Suggestive Police Procedures and Mistaken Identification Resulted in Two More Wrongful Convictions and Incarcerations, One for 27 Years
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Our criminal justice system is flawed. Its imperfections can be found in the 255 DNA exonerations of innocent offenders and the 138 people released from death row since 1973 in this country. But, paradoxically, its perfection lies in its willingness and ability to correct the imperfections brought about by human mistake.
According to the New York-based Innocence Project, mistaken identification is the “greatest cause for wrongful convictions,” playing a role in 75 percent of the nation’s DNA exonerations. Twice this year we have posted pieces dealing with the dangers, and, yes, tragedies caused by, the mistaken pointed finger (here and here).
Two recent Harris County cases involving wrongful convictions of innocent men brought about because of mistaken identification illustrate not only the tragedy but just how easy it for an innocent man to be sent to prison, especially with emotionally charged crimes such as sexual assault. The first case brought to the public’s attention by the Houston Chronicle (here, here, here, and here) was Allen Wayne Porter who was convicted of rape and robbery in 1991. The case from the outset had some strange twists and turns.
In June 1990, three armed masked men invaded a Houston apartment where they terrorized and robbed its four occupants, and also raped its two female occupants. The apartment reportedly was the residence of a known drug dealer and the armed intruders were looking for $30,000 in cash. The leader of the trio was Porter’s nephew, a man named Jimmy Hatton. Another man, though never charged with the crime, named Perry Harrison would later admit to being one of the other two men who accompanied Hatton. The robbers were driven to the drug dealer’s apartment by Hatton’s former wife, Stephanie Wallace-Venters.
Hatton was arrested shortly after the home invasion. He was put on trial in December 1990. He was convicted and sentenced to life imprisonment. Porter attended the trial and was seen by one of the rape victims who immediately identified him as one of her attackers. Porter was arrested, put to trial in 1991, and, like his nephew, was convicted and sentenced to life in prison.
Although he subsequently pleaded guilty to a murder charge in Fort Bend County and was given a 12-year sentence, Porter continued to maintain his innocence on the rape conviction. The claim didn’t gain much traction. The Fort Bend County murder involved the same kind of home invasion into a drug dealer’s residence as the Harris County robbery. The only difference is that one of the occupants in the Fort Bend County residence was killed with a shotgun blast, although Porter did not fire the fatal shot.
Still, Porter waged a letter-writing campaign and filed post-convictions pleadings from prison in a determined effort to get someone to hear his innocence claim on the rape conviction. He gained a little hope in 2004 when the Texas Legislature enacted a statute that allowed for DNA testing in some cases. He motioned the court for testing of the DNA found at the rape scene in Harris County. Porter’s DNA did not match any of the evidence collected at the crime scene, but a Texas Department of Public Safety analyst told District Court Judge Joan Campbell that Porter could have worn a condom during the sexual attack. Judge Campbell denied Porter’s motion, saying the non-presence of incriminating DNA evidence did not establish “actual innocence.”
Then last year Porter sent a personal letter to newly elected Harris County District Attorney Pat Lykos claiming innocence and asking for a review of his case. He supported his letter with an affidavit from nephew Hatton attesting to his innocence. The DA turned the letter/affidavit over to her post-conviction review section. One of the attorneys in that section, Baldwin Chin, would later state that he was not impressed by Porter’s claim of innocence or Hatton’s affidavit because it struck him as “one family member looking out for another.”
But Chin was committed to completing an objective review of Porter’s claim. The Chronicle reported that he interviewed both Hatton and Harrison which produced the name of a third suspect not identified by the newspaper. Six finger and palm prints found at the crime scene had never been tested. Chin discovered that four of those prints match the unnamed third suspect. The attorney also talked to Hatton’s former wife who adamantly stated that Porter was not one of the three men she drove to the drug dealer’s apartment to “buy drugs” as she was led to believe.
On July 22, 2010, this new physical evidence and testimony from Hatton, Harrison and Wallace-Venteria was presented to Judge Campbell. The District Attorney’s Office had recused itself from the case because the attorney who had represented Porter in 2004 before Judge Campbell is now a member of the DA’s office. Judge Campbell appointed attorney Robert Loper to serve as a special prosecutor for the second hearing before the judge. Loper did not file formal objections to the request by Porter’s attorney, Casey Garnett, that the court declare her client “actually innocent” because the prosecutor wanted to hear the witnesses’ testimony first.
The evidence and testimony at this second hearing was enough to convince Judge Campbell of Porter’s innocence. At the conclusion of the hearing she was wiping tears from her eyes and informing all the parties she would recommend to the Texas Court of Criminal Appeals that Porter, who had spent 19 years in prison, be released as “actually innocent.” The following day Porter, accompanied by his attorney and friends, walked out of custody, free on a $30,000 bail ordered by Judge Campbell. Attorney Garrett told the gathered media that if the Court of Criminal Appeals accepts Judge Campbell’s findings, it would order a new trial.
“The court of criminal appeals still has to make [the] final decision,” Garrett was quoted by the Chronicle. “We will wait anxiously for them to make a decision. I’m hopeful and confident it will endorse Judge Campbell’s findings. I think the court of criminal appeals will do the right thing.”
“It’s a completely sad case,” special prosecutor Loper was quoted by the newspaper. “No one could imagine a family member going through that, and to know that for so many years this has happened and someone’s been crying out they’re innocent. You can’t wrap your mind around that.”
Loper informed the media that he would move to dismiss the case should the Court of Criminal Appeals approve Judge Campbell’s findings.
Less than a week after Porter walked out of prison effectively exonerated after serving 19 years for a crime he didn’t commit, the Houston Chronicle reported about the case of Michael Anthony Green who has served 27 years for a rape he did not commit. The newspaper reported these 27 years gives Green the terrible distinction of having served the “longest time behind bars of any Texan who has been exonerated.”
In April 1983 a Houston woman was talking on a pay telephone with her husband at a gas station when two armed men abducted her. They forced her into a car with two other men and took her to a secluded area where she was raped by three of the men. As in the Porter case, Green was convicted based solely on the mistaken identification of the victim which was brought about by some highly questionable law enforcement work.
On the night of the rape, the Chronicle reported that police were in the same area where the sexual assault took place looking for a stolen vehicle. They spotted a vehicle matching the description of the stolen car. They pulled it over, but the four black men inside it managed to escape. The police began stopping and detaining black men in the area, including Green who was detained in the back of a police unit. When investigators involved in the rape case learned about Green’s detention, they took the victim to the police unit where she could view him sitting in the backseat illuminated by headlights. She was unable to identify him.
The Chronicle reported that eight days later the victim was shown a “photo array” and picked Green out of the lineup. She identified him again later that same day in a live police lineup—and four months later she identified him again in a courtroom. Green was convicted and sentenced to 75 years in prison. No one else was convicted in the woman’s rape.
Once again the DA’s post conviction review section is credited with discovering Green’s innocence just as it had in Porter’s case. Attorneys in the section found a pair of jeans worn by the victim during the rape. They had been stored in a warehouse. The jeans were tested for DNA evidence and the results excluded Green as one of the attackers. DA Lykos told the Chronicle that her office has identified the four men believed to be the real assailants—three of whom have been convicted of other crimes with two of them still behind bars. But because the statute of limitation had run on the rape offense, none of the men can be charged, much less prosecuted, for the offense.
Assistant District Attorney Patricia Neal, now assigned to the Green case, informed the Chronicle that the victim was told that her mistaken identification had resulted in an innocent man spending 27 years behind bars. The victim declined to comment. It would easy, and it is tempting, to point a finger of blame at the victim, but we do know that suggestive police procedures obviously contributed to the mistaken identifications during the photo array and live lineup. But Green’s attorney, Bob Wicoff, didn’t mince words when it came to assessing blame, “DNA freed this guy. Bad police work put him away,” Wicoff told the Chronicle. “This was HPD’s fault.”
But the District Attorney Lykos was kinder to the police department, telling the newspaper that her office had found no “misconduct or negligence” on the part of the investigators or the attorneys involved in the case back in 1983. But, in a news release, First Assistant District Attorney Jim Leitner was not so merciful. He blasted the former administrations of DAs Chuck Rosenthal and Johnny Holmes: “The evidence in this case has been sitting in the District Clerk’s Office for 27 years, and no one had taken the initiative to do anything with it in the past. The difference now is that you’ve got the Post Conviction Review Section looking into it—and that made all the difference in the case of Mr. Green.”
Whether through negligence, misconduct, or simple inadvertence, the taxpayers are about to foot an expensive bill for the aggregate 46 years Porter and Green wrongfully spent in prison. Both men will be eligible under the 2007 Tim Cole Act for a payment of $80,000 for each year they were wrongfully imprisoned. They will join 62 other former wrongfully convicted prisoners currently receiving payments from the State of Texas, according to State Comptroller spokesman R.J. DeSilva.
Last year the Texas Legislature had a perfect opportunity to pass several bills that would have went a long way in preventing such mistaken identifications as those in the Porter/Green cases, but failed to do so. These bills included expanding access to DNA evidence, recording police interrogations, and improving eyewitness identification procedures—and in states where the same reforms have been implemented the number of wrongful convictions have diminished and the apprehension of the real perpetrators of crime increased. The Innocence Project of Texas reports that 80 percent of the state’s DNA exonerations involve mistaken identification. It would seem that the Texas Legislature would one day abandon the “ostrich approach” when it comes to the mistaken identification issue and forthrightly deal with it, but that doesn’t appear likely anytime soon given the political make up of that body.
It is not often that we get to compliment the District Attorney’s Office but its handling of the Porter/Green cases deserves significant kudos. These two men would still be in prison today, wrongfully convicted, if it were not for the integrity of the Post Conviction Review Section. We would like to believe there are no more cases like Porter and Green, but we know there are—but at least we can be hopeful that the Pat Lykos administration will address those cases when brought to her attention.
Our justice system is indeed imperfect because mere mortal cannot achieve perfections but they can exhibit courage and integrity in correct imperfections as the Post Conviction Review Section did in the Porter/Green cases.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair