Legislatively Mandated Innocence Commission to Review Claims of Wrongful Convictions and Bring Accountability for Wrongful Convictions Needed

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


There have been 252 DNA exonerations in this country through April 2010. Seventy-five percent of those were the result of mistaken identification. KHOU television in Houston reported recently 85% of Texas’ DNA exonerations—the most in the nation—involved mistaken identification.


Two-thirds of all the DNA exonerations involving mistaken identifications were against black men. The KHOU report highlighted that Texas leads the nation in wrongful convictions. Television reporter Brad Woodard cited the Harris County case of Anthony Robinson. Twenty-three years ago a young, articulate, and pretty woman whom prosecutors described as a “dream witness” identified Robinson as the black man who raped her at the University of Houston. He was sentenced to 27 years in prison, and served nine years and 11 months before his innocence was established.


“Being placed into a very violent, primitive, evil situation where every morning you wake up and ask yourself, ‘Is this the day I’m going to die?’ or ‘Is this the day I’m going to have to kill someone so I can make it back to my cell, so I can sleep?’” Robinson told Woodard.


Since his exoneration, Robinson has worked closely with Sen. Rodney Ellis, D-Houston, to increase compensation from the state for those wrongly convicted.


“We ought to do everything we can to make sure another human doesn’t have to go through what Anthony Robinson went through,” Ellis told Woodard. “It’s not just that individual – it’s their family. It’s their children.”


Last year alone we discussed about two other high-profile cases involving Texas inmates wrongfully convicted in serious sexual assault cases. The first was the case of Timothy Cole who, in September 1986, was mistakenly identified by a Texas Tech University student in Lubbock as the black man who raped her in March 1985. Cole was convicted and sentenced to 25 years in the Texas prison system where in 1999, at age 39, he died from asthma complication. In February of last year a state district court judge declared Cole innocent based on newly discovered DNA evidence implicated another Lubbock man who was already serving time in the same prison system.


The second case involved Ricardo Rachell who, in June 2003, was mistakenly identify before a Harris County jury as the black man who raped an eight-year-old boy the previous October. In December 2008 a state district court judge declared Rachell innocent based on DNA that implicated another Harris County man who was also already serving time in the state prison system.


In honor of Timothy Cole, and with the support of Sen. Ellis, the Texas Legislature last year created the Timothy Cole Advisory Panel to address the ever-increasing wrongful conviction problem in this state. But, unfortunately, it was reported recently by the Fort-Worth Star Telegram that the advisory panel is “leaning against the creation of a state innocence commission amid concerns it would create a new bureaucracy and duplicate work already being done in Texas law schools.”


Four Texas law schools—University of Houston, Texas Southern University, University of Texas at Austin, and Tech Tech University—have innocent projects or clinics that examine cases for possible wrongful conviction, The Fort Worth newspaper didn’t say what, if any, input the universities have inserted in the Cole panel’s decision-making process about the establishment of an innocent commission.


Gov. Perry, however, has made his feelings abundantly clear. According to his spokeswoman, Mary Anne Wiley, the governor believes such a commission “would create an added layer of government … the governor’s focus is working to ensure wrongful convictions don’t happen in the first place, like supporting the law school innocence project, creating expert attorneys who specialize in post-conviction death penalty cases, and encouraging the creation of more public defender offices across the state to ensure competent counsel by attorneys who specialize in death penalty cases.”


Last fall we wrote about Gov. Rick Perry stirring up considerable controversy when he removed Texas Forensic Science Commission chairman Sam Bassett just two days before the FSC was scheduled to consider a damning report prepared by prominent Maryland fire scientist Craig Beyler which effectively concluded that Cameron Todd Willingham had been wrongly convicted for the 1990 arson murders of his three young children and executed in 2004 for the crime. The governor replaced Bassett with Williamson County District Attorney John Bradley, a staunch defender of the death penalty and a public official not responsive to claims about wrongful criminal convictions.


Since his appointment, Bradley has pursued a methodical political course to ensure that the FSC will not take up the Willingham case until after the state’s gubernatorial election is over in November. Houston Chronicle columnist Rick Casey explained why in a April 13 column:


“The matter is of some concern to Perry. Shortly before Cameron Todd Willingham was put to death in 2004 for an arson that killed his three young daughters, Perry had received a request that he delay the execution based on an arson expert’s report that evidence presented at the trial did not show that the fire had been deliberately set.


“Craig Beyler, one of the nation’s top arson experts, who after a search was hired by the Forensic Science Commission to investigate the case, would be addressing the commission on his findings—that the fire may well have not been caused by arson at all.


“Chairman Bradley’s first act was to cancel the October meeting that was set to hear from Beyler.

“He then slowed the process by determining that the commission would meet quarterly, rather than every month as it had done.


“Without consultation with other commissioners, he drew up an agenda for the January meeting that included no discussion of the Willingham case.”


And the Grits For Breakfast blog reported recently that Chairman Bradley has elected to conduct meetings related to Willingham in secret—as he has the discretion to do under rules the FSC adopted at the commission’s last meeting.


In the wake of the widespread media criticism of Bradley’s attempt to conduct secret hearings, the Houston Chronicle, in a piece written by Allan Turner, reported on April 24, 2010 that the FSC has reversed itself and “will obtain and review the transcript of the capital murder trial of Cameron Todd Willingham … [and will] renew contact with Baltimore fire expert Craig Beyler, who, in a commission-sponsored review last fall, criticized the arson investigations of Texas Deputy Fire Marshal Manuel Vasquez and Corsicana Fire Chief Doug Fogg.”

Given Gov. Perry’s handling of Willingham’s execution and his manipulation of the FSC in connection with the Beyler report, we have grave concerns about the governor’s reasons for not endorsing an innocence commission. What is even more bothersome to us is that Cory Session, Timothy Cole’s brother, agrees with the governor and the advisory panel.


“We’re pleased with the work they’re putting forth so far,” Session told the Star-Telegram about the panel’s decision.


The Fort Worth newspaper also reported that two exonerated former inmates, Stephen Phillips and Christopher Scott, addressed the panel.


“I knew I was innocent,” Phillips said. “[But] hardly anybody else did. I was afraid I was going to die.”

While we laud the efforts of the various innocence projects being run by Texas law schools, we still believe a legislatively mandated innocence commission with specific powers to not only review credible claims of wrongful convictions but to bring to account those public officials who engage in unethical or criminal conduct to secure the wrongful convictions is absolutely essential. That’s the bottom line here: the issue of wrongful convictions will never truly be addressed until there is a state commission equipped with powers to hold those responsible for such convictions accountable. It is not enough to simply have well-intention groups trying to right the wrongs of wrongful convictions. There must be accountability.


Let’s assume, for example, that the police accept the story by a white “dream witness” that a black man raped her. And as the case moves toward trial the prosecutor (or the police) develop new evidence that the identified black man may not be the rapist but the officials elect to proceed with the trial. The black man is convicted, sentenced to a long term in prison, and serves a decade before the police learn that “dream witness” was actually mistaken.


Who should be held accountable for such a wrongful conviction? It is not enough that the state compensates the man and offers up perfunctory apologies. If there was intentional ambivalence about possible innocence, or wrongful conduct to “get a conviction,” someone must be held legally accountable. Law school innocence projects do not provide that kind of accountability. An innocence commission could be armed with specific powers to make sure there is legal accountability for those involved in the nasty business of sending innocent people to prison.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair