“I Believe It’s a Heroic Calling”
A conversation with the criminal defense lawyers of the year.
Defense lawyers get a lot of grief for a lot of reasons: they thrive on technicalities, they charge high fees, they advocate for the obviously guilty. They don’t get much credit for working the system pro bono to free the innocent. On June 12 the Texas Criminal Defense Lawyers Association did just that, honoring two longtime lawyers, Mike Ware and Keith Hampton, with the Percy Foreman Lawyer of the Year award at the twenty-seventh annual Rusty Duncan Advanced Criminal Law Course in San Antonio.
When their names were called, the crowd, made up mostly of other defense lawyers, stood to give Ware and Hampton a lengthy ovation. Their work had helped free six innocent people in 2013. Fran and Dan Keller—an Austin couple infamously convicted of ritually abusing children at their day care center—were released in November after spending 21 years in prison for a crime they didn’t commit. That same month, the “San Antonio Four”—Elizabeth Ramirez, Kristie Mayhugh, Cassandra Rivera, and Anna Vasquez—made national headlines when three of them were set free after spending roughly fifteen years behind bars for sexually abusing a young girl (Vasquez had been paroled the year before), a crime they were wrongfully accused of.
Hampton, who is based in Austin, began working for the Kellers in 2010 when he filed a writ of habeas corpus that included an affidavit from the doctor who had originally testified that a hymen tear was proof that two young girls under the Kellers’ care had been raped; “I was mistaken,” the doctor said. Three years after filing the writ, the Kellers were released on bond, and now they await the outcome of their writs before the Court of Criminal Appeals.
Ware, who works out of Fort Worth, took on the the San Antonio Four case in 2011 and brought in Hampton to represent Ramirez, who had been tried and convicted separately from the three other women accused of sexually abusing Ramirez’s niece. Hampton and Ware filed writs of habeas corpus for all four women, who, in a similarity to the Keller case, were convicted of the crime after a medical expert testified that a hymen scar indicated rape. The pediatrician who made the original diagnosis in the trials acknowledged that she too had made a mistake. The San Antonio DA agreed to release the women on bond, and they also await final say-so on their writs.
Senior editor Michael Hall interviewed Ware and Hampton for the TCDLA, which gave permission to Texas Monthly to publish the final version. What follows is a transcript of the interview, which has been edited for clarity.
Michael Hall: Mike and Keith, congratulations on your awards. Let’s start off by talking about why you guys got into criminal law. When I was in law school, most of my fellow students wanted to go for the money—they all wanted to go into civil law. Why did you guys want to go into criminal defense law?
Mike Ware: It was really the only area of the law that interested me. I gave some thought to doing something else while I was in law school, because like you said, it was the same when I was in law school. Everybody was interviewing with the big firms. That was their dream, to go with Fulbright & Jaworski or Vinson & Elkins—which, to me, sounded like a fate worse than death. I got into it because it’s what interested me. I believe it’s a heroic calling, being a criminal defense lawyer.
Keith Hampton: I was working for a state senator when I was in college, and he asked me, “Keith, you ever thought about going to law school?” I said, “With all due respect, Senator, there’s one place that you will never find me, and that is in a law school.” Because I hated lawyers. But then a guy hit my car. I got obsessed with liability, read the torts hornbook and went, “This makes total sense.” And the DTPA, Deceptive Trade Practices Act, had just come into existence, and I decided I would be a consumer lawyer, I’d go to law school and become a plaintiff lawyer and sue on behalf of consumers. I took every torts class, I liked criminal law, but I still was viewing myself as going to be a plaintiff’s lawyer. I went into private practice and found myself working on $500 “the-cops-beat-me-up cases,” and the money cases, I couldn’t get excited about. It was paper, it was dry, and that’s when it hit me: I love this other stuff. What happens to poor people is just amazing. I pared down my civil practice, worked just on criminal law, and that’s what I’ve been doing since.
MW: I initially got interested in law school when I was a shuttle bus driver at the University of Texas at Austin. We went on strike in 1976, and we had some scuffles on the picket line—actually got in a couple of fights and got arrested. But anyway, after all that, we ultimately won the strike, but it wasn’t because of anything we did. It’s what Dave Richards, our lawyer, did. He represented us pro bono. He won the case for us at the Fifth Circuit. I realized we got banged up, we got scraped up, but ultimately it was the lawyers that won it for us.
MH: A big connection between you two is your interest in innocence cases. Like it or not, you guys are both considered innocence lawyers now, and that obviously has a lot to do with why you got this award today—your work for the wrongly convicted.
KH: I think we bristle at the idea that we’re innocence lawyers. That typecasts us and limits us. I think we are “hymen lawyers.” [laughs] We joke around with that, because these cases—the San Antonio Four and the Kellers—that was the so-called science of the time. All these doctors thought that what was a normal variation on a hymen was a tear, and then went into court and got all these people convicted on the basis that these were tears to the hymen.
MH: Keith, you worked on what, in retrospect, was one of the very first of these innocence cases, the Lacresha Murray case [in which an eleven-year-old Austin girl was accused and then found guilty of stomping a toddler to death]. That was in the mid-to-late nineties, when you were a young lawyer, just getting into criminal law. How did that change your view of the law and did it solidify what you wanted to do?
KH: You’re right about that—that case did solidify everything for me. Actually, my first case was not the Murray case, it was a case in Williamson County. It was an innocent man; I found the guy who did it, I got his confession—sat down with him at the kitchen table, and he confessed. And then I got the case dismissed against my client and thought, “Wow, my first case in my career and the guy was innocent. What are the odds of that ever happening again?” Because I had the mind-set that a lot of us did at the time, which is that the justice system was pretty good about figuring out who committed crimes. So I thought, “Wow, what a fluke.” And then I had another one, and another one, and then Lacresha Murray, who was the youngest person ever accused of capital murder, she was eleven, accused of stomping to death a two-and-a-half-year-old girl. I’ll never forget when I first met her, walking in and expecting to see this demon child. And it didn’t take five minutes to see she didn’t need to be here. My co-counsel was Linda Icenhauer-Ramirez, and I remember we looked at each other like, Oh my god, is this happening? I got deeply into it, and it ended well, though it took too long, unfortunately, because she basically grew up in juvenile detention. Long story short, I found a medical examiner with a big microscope that could take pictures, so I blew ’em up, went to the DA’s office, showed it to him, and said, “This is scientific proof she could have had nothing to do with it. Knock yourself out, find any expert, anywhere.” And they agreed, and they dismissed, and she’s been free ever since.
MH: Your latest case was Dan and Fran Keller. There was a lot of time in between those two cases—how did you change in your approach to dealing with these kinds of innocence cases, between Murray and the Kellers?
KH: The law developed, for one thing, cases like Herrera, Schlup, Elizondo, and then some other cases. Getting in early on cases where I deal with someone, and I conclude this person is innocent. I try to not enter the publicity world if at all possible—maintain control of it and try to keep them from harm’s way. Lacresha was a little different. Fran and Dan were just straight up two aging people in prison who needed to be out. In that case, just reading the transcript and realizing the hysteria that was well-reflected in Gary Cartwright’s story in Texas Monthly back in 1994 and in Jordan Smith’s article in the Austin Chronicle in 2009, they hit the nail on the head. I had no way of knowing that, till I read the record and went, Oh, dear god. Then reading the police report and seeing just how thoroughly people were believing that there was satanic activity going on, magic planes to Mexico and all this crap.
MH: The Kellers were kind of like the lost people. Most of the people imprisoned in the satanic ritual abuse cases of the nineties were freed long ago, but there was always that couple from Austin that was still in prison.
KH: When I filed the writ, I got all sorts of calls from lawyers, mainly family layers, and they all said two things. One phrase I heard again and again was, “I thought they were out. I’m stunned they’re still in.” And then the other, they would say they were “haunted by the case.”
MH: Mike, you put out your shingle in Fort Worth, and you were a criminal defense lawyer for a long time. What was it that made you, in 2007, decide to go to work for the Man, the Dallas County district attorney?
MW: Number one, before we go too far down that road, I don’t think Craig Watkins is “the Man” in the traditional sense of the word. He was an outsider. He was sort of the anti-Man district attorney. To this day, he’s still the only African American district attorney ever elected in Texas, anywhere. He was an outsider, and I did not know him when he got elected. Since I practiced in Fort Worth, I did have some cases in Dallas. Dallas had had a terrible reputation in the district attorney’s office, which I’d been hearing about since law school. Then, when I started practicing law in the mid-to-late eighties, Dallas County started having these high-profile exonerations, even back then. Mostly they were exonerated through media scrutiny. There was Joyce Ann Brown, there was Randall Dale Adams, there was Lenell Geter. Those are names that most people have forgotten about now, but those were huge cases, and they were all 60 Minutes episodes. Pre-DNA. So at first, when Craig got elected, I kind of watched with amusement, as everybody in the courthouse seemed to be headed for the hills. Be on the last helicopter leaving the American embassy in Vietnam, the laws were gonna come tumbling down because this outsider had been elected to this very powerful position. To me, that was just kind of entertaining to watch, that whole phenomenon. And then it got real serious, because it became obvious to me he was sincere about changing the image of the Dallas County district attorney’s office, about reforming certain things. He hired a good friend of mine, Terri Moore, to be his first assistant—really to run things. She’s the one that talked me into coming over there and heading up the Conviction Integrity Unit, which is a term she coined. It seemed like an intriguing idea. It turned out to be a great experience. But I never intended to be over there for any length of time. Neither did Terri, for that matter, and we were candid and up front with Craig about that from the beginning. I think we both intended to stay about two years, and we both ended up staying four years. She was actually there a little before me, so she was there four and half years, I guess.
MH: What was your role—to actually go out and seek these cases, or to vet the cases that had already been brought up as being problematic?
MW: I was fortunate in that my role was whatever I made it. I was given a lot of authority. I was supervisor of the appellate division, and I had several other supervisory responsibilities, one of which was being head of the Conviction Integrity Unit. I was given a full-time investigator, another lawyer working under my direction, and a full-time paralegal. In all candor, we didn’t know where it was going to go. We didn’t know if we were even going to find one innocent person.
MH: It was untried territory, nobody had ever done this kind of thing before.
MW: It was. We knew Dallas County. We started looking into cases—who knew what we were going to find, you know? It was interesting from that standpoint. But we weren’t under any pressure to find innocent people. We just were going to go about and investigate the interesting cases that were brought to our attention or that we found, and let the truth take us wherever it did. Things evolved from that standpoint.
MH: What was your most memorable case? I believe there were fifteen exonerations you worked on?
MW: The media always wants the exact number. I put it at fifteen, there’s probably another fifteen that I could say. But somebody somewhere would want to argue that one of those thirty was started before I got over there, or five of those thirty, yes, we started it, but they were exonerated after I left. So I put it at fifteen, just to avoid any controversy. But every one of the fifteen is a Michael Morton story. Morton, for good reason, has gotten all this publicity and got a law named after him, and it’s an incredible story. But every one of these fifteen has a story every bit as incredible in its own way. One that comes to mind is the one false confession case that we had. It was a young man named Stephen Brodie, who was convicted by the Richardson Police Department out of Dallas County. He was a deaf kid, deaf since infancy. In looking at the case, it became obvious, without going into all the details, that the Richardson police had no evidence on this kid. None. They had him in custody for some minor offense, burglary of a coin-operated machine or something. I think they just decided they had this deaf kid there that was a little bit unusual, and they were going to get him to confess to this horrible crime that he had nothing to do with. After nineteen hours of interrogation, he finally made some admissions. I wouldn’t even call it a confession, but they kept calling it a confession. He made some admissions, which he later recanted. He ended up taking a deal, because the motion to suppress the confession was denied, as most of them are. He took a deal for five years. His father wrote us, and we started looking into the case, and it became obvious not only that he didn’t do it—it became obvious the guy who did do it. So we did both. We exonerated Stephen and we indicted the guy who did do it, in two different cases. He had committed an identical crime two other times as well, really three other crimes. This is 1989, 1990. He was just recently, in December of 2012, convicted in both cases and got life sentences in both cases.
MH: That’s great, because you guys had two roles. You weren’t just trying to free innocent people, you were also trying to catch guilty ones.
MW: They’re very much intertwined.
MH: Let’s bring this up to the modern-day with the San Antonio Four case, the case that both of you worked on. Four women who were sent to prison in the late nineties. Mike, can you talk about this, how you got on this case and how you brought Keith into it?
MW: Right after I left the district attorney’s office in 2011, Sam Gross, who’s a well-known law professor out of University of Michigan law school, called me about the case. We had worked with him pretty closely when I was in the DA’s office on some projects in research and data collection that he was doing. He told me about the case. He said, “There’s only one thing I can absolutely guarantee you, and that is you will never make a dime off the case.” That’s turned out to be true. [laughs] But he described the case for me, and coming from Sam, I knew there was something to it. His main source of information was Debbie Nathan, who’s a journalist who’s written quite a bit about that general subject. She knew quite a bit about this particular case. They pointed me in the direction of Michelle Mondo, who had done an extensive article on the case for the San Antonio Express-News, a well-researched article. I went and made the time to visit all four women in their various places of incarceration. My reaction was kind of like Keith was talking about with Lacresha Murray. You read about this alleged horrible crime that was supposedly committed by four women, and the first thing I was thinking was, I’ve never heard of a crime like that. The accusations themselves seemed preposterous. So you’re wondering what kind of person you’re going to meet when you go to the prison, and it turned out I met four amazing women—gracious, intelligent, logical, straightforward, sensitive, and deeply hurt and upset that they had been convicted of this crime, this horrible crime that they were absolutely innocent of. That’s how I took on the case, became interested. Keith and I knew each other. I work with a lot of lawyers that talk a lot, but I needed a lawyer who was actually going to help me do some of the real work on the case, because there is a lot of real nuts-and-bolts work that needs to be done on these kinds of cases. So number one, I needed a hard-working, smart lawyer, one that was crazy enough, like me, to do it for free. I thought Keith might be the guy, and I was right.
MH: And Keith, you worked with Elizabeth Ramirez, who was the purported ringleader, the first one convicted.
KH: Yes, when Mike brought me in, which he did fairly suddenly—“Could you read this record and tell me what you think? I want to run this by you. Did you visit the website?” And I wasn’t fully on board, totally committed, till he said, “Let’s go out to the unit and meet Liz.” It was exactly one of those moments, I’ll never forget it, when I asked her, “Why would your nieces accuse you?” And she had this flash of a woman who had been driven mad about that question, trying to answer it for herself: “I don’t know.” I was sold. I took her case because she was tried separately, the other three were tried together.
MH: A lot of these cases are DNA cases, a lot of the cases that Mike worked on in Dallas County in particular. How are lawyers going to find innocence cases now when most of the DNA has already been tested? I would think you have to investigate other kinds of science, like the science of hymens. And you’ve got to figure, if there are these two cases, there have got to be more cases out there like this, doctors and experts who made good-faith judgments about hymen tears back in 1981 or 1991 or whenever.
MW: I do give them the benefit of every doubt, that they made good-faith judgments, though I think with these scientific experts there’s a whole lot of just wanting to jump on the prosecutorial team and get the bad guy. Sam Gross, who I mentioned earlier, has the definitive collection registry of exonerations across the nation, the national registry of exonerations that came in 2012 or 2013. You can go on the website. They’re categorized, you can click on them, get a profile of each one, how it worked, etc. And he comes out with periodic updates. The most recent one that I read was about 2013, and there were 87 exonerations in 2013. Texas led the way with thirteen. DNA exonerations were down, but they’ve always been the minority for every year. DNA exonerations have always been less than exonerations that did not involve DNA.
KH: I think there’s an awful lot of innocent people sitting in prison on injury-to-a-child charges, and a lot of them have life without parole sentences. Killing a child under six is a capital crime, and prosecutors waive the death penalty so a defendant gets life without parole. It’s all about injuries to a baby and the trauma that a baby can endure. To a prosecutor who wants to advocate for guilt, it looks like the defendant pounded on that child, when in fact the science will tell you that maybe such a beating will do it, but so will an accident. I believe there are a lot of people in prison who are there for what was an accident and then maybe some bad behavior afterward: panic, running, lying to the doctor when they arrive, things like that. So will they be exonerated? It’s going to be tough. And our clients are not out of this picture. They’re not exonerated, they’re just free right now, which is great, but they deserve to be—
MH: You’re talking about the San Antonio Four?
KH: And the Kellers. They’re not out of the woods in terms of—I don’t think anybody’s going to be re-prosecuted, any of these folks, but they deserve to be exonerated. It’s our burden to do it. We came up with some creative ways to work this process, a private lawyer working with the Innocence Project. We do the work, the lawyer work, and they contribute the support. So when we get into a corner or something, we go to them and say, “This is where we’re at, we need some help, can we draw on some resources here?” That’s exactly what they’re doing, so we’re actually developing a model for how you do it and these will be the relationships between innocence clinics and the crazy lawyers who are going to go ahead and march into these cases.
MW: That’s the only thing wrong with that model as it exists right now, it requires lawyers to work pro bono. Which I’m willing to do, Keith’s willing to do, but I guess it’s questionable how sustainable that is over the long term.
MH: You guys do have clients you can bill, right, to pay for your pro bono work?
KH: Next question? [laughs]
MH: Both of you do a lot of legal work outside the courtroom—Mike, you’re on the board of the Innocence Project of Texas, Keith you were the legislative director of the TCDLA. And though Texas has a “hang ’em high” reputation, we have—for all kinds of reasons, some of them connected with you guys and your outside work—one of the most enlightened criminal justice systems, from the Fair Defense Act and the Chapter 64 post-conviction DNA testing back in 2001 to the Tim Cole Act and the Tim Cole Advisory Panel to the Michael Morton Act and Senate Bill 344, the “junk science writ” law, this last year. Is it overstating it to say that Texas is actually pretty enlightened when it comes to criminal justice?
KH: Texas has done well primarily because we have the worst scandals. We have a Forensic Science Commission because of the Houston crime lab scandal. We have a corroboration requirement for undercover cops because we had the Tulia tragedy, Tim Cole because we let an innocent man die in prison, the Fair Defense Act because we had a sleeping lawyer who killed his clients, and so on.
MH: Mike, you helped bring a lot of these exonerees—guys who had their lives destroyed—to talk to members of a conservative Legislature, and it helped push a lot of this legislation through.
MW: I’d never worked with the Legislature before, but in the 2009 and 2011 sessions, I was the Dallas County DA’s liaison at the Legislature. I think it was a perfect storm of a number of things. It was very unusual, for one thing. It took everybody aback to have somebody from the Dallas County DA’s office come down and advocate in favor of some of these criminal justice reforms, such as changing the way eyewitness identification was being done. The number of exonerations that were coming out of Texas was very high, and I think the Innocence Project of Texas and maybe others were very good at organizing that energy and that profound sense of injustice that had been done to these men. I think in every instance at that point, it’d been all men, who had then come down to testify to these committees, some of them very eloquently, all of them very powerfully, in favor of these reform laws. To stand up and say, “Had this law been in effect, I might not have been wrongfully convicted, but I was wrongfully convicted and I spent twenty years in prison”—to be able to see and hear these men, I think, had a lot to do with lawmakers who otherwise would have knee-jerk voted for whatever the prosecution and police told them to vote against, to actually listen to this. And I think that’s what helped get a lot of this done.
KH: I remember the evolution over the past fifteen years or so. It started out with, “Oh, we’ve got an exoneration in Dallas, DNA has cleared this guy.” The reaction from the prosecutors was, “Well, that’s just one.” The second and the third one came, and their reaction was, “This is proof that the system works. We’re done now.” Okay, then there were more—by the time you got to nineteen, the dam broke. Everyone’s like, “I think we’ve got a problem here, because this is an awful lot of innocent people.” And you would be hearing so much more, there would be so many more exonerees, had Houston saved the forensic evidence that Dallas did. I think you’d easily see double, just extrapolating from how often they get it wrong. We know now that we get it wrong an awful lot of the time. So that attitude has changed.
MW: When I started first practicing criminal defense back in the eighties, there was no such thing in people’s minds that somebody who was charged with a crime might actually be innocent. And that’s what DNA changed, that mind-set. It called into question things that everybody had taken for granted—for example, eyewitness identification. A large number of the DNA exonerations obviously had a faulty eyewitness identification, someone came into court and very convincingly said, “That’s the man who attacked me, there’s no doubt in my mind, I’ll never forget it, please, ladies and gentlemen of the jury, do not let this man walk out of this courtroom, because he will do it again.” There’s just so many of those cases where that man turned out to be absolutely innocent. It also, to some extent, changed the way we look at confessions. But I think to an even greater extent, it’s changed the way we think in the criminal justice system, so that in non-DNA cases, people can still have an open mind. So even though there was a positive eyewitness ID—or, in Stephen Brodie’s case, even though there was a confession—if there are enough other factors, we are willing to keep an open mind that this person might actually be innocent. Attorneys won’t give up just because there’s no DNA there.
MH: There have been all these great reforms. What’s the one that still needs to be done?
MW: Recording interrogations, I think.
KH: They are too numerous to list. There are many, many reforms that we need. And we need improvements on some of the reforms that we’ve already passed. We need to put some of those statutes on steroids. Some of the statutes have been blunted by subsequent judicial decisions. I could talk forever about that.