Chains of Evidence

How did Dallas convict so many innocents? With faulty eyewitnesses, sloppy police work and overzealous prosecutors.

Q: And of course, jogging outfits or sweat suits aren't anything unusual, are they?

A: No.

Pettiet testified that he didn't bother to obtain a search warrant for Fountain's home. He didn't take pictures of the other men. He didn't ascertain whether Fountain had a driver's license or access to a vehicle. (Fountain had neither.)

Veteran defense attorney Michael Ware is working with Texas Wesleyan School of Law students to review requests for DNA tests from 400 people convicted in Dallas County.
Mark Graham
Veteran defense attorney Michael Ware is working with Texas Wesleyan School of Law students to review requests for DNA tests from 400 people convicted in Dallas County.

The afternoon after the attack, a detective came to Felicia's apartment to show her photographs of six men and told her she didn't have to pick anyone, but to let him know if her rapist was among them.

McDaniel: Is there any doubt in your mind that this man over here that you identified in court is the same man who raped you on January 15?

Felicia: No.

But under Rodgers' cross-examination, Felicia testified that she never noticed Fountain had a mustache, even though he supposedly kissed her mouth and nuzzled her breasts. In fact she had told police her assailant had no facial hair.

Rodgers also pointed out that Fountain was the only man in the six-photo lineup dressed in a light jogging suit and cap.

Q: OK. So it wasn't just because of his face that you picked him out, it was because of his clothes too, right?

A: Yes.

The lineup was flawed even under standards used in 1986, tainting Felicia's memory of her attacker.

Rodgers got a detective to testify to all the ways Fountain did not match the description of Felicia. He wasn't wearing jeans under his sweat suit, as she had described. The sweatpants had a black stripe; Felicia had told police the rapist's pants had none. Fountain had no knife; she said he put a knife in his pocket but also described it as a butcher knife. Police didn't test Fountain's pants to see if they had seminal fluid on them.

Though Felicia told police she had talked to a woman immediately after the attack, the detective had made no effort to find the potential witness.

Because Felicia was pregnant, which created a "hostile environment" for sperm, the results of other blood tests that might have linked Fountain to the assault were negated. (DNA testing was not available.)

Fountain testified that at the time of the rape, he was home in bed. His cousin Fredrick Williams had woken him up that morning, and Fountain got out of bed about 7:30 a.m., when the teenager left for school. He left the house about 8:45 a.m. on foot.

As he was walking to the bus stop about a mile from his house, Dobbins offered him a ride. They went to a car wash, a convenience store to buy beer and then the apartments on Junction Street to get another friend.

Fountain said Pettiet arrived and "asked me my name and told me I looked like somebody he had been looking for." He gave the cop a fake name because "I had a fine downtown [for public intoxication] and I didn't have the money at the time to pay it."

Fountain testified that Pettiet never attempted to take a statement from him.

Fountain's mother, Florence Fountain, said her son had been home that evening when she went to bed. His cousin and Dobbins backed up Fountain's alibi, but their credibility was undermined because they both had criminal records.

"Come on, what's the theory here?" Rodgers asked. "Is the theory that Wiley Fountain got up from his house over here and took a taxi? In the middle of the night? Because I don't think the buses run then. How did he get home? Where are the blue jeans? Where's the knife?"

The prosecution didn't have a theory. They had an eyewitness, the victim. Fountain was convicted and sentenced to 40 years in prison. He served 16 years before a DNA test unlocked the door to his prison cell in 2002.

Prosecutor Lana McDaniel was later elected to a state district court bench; she's now Judge Lana Myers. She remembers how shocked she felt on learning about Fountain's exoneration.

"I really couldn't believe it," Myers says. "I wasn't convinced the DNA test was even correct. The victim was very good and very credible and she had no doubt."

She had no concerns about the police lineup. "I guess at the time it wasn't unusual to me," Myers says, adding that victims often would forget to mention a significant physical feature like facial hair.

Are they forgetting? Is it possible to make a positive identification when such a salient fact is left out?

Myers had never talked to Fountain, but she has apologized to two other men exonerated by DNA. After her election to the bench, Myers presided over hearings on their requests to have DNA tests; against the wishes of the District Attorneyís office, Myers ordered the tests. At their exoneration hearings, Myers apologized to them on behalf of the state of Texas.

The conviction of Entre Nax Karage, sent to prison in 1994 and exonerated in 2005 for the murder of his 14-year-old girlfriend, was based on false testimony by police investigators. But in the dozen other exoneree cases, juries put their faith in the victims who identified their attackers.

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