By Bob Ray Sanders
bobray@star-telegram.com
Sunday's column about post-conviction DNA testing explained that since 2000 Tarrant County has had only one exoneration for wrongful conviction compared to 32 people in Dallas County exonerated during that time.
It seems Tarrant County had fewer exonerations because it made fewer mistakes in convicting innocent people. And that was due largely to a policy instituted by the late District Attorney Tim Curry in which defense attorneys had access to information in prosecutors' files before trial.
"Cases that shouldn't have been tried, we didn't try them," said Steven Conder, an assistant district attorney who is chief of post-conviction writs and DNA.
Defense attorney Richard Henderson recalls he had three clients who, with the aid of the DA's office and DNA testing, were proved not guilty before they went to trial.
But Henderson also has a client who is serving a 99-year sentence after being convicted of aggravated sexual assault in 1984.
In 2002, that client, Roy Lee Kinney, filed a motion for DNA testing. He won't get it.
The evidence is gone.
In 2010, after several other motions and responses, the district attorney's office said the state "denies that the evidence exists that might contain biological material. ... Fort Worth Police Department, Forensics Division, was in possession of property at one time; however, the current disposition of said evidence has been unknown for at least seven and one-half years."
The DA also said, "Considering the trial occurred over 26 years ago, and the statute requiring preservation of evidence was not enacted until 2002 (over 16 years later), it is not unreasonable that the current disposition of the evidence once in the Forensics Division's possession is now unknown. However, as the Texas Court of Criminal Appeals held ... 'one cannot test what cannot be found.'"
In an affidavit in 2002, Glenda Clark, custodian for the Fort Worth Police Department, said records show "our agency was never in possession of any evidence" relating to the case.
But two other affidavits in court records -- from two different custodians in 2003 and 2009 -- say records indicate the department was in possession of the evidence at one time, but it's unknown what happened to it.
Also in 2002, the district attorney's office began investigating the DNA unit of the Fort Worth Police Department Crime Lab after widespread problems were discovered, including evidence contamination and sloppy work. DNA testing was suspended in that lab. Just this month, it was resumed in a new lab that opened two years ago.
Perhaps the biological evidence in Kinney's case was lost during that time when the lab was in a state of flux, but we don't know for sure.
Henderson would like to find out. The attorney doesn't know exactly what that evidence is, but he assumes it was a rape kit.
Henderson has asked for a hearing in the case in which his client would be present. A lower court and an appeals court in El Paso have denied that request. Last month, Henderson filed an appeal with the Texas Court of Criminal Appeals.
In Kinney's case "the evidence is gone with no explanation why," Henderson says in the appeal. "The simple act of conducting an evidentiary hearing might clear up the matter. All [Kinney] wants is a chance to be heard and a chance to cross-examine witnesses."
That seems a reasonable request. If a hearing will help us understand what might have happened to evidence that once existed, that would be good to know even though it may not do anything to help Kinney's case.
Tarrant County might have another innocent man in prison, but unfortunately because of the loss of evidence, he is not likely to get the chance prove it.
A hearing might help us figure out how to prevent such errors in the future.
Bob Ray Sanders' column appears Sundays and Wednesdays. 817-390-7775Twitter: @BobRaySanders
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