Texas Justice Goes Soft

Once known for its harsh approach to criminal justice, the state is creating new avenues to reform--and exonerations

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Bob Owen / The San Antonio Express-News / AP

From left: Cassandra Rivera, Kristie Mayhugh and Elizabeth Ramirez, walk with two of their lawyers after a news conference on Nov. 20, 2013, in San Antonio.

For six Texans jailed in the 1990s, this season of thanks and cheer has become beyond joyous. Nineteen years after being charged with the sexual assault of two young girls, three women, now approaching middle age, emerged from the San Antonio county jail the week before Thanksgiving and, in a cascade of tears and laughter, fell into the arms of their families.

Days later, 63-year-old Fran Keller was released from prison after 21 years. When her ex-husband, Dan, 72, walked out of an Austin jail Dec. 5, she was waiting with open arms — the first time they had embraced since being convicted of sexually abusing children at their Austin day care center as part of satanic rituals in 1992.

The women, along with another on parole, and the Kellers have been professing their innocence in separate cases for almost two decades. Thanks to the nation’s first law recognizing advances in forensic science, they are out of prison with a chance at exoneration.

The San Antonio Four — Elizabeth Ramirez, now 39, Kristie Mayhugh, 40, Cassandra Rivera, 38 and Anna Vasquez, also 38 — are the first Texans to be released under a habeas corpus statute that took effect on September 1, allowing prisoners to seek release and a new trial if so-called “junk science” played a pivotal role in their conviction. Its enactment marks a sea change in a Texas penal system with a long-standing reputation for harsh, frontier justice.

“For so many years – and still today — people know us more for being the world capital of capital punishment and tough law and order,” says Sandra Thompson, director the Criminal Justice Institute at the University of Houston Law Center. “But in the last 10 years there has been a number of things that coalesced to bring about really cutting edge changes in Texas.”

A backlog of executions continues apace, but Thompson says a fundamental shift is underway. The number of death penalties imposed by Texas juries fell from around two dozen a year in the early 2000s into the low teens after the law’s passage. By 2012, there were nine death penalties imposed in Texas, while 15 executions took place, down from a peak of 40 executions in 2000.

Several high-profile cases of DNA exoneration have also swayed public opinion, Thompson believes. Support for the death penalty remains high in Texas — a 2012 Texas Tribune poll found 73 percent of respondents support it, but when the option of life without parole was included in the question, support fell to 53 percent. A number of high profile exonerations also have led to what Thompson calls one of the strongest anti-prosecutorial misconduct laws in the nation.

In May, Governor Rick Perry signed the Michael Morton Act, named for the Texas man who served 24 years in prison for the 1987 slaying of his wife before DNA evidence exonerated him. The law requires prosecutors to give defense attorneys full access to evidence and sets penalties for prosecutors who violate the mandate. Former Williamson County District Attorney Ken Anderson, who allegedly withheld evidence in Morton’s trial, recently gave up his law license in a criminal settlement over the case.

The aftershocks of Morton’s exoneration have been widely felt. District Attorney John Bradley, Anderson’s successor, fought Morton’s attempt to get DNA testing for six years. Despite Williamson County’s reputation as a tough-on-crime Republican stronghold, primary voters in 2012 rejected Bradley in favor of his exoneration-friendly proponent.

Bradley was more than a DA. As chair of the Texas Forensic Sciences Commission until 2011, he was responsible for overseeing state investigations into convictions based on potentially bad science. Critics alleged that Bradley stonewalled the investigation into arson forensics used in the trial of Cameron Todd Willingham, who was executed in 2004 for setting fire to his home, killing his three young children. Some experts have said the scientific evidence used against Willingham was bogus.

In the case of the San Antonio Four, it’s the testimony of a prominent child abuse expert, Dr. Nancy Kellogg, that’s been called into question. The four women, all publicly out lesbians, were charged with assaulting Ramirez’s seven- and nine-year-old nieces when they spent a week with her during the summer of 1994.

The two young girls testified that they were abused, but their accounts were marred by inconsistencies, and one recanted her testimony in 2012. To back up claims of abuse, prosecutors called on Kellogg, who told jurors that the hymen of the oldest girl showed signs of scarring, indicating abuse during the time period in question.

Nine years after the 1998 convictions, the American Academy of Pediatrics published a study concluding that torn or injured hymens do not leave scars. Kellogg has declined to be interviewed about the case, but a spokesman for the Bexar County District Attorney’s office recently said that medical science no longer supported her testimony and, if the case were held today, Kellogg would no longer testify that way.

Despite the 2007 study, it was unlikely the San Antonio Four would have walked free without the passage of the so-called “junk science” law earlier this year. Habeas writs based on new evidence are very difficult to win, according to legal experts, especially in Texas courts.

The seeds of change were sown in 1999, the first year of prison life for the San Antonio Four. That July, a drug task force raided a poor, black community in the Panhandle town of Tulia, sweeping up scores of residents. Perry later pardoned 35 defendants, casting a shadow on law enforcement practices in rural Texas. That same year, convicted rapist Timothy Cole died in prison, 14 years into a 25-year sentence.  He had refused to admit guilt in exchange for parole, and was later exonerated by DNA evidence.

More people have been exonerated by DNA evidence in Texas than any other state, according to the National Innocence Project, which puts the state’s total 48 ahead of Illinois with 43 and New York with 27.

“The DNA exonerations have changed the terms of the debate for everyone,” says Scott Henson, policy director for the Innocence Project, which lobbied for the “junk science” law and several other similar measures.

Henson credits Republican lawmakers open to religious appeals for changing attitudes about criminal justice, beginning in 2003 when the party took control of both houses of the state legislature. Under GOP control, the statehouse reduced sentences for drug possession and ended the state’s prison-building boom.

“Over the past several cycles we had more and more religious conservatives coming into the legislature,” Henson says. “These are folks who hear these stories and tend to be moved by the DNA exonerees who come to the capitol. Hearing their stories — Christ was an innocent man hung on the Cross and here are these innocents — it resonated with them.”

There was also a pragmatic political shift. Being “tough on crime” and pro-death penalty played well for “big government Democrats,” including former Governor Ann Richards, Henson says. Richards’ term saw the number of prisons increase and the incarcerated population triple, but by 2003, new Republican Speaker Tom Craddick had an eight-word mantra: “Don’t build new prisons. They cost too much.”

The new attitude was aided by an emphasis on fiscal restraint and crime rates that had been falling since 1993. (In September, the FBI’s Uniform Crime Report showed a slight uptick in 2011 — more alarmingly, violent crime was up 17 percent, the sharpest increase in 20 years.) By 2010, criminal justice reform had bipartisan backing.  Legislators passed several measures recommended by the Timothy Cole Advisory Panel on Wrongful Convictions, including an eyewitness identification law Thompson calls  “the best in the country.”

And while police groups and the state’s county and district attorneys remain powerful lobbies, many of the hardliners have retired, been voted out of office or, as in former D.A. Bradley’s case, failed to win reappointment to key boards. After 21 years running what the Houston Chronicle called a “powerful death-penalty machine,” Harris County D.A. Johnny Holmes retired in 2000. Dallas, once accused of being a hotbed of cavalier convictions, now has a D.A., Craig Watkins, whose great-grandfather was executed by the state and is buried in a prison graveyard. Watkins has created a conviction integrity unit.

In the months ahead, the San Antonio Four will take their case to the Texas Court of Criminal Appeals to seek exoneration. The Kellers were released following the submission of new evidence that called their conviction into question, including statements from an emergency room doctor who has retracted his testimony of physical abuse based on his examination of a child’s hymen. His was the only physical evidence of abuse in a case fraught with elaborate allegations of satanic rituals, much of it elicited during sessions with a child psychologist whose techniques have been called into question — one allegation was the children were flown to Mexico and sexually abused by soldiers, then flown back to Austin in time to be picked up at the end of the workday by their parents. The Kellers also plan to take their case to the high court for exoneration. Others will likely follow.

Meanwhile, Henson says the legislature will address sentencing and other appellate issues in coming years:  “For the next couple of sessions there will continue to be a lot of surprising things coming out of Texas that the rest of the country looks at and says, ‘How did that happen there?'”

8 comments
14264
14264

what Texas is doing is not "going soft" -- maybe we finally have some sanity in the criminal justice system.

XiraArien1
XiraArien1

Until people stop believing anything that comes from a badge these things will continue to happen. Until we hold the police accountable to the same laws that you and I have to follow they will keep getting away with it.


Cops lie on the stand more than normal people. In a public study they showed that cops made 300% more provably false statements than civilians, including the accused. Not a single cop in that study was prosecuted for perjury.


Cops lie because they are allowed to get away with it. Encouraged by prosecutors in some cases.


One law for them, a different law for us.

dudleysharp
dudleysharp

The prison building stopped in Texas, for the same reason it stopped, nationally. After a 3-9 times increase in prison beds, since the 1970's, with crime rates at 40-60 year lows, depending upon crime, we had accomplicshed the goals of additonal cells.

dudleysharp
dudleysharp

This article is misleading.


Texas executes less than 1% of her murderers and only after 11 years of appellate review, on average.   


The Texas murder rate had dropped by 71% since 1991. Rapes and robberies also dropped substantially, as well.   


From 1998 to 2012 murders dropped 35%, also with substantial drops in rapes and robberies.   \


Most death penalty crimes are rape/murders or robbery/murders, which have, likely, seen an 80-50% drop, respectively, in those time frames, explaining most if not all of the death penalty reductions in Texas during that period.

StanleyJames
StanleyJames

tx  is full of those xttians who claim to support life, eg like bush JR   During his being gov, tx executed someone every 9 days on average.  Its similar to other states wherre protecting life is  alie by these xtians.  


Today virtually no one escapes frrom a super - max prison but some tx people - ki;ling is a way of life.  Long ago it was proven that the death penalty doesnt stop people from murdering.

DavidPittelli
DavidPittelli

@StanleyJames


1) Name a person who was executed and then committed murder. (Note that I can name a person sentenced to life without parole who nonetheless then committed murder.)


2) Show me a reading in the bible from which a Christian should conclude that the death penalty is not a just punishment for murder, or a Bible reading implying that murderers should be treated as well as unborn children.


You cannot, of course, do either of these things. And so with your unsupportable claims that death penalty advocates are illogical, or are hypocritical Christians, you show yourself to be illogical.

RadCentrist
RadCentrist

Thou shalt not kill....

Simple enough?

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