CHAPTER SIX: WHAT DOES RAPE HAVE TO DO WITH MURDER?

 

 

            Ricky McGinn was, in all likelihood, the most abominable of rapists and killers.  He was convicted of the May 22, 1993 rape and murder of his 12-year-old stepdaughter, Stephanie Rae Flannery of Brownwood, Texas.  There was very little doubt as to his guilt, even leading up to his execution.  That’s why it’s so strange that of all the death penalty cases considered for a reprieve by Governor George W. Bush of Texas, it was only in this case that any reprieve was granted.  (The only other interference with an execution came in 1998 when Gov. Bush commuted the sentence of Henry Lee Lucas from execution to life in prison after his confessions to various murders were established to be false.) 

            Minutes before Mr. McGuinn’s scheduled lethal injection Bush granted a 30-day reprieve for further DNA testing.[1]  The reprieve came so close to the actual execution that human rights groups claimed the Governor had violated international laws against mock executions, a form of torture in which jailers threaten to kill an inmate, stage an execution, and then cancel at the last second.  (Similarly, the final decision that the execution of Karla Faye Tucker would go forward came only 33 minutes prior to her death.)

            “Any time DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it,” Gov. Bush said.[2]  The statement seemed somewhat ironic since he had already denied DNA testing to Jerry Lee Hogue in 1998, although some doubt had arisen as to his guilt in a case of arson/murder.[3]  Also, the Governor would later deny DNA testing to Richard Wayne Jones in a murder case.[4]

            As a political move, supporting DNA testing for inmates was a no-brainer since 95% of all Americans back it.  But because Gov. Bush had never granted a death row reprieve before, voters were suspicious: a Newsweek poll found that six in ten Americans thought the decision was purely political, as opposed to being based on the facts of the case.[5]  In response to the poll Linda Edwards, Governor Bush’s spokeswoman, said, “[Governor Bush] believes we have a fair process in Texas with many checks and balances, including years of thorough and exhaustive reviews by the courts, to prevent an innocent person from begin put to death.”[6]

            But the Texas record on rape convictions suggests otherwise.  It is helpful to look at rape convictions in Texas because almost every rape conviction involves DNA evidence: the semen of the rapist.  At the same time, much fewer murder convictions involve DNA evidence.  From the number of rape convictions overturned on DNA evidence we can infer that a proportionate number of murder convictions would have been overturned on DNA evidence, had there been any available.  Several rape convictions in Texas have been overturned on the basis of DNA evidence, establishing beyond a doubt that authorities sometimes arrest, try, and incarcerate the wrong man.  But no capital convictions have ever been overturned on the basis of DNA evidence.  Proportionately, this statistic suggests that several innocent, condemned men sat (or sit) on Texas’ death row, unable to prove their innocence for lack of DNA evidence.

            On the national level, of 8,048 rape cases referred to the FBI crime lab from 1988 to 1995, 2,012 of the primary suspects were exonerated by DNA evidence alone.  In other words, the man that the police initially thought was guilty of the crime turned out to be innocent of the crime 25% of the time.  There is no reason to suppose that the 25% mistaken-arrest figure in these rape cases with DNA evidence is any different from murder cases without DNA evidence.  Or, in other words, we could possibly infer that 25% of the primary suspects in murder cases without DNA evidence are innocent.[7]

            Another case of mistaken identity.  Is the Texas record any different from the national averages?  Probably not.  Christopher Ochoa and Richard Danzinger were both convicted of the 1988 rape and murder of Nancy Depriest, the 20-year-old manager of a pizza restaurant in Austin, Texas.  Christopher Ochoa was a mild-mannered honors student and editor of his high school literary magazine.  There was no physical evidence linking them to the crime.  On an anonymous tip, Mr. Ochoa and Mr. Danziger were picked up by police.  In custody Mr. Ochoa suffered through two 12-hour interrogation sessions in which detectives told him that his best friend, Richard Danzinger was about to implicate him.  They said that, if he didn’t confess, he would be put into a jail cell where he would be “fresh meat” for the other prisoners.  They yelled, pounded the table, and threw a chair at Mr. Ochoa in attempts to intimidate him.  They told him that he would get the death penalty unless he confessed.  They showed him photos of death row.  They tapped the place on his arm where the needle would be inserted.

            Exhausted and alone, Mr. Ochoa concluded that he was doomed either to the death penalty or life in prison without parole, so he plea bargained, agreed to testify against his innocent friend Richard Danzinger, and signed a confession.  Both men were convicted and sentenced to life in prison.[8] 

            In 1996 an inmate named Achim Joseph Marino, after undergoing a religious conversion, sent a letter to Governor George W. Bush stating that two innocent men were wrongly imprisoned for the murder of Ms. DePriest, which he claimed to have committed alone.  Included in the letter was information that led police to evidence from the crime including a gun, bank pouches, and keys from the Pizza Hut.  Austin police went to interview Mr. Ochoa, but he was still intimidated by his interrogation and feared that recanting his confession would jeopardize his chance for parole.  He told police that he had committed the crime.[9]

            But in 1999 he had a change of heart and decided to pursue justice.  He wrote to the Innocence Project at the University of Wisconsin Law School in Madison and asked for assistance.  Students working under project co-directors Keith Findley and John Pray discovered that DNA evidence from the victim had been preserved so they sought DNA testing.  This testing established that Mr. Marino had killed Ms. Depriest, and not Mr. Ochoa or Mr. Danzinger.  The state of Texas and Mr. Ochoa’s and Mr. Danzinger’s lawyers filed a joint application to set aside the convictions on the grounds of factual innocence, and Mr. Ochoa was released on January 16, 2001 after spending 12 years in prison.  Governor George W. Bush, who had never acted on the letter he received from Mr. Marino, was sworn into the presidency four days later.

            Mr. Danzinger could not be immediately released because he was assaulted by an inmate while in prison and suffered severe brain damage.  The state was looking for an institution to place him in.

            Four non-rapists.  Ben Salazar was home watching TV with his wife in late 1991 when a pregnant Austin woman was raped.  The next day the police picked him up, since the victim had identified Mr. Salazar from a mug shot (he had a prior indecent exposure conviction).  Mr. Salazar described his evening at home with his wife, and cooperated by offering blood, hair, saliva, and semen samples for testing.  Eventually, he was arrested and the police offered a plea bargain: confess and you’ll get 20 years instead of 30.  Mr. Salazar insisted on his innocence and demanded a trial.

            But at trial the victim identified him from the stand.  Blood tests failed to exclude him as a perpetrator, and no DNA testing was performed.  After the jury deadlocked twice, they finally came back with a guilty verdict and Mr. Salazar was convicted of rape and sentenced to 30 years in prison.  Throughout, he had insisted on his innocence.

            Over the next five years Mr. Salazar’s two children grew up some and his wife divorced him.  In the meantime, his parents and siblings held garage sales and benefit barbecues to gather the money for a private DNA test, since the state never provided one.  A private Dallas laboratory found that Mr. Salazar’s DNA didn’t match the rapist’s (who had acted alone).  The state insisted on a second test, which also came back negative.  Still not ready to exonerate the inmate, the state insisted on a third testing while releasing Mr. Salazar on a $50,000 personal bond and electronic monitoring.  Mr. Salazar’s stepfather Tony Almaguer commented, “If the state needs only one DNA test to convict someone, why does a man need three DNA tests to be cleared?”[10]   The third DNA test also came back negative.  After five years in jail for a rape he did not commit, the Texas Board of Pardons and Paroles recommended a pardon, which was granted by Governor George W. Bush.

            Carlos Lavernia was convicted of assaulting a woman in 1983 on the Barton Creek Greenbelt.  He was exonerated by DNA evidence after spending sixteen years in prison.  At the time of his arrest, he had been suspected in several sex offenses, for which he was later cleared.  He was fingered by the victim after a rigged photo lineup, and convicted solely on her testimony.  Mr. Lavernia was exonerated in October of 2000.[11]

            Anthony Robinson had always wanted to be a lawyer, even as a child.  He had served in the Army and was pursuing an undergraduate degree at Pomona College, confident that he was on the way to his dream.  But everything fell apart on the night of January 6, 1986 when he was arrested for a rape he didn’t commit.

            A white woman had been raped in a bathroom at the University of Houston, and had told police that her assailant was a black man wearing a plaid shirt and dark trousers and sporting a mustache.  Mr. Robinson was on campus to pick up his girlfriend’s car to get the brakes fixed.  He wasn’t wearing dark pants or a plaid shirt and he didn’t have a mustache, but he was a black man so the police picked him up.  There was no physical evidence linking Mr. Robinson to the crime, his fingerprints didn’t match the ones in the bathroom, bodily fluids and hair samples collected were inconclusive, and no DNA testing was done.  Nevertheless, the victim identified Mr. Robinson from the stand, and that was enough for the jury.  He was sent to prison for ten years, until he received probation.  Out of prison, he scraped together $1,800 for his own DNA test of the evidence, which proved him innocent.  Governor George W. Bush issued him a pardon on November 14, 2000.  Mr. Robinson hopes to be a public defender upon graduating from law school, specializing in helping poor clients.[12]

            A.B. Butler was sentenced to 99 years in prison for a Smith County, Texas rape and kidnaping that he did not commit.  The victim, a white woman, mistakenly identified Mr. Butler, a black man, first in a mug book, then in a police lineup, and finally at trial.  There was no physical evidence linking him to the scene of the crime, and three witnesses testified that Mr. Butler had been with them during the crime.  Still, the jury convicted him.

            For the next ten years Mr. Butler asked to have DNA testing performed on the physical evidence from the crime, but the State of Texas refused.  Finally, in 1999, with the counsel of attorney Randy Schaffer, he won a court order requiring DNA testing.  The results were negative for both hair and semen recovered from the victim: Mr. Butler had not committed the crime.  These tests were then confirmed by a Texas crime lab.  Mr. Butler was released on $100,000 bond until May of 2000 when he received a pardon from Governor George W. Bush, the same Governor who had denied him his DNA test for four years.  “I put my trust in the Lord, and when you put your trust in the Lord, there’s no reason to doubt,” he said.  “I prayed just the other night for him to reach out and touch him [Gov. Bush] and allow him to make the right decision.  It’s obvious my prayers were answered.”[13]  Mr. Butler was released from prison at the age of 45; he had entered prison a 28-year-old.[14]

            Always beware of unindicted co-ejaculators.  Deanna Ogg, 16 years old, was brutally raped and murdered on September 27, 1986 in Montgomery County, Texas.  She was killed by multiple blows to the head with a blunt instrument; she also suffered shallow stab wounds to the neck.  Ms. Ogg had last been seen going to an all weekend party where some “fine guys” were going to be, specifically Randy De Shayes (18), Bobby Charles Nobles (18), and Billy Nobles (19), according to Sheriff’s Sgt. Sherman Sauls.  All three lived in a mobile home about 100 yards from the Ogg residence, worked sporadically, and had faced charges ranging from firearms violations to burglary. 

            Although Billy Nobles later bragged in prison that he had killed a girl by hitting her with a tire iron, DNA failed to implicate him in the slaying of Ms. Ogg.  Nevertheless, suspicion fell on the Noble brothers.  Sheriff Sauls learned that two days before the slaying one of the Nobles had threatened that “something could happen” to Ms. Ogg if she tried to leave town with a girlfriend.  The Nobles are a white family.

            Ogg was also seen with two white men in a gray pickup with a headache rack (a protective barrier behind the truck’s cab), who dropped her off at home several days before the murder, and were seen in her neighborhood the day of her slaying.

            But when a local named Michael Duane Ringo implicated a black man named Roy Criner in the crime, the case was sealed.  No further investigation of anyone besides Roy Criner was conducted.  Mr. Ringo and two co-workers told investigators three slightly different stories: each agreed that he had bragged about picking up a drunken hitchhiker and having sex with her.  One of the workers quoted Mr. Criner as saying that he “had to get a little rough” with the hitchhiker.

            Mr. Criner was a big, tough logger with no criminal record and an IQ of 70, which is borderline mentally retarded.  Besides the testimony of his three co-workers that he had bragged about having sex with a white woman, the case was quite weak.  Investigators impounded Mr. Criner’s truck, which had two tires at each end of the rear axle; truck tracks from the crime scene had only one tire at the end of each axle.  The defense was never given these pictures.  One of the co-workers said that Mr. Criner had bragged of using a screwdriver to intimidate the girl, and a screwdriver was found in Mr. Criner’s truck.  The record of its discovery does not note any presence of blood.  Curiously, soon after impounding Mr. Criner’s truck, the screwdriver disappeared as evidence.  Ms. Ogg was killed with a blunt instrument, but no such instrument was found in Mr. Criner’s truck. Pubic hairs from Ms. Ogg and Mr. Criner did not match certain pubic hairs found on the body, believed to be those of the perpetrator.  Hair samples from Mr. Criner’s truck were tested, but did not tie him to the crime.  All three co-workers said the hitchhiker was drunk, but there was no alcohol in Ms. Ogg’s blood.

            The three co-workers’ testimony changed and appeared pressured.  Deanna Ogg was a blonde.  In his grand jury testimony one of the co-workers, Jeff Pitts, testified, “I don’t think he says nothing about a blonde-headed girl.”  Mr. Pitts claims that he was then pressured by investigators who interviewed him again.  After the interview he signed a second statement in conflict with his grand jury testimony, stating that the hitchhiker was blonde.

            Due to the timing of the murder, the prosecution had to come up with a theory that Mr. Criner had killed Ms. Ogg after sneaking off his work site.  They alleged that between 4:00 and 7:30, while his co-workers were getting a part for a bulldozer, Mr. Criner drove to a convenience store, picked up Ms. Oggs, raped and killed her, and returned to the job.

            There were several problems with this theory.  A guard which Mr. Criner would have had to drive by testified in court that Mr. Criner never left the site: “No one could cross that river and come down that road without me seeing them.”  He testified that he had told the sheriffs this, but they denied it.  After Mr. Criner was convicted, Mr. Pitts (his co-worker) signed an affidavit that Mr. Criner had stacked entirely too much lumber that afternoon for him to have ever left the site: “I have been in the logging business all of my life and I would not have accomplished that job by myself in that period of time.”  Also, unusually heavy rains had turned the logging road to mud, making travel difficult.  Mr. Pitts added, “When you consider both the road conditions and the amount of work accomplished at the site while Richard and I were gone, it was physically impossible for Roy to have left the logging site after I did and return before me if he left and committed the crime they accused him of committing.”  In an affidavit, Mr. Pitts’ wife Tanya said, “We told the sheriff’s office over and over that Roy could not have had anything to do with the offense because of the road conditions leading in and out of the logging site and the amount of work done.  The police were not interested in what we had to say that might benefit Roy.  They only wrote down what we said that was bad for Roy.” 

            Although the semen found in Ms. Ogg could have come from Mr. Criner, it also could have come from 44% of the adult population.

            Nevertheless, Mr. Criner was convicted of aggravated rape and sentenced to 99 years in prison.  Mr. Criner’s family immediately began working to free him.  Experienced lawyers got involved and secured DNA testing of the semen sample, using techniques not available at the original trial. 

            Tests by two different laboratories proved that the semen found in Ms. Ogg was not from Mr. Criner.  Based on this evidence state District Judge Mike Mayes ordered a new trial.  He also found that the prosecution had withheld important information from the defense.  But District Attorney Michael A. McDougal appealed to the Texas Court of Criminal Appeals to deny the new trial, arguing that Ms. Ogg had sex with someone else before Mr. Criner allegedly raped her, and that Mr. Criner had either withdrawn before ejaculating or had worn a condom.  In a terrible disservice to the victim’s family, and in a new spin on “victim’s rights,” he argued that Ms. Ogg was sexually promiscuous, which explained the presence of semen which didn’t belong to Mr. Criner.  This suggestion became known as the “unindicted co-ejaculator” theory.  The court agreed with D.A. McDougal in May 1998 and denied Mr. Criner a new trial.[15]        

            Judge Sharon Keller, now Presiding Judge on the Court, wrote the decision.  Citing “overwhelming direct evidence” of Mr. Criner’s guilt,[16] she wrote that the DNA test “shows merely that the victim had sexual relations with someone” other than Mr. Criner shortly before her death.  Later, PBS’s “Frontline” aired a documentary on the case in which Judge Keller was interviewed.  She admitted that there was a “possibility” that Criner was innocent, but that wasn’t enough.  Insulting the victim again, she cited Ms. Ogg’s alleged promiscuity and said the DNA evidence failed to prove that Mr. Criner didn’t have sex with her: “At best, he made some people think that he might be innocent, but he didn’t prove it,” Judge Keller said.  She was asked, “How can you prove you’re innocent?” by the interviewer.  She replied, “I don’t know.  I don’t know.”[17]

            Denied the appeal, Mr. Criner would have been eligible for parole in 2033.  But through his family’s work, an article by freelance reporter Bob Burtman for the Houston Chronicle, and the “Frontline” documentary, attention was drawn to the case.  New evidence, ignored in the original investigation, emerged.  A cigarette butt was found near the body which had a brown filter.  Mr. Criner didn’t smoke, and Ms. Ogg smoked Marlboro lights which have white filters.  DNA testing of the cigarette established that it had been smoked by neither Ms. Ogg nor Mr. Criner.  Tests of the blood on Ms. Ogg’s underwear established that she had not had sex with someone else before they were removed by the assailant.  The hitchhiker with whom Mr. Criner did have sex that night was found, and signed an affidavit regarding the incident.  Increasingly, the evidence was irrefutable: Ms. Ogg’s killer was still free, an innocent man was in jail, and the system refused to acknowledge this fact.  Finally, it was not a desire for justice but bad publicity that forced the case: overwhelmed by protests, letters, and the media, District Attorney McDougal wrote the Texas Board of Pardons and Paroles asking that Mr. Criner be freed.  They consented in a unanimous vote, and Governor George W. Bush signed his pardon, saying “that credible new evidence raises substantial doubt about the guilt of Roy Criner.”[18]  Mr. Criner was released from prison in August 2000, 14 years after the murder of Deanna Ogg.[19]

            Although his suffering has ended, the suffering of Ms. Ogg’s family continues.  They know that her killer has never been punished for his crime.  Patricia Ogg, Deanna’s mother, finds this situation unsatisfactory: “I can’t see holding anybody who is not guilty,” she said, referring to Mr. Criner.  “I just regret that our system didn’t do a better job.  We spent 14 years thinking he [Mr. Criner] was the one who did it . . . Now get the evidence and find the right person.”  The injustice of the situation disturbed her.  Not only did the Criner family needlessly suffer, but “my daughter has been buried, and he [the real killer] is laughing and joking and having a good time.  He’s done a horrible thing and doesn’t deserve to be on the streets.”[20]  As of June 2003, no arrest had been made in the case of Deanna Ogg’s murder.

            Another black man who didn’t really rape anybody.  In February 1985 an African-American woman was raped in Harris County, Texas.  She told investigators that her assailant was a white man.  Four months later in an east Houston grocery store the victim spotted Kevin Byrd, a soft-spoken carpenter, and claimed that he had raped her.  Oddly, Kevin Byrd is a black man.  There was no physical evidence linking him to the crime, no circumstantial evidence, no history of violence or sexual misconduct by Byrd, and no explanation as to how the primary suspect had changed color: Byrd isn’t even light-skinned.  Still, he was arrested. 

            Suddenly, the evidence began to change.  The assailant’s pubic hairs, recovered from the victim, were first deemed those of a white man, and then those of a black man after Mr. Byrd’s arrest.  The victim had been face down in a dark room throughout the encounter, but was dead certain that Mr. Byrd was the perpetrator.  Police officers Donald Duke and K.A. McDonald each wrote reports describing a white assailant; then testified that “white” meant “Latin American” and “light-skinned” black.  On the stand a crime lab chemist admitted that the African-American pubic hairs discovered were actually those of the victim, and that the other hairs were probably from a white person.  Mr. Byrd’s father and stepmother testified that he was home during the attacks. 

            After deliberating for two hours, the jury found Mr. Byrd guilty and sentenced him to life in prison.  He appealed three times, but all his appeals were turned down.  Routinely, Harris County destroys rape kits after all appeals are exhausted, but a clerical error preserved the evidence from Mr. Byrd’s case beyond its expected life span.  A friend hired a lawyer and paid his own money for a DNA test for Mr. Byrd; DNA testing did not exist at the time of his original trial.  The results came back negative; it was not his semen on the victim’s clothes.[21]

            Mr. Byrd was released on bail after 12 years in prison.  District Judge Doug Shaver, Sheriff Tommy Thomas and District Attorney John B. Holmes all petitioned Governor George W. Bush to pardon Mr. Byrd.  The Texas Board of Pardons and Paroles voted unanimously for a pardon, and it appeared that Mr. Byrd was about to be officially cleared.[22]

            But Governor George W. Bush decided not to grant a pardon.  His general counsel, Alberto Gonzales wrote, “The governor respects the role of the judicial branch and feels the courts should be given an opportunity to determine whether a jury conviction should be overturned.”  But Mr. Byrd’s lawyer, Randy Schaffer, asserted that Governor Bush “punted for political reasons.”  Fearful that Mr. Byrd might commit a crime after the pardon, the Governor decided to have the courts first exonerate him, to be followed by a pardon.[23]  Another furor was raised when it was discovered that 13 of the 14 pardons granted by Gov. Bush, up to that point, had gone to white people.  “I take offense when people accuse me or intone that I make decisions based on race,” Bush protested.  “I have no idea about the race of the people.  I’ve pardoned 14 people based on recommendations from my staff and criterion [sic].” 

            But State Rep. Ruth Jones McClendon (D-San Antonio) called the Byrd case an example of how the justice system works against African-Americans in Texas.  “The Board of Pardons and Paroles wants him to get a pardon.  The District Attorney wants him to get a pardon.  The judge who heard his trial wants him to get a pardon.  So what’s the problem?” she asked.[24]

            A new evidentiary hearing was held, Mr. Byrd was excluded as a suspect, the Texas Court of Criminal Appeals granted a new trial, and Judge Shaver dismissed the charges against Mr. Byrd.  He received his pardon on October 8, 1997, and has lived peacefully since then.

            Destroy the evidence.  One would think that, given the flood of mistaken convictions in rape cases, the state of Texas would decide to preserve evidence from rape kits so that in the future, positive determinations of guilt or innocence could be made in questionable cases.  Exactly the opposite occurred.  The very week in 1997 that Kevin Byrd was pardoned by Gov. Bush on the basis of DNA evidence (which was only preserved by mistake), the Harris County Clerk’s Office began destroying rape kits from 50 other old cases.[25]  And it was all legal.  Semen, swabs, bloody clothing, urine–all the contents of the rape kits – were tossed.  According to state law, the clerk’s office is required to preserve evidence for only two years after conviction in non-death penalty felonies where a defendant receives a sentence of more than five years.  Of course, Kevin Byrd was freed after 12 years; the law didn’t help him much.[26]  Gov. Bush, campaigning for President in 2000, would say (in the case of Ricky McGinn, as noted above) that anyone who might be determined innocent through DNA analysis should get that DNA analysis.  But he never attempted to protect such evidence from destruction.

            A laboratory of corruption.  Of course, access to DNA testing may not be helpful at all due to corruption in Texas state crime labs.  In March 2003 Josiah Sutton, a black man convicted of rape on the basis of DNA analysis by the Houston Police Crime Lab, was released from prison after an independent lab found that his DNA did not in fact match that of the perpetrator.  It turned out that the Houston lab’s results had been faked to secure a conviction.[27]  The lab had been shut down in January 2003 for incompetence and corruption, and by May 2003 a grand jury had begun a probe.  Four out of seventeen DNA analyses retested by an independent lab were found to be incorrect.[28]  This is no small number, especially when applied to capital prosecutions: if Harris County were a state it would rank third in the nation in executions.[29]  No study has yet determined what role the lab played in executions performed during the governorship of George W. Bush.

            What does any of this have to do with the death penalty?  Often, in cases of rape, Texas gets the wrong man.  Fortunately, in many cases DNA evidence (common in rape crimes) has served to free the innocent.  Unfortunately, in murder cases DNA evidence is very rare.  So, if Texas gets the wrong person fairly often, and if convicted murderers don’t have access to DNA testing to prove their innocence, then how can we know that the state of Texas has not executed an innocent person?