Slain Police Officer, Exonerated Convict

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


The front page of the December 13, 2008 Houston Chronicle, in bold headlines, presented a stunning paradox: two tragic, conflicting faces of crime in Harris County. The first face was captured in the headline “A Touching Tribute to Slain Policeman.” The second face was captured by the headline “Freed by DNA to Life as an Innocent Man.” The two faces inevitably evoked a torrent of conflicting emotions in the average reader.


The slain police officer, Timothy Abernethy, was senselessly gunned down while protecting a crime-ridden neighborhood in northwest Houston. A well-respected law enforcement officer and a deeply loved father and husband, the 13-year police veteran was simply trying to protect and serve the community he loved when an ex-felon on parole reportedly shot him in the head at point-blank range in the dangerous Luxor apartment complex.


The cold blooded and senseless nature of Abernethy’s murder shocked and outraged Houston residents who have seen their unfair share of horrendous violence. Letters to the Chronicle editor about the Abernethy killing reflected the community demand for swift justice and absolute retribution for a killer who has a troubled history of violence and criminal behavior. Just hours before killing Abernethy the accused killer was trying to break into the apartment of an estranged girlfriend. This media revelation served only to fuel the community anger against the accused killer.


The man recently freed following DNA exoneration is Ricardo Rachell who was convicted six years ago for the sexual assault of an 8-year-old boy. Terribly disfigured by a shotgun blast to the face, Rachell had always vehemently claimed he was innocent during his six-year wrongful incarceration. He wrote letters to lawyers and judges pleading his case and protesting the 40-year sentence imposed on him but to no avail.

The American criminal justice system – and especially in Harris County whose District Attorney’s Office operates with a “shoot first, ask questions later” mindset – does not lend a receptive ear to pleas of innocence. Some lawyers, and judges, have openly advocated the despicable notion that the justice system not only has a legal right but a constitutional duty to keep an innocent man locked up so long as he/she was given a fair trial during which all of his/her procedural and constitutional rights were protected.


Finally, a Harris County judge lasted year decided to listen to Rachel’s pleas, clearing the way for DNA testing of biological evidence gathered by law enforcement in the 2002 investigation of the sexual assault but which was never examined for some inexplicable reason. Guess what? The DNA results proved Rachell’s innocence and pointed a convincing guilty finger at the real assailant who is already in custody and serving time for another sex offense. How many times have we heard this story – not only in Harris County but across the State of Texas which now leads the nation in DNA exonerations with 38?

The facts of the Rachell case underscore that had the Harris County District Attorney’s Office conducted just a fair and reasonable assessment of the evidence produced by the law enforcement investigation, the need for testing available biological evidence would have been realized and Ricardo Rachell would not have spent six unnecessary years in prison.

Just three months ago we at the John T. Floyd Law Firm successfully defended a man wrongfully accused of a sexual assault that allegedly occurred when the victim was 11 years old. That case never should have gone to trial either. An over-zealous prosecutor insisted on prosecuting the 8-year-old offense based solely on the testimony a victim who had serious psychological disorders and a long criminal history. One juror who voted to acquit our client was so incensed that the prosecution had elected to bring the case to trial she posted in a comment on a Chronicle blog saying the prosecutor should have been put in jail, not our client.


While it is natural and easy to hate criminals like the one who killed Officer Abernethy, we must keep the governor of reason on our “anti-crime” attitudes because of cases like Ricardo Rachell. With 425 executions to its credit, the State of Texas has more than likely put innocent persons to death because of mistaken identification, incompetent forensic testing, and fabricated evidence by unscrupulous prosecutors. That’s the problem with hard line “law and order” attitudes: they want swift justice, absolute retribution, and have little tolerance for those who claim they are innocent. It creates a political climate that serves as a catalyst for our justice system to wrongfully convict and try to conceal it afterwards.+


With these observations, it is certainly not our intent to demean the community feelings of anger and outrage engendered by Officer Abernethy’s horrific murder. People should be outraged – and we have no truck for those people who walked past the wounded officer without the slightest indication of concern or willingness to help him. These people live by a value system that is as thuggish and brutal as the “convict value system” at Huntsville. They are the people you regularly see in police “mug shots” and crime-stoppers alerts.


But as a society we cannot let our anger and fear destroy our enormous natural capacity for compassion and understanding. There were people at the Luxor apartment complex that went to Officer Abernethy’s aid. They tried in the final moments of the fallen officer’s life to provide him with human compassion and kindness. They did so at great risk to their own personal safety. The image of the mother pressing a wet towel to the officer’s head wound in a futile effort to stop the bleeding should be remembered against the image of the sullen, remorseless face of the killer being escorted in an orange jumpsuit into a courtroom.


Criminal defense attorneys who must face juries in Harris County in the near future understand the social backlash produced by crimes like the murder of Officer Abernethy. The fallout will force some attorneys to advise obviously guilty clients to accept whatever plea bargain is on the table, even if it is not the best possible deal. Those attorneys representing clients who are innocent and who cannot possibly accept a plea bargain must face jury pools with the understanding that many prospective jurors have a hidden bias against anyone charged with a crime because of the acts such as the Abernethy murder.


These attorneys can only hope that the disfigured face of Ricardo Rachell will also be remembered by these potential jurors and that it will serve to balance the many conflicting emotions Harris County residents are now experiencing about crime and our criminal justice system.


By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair