THE PROSECUTORIAL MANDATE See that justice is done Prosecutors in Austin, Texas 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 assaults, 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 crimes 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 assault 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 crime 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.