Monday, June 30, 2008

Why not test DNA to corroborate capital innocence claim?

After more than 30 Texas exonerations based on DNA evidence in recent years, I can't understand how Grayson County prosecutors could even consider opposing DNA testing of old evidence before they put a defendant to death this summer who's claiming actual innocence.

Reacting to recent media reports, a witness has come forward who says death-row inmate Lester Bower's long-time innocence claims are true, and that her ex-boyfriend and three other men committed the quadruple murder of which he was convicted. This news arrives just weeks before Bower's scheduled execution on July 22. But inexplicably, the Grayson County DA opposes DNA testing that might corroborate this new testimony, preferring instead to push forward with the execution. Reports the Fort Worth Star Telegram ("Witness says condemned Arlington man not responsible for 1983 slayings," June 29):

Bower’s lawyers say they have identified the four men whom Pearl alleges to be the killers, have documented their long criminal records and have confirmed other key parts of her story. In recent months, a defense investigator has also located another witness, the wife of one of alleged accomplices who said she heard the four men discussing the killings. The names of the new suspects, though known to defense lawyers, have remained sealed by court order.

"I don’t want Mr. Bower to die for something that he didn’t do," said Pearl, who broke up with her boyfriend shortly after the slayings and remains fearful of him today. Since she signed the affidavit in 1989, her identity has been concealed by court order. "I know in my heart that he didn’t do it. I just could not in my conscience sit back and just go, 'Oh well, sorry.’

"If he would have gotten life in prison, I can’t sit here and honestly say I would have done something different. Life is what, 30 years in the state of Texas? But he got the death penalty, and there’s no getting out of that."

This past week, Bower’s lawyers filed a 65-page legal motion in Sherman’s 15th state District Court detailing the scenario developed after Pearl came forward. The petition asks state Judge Jim Fallon to delay Bower’s execution, vacate his conviction and death sentence, and conduct hearings on his innocence claim.

Because of the plodding appellate system in death penalty cases — Bower’s appeal languished in federal court alone for 16 years — and the shifting nature of capital punishment law, this is the first opportunity for a Texas court to seriously consider the merits of Bower’s innocence claim, his lawyers say. When Pearl first came forward, Texas law precluded state judges from considering evidence gathered more than 30 days after a conviction. The so-called 30-day rule is no longer in effect in Texas because federal judges have ruled that such post-conviction claims need to be adjudicated by the state.

"Whatever you think about the benefits of having capital punishment, no one could possibly argue that executing an innocent man is in the interests of the state, or our society," said Anthony Roth, one of Bower’s lawyers. "Our interests as lawyers and as people should be that our government, when in doubt, should not go forward with an execution. There is ample evidence to give people reasonable doubt about whether Les committed these murders. In my view, the evidence is compelling that he didn’t."

A Grayson County prosecutor, Karla Hackett, said Wednesday that the state will vigorously contest Bower’s innocence claim. Prosecutors also oppose a defense motion to have saliva, hair fibers and cigarette butts from the crime scene tested for DNA. Bower’s lawyers hope that the analysis will link one of the men accused by Pearl to the crime.

"There’s no way there is actual innocence here," Hackett said, citing the large amount of circumstantial evidence against Bower. "DNA is not going to make all that go away. It’s another delaying tactic. It’s normal. We expect it. There’s four dead men, and all the evidence points straight to Lester Leroy Bower Jr."

The science to match biological evidence through DNA simply didn't exist when a Grayson County jury convicted Bower in 1983. What could be the harm of testing the evidence?

Even if Bower was involved, why ignore evidence that might identify an accomplice? If the conviction was right, the state has nothing to fear from DNA testing. If they're wrong, why wouldn't they want to catch the mistake before the fellow's pending date with the lethal injection chamber?


Anonymous said...

Honestly, the testing of DNA where available should be a automatic right just as the automatic appeal is for Capital cases. that way, even if you are found guilty in the court, teh real fact will have the opportunity to show through.

Anonymous said...

He was convicted 25 years ago so why wait until a month before the execution to bring this up?

Is this another tactic to delay the execution? Perhaps they demand this test so close to the execution because they know the state lab is too slow. This means a free automatic stay of execution while the results are pending.

Prosecutors might not object if someone else paid for an expedited test through a private lab. If they really thought Bower was actually innocent his lawyers would have already arranged it.

Seems like the anti-DP are using Bower as a pawn to advice their political opinions. If so the behavior is shameful.

Gritsforbreakfast said...

"why wait until a month before the execution to bring this up?"

Did you read the article? The witness just came forward in response to media reports.

Anonymous said...

Just a few paragraphs into the Star-Telegram story, the woman knew something was terribly wrong. A man named Lester Leroy Bower Jr. was on Death Row for the 1983 massacre of four men in a Sherman airplane hangar, she read that morning in 1989.

Anonymous said...

The next day, she contacted Bower’s lawyers from Washington, D.C., told them her story and signed a legal affidavit attesting to it.

Gritsforbreakfast said...

But they were already many years into the appellate process by then. According to Bower's lawyers "this is the first opportunity for a Texas court to seriously consider the merits of Bower’s innocence claim."

What's the harm in testing the biological evidence?

Anonymous said...

"this is the first opportunity for a Texas court to seriously consider the merits of Bower's innocence claim."

Even if you use weasel words you are still a liar deliberately promoting the deception that these claims have not been considered. The claims were already examined in federal court and they were not convincing.

Its not the Texas court’s fault these claims haven’t been heard. Its not the prosecutor’s fault. Its not the victim’s fault. Its Bowers fault.

Bowers is trying to play on your sympathy. Don’t fall for it. This is just another expensive delay.

Gritsforbreakfast said...

Again, I'm unclear exactly what's the harm in granting the DNA test?

Anonymous said...

What could DNA testing even prove? Bowers admits to being at the crime scene on the day of the murders. If they do find his DNA then it doesn't prove anything more than he has already admitted. If they don’t find his DNA that only proves that the accuracy of DAN tests is limited by the samples collected.

Why do you want to keep spending other people's tax money on this killer? Why do you want to delay justice?

It is just another delay tactic.

Focus on someone that might actually be innocent.

Gritsforbreakfast said...

@5:40 - It could corroborate the story of the witness that came forward. Or, as I wrote in the post, "Even if Bower was involved, why ignore evidence that might identify an accomplice?"

Anonymous said...

Bower could have requested post-conviction DNA testing (via Chapter 64 of the Code of Criminal Procedure) any time after Chapter 64 was passed in April 2001.

Bower's federal appeals would not have prevented him from requesting post-conviction DNA testing.

Anonymous said...

DNA is a powerful tool. A jackhammer is a powerful tool.

You need the right tool for the job and DNA isn't it. Twenty five year old DNA from a semi-public building won't solve anything in this case.

Just think about it.

Gritsforbreakfast said...

That's true 6:05. The only thing preventing him from getting DNA testing is the Grayson County DA who's opposing the request and the judge denying it.

To 6:09 (the same person?), the age of the DNA does not matter. They can test DNA from long ago. If it matches one or more of the suspects identified by the better-late-than-never witness, though, it provides strong support for her claim that her boyfriend and three others committed the crime. If bad forensics on the same biological evidence was used in the original conviction (I don't know, I haven't read the trial transcripts, but I don't know why else would they keep it), then DNA pointing to someone else would be a double whammy to the original case. "Just think about it."

Meanwhile, no one has yet identified one iota of harm that would come from performing the DNA test prior to execution. Better safe than sorry trumps, in my book, unless there's some reason after all these years that time is of the essence. Bower will still be available for killing once the DNA test comes back.

Anonymous said...

Bower has repeatedly asked for discovery and has been refused to have discovery by the Courts. What are they afraid of? When asking for information from the FBI under FOIA, the FBI has repeatedly refused information or heavily redacted information about the victims, drug involvment in Grayson County, and to this date, is being sued by Bower's lawyers. Grits for Breakfast is right: why risk executing an innocent man, let him have discovery and a hearing. What can it hurt? What is Grayson County afraid of? Bower hasn't delayed anything. The court sat on his case for years doing Nothing. Grayson County needs to do the right thing and give Bower a chance to prove his innocence.

Anonymous said...

They could test the gun shells and bullets to Bower's gun to see if they match.
I could be wrong, but I don't think that test was ever done.

Anonymous said...

Bower's gun has been ruled out...The firing pin mechanism was not the same type and could not have been the murder weapon, and the gun manufacturer has filed affidavit to that effect. The Julio Fiocchio ammo was not rare as was brought up by the prosecutors in the 1983 trial and not challenged by Bower's worthless trial attorney.

Anonymous said...

One of the anonymous said the DNA test wasn't powerful enough to prove anything....Maybe not in itself. Give Bower the DNA test, give him Discovery which he has NEVER had, investigating the claims made about the other people who supposedly did this crime. Better safe than sorry. It's not like you are letting him go free while you are giving him Discovery. Investigate his claims and let the truth speak for itself.

Anonymous said...

This is just like OJ looking for the "real killer."

The DNA says only "who", it doesn't say "when"

Finding the DNA of one of the other guys at the scene only means that they had been in the same building at SOME time, perhaps months before the murders....

I suppose it could also mean that one of the "real killers" had been in the same room with one of the victims but, like transferring a common cold, it could have been anywhere. In a smallish town.

So really, what can DNA prove about Bower's guilt in this case? Nothing. It can't prove him guilty and it can't exonerate him. The only thing a DNA test can do is get him a stay of execution and waste time and money that should be spent on people who might actually be innocent.

Anonymous said...

Methinks 11:35 doesn't really care all that much about "people who might actually be innocent." Unless he has read the trial transcript (Grayson County "official" perhaps?) or was at the trial, he probably doesn't have any better idea about the evidence presented in the case than anyone else who has only read the newspaper reports. Perhaps, 11:35, if you really are in love with the death penalty so much, you should want those pushing the plunger to have the right guy. How many innocents put to death do you think this country will stand for? If the guy's innocent, you should want to be sure he's not killed, so you can continue to get your bloodlust from the execution of all the "really" guilty guys. . .

Anonymous said...

So you want DNA, do you?How about the DNA of the murder victim found on the pieces of the plane that were found in Bower's posession at his home? Hows THAT DNA evidence for you?

Like another anon said...he was at the warehouse that what else could DNA prove?

Do you realize that the taxpayers pay over $25K a year to keep him on death row? Do you realize that we've paid over $400K total? There is NO NEW EVIDENCE in this's all been presented and its all been denied.

Anonymous said...

8:05...The New Evidence are the facts that real witnesses have come forward and sworn that OTHER people committed the murders. The DNA is just to help prove those men were at the hangar that day. If Bower's DNA had matched...don't you think they would have used that in Court? Discovery...All he has asked for is discovery since 1989 to prove it.

Anonymous said...

you just contradicted yourself anon 9:44...the "real witnesses" came forward in 1989...this is NOT new information. Bowers lawyers are trying to get DNA tested to show that someone else was at the hanger that day. regardless of if there was another person, it doesn't change the fact that bower was there, parts of the plane were in bowers possession with victims blood on those parts. and he lied over and over again. and that is not ALL that he has asked for since 1989...bower has appealed in every way shape and form that he can think of...not that he doesn't have that right. but at this point, he's the boy who cried wolf.

Anonymous said...

"Bowers lawyers are trying to get DNA tested to show that someone else was at the hanger that day."

DNA tests doesn't do dates. The test could only show that someone else was in the hanger at some point in time prior to the collection of the evidence.

Anonymous said...

You are right 10:23, the "new" evidence did come out in 1989 and Bower has been waiting since 1989 for the Court to hear it. All the while the Federal Court has been sitting on it because Innocence isn't an issue in Federal Court. Bower is trying to get the DNA to prove that it will match the real murderers. But the point is moot because Judge Fallon has provided him with a hearing and a Stay. Perhaps there will be truth and justice in Grayson county.

Leah Wilde said...

Good morning Scott and All,

Other than blogging, is there anything we can do? False convictions are brought about by arrogant prosecutors and investigators. Every week in Star Telegram, we read about exoneration by DNA evidence. To name a few innocent men - Eugene Ivory Henton more than 2 decades in prison, James Lee Woodard 27 years in prison. Timothy Brian Cole posthumously exonerated - an innocent man who died in prison while serving a 25-year sentence for a crime he did not commit. Source Star Telegram July 1,2008. Then there's Joseph Salvati who served 30 years for a a murder he did not commit. Source Reader's Digest March 2008.

How many innocent men are in prison? How many were executed for a crime they did not commit?

New discovery and new DNA evidence should be allowed.

Leah Wilde in North Richland Hills TX

Anonymous said...

I'd like for him to have his "day in court"...the "new" evidence has been around for YEARS, but it wasn't looked at thanks to old Tx law. Regardless of the outcome, I believe they owe it to Les, his family, and the families of the victims to investigate the evidence FULLY...what's the rush? Have we become so arrogant that we're willing to kill someone without exhausting all the evidence because some (not all!!) of the circumstantial evidence makes us have a "gut feeling" that he's guilty? how sad that we've come so far in a country that has such advanced technology...

here's a link to an interview that channel 8 did last week for anyone that's interested:

One more comment directed to the person who complained about paying $400k to keep him alive...if he is innocent (which I believe will come to light at some point), then imagine all that he's LOST...imagine sitting on death row for over 20 years knowing you were innocent...there have been others found guilty of crimes only to be proved innocent later...I'm pretty sure they would have rather not had their room & board paid for in exchange for their rightful freedom.

dudleysharp said...

I believe there are legal standards for presenting new evidence in appeals.

Something along the lines of credible evidence that would change the verdict or sentence.

In denying DNA testing and presentation of the evidence, the judge is stating that the DNA result will not conflict with the verdict or the sentence, or that the existing evidence is conclusive.

If that is the case, then those wanting DNA testing are asking the judge to neglect case law. I suspect the judge made the rulng based upon case law and new evidence.

Wasn't that the case?

MC said...

Grits, you are incorrect.

The "witness" did NOT come forth because of recent media reports. The "witness" surfaced in the 80s.

Also, the DNA testing will not prove anything. The defense is trying to prove that someone else was there. DNA testing can show if someone else was there in that hanger at some time after the hanger was constructed. DNA testing can't show WHEN they were there. It will have no bearing on who was there the day of the murders.

As for the IOTA of harm, the harm is that Bower and his attorneys have used every appeal they could think of, every story they could come up with. It is only because this crime was committed before laws were put into place that put a stop to this many appeals that Bower can even do this now. This is a delay tactic and that's all it is. This has been going on for too long...the victims families need closure.

And Leah, I understand that you think that recent convictions have been overturned because of DNA evidence, this is not the same type of DNA evidence. Bower WAS at the crime scene. If the DNA shows someone else was there (at some time from the date the hanger was constructed to the date the evidence was collected) it will not prove that Bower was not there. That is the only thing that evidence can show. So it is not an accurate comparison that this DNA evidence will prove his innocence.

If you all read the states reasoning to deny this testing and the defense's reasoning to have'd see that this is only a tactic to delay his execution.

By the way, when all executions were halted because they were reviewing whether the death penalty was cruel and unusual punishment, Bower didn't try to appeal. He only appealed after his execution date was set. Theres your coincidence.

Anonymous said...

On August 31st, Judge Jim Fallon DID grant the DNA request! Mr.Bower has already had his DNA tested years ago and it didn't match this evidence, it also doesn't match any of the murder victims. Judge Fallon and the Defense Attorneys now will come up with how to obtain DNA from the 4 alleged murderers. Judge Fallon felt that had DNA been available in 1983, Mr.Bower wouldn't have been convicted. I believe that to be true as well. This is a GIANT step toward righting a wrong that Grayson County officials did 24+ yrs ago. Not a delay tactic! The Criminal Court of Appeals had voted to wait until after Judge Fallon ruled on the DNA.

Continue to watch this case because it is interesting...and an innocent man will be shown to be innocent.