Justice is sometimes blind to justice.


Justice was indeed blind in the Brandon Lee Moon case. He served 17 years in prison as a sex offender for a crime he did not commit.


Moon was convicted in January 1988 on three counts of sexual assault in connection with a rape that occurred in El Paso, Texas in April 1987. He was sentenced to 75 years in prison.


Moon was innocent of the rape. He was exonerated and released from prison in 2004 after DNA testing revealed he was not “donor of the seminal fluid found on two pieces of evidence at the crime scene (a comforter and a bathrobe).” His release came some seventeen years after his arrest.


Flawed Science Leads to Conviction


One year after his conviction, Moon requested and was granted access to evidence for DNA testing. In 1990, a DNA testing company, Lifecodes Corporation, was able to produce a DNA profile of the semen found on the comforter. Using a now outdated method of testing, Lifecodes was able to exclude Moon as the source for the comforter semen but could not reach a conclusion about the DNA found on the bathrobe.


Significantly, Lifecodes did not compare the comforter profile to the victim’s family, including the victim herself, her husband or son. Thus, no legal conclusion could be drawn that the lack of Moon’s DNA at the crime scene exonerated him.


Courts Deny Relief


Moon nonetheless launched a series of habeas corpus challenges in both state and federal courts between 1990 and 1996 arguing that he was innocent of the charges and should be released based on the Lifecodes DNA test results. The courts rebuffed those challenges.


In 1995, in response to one of these habeas proceedings, John Davis, the Appellate Chief in the El Paso District Attorney’s Office, contacted Donna Stanley with the Department of Public Safety crime lab requesting that she contact Lifecodes to determine how they reached their comforter conclusion. Davis also asked Stanley to provide him with an affidavit outlining the current DNA method that would be used to determine if Moon was the comforter semen donor.


Prosecutor Turns Blind Eye


Before any of this could be done, the trial court denied Moon’s habeas application. Just days after the court issued this denial, Stanley received DNA evidence from Lifecodes that she immediately tested the sample using the current “DQ-Alpha” method. Her testing concluded that the comforter semen and bathrobe semen were different. She promptly informed ADA Davis that before she could reach a more substantive conclusion, she would need DNA samples from Moon, the victim, and the victim’s husband and son.


Davis did not obtain these reference samples; worse yet, he did not inform Moon about Stanley’s test conclusions.


New DNA Test Ordered


The Texas Legislature in 2001 passed historic legislation permitting post-conviction DNA testing under specified circumstances set forth in Chapter 64 of the Texas Code of Criminal Procedure. Moon immediately launched a new habeas application, and this time the court ordered new DNA testing under the Chapter 64 provisions.


The DNA evidence from the comforter/bathrobe was sent to DPS lab in El Paso in 2002. Using the latest DNA testing method, “Short Tandem Repeat” (STR), analyst Christine Ceniceros concluded in November 2002 that Moon was not the donor of either the comforter or bathrobe semen stains. The stains contained the victim’s DNA and the DNA of an unknown male. She immediately informed Davis about her results. Davis did not respond to Ceniceros’ report.


Between November 2002 and April 2003, Ceniceros made various telephone attempts to secure from Davis what he wanted done about her analysis. Again, Davis did not respond. Finally, on April 23, 2003, Ceniceros issued her formal report with the specific conclusion that Moon was not the donor of the DNA evidence in the state’s possession.


Ceniceros’ report led to a DPS lab ruling in early 2004 that the victim’s son’s was not the donor of the comforter/bathrobe semen stains. The victim’s ex-husband was ruled out as a donor in November 2004.


Released and Exonerated, Factually Innocent


Moon was released from the Texas prison system in December 2004.


The following year (April 6, 2005) the Texas Court of Criminal Appeals exonerated Moon by finding him factually innocent on all charges.


The State of Texas tragically failed Brandon Lee Moon in two totally unnecessary ways.


First, Moon was convicted based upon highly suspect forensic serology evidence. This evidence came through the testimony of a novice chemist working in the DPS lab. Glen Davis Adams had been warned by a supervisor prior to his involvement in the Moon case that he needed to learn more about the basics of serological analysis. The warning was prompted by a “D” grade he received in a serology course he took at Texas Tech University. Eight months after Davis’s employment with the DPS lab that began in November 1986, the lab evaluated him and found he needed “improvement” in his job knowledge. Seven months later he was sitting on the witness stand at Moon’s trial testifying as a law enforcement “expert.”


Adams’s testimony was that the comforter/bathrobe semen stains came from a “non-secretor”—a person who does not secrete their blood antigens into other bodily fluids. He testified that Moon was a non-secretor, and since the victim’s husband and son were secretors, Moon could have been the source of the semen stains.


Second, Assistant District Attorney John Davis’s failure to follow up on DPS analyst Donna Stanley’s 1996 DNA test conclusions and his failure to inform Moon about her conclusions clearly impinged on Moon’s due process rights under the Fourteenth Amendment. That prosecutorial misconduct probably resulted in Moon spending an additional eight years in prison for a crime he did not commit—and it is more likely than not that Davis knew, or at the very least strongly suspected that Moon was innocent and left him to languish in prison.


Civil Rights Claim Against Prosecutor Dismissed


In an October 15, 2018 decision, the Fifth Circuit Court of Appeals excused Davis’s misconduct by concluding he enjoyed “absolute immunity” from the civil damages Moon brought against the prosecutor in a 2006 federal civil rights lawsuit. Finding that the doctrine of absolute immunity insulated Davis, the appeals court specifically concluded:


“… Moon’s fourth habeas petition was still pending when Davis requested the 1996 DNA testing. Thus, he was still acting as counsel for the State of Texas. It does not matter that the results didn’t arrive until after the habeas proceeding had concluded. When Davis received the indicative-yet-inconclusive test results, he determined, based on his legal knowledge and experience, that the results were ‘nonexculpatory.’ He exercised his discretion by deciding not to pursue the matter any further. Whatever the merits of this decision, Davis is nonetheless immune.”


The Fifth Circuit, however, did conclude that Moon’s lawsuit was not barred by Texas’s two-year statute of limitations on civil tort claims because Moon’s “false imprisonment” claim is a “continuing tort” under Texas jurisprudence. Moon will now be allowed to pursue monetary damages against the City of El Paso for his wrongful 1988 conviction and the 17 years of his life that it cost him.


Justice blind is justice denied.


That’s the tragedy of the Brandon Lee Moon case.


He now resides in Kansas—and we can’t blame him.