Thursday, November 6, 2008
James Waller has every reason to be angry. He spent almost 11 years in a Texas prison after being wrongfully convicted of raping a 12 year old boy more than two decades ago. And yet, as he took his seat at a panel comprised of Dallas County DA Craig Watkins, SMU's Tony Pederson and Rick Halperin, public defender Michelle Moore and Texas Monthly senior editor Michael Hall (whose article in this month's edition should not be missed) at SMU Thursday night, anger was not the emotion he projected. Gratitude, yes. Incredulity, yes. A dislike of the Henry Wade era, sure. But anger? No. Waller was arrested on Nov. 7, 1982. In January 1983, he was convicted by a jury that deliberated for less than an hour. One eye witness, he said, put him at the apartment complex that was the scene of the crime for a time period that was impossible - he was already in jail for the offense he was being tried. Hair samples taken from him to match to the crime scene did not match. They gave him 30 years. "I begged to be put in a lineup," he said, certain that once the witness saw him in one, he wouldn't be able to pick him out. "They wouldn't put me in no lineup." "The jury believed I was guilty," he said. "The jury believed I was 5' 8" and light complected." "I was in prison for 10 years, 11 months and three days," Waller said. But getting out wasn't a picnic, either. He was on parole, and was a registered sex offender. He was required to visit his parole officer (who regularly changed) three times a month. "They treated me worse than dirt," he said, adding that after each visit, he felt so dirty that he'd go home immediately and bathe. "I did whatever they told me to," he said of his parole requirements. But that whole time, he worked hard to not stay angry. "If I were to stay angry," he recalled, "I wouldn't have been able to work on my case." "Bein' angry wouldn't do me no good." You'd think that going to prison for a decade for a crime you didn't commit would be hard. But no, Waller said. The hardest thing was losing his wife and infant son in a car accident. It hit him hard enough to make him take a two year break from his incessant quest for justice. But he also knew from his trial that there was some kind of evidence at the scene of the crime. That knowledge spurred him to continue to ask for DNA testing. A lot of money and several lawyers later, the Innocence Project of New York took his case, and after a year and a half, his test exonerated him. In 2007, he was pardoned by Rick Perry. Now he just wants to get married again. Have children, so he can have grandchildren before he's 75. "I just want to enjoy the rest of my life," he said. Thirty-seven men have been cleared of crimes in Texas - more than any other state in the country. Collectively, they have served 525 years behind bars. Twenty of those 37 were from Dallas. Craig Watkins was voted in to office on 2006. "My first week in office," he recalled, "someone was exonerated." As he watched the man walk out a free man, Watkins was struck by the look on the man's face. "It looked like he saw light for the first time," he recalled. That experience - combined with his years as a criminal defense attorney - spurred him to partner with the Innocence Project. Instead of denying all DNA requests unless by court order, as the former DA's were wont to do, Watkins and his attorneys began actively looking at cases that might need to be reviewed. They started with 400 cases - people who had applied for DNA testing before. Ten more people have been exonerated since that time. "My critics will tell you that I'm a defense attorney acting as a DA," he said. Watkins said he's more interested in changing the culture of justice making in Dallas. The tough on crime, convict at all costs mentality, he said, actually made crime worse. "We had that 'anyone will do, just give us a warm body,' mentality," he said. "More often than not, in pursuing these exonerations, we'd end up solving the crime." Good thing, right? Sure, but the statute of limitations usually has run out in the meantime. Sometimes, they find the real perpetrator behind bars, convicted for repeating that crime. Sometimes, they're out among the public, and will even go into a grand jury, admit what they did, and then walk out of that courthouse knowing they'll never be convicted. "We were complicit in keeping the crime rate high," he said, by allowing real criminals to go free. Really, Watkins said, he is only requiring what the Texas code demands of his department - to pursue justice. Through that, and through this hard work at ensuring there is enough evidence to convict, the Dallas County DA's office can engender trust with people - many of whom will eventually serve on a jury. "We ask you to believe us, and you do," he explained. Watkins also had praise for the county's constituents. "You should be proud that we are going to set the tone for justice," he said. "Applaud yourself." Watkins blames ego during the Wade era - and those holdovers from it - for becoming the roadblock to many of these DNA tests happening years ago. There were many cases where people were convicted through eye-witness testimony only. Those cases are now getting priority in DNA testing. "But you'd be surprised how many come back positive," he said. They also haven't been inundated with requests for DNA tests - although Moore said it's a steady stream. His office has now begun reviewing pending death penalty cases from Dallas County. There are about 40, he said, and they've been looking at about eight cases a month. And Watkins was conciliatory about Wade. "All of us really want to do the right thing," he said. "Some just had blinders on. In their heart of hearts, I think the wanted to do the right thing. I don't think Henry Wade was a bad man. I think he got caught up in the mystique of himself." "In fact," he said, ruefully, "that's what I'm afraid of. You always have to check yourself." Moore said that much of the problem is how many cases hang on just one thing - eyewitness identification. "Eyewitness identification is fallible," she said. Photo lineups are also bad, and can be administered in widely varying ways. "It's not consistent," she said, adding that the proper photo array should be a double-blind, sequential lineup. One witness, she said, got a six person photo array in the mail a year after the crime was commited. Watkins said he is working with the Dallas PD to adopt the double-blind method. Richardson PD, he added, adopted the method on their own. Watkins would also like to see legislation passed on a state level that would require a uniform evidence storage requirement, some kind of standards for identifying a potential offender by witnesses, and recording all confessions. On a local level, Watkins said they won't try a case based on an eyewitness ID alone. It's a stance that's not winning him the ringing endorsement of police associations, but one he feels is right. "If you send back a lot of cases, saying 'you gotta do more work,' you're not gonna be popular," he said. "I probably won't get any endorsements when I run the next time. But I didn't get any the last time either." Hall said the sheer number of exonerations demanded a story in Texas Monthly. The were able to get 22 of the exonerated together for a photo, and then began interviewing them for their stories. A common thread ran through all of them - how miserably hard it is once you get out of prison. If you're paroled, you get $100 from the state, and a plethora of programs to help you find a job. If you're exonerated, you get nothing. Often, these men have spent at least a decade behind bars, learning no job skills. While it isn't the first time I've written about Craig Watkins, or those exonerated in Dallas County, it is the first time I've gotten to see - in person - the toll it can take. An audience member asked what kind of recourse an exonerated prisoner has - surely they can sue, she said. Surely. Moore said, yes, they could sue. They could also apply for money to compensate them for their time - $50,000 a year for each year they spent behind bars. But it's capped at $300,000. The other insult? It's taxed 40% because it is considered a windfall. So what can we do? I, for one, plan on writing recently re-elected John Cornyn, and every congressman I've ever met as a reporter, and asking why the tax code can't be changed to remedy this ridiculous tax. Donate to the Innocence Project, so they can help more wrongfully convicted people wrest their freedom back. If you're in Dallas, contacting your county commissioner to express your appreciation for the county's conviction integrity unit, and stressing its importance in any future budgeting for the county is another way you can help. Watkins said that they have funding for the unit for two more years. After that, they'll have to re-apply again. Is he worried, I asked, about that funding? "I am always worried about funding," he said. In his first budget cycle, he asked for 64 additional prosecutors. "I got one," he said. The department has 250 prosecutors and handles thousands of cases a month. It's underfunded, understaffed, and generating tons of goodwill and good publicity for the county. The mere mention of possibly cutting the funding of that unit should get every citizen up in arms. After all, as Moore said, "How much is a man's life worth?"