by Christopher Zoukis

On March 13, 1997, 41-year-old Dahn Clary, Jr. of Texarkana, Texas was arrested and charged with the aggravated sexual assault of his best friend’s 11-year-old son.

The boy told his father and police that Clary had fondled his genitals and performed oral sex on him several times. Clary was convicted and served 10 years in prison.

The only problem was that he was innocent.

In June 2013, the then-adult “victim” signed a sworn statement that he had made up the allegations because he was angry at Clary for spending less time with him.

“I did not understand the consequences of my actions at the time I fabricated the story,” he said.

Clary was formally exonerated in June 2016.

The National Registry of Exonerations (NRE) tracks wrongful convictions, and has tallied 2,040 cases since 1989. But 2016 saw a record number of exonerations like Clary’s; nationwide, the NRE reported 166 wrongful convictions that year. Texas continued to lead the way, with the exoneration of 58 men and women who were actually innocent. Most came from Harris County, which includes the city of Houston.

In 2014, a newspaper reporter noticed that in some Harris County drug cases the results of lab tests were not coming back until after a guilty plea had already been entered for the defendant. That got the attention of the county’s Conviction Review Section, which discovered that many of the tests revealed no drugs had been found on the defendants.

In an interview, Harris County District Attorney Kim Ogg said a total of 317 such cases had been identified, in which lab tests detected no drugs but a guilty plea was entered anyway. Of those, 156 cases were dismissed. For the rest, county investigators have been trying to locate defendants who have not yet filed appeals.

Thus far the on-going investigation has exonerated 126 defendants convicted of drug crimes. That accounts for most of Harris County’s exonerations since 2014, with “no doubt more to come,” Ogg said.

Most of the wrongful drug convictions in Harris County involved minorities – 62 percent were African-American, a group that makes up just 20 percent of the county’s population. Since many were also poor, they were unable to post bail when arrested for low-level drug offenses and pleaded guilty to avoid languishing in jail to fight the charges. Combined with a back-logged crime lab that took months or even years to return test results, it was “frighteningly easy” for so many innocent people to end up behind bars, noted Samuel Gross, a University of Michigan law professor who runs the NRE.

Jay Jenkins, an attorney with the Texas Criminal Justice Coalition who worked in Harris County for nearly three years, agreed that defendants often plead guilty to drug charges to avoid staying in jail because they can’t post bonds.

“A lot of those folks plead guilty before the lab has even gotten the test back to the court,” he said. “Low-income defendants have very little options.”

Jenkins commended Harris County officials for testing drug evidence in criminal cases even after defendants had pleaded guilty, but said there’s more work to be done in the way law enforcement officials treat the black community.

“The way that these communities are policed and the way that these individuals are prosecuted – it really is different than how they’d police a white person from a rich neighborhood,” he explained. “They almost get an entirely separate criminal justice system from what is used to police and prosecute low-income communities here in Houston.”

Gross, with the NRE, agreed there must be an underlying discrepancy that explains why “African-Americans [are] so overrepresented when it comes to people who are falsely arrested for drug possession” – especially since the rate of illegal drug use is roughly the same among both whites and blacks.

Then there are the financial costs of wrongful convictions, which are mostly extracted from the pockets of taxpayers. In Texas, statutes specify the compensation payable to people who have been incarcerated and later declared actually innocent by a court.

The compensation system was named after Tim Cole, a former Texas Tech University student wrongfully convicted of aggravated sexual assault, who died in prison in 1999. [See: PLN, Dec. 2009, p.26; July 2009, p.12]. According to data from the state comptroller’s office, Texas has paid out $93.6 million in compensation to exonerees over the past 25 years.

Texas’ compensation system is one of the most generous in the nation – which is fortunate, since it is also the state with the most wrongful convictions. [See: PLN, Oct. 2015, p.40]. Exonerees receive a lump-sum amount based on how much time they served and are also eligible for monthly annuity payments, free tuition at public colleges, health insurance and other benefits.

The lump-sum payments are typically based on $80,000 per year of incarceration. Since 1991, Texas has paid out lump sums of $100,000 or less on 34 occasions. During the same time period the state paid more than $2 million in eight cases.

A report published by the NRE on March 7, 2017 found that prisoners exonerated in 2016 who were convicted in murder cases had served an average 21 years behind bars. It also found that official misconduct was involved in 70 exonerations in 2016, and in 74 cases the defendants had pleaded guilty despite being innocent.

Additionally, the report noted that more than half of exonerations by Conviction Integrity Units from 2003 to 2016 came from Harris County – partly due to the recent crime lab drug testing scandal.

“Harris County is extremely valuable for our research because it’s an unusual example of something you wouldn’t otherwise see,” said Gross, noting that the county is “the biggest single focal point of exonerations in the country, this past year, and the year before, and the year before that.”

Of course, other Texas counties also have poor track records with respect to wrongful convictions.

One of the most recent exonerations in Texas occurred in Nueces County in April 2017 when murder charges were dropped against Hannah Overton, who had served 7 years of a life sentence for the 2007 death of her foster son, Andrew Burd. Andrew died due to salt poisoning, though there was testimony at trial that he had consumed excessive amounts of salt himself due to a mental health disorder. [See: PLN, Nov. 2014, p.1].

Overton’s conviction had been overturned on appeal due to ineffective assistance of counsel, but Nueces County prosecutors were preparing for another trial. The charges were dismissed due to “a myriad of factors which came about after a careful review of the previous trial, re-interviewing some of the key witnesses, consulting with some of the medical experts involved in the case, reviewing evidence adduced at recent hearings and staffing the case with the current prosecutors assigned to the case,” said District Attorney Mark Skurka.

“It’s so amazing to finally be declared actually innocent,” Overton told ABC News on May 10, 2017, after she was officially exonerated. “A day I felt sometimes would never come.” 

Sources: NBC News, Texas Tribune, Houston Chronicle, www.abcnews.go.com, http://keranews.org, www.law.umich.edu