Houston Chronicle

May 3, 2007
State board urges innocence pardon
If Perry agrees, Amezquita would get as much as $200,000 for serving 8 years

By STEVE McVICKER


The Texas Board of Pardons and Paroles has recommended that Gov. Rick Perry grant a pardon based on actual innocence to a Houston man who spent eight years in prison for an attack that evidence now indicates was committed by someone else.

If Perry signs the pardon, it would clear the way for Gilbert Amezquita to receive as much as $200,000 under the state's wrongful conviction compensation law.

A pardon of actual innocence "exonerates an individual of the crime and erases the conviction,'' according to the board's Web site.

"I'm glad the process is proceeding smoothly,'' Roland Moore, Amezquita's attorney, said Wednesday. He said Amezquita, 29, will not comment until Perry decides whether to sign the pardon.

Gilbert Amezquita leaves the Harris County Criminal Courthouse with attorney Roland Moore after learning in February that he wouldn't be retried. Amezquita has received more good news from a state board.

News of the board's action did not please Kathy Bingham, the victim of the 1998 assault who maintains that Amezquita attacked her.

"I don't think (the board) is thinking clearly,'' she said. "I think that they are insensitive to me and to the justice system.''

Bingham said she wrote to the board, opposing a pardon, and plans to write a similar letter to the governor.

The board voted 5-2 to recommend the pardon, said presiding officer Rissie Owens. The paperwork reached the governor's office on April 23, said Katherine Cesinger, a Perry spokeswoman.

Perry will decide whether to sign the pardon after reviewing the board's recommendation and all facts of the case, Cesinger said, adding that there is no statutory deadline for making a decision.

Based on testimony
Since 2001, the board has recommended 13 pardons based on actual innocence, according to agency records. Perry has followed the recommendation in each case.

If he grants the request, it would be only the third pardon that was based on actual innocence but did not involve DNA evidence. Instead, the review of the Amezquita case hinges on the victim's testimony.

Harris County District Attorney Chuck Rosenthal wrote to the board that he now is convinced that Amezquita ``is actually innocent of the offense for which he was convicted'' and asked the board to recommend a pardon to the governor.

Amezquita, a U.S. Army reservist with no prior criminal record, was arrested in 1998 and accused of severely beating Bingham at the Houston plumbing company where he worked, and which her family owned. His conviction was based primarily on her testimony.

Shortly after coming out of a 10-day coma, the still-hospitalized Bingham whispered to police that it was "Gilbert'' who had assaulted her.

The defense and prosecution asked before the trial for additional time for DNA testing of crime-scene evidence, but state District Judge Belinda Hill denied the request. Amezquita was convicted of aggravated assault and sentenced to 15 years in prison.

However, his appellate attorney, Moore, eventually found that prosecutors had failed to consider that a second Gilbert - Alonzo Gilbert Guerrero - also worked at the plumbing company. Moore also discovered that Bingham and Guerrero had argued a few days before the attack and that Guerrero had Bingham's cell phone after the beating. Guerrero, 34, now is serving a seven-year prison sentence for burglary.

In November 2006, the Texas Court of Criminal Appeals suggested that the true attacker was Guerrero and ordered that Amezquita be retried or set free.

Rosenthal's letter
In his letter to the board, Rosenthal stated that, in a recent interview with an assistant district attorney, Guerrero did not have a good explanation for how he came to possess Bingham's phone. Rosenthal also wrote that "an adequate investigation by the defense (trial) counsel'' would have revealed that Guerrero had Bingham's phone shortly after the assault.

The head of the Houston-based Texas Innocence Network noted that Rosenthal did not acknowledge that his office might share some of the blame for Amezquita's conviction.

"In DNA cases, where he is unable to shift the blame from the prosecutors to the defense lawyers, (Rosenthal) refuses to concede that they got it wrong,'' said David Dow, the group's founder. "It's only in the case where, at least in his own mind, he can attribute the fault to the lawyers representing the defendant that he seems to be comfortable taking this position.''

In 2005, Rosenthal wrote a letter paving the way for Josiah Sutton to receive a pardon because of a crime lab error that led to his 1998 rape conviction in 1998.

steve.mcvicker@chron.com

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