On the drive to county jail, the sun burst from the clouds, shining through the patrol car’s windshield in a way that only the September Texas sun can. It felt a bit like a movie, where after traveling many miles through the storm, the leading man finally makes his way to the other side.
I foolishly thought that my moment was right around the corner. But my return to county jail brought a new sense of isolation. Even though I was no longer on death row, I had lived on death row for many years, and I was the only inmate in county jail who had been charged with capital murder. So, the jail put into place new rules that applied only to me: I was put in a cell by myself. I was prohibited from spending rec time with other inmates. I had the visitation room to myself, too, and could entertain guests only after everyone else had kissed their families good-bye. The jailers put out the word on me, threatening trusties who dared to talk to me. Their classification system restricted anyone and everyone from being around me except the jailers in charge of their shifts. Visitation rules were severe. Twice a week I could have guests for twenty minutes at a time. Whether those guests came from down the road or from Europe, they could spend with me roughly the length of a commercial-free episode of Seinfeld. County jail surely didn’t carry with it the constant stench of death’s anticipation, but it carried other horrors. The solitary confinement suggested to me the state’s sinister motives. They wouldn’t be lying down on my case.
The food in county was a welcome change, however, from the inedible offerings of death row, where at times inmates served as guinea pigs for “nutritional” offerings not yet approved by the FDA. The prison guards didn’t even know what they were feeding us half the time. There had even been a lawsuit to ban a soy substitute that had been found harmful to human health, a foul product that had been served up on death row for years.* Things were different in county. Friday brought a fish fry. It had been fourteen years since I’d had fish.
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* State Department of Criminal Justice v. VitaPro, Foods Inc., Supreme Court of Texas, decided December 9, 1999.
SEPTEMBER 2006:
UNCOVERING PROSECUTORIAL MISCONDUCT
ALMOST SIX MONTHS HAD PASSED since the Fifth Circuit appellate court ruled in my favor and sent the case back to the trial court. I continued to sit in the Burleson County Jail, waiting for what came next.
Now that my case had been overturned and set for retrial, I needed to find trial lawyers again, which meant that Roy had done his job. Roy was an appeals attorney who only represented clients after they lost their trial in the court below. He would then litigate through the appellate court process after the conviction in the trial court, and try to get the conviction thrown out and sent back for a new trial. Since we won our appeal, I now needed attorneys who were experts in the area of trial law for serious criminal cases. It was time to turn it over to some experienced trial lawyers this time around.
The first call went out to Dick DeGuerin, who’d left me at a time of need almost two decades before. We figured he might welcome an opportunity to make good. After all, he’d stated his belief in my innocence at the time he withdrew from the case. DeGuerin expressed interest but said he’d need a $100,000 budget for expenses. It was too much. Again. Before he made his offer, DeGuerin asked Nicole a question that still haunts me: he wanted to know if we had any celebrities on our side.
He wanted the publicity. We didn’t have any. My case had attracted the attention of human rights activists around the world, but there weren’t any Oprahs or Danny Glovers to ring the bell in the national media. So DeGuerin backed out and missed a second chance to fight my case.
Shortly after that, at an event she attended one evening, Nicole met Jeff Blackburn, one of the best capital litigators in the state, and mentioned my case to him. She was sure that Charles Sebesta and Burleson County were intent on a retrial, she explained to him, and that I was looking for representation. Jeff volunteered to take my case. Jeff’s reputation was owing to a brilliant legal mind; he was also a slick talker. He brought with him David Mullin, another excellent attorney whose intellect was matched by a big heart.
Jeff and I also asked Nicole to become an official part of my legal team. She knew the case better than anyone, and would be able to help significantly if she had access to my legal records. It was the best decision we ever made. Nicole did her homework. She was diligent and persistent. She followed the evidence. God was making sure that I had an angel on the team. Together, the four of us began preparing for round two in my fight for freedom and justice, and for my life.
On the day of my first hearing, however, the judge on my case had other plans. There was not going to be any apology made to me that day. It had been a long time since I’d been in that court. While I sat on death row, Judge Harold Towslee, who had presided over my first trial, had retired. As is customary in small Texas towns, his family name never left the bench. The position was passed down, as if through some sort of hereditary osmosis, to his daughter, Reva, soon to be known as the honorable Judge Reva Towslee-Corbett. And you can bet she wasn’t about to let her father’s legacy get dragged through the mud if she could help it, as it might have been if my case was dropped. We settled in for a fight.
I found a bathroom where I could change into my free-world clothes. I wasn’t sure they’d fit. For more than a decade, I’d been wearing loose-fitting prison garb. Tailored suits were foreign to me now. I wanted to look good, though. I’d learned enough about the justice system to know that the way one looks can shape the outcome before the trial even starts. Things shouldn’t work like that, but they did. I had the jail nurse take my measurements so my attorneys could eventually get me a suit that fit for the many court appearances I knew I’d have. In the meantime, I slumped into the only suit I had, like a kid throwing on his dad’s jacket for a one-time occasion. I knew I looked unkempt, but that suit beat the one I’d been wearing for so many years before.
As the hearing began, Nicole cut through my anxiety with a firm embrace. Jeff complimented me on my new look. When the clock struck half after nine, we walked into the courtroom hoping to hear some good news.
My mom sat in the corner with the rest of my family. I remembered the last time I’d seen her looking at me from that seat. She’d assured me with her eyes that everything was going to be all right. Now she had renewed hope. I gave my family a smile.
I sat beside Nicole at the defense table. Jeff and David exchanged pleasantries with the representatives from the DA’s office. Their exchange gave me an uneasy feeling. I knew that defense attorneys needed to maintain relationships with prosecutors in order to get things done. But I didn’t like the look of my attorneys smiling and laughing with the men who were trying to steal my freedom and my life. Nicole must have felt the same way. She didn’t join the rest of the team at the DA’s table. She sat beside me before finally trying to figure out just what the day would bring.
“Nicole, what’s going on?” I asked.
“We’re still not sure. The prosecutors said this is the judge’s party. Even they don’t know why we’re here.”
The familiar call from the bailiff shook the room a few minutes later. “All rise!” he said, compelling the room to its collective feet.
Judge Towslee-Corbett entered and took her place behind the large piece of wooden furniture designed to emphasize her authority. She seemed calm on the bench. As it turned out, the hearing didn’t have much of a purpose at all. The judge wanted to give defense counsel and the prosecutor’s office a chance to meet, and she said she needed to impose a gag order on the parties in the case. My lawyers didn’t like it. For fourteen years, I’d been buried behind some set of bars or another, and I’d dreamed about having my day in court. That day had come, but the state didn’t seem interested in righting its wrongs. In fact, the judge’s order was designed to limit public exposure of my case. She didn’t want the media covering what had happened. There was already an article in the Houston Chronicle, by a reporter named Harve
y Rice, who had started writing about my case before I was released and continued to highlight the proceedings as they took place. He was put on pause by the gag order, but we fought it.
We eventually made a formal appeal. A district judge ruled that Judge Towslee-Corbett had overstepped her authority by issuing the gag order. It would soon be lifted, but still, the meet-and-greet had an even more nefarious purpose. When the Fifth Circuit overturned my conviction, it mandated that the trial court must either try me or set me free within 180 days. The state argued that with the meet-and-greet, it had satisfied this mandate. The new trial had begun, prosecutors argued. This started a parade of resets. The state would reset my trial date for the next four years, finding some reason or another why we couldn’t yet proceed. If the wheels of justice turn slowly, we were stuck in the maddening mud. My emotions ran the gamut as they played this game with my life. I knew that I had to stay patient. I knew the war of attrition the state was waging: confine you until you are ready to accept a plea bargain. I had made my mind up years before that the state and I only had two choices on the table to resolve this situation: they were going to have to kill me or set me free. I wasn’t going to take any compromises.
Through my attorneys, the state offered a life sentence. I took that as a slap in the face. I knew by now they had a pretty good idea that I was innocent, and instead of acknowledging it and letting the system work, the new presiding judge decided that she would postpone the case as long as it took for her to find a way to retry me. I knew it was going to be a fight after I had witnessed the judge make one bad ruling after another to help give the prosecutor an advantage. By now I had my firm resolve: I was going to keep on fighting.
Many of the trial court’s rulings seemed curious, and some were just too incredible to fathom. The Fifth Circuit had found Robert Carter’s original trial testimony to be false. Still, the trial court judge granted the prosecutor’s motion allowing that same testimony to be used in my pending retrial. How could any rational mind believe that to be possible? How could a trial judge allow perjured testimony to be admitted in a retrial for capital murder? Judge Towslee-Corbett seemed resolute in her desire to help the state get its second guilty verdict. I returned to jail with uncertainty abounding.
It was shocking to see how far the rules would bend toward the prosecution, and how accepted it was when it happened. I had a very hard time accepting it myself, and still cannot believe that Towslee-Corbett ignored the Fifth Circuit’s opinion and allowed the prosecutors to use Robert Carter’s perjured testimony a second time, even though a higher court had found the testimony to be a lie. My attorneys and I were always of the mind that, because she was presiding over a case in which her father had presided and got it wrong, she was unable to be impartial. We were right. She did everything she could do to give the prosecution an edge. She made one bad legal ruling after another.
We filed a new motion asking the judge to provide us with any information that might cause her to have to recuse herself. Instead of responding to the motion, she set up a recusal hearing without our knowledge. Towslee-Corbett brought in her district judge to preside over this hearing. When my attorneys told this judge that we hadn’t been informed that this recusal hearing was granted or scheduled for that day, and that we weren’t prepared to be heard on the matter, the district judge denied our argument and ruled that Judge Towslee-Corbett had every right to stay on the case. I wasn’t shocked by this outcome, because I had seen this type of behavior by our courts for fourteen years at that point. I had witnessed politics playing a larger role than justice in our criminal justice system.
Nicole’s visits back in county became much more frequent and personal after this. While death row put physical and emotional distance between clients and their visitors, county was more laid back. Officers let Nicole into the visitation area where inmates sat. There were no bars between us. We didn’t have to make pretend handshakes through Plexiglas by holding our palms pressed up against the barrier. We communicated like friends.
She was my connection to the outside world, and over time, I became a bigger part of her world too. When Nicole first visited me and first took an interest in my case, we’d been very honest with each other. She didn’t want to come visit me in the first few months. She was trying to review the case with an objective, journalist’s eye. She feared that if she came to see me, she’d be wrapped in a bundle of emotions that might blind her to the truth. I appreciated Nicole’s approach. By the time ten years had passed on death row, I wasn’t in the market for any more friends. I just needed someone who had the ability, determination, and willingness to help.
“If you’re going to come in here and help me,” I told her during that first meeting, “you better be willing to commit to the long term.” I’d had too many people come in and out of my case. They were tourists in my struggle, wanting to help but not really knowing how. Some had become overwhelmed by it all, unable to handle the emotional toll that came with helping an innocent man on death row. Many had good intentions but lacked the ability to follow through. By the time Nicole came along, I didn’t have time for another well-intentioned interloper. I needed someone committed to the case. I gave her an ultimatum that helped to shape the future of our friendship.
“If you’re not willing to see this thing through,” I told her from behind the separating wall at death row, “then thank you for caring, but don’t come back.”
Nicole didn’t say a word. She must have gone home to think about it, to think about the consequences of putting her family through the emotional roller coaster of a real innocence investigation. How would she tell her children if my case didn’t turn out the way we wanted? How would she handle investing in the life of a man who might be killed by the state? Whatever the calculus had been, Nicole made her choice. She showed up at death row the next time for our visit. We never talked about that conversation, but when she made the long, hard drive back to see me again, I knew she had decided that the emotional toll was worth it. She’d decided that I was worth the risk.
As Nicole’s visits grew more frequent, we developed a routine, and our friendship strengthened in the face of trauma and shared experiences. She’d start our sessions by listening to me complain about whatever had been happening in prison. The food served to us was beyond bad, the conditions were hot, and I struggled at times to hang on to the positive attitude that kept my mind alive. We’d eventually move on to the case. Nicole told me how she’d found information on the faulty loudspeakers in the county jail. She’d explain other ways my legal team had chipped away at the state’s evidence.
In 2007, in Nicole’s continuing work on the evidence to prepare for a retrial, she met with a former jailer named Wayne Meads. During my original trial in 1994, a man named John Robinson had falsely testified against me, stating that he and Meads had supposedly overheard me incriminating myself over the intercom speakers. Wayne later told Nicole that it never happened, and if it had, that would have been something he would have definitely remembered. His statement to Nicole was backed up by the fact that Sebesta never called him to testify to overhearing that conversation. Means died sometime around late 2008, after the meeting with Nicole.
Meanwhile, Nicole talked to Roy Allen, who told her how the DA’s office had tried to convince him that they had collected all of this evidence against me. They claimed unflinchingly that they had my blood in evidence, and so on. They’d lied to him. Roy was especially upset with the prosecutor’s investigator E. K. Murray. He told me many times that Murray and Bill Torrey, the second-chair prosecutor, were just as guilty as Charles Sebesta for wrongfully convicting me. Bill Torrey’s name didn’t often come up in the attention surrounding my case, but Roy felt he was in lockstep with Sebesta in the misconduct.
We discovered more and more incredible information, mostly through Nicole’s work, as we prepared to challenge bad evidence and offer our own in anticipation of another trial. Despite having my conviction reversed, I was still at the me
rcy of the process. Would the DA acknowledge the many mistakes and dismiss my case? Unlikely, as that would mean taking responsibility and even admitting prosecutorial misconduct. That was never going to happen. So we had to scour existing evidence and chase down every claim in our efforts to be ready this time at trial, eyes open and fully armed with facts.
In addition to the false claims of inculpatory evidence, such as having my blood, and the souvenir knife that the prosecutors tried to link to the crime, there was a woman named Mildred Bracewell, who had worked at a local convenience store in Somerville the night the murders had occurred. She had identified me in that 1992 lineup as the man who had come into the store that night to buy gasoline. After my case was reversed, we arranged for Bracewell to attend a hearing, where it became evident that she’d had no clue who I was. She had given a physical description that completely ruled me out. And when I’d stood in front of her, she said that she didn’t remember ever seeing me. She had just wanted to aid the police and ended up being taken advantage of, ultimately helping the state secure a wrongful conviction in a capital murder trial.
My attorneys had changed many times by now, so we did all we could to keep this information organized as the stack of errors piled high. Overall, I could sense the light switch go on for Nicole at some point in those visits, with all this information coming out and from getting to know me as a person. She started as a cautious believer in my case, and finished as a champion for justice. She was such an important part of my legal team. They all were at this point.
Often during my visits with Nicole, my conversations with her would meander from the case to more personal topics. I’d ask about her kids and how her students were doing at St. Thomas University. One Christmas, she brought me six shrimp in a plastic bag and a copy of the Houston Chronicle’s sports section. She knew it was the little things that prison can take from a man that sometimes mattered the most. We eventually moved to lighter things. Once I noticed her fidgeting through her purse. She’d forgotten to leave her iPod in the car. It was the first time I’d seen the new music device. She showed me how it worked, that fancy triangle spitting out whatever music you wanted to hear. I learned about playlists and the ability to move from song to song without having to adjust the tape. It was all “digital,” which was a whole new world to me and illustrated how much was passing me by out there. “One thousand songs in your pocket” was Steve Job’s revolutionary invention, and it was astounding to me to discover.
Infinite Hope Page 20
