Future Forum: Guilt, Innocence, and the Death Penalty 
Why Can’t Steven Phillips Get a DNA Test?
In prisons all across Texas, convicted felons are asking for access to forensic evidence they insist could prove their innocence. In many cases, the requests are frivolous. But in those where legitimate questions of guilt still exist, the pursuit of justice is frequently derailed. And no one can explain why.
(Page 5 of 5)
Then his luck ended, like that of most inmates who have asked for a test. Nobody keeps track of how many tests have been requested since Chapter 64 became law, but based on rejection estimates from Dallas, Harris, and Travis counties, it’s fair to say that there have been about 800. Michelle Moore is an attorney with the Dallas County Public Defender’s office who represented Phillips for his motion. She says that the 83 tests that the DPS has granted so far are not nearly enough. “How pitiful,” she says. “That’s way too low.” Some defense attorneys, like Houston’s Randy Schaffer (who has used DNA to free three wrongly convicted men), blame the state’s law-and-order prosecutors for the low numbers. “Most big metropolitan DAs will fight tooth and nail over DNA. They are so afraid of wrongful convictions because they call into question the integrity of the process. The fallout is in the jury panels. After DNA exonerations, juries say, ‘We can’t convict on eyewitness testimony; we need DNA.’ District attorneys would rather see an innocent person stay in jail than run the risk of one hundred guys getting acquitted in the future.” John Rolater, a deputy chief of the Dallas County DA’s appellate division, disagrees. “We don’t want innocent people in prison,” he says; his office’s concern is frivolous requests. “A lot of our cases involve people with preexisting relationships with each other, such as intrafamily sexual assaults. Also, we have a lot of people trying to use DNA tests to cast doubt on other parts of the case.”
The ultimate arbiters in Chapter 64 requests, of course, are the judges. David Dow, of the Texas Innocence Network, at the University of Houston Law Center, says, “The statute promises a lot but delivers little. Unfortunately, it places so much authority in the trial judge.” And while some judges believe in DNA, others apparently do not. In front of Judge John Creuzot, of the 4th Criminal District Court, in Dallas, a defendant is likely to get a test. In front of Judge Nancarrow, of the 204th, just down the hall, he is not. Just how individual judges arrive at their decisions is a mystery to lawyers like Wischkaemper. “Judges go through all sorts of mental gymnastics to deny relief,” he says.
We don’t know why Judge Nancarrow turned Phillips’s Chapter 64 request down (he did not respond to interview requests), but we can guess at his motivations. Perhaps he was giving in to the very human impulse to want to aid the victim, to take her side against that of a pervert. Or maybe it’s a question of politics and the risks an elected law-and-order judge like Nancarrow would have to run in taking Phillips’s word against hers. But the fact is, rape victims, like other eyewitnesses, can be unreliable witnesses. Of the Texas men wrongly incarcerated for rape and freed by a DNA test, every single one was convicted mainly on the ID of the victim. The Innocence Project’s Morrison says, “One of the most consistent patterns we’ve seen in DNA cases is rape victims who, because of the enormously traumatic circumstances of the crime, are often honestly but tragically mistaken when attempting to identify their assailant.” Of course, it’s understandable why they would make mistakes. Memory is not objective and linear, like a movie; it is subjective and disjointed, like a dream, easily influenced from within the mind and without, especially considering the physical and emotional horror rape victims go through.
The 1982 Dallas victim in Phillips’s case never saw her rapist’s face close-up; he wore a hood over his head and kept a cloth over the bottom half of his face. She saw his profile for a few seconds as he was leaving, when she was in shock. She made a composite sketch with the police that prosecutors thought looked a lot like Phillips. But sketches are not perfect; the first American to be exonerated by DNA, Gary Dotson, had also been convicted after the victim made a composite sketch with help from the police and then identified him from photos and a lineup. “Most judges know that eyewitness testimony can be inaccurate,” says one-time Phillips attorney Moore.
Perhaps Nancarrow, as judges often do, merely followed the recommendations of the prosecution, which based its opposition to Phillips’s request using the outmoded 2001 statutory language—with its impossible standard of having to first prove one’s innocence to get a test. “Maybe,” Judge Sessions speculated, “it’s the mentality: ‘He may not have done this, but he probably did something else.’” Maybe it was an issue of money. Even though DNA testing is cheap now, Moore says, “If judges don’t have to spend money out of their budgets, they won’t.”
The hardest thing to reconcile about Nancarrow’s decision is that, ultimately, it wasn’t going to set Phillips free or even give him a new trial. It was only going to give him a test. If the test had excluded him, he would still have had to file a writ of habeas corpus or ask the governor for a pardon, and the prosecutor still could have fought him. And the fact is, most of the time, post-conviction DNA tests basically reconvict the convict. Of those 83 tests that have been granted, 51 have done just that. One Dallas defense attorney who says she has filed ten Chapter 64 requests, all of which were denied, says, “My philosophy is: Give it to him so he’ll shut up.”
But we also know that 6 of those 83 led to an innocent person’s going home again. That’s a pretty good batting average for DNA. Judge Jon Wisser, of the 299th District Court, in Austin, says, “It’s not right to pick people over science. My feeling is, if there’s any evidence that even remotely indicates we need DNA evidence, let’s test it. The threshold should be very low. The cost is so minimal. Why not do it? I like to sleep well at night.” Wisser, who has okayed one request and turned another down (a third is pending), says one of the problems is that judges have to balance finality with fairness. “Finality is so important to the system. There’s a constant pressure to move these cases. There’s almost a sense that it’s okay to let innocent people go to prison—it’s more important to have faith in the system. I don’t think anyone would say that, but a lot of people believe that.”
Tammy Ardolf was the Dallas County assistant DA who made the official response that opposed Phillips’s DNA request. She couldn’t talk about the case, which is still pending before the CCA, but during a phone interview in November, she explained to me her office’s philosophy on a Chapter 64 “spectrum” for DNA testing requests. On one end are requests her office would oppose: cases in which the victim knew the assailant or was caught in the act. On the other end are requests the office would not oppose: stranger-on-stranger crimes in which nothing except an eyewitness tied the person to the crime scene. In between is a gray area, such as cases like Phillips’s. “It’s difficult,” she says, “especially when you’re looking at the specific facts of a specific case. A lot of time it’s a judgment call, which in larger counties often is made by higher-ups rather than the individual prosecutor. But in my opinion, if it fits the statute, you should agree to DNA testing.” Ardolf now works as a staff attorney with the county criminal district courts, but while working for the DA, she persuaded prosecutors to agree to two DNA testing requests, those of Donald Wayne Good and Keith Turner, both of whom had been misidentified by eyewitnesses—and both of whom were excluded by DNA. “People make mistakes,” she acknowledges.
But Dallas County contested the 2001 Chapter 64 request of Wiley Fountain, who had been convicted of rape in 1986 with what the prosecutor called “unequivocal eyewitness testimony” from the victim but little else. Luckily for Fountain, Judge Vickers Cunningham granted the test anyway, it excluded him, and in 2002 he was freed. He had spent fifteen years in prison for a crime he didn’t commit.
IN EARLY NOVEMBER I visited Phillips at the Stiles Unit. He’s muscular, completely bald, and he wears wire-rim glasses, through which peer his pale-green eyes. He has a wide gap between his front teeth. He’s a grandfather now, though his wife and two children never visit. He stays in touch with two people, really: his mother and Don Umphrey. Phillips wrote his friend in October about how he had lost everything: “Well if it’s God’s plan that I should reach a point where all that’s left is my prayer, that is, my dependence on him, then I believe I have arrived.”
He’s smart, though some I spoke with think he’s manipulative. He got a correspondence bachelor’s degree from Stephen F. Austin State University in the nineties and spends a lot of time reading classic literature. He quotes from Melville and likes The Scarlet Letter. “Hester Prynne wears her sin, her A, for all the world to see,” he told me excitedly. “Thereby, she’s truly saved. The preacher keeps his inside.” He says he’s finally taken responsibility for his sin, his sex addiction, the “SO,” for sex offender, stamped on every piece of paper in his life. “I’m a sex addict, man. I always knew something wasn’t right, but I didn’t think it was an addiction. Once I was talking to a counselor and I said, ‘It’s not a big deal,’ and he said, ‘What about the victims?’ And I said, ‘There are no victims.’ I was so much in denial. I wasn’t trying to get well. I was a one-dimensional monomaniac. Sin’s fun, dude.” He says he didn’t realize until he came back to prison that he was an addict.
His appeal of Nancarrow’s denial is before the CCA. He’s up for parole now, though he says he stands no chance of getting it. He’ll get a mandatory release at the end of next year, but what he really wants is a DNA test to clear him of the rape. I asked if he has any doubt that the semen stain would prove to not be his. “No doubt at all.”
We know how easy it would be to give Phillips a test. If the samples match, that’s the end of the story, and DNA has once again reinforced a guilty verdict. But if they don’t match, there would be two tragedies—that of a man locked in prison for more than two decades for something he didn’t do and that of a victim who never got justice and a rapist who could still be free.
Maybe Phillips is manipulative. We know he’s a pervert, a sex addict. Five women say he’s a dangerous pervert, and one fervently believes he’s a rapist. Is he? Not the judge, not the DA, not his defense attorney, not even his best friend knows for sure. But there is one way to find out.
My Library
