By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
After losing his first appeal, Chabot hired Houston appellate lawyer Randy Schaffer, who had just given the Dallas District Attorney's Office a black eye in the Randall Dale Adams case. Adams had been released from death row in 1989 after District Attorney John Vance decided not to retry him for the murder of a police officer. The Thin Blue Line, a film by Errol Morris, had accused prosecutor Doug Mulder of hiding exculpatory evidence.
Schaffer asked Warder for a DNA test of the semen found in Crosby's body. She told him that excluding Chabot would mean nothing without samples from Graham and Pabst, and she had no idea where they were.
"She said the only thing that would mean something to me would be if it was Pabst's semen," Schaffer says. "She basically gave me the runaround."
Warder says the laboratory told her there wasn't enough material to test with DNA technology used at the time.
But Schaffer unearthed something after requesting evidence from the Dallas District Attorney's Office that prompted him to file a grievance against Warder with the State Bar of Texas. A note in the Garland police file said that Pabst had taken and passed a polygraph saying that he knew nothing about the murder. Though polygraphs aren't admissible in court, Schaffer contended that this should have been turned over to Chabot's attorney, who could have developed more evidence to challenge Pabst's flip-flop testimony.
Pabst's attorney Loving says he knew nothing about the first polygraph. "If I'd known that, I would have said something is wrong with this," Loving says. "It contradicts what he told the jury. Probably it should have been disclosed to the defense."
Schaffer was even more troubled by another revelation in the Chabot case: the unwritten "deal" the prosecution cut for Pabst's testimony against Chabot.
In Pabst's file, Warder had written next to the date October 16, 1986—the day Pabst testified but before closing arguments—this memo: "This [defendant] testified against co-defendant Clay Chabot. He testified that Chabot turned gun on him and said to do what he said and he tied complainant's feet and unhooked TV—knew nothing of rape and intent to kill. Plea negotiations discussed w/Judge Thorpe and Norman Kinne [first assistant district attorney]. Defendant has duress defense to a robbery. Will plead to theft for pawning radio. Wheatley, GPD [Garland Police Department], approves of this disposition. JW."
Also released was a worksheet signed by Assistant District Attorney Dale Jensen, dating to several months before the trial: "Shaky case unless the hair samples can eliminate Pabst as a suspect. Basically, Pabst says Chabot did, Chabot says Pabst did it..."
Schaffer saw that as confirmation Warder needed one of the men to turn on the other to get a conviction. He filed a writ of habeas corpus alleging that the prosecution had suppressed evidence that Pabst wouldn't be prosecuted for Crosby's murder and failed to correct testimony that he had not been offered leniency.
In his tenure as a prosecutor, which coincided with Warder's, Judge Creuzot says such deals were not written, but there was a general understanding that something good would happen for the client. "There was certainly an expectation," Creuzot says. "Practically, it may have influenced people to testify falsely."
Warder submitted an affidavit saying that Pabst's deal hadn't been made until the "end of the day's testimony, after the jury was dismissed for the day." That meant Warder had failed to correct the impression given the jury in closing arguments that Pabst had nothing to gain by testifying. So she submitted another affidavit, saying she hadn't read the first one, which was prepared by another attorney in the district attorney's office. With her memory refreshed—and a grievance charge to defend—Warder remembered that she had written the memo only after the entire case was over; she'd simply added it next to the date Pabst testified.
The man Warder has called her "mentor and role model," Judge Thorpe, issued a ruling on April 7, 1992, concluding that an agreement had been made between the state and Pabst and his attorney after his testimony and before both sides rested and closed, and that Chabot and his attorney were not informed.
In November 1994, Janice Warder, now Judge Warder, took the witness stand in an evidentiary hearing before federal Magistrate Judge William Sanderson to defend her handling of the Chabot case. The magistrate would issue a ruling in favor of Warder, saying there was no deal.
Chabot, meanwhile, continued fighting his conviction, and in 2004 his case was taken up by the Innocence Project in New York. "It's a very high-stakes game of let's make a deal," says Nina Morrison, the IP attorney who handled Chabot's case. "Whoever comes in first and gives a detailed account is the one who gets the deal. Pabst was in trouble. He had a real incentive to try to minimize his involvement."
Chabot's request for DNA testing was finally granted by state District Judge Lana Myers, who ruled in his favor over the vociferous opposition of the district attorney's office.
Using a new technology that isolates the male chromosome, a vaginal smear from Crosby was matched to Gerald Pabst.