Friday, November 04, 2011

Latest Dallas exoneration stems from recantation, withheld evidence

The Dallas News reports today (behind paywall) of yet another exoneration out of Dallas - this time based on  a years-ago recantation by the alleged victim and withheld exculpatory evidence. Wrote Jennifer Emily:
A man who went to prison rather than falsely admit that he was a child molester was freed Friday morning after 14 years behind bars.

State District Judge Susan Hawk said it was “unjust” that he had remained behind bars for years after his stepdaughter admitted she’d lied about the abuse.

Dale Lincoln Duke’s stepdaughter had recanted her claim of abuse in 1992, but at judge at that time apparently didn’t believe her. It was recently learned that the Dallas County District Attorney's office had withheld evidence during Duke’s trial which showed that the child's grandmother thought the child was lying.

After Duke plead no contest to the aggravated sexual assault charges, he was placed on probation, but sent to prison when he didn't admit to the abuse as part of his therapy. Duke, now 60, said Friday that he refused to confess to a crime he didn’t commit because the Bible says, “Do not bear false witness.” ...
The girl first recanted in 1998, but a judge who is no longer on the bench refused to release Duke. Then, in March, the DA's office discovered in their files a note saying that the child's grandmother believed the abuse allegation was false and that the girl's aunt had encouraged the lie.
In most Texas counties this would never have come to light. It's only happening in Dallas because DA Craig Watkins established his "Conviction Integrity Unit" to review old cases. Count this episode as yet another argument why there needs to be some mechanism for holding prosecutors accountable when they withhold exculpatory evidence. Congrats to Duke, his attorney Robert Udashen, and to Watkins' office for having the rare courage to expose errors instead of cover them up.

34 comments:

Anonymous said...

Iam ready for prosecutors to do prison time for their actions of injustice.

Anonymous said...

John Bradley could learn a thing or two from Craig Watkins!!!!!!

ckikerintulia said...

Multiple witness recantations did not save Troy Davis.

Anonymous said...

Our legal system needs broad reform.

Consider also what just happened in a civil federal court in Texas. As described at http://LawInjustice.com, a Dallas business owner was involved in a civil dispute and paid millions of dollars to lawyers, and when he objected to additional fees after settling the case, they had a “friendly” judge seize all of his possessions, without any notice or hearing, and essentially ordered him under “house arrest” as an involuntary servant to
the lawyers. The business owner has been under this "servant" order for 10 months and is prohibited from owning any possessions, prohibited from working, etc..
...and some quotes from the judge:


...and some quotes from the judge:

THE COURT: "I'm telling you don't scr-w with me. You are a fool, a fool, a fool, a fool to scr-w with a federal judge, and if you don't understand that, I can make you understand it. I have the force of the Navy, Army, Marines and Navy behind me."

THE COURT: "You realize that order is an order of the Court. So any failure to comply with that order is contempt, punishable by lots of dollars, punishable by possible jail, death"

Anonymous said...

Way! Way! too much power in the hands of prosecutors. How is this NOT making media headlines?

Don't be so foolish to believe these are isolated incidents. This is everday way of doing business with prosecutors.

Where in the hell is the defense attorney who should have been screaming Foul Play?

Lee said...

Grits, come on. We have a completely perfect system of justice where prosecutors will happily seek justice as opposed to reelection, police are only interested in serving citizens and not making arrests, defendants are always provided with the best legal counsel money can buy, innocent people are never incarcerated or executed and multicolor flying elephants are commonplace.

rodsmith said...

loved this!

"It's only happening in Dallas because DA Craig Watkins established his "Conviction Integrity Unit" to review old cases. Count this episode as yet another argument why there needs to be some mechanism for holding prosecutors accountable when they withhold exculpatory evidence."

Of course you know there IS mechanism to hold them accontable. Once the govt and courts have failed. It's called a VIGULANTE COMITTEE! Texas used to be overrun with them. Might be tiem to bring one back...Just for crooking lieing prosecutors who get a pass by their boddies on the bar and the courts!

If they did nothing else....a good tar and feathering of a few of them MIGHT wake up the rest that it's time to fly right or RUN for the nearest border!

dfisher said...

Craig Watkins is not the person suggested he is in this post. Since 2007 Watkins has prosecuted homicide cases using autopsy reports signed by U.T. Southwestern Medical School professors of pathology, illegally using the title of Dallas Co Medical Examiners.

In 2010, I contacted Watkins Public Integrity Unit to file a complaint to stop this illegal arraignment, but while on hold for the director, they notified Watkins’ First Assistant Terry Moore.

Ms. Moore had my call transferred to her so she could try to convince me what they were doing was legal, but in the end it was Terry Moore who had to concede what they were doing was illegal. It was at that point that I agreed to give her and Watkins no more that a year to address this long running medical examiner scam, but no more than a year.

Ultimately Terry Moore was unable to convince Watkins to put a halt to illegal arraignment and at the end of the year, she and the head of the public integrity unit both resigned.

It was about this same time, (May 2011) that Dr. Barnard was disposed in a Federal Civil Rights lawsuit, wherein he testified, "to be a medical examiner for Dallas County you have to have a co-appointment with the University of Texas Southwestern Medical Center."

The reason Dr. Barnard needs the appointment with the medical school, is the medical school is doing the forensic autopsies for Dallas Co. and using those same forensic autopsies as teaching cadavers, which is exactly what Lubbock Co. and Texas Tech Medical School were doing up until 2008 when I put a stop to it, and what Galveston Co. is currently doing with UTMB.

Medical Examiners under Texas Statutes are county appointed officers, who have sovereign powers of the state, so must execute the anti-bribery statement and oath of office, required by Art. XVI of the constitution. This must be done before they can perform any legal duty of the office.

Dr. Barnard has been using the title of Dallas Co. Chief medical Examiner since 1991, but did not execute the anti-bribery statement and oath of office until July 14, 2011 after I requested proof.

Now since Dr. Barnard is not a legally appointed county medical examiner, filing these constitutional documents constitute a false filing, which is a crime. Since Craig Watkins is both the Dallas Co. Criminal District/County Civil Attorney, he is responsible both the false filing and allowing the autopsy reports to be enter into evidence in criminal cases, and the latter is a third degree felony. So is Craig Watkins the good guy or just another wolf in sheep’s clothing?

Gritsforbreakfast said...

David Fisher, no one is as good as they seem on their best day or as bad as they appear on their worst - not Watkins, you nor me. You can criticize Watkins, and I've done so many times on this blog (e.g., on constable corruption cases, etc.), but that shouldn't prevent acknowledging when he does something right.

As you know, your interpretation of the ME oath requirement is under dispute. I actually tend to agree with you, but until a court agrees it's not a real thing, and even if they do your sweeping generalizations that everyone who disagrees with you on the subject has ill intent across the board IMO aren't justified.

Anonymous said...

Here is another one where the stepdaughter had falsely accused.

http://www.yourhoustonnews.com/cypresscreek/living/judge-overturns-conroe-man-s-child-sex-assault-conviction/article_3398e9e4-04b0-11e1-87a7-001cc4c03286.html

Anonymous said...

Re dfisher's post: To launch into this sort of tangential tirade suggests that there is something going on behind the scenes that goes way beyond a dispassionate concern for administrative correctness, which for a reasonably rational person is all that would be at issue with medical examiners and the archaic anti-bribery oath. And regardless of what one may or may not think about that, the fact remains that for legal proceedings, medical examiners are medically qualified experts in what they do. As such, any non-nut-job court will qualify them as experts to testify about what they did, what they saw, and what they concluded - dfisher's odd tirade not withstanding.

Kevin Stouwie said...

There's more of these out there, lots more I'm afraid.

Anonymous said...

Innocent people will continue to be incarcerated until the legislature steps up and gives statutory teeth to blatant Brady violations. In Victoria, law enforcement officers must sign an affidavit that states all evidence has been submitted to the DA. What a convenient way for the state's attorneys to sidestep their duty to provide all exculpatory evidence to the defense: "Gee, your honor--we were unaware of its existence...sorry."

Here's an excerpt from today's Victoria Advocate highlighting the problem. The defendant has claimed he stabbed the victim in self-defense because the victim used a set of brass knuckles during a fist fight. Until yesterday's testimony, no evidence of brass knuckles in the victim's possession had been produced...

http://www.victoriaadvocate.com/news/2011/nov/04/am_trial_110511_157530/?news

"...Victoria County Sheriff's Office lead investigator with the case, described details surrounding the investigation but, throughout testimony, it became apparent that not all pictures from the scene made it to the district attorney's office. An oversight, Meyers retrieved the photos, which depicted a white truck with brass knuckles in its bed, and submitted them to the court.

Defense Attorney Jerry Clark noted the oversight, as well as a diagram listing key measurements regarding where blood was located, that was not submitted until Friday morning.

Errors were made on a case where my client's liberty and life as he knows it are on the line," he said."


These antics are unacceptable in a modern criminal justice system! Until the players remember that their job is to seek the truth rather than to secure a win, we're all in big trouble.

Anonymous said...

If less emphasis was placed on convictions and more emphasis placed on justice....who knows what might happen.

I'm glad justice is finally raining down on this man and that his parents lived to see it.

Anonymous said...

GritsForBreakfast:

When are you going to look into the Judge William Adams fiasco that is making a mockery of the Texas legal system?

Aransas D.A. refuses to prosecute his buddy, cites statute of limitations, ignores laws that could potentially apply for which statute of limitations has not passed...

County Judge allows Adams to take paid leave hoping furor will blow over...

Authorities instead threaten to prosecute outraged members of public who- in the absence of actual justice - are offering up "street justice" solutions...

Calls for Judicial Conduct Review will result in another charade...

This can only get worse.

Anonymous said...

Watkins established the Conviction Integrity Unit in 2007. They're just NOW releasing this withheld information?

dfisher-
If you can, find out what happened to the investigation of allegations of scientific misconduct in Dr. Barnard's (Craig Watkin's )crime lab a couple of years ago...

Anonymous said...

12:52 - That complaint was dismissed, and then re-dismissed a second time. Someone apparently got the dismissal letter (maybe under a PIA act request?) and has posted it. Here is the link: http://www.scribd.com/doc/69312455/Letter-to-Complainant-TFSC.

From the way it sounds, the complaint originated from a disgruntled former employee, and lacked merit - probably retribution. Which makes sense - that lab is the one that has been responsible for the evidence retention policies that led to all the DNA exonerations in Dallas. And from what I understand there was legislation recently passed in Texas that was sponsored by Watkins office that tried to bring evidence retention practices and procedures in Texas up to the standard practiced in the Dallas lab. They managed to get things improved - a mandatory 40 year retention for some types of evidence. That's not up to the standard practiced in Dallas, but it is better than what it was. There was a good article about the Dallas lab a while back in USA Today that compared what is done in Dallas with what is done nationally, which in comparison seems to be pretty lousy.

Anonymous said...

For what it's worth, evidence that the grandmother "thought" the child was lying would be just as inadmissible in court as any other witness's opinion that the child was telling the truth. As such, that type of evidence is likely not "exculpatory" or Brady material. More importantly, you have to wonder why the grandmother didn't just tell the defense attorney of her concerns. In intra-family child sexual abuse cases of the proverbial "he said-she said" variety, it's not uncommon for family members to either disbelieve the victim or not know who to believe. Very frequently the most common "disbeliever" is the victim's own mother. In this case the defendant pled "no contest?" This report is not well written at all, and I'm not sure it supports the blanket generalized allegation of prosecutorial misconduct as is being suggested here.

dfisher said...

Gritsforbreakfast,

Watkins has no problem exposing the transgressions of the former DA, but continues supporting a forensic system, that even his first assistant Terry Moore acknowledged is illegal and I don't just mean the autopsy system.

On the issue of the medical examiners, it's not the "oath" that these doctors are having trouble with, it's the anti-bribery statement sworn under penalty of perjury where they are balking. The Harris Co. First Assistant tried to get the Harris Co. ME Sanchez to execute the statement and oath the first week of September, but the ME refused. It was this refusal that force the Harris Co. county attorney to issue the opinion that medical examiners are county employees, which runs afoul of the Court of Criminal Appeals 1993 ruling towit:

“As we stated in part II, the medical examiner's office is a public office or agency established by statute. Art. 49.25, § 1. Additionally, the medical examiner has a duty, imposed by Art. 49.25, §§ 6 and 9 to prepare and file a report, including autopsy reports, stating a cause of death and those reports are public records.”

A public office or agency with imposed statutory duties is not and cannot be a county employee. A county employee is someone who derives their power and authority from those who employ them.

Where it is true the trial courts in the first challenges have ruled against the Motions to Suppress, but I expected this was likely, as our criminal justice system went off the tracks long ago. This challenge is akin to a chess game, where every move and counter move brings you closer to the conclusion and we are no where near that point, as you will see in the coming weeks.

To 8:44 AM,
Texas Statutes do not mandate an autopsy in every unattended death, but they do mandate an "Inquest", and only 2 divisions of county government have the power of Inquest. Those 2 divisions are the Justice of the Peace in counties without a legal medical examiner and the Medical Examiner in legally qualified counties.

No doctor can perform a forensic autopsy unless they are a duly qualified medical examiner in a medical examiner county, or ordered to by a Justice of the Peace in a JP Inquest county. Any doctor no matter how qualified who performs an a forensic autopsy outside the above systems, commits a crime and no evidence obtain during the commission of a crime can entered into evidence in a criminal case.

Anonymous said...

This guy is not the exception. Everyday men are told plea out or go to prison. Then they get into the "counseling" and are told if they don't admit guilt, go to prison. It doesn't matter that you are innocent, the judicial system only wants wins and does not care about the truth.They also do not care about all of the collateral damages they cause i.e. familes torn apart, jobs lost, housing lost,mental anguish all because someone lies and it is belived with out question or evidence! As far as I'm concerned all cops, judges and sex offender treatement providers need a bullet between the eyes!!!

Woodsy said...

The ridiculous part is that their policy permits revocation for failure to make acknowledgements that one is a pedophile. So much for the right to remain silent.

Anonymous said...

If anyone can answer...
Why would a crime lab start holding onto evidence in the early 1980s (pre-DNA testing)?

Without knowing that DNA testing was going to be so critical and prevalent in decades to come, it seems that an evidence retention policy (and storage of evidence in freezers) by a crime lab would only inflate costs associated with evidence analysis.

If there was no law in 1980, why would a lab do this?

Anonymous said...

3:41 - Pre-DNA, genetic testing was done using ABO blood group testing and other sorts of tests using blood proteins. Stored frozen evidence could be used for those types of tests, the same as for DNA.

Anonymous said...

6:30AM-
I think what anon 3:41 was asking was...we understand the importance of preserving biological evidence before a trial (in the early 1980s), but why would a lab store evidence post-trial (after the evidence had already been analyzed and a lab report created for trial)? Evidence is typically only tested once, and that is it. Very little re-testing is done -- especially, post-trial.

Besides, an independent, impartial crime lab does not concern itself with the conclusions of a trial -- does not concern itself with innocence or guilt of a defendant, but only the sound scientific conclusions of its lab reports.

Is it possible that (in the early 1980s) the DA's office predicted the future importance of DNA (rather, biological material), and therefore initiated a policy in its crime lab to store all evidence in a freezer -- even post-trial?

Or is there another reason that the DA's Office was interested in keeping (biological material) post-trial? Would the DA's Office ever second guess a lab report and request a re-testing of the evidence post-trial (especially if the defendant is found guilty based on the conclusions found in a lab report)?

Anonymous said...

8:23 - I'm in Dallas. The lab isn't run by the DA. It's run by the Medical Examiner's office. The DA doesn't play any role in the management of the lab.

Anonymous said...

8:23 is right. It is the county lab. It's run like the labs in Bexar County and Harris County as part of the medical examiner's office. Texas doesn't have labs run by the DA like they do in California.

Anonymous said...

to anon 9:59, anon 10:15, and whomever else can assist--

Pretend that it is 1980 (pre-DNA testing). You are the director of a crime lab. You have blood evidence is submitted to your lab. You test and discover the ABO blood group. You write the report. You give the report to the DA. DA uses it for trial (or most likely plea bargain).

Why hold onto the evidence (incurring extra costs for freezers, space, etc.)?

Anonymous said...

Retesting by defense?

Anonymous said...

The reason for storing evidence long-term pre-DNA was because testing was done in two steps. The first step was identifying relevant body fluids. The second was generating a genetic profile and comparing it to someone. Usually, step two was done only when there was a suspect identified. Since there were no genetic databases pre-DNA, blood group typing often made sense only when there was a suspect to compare to. So evidence was stored pending identification of a suspect to compare to.

Channing Holman said...

I went to an event a couple of weeks ago focusing on exonerees and getting their voices out. I want to spread the word so that this can stop. A person stripped of the rights as an American for a crime they didn't commit is unlawful. I'm writing a story about it for my class and the thought of being in jail for something I didn't do is haunting.

Anonymous said...

anon 1:41-

"Retesting by defense?"

Hopefully the Defense would have obtained the evidence and had it tested PRIOR to trial. Testing post-trial, by the Defense is too late. And can you imagine the States numerous arguments for post-trial testing (e.g. Hank Skinner)

anon 3:36-
"The second was generating a genetic profile and comparing it to someone."

The genetic profile IS DNA testing, which was not done in the early 1980s.

Did you mean serological testing? The two steps for identification for biological material was 1.) detection of blood, 2.) detection of ABO group.

The crime lab, if independent (and unbiased), doesn't need a suspect's sample before performing a test on the evidence. Data is obtained and recorded. Evidence is sent back to the submitting agency. The cost and time associated with ABO typing is inexpensive and fast, relative to long-term storage and DNA testing. So there is no cost-associated need for a lab to analyze evidence half-way (stopping at step 1) and storing it in a freezer before determining the ABO group.

"...evidence was stored pending identification of a suspect to compare to."

Arguably, not all crime labs thought this was a prudent idea as rarely did crime labs in the early 1980s store evidence long-term simply for ABO testing. In addition, testing crime scene evidence in parallel with a suspect's sample is a very good way to introduce contextual bias or inadvertent sample switching/contamination. There is always a time and place differential for testing items of evidence and testing suspect's samples (as with today's DNA testing).

So is there another legitimate (or perhaps nefarious) reason a crime lab in the 1980s (pre-DNA testing) would keep evidence post-trial?

Anonymous said...

anon 3:36-

1. A Genetic profile IS DNA testing. Did you mean Serological ABO testing?
2. ABO testing is quick and cheap, relative the today's DNA testing (and long-term freezer storage). Therefore, waiting for a suspect's sample to arrive in the crime lab is not related to cost/time. A crime lab's scientific interest is not towards the progression of a case, but in providing a reliable, unbiased work-product (report). The blood evidence could still be analyzed to a particular group typing without having a suspect's sample. Besides, testing a suspect's sample in parallel with crime scene evidence can lead to inadvertent sample contamination/switching and/or contextual bias. (even today's costly DNA testing can be, an in some cases is, performed before a suspect is known. Hence CODIS. Still no need for a crime lab to hold onto evidence after a report is made.)
3. It was rarity in the early 1980s for a crime lab (i.e. those labs that performed ABO typing)to keep evidence for long-term storage .

So why would a crime lab keep evidence in the early 1980s (pre-DNA) post-trial?
(Testing by the Defense would/should have been done BEFORE trial -- see Hank Skinner's problem)

Anonymous said...

2:34 - it sounds like you might need to talk to someone in a lab that stored evidence in this way back in the '80s.

Btw - I always understood that ABO blood typing was a form of genetic testing.

Anonymous said...

I have been a Policeman for 33.5 years. The situation will never change until the Police stop seeing themselves as a part of the prosecution team and as an independant fact investigative unit whose only job it is is to find ALL of the facts and present them to the DA. Then in court I am not a prosecution witness, I am a witness that presents the facts I found so the court can interpret, not me, what I found. I get a lot of flack from other officers who see themselves at the "Thin Blue Line". if we, the cops saw our selves as what we are the defenders of justice and not prosecutors we would not have as many of these stories. Kudos to the :Innocence Project".