Why Won't the State Pay Billy Allen For His Time In Prison -- Or Should It?

In the spirit of this week's cover on the exoneree compensation scheme and the attorneys who've profited handsomely from it, we submit the case of Billy Frederick Allen -- a man incarcerated for nearly 26 years for two apparently drug-related University Park murders. In February 2009, the Court of Criminal Appeals in Austin granted Allen a writ of habeas corpus based on "ineffective assistance of counsel" at trial. There was ample evidence, which his trial attorney didn't pursue, that another man named Billy Wayne Allen was guilty of the murders, the appeals court held.

When Allen filed for compensation in March 2010 under the Timothy Cole Act -- a law passed in 2009 that awards innocent men $160,000, split between a lump sum and a yearly annuity, for each year of wrongful imprisonment -- the Comptroller shot his application down, saying the relief granted by the appeals court didn't come in the form of a pardon or court order that explicitly indicated "actual innocence."

Allen and his attorneys, Kris Moore and Lubbock personal injury attorney Kevin Glasheen, obviously disagreed with the state's interpretation.

To that end, they filed a petition with the Texas Supreme Court to force the Comptroller to pay up. At this moment, it's the only other avenue for an applicant if the state rejects his claim. There is no panel set up to review the legal basis for the claim (and perhaps there should be).

This wouldn't be the first time the Comptroller has bounced a compensation claim, whole or in part. Anthony Graves's was denied compensation because the district attorney's motion to dismiss because of a lack of credible evidence didn't amount to an exoneration. In the 2011 session, state Rep. Rafael Anchia and state Sen. Rodney Ellis introduced ultimately successful legislation to allow for Graves-like claims and for those who've been freed on a habeas writ indicating they're actually innocent. According to some state emails Moore and Glasheen filed as exhibits this week, the Comptroller tried to lobby legislative staff at Sen. Ellis's office for stricter language before the bill's passage, but Ellis' office balked, fearing it would result in legitimate claims getting tossed.

The fact the Ellis's office rejected the language, Allen's attorneys claim, is proof that the legislation was intended to ensure guys like Allen get paid. There's a decent amount of disagreement on that point, which is where the appeals court's opinion may come in to play. In the wee morning hours of April 9, 1983, University Park Police responded to a shooting call. They found James Sewell standing near a duplex, handcuffed, gagged and bleeding from stab wounds to the head. He said he'd been robbed, and that his girlfriend, Dannelle Lashbrook, had been kidnapped. As they loaded him into the ambulance, the detective would later testify, Sewell said it was "Billy Allen" who did it. Sewell later died from his brain injuries.

As they swept the house a second time, police found Lashbrook's body in a car parked in the building's carport. They also found a hand print on the car's hood, which turned out to be Billy Frederick Allen's. He was charged and convicted of the murders and sentenced to two concurrent 99-year sentences. A subsequent trial court found problems with the state's case. For one, Lashbrook and Sewell were apparently drug dealers. Lashbrook's specialty, court records say, was cooking meth. The house had been ransacked in a way that suggested this was all drug-related. Allen was certainly an acquaintance of Sewell's, but not that kind of acquaintance. In fact, just days before, Allen had sold Sewell a few scraps of goal. Allen's wife testified that he'd leaned against the car with his hand on the hood as Sewell counted the money to pay him.

The state's other linchpin was a detective's recollection of Sewell's last words, pinning the attack on "Billy Allen." But a paramedic attending to Sewell said he'll never forget the dying man saying "Billy Wayne Allen" over and over. Not Billy Frederick Allen. Investigators knew all about Billy Wayne, who had a history of drug abuse and violence. He was even a suspect. A man who knew Billy Wayne subsequently bought jewelry and a pistol that belonged to Lashbrook, a defense investigator found.

The two prongs of the state's case were found by a habeas court to be based on bogus evidence -- the product of investigators with tunnel vision.

"In light of this state of the evidence, it is not surprising that the habeas court found that the newly discovered evidence 'of innocence was so strong that it could not have confidence in the outcome of the trial,'" the appeals court ruled, tossing out his conviction. The following month he was released from prison.

Now, is that endorsement of Allen's compensation claim, or does it leave the Comptroller with just enough wiggle room to deny him? That's the question the Texas Supreme Court will have to answer, because not all cases are blessed with the DNA silver bullet.

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