Houston Chronicle

Aug. 8, 2004

Law tough on wrongly convicted

By RICK CASEY
Copyright 2004 Houston Chronicle

In America, we profess you are innocent of a crime until proven guilty.

And we don't make it easy for prosecutors. They have to get 12 jurors to agree unanimously "beyond a reasonable doubt."

It's a good standard.

But say that some time after you've been convicted it comes out that the crime lab technicians either were egregiously incompetent or cooked the books and lied on the stand.

Or say DNA evidence not available at the time of your rape conviction shows the semen wasn't yours.

Or say it comes out the prosecutor hid some evidence that put your guilt in doubt.

Any or all of those things can happen, but that doesn't mean you will be released or even get a new trial.

Powerful evidence

The reason is that even if every rule in the book was violated in gaining your conviction, the rules change once you are found guilty.

George Rodriguez is finding that out. Rodriguez received a 60-year sentence in 1987 for abduction and assault of a 14-year-old girl.

As stories over the past few days have detailed, there is now powerful evidence that Rodriguez didn't do it. Not the least is expert findings that the Houston Police Crime Lab presented false evidence and testimony, either because of incompetence or dishonesty.

It seems clear no jury would unanimously conclude Rodriguez's guilt beyond a reasonable doubt if they knew the pubic hair found in the girl's panties was not his and DNA showed the semen belonged to someone else.

Notorious court

But because he was found guilty — possibly as a result of perjury by a public official — Rodriguez has a taller mountain to climb in getting out of jail than prosecutors had to climb to put him there.

The standard he has to meet depends on whether he appeals to state court or federal court.

In state court, he must prove his "actual innocence."

But the standard isn't that he is no longer shown beyond a reasonable doubt to be guilty. It isn't even that he is innocent beyond a reasonable doubt.

He must prove that no reasonable person would find him guilty.

And the panel that decides that question isn't a jury of reasonable people. It's the notorious Texas Court of Criminal Appeals, whose chief famously ruled against releasing a man convicted of rape because DNA tests showed the semen wasn't his.

The girl was known to be promiscuous, the chief judge wrote, even though that was nowhere in the record. What's more, the convict may have worn a condom.

Some of the jurors said they wouldn't have convicted the man under the new evidence, but not Chief Judge Sharon Keller. Her standard was, "He might have done it."

In federal court, even actual innocence isn't enough. You have to prove something more, such as that your constitutional rights were violated. It wouldn't be enough, for example, that the crime lab got it wrong. You must show they knew they were wrong or were reckless in their results.

The rules are rough in another way. Say you were convicted because your attorney committed malpractice.

Sorry, you can't sue your attorney unless you can prove (under the above standards) that you were innocent.

That 1995 Texas Supreme Court decision came in a case where a federal prosecutor said he offered a woman immunity in a white-collar case if she would testify truthfully against others. She said she accepted a guilty plea after a lawyer failed to inform her of the prosecutor's offer.

Some sophisticates thought it relevant that the lawyer in question was a past president of the State Bar and at the time of consideration the establishment candidate for mayor of Dallas.

"The day that decision came down, I canceled my malpractice insurance," a friend practicing criminal law said with a laugh. "I don't expect I'll ever be sued by someone I get acquitted."

Reach Rick Casey at P.O. Box 4260, Houston, TX 77210, or rick.casey@chron.com.



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