THE SCHAFFER FIRM
After 12 years, DNA clears inmate in rape case
Tuesday, July 29, 1997
By John Makeig, Staff Writer
Twelve years after he was handed a life sentence for rape, a 35-year-old inmate's claim of innocence has been verified by DNA testing.
Harris County District Attorney John B. Holmes Jr., Sheriff Tommy Thomas and state District Judge Doug Shaver signed a letter Monday asking Gov. George W. Bush to grant a pardon to Kevin Byrd, a prisoner at the Garza Unit in Beeville.
"Based on the conclusion of the recent DNA testing, which excludes Kevin Byrd from being the semen donor in the 1985 aggravated sexual assault (case), I recommend that Gov. George Bush grant Mr. Byrd executive clemency in the form of a pardon from his conviction," the letter says.
The letter sent Monday to the governor comes after the Maryland firm of CellMark did exclude Byrd as the rapist, and a Houston police lab analysis of CellMark's results could find no flaws or errors in the company's conclusion.
Thus Byrd may be Texas' only accused rapist with a life sentence ever to have been cleared by DNA testing. A Department of Justice publication, "Convicted by Jury, Exonerated by Science," says only 28 other defendants nationwide had been cleared by DNA testing as of June 1996.
Holmes indicated the rape victim, now 37, was devastated to learn that the man she identified in Shaver's court as her attacker now may go free.
"She's still adamant today that it was him," Holmes said. "She thinks we're turning a guilty man loose. She's as sincere as she can be, but scientifically we have to say she was wrong."
Holmes and Shaver agreed that the rape case handled by former county prosecutor Gaynelle Jones, now U.S. attorney for the Southern District of Texas, was flawed from the outset - by blunders on the part of Houston Police Department investigators.
"It's the only case where, when it was over, I wrote a letter to the chief of police and complained about the investigation," Shaver said. "I thought at the time the investigation was poor because it was a black victim and the white officers didn't really try to communicate well when they were questioning her."
Had the victim been white, Shaver suggested, the police might simply have done a better job gathering evidence and evaluating the defendant they arrested four months after the assault.
Holmes said only that the police investigation contained gaps that Jones had to fill to proceed with the prosecution.
The Byrd case is full of contradictions and coincidences that ultimately worked out to his benefit.
For one thing, Byrd's lifelong friend, Raymond Wayne Lewis, never quit trying to find help to vindicate the inmate. For another, Lewis was referred to attorney Randy Schaffer, who did not read far into the case before deciding there was something awry.
While most of the usual appellate paperwork seems to have disappeared over the years, a deputy district clerk in Shaver's court did not discard the trial exhibit containing the semen sample. It was that sample that may have spared Byrd from additional years in prison.
DNA test results did not come into use in Harris County's criminal courts until 1989 - four years after Byrd got a maximum sentence. An HPD examination of the sample in 1985 only concluded that they could not exclude Byrd as the culprit.
The Byrd case started about 7:30 a.m., Jan. 14, 1985, when the rape victim, then 25 years old and eight months pregnant, was sleeping in her bed with her 2-year-old daughter. She told police she was awakened by a slamming noise.
"I felt someone standing behind me," she said in her official statement. "I glanced up and started to turn my head back towards my pillow when someone grabbed my face and covered my mouth. He told me if I screamed or did anything he would kill my baby.
"He was holding my face in his left hand and had a knife in his right hand. He was holding the knife on my baby's chest with the point towards her neck."
After a 20-minute encounter with the rapist, who eventually cut her phone line and fled, the victim gave police a considerable description of him - Army jacket, heavy black boots, black ski cap, high cheek bones, pock-marked face, thin lips, about 35 years old, 5-foot-9 and fingernails that had been bitten down.
But none of that dominated Byrd's trial. What touched off considerable oratory and finger-pointing was her signed statement saying her attacker was white.
"The man that assaulted me was a white male, but he had an unusual color of skin," she said in her statement. "It was a honey brown color. . . ."
On May 11, 1985, the victim, who is black, was at a grocery store when she spotted Byrd, who also is black. She immediately told her husband that Byrd was her rapist.
When he was arrested, Byrd, then a carpenter on probation for burglary in Matagorda County, voluntarily gave police permission to collect blood, saliva and hair samples from him since, according to police documents, he announced he was innocent.
At the trial, Jones had no trouble getting the victim to point out Byrd as the rapist.
Byrd's lawyer, Cheryl Irwin, zeroed in on the race issue.
"You made a statement to police officers that the person who assaulted you was a white person, didn't you?" Irwin demanded.
"No," the victim answered.
As the testimony continued, the victim contended that it was the police who insisted on including in their report that the rapist was "white, unusual coloring."
In a recent court document, Shaffer said: "At trial, the prosecution, with the assistance of the police, went to great lengths to convince the jury that a black man raped her. This chicanery may have resulted in the conviction of an innocent man."
Asked Monday for comment, Jones mostly referred questions about the Byrd trial back to Holmes, saying only that the entire case turned out to be a tragedy for all concerned.