The Wrong Man

Why did Kevin Byrd spend twelve years in prison for a rape he did not commit?

In a justice system criticized for letting too many guilty people go free, how does it happen that a man is sentenced to life in prison for a crime he did not commit? Consider the experience of Kevin Byrd. The soft-spoken Houston carpenter repeatedly denied his guilt following his conviction on rape charges back in 1985, but hardly anyone paid attention until this July, when he was exonerated by a DNA test. Byrd’s case (and Governor George W. Bush’s reluctance to pardon him until he heard a judge’s ruling ten weeks later) ignited a debate over the state’s commutation policy, yet it did not trigger an examination of how Byrd got incarcerated in the first place. It’s a disturbing and increasingly relevant question, since in the past few months alone three similar rape cases in Texas—those of Ben Salazar in Garfield, Ronald Johnson in Fort Worth, and Roy Criner in New Caney—were all reexamined after DNA testing suggested that the police had arrested the wrong man.

Like those cases, Byrd’s involved faulty eyewitness identification. But just as important was the apparent desire of the authorities to convict Byrd at any cost—or at least that’s what his appellate lawyer, Randy Schaffer, believes. “The lengths to which the prosecution went to convict Kevin on what was patently false testimony were extraordinary,” says Schaffer, a onetime Racehorse Haynes protégé who helped overturn death-row-inmate Randall Dale Adams’ conviction in 1989. “I’ve done enough of these cases that when there’s something dirty in a trial record, I can smell it coming up out of the pages. This one stunk big time.” (Neither former assistant district attorney Gaynelle Griffin Jones, who prosecuted the case, nor Houston police officers Donald Duke and K. A. McDonald, who testified against Byrd, would be interviewed for this article.)

Indeed, it seems the state had a remarkably flimsy case against Byrd: There was no physical evidence, no credible circumstantial evidence, no history of violence or sexual misconduct by Byrd, and most important, no explanation for how Byrd, who is black, fit the victim’s original sworn description of a white rapist. Although his paternal grandfather was a Blackfoot Indian, Byrd is by no means light skinned; yet on May 11, 1985—four months after the crime, when there were still no leads in the case—the victim spotted him at an east Houston grocery store and decided he was the one, and Byrd, then 23, was arrested. Raymond Lewis, one of Byrd’s closest friends, remembers getting a panicked call from him that day. Lewis assured him that he would be released that afternoon as soon as the police realized it was a mix-up. “I really wasn’t worried,” Lewis says, “because I just knew that the judge would see they had the wrong person and dismiss everything.”

Three days before Byrd’s trial, however, in an inexplicable reversal, his court-appointed lawyer learned from the prosecutors’ office that test results showed stray pubic hairs recovered after the rape were not from a white person, as had been previously determined, but from a black person. More peculiar “evidence” was presented in court. The rape victim, who had been face down for much of the assault in a dark room, maintained that she had clearly seen her attacker, claiming to remember such minute details as his closely bitten fingernails—which Byrd, who sat before her in court, indeed had—but she wavered when asked to specify his skin color. Even more questionable was the testimony of officers Duke and McDonald, who interviewed the victim and separately wrote reports describing a white assailant; on the stand they each said that “white” could refer to people of a variety of races, including “Latin Americans” and “light-skinned blacks,” and that all along they had pursued black suspects in the case. A crime lab chemist first said on the stand that the stray pubic hairs belonged to the victim, who was black; under cross-examination he conceded that the hairs were more consistent with those of a white person.

Glossing over these inconsistencies was Jones, a formidable courtroom combatant who later became the U.S. attorney for the Southern Texas District and prosecuted, among other evildoers, Mexican drug lord Juan García Abrego. Jones skillfully played on the sympathies of the jury, contrasting the victim’s articulate, wrenching account of the rape with Byrd’s halting, reticent testimony, and cast doubt on Byrd’s alibi, which could be confirmed only by his father and his stepmother: that he was asleep in their house at the time of the early-morning attack. The jury found Byrd guilty after deliberating for less than two hours; he was subsequently sentenced to life in prison.

He ended up serving twelve years, two months, and eight days. He is not free today because the appeals process worked (his conviction was upheld in 1986, and two subsequent petitions for appeal were denied) or because the Houston Police Department acknowledged its mistakes in the case or because the rape victim came forward to say that she had identified the wrong man; in fact, says Harris County district attorney Johnny Holmes, “The victim is devastated because she still believes that Byrd was the man who raped her.” Byrd could easily have spent the rest of his life in prison if not for the devotion of Lewis, who spent much of his life savings to hire Schaffer and have the DNA test performed. Although the Harris County clerk’s office routinely discards rape kits (the evidence recovered from rape victims) after defendants have exhausted their appeals, an unknown prosecutor requested that the victim’s rape kit and rumpled black half-slip be saved; without it, Byrd never would have been let out of jail.

It was a hollow vindication. There was no ceremony, no acknowledgment of twelve years lost, no monetary compensation, and no apology. Upon his release Byrd simply and quietly returned to his family’s home. Since his arrest, his father had died, his brothers and a sister had married and had children of their own, and his friends had moved away. Still, it was an emotional reunion. “We just stood

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