Decades old cases are prosecuted without any new evidence and with critical fact witnesses missing or dead, increasing likelihood of wrongful convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Roy McCaleb was murdered in Harris County on September 22, 1985. The Houston Chronicle reported that McCaleb’s wife, Carolyn Sue Krizan-Wilson, told the police that a gloved man entered their Galena Park home, raped her, and then shot her husband as he lay sleeping. She said the intruder was the same man who had raped her ten days earlier and he had somehow tracked her down in order to do it again. According to the newspaper, Krizan-Wilson did not report the earlier sexual assault to the police although her son at the time was in the Houston Police Department’s Training Academy. Krizan-Wilson, however, did make an “outcry” to a fellow employee shortly after the first rape occurred. She would later say she was too “embarrassed” to report the first rape.

Law enforcement interest settled on Krizan-Wilson early in the McCaleb murder investigation for several reasons: first, there was no sign of forcible entry into the McCaleb’s east Houston residence; second, she didn’t stay at the hospital long enough to undergo a rape examination; third, she was the primary beneficiary of McCaleb’s estate and insurance policy; fourth, she refused to take a polygraph examination; and, fifth, she was married to another man at the time she married McCaleb and had left him taking a $4,000 tax refund check with her.

Realizing that she had become the police’s only suspect in her husband’s murder, Krizan-Wilson hired local attorney Clarence Thompson to represent her. Thompson hired a private investigator named Rafael Gonzales to investigate the case. The attorney also hired a forensic examiner named Floyd McDonald to process the vehicle in which the first rape of Krizan-Wilson occurred. The vehicle has never been examined or processed by the police department.

Detective Robert Parish was one of the homicide investigators who worked the McCaleb case. He simply could not develop sufficient evidence to arrest Krizan-Wilson. He and other investigators met with an assistant district attorney in the Harris County District Attorney’s office. They unanimously agreed “they just didn’t have enough evidence to go forward with a winnable case.” That was a significant decision in 1985. Johnny Holmes was the county’s district attorney at the time. He, and his entire staff, including his successor Charles “Chuck” Rosenthal, were as pro-prosecution as they come, especially in murder cases. In fact, as legend has it, the Holmes crowd once successfully prosecuted a ham sandwich for theft of the cheese.


The McCaleb murder case went “cold.” No new evidence emerged. Clarence Thompson, Rafael Gonzales, and Floyd McDonald died off as the years passed. Lloyd Gregory Krizan, Krizan-Wilson’s son, went on to have a successful law enforcement career as he watched his mother’s mental faculties diminished over the years.

In 2007 retired HPD investigator D.S. Wilker was “brought back” to reexamine some “old” cases as part of the department’s Cold Case Squad. One of the cases she examined was the McCaleb murder case. She requested DNA testing of certain pieces of evidence, but the tests did not produce anything incriminating against Krizan-Wilson or anyone else. Wilker did not bring the results of the DNA tests to the attention of the district attorney’s office.

But in 2008 former Assistant District Attorney Victor Wisner met with Wilker, an HPD captain and lieutenant, and a D.A. investigator. Wisner listened to the HPD captain explain why charges had not been brought against Krizan-Wilson in 1985. Essentially, he said that investigators had been unable to “disprove” that the alleged intruder had previously raped Krizan-Wilson, returned to do it again, and killed her husband in the process. Wisner did not see this as a bar to prosecution and would later say the case against Krizan-Wilson was “a lot better than a lot of cases that are tried here every day.”  That prosecutorial attitude led to Krizan-Wilson’s indictment by a Harris County grand jury in July 2008.

Krizan-Wilson’s new attorney, James Stafford, immediately filed a motion to dismiss the indictment based on the 23-year prosecutorial delay and denial of Krizan-Wilson’s Sixth Amendment right to a speedy trial. The trial court conducted an exhaustive evidentiary hearing on the motion, taking testimony and hearing evidence from all the parties involved in the case. The trial court clearly heard enough evidence to know that Krizan-Wilson had been prejudiced by the 23-year delay in her indictment. The overriding issue, then, was whether the law provided her with a remedy.

Prosecutorial Delay

The United States Supreme Court in 1977 in United States v. Lovascoheld that “statutes of limitations” are the primary safeguards against prejudicial pre-indictment delays. However, the court noted, as it had six years earlier in United States v. Marion, that even if an indictment is brought within the prescribed statute of limitations, due process can be violated by unnecessary delay. The court, in these two lead cases which were reaffirmed in 1984 in United States v. Gouveia, set forth a two-prong due process formula that must be satisfied to have an indictment dismissed for delay: First, the defendant must demonstrate the delay caused actual and substantial prejudice to his right to a fair trial, and second, the delay was an intentional device used to gain tactical advantage over the accused.

It is a difficult, if not impossible, burden to satisfy. This was made clear by the Lovasco court when it pointed out that while “proof of actual prejudices makes a due process claim concrete and ripe for adjudication,” it does not “automatically” make the claim “valid.” Beyond the initial issue of prejudice is the more important consideration of “the reasons for the delay.” The Court observed:

”It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of  justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty ‘would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself/.’ From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may ‘interfere with the defendant’s liberty,… disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one’s interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.”

Nineteen years after the Supreme Court’s decision in Lovasco the Fifth Circuit Court of Appeals joined the constitutional fray over pre-indictment delays with its decision in United States v. Couch that expanded the Lovasco due process formula beyond prejudice/intentional delay to gain tactical advantage to include the requirement that the prosecutors involved must have acted with “impermissible, bad-faith purposes.” Three years later the Texas Court of Criminal Appeals in Ibarra v. State adopted the Fifth Circuit’s stricter “bad faith” formula. The state’s high court said the “impermissible, bad-faith purposes” addition was in keeping with the Lovasco formula.

We strongly disagree.

The extension of this two prong test to add the requirement that a defendant show “impermissible, bad-faith purposes” places an unreasonable burden on the defendant to “get inside the head” of a prosecutor to determine why she chose to delay the indictment in a case. This is virtually impossible in “old cases” like the one brought against Krizan-Wilson.  It creates an insurmountable burden on the defendant and effectively eliminates any usefulness of this important due process right, absent a prosecutor or investigator admitting a bad faith reason for the delay.

There is a difference between a “cold case” and an “old case.”  A “cold case” generally involves the discovery of new evidence which makes an “old case” ripe for prosecution.  Infrequently, a prosecutor may find evidence, or has a reason to believe, that law enforcement and prosecutors in a different era chose to deliberately “cover up” a case for bad motivations, e.g., old “civil rights era” murder cases.  An “old case” in its purest sense, however, is one in which there was insufficient evidence to prosecute at the time of the offense and no new evidence has emerged to warrant prosecution in the future.

When the trial court dismissed the indictment against Krizan-Wilson, it held that she had satisfied both the Lovasco and Crouch/Ibarra formulas. The trial court was also sufficiently intrigued and convinced that the prosecution of Krizan-Wilson was barred by the traditional “doctrine of latches,” which had been aptly raised by her defense team. This common-law doctrine, normally used in civil actions and in post-conviction criminal pleadings, essentially provides that if a party unreasonably delays filing a claim and the delay results in prejudice that damages the oppositions ability to defend against the claim, the court can bar the claim from proceeding.  It’s an equitable argument that intentional delay prevents a party from being able to defending itself and, therefore, the claim should be barred.

To invoke the “defense of latches,” a party must satisfy three elements: 1) an unreasonable lapse of time; 2) neglect in asserting a right or claim; and 3) these two elements operate to the detriment of another.

The State, of course, appealed the trial court’s decision to dismiss the Krizan-Wilson indictment, and last June the Fourteenth Court of Appeals in State v. Krizan-Wilson reversed the trial court’s ruling, finding that the Lovasco and particularly the Crouch/Ibarra formulas had been satisfied. The appeals court also rejected the “latches” argument and Krizan-Wilson’s reliance on a 1999 Texas Court of Criminal Appeals decision, Ex Parte Carrio, which held that the “doctrine of latches” should be utilized in determining “whether to consider a post-conviction application for writ of habeas corpus where the applicant’s delay in filing the application prompted the State to claim prejudice to its ability to respond.”

The appeals court distinguished Krizan-Wilson’s case from Carrio by pointing out that Carrio was not a “pre-indictment delay case. In it, the court followed the federal practice of using latches to assess the consequences of delay in applications for writ of habeas corpus. This is a very narrow use of this equitable doctrine. There is no suggestion in the opinion that the doctrine should apply in any other criminal context. We see no reason to extend use of the doctrine into the realm of pre-indictment delay, where the Court of Criminal Appeals has already set forth a test [Ibarra] governing our analysis.”

We strongly disagree with the appeals court’s conclusion that doctrine of latches should not apply “in any other criminal context” outside post-conviction proceedings. The appeals court neglected to consider that included in the equitable doctrine of latches is also what is known as the “doctrine of prosecution latches.” This doctrine was first announced by the Supreme Court in a series of cases in the early to mid twentieth century, beginning with Woodbridge v. United States in 1923. The doctrine was exclusively applied in patent infringement cases.

Then in 1953 Congress enacted a penal statute entitled “false marking” and codified it in 35 U.S.C. § 292. False marking is defined by the statute as an “offense” and a violation is subject to a $500 fine for every offense. False marking in § 292, as well as in its predecessor 35 U.S.C. § 50, has always been considered an “offense against the United States.” This rule was reinforced by the Seventh Circuit Court of Appeals in 1962 in G. LeBlanc Corporation v. H. & A. Selmer, Inc., and more recently by the Federal Circuit Court of Appeals in 2002 in Symbol Technologies, Inc. v. Lemelson Medical, and by the United States District Court for the Northern District of California in 2003 in Reiffin v. Microsoft Corporation. The Reiffin court said that the one element a defendant must prove by a “preponderance of the evidence” when charged with “false marking” is whether the owner of the patent(s) “unreasonably delayed the prosecution” of those patent(s) “in a manner that cannot be reasonably explained.” This test is an objective one: a determination of whether 1) there was a delay and 2) whether the explanation for the delay is reasonable. But where traditional “latches” (or “unreasonable delay”) is the issue, the patent owner’s [subjective] intent is unimportant.’” This standard is remarkably more practical than the need to prove the subjective intent of “impermissible, bad-faith purposes” announced in Crouch/Ibarra.

Finally, in addition to doctrine of latches being employed in penal statutes such as 35 U.S.C. § 292, it was also discussed by the Eighth Circuit in 1942, in O’Malley v. United States in a criminal contempt of court proceeding, alluding to the possibility it could be defense against prosecution, although it was not applicable in that particular case. The recognition of the latches as a possible defense in a criminal case in a pre-trial setting such as O’Malley and in penal statutes such as § 292 underscore our belief that the defense should be available in pre-indictment delay cases. The Fourteenth Court of Appeals, we believe, fumbled the latches issue in its Krizan-Wilson case and we hope, but doubt, that the Texas Court of Criminal Appeals, which has granted discretionary review in the case, will examine the latches defense issue more thoroughly and with an historical understanding that no legal principle prevents its application in criminal cases.

This bring us to our final observation: we support the efforts to solve legitimate “cold cases”—those in which new evidence warrants prosecution—but we do not subscribe to the current practice of the Harris County District Attorney’s Office transforming “old cases”—in which no new evidence has emergedsince the original decision not to prosecute—into “cold cases” to appeal to public sentiment and justify continued funding of its Cold Case Unit.  While is may sound sexy, it’s truly a disgrace to second-guess prosecutorial decisions made two or even three decades ago not to prosecute based on insufficient evidence.  It is also fundamentally unfair to the defendant and should cause great skepticism by an ever increasingly critical public, who no longer is willing to accept law enforcement reasoning without question.

By: Houston Board Certified Criminal Attorney John Floyd and Paralegal Billy Sinclair

Special thanks go to criminal defense lawyers James Stafford and Peyton Z. Peebles, whose work representing Carolyn Sue Krizan-Wilson inspired this article.