court concluded these witnesses had not testified truthfully at Spencer’s trial because it was “physically impossible” for them to have made the facial identification of Spencer existing the BMW.


Finding that the eyewitness testimony had been discredited, the trial court then concluded that the “only evidence” implicating Spencer in the crime was Danny Edwards’ testimony, and absent any physical evidence connecting Spencer to the crime, “none of Danny Edwards’ testimony was credible and, even when viewed in the light most favorable to the State, [it] was inadmissible hearsay.” At the hearing Spencer presented evidence that another man named Michael Hubbard had possibly committed the crime because he had told friends he had killed Young and that two other men had been arrested for the murder. One of those friends was Kelvin Johnson who was Mitchell’s cellmate. The Dallas police spoke to Johnson who told them Hubbard had told him about “this white dude that had been killed in west Dallas.” An investigator drafted an affidavit of Johnson’s statement but he refused to sign it. At Spencer’s habeas hearing Johnson’s recanted his statement, telling the court at the time he implicated Hubbard he was mad at him because Hubbard had implicated Johnson in a series of robberies they had committed together. He added he was concerned Hubbard would get the death penalty and this would have a bad effect on Hubbard’s mother.


The prosecution did not disclose the Johnson/Hubbard information to Spencer’s defense, and this formed the basis for his Brady violation. The impact of this violation was evidenced by testimony offered by Farrell Scott at the writ hearing. He testified Hubbard told him he had robbed a man outside an office building, put him the trunk of a BMW, and drove him to west Dallas where he abandoned the vehicle in an alley. Scott said he helped Hubbard sell a Seiko watched that had been stolen from Young.


While the trial court refused to find that either the police or prosecution had acted improperly by withholding the Johnson statement, the court nonetheless found Hubbard’s confession to Johnson “was more consistent with the facts of the offense than the testimony given by Danny Edwards.” The court added that when Johnson’s unsigned statement and Edwards’ testimony were viewed side-by-side, Johnson’s statement was “more consistent with the actual facts of the murder and therefore more credible.”


Because the testimony of the prosecution’s eyewitnesses had been discredited through the “newly discovered” evidence offered by Dr. Michel and because Danny Edwards’ testimony was inadmissible hearsay, the trial court recommended that Spencer’s writ application be granted “on the grounds of actual innocence.”


The Dallas District Attorney’s Office, which has built a reputation of weeding out wrongful convictions, responded to the trial court’s ruling and the TCCA outlined its position: “The State agrees that advances in science and technology should be considered when determining whether evidence is newly discovered or newly available. However, since not all advances have the same reliability, the weight to be given the advances must be considered on a case-by-case basis. In this case, little weight should be given because the expert’s report could not be based on the conditions at the time of the offense, forcing the expert to make too many assumptions. The State argues that since the evidence is not the same as it existed at the time of the offense, it cannot be treated the same way DNA is. All these assumptions cannot overcome the testimony of witnesses who testified they had enough light to see [Spencer] get out of the victim’s car.”


It was that argument which carried the day in the Court of Criminal Appeals. The TCCA found that “any person who has once been finally convicted in a fair trial should not be permitted to wage, and we do not permit him to wage, a collateral attack on that conviction without making an exceedingly persuasive case that he is actually innocent. It is entirely reasonable to insist, and we continue to insist, that an applicant for habeas relief based on a claim of actual innocence must ‘demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different [on retrial].’”


The TCCA then specifically found that while “forensic visual science” may be new,” there is “no way for the forensic visual expert to test the conditions as they existed at the time of the offense because there is no way to replicate the lighting conditions.” The appeals court added, “we will consider advances in science and technology when determining whether evidence is newly discovered or newly available, but only if the evidence being tested is the same as it was at the time of the offense. Thus, the science or the method of testing may be new, but the evidence must be able to be tested in the same state as it was at the time of the offense.”


With respect to the Danny Edwards/Kelvin Johnson evidence, the TCCA said the trial record does not support the trial court’s finding that Johnson’s unsigned affidavit was more credible than Edwards’ trial testimony. “The trial court said that Jonson’s statement is more consistent with the facts of the murder,” the TCCA observed, “and is more credible than the statement by Edwards. But Johnson said the victim fell out of the trunk of the car and died, which is inconsistent with the cause of death and eyewitness testimony that the victim was pushed out of the car. Edwards said that [Spencer] beat the victim repeatedly and kicked him out of the car, which is consistent with Stewart’s testimony that he saw the victim pushed out of the car and with the determination that the cause of death was multiple blows to the head. We also note that the eyewitnesses reported seeing two people exiting the car, while the version of the crime told by Johnson and Scott involved only one person—Hubbard. Despite the expert’s report that the eyewitnesses were unable to make a facial recognition of the people they saw in the alley, we are confident that they would have been able to discern whether it was one or two people, which further weakens the credibility of Johnson’s and Scott’s statements.”


Judge Price, joined by Judges Hervey, Cochran, and Keasler, issued a concurring opinion which outlined the reasons why establishing an “actual innocence” claim is so difficult:


“I join the Court’s opinion. This case has drawn a great deal of curious attention. I write separately to emphasize why it is appropriate for this Court to exercise its duty and prerogative, as the ultimate factfinder in post-conviction habeas corpus matters, to take whatever time is necessary on an extensive record to carefully consider and resolve a claim such as this. It is especially fitting that we should not rush to judgment in view of the opposition of the district attorney’s office, an office that has a current reputation for not reflexively opposing post-conviction claims of actual innocence—indeed, for actively facilitating the investigation of such claims as are at least facially plausible.


“Habeas corpus is an extraordinary remedy. Any grant of post-conviction habeas corpus relief flies in the face of the State’s compelling interest in the finality of its hard-won conviction. Claims of actual innocence threaten the State’s finality interest even more than most because, though the remedy is a new trial, it is rare that the State can successfully retry such a case if habeas relief is granted. Texas is one of the few jurisdictions so far to recognize actual innocence as a cognizable due process claim in post-conviction habeas corpus proceedings. Believing that the societal interest in accurate results in criminal trials should invariably trump the State’s otherwise legitimate interest in the finality of its convictions, I have always concluded that we are right to recognize actual innocence claims in post-conviction habeas corpus proceedings. But we are also right, in deference to the State’s otherwise legitimate interest in finality of its convictions, to insist that establishing a bare claim of actual innocence should be “a Herculean task.”
“Accordingly, when we first recognized bare actual innocence as a cognizable, stand-alone claim in post-conviction habeas corpus proceedings, we deliberately designed the standard to be exceedingly rigorous. [W]e [have] held that, to succeed in such a claim, an applicant must produce new evidence to demonstrate that he is ‘unquestionably innocent’; that is to say, the reviewing court must be able to conclude, after factoring the new, exculpatory evidence in with the inculpatory evidence introduced at trial, that the applicant has shown ‘by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’ [W]e elaborated that a claim of actual innocence requires applicants to produce evidence ‘that proves [their] innocence and not merely raises doubt about their guilt[.]’ Only after the applicant has produced such ‘affirmative evidence of [his] innocence’ need the determination then be made whether, by clear and convincing evidence, weighing both the new and the old, no rational jury would have convicted him.


“We typically see two types of evidence of actual innocence that might, under the right circumstances, qualify as ‘affirmative evidence of innocence.’ First, if an offender leaves biological material such as blood or semen behind, and the circumstances show that he acted alone in perpetrating the offense, post-conviction DNA testing may constitute affirmative evidence of an applicant’s innocence if it reveals that the biological material was not his. Second, if the victim of an offense recants his trial testimony that an applicant assaulted him, there is no other evidence that an assault even occurred (or at least that the applicant was the perpetrator), and the recantation is deemed more credible under the circumstances than the trial testimony, then the recantation may count as affirmative evidence of innocence. (Indeed, under this second scenario, it may become evident that no offense even occurred!) The Court correctly concludes today that, in the instant case, there is no comparable ‘affirmative’ evidence of innocence; there is only evidence that could serve, however convincingly, to cast doubt upon the credibility of the State’s evidence of the applicant’s guilt. Such a threshold showing does not serve to outweigh the State’s interest in the finality of its conviction.


“The applicant’s actual innocence claim, as I understand it, is predicated on essentially three prongs. First, the jailhouse snitch who testified that the applicant confessed to him has since recanted . Second, other informants have come forward with statements that another perpetrator admitted to an offense that has certain characteristics remarkably similar to the instant murder. And third, a forensic optometrist has now proclaimed that what the State’s eyewitnesses claim to have seen on the night of the offense is beyond the realm of human visual acuity. None of this evidence (assuming it is new) satisfies the applicant’s present burden to show, by clear and convincing evidence, that he did not commit the offense. At best, it would give a jury pause in deciding whether to credit the eyewitness testimony at trial from which it can strongly be inferred that the applicant did commit the offense. In my view, it neither satisfies the threshold showing of ‘affirmative evidence of innocence,’ nor does it ultimately convince me by clear and convincing evidence, were I to go on to balance the ‘new’ evidence against the ‘old, that no rational jury would have opted to credit the eyewitness testimony anyway and convicted the applicant accordingly. All three of the eyewitnesses knew the applicant; they were not purporting to identify a stranger. Two of them also recognized what they knew to be his distinctive car at the scene, and one saw him leave in it. I might be willing to say on the basis of the applicant’s new evidence that, by a preponderance of the evidence, no rational jury would have convicted the applicant; and, if so, I would be willing to reach other federal constitutional claims he might raise in a subsequent writ. But I cannot accept the convicting court’s recommendation that we grant the applicant relief on his freestanding actual innocence claim; I agree with the Court that he has not even presented ‘affirmative evidence of innocence,’ much less satisfied the admittedly—but appropriately—‘Herculean’ burden to demonstrate by clear and convincing evidence that no rational jury would have convicted him in light of his new evidence.”
While the State of Texas is one of the few jurisdictions that permits a “freestanding” claim of actual innocence to be presented in a post-conviction habeas proceeding, Judge Price’s concurring opinion in the Spencer case makes it abundantly clear just how difficult such claims are to establish. That’s why the Cameron Todd Willingham case will probably never see a posthumous finding of actual innocence because no matter how much the fire forensic evidence in that case is discredited, Willingham supporters cannot present “affirmative evidence” of Willingham’s innocence, just as Spencer could not meet that burden. Absent conclusive DNA which indisputably establishes innocence, it is difficult for us to conceive how any “freestanding” claim of actual innocence can be established under the Spencer ruling and related decisions.
While we concede that the evidence of actual innocence in the Spencer case was not overwhelming, that the “new” evidence only cast “doubt” about the finding of guilt in his case, we nonetheless feel the Court of Criminal Appeals should have given deference to the trial court’s findings of fact and conclusions of law because that court was in the best position to determine the issue of “actual innocence.”
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Houston Criminal Defense Attorney John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization