Monday, February 9, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;


While looking into the Larry Swearingen case I stumbled on Lisa Falkenberg's commentaries on Texas' brutal criminal justice system.

Lisa Falkenberg, is a fifth-generation Texan from Seguin who joined the Chronicle's Austin bureau in 2005, worked for The Associated Press, where she was Texas AP Writer of the Year. She has covered everything from scandals in the state lottery to Hurricanes Katrina and Rita.

Ms. Falkenberg demonstrates a powerful aversion to Texas' brutal justice system, a desire to do something about it, and the ability to communicate with her readers in precise well-crafted language;

These characteristics are all demonstrated in a commentary headed "At least Dallas County gives 2nd chances" published on April 17, 2007;

"One look at James Curtis Giles on our front page with his cobalt blue suit, smiling, relieved eyes, his sister gripping his shoulder like a battle buddy returning from the field has me both thrilled and furious" the commentary began;

"Thrilled because for the first time in a quarter-century, the world knows 53-year-old Giles is an innocent man, no longer the scum-of-the-earth sex offender convicted in the brutal gang rape of a pregnant 18-year-old," it continued;

"Furious because he likely will be the 13th man proven by DNA testing to have been wrongly convicted in Dallas County. Thirteen. That's more DNA exonerations than any county in the nation. Harris County has had only four.

What's wrong with the justice system in Dallas? Is it really that much worse than ours?

Harris County had tainted evidence and sloppy record-keeping from a leaky police crime lab. Both counties have shared reputations for what critics call a "conviction-at all-costs" mentality. And Harris, the so-called death penalty capital of the world, is a lot more populous.

So, assuming Harris has its fair share of bad lawyers, overzealous cops and mistaken eyewitnesses, why aren't we seeing the same parade of exonerations?

The main answer is simple: Dallas is a pack rat, keeping evidence dating back to the 1980s in catalogued freezers of a county-run lab; Harris County is not.

It's not that Dallas' policy was born of benevolent foresight: It likely was intended to aid prosecutors in fighting appeals.

But enter Craig Watkins, the new Democratic district attorney hell-bent on airing his Republican predecessors' sins and busting out the innocent, and you've got a recipe for long-awaited justice.

'Heads in the sand';

Harris County is a different story.

As we saw in the HPD crime lab debacle, precious evidence like bloody clothing and rape kits got rained on, used up in one test or misplaced. Even the evidence sent to other labs was routinely stored in crowded, dusty warehouses, where exhibits were periodically tossed to make room for more.

In 1997, the rape kit that exonerated Kevin Byrd narrowly escaped the trash bin. But a week after his pardon, court officials ordered 50 more rape kits destroyed.

Harris County's tossing tendencies are common and legal. Texas law requires evidence to be kept only until a convict is executed, dies or is paroled. Curtis Giles might still be a registered sex offender today if Dallas had followed that minimum standard; he was exonerated 14 years after his parole.

Evidence isn't the only obstacle to freeing Harris County's innocent. Critics point to a culture of denial at the office of District Attorney Chuck Rosenthal, who's often painted as the archetypal red meat Texas prosecutor.

"I think it's a matter of them burying their heads in the sand so they're not confronted with the possibility they made a mistake," David Dow, director of the University of Houston's Innocence Network, said of Rosenthal's office. "They often don't even answer our letters anymore when we inquire about ... evidence."

Rosenthal denied stonewalling: "I'm not going to stand in the way and have someone who's wrongly convicted stay in prison. That's awful," he told me last week. "If we can't be ethical, we can't be anything."

To be fair, he was the first in 2003 to order retesting of DNA handled by the HPD crime lab.

And Nina Morrison, staff attorney for Innocence Project of New York, commends Rosenthal for a new, limited policy allowing her to retest any DNA that was touched by the tainted HPD crime lab. She's gotten permission to test more than five inmates so far, and she expects more. But that doesn't cover all cases.

And even if Rosenthal isn't blocking DNA testing, he's not aggressively trying to find the innocent guys, either.

When I asked him if there could be innocent people from Harris County in prison, he said, "I'm sure it's plausible."

Yet, he says his office supports "very few" requests for post-conviction testing.

Compassion for victims;

How can it be ethical to acknowledge the possible incarceration of innocent people and then do little to find and free them?

I admire Rosenthal's compassion for victims; he says he decided long ago that if alleged rape victims braved stigma to come forward, he would stand by them until evidence proved otherwise.

Why not the same compassion for victims of incompetent counsel and mistaken eyewitnesses?

Rosenthal should follow Watkins' example in Dallas: Throw open his doors to the innocence attorneys and allow them to test whatever evidence exists in disputed cases. He has nothing to lose, except his pride, but much to gain. For every innocent person in prison, there is a murderer or rapist who escaped justice."