On the eve of a man’s execution, prosecutors blocked his best chance at proving his innocence

Defense argues Terry Edwards was wrongfully convicted in an emergency motion.

CREDIT: Texas Department of Criminal Justice via AP
CREDIT: Texas Department of Criminal Justice via AP

Terry Edwards, a prisoner on Texas’ death row for a double homicide, is scheduled to die Thursday night despite an emergency motion from his defense team saying there was evidence his conviction was tainted.

His defense attorneys have presented evidence that they say demonstrates a Dallas County prosecutor — who is known to have wrongfully convicted at least three other people — used fake science to convict Edwards and intentionally stacked the jury with white people. Edwards’ lawyers argue that those actions warrant an investigation by Dallas County’s Conviction Integrity Unit (CIU). But this week, the CIU abruptly ceased communication with his defense team, foreclosing lawyers’ best shot to stop the execution.

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Misconduct in murder cases is all too common in courtrooms across the country. Data collected by the National Registry of Exonerations shows that 75 percent of homicide exonerations in 2015 were secured because official misconduct was found by investigators, and unethical prosecutors are a big piece of the puzzle. Prosecutors routinely use forensic evidence that isn’t scientifically sound, withhold key evidence that proves or suggests innocence, remove or ban jurors of color, and coerce witnesses to testify against someone who is likely innocent. One — and possibly two — of these factors may have played into Edwards’ conviction: alleged forensic evidence and jury stacking by Dallas County prosecutor Thomas D’Amore.

But prosecutorial misconduct continues long after someone is convicted and sentenced to die — often at the expense of justice. Prosecutors typically exhaust all of their resources to keep a capital conviction on the books, through methods such as cutting off access to a department that’s specifically designed to investigate unfair trials. What makes Edwards’ case particularly troubling is that his attorneys had regular communication with the Dallas County District Attorney’s CIU before that open line of communication was cut off this week. (As of press time, CIU had not responded to a request for comment from ThinkProgress.)

One of Edwards’ attorneys, John Mills of the Phillips Black Project, said the CIU told him the defendant’s case “was never officially assigned” to its office. He doesn’t buy that explanation, due to the fact that there have been past conversations with people from the CIU, which resulted in the postponement of Edwards’ execution last year.

“The history of that office is somewhat troubled,” Mills told ThinkProgress. “They’ve had over 50 exonerations, and it’s particularly troubling because the prosecutor in this case has been responsible for three wrongful convictions, including the one of Richard Miles that was overturned based on very similar false evidence.”

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Terry Edwards and his cousin, Kirk Edwards, were both involved in the murder of two people at a Dallas County Subway restaurant in 2002. But Kirk actually confessed to the killing, and there is scant evidence that Terry pulled the trigger. His DNA wasn’t present on the victims’ bodies, the state found no gun residue on his hands, and victims’ blood wasn’t found on his body. D’Amore, the lead prosecutor on the case, also elicited “scientifically unsupportable” testimony from a forensic expert, according to Paul Kilty, head of the FBI’s Laboratory Gunshot Analysis Unit, who defense solicited to give his assessment of the case.

Kilty, whose work with the FBI expands more than two decades, concluded that the testimony of the forensic expert in Edwards’ case was scientifically impossible. That expert, Vicki Hall, claimed one of three chemical elements of gunpowder was found on Edwards’ body, and therefore implicated him in firing the murder weapon. In an emergency motion filed by the defense team, Kilty said, “It is not possible that a defendant who had gunshot residue on his hands could simply wipe two of the three components off of his hands and not the third.”

Defense also says there is evidence that black people were intentionally excluded from sitting on the jury.

Although most records on the jury are missing, the defense team has since discovered that potential jurors were dismissed off the record. Thirty-two people whose names were crossed out on a “strike list” had the letter B next to their names, and Edwards’ defense team argues that the letter was used to identify black people to be kept off the jury.

“These present deeply concerning markers of potentially odious prosecutorial misconduct and constitutional violations and, further, strongly reflects the profound consequences of defense counsel’s appeasement of the State’s trading practice to strip away diversity and representativeness from Mr. Edwards’s jury,” the defense team’s emergency motion reads.

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Because the CIU will not investigate and challenge the case against Edwards, it is unlikely that Edwards will survive the night — even though there’s evidence to suggest grave errors were made during his trial.

Public defender Robert Wesley, who works in Florida and is not involved in Edwards’ case, said prosecutors have strong incentives to prevent convicted killers from proving their innocence.

“They’re going to fight hard. They don’t want to lose the case,” he said. “The atmosphere requires two people doing their job at either end of the rope and pulling the rope.”

“In a typical misconduct case, prosecution does not confess error and continues to attempt to withhold exculpatory evidence or argue that the misconduct was not prejudicial,” Robert Dunham, executive director of the Death Penalty Information Center, told ThinkProgress. “In almost all cases of prosecutorial misconduct, the defense had to discover that misconduct on its own — without immediate access to the prosecution’s files and without the assistance of a conviction integrity unit.”

Prosecutors aren’t required by federal law to hand over information their teams have procured to build a case, and generally don’t do so willingly.

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States have their own statutes to determine whether or not defendants can access exculpatory evidence in prosecutors’ hands. Some have open record statutes that allow convicted defendants to access files denied to them or hidden by prosecutors during trial. Others require prosecutors to provide evidence that could have absolved a convicted killer of any wrongdoing or given jurors enough doubt that the defendant was guilty.

In states that don’t guarantee access to that information, finding new evidence or extracting withheld evidence takes extensive digging and a lot of prodding in court, precisely because prosecutors fight tooth and nail to hide the information they have.

According to Daniel Medwed, a criminal law professor at Northeastern University with an expertise in wrongful convictions and criminal procedure, prosecutors also oppose new evidence found by defense teams post-conviction. They will simply come up with new theories about the case. That is what prosecutors did in the case of Bruce Dallas Goodman, who Medwed profiled in Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent.

In 1986, Goodman was convicted of raping and murdering a woman in Utah. He was sentenced to five years to life behind bars, but maintained his innocence for decades. In 2004, a new defense team pushed for more DNA and rape kit testing, which prosecutors fought. Those test results ultimately allowed him to walk free. But instead of conceding that Goodman didn’t commit the crime, prosecutors developed a new, unsubstantiated theory to show why their conviction should stand: Goodman worked with the perpetrators.

In addition to revising theories about new evidence dug up by defense teams, Medwed said prosecutors also refuse to conduct tests that could absolve someone of a crime. That’s what happened to Kennedy Brewer in Mississippi, who was convicted for killing a 3-year-old girl in 1995 and sentenced to die based on circumstantial evidence.

As explained in a forthcoming book chapter written by Medwed, the Mississippi Supreme Court denied Brewer’s appeals, but left room for testing DNA evidence that wasn’t examined thoroughly before his trial.

Brewer subsequently petitioned to have the DNA retested, but he was unable to pay for that test. He then petitioned to have the state shell out the money, and the court ruled in his favor in 2001. That year, DNA confirmed that Brewer wasn’t the killer and pointed to an unidentified male. But prosecutors refused to investigate the matter, pressed for a new trial, and locked Brewer up in a pre-trial detention facility for five years.

Brewer was ultimately exonerated and released from death row, but the Innocence Project was responsible for finding the real killer — not the prosecution.

Medwed points to three factors underlying unethical prosecutorial decisions.

“You have this combination of psychological, practical, and political factors that all come together to create a phenomenon where prosecutors are often opposed— right out of the gate — to the idea of someone on death row getting a new trial or being exonerated,” he said.

Prosecutors aren’t immune to confirmation bias. When someone is convicted, appellate and post-conviction prosecutors work under the assumption that earlier prosecutors got the case right. They are operating from an immediate presumption of guilt, and are generally resistant to new claims or evidence.

Prosecutors can be penalized by state officials for not ensuring that a conviction stands. And they get ahead through victories in trial, or during the appeal process. From a practical standpoint, that means they can be more determined to win and less concerned with administering justice — a point that Wesley argues as well.

“The problem is a lot of prosecutors and cops think their job is to win, but their job really is to see that justice is done,” said Wesley.

Support for the death penalty is at an all-time low according to Gallup and Pew Research Center polls from 2016. Last year, fewer people were executed than in any year since 1991, due in part to waning support for capital punishment. Dunham previously told ThinkProgress that people’s attitudes are shifting because there’s a greater understanding that innocent people — or potentially innocent people — are sentenced to death.

“There is a point at which the risk of sending an innocent person to death row stops being a hypothetical risk and becomes accepted as a reality,” he said. “We have reached the point where the facts are clear and unequivocal: Innocent people are being wrongly convicted and sentenced to death. There is also significant evidence that innocent people have been executed.”

At 6pm, defense attorneys believe Terry Edwards could become another one of those people. But despite this turn of events, Mills says his client is still fighting.

“He’s doing remarkably well under the circumstances,” he said.

UPDATE: Terry Edwards was executed by lethal injection at 9:54pm CST, after the U.S. Supreme Court denied his final appeal.