What’s Next After Exoneration? …Back Child Support

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Michael Cosme, Devon Ayers and Carlos Perez were freed from prison in the night hours of January 23, 2013. Eighteen years ago they had been sent to a New York state prison for a crime they did not commit. They were convicted of killing a cab driver and a FedEx executive. They would have died in prison had it not been for an NBC Dateline investigation that brought national media attention to their case and prompted prosecutors to find out that two gang members had confessed to committing the double murder.


“I’m free, I’m free. Finally, after 18 years, I’m free!” Michael Cosme’s words were heard by family and friends waiting to take him home, but they were consumed by the noise of a city too busy to be really concerned. Cosme said he just wanted to study “culinary arts” and “work in a nice upscale restaurant.” Perez just wanted to go home to spend the night with his children and “make up for all those lost years” while Ayers said he just wanted to “get home to my family.”


Big city, a robbery, prominent white executive killed, three young black men arrested – the perfect recipe for a wrongful conviction. This old, spoiled gumbo has been served up by our justice system many times – too many, actually. In fact, last May researchers reported that more than 2,000 “false convictions” occurred over the previous 23 years. Think about that a minute, folks. On average, that’s 87 wrongful convictions a year – the lives of 87 offenders and the lives of their families forever changed, forever damaged. Most were black and most of those responsible for their wrongful convictions were white. Worst yet, 1100 of those false convictions were the product of 13 separate “police scandals” in which the cops planted guns or drugs on innocent persons—the very people charged with preventing crimes were committing crimes to “frame” people they didn’t like or suspected of being involved in some un-provable criminal activity.


And then there was good ole granny. In 1984 Sylvester Smith, a North Carolina resident, was dating granny’s daughter, which she disapproved of. So what did ole granny do? She coached her two grandchildren, ages 4 and 6, up to telling the lie that Smith had molested them. Smith spent 20 years in prison before the girls, now adults, recanted, telling prosecutors that ole granny encouraged them lie on Smith. The person who actually abused them was a nine-year-old cousin who is now serving a life sentence for murder. So granny not only sent an innocent man to prison, she allowed a young child molester to develop into a murderer. And, incidentally, we have railed time after time how about how often family members falsely accuse another of child sexual abuse (or domestic violence) for a litany of criminal motives. It is really a sick little secret in too many families in this country.


And if you think the police and granny were bad enough, just read this about the State of Washington. The State does not compensate innocent people who its prosecutors falsely convict, and it is virtually impossible to recover any damages through civil litigation against those prosecutors. But that’s not the worst, in January 1993 a Vancouver woman was raped. Alan Northrop and Larry Davis were arrested for the rape and the pair was convicted in July of that year for first-degree rape, kidnapping and burglary. In 2010 prosecutors learned that “skin cells” found under the victim’s fingernails belonged to two other unidentified men. They were forced to exonerate and release Northrop and Davis.


The Daily Mail reported last year that Northrop was married with children at the time he was wrongfully convicted. Washington’s Department of Social and Health Services had to help the mother and children during his incarceration. Shortly after his release the state agency served an $111,000 bill on Northrop for back child support payments owed to the mother and to the agency for its support of the children. The agency, however, did waive its share of the bill because of the “hardship” nature of the case, but not Northrop’s former wife. She wants about half of the $111,000, and social services is now enforcing $100 monthly payments out of his wages—a $12-an-hour job at a metal fabrication shop in Vancouver.


And what about the illustrious FBI? NBC News reported last July that the FBI has once again announced it will review thousands of “old cases” to determine if criminal defendants were wrongfully convicted because of flawed forensic evidence—another subject we have frequently addressed in this blog. The NBC report was drawn from a Washington Post report which said the review will be “the largest in U.S. history” and will focus on cases since 1985 handled by the FBI’s laboratory hair and fiber section. The nation’s top law enforcement agency has a long sordid history of peddling flawed forensic evidence to both federal and state prosecutors. In the mid-1990s a former FBI lab chemist named Frederic Whitehurst “blew the whistle” on fellow lab analysts, saying they had a “lackadaisical attitude” about evidence examination which often led to evidence being contaminated and whose “significance” was routinely overstated in court.


After Whitehurst leveled his explosive charges (especially the charge that an FBI agent had rewritten “scientific reports” the previous nine years to support the prosecution), what did the FBI do? The agency allowed its “corrupt lab technicians” to remain employed and continued the same practices. Finally, the public and political fallout from Whitehurst’s charges forced the FBI to “review thousands” of cases but the task force assigned to conduct the review operated in secret and refused to let its findings be published. Whitehurst sued the FBI under the Freedom of Information Act prompting to agency to reluctantly release “tens of thousands of pages” to chemist who is now an attorney residing in North Carolina.


Not satisfied with the FBI’s task force review process, the National Academy of Sciences recently pushed for independent analysis of criminal evidence in federal cases, free of FBI participation and control. The organization of elite scientists is advocating for the “creation of an independent federal agency to review evidence.” These recommendations and the Post’s investigative report prompted the Justice Department to announce it will conduct a new review which will be assisted by “outsiders” such as the Innocence Project which would be charged with overseeing the review process.
The FBI is not alone with its forensic evidence problem. The Texas Department of Public Safety’s crime lab has a potential nightmare on its hands. Grits for Breakfast, in a January 28 exclusive report under the title Bad Apple at the DPS Crime Lab Could Spoil Barrels of Convictions, had this to say about the DPS crime lab problem:


“Potentially hundreds of people convicted of drug crimes in 36 Southeast Texas counties may have their convictions overturned after the discovery last year that scientist who’d worked on nearly 5,000 cases had falsified results. At a meeting of the Texas Forensic Science Commission (FSC) on Friday, a number of new details emerged about the episode and its aftermath…

“Throughout the time Jonathan Salvador worked as a controlled substances analyst at the Texas Department of Public Safety (DPS) crime lab in Houston, he was never a particularly competent employee, said Commissioner Sarah Kerrigan who headed the FSC investigation. Salvador was terminated when it was discovered he reported the contents of a batch of pills without testing them, substituting data from another sample. (To its credit, the agency self-reported the incident to the FSC as soon it was discovered.) Upon retesting his three prior months of casework, DPS found four other cases requiring corrective actions, including one where he’d incorrectly identified a substance as marijuana. Since no one knows how often he may have made errors or falsified evidence, all convictions based on his analyses are potentially in jeopardy.


“Though a DPS official told the FSC that Salvador may have left his prior job at the Los Angeles PD crime lab ‘under questionable circumstances,’ he was considered a ‘valuable lab member’ by his peers, Prof. Kerrigan told the commission. He was well-liked by his co-workers, was considered ‘responsive and compliant’ by his supervisors, and was the sort of employee who regularly volunteered for unwanted tasks that helped the office function. He performed well in court and his testimony was convincing to jurors. He just wasn’t a very good analyst and at some point began to take shortcuts.”


We would not be so kind. We agree with the National Academy of Sciences who said its recommended federal evidence testing agency “should not be connected to the academic community.” Salvador was not a good guy, a “responsive and compliant” employee. He was the same kind of “corrupt” technician as those described by Whitehurst—technicians who walk around with their noses in the back pockets of prosecutors currying favor for credentials to doctor their professional resumes, and if this results in dozens or hundreds of innocent people being sent to prison, so be it. We see Salvador just like we see ole granny who stole two decades of Sylvester Smith’s life, the corrupt cops who planted dope or illegal guns on those 1,100 innocent people, and the corrupt FBI technicians whose only interest was maintaining a climate of conviction, regardless of the costs or conduct necessary to support that climate. In fact, we have more respect for those old discredited “lineup” sniffing dogs than we do corrupt lab technicians who revel in the jokes that “another one bites the dust.”



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