Future Forum: Guilt, Innocence, and the Death Penalty 
A Father’s Day Trials and Errors
Texas has had more wrongfully convicted men exonerated and set free than almost any other state. Why does this keep happening? Can anything be done to stop it?
Photographs by Jeff Wilson
Charles Raby says: My name is Charles Douglas Raby; I have been a Texas Death Row Inmate for almost 20 years. I’m writing because I fear the only hope I have left, is to bring my case to the attention of the media. It seems that no one wants to help unless I am to receive an execution date, but I believe media awareness will help me now. Having seen a lot of bad cases and good media coverage in the last 20 years, I am aware that there are many elements to a newsworthy story, such as: forensic evidence/DNA, Coerced confessions, Prosecution misconduct, Withholding of exculpatory evidence, False and misleading testimony, Incompetent lawyers, Landmark Supreme Court rulings, or the high cost of the death row appeals process. Well my story has all this and more, the transcripts from my last trial stated, "…DNA Material from at least two different men was present underneath the fingernails of Edna Franklin’s left hand when the clippings were collected at her autopsy. Furthermore, these DNA tests establish to a scientific certainty that none of the DNA from these unknown males belongs to the petitioner Charles Raby. The presence of at least two foreign male profiles underneath Edna Franklin’s fingernails at death is more than sufficient to raise reasonable doubt given the other evidence presented to the jury. No eyewitnesses placed Mr. Raby with the deceased the day of her death. No biological or physical evidence links Mr. Raby to the scene. No fingerprint evidence exists; no DNA evidence links Mr. Raby to the scene. Evidence that should have linked Mr. Raby to the crime was simply never there, nor did the State offer much of a motive for the murder. Virtually the sole basis for the verdict was a custodial statement, but that statement is disturbingly vague and lacks any indices of reliability such as corroborated details towards which homicide detectives aspire". The results of this hearing occurred in November of 2008 in Harris County’s 248th District Court with Judge Joan Campbell. The DNA results were presented to the court; both sides rested; and Judge Campbell was to rule whether I would receive a new trial based on the DNA. Or be put to death. That was 3 years ago. The judge still has not ruled. All other courts and judges must rule within a “reasonable time”, but not so with the state district court. I’m still here. Still waiting. Indefinitely. I am a private person, but I fear a ruling could still be year’s away if more media attention isn’t shed on my case. I just want my day in court, and the law states that I’m entitled to that. If you think you can help me, I’ll be happy to answer any questions you may have. Your response via email will be forwarded to me if you write CDR32270@gmail.com, or you can contact me directly at the address below. Thank you for your time. Charles Douglas Raby #999109 at 3872 FM 350 South in the city of Livingston, TX 77351 (July 6th, 2012 at 7:51pm)
It's hard to imagine a more terrifying experience than being wrongfully convicted of first-degree murder. You’re innocent, you don’t know anything about the crime. Yet the police somehow become convinced that you’re guilty, and a prosecutor makes a persuasive case to the jury. Next thing you know you’re a convicted killer, and the burden is on you to prove that you’re innocent. And if you’re really unlucky, the clock is ticking down to your execution date.
Fifteen years ago, most Texans never even considered that such a nightmare scenario could happen. No longer. Every year now, we hear more stories of innocent men freed from prison after spending years behind bars for crimes they didn’t commit—stories that raise serious questions about the way our system works, from problems with eyewitness identification to flawed forensic science to overzealous prosecutors. Since 1989, Texas has had more than eighty exonerations, including two unusually high-profile cases in the past two years. Last fall, Michael Morton, who had been sentenced to life in prison for the brutal 1987 murder of his wife at their home in Williamson County, was finally released after DNA evidence linked another man to the crime. Not only was Morton innocent, he was in every sense a victim himself. Nonetheless, he spent nearly 25 years locked up.
Around the time that Morton got out, Anthony Graves was marking the one-year anniversary of his freedom. Graves, who had been given a death sentence for a horrifying 1992 multiple homicide in Somerville, was set free in October 2010 after eighteen years behind bars. Like Morton, he was innocent, but DNA played no part in Graves’s exoneration. He was saved by the attention to detail of the special prosecutor who had been hired to retry his case, a fearsome former Harris County assistant district attorney named Kelly Siegler. Over the course of several months, Siegler uncovered a staggering number of problems with Graves’s conviction and called into question the conduct of the original prosecutor, former Burleson County district attorney Charles Sebesta.
Today, both Morton and Graves are free men. But it would be foolish to think that there are not other innocent men and women in our prisons right now. How does this happen? Can it be stopped? Hoping to get some answers to these questions, TEXAS MONTHLY brought together a diverse group of individuals with firsthand knowledge of our criminal justice system for an evening of frank conversation.
The Panel
Art Acevedo has been the chief of the Austin Police Department since 2007.
Rodney Ellis was elected to the state Senate in 1990 from District 13, in Houston.
Anthony Graves was wrongfully convicted in 1992 and released from jail in 2010. He lives in Houston.
Barbara Hervey is a judge on the Court of Criminal Appeals and the chair of the court’s fourteen-member Texas Criminal Justice Integrity Unit. She lives in San Antonio.
Kelly Siegler is a special prosecutor. She lives in Houston.
Craig Watkins is the DA of Dallas County and a former defense attorney.
The Discussion
Jake Silverstein, editor of TEXAS MONTHLY: Senator Ellis, we’re here tonight to discuss the issues in our criminal justice system that have led to some wrongful convictions and to talk about what can be done. But for starters, can you try to give us a sense of how serious you think this problem is?
Senator Rodney Ellis: I think it’s a major problem. We incarcerate more people than anyone else in the nation, we execute more people than anyone else in the nation, and we spend less on indigent defense than virtually everybody else in the country. You add those up, and it’s like 1-2-3: we have more DNA exonerations than any other state in the country. The criminal justice system is a government program. In every other sphere of public policy, the assumption is that sometimes the government makes a mistake. In this area, it could be life or death. Now, with that said, I’ll take the criminal justice system in America, on the whole, over any other in the world. And I am convinced that most people who are in jail are guilty. But we can do better.
Silverstein: Judge Hervey, the senator says he thinks we have a major problem. Would you define it the same way?
Judge Barbara Hervey: I would, but I have a little different spin. If the other 49 states think for a minute that they don’t have people in prison that shouldn’t be there, they’re mistaken. Texas is paying attention. My approach is that education is the key to the whole thing. You’ve got to get every person in the system on the same page with regard to wrongful convictions, because if they’re not on the same page, we’ll continue to have these problems.
And it’s about the public too. I recently went to a forum in Dallas with a lot of interested citizens, and I’ll tell you what, they were angry. This concept of innocence meant people were getting a bunch of money; it’s costing the state. And I said, “Wait a minute, let’s start at the beginning. How would any of you like to spend one day in prison for something you didn’t do?” And I was amazed. This group turned around and went, “Oh my God, this is horrible.”
Anthony Graves: We’ve got a problem from top to bottom in our criminal justice system. It starts with, number one, the investigation. And then we don’t have any accountability for the prosecutor. I am for the law, okay? I think we should all be working together. I should be willing to go and tell a prosecutor what I’ve seen if someone is committing a crime. But I wouldn’t, because you know why? They are going to knock on my door and say that because I saw it, it must have been me. We’ve got a problem, man. We are not trying to solve cases. We are trying to convict. I don’t care how much reform we do—if we don’t hold the prosecutor accountable, it’s not going to work. I think we’ve got one of the best systems in the world, but I always say to people, it reminds me of when the car was first built. The first Model T, it was a good car and it got us from point A to point B. Now you look at the cars today, all the upgrades to make them safer. We have not upgraded our system, and as a result, it is failing us.
Kelly Siegler: I think that the point of the conversation tonight should be that most prosecutors do a wonderful job, and they are appalled by what happened to Anthony. There are two problems with the system. There are the Brady issues, which I think training would address. [In a 1963 case, Brady v. Maryland, the U.S. Supreme Court ruled that suppression by the prosecution of any evidence that could help the defendant’s case is a violation of due process. “Brady disclosure” broadly covers instances in which law enforcement officers or prosecutors are required to share information they have uncovered that is favorable to the defense.] I have been a prosecutor my whole life, and I am telling you, we are not properly trained in how to deal with Brady. That’s separate and apart from criminal prosecutors like Charles Sebesta. We are talking two different things here.
Ellis: So do you think there should be some enforcement mechanism? Prosecutors are probably the only group of elected officials or public officials I know of in Texas where there are very limited checks and balances.
Siegler: Here’s what you do: you introduce a law. We [prosecutors] all have immunity against civil lawsuits. Leave that just the way it is. But introduce a law that says when a prosecutor commits a crime like tampering with evidence, tampering with a witness, or official oppression, like Charles Sebesta did, there is no statute of limitations.
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