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?
The police were not looking for LaShandra Charles and her cousin Marcell Taylor, but that's who they found.
It was around 11pm on Sept. 26, 1988, when a man flagged down two police officers near a Fuddruckers restaurant in far West Houston. The man was looking for his wife, whom he believed to be missing. As the trio searched the area, a Fuddruckers employee approached the officers to say that while walking home to a nearby apartment complex, he'd found a body in the woods behind the restaurant.
The cops walked to a large, overgrown field of tall trees dissected by a network of weed-choked trails. The restaurant parking lot was well-lit, but the field was not. The night was clear, and the officers used the moonlight to find their way along the trash-littered trail toward a fence at the far end of the property. There, police found a body – but not that of the person they'd been flagged down to find.
Instead, police found Charles, 15, and her 3-year-old cousin, Taylor. Taylor, who was lying facedown when the police found him, was dead. Charles was sprawled facedown just off the trail, not far from her cousin. Blood pooled under her head, staining the weeds on both sides of the trail. According to Houston police reports, her shorts and underwear were pulled halfway down and the leather strap she used for a belt was discarded nearby. Both Charles and Taylor had been stabbed through the neck. Whatever the weapon, its blade was long enough to cut clear through Taylor, leaving a gash where it emerged, just below the hairline on the back of his neck.
According to officer testimony, Charles was still alive. Sgt. Don Hamilton was on patrol when he got the call that two people had been found in the field. He rushed to the scene. Charles was having a hard time breathing, and her neck wound was "bleeding rather profusely," he testified the following spring; blood covered her face and matted her hair. Nonetheless, Hamilton said, she was able to speak. "I asked her ... 'What happened?'" testified Hamilton. "She replied, 'He tried to rape me.'" Who did, he asked. "She stated, 'Preston.'" She knew her assailant, Hamilton said Charles told him; as her voice grew weak, forcing him to bend down to hear her talk, she asked him to find her cousin. An ambulance finally took Charles to the hospital, where she was pronounced dead.
It took less than a day for police to find and arrest 22-year-old Preston Hughes III, secure two separate confessions from him, and find evidence in Hughes' nearby apartment that police said matched the crime. Hughes was charged with capital murder, and seven months later was sentenced to death.
Although the deaths of Charles and Taylor and the subsequent conviction of Hughes might appear a simple tale of prey and predator, the truth is far more complicated, says John Allen, a California-based blogger better known in cyberspace as The Skeptical Juror. Allen is adamant not only that Hughes is innocent, but also that he was framed by members of the Houston police, who planted evidence in his apartment; by the police crime lab, whose scientists did scant testing of the evidence; and by a deputy medical examiner who bent over backward during Hughes' trial to bolster the state's theory of the crime. Allen has written more than 60 stories about the case, and he charges that Hughes has never had defense counsel do enough on his behalf. "It shouldn't be this way," says Allen.
If Houston police did indeed corrupt the process, it may be quite difficult to determine whether Hughes is guilty or innocent. According to the New York-based Innocence Project, government misconduct is a leading cause of wrongful convictions. Equally problematic is when otherwise well-meaning police attempt, in effect, to "frame the guilty" – or those they believe to be guilty – thereby tainting legitimate evidence of guilt. In those circumstances, how can the system determine who should be punished – or in capital cases, deserve to die?
Hughes is scheduled to be executed Nov. 15.
Allen is determined to expose the corruption in Hughes' case, and to demonstrate his innocence, of which Allen says he is certain. "It's going to get done."
With the amount of trash littering the trail where the bodies were found, it was difficult for police to determine what should be collected as evidence. Without Charles' alleged dying declaration, the case would likely have remained open for some time. Armed with a name, police moved quickly to the Lakehurst Apartments to secure a list of tenants. Although several apartment complexes abutted or were close to the field, police went only to Lakehurst, where, according to trial testimony, Hughes was the only resident named "Preston."
After 10 minutes, police said, Hughes answered the knock on his door. Hamilton testified that the apartment was dark, illuminated only by light coming in from the porch. The police did not search the apartment, nor did they even do a visual sweep for what might be in plain view (at that point, there was no justification for a search). But Sgt. Dennis Gafford testified that while standing in Hughes' living room, he did notice that a pair of metal-framed glasses were "stuffed" between two couch cushions. (Directly contradicting Hamilton's testimony, Gafford testified that the apartment was "well-lit," allowing him to spot the glasses.)
The officers were suspicious of Hughes because he was so calm and didn't ask many questions about why the police were there or why it was that they wanted him to accompany them to the station for a talk. "He ... didn't give us any reason to suspect anything that he said," Gafford testified. "It was a little bit odd that he never asked us why we were coming to his door asking him questions." Instead, Hughes agreed to go with them, noting only that he needed to leave for work at 5am.
At the station, police put Hughes in a small interview room alone until just after 4am, when they began their interrogation. Hughes acknowledged that he knew Charles, through his teenage cousin, and said that she'd been to his apartment before – a detail corroborated at trial by Charles' best friend, Evelyn Brown, who also knew Hughes and was the last to see Charles and Taylor alive on the night they were killed.
That Hughes knew Charles was apparently enough for police to decide to arrest him. They asked and received written consent to search his apartment and to collect biological samples. When they asked if he would waive his rights and continue talking to them, he agreed. He "hadn't done anything," Gafford recalled Hughes telling him. Even after Hughes explained how he knew Charles, he did not indicate knowledge about what had happened to her that night, Gafford said.
Yet, by 7:15am, Hughes had given to the police the first of two statements confessing to the murder. He'd stabbed Charles, he said, because he thought he was being followed on the trail through the field, possibly by the husband of a woman he'd been seeing. He was "fucked up," presumably from drinking with friends after he got off work that day, and when he felt Charles touch him on the shoulder as he walked, he turned around and "just started sticking with the knife," he said. "I swung the knife 6 ... 8 ... probably 10 times and then just took off running toward my apartment," reads the first confession. Hughes made no mention of Taylor.
According to police it wasn't until after they'd obtained the initial confession that they searched Hughes' apartment. There they say they collected the glasses Gafford had spotted, wedged down in the couch cushions; a U.S. Army knife, with its sheath; and a pair of jeans and two shirts that were strewn on Hughes' bedroom floor.
At the same time, then-Assistant Harris County Medical Examiner Vladimir Parungao was performing autopsies on Charles and Taylor. Their injuries were brutal and bloody and made with a sharp weapon without a blunted edge, likely a double-edge knife. Taylor had been stabbed twice, once through the neck and once through the scapula, wounds that penetrated clear through his chest and out through his back. Charles' injuries were equally fatal; she had one four-inch-deep stab wound to the chest, and one nearly four-inch-deep wound that completely severed both the carotid artery and jugular vein in the left side of her neck. Semen was also collected on a vaginal swab, though there was nothing in Parungao's report to suggest she was raped.
When the officers returned from the search, they again interrogated Hughes. This time, Hughes dumped the story about being followed, and instead said that he'd been approached by Charles and Taylor and that Charles had seduced him into sexual contact and "grinding." She tried to extort him for money, he said, and when he refused, she slapped him. That's when he knifed her, "six or eight or ten times," reads the second statement. Taylor began to cry and ran between the two of them so Hughes stabbed him too, though he couldn't recall how many times. He got home and hid the knife after confirming there was no blood on it. He checked the score of the football game and went to bed, according to the confession.
A Juror's Skepticism
Hughes subsequently recanted, claiming that the police had coerced him into confessing by hitting him and threatening him. Although the Houston police had the capability of video recording interrogations even in 1988, Sgt. D.A. Ferguson chose not to do so. "I guess it really comes down to personal preference," he testified. The judge allowed the confessions into evidence. And so it went too with Hughes' attempts to have excluded the items picked up at his apartment; the search warrant the police had was invalid, he argued to the judge. Hughes did not fight biological testing – no matter how rudimentary it would have been – perhaps in part because the police never did collect any DNA or blood samples from him. After they got the confession, they figured they didn't need anything else, Gafford testified.
Hughes' trial attorney, Ellis McCullough, failed to mount much of a defense. He made no opening statement, did not call a medical or forensic expert to counter the state's theory of the crime – including, most notably, that Charles could somehow have carried on a conversation with police while bleeding out at the throat from massive wounds – and failed to call much more than character witnesses. In other words, he provided no compelling road map for jurors that might lead away from Hughes or seriously challenge the state's evidence of guilt.
But that's not because the evidence isn't there to do so, says Skeptical Juror Allen. "They framed him," Allen says. "The police framed him; the lab framed him."
Allen, a retired engineer, has become an amateur sleuth – a "forensic data analyst," he calls it – combing through police and trial records, looking for cases of wrongful conviction and writing about those cases from the "perspective of a juror." He came by his new moniker honestly; Allen has been called for jury duty more than a dozen times and has served as a juror in four cases – a drive-by shooting, a murder, an assault, and a multivictim, multicount child molestation case. It was the last one that prompted him to become more deeply involved in the criminal justice system. The six-day trial was illuminating for him; there was scant evidence of the man's guilt, and Allen believed that once the jurors began to deliberate, it would be a slam-dunk, not-guilty vote. Yet when the jury first voted, it was 11-1 for guilty.
Allen believed that the nature of the allegations was overwhelming the jurors' duty to evaluate only the actual evidence and consider only the law. The jurors deliberated for longer than the trial had lasted, and were ultimately hung. Allen knew the state would retry the case, so he approached the defense and offered to help by dissecting the evidence from a juror's point of view. The lawyer accepted, and Allen pored over the files, "looking for things that might have been missed," he says. The man was retried and again the jury was hung; the state declined to go for a third try.
"The whole experience transformed me," Allen says. He no longer believed that the criminal justice system is a level playing field; he had been convinced that it is stacked for the state, that jurors are easily swayed by emotion, and that innocent people can be convicted. "That converted me from a skeptical juror to The Skeptical Juror," he says. Allen has written four books, each a blend of nonfiction and fiction, and posts regularly to his website, www.skepticaljuror.com. He says he delves only into cases in which he believes the defendant is innocent.
Last winter he was doing research when he stumbled upon some information about Hughes' case. In particular, he found testimony from James Bolding, then the chief of serology for the notorious Houston Police Department crime lab. Bolding testified at Hughes' trial that the first time he'd tested Hughes' knife was in the courtroom, just before taking the stand. "I thought, that's so outrageous, so absurd," Allen recalls.
Still, the case against Hughes seemed strong, despite the courtroom hijinks. It wasn't until March, after a guest blogger penned a two-part piece on Hughes' case, that Allen really took notice. Since March, Allen has written about little else, and in the process he's come to believe he has uncovered previously overlooked evidence that casts serious doubt on the state's case.
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."