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?
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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.
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.
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.
Chief Art Acevedo: The statute should start running on the day that we discover that misconduct. People should know that they’ll have to look over their shoulders for the rest of their lives. Just like a bad guy in society needs to know cops are always looking for him. I think keeping innocent people out of prison is more important than getting the bad guy in prison. I’m very proud of the fact that we now do double-blinds in our department. [A double-blind lineup is a photo or live lineup in which neither the person conducting the lineup nor the eyewitness knows which of the people in the lineup is the suspect.] The investigator cannot conduct his own lineup, because we know we’re fallible. We know that there’s something called noble cause corruption. Human nature being what it is, if the lineup’s a six-pack, and the investigator knows who the bad guy is and he’s doing one of these “wink-wink-nudge-nudge” things—you want to prevent those situations. So we require double-blinds, we require that they be videotaped. And an eyewitness identification is not enough for us. We try to see if we can figure out if that witness’s statement is wrong. Because every time we wrongfully convict somebody, it makes our job that much more difficult. Our number one priority in law enforcement is not to catch the bad guy, it’s to catch the right guy. Our job is not only to prove guilt, our job is also to eliminate suspects and be just as aggressive eliminating the suspect that’s been pointed out by witnesses. I think we have that moral obligation. And unfortunately, I don’t think that happens.
Ellis: It doesn’t. Until this fight came up over eyewitness identification, most police departments in Texas didn’t even have written policies. [In the 2011 legislative session, Ellis introduced a bill, SB 121, to standardize the eyewitness identification procedures in use by police departments across Texas. The bill passed and will take effect this September.]
District Attorney Craig Watkins: Judge, do you think that we should go toward a standard where we can’t use eyewitness identification alone as a basis to convict someone?
Hervey: That’s a little far, but what you should hope for is that you have a lot of police officers who understand that all of these things—whether it be eyewitness identification or some other science—are leads. They’re just leads. They’re not the case. So whether it’s dog sniff or DNA, it’s a lead that you use to go forward and really investigate the case.
Watkins: Maybe it could be an evidentiary issue. When you present the information at trial, you make it part of the jury charge as it relates to eyewitness identification.
Siegler: But it’s already addressed. Eyewitness testimony or accomplice witness testimony has to be corroborated already. The law is good. It’s not the law that’s the problem. It’s prosecutors like Charles Sebesta that bend it and deceive their way to a conviction. You’re right, we hope that there’s more to a case than just an eyewitness alone. But what if you’re that woman who’s been raped, and nobody saw it and there is no DNA, and it’s only her saying, “The guy down the street at the bakeshop did it.” I mean, what is she going to do if you try to raise the standard or change the law? You’ve got to worry about those victims too. They’re a part of the system.
Graves: But when you’re wrongfully convicted, there are other sets of victims as well. My mother was a victim. My children were victims. They lost their father. I can never go back and raise them. They’re grown men now. So this thing has a ripple effect. We just can’t look at it as “the inmate.” What about his family? You get it wrong, you’ve got two sets of victims. Even when you kill somebody, you create another set of victims, whether you’re doing it legally or not.
Silverstein: So how do errors get introduced into the system? What are the most common ways that wrongful convictions happen?
Ellis: Eyewitness identification problems. Misidentification. DNA issues—prosecutors or somebody blocking access to DNA is a big part of it. Prosecutorial misconduct.
Hervey: You’re leaving the defense bar out of the mix.
Ellis: That’s a big one—inadequate representation. This system is based on an adversarial notion. That’s how you find the truth. You’ve got both sides arguing. So if Kelly is the prosecutor, she argues her side, and then you’ve got to have an equal heavyweight on the other side. That’s how you get to the truth.
Silverstein: You mentioned prosecutorial misconduct. Kelly, can you talk a little bit about what you found in Anthony’s case?
Siegler: I ran smack-dab into 25 boxes of 18 years of legal manipulation and maneuvering. When I first read and saw the things that Sebesta did, I couldn’t believe it. And then I kept reading, and it keeps happening and it keeps happening and it keeps happening. And you realize that he’s a crook, and the other people that read the same thing I did, they’re cowards. I didn’t read anything different from what they saw. And so then you have to admit that there are prosecutors out there like Sebesta.
Silverstein: So is it just a case of a few bad apples?
Siegler: You know, I still want to believe that. I still want to believe that prosecutors like Sebesta aren’t very common. I want to hope that it just doesn’t happen.
Michael Hall, senior editor, TEXAS MONTHLY: But it also seems that the way the system is set up, we want you guys to win.
Siegler: Yeah, but do you [to Watkins] buy into the incentive to win?
Watkins: I don’t, but I think that was the mentality before we got there. And it was less about getting to the truth and more about “Hey, we’ve got to keep the reputation of this office and the culture.” You’d think, as a human being, you would at some point kind of get past the culture and find the morality to do the right thing, but that’s more difficult than you think. It was prevalent in the Dallas County district attorney’s office. And we’re still trying to overcome that. I don’t want to paint our prosecutors as being bad people—it was more the culture of the office. And I would imagine that this culture is throughout the state of Texas.
Siegler: No, it’s not. It was not like that in Harris County under Johnny Holmes. I have the record for losing the most trials in a row. I lost ten jury trials in a row. Nobody cared. I didn’t get a bad evaluation, I didn’t get demoted. If you lost a trial, nobody cared. That’s why the win-at-all-costs mentality makes me crazy.
Hervey: Unfortunately, right now the finger-pointing du jour is at prosecutors. And that’s unfair. When I first got to the bench, the allegations of prosecutorial misconduct were mostly garbage. We’re seeing some serious allegations now, but it is a system problem. Yes, you have prosecutorial misconduct, but you’ve got some problems with the police, you’ve got some problems with judges who don’t know what their job is as the gatekeeper of science. You’ve got problems with jurors who are not getting it. You’ve got problems with defense attorneys. Everybody’s got a hand in it.
Graves: I think it’s our attitude. We have the prosecutors and the defense—we have drawn a line in the sand. We’re fighting each other; we’re trying gwin instead of seeking justice. We’re here talking about winning and losing. That’s crazy.
Watkins: But a defense attorney has a different responsibility than a prosecutor. Your job is to win. Throw ethics out the window.
Graves: And that’s wrong because we should be seeking justice.
Siegler: Not a defense lawyer’s job. Their job is to win.
Graves: I want somebody who is going to go in there and seek the truth.
Siegler: Not if you’re the defendant who’s guilty, you don’t.
Graves: I mean, if you’re guilty, you pay for the crime. Whether it’s me or whether it’s somebody else. That’s how I want the system to work.
Watkins: Judge Hervey, you’re right that it’s bigger than just prosecutors. It’s the culture of “We’ve got to convict this guy.” It’s less about getting to the truth. When a case comes in, people in the system get this tunnel vision.
Silverstein: Chief, is that your experience?
Acevedo: Remember, it’s very rare for anybody in the criminal justice system to say, “I want to go get me somebody,” regardless of whether he did the crime or not. Their intentions are good. And so what happens is, if somebody points to Anthony and says, “Hey, he’s the one,” there’s a tendency to then focus all of our attention on Anthony and try to prove that person right, instead of having the mind-set, “Well, let’s see if the witness is right.” You have to investigate the totality of that case: the stuff that helps your case, the stuff that hurts your case. And the most important piece is that you have to include all of that information in your report. I think what happens sometimes is we’ll put in everything that’s good for our position and we won’t share everything else. Prosecutors maybe do the same thing. I’ve got to tell you, it really bothers me when I hear prosecutors say that prosecutors don’t understand Brady, when, as a police chief, I use Brady to fire people.
Siegler: You’re thinking that Brady is this black-and-white, clear-cut thing. That’s not what Brady is in the world of prosecutors.
Acevedo: When you’re in doubt, you need to ask the judge. I mean, it’s real simple.
Siegler: You can’t. That’s what I’m telling you.
Acevedo: You can’t ask the judge?
Siegler: No! It’s your case—you know the whole file, you’ve read the whole offense report, you’re talking to the cop, only you know all the details and the facts. It’s up to you.
Acevedo: I’m not an attorney, but if I’ve got information that is exculpatory, I have a moral obligation to—
Siegler: “Exculpatory” is an easy word to use, but we’re talking about inconsistent evidence, mitigating evidence—that too. And I guarantee you every single one of the cops that work for you don’t put in their offense reports every single little inconsistent thing they know.
Acevedo: Oh, absolutely. But you know what? Here’s the piece that is missing, that Anthony’s talking about. You can train people all you want, but you’re dealing with human beings. If there are not consequences for willful misconduct, you can have all the training in the world, you can have all the rules in the world.
Graves: You gotta do more than train.
Acevedo: It drives me nuts that I have 180 days [from the time of misconduct to discipline a police officer]. That’s all I have. One hundred and eighty days. That’s nothing. There should not be a statute of limitations when it comes to violating the public trust. And cops will hate me for saying that. Prosecutors will hate me for saying that. But in a democracy, if our criminal justice system doesn’t work, we are in deep trouble. And it starts with those consequences.
Hall: So let’s talk consequences. District Attorney Watkins, you’ve talked about criminal liability for prosecutors.
Watkins: When I came in, I advocated that there should be a criminal statute. But I think the standards should be pretty high. It has to be knowingly. Because a lot of times, you know, we have to rely on the law enforcement agency, and we preserve prosecution based on what the police officers give us.
Silverstein: Kelly, is that something you think other prosecutors would support?
Siegler: I think that all prosecutors would agree that we have to have our immunity. You have to be able to do your job without worrying about being sued civilly by Joe Blow out there that you charged with a crime. But I don’t think there’s any prosecutor in this state who would argue that if you commit a crime—like tampering with evidence, tampering with a witness in the course of prosecuting somebody like Anthony—then you don’t belong in prison.
Ellis: I don’t think we can overemphasize the point made earlier. The system is adversarial, and a disproportionate number of people who have been exonerated in this state and this country started out with a court-appointed lawyer.
Acevedo: But out of all the wrongful convictions in the state of Texas, what percentage were prosecutorial or police misconduct and what percentage were just bad lawyers? What’s the breakdown?
Siegler: You can’t separate them.
Ellis: You can’t separate them. Because generally, if there is prosecutorial misconduct, a good lawyer will find out. If one of our kids were to get in trouble, because we have resources we’re going to get a lawyer. A lot of times somebody’s income determines if they’re innocent.
Graves: It’s an unlevel playing field. Defense attorneys can’t get the money to go out there and do a diligent job investigating. They can’t do it. But over here on the other side of the table, they have an unlimited amount of resources. That is an uneven playing field. You go in with this notion of being innocent until proven guilty, but it’s tilted so heavily in favor of the prosecutor, based on resources.
Watkins: It’s not unlimited, first of all.
Acevedo: But we have to understand that it starts with the integrity of the system, not the quality of the lawyer. We prosecute cops in this state on a regular basis. We fire cops in this state on a regular basis. We suspend cops in this state on a regular basis. We take away the licenses of cops in this state on a regular basis. But when it comes to prosecutors, it doesn’t happen. The first step to ending wrongful convictions is having consequences.
Siegler: And what are you saying the consequences should be?
Acevedo: If it’s intentional and knowing, you’re going to jail. If it’s negligent, you’re out of a job.
Silverstein: Senator, what kind of resistance to this type of remedy would you find in the Legislature?
Ellis: All hell would break loose.
Ellis: There’s tremendous resistance because of the perception that you’re being weak on crime. One reason why the finger ends up being pointed at the prosecutors is because anything I try to pass in that pink dome, first question I’m asked in the House and the Senate and the governor’s office is “What do the prosecutors think?” If the prosecutors oppose it, nobody will take ’em on.
Siegler: Time out. If [Hervey] goes and people like me go and testify that we have a problem, you still think they’re going to argue?
Ellis: Kelly, you’d be amazed at the games that get played. Even on some of the simple ones, like this eyewitness bill. There’s been a big fight on every bill that I’ve been involved in. And most of the stuff that has passed, it wasn’t ahead of its time, it was time.
Silverstein: Judge, have attitudes on the Court of Criminal Appeals changed over the past ten years or so?
Hervey: The whole culture has changed, from the most conservative to the most left person on the court. When we first heard the term “actual innocence,” I didn’t really know what they were talking about. I started watching what Senator Ellis was doing, thinking, “That sounds kind of reasonable.” I can’t testify, but I can be a resource. So we set up the Unit, and we’ve had some very controversial forensic issues that we’ve presented. [In 2008, Hervey created the Texas Criminal Justice Integrity Unit, a fourteen-member committee of judges, lawyers, legislators, and members of law enforcement, to review the strengths and weaknesses of the Texas criminal justice system.] We had some training on arson a few years ago. It wasn’t a real popular topic; we did it anyway. So the court is very into it.
I wanted a presentation on eyewitness identification, full spectrum, left to right, so I invited Barry [Scheck, the co-director of the Innocence Project]. I called his staff and I said, “Look, I was born and raised twenty miles outside of New York. I do not want Barry to come into my courtroom and do a New York performance, and you know what I’m talking about. No New York performances, because the people of Texas don’t want anybody telling them what to do. Not the feds, not anybody. So he needs to do a normal-person performance.” They laughed. Barry came in, and he was wonderful, he was humble, he was just great. And the most conservative person in the room said to me, “Is this all this is? Well, hell, this is no big deal. We can do this.”
Silverstein: I want to talk about capital punishment. District Attorney Watkins, it’s something that you are morally opposed to, but in your capacity as district attorney in Dallas County, it’s something you’ve had to seek in some cases. Are you going to push for there to be a moratorium on the death penalty?
Watkins: I don’t think from my little seat as DA in Dallas County, which is one of 254 counties, that I have a voice to say there should be a moratorium. I can tell you how we do it in Dallas. We have a death penalty review team that looks at everything before we make a determination. It’s not just me making the decision. We have people with different views, and it’s majority rule. When we pursue it, guilt or innocence is not the issue. It’s pretty much, a guy’s confessed.
Ellis: I’ve presided over three executions. On the first day I was acting governor, as president pro tem of the Senate, an execution had been scheduled. I read the file. They had changed the pleadings to make the case to me: “Senator Ellis, you’ve been a civil rights leader; the death penalty has a disproportionate impact on people of color.” It was a direct appeal to me, and I remember thinking that when I took the oath to be president pro tem of the Senate, I swore to enforce the laws of the state of Texas. Not just the ones I like. So I read the file, I got on the line, and I said the state would proceed. But I do think there’s a distinct possibility the state of Texas has executed an innocent person.
Graves: Too many. You can’t tell me that I’m wrong. You tried to kill me twice. For something I knew nothing about.
Ellis: I’m convinced [Cameron Todd] Willingham was innocent.
Watkins: But you’ve got to get away from the morality of it, because people have different morals. It’s got to be logistics. Do we have things in place to make sure we don’t get it wrong? That’s a legitimate question.
Siegler: Yes—yes, we do. Checks and balances are in place. It’s the human beings involved that are the problem. You know, it’s another discussion if the people of Texas don’t want the death penalty. If they don’t, fine. But right now, that’s the law.
Ellis: But obviously all of us at this table have the ability to influence the law.
Siegler: Not that law.
Ellis: No, we do. If prosecutors were to say, “Hey, there are enough questions out here, there’s human error, we all make mistakes.”
Graves: Come on! To me, it’s an insult that you almost killed me and you’re still not even talking about a moratorium to find out what went wrong. You ask my mother about that. Ask my mom.
Ellis: I would say this: as a politician, as a policy maker, I wouldn’t put myself in a position where I would minimize my ability to enact meaningful reforms just to try to pass a moratorium bill. Whenever I carry these reforms, my colleagues come over to me and say, “You’re just against the death penalty. That’s your problem.” And I can look them in the eye and say, “I’ve presided over three executions. By what right do you say to me that I’m against the death penalty? I’ve done it. I’ll go to my maker. I did it. I could’ve given the thirty-day reprieve, but I didn’t.” I just don’t want the debate. I don’t want to minimize anybody’s ability to pass meaningful reforms. In a very conservative state, we’ve made some pretty significant advances.
Siegler: So you’re saying you don’t want to waste your time with a moratorium.
Ellis: Yeah, I don’t want to minimize my ability to pass other stuff.
Graves: I’ve experienced it! And I’m listening to the politics of it. And I’m like, we’re not getting to the real issue. We’re skirting around the real issue. We’re sitting up here discussing the narratives; we’re not discussing the issue.
Ellis: I think exonerations and the reforms that we have put in place over the years collectively make it more difficult to get an execution. When I put a spotlight on imperfections in the system, it’s harder for a prosecutor to get an execution. I hope these reforms that I’ve advocated—some of which we have passed—I hope they’ve made it more difficult. Because I’m convinced somebody’s going to look back at us in 25 years and ask, “What the hell were they doing?” Most of [the wrongly convicted] are poor, most of them are black.
Graves: And mentally retarded, losing their minds.
Watkins: Let me ask you this [to Graves]: When I was campaigning for DA, I ran somewhat on the issue of innocence. So when I got elected, I had to prove the thesis. So now here you are, you’ve been exonerated. And you were on death row, and you have a voice—you’re in a position where people will listen to what you say. And you’re saying that we should get away from capital punishment in Texas because we could make a mistake? Prove it.
Hall: How can you prove somebody innocent?
Graves: Here’s the proof. You tried to kill me twice.
Watkins: Yeah, but you’re one.
Graves: But one is one too many, ’cause my mother would have never gotten me back had you killed me. I understand exactly what you’re saying. You’re being real about our whole system and that you really have to go out there and prove it to change the mentality about it all. And I understand that, but if I have to go and prove it, that means we’ve got a bigger problem.
Acevedo: Let me tell you, you’re a better person than me—you’re a better man than I am. If I were you, I couldn’t be sitting at this table.
Graves: I have to be at this table.
Hervey: We could never apologize to you enough for what’s happened, but hopefully you know that we’re trying to make a difference.
Graves: Yes, ma’am, I surely believe that.
Acevedo: What you need to understand is that one Anthony at a time, we build a case. Every single one that we identify is one step closer to tipping the scales of justice. We’re here right now. We’re a few more egregious cases away from people finally taking a step back and saying enough is enough.