At Home 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.
IN THE EARLY AFTERNOON of May 14, 1982, a man carrying a gun, wearing a hooded gray sweatshirt, and holding a cloth in front of his face walked into a North Dallas apartment complex, confronted a woman in a bathing suit, and ordered her to take it off. She refused, and the man fled to a nearby complex. There, he found another sunbather and took her back to her apartment, where he exposed himself to her. Over the next twelve hours, he went to three more complexes, forcing women to disrobe, exposing himself, and in one instance, raping a woman while her two-year-old son played in a nearby room. The next morning a man armed and dressed in a similar manner went to three Elaine Powers Figure Salons in Garland, Carrollton, and Denton and made four dozen women take off their clothes. “Gunman Terrorizes 61 in 2-Day Spree,” read the headline in the Dallas Morning News.
Five days later, Steven Phillips, a 24-year-old Dallas roofer with a penchant for flashing and voyeurism, was arrested for exposing himself to two young women at two North Dallas apartment complexes. His picture was taken, his wife posted bond, and he was released. A week after that, a man wearing a hooded gray sweatshirt, carrying a gun, and holding a cloth over his face struck two health spas, a condominium complex, and an outdoor tennis court in the Kansas City area, forcing two women and five girls to disrobe while he exposed himself. Dallas and Kansas City police consulted with each other, and a photo of Phillips was put in a lineup in each city. One victim from Kansas City and two from Dallas picked Phillips out, including the rape victim. Dallas police issued a warrant for Phillips; after he read about it in the newspapers, he turned himself in, denying his guilt. Three more victims identified him from a live lineup. Several women from both the Denton and Kansas City crime scenes identified a second suspect.
No fingerprints, gun, or gray sweatshirt were ever found to connect Phillips to any of the crimes. A tiny amount of seminal fluid was taken from the rape victim, but not enough to identify anyone, at least not with the technology of 1982. Three body hairs were also found, but they were useless for identification. The evidence was stored away, and Phillips went to court, where the case against him was built almost exclusively on witness testimony. At trial, in August 1982, the rape victim told how she briefly got a look at his face when he struggled with the front door on his way out and then stopped for a few seconds to hide his gun. She described him as hairy, muscular, having a mustache and a receding hairline, and wearing running shoes. His eyes, she said, were dark blue. “I’ll never forget those eyes,” she said in court. A second victim from that first day identified him too, as she had done at a photo lineup. She said he wore work boots and had “piercing blue” eyes. The only other evidence was the testimony from the policeman who’d arrested Phillips for flashing, who said he remembered seeing a gray sweatshirt in Phillips’s car but could not say whether it had had a hood. “I did not look at the item,” he said at the trial. “I just observed the item.”
Phillips has green eyes, and he also had three alibis for the afternoon of the rape: his wife, plus her sister and her sister’s husband, all of whom lived with Phillips in a rented house in Garland. Each said that when the assault took place, he was at home sleeping after a morning roofing job. But he was found guilty in separate trials, first of burglary and then of aggravated sexual abuse, and got thirty years for each. In 1984, facing a third jury trial with similar witness testimony, he pled guilty to the remaining charges from the two-day spree in exchange for a ten-year sentence, knowing he’d be eligible for release in the mid-nineties. He went to prison and spent much of his time over the next thirteen years writing hundreds of letters to judges, policemen, lawyers, and the media, proclaiming his innocence. In 1996 he was released, but he quickly fell back into his bad habits. He was arrested again, in 1997, for peeping into an apartment. His parole was revoked, and he was sent back to prison, where he sits today, at the Stiles Unit, in Beaumont.
THE WAY WE SOLVE crimes has changed remarkably since 1982, when Phillips was first convicted. Forensic DNA testing, first used to solve a rape and murder in England in the mid-eighties, has been universally adopted in the United States, where it has nailed thousands of guilty criminals and exonerated some 166 falsely convicted men and women, including 20 Texans (see “Body of Evidence,”). In April 2001, on the heels of a spate of these exonerations, the Texas Legislature passed an emergency measure that became Chapter 64 of the Code of Criminal Procedure, giving convicts the means to ask for DNA testing; previously, they had to file a writ of habeas corpus. Texas inmates can now request testing on evidence that was collected either before DNA technology was available or in its early, less accurate days. It is up to a judge to decide whether to grant a test, based on whether there is existing doubt about the perpetrator’s identity and whether the evidence would have made a difference in the verdict. (Some DNA evidence, such as hair found on the floor after a liquor store robbery, wouldn’t necessarily prove anyone’s innocence.)
Steven Phillips was one of the first to file. In the spring of 2001, he requested testing of all existing evidence, which turned out to be a vaginal swab and three body hairs collected from the original rape case that were being stored at the Southwest Institute of Forensic Science, in Dallas. In a letter to texas monthly shortly after, he again proclaimed his innocence, even as he acknowledged his guilt of other things. “My credibility sucks,” he wrote. “I am a (recovering) sex addict, with a 30 year history of misdemeanor acting out—exhibition, peeking tom, porno, etc.” But he wasn’t, he insisted, a rapist. Nearly three years later, on March 9, 2004, district judge Mark Nancarrow turned Phillips down. “Identity is not, and was not at issue,” he wrote in his opinion, adding that Phillips “is not entitled to testing of the vaginal swab because overwhelming evidence existed of Phillips’ guilt.”
The “overwhelming evidence” was the testimony of the two witnesses, particularly the rape victim. But while eyewitnesses can offer the most compelling evidence a prosecutor puts in front of a jury, study after study has shown that victims and witnesses get it wrong as often as they get it right, for all kinds of reasons: stress, the inherent limitations of memory, even the subtle suggestions of the police. In fact, an astounding 75 to 80 percent of the 166 Americans who have been exonerated by a DNA test were put in prison mainly because of faulty eyewitness testimony. And multiple eyewitnesses, as in the case with Phillips, don’t necessarily mean more certainty. In 1980 Luis Diaz was convicted of being a serial rapist in Miami after eight victims identified him. In 1985 Kirk Bloodsworth was convicted in Maryland of murdering a nine-year-old girl and given the death penalty based mainly on the testimony of five eyewitnesses who placed him with the victim. In both cases, the eyewitnesses were wrong. DNA cleared Diaz and Bloodsworth, and they were freed.
Phillips isn’t the only Texas inmate who has been denied a DNA test. Over the past five years, an estimated 800 convicts have made a request, but only 83 have seen it granted. “It’s harder to get DNA testing in Texas than any other state,” says Nina Morrison, a lawyer at the New York–based nonprofit Innocence Project. “The Texas statutory language is generous; it strikes an appropriate balance between granting testing in cases where DNA is relevant to the identity of the perpetrator and not granting it in cases where there are no doubts.” The problem, says Morrison and other lawyers, is that many Texas prosecutors aggressively fight DNA motions no matter what the merits of the request, and many judges apply a strict interpretation of Chapter 64, one that can make it almost impossible to get a test. Even defense attorneys concede that as many as three quarters of the requests may be frivolous—cases in which DNA evidence was not left at the crime scene or wouldn’t make any difference anyway. But in cases like Phillips’s, where DNA evidence, however old, is the only physical evidence available, it’s hard to understand why a judge would refuse to allow a scientific test, one that takes less than 48 hours and only costs about $1,000.
William S. Sessions, a former Texas federal judge, was a pioneer in the use of forensic DNA during his tenure as director of the FBI, from 1987 to 1993. Under his leadership, the bureau began testing DNA from active cases; in the first one hundred, the samples from thirty suspects did not match samples taken from the crime scenes. This opened Sessions’s eyes, and time after time since then, he has seen DNA clear up doubt, especially in cases like Phillips’s. “With those people who have consistently maintained their innocence and consistently pursued it,” he told me during a phone interview in October, “and in whose cases violence was committed or sexual conduct was involved, if DNA might be of consequence in those cases, then it should be tested. Why should a court or DA not be willing for justice to prevail?”
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