Law.com


Justice in a Small Town
The evidence of a massive frame-up and how it was uncovered.

John Council
Texas Lawyer
04-07-2003


It took a dozen lawyers, hundreds of hours of legal research and more than $1 million in donated legal fees. But last week a cadre of Texas, New York and Washington, D.C., criminal defense lawyers -- all working pro bono -- walked away from the Swisher County Courthouse confident that they had extracted a bit of justice for a group of 38 defendants from the small Texas panhandle town of Tulia.

Their efforts could lead to the exoneration of some or all of the group of mostly black defendants, whom the lawyers believe were wrongly convicted as part of a sweeping drug bust four years ago in which 12 percent of the town's black residents were arrested.

Central to the 3-year-old litigation is the allegation that a lone undercover officer who arrested the defendants in July 1999 was not credible. The defense team alleged in a habeas petition that the defendants' convictions were based on that officer's uncorroborated evidence. They also alleged the officer hid a troubled employment background from defense counsel and used racial slurs.

On April 1, after a week of testimony in habeas corpus hearings in the cases, the defense team scored a key victory: Both the prosecution and the defense agreed to stipulate that the undercover officer was not credible.

"What a day for us," a jubilant Jeff Blackburn said in an interview outside the Swisher County Courthouse on Wednesday. Blackburn served as local counsel for the defendants.

"We're very, very happy that instead of running this thing out, the state finally woke up and decided they could no longer handle these cases," Blackburn said.

As part of the agreement, Swisher County agreed to pay $250,000 total to the group of 38 defendants; in exchange the defendants agreed not to file civil suits against the county.

During the Tuesday hearing, visiting Judge Ron Chapman said he would recommend that all of the Tulia defendants receive new trials. The next stop on the defendants' procedural path to freedom is the Texas Court of Criminal Appeals, but the fight is far from over. The defense team will have to present a legal issue that has deeply divided the CCA.

TURNING POINT

On March 17, prosecutors faced off against at least 12 lawyers working pro bono, many from well-heeled firms in Washington, D.C. As the habeas hearing dragged on, the decision to enter into a stipulation regarding the undercover officer's testimony seemed to make more and more sense. In fact, prosecutors admit that they felt their case slipping away when Thomas Coleman took the stand on March 21.

Coleman's testimony about his own history, including an arrest for theft and official misconduct, didn't seem credible, says Rod Hobson, a special prosecutor in the case.

In testimony, it was shown that the charges against Coleman in Cochran County, where he had allegedly filled his personal vehicle with county gas, were dropped after he made restitution, Hobson says. It didn't help that Coleman also testified that he sometimes used the "n" word, Hobson says.

"It was an avalanche for us," says Hobson, a Lubbock criminal defense attorney who prosecuted the case along with Dallas solo John Nation. "After the cop testimony, we had to get out of the way."

Nothing could help the prosecution after Coleman took the stand, Hobson says. Coleman could not be located for comment.

Hobson says that prosecutors will not retry the case if the Court of Criminal Appeals grants the defendants relief.

"It came down to this: If they get a new trial who's going to retry them? Nobody," Hobson says. "So we decided to end it there."

Hobson says Swisher County District Attorney Terry McEachern hired him after it became apparent McEachern's small office needed help in the case. McEachern did not return two calls seeking comment.

GETTING INVOLVED

After the story of the Tulia arrests began making national news three years ago, lawyers for the New York-based NAACP Legal Defense and Educational Fund (LDF) got involved in September 2001 and started enlisting pro bono lawyers to represent the defendants in their appeals.

Blackburn, who had previously represented two of the defendants, served as local counsel in the habeas hearings for the LDF, which also convinced six lawyers from Washington, D.C.'s Wilmer Cutler & Pickering and six lawyers from D.C.'s Hogan & Hartson to represent some of the Tulia defendants.

"Historically we get involved where there is strong racial bias in criminal law cases," says Vanita Gupta, a staff attorney with the LDF, whose organization represents 36 of the Tulia defendants. "We were shocked that something like this could happen in 1999."

"Before you knew it, we had a crusade on our hands," says Blackburn, who estimates he donated legal services worth $72,000 to help with the defense.

Lawyers from the D.C. firms say they spent more than $1 million in donated legal time and expenses defending the Tulia cases. They committed a dozen lawyers who worked around the clock since February preparing for the Tulia hearings.

"I'll tell you. I've been litigating for 24 years and it's the most satisfying experience of my career," says Ted Killory, a partner and commercial litigator in Wilmer Cutler & Pickering.

Killory and the other five lawyers from his firm helped organize 15 to 20 witnesses in the case.

"It's unfortunate you have to make this kind of commitment," Killory says, referring to the time and money spent on the case. "But in the interest of justice, that was the commitment that was necessary to bring justice."

Mitch Zamoff, a partner in Hogan & Hartson and a former Assistant U.S. Attorney in Philadelphia, got the assignment of examining Coleman on the stand.

"It was in many ways shocking," Zamoff says of his examination of Coleman. "I certainly believed going into that exam that he had problems with prior statements."

FAR FROM OVER

Despite their success in the habeas hearings, the Tulia defendants -- 13 of whom are currently incarcerated -- are far from free.

Following the mass arrests, 27 of the defendants pleaded guilty to drug charges -- and that may prove to be an insurmountable hurdle when the case comes before the Court of Criminal Appeals. The CCA has struggled over whether to grant habeas corpus relief to a defendant who voluntarily pleads guilty.

Over the next three weeks, defense lawyers and prosecutors will be hard at work, trying to build a case strong enough to sway the Court of Criminal Appeals to decide for their side. This involves formulating findings of fact that will show how Coleman's testimony impacted each of the Tulia defendants' cases.

Those findings will have to be approved by Chapman and submitted to the CCA.

"What we think the Court of Criminal Appeals wants to know is how the testimony affects the cases. In the guilty plea cases, Coleman didn't testify," Hobson says. "So there's no way to show that he perjured himself at their trials."

The issue of whether the defendants who pleaded guilty should be granted relief has been a hot topic at the CCA. A sharply divided court ruled on Dec. 18, 2002, in Ex Parte Tuley that a defendant's guilty plea does not preclude him from claiming in a post-conviction writ application that new evidence establishes his innocence. Prosecutors have asked for a rehearing of that 5-4 decision.

The Tulia defendants are not assured a favorable ruling from the CCA, even though the trial court is recommending relief, says Gary Udashen, a Dallas lawyer who specializes in appellate criminal law.

"I wouldn't be entirely sure that the Court of Criminal Appeals would go along with it. They obviously should because you have the prosecution agreeing that the witness is not credible," Udashen says. "But the Court of Criminal Appeals is generally unpredictable, and they have the final say in it."

Whatever the court decides, he says, the ruling is unlikely to be unanimous.

Still, defense attorneys believe they have a strong argument. And the CCA must consider the real-world reasons why the defendants pleaded guilty, Killory says. Killory believes the defendants pleaded guilty because the first defendant who went to trial received a sentence of more than 90 years in prison.

"They faced similar prospects if they went to trial," Killory says of the remaining defendants. "The taint of the unreliable testimony ... affected all of these cases."

Diane Beckham, a senior staff attorney for the Texas District and County Attorneys Association, says she fears the Tulia cases will unfairly blacken the eye of the state's criminal justice system.

"What is really, really a shame in the whole Tulia case is one officer's actions are being imputed to the whole criminal justice community in Tulia," Beckham says. "Certainly the prosecutors will want to regularly make sure their officers are credible. But at some point you have to trust that your officers aren't out there doing the exact wrong thing."



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