By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
The outcome was already determined, the stories already written, but the cameras and the recorders were out anyway, waiting for the judge to say the words. He was about to declare Richard Miles actually, technically, legally innocent of a 1994 murder, a shooting at a Texaco station near Bachman Lake. A higher court had already declared him innocent. There was nothing left to do but a little criminal-justice theater.
The reporters in attendance wondered what would make this day's story unique among the wave of stories about innocent prisoners. Miles was about to provide their answer.
A thin man with a strong jawline and determined face, Miles listened to the judge's apology and then, before he addressed the crowd, leaned toward his lawyer.
"Can we hit them with a bomb?" he asked. "Is it a good time to hit them with a bomb?"
"Richard, you're a free man," he remembers his lawyer saying. "You can say whatever you want to say."
He stood, encircled by reporters. After some thank yous, he lit the fuse: "I want to say that me and my lawyer, Cheryl Wattley, we'll make a formal complaint against Thomas D'Amore for prosecutorial misconduct," Miles said, referring to the lawyer who prosecuted him. "My life was taken because of malicious acts by a prosecutor. I can't just let that go by."
As he spoke, several of the 33 innocent men freed in recent years by Dallas County watched from the gallery, dressed as if for mass. At least seven of their cases had contained "official misconduct," mostly exculpatory evidence that wasn't disclosed to defense lawyers, according to Michigan and Northwestern University's National Registry of Exonerations. Misconduct contributes to 42 percent of exoneration cases nationally, those researchers say.
It's a problem that's had a particularly profound effect in Texas. In 91 criminal cases between 2004 and 2008, Texas courts found that prosecutors withheld evidence, made improper arguments or committed other misconduct, according to a report by Veritas Initiative, part of a national Prosecutorial Oversight coalition. But only one prosecutor was disciplined in that time period by the State Bar of Texas. (His license was suspended for two years.)
As Miles and his fellow exonerees know well, prosecutors are virtually immune from accountability. They're protected from civil action, and the statute of limitations for prosecuting them generally runs out before a prisoner even goes free. Miles could file a grievance with the State Bar, the organization charged with attorney discipline. But there's a statute of limitations on those complaints, too.
"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."
There's a movement to try to reverse the neutering. Advocates, defense lawyers, academics and even some prosecutors argue that prosecutors shouldn't walk unscathed, at least not from the most severe disasters of jurisprudence. Statutes of limitations should be lengthened, they say, and prosecutors sued or charged with crimes more easily. Or, they say, more exonerees should take the path of Michael Morton, who was exonerated of his wife's murder last year and is now using a rare legal tactic to pursue charges against his prosecutor — a case that could provide a road map for future exonerees.
Who knows: Miles may even try that route himself. For now, though, he's starting with a State Bar grievance, which he says he'll file any day.
"Unless there is accountability in place, there is forever going to be false imprisonment," he says. "Somebody has to try. ... It's not about me winning or failing, it's just about me doing it.
"You kidnapped me," he says of his prosecutor. "You aided to this kidnapping."
It started for Miles in May of 1994. An Oak Cliff boy, raised by a pastor, Miles was walking to a friend's Dallas apartment when a police helicopter's spotlight split the night sky. Suddenly officers were on top of him, cuffing him.
They drove him to a Texaco station near Bachman Lake, where a witness was waiting. That witness, Marcus Thurman, had just watched a black man walk up to a car at the Texaco station and fire a 9 mm into the driver's side window, killing one person and injuring another. The shooter had fled in a white Cadillac and, after a short drive, left the car on foot.
The shooter was wearing shorts. Miles was wearing pants. But Thurman ID'd him as the gunman anyway.
A prosecutor named Thomas D'Amore worked Miles' case. An expert witness testified that Miles had levels of chemicals on his right hand that were consistent with handling a gun. The witness mentioned casually that this could also be from batteries or handcuffs (although she didn't lend much credibility to that argument). But the case mostly relied on Thurman's testimony.