Would a new state commission finally keep us from throwing innocents in prison? 

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Gilbert Valdez, then 17-years-old, had been friends with the girl for over a year. Just days shy of her 16th birthday, she, like Valdez, had a rebellious streak; on probation for stealing a car, she was a frequent runaway, while Valdez briefly ran with a local street gang. The two had had sex before.

The night of June 16, 1996, the girl phoned Valdez saying she'd boosted a bottle of Bacardi from her parents' liquor cabinet. They got drunk and cruised around San Antonio. The night was a blur, but at some point, they both think, they had oral sex in the back of Valdez's car. Later, amid the revelry at a friend's house, some older man took the teenage girl into a dark bedroom and raped her. When Valdez dropped her off at another party somewhere along Broadway, another older man raped her.

The next day, the girl called Valdez, asking for a ride to the hospital. Records from University Hospital state the girl "reported 2 males she didn't really know raped her." A nurse's note says the sexual encounter with Valdez was "consensual." The girl later gave a 10-page statement to police restating that two strangers, not Valdez, raped her.

Still, Valdez was arrested almost a year later for the incident, charged with sexual assault of a child. Valdez's defense attorney, his father, knew nothing of the girl's statements to police or doctors before he urged his son to plead guilty and take a deal to avoid a long prison term. Those exculpatory records didn't surface until last year, months before Valdez was cleared of the crime and his name finally stricken from the state's sex offender registry.

Over the past 25 years, well over 100 Texans have been exonerated. Of those, 47 have been cleared through DNA testing, the most nationwide. This legislative session, state Rep. Ruth Jones McClendon has revived a decade-long fight to establish a commission studying how and why these innocents were wrongfully thrown in prison.

McClendon's current House Bill 166 would create the Timothy Cole Exoneration Review Commission, named after a Texas Tech student who died in prison 13 years after being convicted of a rape DNA evidence later proved he didn't commit. Under McClendon's bill, governor-appointed commissioners would investigate cases in which a post-conviction exoneration has been granted, searching for how the system failed, whether through suppressed evidence, prosecutorial misconduct, ineffective public defenders, or junk science deployed in court. The commission would refer misconduct to the appropriate body, whether the State Bar or even the state's Judicial Conduct Commission.

The bill also calls for the exoneration commission to review every writ of habeas corpus, the legal mechanism for prisoners to challenge their convictions, filed with the Court of Criminal Appeals — McClendon says about 3,000 are filed each year.

While McClendon's similar bill failed two years ago, recent high-profile exonerations appear to be boosting support for her commission.

Prosecutorial misconduct appears to be behind the wrongful conviction of Michael Morton, who spent 25 years in prison for his wife's murder. Morton's lawyers have argued that his prosecutor, now sitting Williamson County state District Judge Ken Anderson, deliberately withheld key evidence that would have exonerated him. After years of legal wrangling, Morton's lawyers gained access to test a crucial piece of DNA evidence that proved him innocent. Morton was freed in October 2011; another man is now awaiting trial for his wife's murder.

In his biannual State of the Judiciary Address last week, Texas Supreme Court Chief Justice Wallace Jefferson referenced Morton's ordeal in calling for lawmakers to support McClendon's exoneration review commission. Such cases, he said, "leave us with the distinct impression" that we have a broken system of justice. "If innocent people are rotting in prison for crimes they did not commit, we certainly have not achieved justice for all," he said.

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In an emotional hearing before a House committee last week, McClendon's bill garnered glowing support from fellow lawmakers.

Referencing the numerous exonerees who lined up to testify in support of the measure, state Rep. Steve Toth, R-The Woodlands, said, "We owe them a great deal to make sure that this doesn't happen again."

Rep. Terry Canales, D-Edinburg, was more blunt.

"If somebody wrongfully convicted me, and I spent that much time in prison, they would be able to legitimately charge me with arson because I'd wanna burn the courthouse down," Canales said. If a state commission manages to "save one person one day from being incarcerated wrongly, then it's done its job," he said.

Texas ranks third in the nation, behind New York and Illinois, for the total number of prisoners exonerated, according to a database compiled by the law schools at University of Michigan and Northwestern University. Those exonerations, however, have been radically uneven across Texas counties. Dallas County, whose district attorney in 2007 set up a Conviction Integrity Unit to re-investigate potential innocence cases, has so far exonerated 49 convicts, according to the registry's count. The state's metro hubs of Harris, Travis, Tarrant and El Paso counties have all exonerated more prisoners than Bexar County.

Gilbert Valdez, one of only two known to have been exonerated in Bexar County, was initially represented by his father, local personal injury lawyer Lucio Valdez, who had no experience in criminal law. Valdez pleaded guilty to sexual assault in exchange for a 10-year deferred sentence, avoiding a prison term of up to two decades. Valdez's father declined to comment on the case, saying his son "just wants to put this all behind him." Valdez couldn't be reached for comment.

Years after his conviction, Valdez rekindled his friendship with the girl authorities claimed he assaulted, says Stephen Smith, the local attorney who handled the case on appeal.

"Several times they went down to the DA's office to try to tell someone Gilbert didn't do this," Smith told the Current last week. "Of course, totally oblivious to how the system works, they thought that was all that was needed. … Nobody helped them, and for a while they gave up in frustration."

Valdez again sought to clear his name four years ago when he couldn't find work due to his sex-offender status.

"When I finally looked at the investigation file, it took me all of ten minutes to figure out, good God, this case never should have been filed," Smith said. "It's like no one actually read this file carefully at any stage — not his lawyers, not the DA, not the police, and certainly not the grand jury that indicted him."

In Valdez's writ of habeas corpus petition, Smith argued that inadequate legal assistance and Bexar County's failure to turn over exculpatory evidence — the girl's statements to police and hospital workers — resulted in Valdez's guilty plea. At an evidentiary hearing in 2011, the victim again testified that two other men, not Valdez, raped her.

Valdez's conviction was overturned and charges were dismissed last year.

Michael Alvarado and friend John Brown III were out cruising when they pulled into a local H-E-B parking lot the early morning hours of May 4, 1998. As they neared an intersection, a white car pulled up and a man emerged. He walked over to the driver's side window, briefly argued with Brown, then shot him in the chest. Brown's car shot forward as he slumped over the steering wheel, his foot lodged on the gas pedal.

Brown died at the hospital.

Alvarado initially told police the gunman was a black man, somewhere between 5 feet, 7 inches and 5 feet, 9 inches tall. When Brown's grieving mother later saw a police sketch that aired on TV, she drew up a sketch of her own. When months passed without a lead in the case, she started flashing her sketch of the suspect everywhere she went. During a hospital visit, a nurse thought she recognized the drawing as Andre Haygood, a 24-year-old suspected gang member with prior convictions for drug possession, assault, and burglary.

Haygood was charged with murder after Alvarado picked him out of a photo lineup. Police showed Alvarado a dated photograph of Haygood, and never told him Haygood, at 6 feet, 3 inches, was considerably taller than his initial description. Years later, Alvarado would testify he was "shocked" to see Haygood was so tall when he entered the courtroom at trial.

Prosecutors insisted Haygood killed Brown during a botched carjacking attempt, while Haygood's family testified he'd been fast asleep with his kids the night of the murder. During his raucous 2002 trial, one of Haygood's defense attorneys was thrown from the courtroom and briefly placed in a holding cell. When Haygood was convicted and sentenced to life in prison, one family member shrieked in the courtroom, according to an Express-News account at the time, while another a family member gave jurors the finger.

Months later Haygood filed a motion for a new trial when local inmate Lucas Huckleberry came forward claiming a fellow inmate, Sean Jones, told him he knew Haygood wasn't the shooter.

Huckleberry testified that he and Jones were watching TV at the Bexar County jail when news broke of Haygood's murder conviction. Jones, Huckleberry claimed, told him that he was on the scene and saw a friend shoot Brown that night.

At a hearing, Jones invoked the Fifth Amendment and refused to answer questions, and Haygood's motion for a new trial was denied. The case bounced between federal and state courts for years until, in 2006, a federal judge ordered the state to hold a hearing to determine the legitimacy and scope of Jones' Fifth Amendment privilege, says Haygood's appeals attorney Julie Pollock.

At that hearing, the sole witness, Alvarado, admitted that Jones looked more like the shooter than Haygood. Alvarado also testified that Huckleberry, the inmate who heard Jones' jailhouse confession, provided details of the murder that had never been publicly revealed. Alvarado was convinced that Haygood wasn't the shooter.

"This was a one-eyewitness case," Pollock said. "The conviction hinged on that sole eyewitness … And, of course, eyewitness testimony is notoriously bad."

State District Judge Maria Teresa Herr ordered Haygood's conviction overturned in late 2009. The Texas Court of Criminal Appeals upheld Herr's decision nearly a year later. By March 2011, the Bexar County DA's office officially dropped charges and Haygood was released.

"Twelve years is a long time to be gone for something you didn't do," Carla Haygood, Andre's wife, told the Current last week.

Andre was diagnosed with post-traumatic stress disorder shortly after his release from prison, she said. "We both knew he wasn't adapting well," Carla said. "Being in prison that long, there were definitely parts of him that changed for the worse. … He was leery of people, sort of paranoid."

Tensions boiled over on November 20, 2011, just months after Haygood was exonerated. Called out for a domestic disturbance, a police report states officers found Haygood bleeding heavily in his driveway. They found Carla carrying her 7-month-old son and two knives, mumbling about how Andre had violently erupted, believing she'd cheated on him. Andre held her hostage, threatened and beat her much of that morning, Carla told police.

Haygood was convicted of assault, and is currently serving an 8-year sentence. "I really believe that previous incarceration, being in prison for something you didn't do, Andre wasn't able to get over that," Carla said. "I blame a lot of his behavior on that."

**

University of Texas-Arlington social work professor Jaimie Page, director of the Dallas-based Texas Exoneree Project, told a House committee last week that many exonerees face lasting psychological problems because of their long, unwarranted prison stints, saying studies show "the PTSD associated with wrongful convictions is equivalent to people who have served in wartime combat."

Other exonerees who testified spoke of struggling to cope with their wrongful convictions. Johnny Pinchback, a Dallas-area man convicted after he was misidentified in a police lineup, spent 27 years behind bars for the rape of two teenage girls. His father died of cancer while he was in prison. "That's awful," he told lawmakers. "I didn't get to see him for the last time."

Christopher Scott, wrongfully convicted of murder due to faulty eyewitness testimony, told lawmakers, "It's a miracle that I'm standing here in front of y'all. I could have been dead."

Given the outpouring of public support already seen from lawmakers this session, McClendon's exoneration review commission seems destined for passage. Among those critical of the bill, to some surprise, is Jeff Blackburn, Innocence Project of Texas' founder and chief legal counsel. Blackburn told the Current earlier this year he fears the commission would provide lawmakers an excuse to turn away from real problems plaguing the criminal justice system.

"Legislators can't get anybody out of prison," Blackburn told the Current recently, saying lawmakers should instead boost funding to innocence projects and law school clinics that actually unearth and appeal problematic cases. "What we need is muscle, and money, and government backing to actually get this work done," Blackburn said.

Shannon Edmonds, director of government relations for the Texas District and County Attorneys Association, also took issue with McClendon's legislation. Edmonds questioned whether an exoneration review commission is even needed, saying innocence projects at the state's law-schools already file reports for each case they work — it's worth noting that many of the state's exonerations haven't come from those law schools, and therefore haven't had similar review.

Edmonds also worried any exoneration review commission would become "politicized," referencing the state Forensic Science Commission, which Edmonds claimed was hijacked by death penalty foes soon after its creation.

"What we saw when it (the FSC) was created is it immediately became a vehicle for attacking the death penalty," Edmonds told lawmakers last week. "If you're worried about it being politicized, if you're looking for that mythical innocent person who has been executed in Texas, this could be a vehicle to do that if groups wanted to politicize this commission."

Edmonds was referencing the contentious FSC hearings over the case of Cameron Todd Willingham, whose conviction and 2004 execution was based on now-discredited arson science.

Columbia University law school professor James Liebman and a team of students last year published a report on another, to use Edmonds' term, "mythical" case, presenting a strong argument that Texas in 1989 wrongly executed Carlos DeLuna, who was sentenced to death for the killing of a Corpus Christi gas station attendant.

There's also the local case of Ruben Cantu, a San Antonio special ed student executed in 1993 for a crime he almost certainly did not commit — a key witness claimed police pressured him to implicate Cantu, and later recanted his trial testimony to the Houston Chronicle. In his 2010 TED talk, former Bexar County DA Sam Millsap, who prosecuted Cantu, explained how the case has made him oppose the death penalty.

"When I reviewed the evidence … I was shocked at what I saw," Millsap said. "I realized that I had made a horrible mistake in judgment. I had prosecuted a young man and sought the death penalty on the basis of the testimony of a single eyewitness."

If Texas this year executes Larry Swearingen for the kidnapping, rape and murder of a teenage Montgomery County girl — despite growing scientific evidence that Swearingen could not have committed the murder — then Texas could have another such case under its belt.

Pushing her bill at a committee hearing last week McClendon said, "We have a responsibility to change the criminal justice system in Texas to bring a halt, to stop this outrageous miscarriage of justice." She repeated that her bill has "absolutely noting to do with the death penalty."

Cory Session, brother of Timothy Cole — McClendon's bill's namesake — and policy director for the Innocence Project of Texas, appealed to lawmakers last week, saying exonerees and their families deserve answers that only an exoneration review commission could provide.

"Somebody somewhere needs to tell us why" Cole was convicted, he said. "I hope that one day we will know why, and we can hold those people accountable who are actually responsible for those wrongful convictions."

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