THE PROSECUTORIAL MANDATE See that justice is done

Prosecutors in Austin, were convinced that the sun would come up in the West before an innocent person would be convicted in their jurisdiction; DNA evidence has demonstrated to them they were wrong.

BY RONALD EARLE AND CARL BRYAN CASE, JR.

US DEPARTMENT OF ENERGY HUMAN GENOME PROGRAM

difference in the outcome. This ar- alarmed populace. Hindsight de- ticle discusses those cases, the setting clares that law enforcement should he discovery of three mistaken in which they occurred, and the pro- have suspected more than one per- convictions in the past few years cedural and policy implications they son, but the attacker was commonly Thas led the Travis County (Aus- present. referred to as “the Barton Creek rap- tin, Texas) District Attorney’s Office ist.” This idea was reinforced by a Carlos Lavernia composite drawing that produced a On June 3, 1983 law clerk Bryan Case high number of suspicious person RONALD EARLE is Travis County and District Attorney Ronald Earle reports. One such report yielded (Texas) District Attorney ([email protected].) arrived at work to learn that the Carlos Lavernia resting near the en- Barton Creek rapist had claimed an- trance to the Greenbelt. CARL BRYAN CASE, JR., is Director, other victim the previous evening. Lavernia arrived in the United Appellate Division, Travis County The Barton Creek Greenbelt was, States courtesy of Fidel Castro’s Mariel (Texas) District Attorney’s Office and is, a favorite of hikers, bikers, boatlift of 1980. In February, 1982, ([email protected].) swimmers, and nature lovers as it me- Lavernia was arrested in Austin for ex- anders toward the outskirts of the posing himself to a young girl at an el- city. For the previous year, however, ementary school near the Greenbelt. to reexamine convictions obtained its five-mile path had produced three Later, he was arrested while burglariz- during the past 20 years in which sexual , several attempted ing a vehicle in a nearby neighbor- DNA evidence might have made a sexual assaults, two murders, and an hood, and in May employees at the

September-October 2002 Volume 6, Number 2 Judicature 69 nearby Barton Springs swimming pool worthy to either the prosecutors or dence room. reported him for exposing himself to the jury because the terrain in the In July Lavernia wrote Thompson swimmers. Police noted that he could Greenbelt is rough and rocky, mak- again, asking if he had followed up barely speak English. ing height comparisons difficult. Per- on the request. Unsure how to pro- In June of 1982 Lavernia was haps this discrepancy would have ceed, Thompson contacted Case at placed on 10 years probation for the taken on more significance if not for the District Attorney’s Office. Both felony exposure incident, and in Lavernia’s unusual behavior. remembered that the Barton Creek April, 1983 he was involved in an au- As the case progressed through the rapist had been convicted on the ba- tomobile wreck near the Barton judicial system, the primary actors sis of one eyewitness, but they had Springs pool. On August 8, 1983, became even more convinced that not realized that the conviction was nine days after the last Greenbelt at- the right man was charged. Lavernia based only on that witness. They de- tack, Lavernia was reported by a jog- quickly became known for his intran- cided to order DNA testing. ger as matching the description of sigence and hostility toward his law- After much searching, Case’s sec- the composite drawing of the Barton yer, the judge, the victim, and anyone retary, Darcie Webb, finally located a Creek rapist. By the end of 1983 the who came within his gaze. If the jury single manila envelope in a county convicted Lavernia had landed in the had lingering doubts about the warehouse with the Lavernia case Federal Detention Center in Atlanta. victim’s identification, those doubts number on it. Inside were all of the Ten months later he was charged as were crushed by the image of his icy exhibits that had been admitted into the Barton Creek Rapist. glare. They did not take long to find evidence, including the victim’s jog- The locomotive. By the spring of him guilty and sentence him to life in ging shorts and dried swabs from the 1984 the lieutenant in charge of the prison. It never occurred to them rape exam. The biological evidence sex detail had grown frus- that there might be other reasons for was sent to the laboratory. No one trated by the failure to solve the his way of behaving. thought further about the Barton Barton Creek rape cases. In a last ef- Back on track. The criminal justice Creek rapist because they believed fort he began to go through sexual system had not looked favorably only the slimmest of chances existed disposition sheets from the upon Carlos Lavernia. This inclina- that this DNA test would be eventful. previous two years, running “handle- tion worsened after trial. Prison, a Astonishingly, two weeks later bys” on convicted offenders. rough place under any circumstance, Lavernia was excluded as being the Lavernia’s packet certainly con- is especially hard on sex offenders. contributor of the DNA. tained red flags. Significantly, the as- Eventually Carlos Lavernia converted Thompson, Case, and Clay saults had stopped roughly around to Buddhism, and to this day is still Strange, the office’s DNA expert, the time Lavernia left Austin. The proud of his leather bound medita- were especially stunned by this devel- lieutenant assembled a photo lineup tion book. Along the way he filed opment since they had spent the pre- and contacted the victims from the three writs of habeas corpus attesting ceding two weeks preoccupied with last two sexual assaults, which oc- to his innocence and berating the vic- trying to determine whether Richard curred on June 2, and August 4, tim, his lawyer, and the trial judge. Danziger and Christopher Ochoa re- 1983. The June 2 victim positively The responding prosecutors dis- ally had anything to do with the 1988 identified Lavernia as her assailant missed him as simply another sexual Pizza Hut murder case, for which and the August 4 victim tentatively deviant in denial. they had been serving life sentences identified him. Lavernia was brought Months turned to years. In the fall since 1990. to Austin, placed in a live lineup, and of 1999 homicide detective J.W. Th- then identified by the August 4 vic- ompson was asked to review some Danziger/Ochoa tim. Lavernia was then indicted in “cold” murder cases, one of which Shortly after 7:00 a.m. on October both cases, even though neither vic- was commonly attributed to the 24, 1988, a 22 year-old mother was tim noted that their assailants had Barton Creek rapist. In prison preparing to open the Reinli Street trouble speaking English. Victims Lavernia told Thompson that he had Pizza Hut. At 9:30 a.m., unable to from the remaining cases failed to never murdered anyone, and also in- contact her by phone, a concerned identify his photograph. sisted that he was not guilty of the manager entered the store and Prosecutors realized that the Au- Barton Creek sexual assaults. In Feb- found her nude body lying in several gust 4 incident was not a strong case ruary, 2000 Thompson received a let- inches of water, hands behind her since the victim had been tentative in ter from Lavernia asking that his back. The store had been flooded in her first identification. The victim of DNA be compared to DNA from the an attempt to destroy evidence, and the June 2 incident seemed to be a sexual assault case in addition to the the young woman, who had been good witness; however, there was an murder case. Laboratory tests ex- sexually assaulted, was shot in the inconsistency. She described her at- cluded Lavernia in the cold murder, back of the head. tacker as being about her height, but Thompson determined there was Two weeks later Richard Danziger which was 5’10”. Lavernia was 5’4”, nothing remaining to test from the and Christopher Ochoa, employees but this fact did not seem too note- sexual assault case in the police evi- of another Austin Pizza Hut, visited

70 Judicature Volume 86, Number 2 September-October 2002 the victimized store for a drink. As tentiary in the mid 1980s Marino made no connection, of course, since they were leaving, an overly curious learned from satanic writings that they already had the men who were Danziger asked the security guard one could capture the personal good for the Pizza Hut killing. about the scene—how the power of another by killing that per- In prison again, Marino wound up sink was clogged and whether the son. He committed himself to carry- at one of the roughest places in the murder weapon was a .22 caliber pis- ing out this rite of passage when re- Texas Department of Corrections. tol. Suspicious, the guard then leased from prison. Four months Fear and aging finally led the tor- alerted police, who brought Ochoa later Marino, following through on mented Marino to a prison counse- in for questioning. his pledge, gained entry into the lor, then to a chaplain. He now says During Ochoa’s initial interview Pizza Hut that October morning pre- that this spiritual journey led him to his face and neck broke out in red- tending to be a repairman. Soon the seek forgiveness, not only for the dish stress blotches when asked about young mother lay dying on the floor, pain he had intentionally inflicted, the murder. The commander then her blood trailing through the cold but also for the wrong suffered by two spoke with Ochoa alone. He came morning water. innocent men. out of the room within five minutes, Of evil and arrogance. In 1990 In 1996 Marino mailed a letter to announcing that Ochoa was ready to Marino was in jail again, charged the Austin Police Department and give a statement about Danziger. with two aggravated robberies and an the daily newspaper, confessing to What influenced him to so easily old sexual assault. A cellmate told the the Pizza Hut murder and offering buckle is best understood only by incredulous Marino that recently two details of the crime. Marino claimed Christopher Ochoa, but during the men had pled guilty and received life handcuffs that were used to bind the course of three inter- young woman, the .22 views over two days caliber handgun, and a Ochoa gradually impli- bank-bag were at his cated first Danziger, and parents’ house in El then himself, more and Paso. He did not simply more, culminating in a set forth the facts, but brutally explicit descrip- Astonishingly, two weeks later also mixed in references tion of how both had re- Lavernia was excluded as being to his mental state. Ho- peatedly raped the micide detail had com- young woman before the contributor of the DNA. pletely changed person- executing her. The final nel since the 1988 written confession was investigation and detec- remarkable in its maca- tives thought the letter bre detail. What makes had the ring of truth to it more remarkable, in- it, but also believed that deed surreal, is the fact that it was sentences for the Pizza Hut murder its author was psychotic. Nevertheless, completely false. A man named from two years back. A few weeks a homicide detective was sent to El Marino was responsible for this hor- later Marino pled guilty to his three Paso and returned with these items. rible crime. charges in exchange for a life sen- However, the investigation fizzled af- Achim Josef Marino. Achim tence. The sexual assault was related ter ballistics tests were unable to con- Marino was born in Germany and be- in a curious way to the Pizza Hut case. firm the .22 as the murder weapon. came the adopted son of an Ameri- Two months before the Pizza Hut The following year, 1997, Marino can G.I. and a German woman. At murder, Marino had entered Ace Tai- mailed a second letter, this time to eight years of age he experienced a lors early one Saturday morning in- the police department and to the dis- vision in which larger than life beings tending to rob, sexually assault, and trict attorney, discussing the crime ridiculed, insulted, and derided him. kill the clerk. Achim Marino had not more. This time a homicide detective As the years passed the beings be- cared for most people who had and a Texas Ranger were sent to talk came more specific in their taunts drifted through his life, but he had with Ochoa in prison. They asked and in schooling him according to loved his first wife. Marino would him if a third person had been in- their value system, which extolled evil later reveal that the counter clerk at volved. Ochoa told them no, it hap- and scorned virtue. From age 12 un- Ace Tailors greatly reminded him of pened just as he testified at til 16 he lived in a residential treat- her. He robbed her with the same pis- Danziger’s trial. Detectives thought ment center but was successful in tol that would later become a murder that Ochoa was lying to protect thwarting help. Doctors tried to con- weapon, then sexually assaulted her, Marino, and began trying to establish vince him that the visions were hallu- but could not bring himself to shoot a link between the two. They spent cinations, but Marino knew they were her. The modus operandi of the Pizza more than two years tracking down real. Hut murder was remarkably similar Marino’s irredeemable associates in a During his second trip to the peni- to the Ace Tailors case. Investigators frustrating attempt to establish this

September-October 2002 Volume 6, Number 2 Judicature 71 mistaken proposition. house was the murder weapon. arms and hands as being behind her The investigation alternatively pro- The two remaining issues were back with her brassiere loosely ceeded and languished until the whether the victim had been wrapped around her wrists. spring of 2000 when police received a sodomized, and whether her hands After sexually assaulting the young letter from John Pray at the Univer- had been bound with her brassiere. woman, Marino said he took her to sity of Wisconsin, saying that he was Autopsy findings included what ap- the restroom where he instructed her representing Ochoa, who was now peared to be four small puncture to kneel beside the counter so he claiming innocence. He asked that wounds in the rectum and the con- could handcuff her to it. Instead, he DNA evidence be preserved. Police clusion that these wounds were “con- shot her in the back of the head and and prosecutors decided that DNA sistent with” sexual assault by an un- she fell forward underneath the lava- testing should be done immediately. known object. Ochoa’s final written tory, accounting for the large pool of Fortunately the Texas Department of statement asserted that he had tied blood there. He then pulled her out Public Safety (DPS) DNA laboratory the young woman’s hands behind of the restroom looking for the shell had saved portions of the biological her back with her brassiere and that casing. Unable to find it, he flooded specimens. both he and Danziger repeatedly the restaurant in an attempt to re- Anticipation of test results differed sodomized her. The medical exam- move possible fingerprints from the greatly from the Lavernia case. This iner and responding officers had tes- shell, which had been dragged under time there was a strange sense of im- tified that prominent ligature marks the victim’s body into the hallway pending disaster, not because pros- appeared on the wrists. This scenario where it was thereafter discovered. ecutors expected a third person’s did not match what Marino told de- Ochoa in his written statement de- DNA to be present, but because they tectives upon his return to the Travis scribed an elaborate story of shoot- dreaded the hopeless uncertainty of County jail. Marino insisted that he ing the victim in the hallway, bring- not being able to exclude Ochoa and had not sodomized the woman, and ing her into the restroom to wash her Danziger. DNA evidence had been that he had bound her wrists with body in the lavatory, and finally tak- introduced in the 1990 trial, al- handcuffs. ing her back to the hallway for fur- though there had not been enough Detectives and prosecutors then ther assault. That was how Ochoa ac- sample to employ the “fingerprint” showed the medical examiner photo- counted for the pool of blood under technique. Rudimentary analysis graphs taken prior to autopsy, while the lavatory, blood droplets on the had placed Ochoa in the 10 percent the victim was being maintained on counter, and the shell casing in the of the population who could have life support awaiting organ harvest. hall. contributed the unknown DNA. Also, The medical examiner recognized a Ochoa’s four-page statement ac- a hair similar to Danziger’s had been black cord running underneath the counted for all the physical findings found at the crime scene. Obviously body as a rectal thermometer, and at the scene and at autopsy. However, there could be no reconciling stated that during the eight hours on it was obvious that Marino’s version Ochoa’s trial testimony and prison life support the victim’s body would fit the observed facts exactly, whereas statements with Marino’s letters, but have been turned several times, per- Ochoa’s version was strained and prosecutors still were not ready to ac- haps not too gently, and that this was contorted. The conclusion was obvi- cept Ochoa’s belated claim of inno- the cause of the puncture wounds ous: all the facts in Ochoa’s detailed cence. four inches inside the rectum. statement came from the two detec- The initial results from the DPS lab Among that same group of photo- tives. Convinced of their righteous- seemed to confirm these fears. An graphs was one of the victim’s wrists. ness, they jettisoned interrogation unknown third party’s DNA was by Both wrists displayed two ligature protocol and were, at least, reckless far the predominant component of marks that were parallel, about one with the truth. the victim’s sample, but there also eighth of an inch apart. Case and During debriefing with prosecu- appeared to be very low levels of Strange pressed Marino’s handcuffs tors Ochoa has maintained that he three genes foreign to Marino and in against their wrists, which produced signed the false statements, pled common with Ochoa and Danziger. identical impressions in the prosecu- guilty in exchange for a life sentence, However, after careful retesting, the tors’ skin. and testified against his friend at trial lab was able to conclusively deter- Other details began to fall into because the senior detective threat- mine that the sample only contained place. Marino told detectives that be- ened him with the death penalty and the complete DNA profile of a single fore sexually assaulting the young told him he would be “fresh meat” individual. Tests later showed that woman he handcuffed her behind for other inmates. He says that he re- Marino’s DNA perfectly matched the the back and then pulled her blouse asserted his guilt while in prison be- profile of this unknown DNA from and brassiere up over her head and cause he did not trust the officers the autopsy swab. Additionally, so- down her clasped arms. Further re- and was worried that recanting guilt phisticated ballistics testing conclu- view of the medical records revealed would cause him harm with prison sively established that the pistol ear- that emergency medical personnel officials. According to Ochoa, he was lier retrieved from Marino’s parents’ had initially described the victim’s just going to serve his time and get it

72 Judicature Volume 86, Number 2 September-October 2002 over with. of habeas corpus, is burdened by unfa- function as an advocate; in effect, it However incomprehensible Ochoa’s vorable procedural rules. Fortunately, says that the accused is one of the actions were, the fact remains that he Texas’ habeas corpus process allowed people whom he is to represent.” falsely implicated himself and resolution of the above cases. However, Prosecutors have been under- Danziger. Ochoa is now out of prison some habeas rules need to be modified standably reluctant to re-examine but, in a sense, Danziger never will be. in order to increase the effectiveness of cases once thought to be over and He suffered a serious head injury when the writ as a means of presenting these done with. Cases in which the evi- another inmate kicked him with steel- claims. dence proves the defendant’s guilt toed boots, forever robbing him of his Another issue is the role of the beyond a reasonable doubt are diffi- freedom. prosecutor in exoneration cases, par- cult to put together, harder to hold ticularly in light of the duty to see together, and happily left behind Policy implications that justice is done, a template for the once a conviction is obtained. The These cases raise important policy legal mandate of the prosecutor. ongoing onslaught of current cases questions that go to the heart of the Texas law states: “It shall be the pri- and opposition from victims certain adversary system of justice. Though mary duty of all prosecuting attor- of the identity of the perpetrator add to the pressure to let sleeping dogs lie. But perhaps the greatest hesitancy is the fear-based as- sumption that the public is intol- erant of mistakes and unforgiv- ing of those who admit to them. These three cases boomer- anged into the public’s con- sciousness during a hard-fought district attorney’s race. The pub- lic reaction was that this was too simple to talk about; mistakes had been made and they needed to be set right. Ronnie Earle readily confessed to astonish- ment at the public reaction, hav- ing been convinced that mistakes of such horrendous moment as convictions of innocent men would result in his being thrown ignominiously out of office. Acknowledgement and remedy seemed to matter to the public more than the game of Gotcha often played out on political fields. What happened to Lavernia, Ochoa, and Danziger devastated their lives and the lives of their Prosecutors have been reluctant to re-examine cases thought to be over and families. It also had an effect on done with, preferring to let sleeping dogs lie. the community of Austin, known for its tradition of respect for the civil liberties of the accused and timeless, such issues are especially neys, including any special prosecu- its ethos of freedom, diversity, and relevant today both because of lately tors, not to convict, but to see that creativity. Prosecutors had thought documented shortcomings in the justice is done.” Former Travis that the sun would come up in the criminal justice system and because County District Attorney Robert O. West before an innocent person of the current threat to our cher- Smith referred to this mandate as would have been convicted of a crime ished civil liberties presented by the “…[Q]uite paradoxical. On the one in their jurisdiction. They were response to terrorism. hand, it casts the prosecutor in the wrong. g One such shortcoming is the fact role as an advocate representing the that in many states the vehicle for rais- people in an adversary proceeding, ing claims of actual innocence, the writ and on the other hand it restricts his

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