Sept. 6
TEXAS:
Innocence claim to go before court
A Bedford man who says he was wrongly convicted of molesting a 3-year-old
girl more than a decade ago will get a rare hearing on his innocence claim
before the Texas Court of Criminal Appeals.
The judges will hear arguments on John Michael Harvey's case Sept. 29.
State District Court Judge Sharen Wilson found in March that the evidence
was insufficient to convict Harvey and recommended that he be released and
get a new trial.
Lawyers familiar with the Court of Criminal Appeals say the Harvey case is
one of only a handful of times that the judges have scheduled oral
arguments on an inmate's claim of innocence. The court is asked to look at
about 2,500 cases a year and reviews fewer than 250, officials said.
"It is a significant action because it demonstrates an interest in that
claim," said Gary Taylor, an Austin lawyer who clerked for the court and
now handles death-penalty cases. "There is a concern that has been raised
that the court wants to consider."
Richard Wetzel, an Austin lawyer and former counsel to the Court of
Criminal Appeals, said there is "a lot of controversy and discussion"
among the judges on actual innocence.
"I don't remember hearing an argument on a case like this before," Wetzel
said. "Maybe they have some questions, and they want to explore the law
and see if it is available for relief."
Tarrant County Assistant District Attorney Steve Conder said there are not
a lot of published cases on actual innocence, so the court may be taking
this opportunity to look at one.
He said "there are a lot of gaps" in the law, and the Harvey case could
give the court a chance to "give us guidance on how to handle these kind
of cases."
Sean Buckley, Harvey's attorney, said getting to argue the case before the
court doesn't necessarily mean the court is leaning toward giving his
client a new trial or releasing him.
"It is uphill, and I'd be dishonest to say otherwise," Buckley said.
"We've gotten to this point where we are in the upper percentile of cases,
which says a lot about the strength of the case."
A 12-year history
A Tarrant County jury sentenced Harvey to 40 years in prison in 1992.
Harvey, who has always professed his innocence, has turned down a chance
to be released while the appeals court considered his case because he
would have had to register temporarily as a sex offender.
"I came into jail innocent, and that is the way I want to leave," Harvey
said in an April interview. "My name was clean when I came in, and I want
it clean when I leave."
Wilson made her recommendations after the victim, identified in court
documents only as S.R., recanted from the stand her original trial
testimony that Harvey attacked her.
The Star-Telegram typically does not identify victims of sexual assault or
members of their family.
The Star-Telegram reported last year that the victim had voluntarily
backed away from her earlier stories identifying Harvey as her assailant
after learning he was in prison. The attack was reported to have occurred
in 1989.
Tarrant County Assistant District Attorney Chuck Mallin attacked Wilson's
ruling in court documents filed with the appeals court by saying it was
based on S.R.'s "incredulous recantation" 15 years after the fact.
He said the victim's testimony was inconsistent with trial testimony,
affidavits and other pretrial statements.
During hearings in March, S.R. consistently said that Harvey did not
molest her, but she flip-flopped on what actually happened to her, Mallin
said. She sometimes described a man with an eagle tattoo on his body --
sometimes his arm, sometimes his backside -- and then she denied being
attacked at all, Mallin said.
If the Court of Criminal Appeals adopts Wilson's findings, Mallin said, it
would corrupt the unique body of criminal jurisprudence concerning child
victims of sexual assault.
Under Wilson's ruling, Mallin wrote,"litigation will never cease, and the
doctrine of finality will evaporate in nearly all sexual assault cases no
matter how weak a recantation is presented.
"S.R. went from being sexually molested by someone, to being sexually
molested by a man with a tattoo, to finally not being sexually molested at
all."
In his brief to the court, Buckley argued that there is sufficient new
evidence for the court to consider for a claim of innocence and that
S.R.'s recent statements should be considered more of a reaffirmation of
her testimony in 1992 instead of a recantation.
During the trial, under examination by the prosecuting attorney, S.R.,
then 7, gave contradictory testimony -- at one point denying she had been
touched inappropriately or sexually molested by anyone, Buckley said.
Although S.R.'s recollections are hazy and contradictory about being
abused, none of S.R.'s recent statements conflict with her "core
assertions that she provided false testimony" against Harvey and that "she
does not remember [his] ever molesting her," Buckley wrote.
An uphill climb
Buckley readily acknowledges that Harvey faces a formidable challenge and
credits Wilson's ruling for partially persuading the Austin court to take
the case.
"Judge Wilson is known for being a law-and-order judge," Buckley said.
"For Judge Wilson to take the position that he is factually innocent and
to say so in a factual opinion is very substantial."
Taylor agreed with Buckley.
"A finding by a trial judge that he is innocent is a very significant
finding that doesn't happen very often, and to turn around and find it's
from one who is considered conservative only supports that conclusion that
there is a significant claim," he said.
Other lawyers said that the court has strict rules when considering claims
of innocence and that there are sharp differences of opinion on the court
about the issue.
In 2002, the appeals court overturned the conviction of Wesley Ronald
Tuley on sexual assault charges. The court ruled 5-4 that the new evidence
he produced exonerating him was more important than the guilty plea he
entered.
But the same year, the court ruled 8-1 against overturning the life
sentence of Brian Franklin, a former Fort Worth police officer convicted
of raping a 13-year-old girl. The girl later admitted to lying about her
sexual history and said her stepfather had been the one sexually abusing
her.
State District Judge Wayne Salvant said Franklin deserved another day in
court. The Court of Criminal Appeals heard oral arguments on that case,
too.
The court's decision to hear arguments in the Harvey case, therefore, does
not indicate a change of direction for the justices, said John Niland,
director of the Texas Defender Service, which represents death row
inmates.
"I would doubt that," he said. "I don't think it establishes a trend we
can rely on."
(source: Fort Worth Star-Telegram)
