A Tale of Two Convicts

By William Fisher

The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.

Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,

Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.

The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.

By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.

But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.

Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.

Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.

“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”

In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.

In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.

“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”

All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.

During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.

On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.

Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)

Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.

The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.

“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.

She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”

Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.

The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.

At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)

James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.

After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.

On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.

“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.

“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.

Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.

Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.

"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."

New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.

In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.

Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”

For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.

“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”

In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.

The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.

The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.

Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.

The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.

Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.

The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.

According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.

Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.

This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.

A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.

So it’s possible that the light at the end of the tunnel is not an oncoming train!