Tuesday, June 26, 2018

Joe Bryan: Texas: 'Blood will tell; 'Dispatch 5: Pamela Colloff asks a perplexing question in relation to her extraordinary New York Times/ProPublica series: "How could someone be convicted on so little evidence?"

GIST: Hi everyone: Many of you have written to me to ask why Joe Bryan’s defense attorneys weren’t able to win an acquittal in 1986. Having written about wrongful and/or questionable convictions for more than 20 years, I wanted to share a few thoughts with you.  Joe’s attorneys were not inexperienced trial lawyers, nor were they overworked public defenders without the resources to properly investigate the case. Charles McDonald and Lynn Malone were among the best trial attorneys in Waco in the 1980s, and both believed in Joe’s innocence. Malone wept when he heard the verdict at the end of Joe’s first trial. A former colleague of Malone’s told me that the ex-prosecutor was never the same after losing the Bryan case. In 1999, shortly before his death, he called Leon Smith to thank the Clifton Record editor for his tireless work on Joe’s behalf. Joe’s convictions weighed on Malone even in the final months of his life. McDonald also believed Joe had been wrongly convicted. After the verdict came down in the first trial, McDonald begged jurors for leniency in sentencing, but as he did so, his frustration spilled over. “I never argue with a jury’s verdict,” he said, before doing just that, chastising jurors for finding a man guilty in a case full of reasonable doubt. “You have convicted an innocent man,” he told them. While I was reporting this story, there were many times that I wished I could have gone back in time and spoken to the key players in this case—particularly McDonald and Malone. There were so many questions I wanted to ask them. But both men are dead, so I could only wonder. In hindsight, it’s easy to second-guess some of the choices they made, but their defense of Joe was, by and large, a vigorous one. It’s important to remember that they were up against the district attorney’s office, a special prosecutor hired by Mickey Bryan’s brother, the Texas Rangers, the Clifton police, the state crime lab, and a bloodstain pattern analyst who spoke with authority about a type of forensic science that few in the courtroom knew much about. As I mentioned in Part II, the Innocence Project studied 325 DNA exonerations and found that roughly half of them were due to faulty forensics. This is a deeply troubling figure when you consider that the field of forensics has undergone little scrutiny or reform in the wake of these exonerations. Several readers have asked why McDonald and Malone did not retain a bloodstain pattern analyst who could testify for the defense. But back in the mid-1980s, there were few such analysts who a criminal defense attorney could hire. Nearly everyone trained in the discipline was a law enforcement officer and therefore testified for the prosecution. Only in more recent years, as more and more officers trained in bloodstain pattern analysis have retired and hung out shingles, have defense attorneys been able to hire expert witnesses of their own. But this state of affairs isn’t much better, since it usually results in a battle of witnesses. Who communicates more effectively with a jury—who looks and sounds more authoritative can become more important than the evidence itself. So if we consider why McDonald and Malone were not able to win an acquittal, it’s important to understand that the full force of the state was brought to bear on Joe. It was not easy to combat that, no matter how flimsy the prosecution’s evidence. I was reminded of this fact when I saw a reader comment on the New York Times website about my story, in which a reader noted that she thought Joe “looked” guilty. Yet Joe is one of the lucky ones. His current attorneys—Walter Reaves and Jessica Freud—have worked pro bono, for years, on his behalf. And Leon Smith spent years digging into his case. Few inmates have such resources. I’ll never forget the day I first met with Smith to discuss this case. Smith’s office is a tidy white house just down the block from his home in Clifton. When I went there last summer to meet him, he brought out one box, and then another, and then another. Each one contained papers that he had collected about the Bryan and Whitley cases—old newspaper articles, transcripts of interviews he had conducted, and public records about Dennis Dunlap, the police officer who was later fingered as the killer in the 1985 murder of Clifton teenager Judy Whitley. “I always meant to write a book,” he told me. “But I didn’t have an end.” Yet Smith never stopped asking questions—often uncomfortable questions that he posed to people in his own community—about a case that everyone wanted to go away. Many of you have written to me about the lack of an end to Joe’s story, and expressed a wish for resolution. The most common question that readers have asked me about my story is, “Will there be a part three?” While I don’t know the answer to that yet, I have some thoughts about what we can expect in the months to come, when Joe’s case will be back in a Texas courtroom. I’ll write more about that next time. Thanks for reading! Pamela."

The entire dispatch can be read at: 

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;