Progress and Its Discontents- Or, What I Learned From An Article in Texas Monthly

Hey, everybody. Jeff Blackburn here. I hope a good week was had by all.

I sincerely appreciated all of the comments to my last post. I avoided answering them individually because it seemed better to let folks argue it out with each other. As far as I can tell, that approach stimulated discussion-which is pretty much the point, right? Many thanks.

Here’s what I want to stimulate discussion about this week: why has it been so hard for us to make things better in the Texas criminal justice system? Why is there always such strong resistance to change?

I received a fresh perspective on these questions when I read an advance copy of an article that will appear in the upcoming issue of Texas Monthly. It will be available online Wednesday and at newsstands Thursday. It is a big, thoroughly-researched and extremely well-written piece by Pam Colloff about the tragic case of Anthony Graves, an innocent man who has been trapped in the Texas system for most of his adult life. For reasons I will explain, this article yields insight into more than his case- it shows why things go wrong in criminal cases generally and why officials often refuse to set them right. Even though it is only about one case, Ms. Colloff partially answers the bigger question of why we can’t make more progress on the statewide policy level. Here’s what I mean:

Big Problems, Actual Solutions

As many of you know, I handle wrongful conviction cases. I’ve done a lot of them both as a private attorney and as a volunteer with the Innocence Project of Texas (IPOT). Every phony conviction I have ever seen is the result of some kind of misconduct or overreaching by officials (police, prosecutors, or judges), bad defense work, or a combination of these things. The same problems repeat themselves in case after case, and what they usually come down to is that one side is rigging the system to win. When justice becomes a competitive sport and one side gets to write the rules that sort of thing tends to happen.

People argue endlessly here and elsewhere about whether it was meant to be this way, whether police are bad or good, whether prosecutors and judges just don’t care, whether district attorneys really do bad things, and so forth. In the long run these arguments don’t matter. Here’s why:

When a system is sending innocent people into prison on a regular basis as ours has done, it has serious flaws. It doesn’t make any difference whether those flaws are there because people are bad, good or just indifferent. What matters is whether the problems can be fixed. They can be in criminal justice. Want to stop prosecutorial misconduct? Pass a statute that punishes it. Allow plaintiffs in civil rights cases the right to sue over it by lifting immunity in such cases. Want to stop bad defense lawyering? Set up a statewide public defender system. Create professional guidelines setting out minimum standards. Want to get the innocent out of prison? Reform the writ system. Want to stop the use of phony eyewitness testimony? Pass a law that keeps it out of court. The list goes on. The amazing thing is that virtually every serious problem we have in this system has a rational solution. We’re not dealing with something like climate change or the end of cheap energy. We’re dealing with problems that can really be solved.

So why don’t we just go and do that? The answer is simple, really, and it came to me after reading Ms. Colloff's article and remembering the facts of the Anthony Graves case: we don’t want to. Why don’t we want to? Because it would make us, or at least the people we elected and appointed, look bad. We are willing to go to ridiculous lengths to save the face of people in this system- and nowhere have we gone to more ridiculous lengths than in the case of Anthony Graves.

The Texas Monthly Article and What It Tells Us About Our State

Ms. Colloff has written a truly excellent article that will tell you just about everything you need to know about Anthony Graves and his case. Readers of Grits should take a look at this piece. It’s well worth the price of the magazine.

I’m not going to discuss the facts of Anthony’s case much here- I want you to read the whole article. I will say that I was privileged to be part of a team of IPOT lawyers that represented Mr. Graves pro bono and that Ms. Colloff’s report is even-handed and accurate.

Anthony Graves was a nice guy who grew up in Brenham. He was well-liked and responsible. In 1992, an entire family was stabbed and bludgeoned to death in Somerville, a small town not far from Brenham. The trailer they lived in was torched. A man named Robert Carter was apprehended a few days later. The evidence against Carter was strong: he had a motive to kill the victims since they were costing him child-support money, he had gasoline burns all over himself, and he had been busy destroying evidence in the days after the murder. The problem was that by the time he got arrested the police and prosecutors had already decided that there had to be others involved in the crime. This “theory”, which was at best a hunch and had been arrived at without any forensic investigation, became their case. Like many prosecutors, police, and presidents in our history they decided to fix the facts to fit their theory- the same sort of behavior that we see over and over again in wrongful conviction cases. This meant that they had to get Carter to say that others were involved- if he didn’t, they would have had to admit their “theory” was untrue and lose face with the locals. After hours of questioning, Carter finally gave them the name of Anthony Graves.

Texas Rangers arrested Mr. Graves shortly thereafter and put him in jail for capital murder, where he has been ever since. The case against him was based on the word of Carter and virtually nothing else- read Ms. Colloff’s article and you will see what this "case" looked like.

That was fine for the State of Texas- it has certainly killed people with less evidence than that. The problem was that Carter began recanting his story and told prosecutors that he would tell the jury in Mr. Graves’s trial that Mr. Graves was innocent. That was the sort of thing that might ruin a perfectly good execution, so the state responded by sweating Carter the night before trial and threatening to make him testify against his wife. After several hours of this kind of "trial preparation", Carter agreed to tell the State’s version of what happened. He did so the next day. Prosecutors covered up what had happened with the recantations and threats- evidence vital to the defense- and got their conviction and death penalty. Mr. Graves went off to death row.

In the months that followed, Carter told anyone who would listen- which was just about nobody-that he had lied about Mr. Graves to tell the prosecutors what they wanted to hear. Carter was eventually executed. Minutes before he died, he told the world again that Mr. Graves was innocent. His last words: “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.”

Years later, as a result of the truly heroic unpaid efforts of a lawyer and St. Thomas professor named Nicole Casarez (disclaimer here: Nicole is a very close friend of mine and a co-founder of IPOT) and despite the aggressive efforts of prosecutors, all of this came out. Mr. Graves narrowly avoided being executed because the federal courts intervened.

Ms. Colloff’s article describes the extraordinary ins-and-outs of a legal process that involved many fine lawyers working for years on the case. These lawyers- Pat McCann, Roy Greenwood, Jay Burnett, Ms. Casarez and others- barely saved their client’s life. They were ablocked and challenged by prosecutors at every stage of the proceedings.

Ms. Colloff also describes how little any of the legal wrangling has meant to Mr. Graves in practical terms. Eighteen years later, he is still in jail despite his new trial. New pro bono lawyers, of which I was one, have defended him. Mr. Graves now has the stellar legal team of Katherine Scardino and Jimmy Phillips, Jr. on his side. (Disclaimer again: these are both good friends of mine and Ms. Scardino is a member of the Board of Directors of IPOT.)

Ms. Colloff tells this story very well and in a way that makes sense to the average reader. She does more than that, however: she puts it into perspective. Why did Mr. Graves get charged in the first place? Why did the State cover up the truth about Carter’s recantations? Why did the State fight so hard to execute Mr. Graves despite all of the problems it had created? Why does it still insist on trying this plainly innocent man for capital murder?

The answer, ultimately, is because it could- and because it would make some police and prosecutors look bad for doing the wrong thing in the first place if they had to admit to it. Ms. Colloff's objective reporting of the attitudes of law enforcement officials in this case, even to this day, shows this quite clearly.

Mr. Graves’s story is about much more than him: it’s about how the system really works, the human cost it involves, and the ultimately childish motivations that sometimes guide decision-making in this state. As told by Ms. Colloff, it is a story that sheds light on why we have the problems we have in this state. In the last analysis, it is a story that helps answer the two questions we started off this discussion with.

Multiply the cover-yourself-at-all-costs mentality on display in the Anthony Graves case a few hundred times and you get at least part of the answer to the question of why the legislators, judges and prosecutors that run this system can’t seem to fix it: it would make them look bad.

Someday they might get convinced that it is better to be honest than to look good. Until then, the rest of us are going to have to be honest for them. Ms. Colloff’s article is a good example of the power that comes from telling the truth.