“Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50.” 1
Slate.com, March 2013
Ray walked into the Rule 32 hearing hopeful. Perhacs took the stand and admitted Payne as an expert had been a failure on his part. He told the court how he didn’t have enough money to mount a defense or to pay for a qualified expert. The three new experts took the stand. They stated that there was no proof the bullets matched Ray’s mom’s gun.
Ray was glad to see Lester outside of the visiting yard. And his mom too. But it was also painful to see her. She looked frail and sick, and her hair was gone from places on her head. She looked at Ray and smiled a tired smile that made Ray want to run to her and hold her in his arms. That was his mama. And all he could do was take a deep breath and be grateful to see her at all. Their phone calls were few and far between, and they hurt too. She often got confused on the phone, and wasn’t sure who she was even talking to. Phoebe, Lester’s mom, was there too, and Ray soaked up her warm smile and reassuring nod. Perhacs, on the other hand, barely acknowledged Ray’s presence in the hearing. Ray could see that he had aged. Perhacs had talked to Bryan over the phone quite a bit, but when Bryan and another attorney went to meet with him in person in advance of the hearing, he had taken one look at Bryan and said, “I didn’t know you had a tan.” Apparently, Bryan had sounded “white” to Perhacs—whatever that was supposed to mean. Did it mean that he thought less of Bryan now, or more?
Ray wondered if Perhacs had ever cared that he held Ray’s life in his hands. Ray thought Perhacs knew that he was innocent; he could see it in his eyes the few times Perhacs glanced his way. Did that keep him up at night? Did Perhacs and McGregor ever talk about him? Did they care at all, or was he just another Black boy who wasn’t going quietly, a nuisance, but nothing to worry about?
McGregor wasn’t at the hearing, but Ray didn’t care one way or the other. His days of hating were over. Ray had forgiven McGregor. His sins were between him and God. Ray also forgave the rest of them. To Ray, they were a shameful lot of sad men, and he prayed for their souls.
Ray was innocent, and the three ballistics experts could not be argued with. He closed his eyes and imagined Garrett banging his gavel and standing up to yell, “In light of these three independent ballistics experts and in the name of true justice, I hereby declare Mr. Hinton innocent and order for him to be released immediately!”
That didn’t happen.
There were three assistant attorneys general at the hearing. They had tried every which way to block the hearing from happening, but it was happening, and they didn’t seem too happy about it.
Neither did the judge; Ray saw him yawn during the experts’ testimony.
“What issues does the petitioner want to raise in the Rule 32 at this time?” asked Judge Garrett. Ray noticed Garrett never once looked at him—it was like Ray didn’t exist.
Bryan stood up and explained that they planned to present the evidence of Ray’s innocence. He added, “In our petition, we talk about prosecutorial misconduct with closing argument. The record speaks for itself on that issue.”
Ray wondered what McGregor would’ve thought about that statement—prosecutorial misconduct. Maybe Perhacs would tell him.
Bryan went on, and Judge Garrett argued back, asking if Bryan was trying to present the same evidence, but using it with a different theory. He said they couldn’t introduce evidence if it had already been considered by the courts.
Bryan didn’t back down. “Our primary presentation is about the innocence claim and about the ineffectiveness of counsel claim and about claims flowing from due process violations relating to the withholding of exculpatory evidence. All those issues are cognizable in this Rule 32 process and cognizable by this court.” He was saying that they wanted to present issues that were new and absolutely valid.
Score one for Bryan, thought Ray.
Bryan told Garrett he was going to present evidence from experts. Ray was amazed when Garrett played dumb about the evidence. Ray had been trying to get the court and the State to look at these new experts and their reports for years.
“Was there not evidence of both of those—by experts on both sides at trial?” Garrett looked at Bryan smugly.
“Well, Your Honor, I guess two things. We believe that the State was wrong, and we believe that Mr. Payne was not qualified to make the kind of examination that these experts are qualified to make.”
“Well, that issue would be moot since that issue was raised in the trial of the case, wouldn’t it?”
Ray sighed. Why wouldn’t they just look at the evidence?
Bryan’s voice rose. “No. We can present evidence that establishes that the State is wrong.”
“What would be the nature of the testimony presented by your experts in this regard?”
Bryan stared at Garrett for a few seconds and then took a breath.
Give it to him, Bryan, Ray thought.
After Bryan explained that the new experts would show that the bullets used had not come from the same gun, and that meant that the State’s insistence on Ray’s mother’s old gun as the sole weapon had to be wrong, Garrett interrupted him.
“Well, isn’t this just a differing of experts, one expert disagreeing with another expert? Of course we had that at the trial of the case.”
“No, Your Honor. I don’t believe that’s what this is.”
“Are these the ultimate experts in the whole wide universe that are going to testify to that?”
“Yes, sir,” said Bryan. “I believe they are.”
“What if we come up with some different experts later on that are even more recognized as the ultimate experts? That’s what we’re getting into—a swearing contest between experts.”
In that moment, Ray realized that the real killer could walk into this courtroom with pictures of himself committing the crime, and the judge wouldn’t accept the evidence. The attorney general would just say, “That’s an old story wrapped in a new cover.” This wasn’t about justice.
This system would rather accept injustice than admit that it had been unjust.
“Your Honor, I don’t think that’s our case. We have been trying, frankly, for the last eight years to have the State reexamine this evidence. We don’t believe that anybody from the Department of Forensic Sciences can now look at this evidence and come in here and tell you that these bullets were fired from one weapon or that they were fired from the weapon recovered from Mr. Hinton …
“This is not a battle of experts. We would welcome any expert the State could identify that the court appoints to look at this evidence and disagree with our findings. We have three experts from different places, because we want to make it clear that this is not a battle of experts. We think any competent, trained expert that looks at this evidence now is going to come to the same conclusion about how these bullets were not fired from a single weapon. They were not fired from the weapon recovered from Mr. Hinton. That’s our evidence.”
Ray watched, amazed, as Assistant Attorney General James R. Houts argued with Bryan about Payne being a competent expert. Way back during Ray’s trial, they called Payne all sorts of names—and expert wasn’t one of them. Bryan argued that the new evidence established his innocence, and this made the evidence allowed in a Rule 32 proceeding.
Houts turned to the judge. “To the extent that Mr. Stevenson is attempting to make an actual innocence claim that is constitutional, the U.S. Supreme Court does not recognize actual innocence as a constitutional claim through which you can bring a habeas corpus action.”
So apparently being convicted and sentenced to death even if actually innocent was not considered unconstitutional—unless there was a specific constitutional violation that could be identified from the trial. Ray knew a habeas corpus action was part of the federal appeals process that Bryan would begin if he lost in all the state courts. He didn’t want to think about that. Bryan had told him the federal appeals process was extremely narrow and difficult.
Bryan cleared his throat. “I feel some need, Your Honor, to just kind of be real clear about what we’re saying here. And I can’t expect this court to do anything but hear me when I say this. But we believe this man is innocent—innocent—and that is why we think this evidence is so critical. And this is not like any standard Rule 32 case. It’s not even like a standard death penalty case.” Bryan finished up by saying, “We believe this evidence is compelling. We believe it’s compelling and will be compelling to this court. We believe it ought to be compelling to the State. But we think we ought to have the right to present it.”
Judge Garrett was silent for a minute and then asked, “What makes this evidence so different from that evidence which was presented at trial, except that it’s by different persons?”
Bryan explained that it was rare to have three different experts separately find the same thing and even rarer that several people look at evidence, find the same thing, and that thing is not what was presented at trial. He also pointed out that no one from the State was prepared to prove a match now or say that they could find exactly what was found in 1985.
Bryan broke down his experts’ qualifications. “What we have are experts or leaders in the association of firearms and tool mark examinations. Mr. Dillon was the head of the FBI in their unit for many years, its former past president for the Association of Firearm and Tool Mark Examiners. He’s taught all over the country, consults with the FBI, consults with the ATF.
“Mr. Emanuel and Mr. Cooper work mostly for the prosecution. They’ve worked for the United States military, the State of Texas. They work for Dallas County prosecutors regularly. These experts have testified and examined over two thousand cases. They’ve been qualified over two hundred times. They’re leaders in this field. And we’ve really spared no cost in getting the people we could identify as the best in the country, because we really wanted to make it clear to the court that this wasn’t about a mere dispute but about a critical piece of factual evidence on which this conviction stands.”
Ray thought that should have been enough for Garrett. Bryan had unimpeachable experts. Men who had every reason to find Ray guilty. Houts fought it the whole way. Garrett argued the State’s side as well. But Bryan never faltered. Ray had never seen him like this. God’s best lawyer was preaching the law at them like the law had never been preached at them before. Ray wished that he’d had Bryan on his case in 1985. If Bryan had represented him, Ray knew that he would never have gone to death row. He probably would have never even gone to trial. It wasn’t fair that justice could be so arbitrary and the truth so hard for the State to admit.
Bryan kept fighting; he didn’t back down an inch. “What we’re saying, Your Honor, is that the State made a mistake. It’s a ‘made a mistake’ case. And what I hear the State to be arguing is that it’s too late. If they made a mistake, you can’t do anything about it.” He pointed out that the court was basically shrugging off the evidence of Ray’s innocence, the strength of his arguments, everything, in favor of just moving forward with execution. “What I’m saying is that that’s not what the law says, and it would be an unconscionable result. They made a mistake, and we think we can show that.”
They argued back and forth until lunch. The State didn’t think any of Ray’s claims should be allowed to be presented at this hearing. They just wanted Bryan to shut up and for Ray to go to the death chamber. Bryan persisted, and ultimately Garrett let the hearing happen, and Bryan was allowed to present all of the evidence and witnesses.
The State didn’t defend the fact that Bryan found worksheets that Higgins and Yates and McGregor hadn’t turned over to Perhacs that illustrated how flimsy their case had been. They didn’t defend any of it. They didn’t think that they needed to test the bullets or the gun again. In their mind, none of this was allowed because it was too late or it didn’t count as new evidence based on their obscure interpretation of the rules of appeal.
Ray wondered how proof of innocence could ever be disregarded. Who are we if we allow that? What part of our system is working if an innocent man can be killed and no one cares because of rules that were made to be able to kill him quickly? It was like it was some kind of game for them. The clock was ticking. Prove your innocence in five, four, three, two, one … too late now … off with your head!
Ray was taken back to Holman after the hearing. He’d seen and heard Bryan be absolutely brilliant in court, but Ray saw that it was like he was talking to a wall. The prosecutors, the judge, the State wanted Ray dead. It didn’t matter; guilty or innocent, they just wanted to kill him.