Innocence Project Strikes Again: Henry James Freed After 30 Years


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Thanks to the efforts of the New York-based Innocence Project, Henry James became the 273rd inmate in this country to be exonerated by DNA evidence. The first inmate exonerated by DNA came in 1989, and according to the Innocence Project, there have been 206 DNA exonerations since 2000. James, who was 20 years of age when arrested for the aggravated rape of a neighbor, served one month sigh of 30 years in the Louisiana prison system for that wrongful conviction. The average amount of time served by all the DNA exonerees is 13 years.


That Henry James is a free man today is nothing short of a miracle. James Trigg, director of the New Orleans chapter of the Innocence Project, spearheaded the release effort of James. It was a difficult effort, as Trigg told the AP, because it was believed that all the original evidence in the case was lost. Then in May 2010 a Jefferson Parish crime lab technician named Milton Dureau, who was working on another case, stumbled upon a “slide of evidence” which had been used in the James case. DNA testing of that evidence clearly established James’ innocence. Vanessa Potkin, a Senior Staff attorney with the Innocence Project, said after James’ exoneration:


“Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police crime labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”


After exhausting all his legal appeals, James seemed destined to spend the rest of his life at the Louisiana State Penitentiary at Angola. Then the Innocence Project and the law firm of Willkie Farr & Gallagher LLP believed his longstanding pleas of innocence and took up his freedom cause. This legal team filed a motion seeking DNA testing of the original “rape kit,” and while the Jefferson Parish crime lab was “cooperative,” the initial search for this evidence produced no results. A follow up search in February 2010 produced the same disheartening result. But then Dureau came across the “slide” evidence and the DNA test results released in September 2011 revealed James was, in fact, innocent as he had claimed all along.


How did this travesty happen? The Innocence Project more than adequately laid out the background facts of the James case on its website:


“Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.


“The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker; much less that he had spent the previous day with her husband. James was arrested on November 2, 1981, and was placed in a lineup where the victim identified him again. At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had sexual intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicates that the attacker was a nonsecretor. James is a secretor.)


“James testified in his own behalf. He maintained his innocence of the crime and said he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape and he was sentenced on May 7, 1982 to life without parole.”


Paul Killebrew, a staff attorney with the New Orleans Innocence Project, had this to say about James’ conviction: “Mr. James has spent the best years of his life behind bars because of mistaken identification. Although we have since developed police identification procedures that help prevent misidentification, Louisiana has so far refused to enact these best practices. Hopefully, Mr. James’ case will serve as a wakeup call for the state legislature to mandate more accurate identification procedures statewide.”

The Louisiana Legislature may also get some incentive from the fact that the U.S. Supreme Court has agreed this term to hear a significant case dealing with the reliability of eyewitness identifications, as we reported this past August (here). While the Texas Legislature has addressed the issue of “lineup reform,” nothing meaningful has emerged from that Republican-controlled body. This despite the fact that Johnny Pinchback was released from the Texas prison system this past May after serving 27 years, also for a rape he did not commit (here). The Pinchback case is indicative of the 80 percent of the people wrongfully convicted in Texas because of eyewitness misidentification. The Texas Innocence Project and the Timothy Cole Advisory Panel on Wrongful Convictions have advocated the following lineup reforms:


  • Adopt a law mandating that law enforcement utilize the double-blind method for photo and live lineups. This procedure guarantees that the officer administering the lineup does not know the identity of the suspect, thus reducing the likelihood that the officer will inadvertently or intentionally suggest to the witness who the suspect is.
  • Carefully provide instructions to the eyewitness that state that the perpetrator/suspect may or may not be present in the lineup. This reduces the likelihood that the eyewitness will feel compelled to make a selection from the lineup participants even when the actual perpetrator may not be present in that lineup.
  • Present the individuals in a lineup to the eyewitness in a sequential manner (one after another, instead of all at one time). Research shows that by conducting a lineup in this fashion, the likelihood of misidentification decreases dramatically.
  • Collect confidence statements from the eyewitness at the time of their identification. This will allow the witness to make known his or her level of confidence in the identification thus providing valuable information to investigators.


There appears to be in the Henry James case an issue beyond the mistaken identification. We cannot fathom why James’ original trial counsel did not inform the jury about the serology evidence gathered at the crime scene that excluded James as the perpetrator of the crime. We do not have enough information to say the attorney was ineffective, but it begs the question as to why he did not present that evidence. Was the evidence made available to him by the prosecution? If so, did the attorney appreciate its significance?


This serology evidence is significant for yet another reason. Prosecutors have long believed that the “best evidence” of guilt is eyewitness identification. In James case the prosecution had strong forensic evidence that pointed away from James as the rapist. Further, the prosecution knew there were credible alibi witnesses who had provided evidence that James could not have committed the crime. But the prosecution had “eyewitness identification” and that was all it needed in Louisiana (and most other states, including Texas) to secure a conviction, even though sole eyewitness evidence has fallen in out of favor. And perhaps this explains why current Jefferson Parish District Attorney Paul Connick, Jr. agreed to file a joint a motion joint motion agreeing with exoneration of James.


The New York Times reported this past August that approximately 75,000 eyewitness identifications are made in this country each year and that a compilation of more than 2,000 studies indicate that approximately one-third of these identifications are wrong. The Times said that approximately 25 to 30 percent of law enforcement agencies across the country have implemented lineup reforms on their own, but only two states—North Carolina and New Jersey—mandate double-blind and sequential lineups.


The Texas Legislature will not convene again for two years while the Louisiana Legislature will convene next year. We would encourage these two states to join the ranks of New Jersey and North Carolina to enact meaningful police lineup reforms. Cases like Henry James and Johnny Pinchback seriously undermine the integrity of our criminal justice system, especially the traditional methods of conducting police lineups and securing eyewitness identifications. This eyewitness misidentification problem begs fixing, and while we commend those law enforcement agencies, such as the Dallas Police Department, which have voluntarily implemented their own lineup reforms, only state legislatures can uniformly address the problem. We can only hope that lawmakers in Texas and Louisiana have the courage to do so.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization