The evidence points to a miscarriage of justice

There are basically four reasons Gregory Bruce Dunagan feels he is serving a life sentence for murder in the Texas penitentiary: 1) his criminal record from an incident when he was 18 years old, 2) a setup by a lying jailhouse informant, 3) sloppy police work and 4) an ineffective job by his defense attorney at trial.

In two previous columns I've explained that Dunagan was charged in the death of a Pakistani immigrant, Barkat Ali, who was shot to death in front of his wife as the couple prepared to open their convenience store in Grand Prairie the morning of Feb. 7, 1997.

Ali's wife, Ishrat Khan, and another nearby store owner, Frank Kubala, were not able to give detailed descriptions of the two robbers who entered the shop. At least one of the robbers was wearing a bandanna or some type of mask, and the shooter was around 6-foot-1 and weighed about 200 pounds, according to statements given to police.

Police were stumped in the case until 18 months later, when a jailhouse informant -- convicted of one murder and being held on a second -- told officials that he had overheard Dunagan in a Dallas nightclub bragging about the shooting.

At the time of the slaying, Dunagan had been on parole for six years after having served five years for committing a robbery with a pellet gun. Eighteen months later, he was in the Dallas County Jail on a parole violation when he became a suspect in the murder case.

Dunagan, who has insisted on his innocence since being charged with the crime, recalled the day he was arrested by Grand Prairie police.

He was scheduled for a court appearance that day, he said, and when police arrived at the jail and placed him in an unmarked car, he assumed he was being taken to court. Instead, he said, he was driven to Grand Prairie, and under the pretense that one of the officers needed to buy some tobacco, they pulled into a convenience store.

It was after that stop that he was told that he was under arrest for capital murder -- a murder that to this day he says he did not commit.

Dunagan said the real purpose of the stop was so that Kubala could take a look at him from the window of the store. When he was taken to the Grand Prairie police station to be booked, he said that he was told about the shooting at the store 18 months earlier and "that there was a witness and that I had been picked from a photo lineup."

He could not convince police that he was innocent, and the case went to trial.

Dunagan's family had hired noted defense attorney Larry Baraka, a former prosecutor under legendary Henry Wade and a former district judge in Dallas County.

The trial was almost farcical. Prosecutors never called to the stand the person who was the "foundation" of the police's case against Dunagan: the jailhouse informant. Coincidentally, the person the informant had named as Dunagan's accomplice in the crime was no-billed by a grand jury.

The state did call Kubala to testify, and although he said the robbers had been only a "blur" to him, he pointed out Dunagan as the gunman because he remembered the "thin mustache."

How could he have seen a mustache if the robber was wearing a bandanna over his face? Well that question never got asked, because the defense attorney didn't cross-examine him.

And what about the description given police of the gunman on the day of the crime, that he was about 6-foot-1 and weighed about 200 pounds? Dunagan is about 5-foot-10 and weighed no more than 170 pounds at the time.

When the victim's wife took the stand, she testified through an interpreter.

Asked to point out the man who shot her husband, she first said she didn't see him in the courtroom.

Then she pointed to a man in the gallery, not the defendant. That man was asked to stand, and Ishrat Khan was asked if she was sure he was the shooter. She replied, "Yes."

She was asked a third time to point out the killer, and once again she pointed to the man standing in the gallery.

The following day she was called back to the stand and pointed out Dunagan as the killer. She had identified the wrong man, she said, because she was afraid of the defendant's family.

Well, guess what?

The man she had pointed to three times the day before happened to be Dunagan's older brother, Kevin Boykins. And, yes, even though they have different last names, they are brothers. Boykins, a businessman who is floor manager for an Irving auto dealership, obviously had nothing to do with robbery and shooting.

What observers noticed was that Khan had picked out the only black man in the courtroom with green eyes. His brother, the defendant, has black eyes.

If indeed the killer wore a mask, as Khan said, the eyes would have been the facial feature she would have noticed the most.

I haven't seen the jailhouse informant (whose name I'm not revealing), but I'm told he, too, has green eyes.

The defense had a convict brought from prison to Dallas who was prepared to testify that he had heard the informant talking about setting up Dunagan for a crime that he, the informant, had committed.

Grand Prairie police had told a news reporter after Dunagan was arrested that the informant's primary motivation for coming forward was to get a reduced sentence.

That witness was never called. Neither was Dunagan's parole officer, who had come to visit him the morning of the slaying, nor his girlfriend, who said he had arrived home at 1 a.m. that day and didn't leave again that morning.

Dunagan was convicted without any physical evidence (fingerprints, DNA, etc.) and clearly no positive identification by the key witness, Khan.

After his conviction and his state appeals had been exhausted, Dunagan filed a motion for a writ of habeas corpus based on ineffective counsel.

In an affidavit and during a hearing on the writ, defense attorney Baraka said it was his strategy not to cross-examine Kubala or put on a defense because the main witness had clearly not identified his client.

He said Dunagan had agreed with that strategy -- something Dunagan denies.

A federal judge magistrate recommended that the writ be granted, but the 5th Circuit Court of Appeals denied it, and the Supreme Court refused to hear the case.

Dunagan's family has spent more than $50,000 trying to prove his innocence.

"I'm going to fight it as long as God allows me to fight," Boykins said.

Dunagan recently told his brother that even if the state offered him time served and agreed to let him out of prison, "I would tell them to go to hell, because I'm not guilty."

This is one of those cases Dallas prosecutors need to re-examine.