Keller, Hervey, can't stand in way of innocence claim, but try

"The system works," said state district judge Sharen Wilson after John Michael Harvey was released on a 5-4 vote of the Texas Court of Criminal Appeals.

Maybe so, maybe for this one day, but even then just barely. Wilson had ruled that Harvey was "actually innocent" of child molestation after his accuser recanted 12 years after the fact. No other evidence supported his conviction. Still, four CCA judges would have kept Harvey incarcerated. Thankfully, he walked free yesterday over their objections.

Chief Justice Sharon Keller, Judges Barbara Hervey, Cheryl Johnson and Michael Keasler dissented in the case. Keller and Hervey are both up for re-election in 2006.

In Herveys' dissent, she noted that the alleged victim had been coached to make her original statement:

"During jury arguments at applicant's 1992 trial, the prosecution also addressed the complainant's 'initial statements that no one has ever touched me anywhere.'

"I say that obviously because of [the complainant's] initial statements that no one has ever touched me anywhere. But she came around with a little help. So please don't have unrealistic expectations that she should simply walk in here like a trooper and rattle off. Once again, those horrors which have occurred in her past. She can't do it without help. And we're asking for your help for the rest of the way of this case.

"The most critical finding that the habeas judge made, in recommending that relief be granted on applicant's 2004 'actual innocence' claim, states:

"'The Court finds [the complainant] to be a credible witness in her testimony at the subsequent writ hearing. Whether [the complainant] was sexually assaulted by a big man with a tatoo or was not sexually assaulted at all, the common factor in her statements is that the applicant did not sexually assault her. The court finds as a matter of fact, that applicant did not sexually assault [the complainant] and is factually innocent.'

"The record does not support this finding either. The common factor in the complainant's 2004 writ testimony and the only finding that a fair reading of the 2004 writ record supports is that the eighteen-year-old complainant has no independent recollection of what happened to her 15 years ago when she was three years old. This does not constitute a recantation of her trial testimony and it clearly should be insufficient to sustain applicant's burden to unquestionably establish his innocence."

So, the child victim initially said the defendant didn't do it, only accused him after coaching by adults, then later claims no independent recollection of the crime. No other evidence pointed to Harvey's guilt, but Keller, Hervey, et. al. would have let Harvey rot in prison, anyway.

Harvey's glad to be out, but he knows that Texas' worst court didn't do him any favors. He told the Fort Worth Star-Telegram:

"'I thank Sharen Wilson for overturning this conviction, but it took an awful long time, before her and after her,' Harvey said.

"'When I was falsely accused and falsely convicted, the Court of Criminal Appeals didn't ask for any written arguments and oral arguments. They just upheld my conviction.

"'They were much easier in letting my life slip away and finding me guilty than they were in finding me innocent,' he said. 'I'm not really bitter, but I'm ready to put it behind me.'"

I hope he can. Judge Hervey has been making hay calling for the creation of "innocence clinics" at Texas law schools, where law students would help try to prove innocence claims. But what good will that do if, when actual innocence claims are proven, judges just ignore them?