Framing the Guilty?
Preston Hughes is scheduled to be executed this month. Is he innocent of murder, as his defenders claim? Or did police frame a guilty man?
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For starters, there is the issue of Charles' dying statement. Put simply, Allen doesn't believe it's physically possible that anyone whose throat has been cut would be conscious several minutes later. The fact that Charles could speak was taken for granted at trial, and McCullough failed to present any evidence to the contrary. If he had, Allen says, it might have cast doubt on the officers' credibility. And it would have raised the question of how officers leapt to the conclusion that Hughes was their prime suspect – perhaps because they already knew he had a prior record of sexual assault and lived nearby.
At the request of the Chronicle, Tarrant County Deputy Medical Examiner Lloyd White reviewed the Charles and Taylor autopsies and concluded that it was unlikely that Charles would be able to talk. "I find that really hard to believe, medically speaking," he said. With the carotid and jugular severed, the loss of blood would be swift and voluminous; and the faster her heart was beating, as when "some kind of fracas is going on," like an unexpected attack, the faster she would lose consciousness. "I can't imagine her being able to carry on a conversation unless she was stabbed within the last minute or so," he said – yet Hamilton didn't arrive on the scene until after he was summoned by the other officers, who were themselves alerted by a passerby.
There is also the issue of blood evidence – or rather, the lack thereof. Police said they found no traces of blood – not even watery droplets in a sink or tub – inside Hughes' apartment, and none was found on Hughes. There was no visible trace of blood found on the knife that police submitted as the murder weapon. None of this was a problem for the state's witnesses, including for Harris County Assistant Medical Examiner Robert Jordan, who testified in place of Parungao. Jordan had not reviewed the autopsy reports until that morning, in his car, before he took the witness stand, he said. But he testified confidently not only that the weapon police seized was consistent with the wounds on the bodies, but also that it wasn't strange at all that no blood was found on Hughes. After all, Hughes could've worn gloves, he suggested.
On this point too, a medical expert for the defense would have been useful, Allen says. Importantly, the knife that police collected was single-edged and visibly inconsistent with the victims' wounds. And Lloyd White said there should have been ample blood evidence both on the knife and on Hughes. "He'd have a lot of blood on him," he said, which would come off only after considerable scrubbing – and traces would certainly remain, including under his fingernails.
Indeed, there was "indication of presence of blood" on the knife and on the jeans police took from Hughes' apartment, serologist Bolding testified. That news blindsided McCullough, who told the judge that was the first he'd heard about any test results, according to trial transcripts. That was likely because the prosecutors never requested any items be tested until just days before the trial began.
Bolding testified that there was an indication of blood, but also that he couldn't determine if it was human. Allen believes the timing of the testing and the presentation of the inconclusive results, emphasizing only that blood was present, was calculated to lead jurors to believe it must have come from Charles and Taylor. "It wasn't an accident," he says.
And Allen remains unswayed by what remains the most damning evidence of Hughes' guilt: a 2003 test that found DNA from multiple sources, including Charles, on the pair of jeans police seized from Hughes' apartment back in 1988. Taylor's blood was not found. While DNA has become the gold standard for determining guilt and innocence, Allen argues that in this case it is important to consider the source – that is, the HPD Crime Lab that was plagued by problems during the time that Hughes' case was being investigated, particularly in the serology lab where Bolding was a supervisor. Evidence tested "during the 1980-1992 period was generally unreliable," reads a 2007 report on the lab scandal that played out over nearly five years. There were numerous cases where evidence was not tested, where protocols were not followed, and where results were questionable.
Allen believes that the DNA found later, by an independent lab, on Hughes' jeans is unreliable and that he's found a document to prove it. A document from the HPD lab dated April 28, 1989, shows that the jeans screened positive for blood; the confirmatory test, however, produced negative results, as did the anti-human test, which compares a sample against animal blood proteins for reaction. None of these details were reflected at trial.
Allen says that this evidence – finding DNA later where previously there was no evidence to be found – offers Hughes a compelling argument for seeking additional DNA testing, particularly of the vaginal swab that could definitively prove whether or not he committed the crime; because the original investigators did not collect Hughes' DNA, there wouldn't have been an opportunity to taint the swab.
Allen charges that Hughes' current defense counsel, Patrick McCann, is deficient for failing to argue on appeal that Hughes is actually innocent of the crime, and for not pursuing additional DNA testing. McCann said: "Ethically, I am prohibited from advancing before the court a theory that I know to be false." He declined further comment on Allen's charges.
Goosing the Case
McCann does agree that there is clear evidence that police padded their case against Hughes. Not only does he find unconvincing the notion that Charles could have carried on a conversation with Hamilton while blood gushed from her neck, he says it appears certain that police planted at least one significant item of evidence inside Hughes' apartment: the round, silver-framed glasses Sgt. Gafford said he spied wedged between couch cushions just after 2am on Sept. 27, 1988.
On this point Allen and McCann, who has represented Hughes for more than a decade, agree. Both believe police planted the glasses in Hughes' apartment in order to demonstrate the strong connection to Charles. In so doing, Allen alleges, police have inadvertently proven that they made an illegal search of Hughes' apartment long before they obtained his consent to do so. Gafford denied that ever happened – and his story about spotting the glasses in the dark serves that story. But according to an HPD property report, police logged into evidence items from Hughes' apartment – including the knife, jeans, and shirts – at 2:58am, hours before they obtained the consent to search. There is no record of the glasses ever being booked into evidence; if they weren't logged in, it's because they weren't there, Allen asserts. He posits that it wasn't until later, after police talked with Charles' friends or family, that they learned the girl often wore nonprescription glasses as a fashion accessory – the kind of glasses that could be bought anywhere for about $3, her best friend Brown testified.
McCann says he is preparing an appeal based on the evidence of government misconduct, which calls into question the integrity of the evidence against his client. "The cops generally cheat on the most important cases, because there's the most pressure on these cases to get the person they believe is actually responsible for the crime," he said. The goal may be noble – "to stop the person they believe did this horrible thing from doing it again. The tragic result is when they do it to a person who is actually innocent."
But when evidence of guilt is mingled with evidence overlooked or planted, determining who is guilty and who is innocent can be extremely tricky – a thorny problem that can vastly complicate the already complicated process of postconviction appeals. "It becomes a huge problem because you can't separate it," says Daniel Medwed, a law professor at Northeastern University School of Law who studies wrongful convictions and the problems associated with cognitive bias. How often direct planting of evidence, or framing of the guilty (or of those police believe are guilty) actually happens is hard to determine, but Medwed says that he believes "purposeful, intentional misconduct" is rare. Rather, misconduct is born of pressure – to solve a case, to make an unofficial quota, to get ahead.
"I don't think it happens that often," Medwed says, "because the vast majority of police are noble servants. When it does happen, it's not necessarily because of nefarious motives – it's because it's high-profile, they believe the person did it, and they're trying to goose [the case] up a little." But "it's a slippery slope" from planting evidence implicating a guilty suspect to doing so against an innocent one. And that's why constitutional protections are important: "The reason we protect the guilty is because that protects all of us," he says. "We protect the rights of the most abhorrent members of society in order to protect ourselves. And we can't give an inch on this."
Ideally, once misconduct is found, courts should allow for a retrial without the tainted evidence. It's not about letting a guilty person walk, he notes; it's about making sure the process is fair.
With the clock winding down on Hughes, that is what McCann is pursuing. In addition to challenging the government misconduct, he has also challenged the punishment, arguing that the jury was not able to adequately consider mitigating evidence before deciding Hughes should die. He has also filed a civil suit in Houston, arguing that the Texas Department of Criminal Justice did not have the unilateral right to discard its three-drug lethal injection cocktail in favor of a (more readily available) single drug without any expert input. If they're allowed that power, then they could also potentially decide to "reinstitute hanging or beheading," McCann argues. The Court of Criminal Appeals, the state's highest criminal court, has issued a rare writ of prohibition telling the civil court that it doesn't have the right to stay Hughes' execution in order to consider McCann's arguments. McCann is still pursuing an appeal.
Allen is also working the case, preparing for Hughes a pro se writ asserting Hughes' actual innocence – something he believes should have been done months ago. He's helped Hughes appeal to the court to have McCann taken off the case based on his failure to argue for innocence or further DNA testing, a motion the court denied. McCann speaks matter-of-factly about the job he's tasked with – and recalls something his father, who was also a defense attorney, told him long ago: "Son, if you need to be loved, you should've been a firefighter."
Allen maintains that Hughes is not guilty of murdering Charles and Taylor – and that the real killer is still out there. "I have attempted multiple times to construct a scenario which both explains the evidence and points to Preston's guilt," Allen wrote in a recent email to the Chronicle. "I have not been able to imagine such a scenario. I can never explain why there was no blood on his clothes or why his knife was not the murder weapon. I can never explain why he would bother to cover such evidence as bloody clothes and a bloody knife, yet leave the glasses in the cushions of his couch."
Allen also doesn't understand, if he was confessing because Charles had actually identified him to police, why "his confession [had] so many factual errors," including that he'd stabbed the victims so many times. Allen believes also that Hughes' interest in having the vaginal swab tested for DNA speaks volumes. "If he's guilty, then he has me fooled. While he is clearly reasonably intelligent (if not wise), he must be much, much brighter than I give him credit for if he is in fact guilty."
Still, nothing, at least nothing presented at trial, was enough to sway Charles' mother from her belief that Hughes killed her child. "My daughter," she called out during the defense's closing arguments at trial, "don't lie."