By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
Lesser puts much of the blame on the district attorney's "closed file" system, in which prosecutors limit what information they give to the defense. The rules require that "exculpatory evidence" be turned over, but that's at the discretion of the prosecutor.
"When I walk into the District Attorney's Office in Hunt County, there's a package with all the discovery, all the reports," Lesser says. "They give me complete access to their files. If they don't give you the information you need, bad things happen. There may be something that, had a jury heard it, they might not have found him guilty in the first place. The problem is judges don't throw cases out and teach law enforcement a lesson. Things are better now, but back then, Dallas prosecutors liked to play trial by ambush."
Current District Attorney Craig Watkins has instituted an open-file policy, but Lesser says it comes with a 40-page explanation. "Now they are saying we can't do this, we're going to have to black out names," Lesser says. "The rules are stupid. There's one way to avoid the problem."
Open the files.
Lesser was involved in the '90s in an effort to help James Curtis Giles, convicted in the 1983 gang rape of a Dallas woman. He served a decade in prison before being released on parole. His appeals went nowhere. The District Attorney's Office blocked his efforts to get a DNA test.
Then the Innocence Project of New York unearthed evidence the prosecution had failed to disclose, that another man, James Earl Giles, lived near the victim. Prosecutors had failed to disclose that he was implicated in the crime and police had confused him with the other Giles.
While DNA can be a silver bullet that rips the guts out of a jury conviction in a sexual assault, what about cases in which DNA is not a factor, where there's no silver bullet? It's a haunting question: How many of those defendants are innocent?
On January 15, 1986, pregnant hospital worker Felicia W. left her home near Fair Park at 6:25 a.m. to catch her bus to work. Felicia heard steps behind her and glanced back to see a man striding toward her. The man grabbed her and put a knife to her throat. He pulled Felicia down the street, then pushed her to the ground on the driveway in front of a car. He kissed her breasts for five or so minutes before raping her. Then the man was gone as quickly as he had appeared.
Crying, Felicia ran to her apartment and told her husband what happened. They called police.
Felicia described her attacker as black, about 5-foot-7, 145 pounds, with short hair, wearing a light-colored jogging suit, black shoes and a dark hat over a stocking cap or plastic bag. Felicia was confident she would recognize him again. Although it was dark, Felicia claimed she had a good look at her assailant in the light of a streetlamp.
By 10:30 a.m., police arrested a 30-year-old parolee named Wiley Fountain.
That afternoon, Officer T.L. Pettiet showed Felicia a photo lineup: six men, all black, all supposedly matching the description given by Felicia within a couple of hours of the assault. She picked Fountain.
Fountain went to trial on September 8, 1986, in the court of Judge Faith Johnson. The lead prosecutor was Lana McDaniel, who would go on to become a judge. Defense attorney Mike Rodgers represented Fountain.
As per the "closed file" policy of District Attorney Wade, the defense had no prior access to important evidence like police reports, but Rodgers did learn before trial that there were no fingerprints, footprints or other physical evidence that tied Fountain to the rape.
During jury selection, the prosecutor asked potential jurors a key question: Could you convict a defendant on the basis of one witness? Those who said they could not were stricken from the jury.
On the stand, McDaniel queried Officer Pettiet about his search for the rapist. Pettiet described driving around the corner to another apartment complex looking for a man wearing a light jogging or warm-up suit and a blue baseball cap over a plastic bag or stocking cap. Within minutes, he'd found Fountain.
Q: Officer Pettiet, what went through your mind when you saw this man standing there on the sidewalk of these apartments on Junction Street?
A: That's got to be the suspect.
One of the other men standing with Fountain on the sidewalk, Ralph Dobbins, told the officer that earlier that morning he'd seen Fountain walking from his mother's house in Pleasant Grove, about five miles away, and had given him a ride. But Pettiet said Fountain seemed nervous and gave the officer a fake name and birth date.
Dobbins allowed Pettiet to search his vehicle, but Pettiet didn't find a knife or anything else that implicated Fountain. On cross-examination Rodgers asked Pettiet if he had looked for anyone else after he saw Fountain.
Q: Is it unusual for black males to wear stocking caps or shower caps or whatever it is you're talking about?
A: No, they wear it quite often.