12:00 AM CDT on Saturday, June 28, 2008
By TIARA M. ELLIS / The Dallas Morning News
One of the victims of a 1992 abduction, robbery and sexual assault said Friday he's unconvinced that a man recently cleared in the case through DNA testing should go free.
The DNA testing, two confessions and a polygraph test all show that Patrick Leondos Waller did not commit the robbery, kidnapping and rape for which he was blamed more than 15 years ago, Dallas county prosecutors and defense attorney Gary Udashen agree.
But one of the victims, who asked that he not be named to protect the identity of his now ex-wife who was with him the night of the crime, recalled Friday how the two of them were forced into a vacant house at gunpoint and robbed. The man identified Mr. Waller in court during the trial.
Despite the genetic evidence, the man is still not ready to say that Mr. Waller is completely innocent. He questions whether two men who recently confessed to the crime – but can't be prosecuted for it because the statute of limitation has expired – did so to protect Mr. Waller.
"What I don't like is that it automatically presumes him innocent," the man said, adding that in his opinion, Mr. Waller could still be guilty of the robbery even if he is no longer implicated in the sexual assault. "Just because it cleared Patrick of one thing, it does not clear him of the other."
At his trial in December 1992, Mr. Waller was convicted of aggravated robbery and sentenced to life in prison. He also pleaded guilty to two aggravated kidnapping charges in exchange for 30-year prison terms for each count.
Trial testimony showed that before the victim and his then-girlfriend – now his ex-wife – were abducted, two men had already kidnapped another couple from the West End. They were forced at gunpoint to an ATM and then taken to an abandoned building in Oak Cliff where the woman was raped.
Evidence shows that the second couple unwittingly showed up at the building to take pictures of it for a possible video shoot, the man said Friday. That's when they were forced inside.
Mike Ware, who oversees the Dallas County District Attorney's conviction integrity unit, said that six months ago DNA test results showed that Mr. Waller did not match DNA taken from a rape kit in the assault. But that did not fully clear Mr. Waller, 38, because the victim was sexually assaulted by two men.
DNA did connect Byron Demond Bell to the rape. In May, Mr. Bell, 38, was questioned about the 1992 incident at his parole officer's office, where he admitted to his role in the attack. He also named his co-conspirator, Lemondo Simmons, who later admitted to his role in the crime, Mr. Ware said.
Mr. Bell also passed a polygraph test about what he admitted to authorities.
"We had DNA, polygraph. We had sworn testimony where logically they had every motivation to tell the truth," Mr. Ware said. "That's all we were after was the unmitigated, historical truth."
Mr. Udashen has asked for a court hearing next week to re-consider Mr. Waller's conviction because of the new evidence. He has also said that if Bill Hill, the Dallas County District Attorney when Mr. Waller originally asked for DNA testing in 2001, had not opposed it, Mr. Bell and Mr. Simmons might have been convicted for this case. At the least, Mr. Bell might still be in prison, he said.
Mr. Bell was sentenced to 45 years in prison for a burglary and received parole in February after serving 15 years. The parole board was not aware of his culpability in the 1992 offense, however, because his confession occurred after his release.
Mr. Hill could not be reached for comment.
John Rolater, who once oversaw DNA test requests for the Dallas district attorneys office and is now in the Collin County district attorney's office, said it's unfair to blame Mr. Hill for not approving DNA testing in Mr. Waller's case.
Prosecutors recommend whether they believe a request for DNA testing meets the statute allowing it. Then the judge rules on the information presented by prosecutors and defense attorneys, Mr. Rolater said.
"DAs are not the firewall on DNA testing," Mr. Rolater said. "It's the judge who makes the final decision. You have to meet the statute requirements and a judge has to agree."