Interview with Roy Greenwood

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  •   RAYMOND: We had just talked, you had finished an overview of the history of a lot about capital cases in Texas. I wonder if you could talk also about—you talked about time also about space. You have talked about Dallas County, and Harris County, and Travis County but you also mentioned that you took cases form other places, from other counties. Can you talk about what you see statewide, anything that you’ve noticed place to place?  
  •  GREENWOOD: With regard to—?  
  •   RAYMOND: With regard to capital cases. With regard to different ways places operate. With regard to sentiment, if there is political sentiment regarding prosecution.  
  •  GREENWOOD: Well, Texas, what was the last survey, somewhere in the high sixties low seventies still believe in the death penalty as far as public polls. That’s, give or take a few points, where it’s been forever in Texas as opposed to other states. But, you know, even though there are a lot of problems with lawyers, defense lawyers are better. Everybody understands, I think, that there really are innocent people out there. And for sure, the courts know that in Texas because they’ve had to do it so many times now.  
  •  One would think that all of the suppression of evidence, the Brady claims that come up, would be minimized but that doesn’t seem to be the case. Brady was institutionalized by the competition between Harris County and Dallas County for so many years. Between Henry Wade and Carol Vance and whoever Vance’s predecessor was, well I guess Vance was there from ‘sixty-nine, or so on. They were in a war to see who could get the most death penalties and they were, kinda, real equal. When that kind of from the top mentality hits then all of your, and they were all professional prosecutors in those two counties, I mean you didn’t get past like third chair if you were going to swingin’ door and go out into private practice.  
  •   And that’s fine, but when you get these competitions going on then somebody’s going to cheat in order to win. That’s a lot of what it was. While that competition between DA’s offices doesn’t seem to go on anymore it’s human nature to want to win. Defense lawyers, it’s almost impossible to cheat. You put on a witness you know is lying, you can go to jail. Besides it never works out. They are too stupid to lie effectively so you never put them up. But your client’s going to get blasted and then the guy’s going to turn on you and say you knew. There’s no —it’s no win. Yet for so many years the media says, “Ah, defense lawyers will do anything to win.” Well, yeah but not quite anything because there’s not much we can do, except manufacture evidence, go to prison, and lose our law license.  
  •   Prosecutors never even get disciplinary complaints no matter how bad they act. Not one prosecutor in the State of Texas has been prosecuted for forty years of documented, court found acts of misconduct, not one. They’ve been prosecuted for stealing stuff and having sex with witnesses and stuff like that and, hell, we filed a complaint against Sebesta in Graves’ case. Zip. Didn’t last five minutes.  
  •  This was after the Fifth Circuit decision listing, I don’t know, I counted at least nine ethical violations in their opinion, so we didn’t have to say a word. Sebesta’s still getting media down there in Burleson County talking about what a raw deal he got and that Graves is guilty. And Kelly Siegler, who is no shrinking violet, saying “This is the worst miscarriage of justice I’ve ever seen,” and Siegler’s been around for twenty something years in Harris county. The problem with her is it took her two years to make that decision.  
  •   RAYMOND: This may sounds naïve, and I guess it is, but why would Mr. Vance and Mr. Wade, you know, be in this competition and what starts that?  
  •   GREENWOOD: Politics.  
  •   RAYMOND: What are they getting? I mean they’re each where they are.  
  •   GREENWOOD: Dallas County, in those days, was rabid right wing. Kennedy. Houston was half and half. That’s how they’ve always been, schizophrenic in Houston. It was just something to do. “Hey, let’s have a competition who can I—Henry Wade! He’s supposed to be number one.” So all the Harris County guys—but when Vance got in Dallas, good guy, all his family, good guys. They’re honest.  
  •  To my knowledge they didn’t cheat, some of their underlings got caught but Bill Vance was a good guy. He was a good DA for Dallas it was just a hard left wing turn from what all the—a lot of the top of the line prosecutors left because he wasn’t vicious and corrupt enough. The whole Vance family are smart, intelligent, and honest. There’s what, two district judges and him, a US magistrate, they’re all good people, them and the Tolles. They were first assistant DAs and judges and Court of Appeals and US magistrate.  
  •  They’re good people in Dallas. You know, that climate of competition and win at all costs. You know, it’s “us against them.” Where’s criminals are not “us.” They’re a bunch of individual idiots. Nowadays it’s more close to us when you’ve got the gangs and the cartels and all that but these straight criminals back thirty years ago didn’t have anymore sense of organization than a nit. Now they’re organized. They’ve gotta deal with the Russians, Jamaicans, the Mexicans, whatever else, Colombians, and they’re all brutal and violent. Fortunately they haven’t engrained themselves too much into Texas crime that anybody wants to mess with. That might be just as well, probably. It’s just competition, that’s all I can say.  
  •  I mean I don’t like to lose but—and I’ve learned—I haven’t found a legitimate way for a defense lawyer to cheat successfully in Texas. Just can’t do it. Whereas prosecutors it’s easy. Just get a cop to hide all the exculpatory and the judge is not pay enough money to find those witnesses which was historically the problem.  
  •   RAYMOND: So when you say competition you mean competition between the prosecutors and the defense attorneys?  
  •  GREENWOOD: No, among the prosecutors.  
  •   RAYMOND: Among the prosecutors. Again, this sounds naïve: Henry Wade, this powerful person in Dallas, very powerful man, over here you have Johnny Holmes, or whoever, in Harris county. Competition in what sense, were they running for higher office, were they contemplating running?  
  •   GREENWOOD: Well Holmes wanted to run for governor, ran for A.G., I think. Wade I never saw him, but he was old school. He was, “It’s us versus them criminals. No matter what happens we’re going to get them off the street.” Mostly Blacks. I think Wade still was racial because of the history of their teaching them how to get Blacks off juries in Dallas County. My thought only, I don’t know. Never met Henry Wade, didn’t want to. Holmes was a unique character. I think Holmes was just a, that guy’s a player. I mean, he just wanted to have a good time. He was rich, DA in Harris County, what the hell? Because he could.  
  •   RAYMOND: So Henry Wade wasn’t trying to compete with Harris County as much as he was…  
  •   GREENWOOD: No, all his underlings wanted to.  
  •   RAYMOND: I see.  
  •   GREENWOOD: You had a whole line of first assistants who knew Henry Wade was getting old. He was getting old in the Sixties. The better they came off the better shot they had to be DA when he left.  
  •   RAYMOND: I understand that. I had misunderstood before. You were talking about competition between Dallas and Harris, you mean within an office?  
  •   GREENWOOD: Yeah. There are offices against each other in the Seventies. Texas statutes on penal codes used too have a provision that, somebody was eligible for conviction of a crime, didn’t have just a life sentence, had any number of years for life, and they got into, “Well any number or years let’s go for two hundred years rather than life. That’s three times.” Okay?  
  •  So then the next ones shoot for five hundred, then seven fifty. Archie Brown who was a good guy, he was a district judge in San Antonio. Middle of the road; quite a dapper character; he was Commissioner for Criminal Appeals for a while. He just said how ridiculous that was that Dallas and Houston would be vying to see who would have the highest sentences. He stopped being commissioner for—I don’t know why he just went back, and he was the visiting judge. San Antonio started getting into the play. I forget now, Ted Barlow got to be DA, I guess, and Barlow also wanted to be governor so he started pushing his prosecutors. San Antonio had just been laid back and they had a handful of really good lawyers in San Antonio.  
  •  Charlie Butts, Gerald Goldstein, and a few who just kicked San Antonio’s ass if they ever had a bad trial. Barlow started bringing in some pros and started getting into this competitions and Archie Brown wound up on the bench visiting after one of his tirades about how silly it was. He gave him about twenty thousand years, that was the record as far as I know. It wasn’t illegal because the statute said “any number of years.” I sent Archie a letter after said and said, “Archie, Judge, what are you doing?” He didn’t reply.  
  •  RAYMOND: What was he doing? What do you think that was about?  
  •   GREENWOOD: I don’t know. I don’t have a clue. He just got caught up in the moment, I guess. But then penal code in the early ‘nineties stopped all that. I mean, it may have still gone on. Let’s shoot for a million next week. Doesn’t make any difference, it’s all sixty under the parole laws. It was a game. That’s when I knew, when I started seeing that and I heard it talked to the prosecutors. I mean, in those days, you could drink with the prosecutors, go out and party with them.  
  •  They’d come up to argue a case and we’d go out and drink with them. They’d talk about all these competitions. “Well you’ll get more years in San Antonio, Dallas, blah.” So they told us. In the early ‘eighties, all of a sudden, DAs started giving their prosecutors orders. “Don’t drink with defense lawyers.” Now, in some places it still happened for a while but you don’t see that at all now and you haven’t for twenty years.  
  •   RAYMOND: What’s that about?  
  •   GREENWOOD: Just us versus them. They’re all professional. That means they’ve got the sign of God behind them. Oh yeah, doing God’s work is a big idea with prosecutors, professionals.  
  •   RAYMOND: Do you have any idea what accounts for that change? About 1980?  
  •   GREENWOOD: No, I don’t. Travis County had always, not professional prosecutors. The only real professional prosecutor here was a guy named Phillip Nelson. Phil was a good guy, he was fair. He got involved in the Rector case and he made a mistake. He didn’t see some stuff was exculpatory when he knew, should have known, it was. I don’t think he had any evil intent and we put it on. Rector almost got a new trial in state court. Rector was one of only three death penalty habeas corpus cases that got evidentiary hearings in the 1980’s. Three in Texas. 
  •   RAYMOND: What were the other ones? 
  •   GREENWOOD: I don’t know.  
  •   RAYMOND: We should talk about Charles Rector later. Is that what you’re saying?  
  •   GREENWOOD: No, it just came to—I mean state judges didn’t give evidentiary hearing in capital cases. Most of the stuff was getting filed as crap. Even when an attorney would be there and raise legitimate issues, denied. It left the Court of Criminal Appeals and they didn’t care. They really didn’t care at all. They didn’t have anybody that knew about capital murder stuff. The Supreme Court was in flubs, blah blah, you know?  
  •   RAYMOND: You talked about, when you started practicing law, the Court of Criminal Appeals reviewed everything. There was no criminal jurisdiction for Texas Courts of Appeals. The fact that we have this kind of system, I wonder if you can talk about this system of jurisprudence we have with district courts, then going to courts of criminal appeals that are mixed. I mean, courts of appeals that are mixed, and then separating out again. I wonder if you have any thought about that, or compared to other places?  
  •  GREENWOOD: Well most states now have that system. Texas was way late coming to the—only Oklahoma, I think, is the only state where I think they still have. It used to be only Oklahoma and Texas had a single high court for criminal matters. I don’t know what Oklahoma, maybe they’ve done away with it now. It’s still rather unique that they don’t have just the Supreme Court that handles both. I think they absolutely need a high appellate court that knows just about criminal stuff because it’s too complex.  
  •   All lawyers are specializing now and this stuff is way complex. I mean, I haven’t done a civil case of any kind, divorce or anything else, in twenty-five years. Every once in a while somebody kinda pulls me to do something and it just curdles my mind to think of it. My cousin is a retired attorney in Ft. Worth and he’s one of them big law firms and he just—it drove him—I mean he made hundreds of thousands of dollars a year in salary, but he hated it. I would have hated it too. I enjoyed the hell out of it until about 2005 and I said, “I don’t like this anymore.” That’s when I stopped taking cases.  
  •   RAYMOND: Like criminal law? Or law at all?  
  •   GREENWOOD:  Dealing with people. Dealing with the hypocrisy of what we were seeing. I mean, Michael Blair, they had all this evidence for eight years before they finally granted him relief. Graves, we litigated for twelve years. It was there after the, in three years. Nobody paid any attention to him. I got tired of, you know, just the flukieness of these guys winning these cases. Just because I had the audacity to keep it up. That’s ridiculous.  
  •   RAYMOND: Well, why don’t we talk about some of these cases? Do you want to start with, well Charles Rector is an older, an old case. He’s the one who has been executed since. Could you tell us about Charles Rector case? How you came to be on it? You know, just talk about that case? 
  •   GREENWOOD: Well I represented his co-defendant, Anthony “Cowboy” Miller. We were within a month of being appointed. We were relatively certain Cowboy was innocent. One of the other co-defendants had implicated him in this crime. That was serious. Rector wouldn’t talk to anybody. Rector was a little animal. He was short and ugly and mean and didn’t speak well and had a prior murder conviction and had been in the pen a couple of times before.  
  •  I really didn’t get to know him ‘til I represented him on appeal. There’s some question and I’m still not sure. I know that Cowboy didn’t have anything to do with it. I don’t know why the other guy brought Cowboy in. Fortunately we had, like, two dozen witnesses to put him someplace else at the time this woman was being murdered. About a third of those people came to follow her to the A.P.D and they didn’t pay any attention to any of them because one three-time ex-con, with no physical evidence to connect him, says he was involved.  
  •   The lawyers let me talk to Rector. I think it was before Rector’s trial, or maybe during Rector’s trial. I said, “As far as I’m concerned your lawyers are here so anything you say is confidential privilege.” I said, “Did Cowboy have anything to do with this?” because I wanted to know because I was spending lots of time. Rector said he didn’t do it, I believed him, the evidence seemed to show that. We had to fight about this co-defendant’s deal.  
  •  They were offering him a deal. Rector, he wouldn’t confess, he wouldn’t talk. So we had this accomplice witness sitting out there and I wanted to know what was that all about. Rector said, “No, Miller didn’t have anything to do with it.” Rector, had it not been for just the advice of counsel, which was me, I would have called Charles Rector to testify in Miller’s case. He couldn’t confess to being present because if he got a new trial they’d get him again on that confession because he’d never confessed before.  
  •   So I said, “I’d love to have you as a witness because you say Cowboy didn’t do it, since you’ve already got the death penalty, but I can’t tell you to do that, that’s silly.” He said, “I’ll do it.” I’m still not sure if Rector actually killed anybody. He was present, I think he was driving the car that was taking all the stolen stuff off, and I think somebody else killed her. The guy who was going to be the accomplice witness is the best guess. But if Miller wasn’t there we know there were three. Nobody’s ever mentioned who the fourth one is.  
  •   RAYMOND: For the benefit of people who are going to be watching this later can you talk about what the allegations were? What happened?  
  •   GREENWOOD: Woman by the name a Katie Davis lived with her boyfriend in central Austin. She was in their apartment and these three guys knocked on her door, kidnapped her, took her out to Red Bud Island. There may have been some sexual contact, I can’t remember now, but shot her to death. So it was a kidnapping murder. Rector was basically caught in his car while the cops were there investigating her disturbance before they ever knew she was dead. Rector came to the apartment looking for some guy. The cops were there. They chased him out, he jumped in a car and drove off. The cops stop him and it’s full of stolen stuff. I don’t think, that indicated to me that he didn’t know where she was.  
  •  He said, “I had the stolen stuff but I was look—,” but he never would name who the other person was. Under the circumstances at that point I was busy trying to get Miller off for sure and him off. It just didn’t become relevant for me to really push him but he never named him to me. The accomplice, the guy who really gave us the problem, he escaped the Travis County jail before Rector’s trial. He didn’t testify against Rector. Actually, he escaped before Rector’s trial and, about six month later, was shot to death by a civilian in Louisiana.  
  •  They had to put Rector on trial with all the stolen property and he had a horrendous criminal record. Once they got him as a party with his record the jury gave him the death penalty. Miller’s case was coming up and, really, Cowboy had some burglaries when he was seventeen, that’s why he was in prison. They were all living in a halfway house together. Cowboy didn’t hang around with those guys. Why he was implicated, we didn’t know. Anyways, this other guy, he was Steve Cappelle, the US Magistrate’s client, he escapes Travis County jail, shot to death and all of a sudden they don’t have an accomplice witness. They come to us on the eve of trial and offer us five years for a plea. Cowboy wouldn’t take it.  
  •  After three weeks jury trial, the jury acquitted him. Could have gone either way. They waived the death penalty at the last minute. We had prepared for two and a half years for the death penalty. Rector, during Miller’s trial, the state brought in a rebuttal witness that said that Miller and Rector were together at a certain time in far northeast Austin. At the exact time that Doctor Bayardo was putting her death at Red Bud Isle in Southwest Austin. It was too late to raise that. It was newly discovered evidence in Rector’s appeal because of time limits so we had to wait on habeas corpus. I pursued that for ten years and lost every play. Nowadays that might be a winner, back then it was not.  
  •   RAYMOND: Tell me why. What’s the difference? 
  •   GREENWOOD: All this change, people can be innocent. He was involved in this burglary of the apartment. I think the kidnapping was just something else. Because of his bad record he was still subject to the possibility of the death penalty. The chances are now, with what we finally found out, had we had it at trial, if his lawyers in trial would have had it, and they had been competent—he didn’t have good lawyers at trial—they could have made all kinds of hay. 
  •   RAYMOND: So I’m trying to understand what you mean by “that wouldn’t happen,” “that might not have happened today.”  
  •   GREENWOOD: I mean, we just went through this whole landscape of death penalty. Nowadays you better kill a bunch of people or a whole series of people, be a serial killer. Most prosecutors just don’t go for death for somebody shooting a store clerk unless you’ve got fifteen prior convictions and you’re a violent guy, because you can’t afford it. Because they know the jurors will put the guy away for life if it’s a single, one transaction deal. Now, if you’ve gone and raped child, or something like that, that’s different. That’s a political difference, it’s not an actual difference.  
  •   RAYMOND: So you mean that the consciousness of prosecutors is different and the consciousness of jurors is different because now people know about innocence. 
  •   GREENWOOD: That and life without parole. It makes a big difference to Texas juries that that is an option. I mean most juries, because Texas had thirty years of low parole, you know you get out in almost nothing, in the early ‘nineties that started to become a problem. A bunch of these guys were getting out, Kenneth Allen McDuff, and doing it again. That just got engrained. If they’re on Death Row and they get life and they can get out then the next time around we’re not going to let somebody do that. Of course, different cases, different jurisdictions, different facts. Americans don’t like to think too much, they’ve got too much on their plate. They don’t think globally. You know what I mean. 
  •   RAYMOND: Have you talked to juries after any of these trials?  
  •   GREENWOOD: Oh yeah.  
  •   RAYMOND: Could you talk about what that’s like to, either in Cowboy Miller’s case or in other trials?  
  •   GREENWOOD: In Miller’s we talked to like ten of the jury. They found him not guilty so fast, two hours. They didn’t want to talk long because they had been in a three-week trial and even then they were hesitant about saying he was innocent. They all kept saying, “Well, the state just didn’t prove it.” I was our opening argument because I put the case together but another attorney had been appointed who was much senior than me, Stephen Orr, he’s a great lawyer. Orr had, he had tons of cases.  
  •  We basically didn’t see Orr the first year in preparation of trial so I prepared the trial. But hen his schedule got clear and he’d tried hundreds of cases and so he did most of the trial stuff, I did about a quarter of it. So I let him do the final. Steve’s best stuff is not the final arguments, I’m pretty good at that. I lead off saying, “You’ve got a very unusual situation. You’ve got one of the few cases you’ll ever see where the defendant is really innocent.” After they found him not guilty, not one juror really came forward and said, “I believe he was innocent,” they all said “They didn’t prove it.” That’s how rare it was. There had only been like two capital murder acquittals in Texas in the previous twenty years, it just didn’t happen. Even the jurors were almost embarrassed with their verdict. That was just the mindset. 
  •   RAYMOND: That if he’s on trial he’s guilty?  
  •   GREENWOOD: Yeah. Had to have done something! Well that may be true but that was the way we had deal with it. That’s why defense lawyers can’t cheat. That’s what your going into and the prosecutors knew that. Williamson County. They don’t need anything to convict! Literally, I mean there are still Travis County lawyers, those that still try cases in Williamson County, that will question a juror just about the fact of the case. “Now tell us how many of you think he’s guilty.”  
  •  Without hearing a word of evidence, they tell me even as recent as a few months ago, half the jury will raise their hand. Of course it freaks the judges out because they’ve gotta through all this, you haven’t heard any evidence, you have blah blah blah and of course they all change their minds but that’s just shallow thinking. High school graduates don’t know where states are, much less countries, no caring about real politics. It’s just [punches knee], what we’re looking at in our political system. If you’re not scared of it you don’t know what it is.  
  •   RAYMOND: Do you want to talk about Mr. Blair now? 
  •   GREENWOOD: Sure. GREENWOOD: Now, that was north of Dallas? GREENWOOD: Collin County.  
  •   RAYMOND: North of Dallas. I wonder if you could start out, for purposes of people understanding the story, what he was charged with doing?  
  •   GREENWOOD: 1993, I think she was seven, nine, Ashley Estelle was a little girl whose brother was a soccer player, a little bit older than her. Her family took her to see the brother play soccer in this monster tournament they had in McKinney, I guess. They had a dozen soccer fields in this complex, it was like four-thousand kids had come to do this tournament. So, Mom and the family have a little picnic area set out to watch this game.  
  •   Mom, we’re not sure about her, and if you don’t play anything this might be part of something you don’t play. Everybody was wondering what the hell Mom was doing. Mom apparently was a flake and let this little seven-year-old wander off. She disappears. For three days everybody is freaked out. If “Amber alerts” had been in then that would have been everywhere. After two or three days, somehow, her body if found some miles away in a field. She had been strangled. No sexual contact. Michael Blair just happens to be—Blair was a child molester.  
  •  He had been since he was a small child. His mother was a Tha, and an American serviceman in the Vietnam War, and they had been brought over here after the war. He was just a child molester, it was just engrained. He had served a couple of convictions from Dallas County and he was on parole and it’s no big secret. He gave an eleven-hour taped statement to Collin County law enforcement. He basically admitted, “I’m a child molester.” Told ‘em he’d molested dozens of kids and had those two prior convictions to prove it. “But I didn’t do this.  
  •  Like to help you. I saw her picture being missing in the newspaper and she fascinated me.” So he joined the search crew, and he was from Dallas, this is in another county. He joined the search crew looking for her. After they had found her body he went out and was driving by the scene where they found her body. There was a couple of evidence techs and a cop out there and they just stopped him just for the hell of it. Found out his name and somebody ran him and found that he was on parole for child molestation and he became public enemy number one.  
  •  He wanted to help so he gave them blood, and hair, and semen, search my car, search my apartment, blah blah blah. No problem. Talked to ‘em for eleven hours. They took his hair, and this was pre-DNA. And the only way, even then, you could get DNA off of hair is if the root tag was there. This was before mitochondrial DNA testing. So he gave them all these samples and they took all his hair because they had found a hair on the child’s body and had found a strange hair in his car.  
  •  They had found a clump of hair with what the expert said was both his hair and her hair. When they’re expert, because of the high -—I mean people were going nuts, and they knew Blair was somehow involved. He was staying with another couple while he was working and they were getting threats. So the cops put him up in a hotel while they had their expert match all his hair up and they said “Oh, match.” After six days of watching him, they scoop in and arrest him. That was it, hair.  
  •  Nobody else wanted the appeal. Based on that Senator Shapiro got the Ashley Laws passed and she did a lot of stuff. She was an up-and-coming. Wants to be, I don’t know, a US senator or something. She pushed that and in those days Collin County, they had really strong prosecution. They weren’t nearly as rabid as they are now. I mean, if there’s a competition in Texas it’s between John Bradley and whoever is DA in Collin County for the baddest-ass prosecutor. So they go after Blair, basically because they have to. They’ve got this expert coming up, “Well it’s a match, it’s her hair in his car, his hair on her body.” Nothing else. Zero, that was it.  
  •   He gets convicted, it took the jury twenty minutes to give him the death penalty. They heard that eleven hours, the defense put in that eleven-hour statement. He didn’t have to testify. There were zero errors in that case. I have never seen a trial last for more than a week where there is not one error in the trial. Not one error. Nobody wanted the case, high profile child molester. I was appointed by the Court of Criminal Appeals to do the writ. I immediately found out that the lawyer who represented the trial and had done a very credible job, he made a few mistakes like everybody does. He didn’t have any capital experience but he tried a good case, did as much as he could.  
  •  There was no error in that case, not one error. The trial judge was fair, he gave everybody time, he was not a idiot to the defense in front of the jury like most of them are, but that jury, they were going to convict anybody that walked in there as a defendant. It is clear to me, after twelve years, those trial prosecutors had deep concerns about this thing. They weren’t sure that, Tom O’Connell who was DA that actually sat second chair, guy’s name was Bryan Clayton [J. Bryan Clayton] I think was chief lawyer.  
  •   After this case, after they won this case Clayton resigned from the DA’s office, went to West Texas to somewhere, practices in a small town and I’ve talked to him three times over the years, he refuses to talk about this case. Now you wanted a capital murder defendant. Got it affirmed on appeal, no error. Way before Blair was ever declared innocent I went to talk to him and he wouldn’t talk about it. Something he knew that he won’t talk about and I don’t know what it is but the fluke in Blair’s case, I’m looking for any error, there isn’t any. The only error I could see on habeas corpus was that the trial lawyer, who did a good job, the judge forced him to be the lawyer on appeal. He objected and, “Judge I don’t know anything about appeals, blah blah blah.”  
  •  He said, told the judge, “I don’t know anything about appeals. I don’t do appeals,” and was forced to do a capital murder appeal and did not raise the question of lack of, sufficiency of the evidence. Even before this case and right up until this day a conviction for anything based upon a microscopic hair sample cannot be sustained. The Court of Criminal Appeals just held that, recently. That is insufficient evidence and he did not raise sufficiency on appeal. Had he raised it Blair possibly would have been, the conviction would have been reversed and a judgment of acquittal entered in 1994-5, five but he didn’t do it. All I could see on my original analysis of the case was ineffective assistance of counsel on the lawyer on appeal for not raising it.  
  •  Three major large states had previously held and sustained a conviction based on microscopic hair samples. That’s it. That’s all it was. I was looking for something else and happened to stumble on it, I had been told that they took all they hair they had and submitted it to Orchid Cellmark in Dallas for DNA testing and that there wasn’t any DNA So for some reason or another I’m reading through the record again looking for something and they’re talking to one of the technicians and they’re talking about this hair and he just says, “Well, I took these four samples and set ‘em somewhere, or was testing them, and these other two samples I gave to somebody else because they had tags on them.” Well, Orchid Cellmark had already told me they didn’t find any tags on the hair samples. So all of a sudden we’ve got two tags.  
  •   RAYMOND: Tags being? GREENWOOD: Root ends. RAYMOND: Root ends.  
  •   GREENWOOD: So, I filed this motion that said, “Where are those two deals?” They found three hairs that might be them. The court reporter had all the exhibits, nobody else had access to the exhibits. We finally found them and so I filed a motion with the Court of Criminal Appeals asking for DNA testing. Betty’s brother-in-law is an engineer with G.E. and they live in North Carolina and he told me that one of the best labs in the country is LabCorp in Research Triangle Park, why don’t you try them? You see, nobody was doing DNA testing except for the F.B.I. as early as one year before this. LabCorp was one of the first private outfits, and Orchid Cellmark, but nobody was doing mitochondrial and without those root ends you couldn’t do regular P.C.A., P.C.R. testing. So we found the hairs, sent it to LabCorp and lo and behold the hair didn’t belong to her, his hair didn’t belong to him, filed a writ, said, “Innocence,” you know, “Stop time.”  
  •  The Criminal Court of Appeals took a grand total of five weeks to deny that writ. Got into federal court. Judge Royal Furgeson, it was in the Midland Division, Judge Royal Furgeson looked at it and said, “Hmm. What’s ya’ll claiming a matter of innocence here.” He didn’t say, “Well the Supreme Court said you can’t do this.” By this time the Attorney General said, “Well Judge, yeah those main hairs that were actually on the body seems to not connect him up but there’s all this other hair.” So he says, “Well let’s test it all.” State paid for forty thousand dollars worth of additional testing with two other labs including mitochondrial and that was over a series of three different tests. We had no objections. Test it all.  
  •  So on their tab they tested it all. They were looking for a hair that would link up and none of them did. At that point the Attorney General says, “Time out.” The State of Texas says the Court of Criminal Appeals has never been able to rule on this claim because now all the hair has been tested. We suggest you send it back to them. Well we were dealing with the A.R.D.P.A. and you get one shot and what happens if it comes back, statue of limitations. So I said, “Okay, here’s the deal. We’ll agree to send it back but you’re going to sign a written deal saying ‘we don’t lose anything because it goes back. As a matter of fact, if it goes back and we get denied then it’s going to go right back to the same position it was today.  
  •  Just reinstated on the court’s docket.’” Judge Furgeson says, “It sounds good to me.” I wrote up a nine-page contract and the Attorney General signed off on it so here it goes back. So that was in 2000. Well they had never had a remand in front of federal court before for DNA testing. It took, between the Court of Criminal Appeals and the trial court, it took them six months to determine whether they were going to appoint us to continue representing our man. Want to take a break? [TAPE CUTS]  
  •   RAYMOND: Mr. Greenwood, you were talking about the Court of Criminal Appeals deciding whether or not to even appoint you.  
  •   GREENWOOD: Yeah. See remember, I talked about when the Texas statute went into effect in 1995. They fought for literally years about how much money they were going to authorize for attorneys doing this work. They, at some point, finally decided it would be, after going through another legislative session, they asked some of the, who ever was, I guess McCormick, the presiding judge, asked me, or a committee, asked me, “What was the minimum number of hours it would take?” I said, “Okay look, that’s the problem. I can tell you how much it would take for me but I don’t have to research stuff. I know all the cases, I am a speed reader.  
  •  I can do a brief in one quarter of the time. I could tell you how much it would be for me.” And I figured absolute bare-ass minimum with no issues to investigate, because once you get outside the record other than ineffective counsel, whether he was sleeping or drunk or whatever, there was no discovery, there’s still no discovery. I filed, I had one of the first published opinions under the new statute where Dallas County just said, “No, we’re not going to give you discovery,” and they published that opinion. Only Charlie Baird dissented. So they could basically say we would give you a discovery trial but we’re not going to give you the same discovery for habeas.  
  •   RAYMOND: What was the name of that case?  
  •   GREENWOOD: Jesse Patrick.  
  •   RAYMOND: Oh, Jesse Patrick, yes.  
  •   GREENWOOD: I had this form up and the hell you have to go through, the Attorney General’s Public Information Request, well bullshit. I mean all they’ve gotta do it say “work product at the police department and DA’s office,” and so much for discovery. Other than that there’s a trial record. It’s public. Duh. Hell, in two counties I had to file motions for my own copy of the record. The Court of Criminal Appeals knew nothing about administration. They still don’t. If they don’t have good general counsel they can just melt into administrative morass.  
  •   Anyway, where was I? Oh yeah. So, after they finally settle, and I suggested to the court that the absolute bare minimum was one hundred and fifty hours for me. But I can’t say that I’m typical. I don’t think anybody else can do what I do in less that three hundred hours. The guys in California, the experts, what’s his face, the guy that does all the books and stuff on money, I forget his name now. He guessed four hundred to six hundred. So that’s about right. I said, “But you’re talking bare minimum, a relatively short record, not sixteen to twenty thousand pages, but a five to six thousand page record where the defendant confesses, everybody knows what his criminal record is, he’s caught in the act, that’s minimum, but that’s not most of these cases. It would be a hundred and fifty hours.” They had already decided they were going to pay a hundred dollars an hour. Lo and behold the maximum comes up at fifteen thousand dollars. Okay, that pays me fair, but it doesn’t pay anybody else. 
  •   And you can’t, I’ve been doing it forty years now, and was doing it twenty-five then and specializing in it. So everybody else got screwed. Of course, the feds were paying a hundred and thirty, when the state was paying a hundred. Now, the feds are paying a hundred and seventy-five. As far as I know, the Court of Criminal Appeals is still paying a hundred dollars an hour. So, they had to just wrestle with that. They had never had the situation of a successor coming back around again. Even though the statute allows it, they didn’t have one and nobody thought about, “Well, do you want to pay for that one?” You authorized it. You’ve got to pay for it. And one of my clients, James Carl Lee Davis, had already gone. His had a dead locked Penry win. Okay? He had been nuts since he was six years old. He had this thing.  
  •  He hated women, except just momma. And she deserved to be hated. She was crazier than he was. And he killed three women and left the little boy all alive. But they put female guards with him in TDC and he attacked two of them. I had to tell the Warden, “Get women away from that guy. That’s who he kills, goddamn it.” He did. They changed it to a man and he was okay, until they executed him. But he was nuttier than a fruitcake. I had already gone through habeas by the time that the federal act, the state acts went in, but I decided to challenge his competency to be executed.  
  •  RAYMOND: We’re on Mr. Davis? 
  •   GREENWOOD: Davis RAYMOND: Okay. GREENWOOD: Because I knew he was nuts, and besides I thought the Texas statute was unconstitutional because they interpreted it a different way than they had the non-capital, the legislature. So I raised both those questions after the Supreme Court denied us the first time, the Fifth Circuit, a horrible opinion. We got—Judge Sam Sparks granted his Penry writ and the Fifth Circuit turned it around. And now, after Tennard [Tennard v. Dretke, 2004] and Smith [Smith v. Texas, 2007] and all the work the guys have done over at the Capital Clinic, hell, it was a winner.  
  •   So I wasn’t going to give up on Davis, and I raised his competency to be executed, which had come up in the meantime, plus I challenged the whole Texas statute. And they had a successor, and they filed and set it for submission, on the constitutionality of the habeas corpus law. So I challenged it twelve different ways, and I billed them for six thousand dollars.  
 
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Title:Interview with Roy Greenwood
Abstract:Roy Greenwood is a former criminal defense attorney. In Video 1, he discusses his upbringing and education. He talks about the changes in the court system throughout the time he practiced law and the capital appeals he worked on, including Charles Rector’s. He speaks about national and state political trends and how that has affected the court system over time and how the Antiterrorism and Effective Death Penalty Act effected criminal defense in Texas and the changes in claims in actual innocence. He also discusses the high cost of capital murder cases. In Video 2, he talks about problems with suppression of evidence and prosecutorial misconduct. He discusses why he stopped taking cases, and then delves specifically into the Charles Rector and Anthony “Cowboy” Miller cases, Michael Blair’s case and Jesse Patrick’s case, all of whom he represented. In Video 3 he talks about the end of the Michael Blair case and James Carl Lee Davis case. In Video 4 he talks about the process of a direct appeal and the process of appealing a Death Row case specifically. He also talks about filing writs of actual innocence for clients in prison. In Video 5 he speaks more about the Michael Blair case and then about a case involving a defendant named Baltazar. He talks about his relationship with jurors and with his clients, and about how race impacted the clients he defended. He concludes by talking about how the DA’s office in different counties operate differently. This interview took place on December 3rd, 2010 and December 7, 2010 at Roy Greenwood’s home.
Sequence:2 of 5
Creators:
  • Roy GreenwoodRole: Narrator
  • Texas After Violence ProjectRole: Collaborator
Contributors:
  • Virginia RaymondRole: Interviewer
  • Maurice ChammahRole: Videographer
  • Maurice ChammahRole: Transcriber
  • Jesse HarderRole: Transcriber
  • Virginia RaymondRole: Editor
Date Created:2010/12/03 - 2010/12/07
Languages:eng
Geographic Focus:North America--United States--Texas
Geographic Base:North America--United States--Texas--Austin
Type of Resource:Moving image
Genre:Interview
Identifier:tav00058_vid2
Rights:
    This electronic resource is made available by the University of Texas Libraries solely for the purposes of research, teaching and private study. All intellectual property rights are retained by the legal copyright holders. The University of Texas does not hold the copyright to the content of this file. Formal permission to reuse or republish this content must be obtained from the copyright holder.

Source Metadata

Analog/Digital Flag:physDigital
Carrier Number:2 of 5
Generation:original
Signal Format:NTSC
Duration:00:57:17

 

 

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