Let the Right Ones Out
Cory Session is busy these days. The Fort Worth native is spending a lot of time in Austin, lobbying the Texas Legislature to make changes in the state’s criminal justice laws. He also speaks often to law school students, both those who want to be prosecutors and those who want to work for the defense. If he can get the next generation of Texas lawyers to change their way of thinking, he figures, maybe future changes in the criminal justice system won’t be so hard.
Session is the public policy director for the Innocence Project of Texas, a Lubbock-based group that works on behalf of prison inmates who believe they have been wrongly convicted. In Texas 43 inmates have been exonerated, based on DNA tests, of the crimes that put them in prison — the most of any state in the country since 2000.
In the 18 years since two high-profile New York attorneys began the first effort to review wrongful convictions, innocence projects have been established in almost every state. This week, the U.S. Supreme Court opened the door a little wider in granting convicted persons the right to seek DNA testing of evidence. And other forms of forensic evidence are also beginning to gain acceptance as the basis of new trials or outright exonerations.
While nearly half of those Texas exonerations have come out of Dallas County cases, Fort Worth is a also hot spot on this issue. Session, who still lives in Fort Worth, is coordinating the Innocence Project’s lobbying effort this session. Law students and undergraduates at Texas Wesleyan University are key components of a statewide network of volunteer researchers on the inmates’ cases. And in Dallas County, where District Attorney Craig Watkins has taken a proactive approach, his two key lieutenants in charge of those investigations — Terri Moore and Mike Ware — have strong Fort Worth ties.
“We think we have an important role in the process,” said TWU law student Taylor Anderson. “And I think when we graduate and start practicing law, we will change how the criminal justice system works in Texas.”
Session said the work of the Innocence Project is as much about public safety as it is about righting the injustices that have sent the wrong people to jail.
“If we have the wrong person locked up, then there is a good chance the person who committed the crime is still on the streets,” he said. “So if a convicted person is able to prove he did not do it, investigators can reopen the case and possibly find the person who did the crime.”
Then there’s Timothy Brian Cole. The Fort Worth native and O.D. Wyatt High School grad was attending Texas Tech University in 1985 when several rapes were committed on the Lubbock campus. Even though he had no prior convictions and though roommates testified he was at home studying when the rape occurred, he was identified by the victim as her rapist, and the jury found him guilty based on that alone. Cole was sentenced to 25 years in prison.
Cole professed his innocence from the beginning and tried numerous appeals while serving his sentence. But DNA science on which most exonerations have been based hadn’t been perfected then, and one appeal after the other was thrown out. Even when another prisoner, in jail on another rape charge, came forward and said he had committed the crime for which Cole had been convicted, no one paid any attention. Cole died in prison in 1999 from an asthma attack.
Last year, Cole became the first person in the country to be posthumously exonerated when DNA testing proved that the other inmate’s claim was true. Gov. Rick Perry signed the order exonerating Cole of the crime. In 2009, the legislature created the Timothy Cole Advisory Panel on Wrongful Convictions to find ways to change some of Texas’ policies and laws to help prevent wrongful convictions in the future and make the appeal process more fair. The changes recommended by that panel are the basis for three bills before the legislature this session, all sponsored by Rep. Pete Gallego of Alpine, chair of the House’s criminal jurisprudence committee.
One bill, regarding changes in how eyewitness identifications are to be handled, sailed through a House committee hearing without opposition. Bills about police policies on recording interrogations and about opening up the appeals process have faced opposition from some police chiefs and county prosecutors.
One more important point about Cole, who would have turned 50 this summer: Cory Session is his brother.
“In many ways, my brother has become the face of the issue of wrongful convictions,” Session said. “When I talk to legislators or the governor or the law students, I always tell them, ‘This could have been you,’ when I show them my brother’s picture.
“We do not blame the rape victim who picked him out of a lineup because she was pretty much pressured into it by police investigators,” Session said. “My family’s goal is to work on this so that it doesn’t happen to anyone ever again. For every great loss, there can be great gain. My brother had that attitude while he was in prison, and it is that attitude that has never left us.”
Until about 10 years ago, Texas inmates, except in very rare instances, had only one avenue for fighting for their legal freedom. Assuming they could afford appellate attorneys or find someone else to pay for them, their cases could be appealed through the normal process of one court after another. But in that process the only thing that could be re-argued was the law: things like whether police, prosecutors, and judges had followed the law; whether laws had been misapplied, civil rights violated, or inadequate counsel provided. There was no legal avenue for bringing new evidence to official attention, even if, say, someone else confessed convincingly to the crime. A few inmates won pardons, but those were as rare as rain in the desert.
About two decades ago, the developing science of DNA began to change sentiments on that score among the public and those in the legal system. For a small but rising tide of inmates, there now was a scientific way — mostly in rape cases — to prove their innocence. In 1992 New York lawyers Barry Scheck (part of the O.J. Simpson defense team) and Peter Neufeld began the first Innocence Project. There are now chapters in 48 states. Since 1989, there have been 269 exonerations in the United States from DNA testing.
The 43 Texas DNA exonerees since 2000 spent a combined 600-plus years in prison for other people’s crimes. One of the most recent to be freed: Cornelius Dupree Jr., who spent about 30 years in prison for a rape conviction in Dallas before DNA evidence showed he was not the culprit.
Since 2000, there has been only one individual from Tarrant County exonerated due to DNA evidence. In that case, Mark Webb was convicted of a 1985 rape based on the victim’s eyewitness identification. According to the Innocence Project web site, he served 13 years in prison before DNA testing proved his innocence.
Texas law didn’t allow appeals based on new DNA evidence until 2001. The state’s chapter of the Innocence Project was founded in 2006, and students at Texas Wesleyan and other campuses went to work. Law students at Southern Methodist University in Dallas, Texas Tech in Lubbock, and three other schools around the state are taking part.
The Innocence Project of Texas estimates there are about 2,000 to 3,000 wrongly convicted persons among about 170,000 state prison inmates. Jeff Blackburn, an Amarillo lawyer who is the founder and chief counsel of the Texas project, said the organization gets about 150 letters a week from prisoners asking that their cases be investigated.
Students at TWU and the other law schools do much of the initial research that helps project attorneys decide which cases to take on.
Last week, Ware spoke to about 50 first-year TWU law school students, giving them advice on what to look for in letters from inmates.
“When they write that the sex was consensual, that isn’t going to hold up in court,” Ware said. “If they claim they had bad lawyering, that doesn’t prove their innocence. What you need to do is research the transcripts and use common sense. Does the evidence make sense?”
Blackburn is working hard on passing the bill that would widen the appeal process. Most criminal appeals in Texas are filed by inmates themselves, because they have little access to attorneys; almost all of those appeals are thrown out. And if a first amateurishly written appeal is tossed, courts seldom allow a second appeal on any grounds.
“We have a system in Texas of reviewing convictions that is entirely stacked against those that are wrongly convicted,” Blackburn said. “The state now allows a second writ to be considered, but only for cases with DNA evidence. But cases involving DNA are only a fraction of the total number. Many of these convictions were based on junk science, and we need to open up the appeals process in other areas.”
Blackburn said major changes have come about in many areas of forensic science, from arson investigations to ballistics to fingerprinting, and that new evidence from those areas should be allowed as the basis for appeals.
But part of the problem is the resources required to reopen old cases. It is costly, and the courts are slammed with far too many cases. “Appeals are often denied without any hearing because no one has the time to hear them,” Blackburn said.
James Lee Woodard was convicted in Dallas in 1981 for the rape and murder of his girlfriend. Witnesses verified his whereabouts that night, and the only evidence against him was that Woodard had gone to his girlfriend’s house earlier in the day looking for her.
For the next two decades, Woodard searched for someone who would consider reopening his case. His first letters, of course, went to longtime hard-line Dallas County DA Henry Wade. “I feel certain if this case had been investigated adequately, this miscarriage of justice would not have occurred,” Woodard wrote.
Wade wrote back in 1983: “A jury of your peers has decided who murdered Beverly Ann Jones. … We do not believe any further investigation is warranted.”
Woodard, now 58, studied the court system and filed his appeals and writs. All were thrown out. But things began to change when Watkins was elected in 2006.
“Craig Watkins would at least listen,” Woodard said. “They had the evidence, and they examined it, and the DNA testing proved I was not the one who did this.” He was exonerated in 2008.
The process of criminal prosecutions will never be perfect. Eyewitness memories fade over time, and prosecutors feel the public pressure to get convictions in high-profile cases. Forensic science changes. And court-appointed defense lawyers often push innocent clients to accept plea bargains rather than take a chance on juries handing down long prison sentences.
Ware practiced criminal defense law in Tarrant County for 23 years. He had founded the Texas Wesleyan unit of the Innocence Project two years before Watkins hired him in 2007 to investigate potential wrongful convictions in Dallas.
Prosecution decisions often have a political element, Ware said: District attorney candidates usually promise voters they’ll be tough on crime, and the more convictions a DA can get, the better his or her record looks.
“Investigating wrongful convictions can make the police and prosecutors look embarrassing, so they fight every appeal case with all their might,” Ware said. What should happen, he said, is that the prosecutor’s job “should be about protecting the public by getting the person who committed the crime in prison. Getting the wrong person doesn’t protect the public at all.”
Since Watkins was elected DA in 2006, Dallas County has been among the leaders in Texas in investigating wrongful convictions. Between 2000 and 2006, the county had had only nine exoneree cases.
“The previous DA staff had seen these nine cases like plane crashes,” Ware said. “But instead of figuring out why these planes crashed, the attitude was more along the lines of, ‘We had a lot of planes that didn’t crash.’ ”
Dallas also retained its evidence in storage much longer than any other county in the state. A law passed two years ago mandated that counties keep crime evidence for 10 years, but prior to that, it was up to the discretion of the local prosecutors. Because Dallas still had the evidence in storage from very old cases, someone like Cornelius Dupree Jr. could be exonerated from his 1979 rape conviction.
Ware said that in Tarrant County, “It is often a crapshoot to find evidence from cases that aren’t even that old. They are getting better, but I doubt a defense lawyer would get anything from old cases like the Dupree case.”
An internal investigation by the Tarrant County DA’s office in 2007 found serious problems with the county crime labs. Inadequacies in DNA analysis, evidence storage, and chemistry and firearms practices were alleged. The solution was to outsource the forensic science and evidence storage. The Tarrant DA’s office concluded that none of these problems had caused wrongful convictions.
Johnnie Lindsey was convicted of rape at White Rock Lake in Dallas in 1982. The victim, who had moved to San Antonio, picked Lindsey out of a photo lineup that was mailed to her. She had told police that the attacker was a black male in his 20s, with no shirt on. In the photo array, four men had shirts on; two, including Lindsey, were shirtless. The victim identified Lindsey as the rapist.
Lindsey was charged and convicted, despite his boss’ testimony that Lindsey was at work when the rape was committed and his timecard that confirmed it. The jury believed the eyewitness testimony over the alibi evidence, and he was sentenced to life in prison.
From jail, Lindsey filed appeal after appeal. “All those were denied,” he said, “but I never gave up.”
Finally, one letter he wrote reached Dallas County Criminal District Judge Larry Mitchell, who agreed that the case should be re-examined. DNA testing excluded Lindsey from the rape. He was freed in 2008, after almost 26 years. On the day he was freed, Lindsey was reunited with his son, who was only two when Lindsey was arrested.
Of the three bills that the wrongful convictions advisory panel recommended, the most important, in the eyes of Session and others, would change the procedure in how eyewitnesses pick out suspects during lineups and mug shots. The bill would mandate further study of the eyewitness identification process and develop model policies that police departments around the state could use.
Numerous studies have shown that eyewitness misidentification is the single greatest cause of wrongful convictions. DNA testing has proven that faulty eyewitnesses played a role in about 80 percent of the wrongful convictions uncovered thus far in Texas.
Another bill would require investigators to tape the entire interrogations of crime suspects and make that recording available to the defense during a trial. So if a suspect spends 10 hours denying the crime and confesses in the last half-hour, the jury could see that.
The third bill would make appeals less burdensome for the convicted. Currently courts are required to hear “new evidence” appeals only if DNA is involved. The change would give judges more leeway to consider new evidence based on other scientific advances as in arson investigations and fingerprinting.
The bill to develop standard policies for witness identifications is also rated as having the best chance to pass in this session when few pieces of legislation beyond the budget and redistricting are expected to make it to the finish line. The proposed model policies would call for police to show a set of lineup photos to witnesses one by one, instead of laid next to one another, which researchers say improves the validity of the process. The policies would allow lineups in which none of the participants are actually suspects. Those presenting the photos or in-person lineups would have nothing to do with the case involved.
A recent study found that only 12 percent of police departments in Texas have any sort of policy regarding how to present suspects to eyewitnesses. Critics of the system claim that investigators often steer witnesses to the suspects the officers believe are guilty.
Jeremy Newton, a psychology professor at Texas Wesleyan, has studied witness identification procedures and coercive interrogation. Witnesses are sometimes encouraged to simply identify anyone in the lineup who looks similar to the perpetrators, he said, and that often translates in the witness’ mind later on to a positive identification. “Even though they couldn’t pick anyone out at their first look, they pick one out later,” he said. “Then it gets burned in their memory, and by the time they get on the witness stand, they are convinced this was the guy and they knew it all along.
“Science has shown that if they make those changes that are being proposed in Austin, eyewitness ID won’t be perfect, but it will get closer than we are now,” he said.
The victim’s identification of Tim Cole was the biggest factor in his conviction. When the Lubbock police charged Cole with the rape, tensions in Lubbock surged.
After high school, Tim Cole joined the Army so that, four years later, he could go to college on the GI Bill. He chose Texas Tech because his younger sister and one of his brothers were studying there. He started classes in January 1985.
The transition from soldier to student was tough. Cole developed a drinking problem but was working hard to quit. And school work was tougher than he’d expected.
In the years before Cole arrived in Lubbock, four rapes had gone unsolved. In all of them, the perpetrator was described as a black male who smoked cigarettes and approached women in parking lots. The man would abduct white women, take them to the ranch land outside of town, and commit the assaults.
Cole, who suffered from severe asthma, didn’t smoke. But he was black, and investigators were looking closely at every black male student on campus. That wasn’t tough — in 1985 only 498 of Tech’s 21,676 students were African-American.
In March 1985, a fifth rape occurred. Students and the administration were scared, and the Lubbock police were feeling the pressure.
In April, Cole went to a pizza joint to pick up a friend who worked there. The restaurant was near where the rapist had stalked his victims, and an undercover female officer was stationed in the parking lot. She saw Cole enter the pizza place, followed him in and sat nearby for a few minutes, then went back to her car.
When he heard that his friend wouldn’t get off work for several more hours, Cole left. In the parking lot, he noticed the woman he had seen in the restaurant, now standing by her car. He asked her if she’d had car trouble and flirted a little with the white undercover officer. It was a short conversation that led to tragedy for Cole.
As Cole talked to her, he told the officer his name and even pulled out an ID with his picture. He gave up on the flirting and left; when he returned a few hours later, she was still in the area. He saw her, chatted her up again, and then left again.
Those two conversations, and his race, were all the police needed to label Cole a suspect. They called him in for questioning a few days later. He was cooperative, even allowing his photo to be taken. When the rape victim was brought in to look at suspects, she picked out Cole’s photo.
“It was unbelievable when he was charged,” said Cole’s mother, Ruby Cole Session, who worked for 20 years as a Fort Worth elementary school teacher. “We got a lawyer, and we thought everything would be worked out. He had no history of criminal behavior. He was always such a good kid.”
The trial started in September 1986. Cole was offered five years’ probation in return for a guilty plea but refused. “He said he wouldn’t plead guilty to something he didn’t do,” his mother said. “He would have to register as a sex offender, and he knew his life would be over.”
The prosecution’s only evidence was the victim’s identification of Cole. His roommates testified that Cole was home studying on the night of the rape, but prosecutors portrayed them as liars who’d been drinking that night. The jury eventually found him guilty, and he was sentenced to 25 years in prison.
Fred McKinley of Burleson, a former criminal investigator for the Louisiana Department of Justice, published a book on the Cole case last year, A Plea for Justice: The Timothy Cole Story. McKinley was given access to the police files and court transcripts and much evidence that had not previously been made public. He was appalled at what he found.
“There was only one piece of evidence linking him to the crime, and that was the victim’s eyewitness testimony,” McKinley said. “The judge shot down every one of Tim’s attorney’s motions. It was as if the prosecutor’s office was bowing to intense public pressure from the city and the school.”
In fact, in the fifth rape case, Lubbock police had interrogated the man who later admitted to being the rapist. But they didn’t pursue Jerry Wayne Johnson because they had already charged Cole with the crime.
“From my perspective, the Tim Cole case has put an innocent face on the problems of eyewitness IDs,” McKinley said. “This case represents the face of everything wrong with the criminal justice system in Texas.”
When the statute of limitations ran out on the Lubbock rape cases, Johnson — in prison on subsequent rape convictions — wrote to investigators that he was the rapist, not Cole. “No one paid any attention to that, and because Tim’s writs had already been thrown out, he was out of options,” McKinley said.
Ruby Cole Session said her son was turned down for parole on two occasions, because he showed no remorse and didn’t admit he did the rape. Frustrated by the process, he never asked for another hearing.
“But he was generally upbeat in prison, always asking how we were all doing,” she said. “It’s still tough for us, and I don’t even have the words to express myself, sometimes. It was hard on our family when he died in prison, and it is still hard.”
“He just kept telling me he wanted to be vindicated, exonerated, and pardoned,” she said. “At least he was able to get that after he died. And I think he’d be proud that his case will be helping others who are wrongly convicted get out of jail.”
In 2009, the Texas Legislature passed the Tim Cole Act, which set the compensation for those wrongly convicted at $80,000 a year for every year they were imprisoned, then another $80,000 a year for life following their release
Lindsey was given $1.4 million up front. “The money is nice, but it hasn’t really changed my life,” said Lindsey, 58. “I had faith in God, and that kept me going, but it was still 26 years of my life in prison. I have the attitude that you have to move on, but I am going to do everything I can to help others so what happened to me doesn’t happen to anyone else.”
In Woodard’s case, his exoneration was spearheaded by the Dallas County Public Defenders Office, but he knows that college student volunteers from around the state are key to getting more of the wrongly convicted out. He comes to Fort Worth often to speak to the TWU students.
“It takes a lot of work to move the process along, and the TWU students do a lot of the grunt work,” Woodard said. “Many of these Texas exonerations wouldn’t have taken place without their work, and we thank them every chance we get.”
At TWU, law school students work mostly with DAs’ offices and criminal defense lawyers. Pre-law undergrads work directly with the Innocence Project, investigating cases and trying to build an accurate database of who has been exonerated thus far.
Natalie Roetzel is the chief staff attorney for the Innocence Project of Texas and a recent TWU law school graduate. She did research on the wrongly convicted while in college and currently works out of the group’s Dallas office.
“Our staff for the Innocence Project of Texas is quite small, four or five people, with some of them being part-time,” Roetzel said. “Without [the students’] research, we couldn’t do the work we do. I work with those undergrad volunteers, and they are very important.”
Right now, the 30 or so undergrads are researching one murder case and a sexual assault case. They are also doing other work, including gathering more information for the database on the individuals who have been exonerated. “We have had 43 DNA exonerations, but I think there are at least that many non-DNA cases,” Roetzel said. “We need to study those other cases and see who was exonerated and why.”
TWU pre-law student Tonya Henderson is trying to contact the 38 people convicted in the famed Tulia drug sting in 1999. Law enforcement investigative techniques were found to be shoddy at best, and a Dallas appeals court threw out the convictions in 2003. The defendants shared a settlement of $6 million, but with the Tim Cole Act upping the compensation, many would be due more money. Thus far, Henderson has found 25 of them. “Some have left the state, others cannot be found at all,” she said.
Henderson and the pre-law students estimate they spend about 10 to 15 hours a week working on cases. “But we really feel we are helping to make a difference, and that makes all the work worthwhile,” she said. “We are doing work that can make actual changes in people’s lives. And along the way, we are learning how the criminal justice system works, and that will help us in our careers when we graduate from law school.”
Ware told the TWU students last week, “Always remember: We are obligated to seek justice, not just conviction. Also, we don’t represent anybody. We are merely seeking the truth. Sometimes that may get someone exonerated, but most of the time we find the prosecutors and juries acted properly.”
The law school students are concentrating on non-DNA cases at
“Most of those exonerated have been rape cases, and DNA testing is important,” said Taylor Anderson. “But there are
so many more cases where DNA is not part of the evidence. What we are learning is to look at eyewitness identification and interrogation methods.
“We can’t just do things the same way because that’s the way it has always been done,” he said.
Cory Session is working on a case these days that doesn’t involve exoneration. It’s about how exonerated prisoners are treated after their release. The case involves Anthony Graves, who spent 13 years on death row for a murder conviction in 1994.
A federal judge threw out the conviction in 2006 and ordered a new trial in Burleson County. Graves sat in the county jail while county prosecutors debated whether to retry the case. Last October, they decided there wasn’t enough evidence, and the charges against Graves were dismissed.
Graves figured he was eligible for compensation under the Tim Cole Act. But Texas Comptroller Susan Combs ruled that Graves wasn’t eligible for the compensation, because the court never proclaimed his “actual innocence.” A dismissal due to insufficient evidence didn’t prove his innocence, Combs ruled.
Graves is now suing the state for the $80,000 he believes he is owed for each of the 18 years he was in state prison and the county jail.
“This is semantics at its worse,” Session said. “Anthony Graves has not been convicted of any crime, so he is presumed innocent. His case was dismissed. This interpretation by the state is ridiculous.”
He’s hoping that the work of the Innocence Project will change that kind of thinking in the future.
“We cannot merely focus completely on getting people out of jail who have been wrongly convicted,” he said. “We also need to put in place the change of thinking so this doesn’t happen as much as in the future as it has in the past.”
“We need not be addicted to conviction in Texas,” Session said. “We need to be addicted to justice.”