Mallory Nicholson

The Crime

On June 12, 1982, two boys told police they had been sexually assaulted in the apartment building across the street from their grandmother’s home in Dallas. The boys, who were cousins, were identified in court as seven-year-old L.M. and nine-year-old B.M.

The boys told police that at about 7:30 p.m., a man offered them $5 to go through the window of an apartment on the block and open the front door for him. The boys agreed, but when they got to the apartment, they found broken glass surrounding the frame. So, they entered through the window of the apartment next door. They opened the front door and the man came in. He kicked a hole through the wall into the apartment he had wanted to get into initially. He entered the apartment, followed by the boys.

The man told the boys to look around the apartment for the $5 he had promised them. While the boys searched, the man stuffed meat from the refrigerator, a clock radio, and a television into a plastic garbage bag. He left the apartment and returned several times to carry out more items. 

When he was finished, the boys had not found any money. They said he told them to lie down on a bed, saying, “I know you all are sleepy.” When the boys protested, the man grabbed a pair of scissors from a nearby dresser and threatened to stab them. The boys then laid down. The man forced them to take off their clothes and placed a sheet over them. He went to a closet, pulled out a sweater, and wrapped it around his hand. He then punched both boys in the face with his fist. After, he removed his pants, grabbed a bottle of alcohol and a bottle of curl activator, and poured them on his penis. 

The man anally raped B.M. and L.M., then walked out the front door. The boys fled through the bedroom window, went across the street to their grandmother’s house, and reported to B.M.’s aunt what had happened.

The Investigation 

In their first statements to police, the boys identified a suspect, a 14-year-old known in court records as J.M. (no relation), who lived nearby. His nickname was Coco. B.M. also described the assailant as a Black man with blue pants with two pockets on the side, a striped shirt, and red shoes with a star and the word “Converse” on them. He said the attacker was tall, skinny, and had an Afro. Officer R.M. McLeod of the Dallas Police Department wrote up the report of the interview.

The boys were taken to Parkland Memorial Hospital and were seen by Dr. Stephen Hardeman. Dr. Hardeman reported that both boys had bruising around the eyes, consistent with their reports of being hit in the face by the assailant. For each child, he wrote “14 y.o. assailant forced anal intercourse on pt.” 

Both children underwent rape examinations. B.M.’s anal swab came back positive for the presence of sperm. No sperm was detected on L.M.’s swab.

On June 14, 1982, Officer Carole Gregston and Officer Paulette Dallman took the boys to take another look at the crime scene. On the way, B.M., who was riding with Officer Dallman, said that he saw the man who assaulted him standing with a group of men.

The officers called for backup, then took B.M. past the man for a second look. B.M. said it was the assailant.

Officer Gregston approached the man, who identified himself as 35-year-old Mallory Nicholson. When asked about his whereabouts on the day of the crime, Mr. Nicholson said he had attended his wife’s funeral. She had died a couple of days before. He said his mother had come to help him with his two children and his move back to Baltimore, his hometown. 

During the questioning, Mr. Nicholson was placed under arrest and taken to the police station.

The next day, Officer Gregston went to L.M.’s home and showed him a photographic lineup that included Mr. Nicholson. The boy did not make an identification.

After Officer Gregston left, L.M.’s mother called Officer Gregston and reported that L.M. had said he did recognize one of the photographs, but he was scared to point him out. 

The police then arranged for L.M. to view a live lineup. The boy viewed six men, including Mr. Nicholson, who was the only one who had been in the photographic lineup. Mr. Nicholson was the only one with a large Afro. Each person was required to say, “Shut up, boy, before I stab you with these scissors.” 

At that point, L.M. selected Mr. Nicholson as the assailant.

B.M. testified at the grand jury. When asked what the attacker said during the burglary, B.M. said the man said “a man broke in his house … to kill his wife. He said he gotta go tell a friend.” No questions were asked about this response. L.M. did not testify before the grand jury.

At no time, during any interviews with police or B.M.’s appearance before the grand jury, did either boy say that the attacker mentioned having to go to a funeral.

Mr. Nicholson was charged with one count of burglary and two counts of aggravated sexual assault.

In a supplemental police report filed on June 17, 1982, Officer Gregston said that the two boys told officers that their attacker had mentioned his wife’s funeral. 

The Trial

Prior to trial, Mr. Nicholson’s defense attorney, Lloyd Westerlage, filed a motion in Dallas County District Court asking Judge R.T. Scales to order the State to disclose any exculpatory evidence and turn over the entire case file to the court for inspection. Judge Scales granted the motion. 

Separately, Mr. Westerlage filed a motion to inspect the testimony from the grand jury. Judge Scales reviewed the testimony and then denied the motion.

In September 1982, Mr. Nicholson went to trial. Willie Ray Smith, the owner of the apartment where the boys were assaulted, testified that a portable television, a tape deck, a radio, three pairs of pants, a clock radio, and some meat had been taken. 

Officer Dallman testified that she had investigated more than 100 burglaries as a Dallas police officer. She said she typically found evidence connecting the suspect to the crime or recovered stolen items from the suspects. She conceded she did not find any items on Mr. Nicholson and that the only evidence linking him to the crime were the identifications by B.M. and L.M.

The two boys testified about being lured into the apartment, threatened with a pair of scissors, and sexually assaulted. Each said that the man told them he was in a hurry because “he had to go to a funeral.”

Richard Dodge, a forensic technician for the police department, testified that Mr. Nicholson was excluded from prints found on the toilet tank. Mr. Dodge said he did not process the scissors or the refrigerator door for fingerprints. 

Mr. Westerlage built Mr. Nicholson’s defense around a case of mistaken identity and presented several witnesses who supported Mr. Nicholson’s alibi.

Mr. Nicholson testified and denied assaulting the boys or breaking into the apartment. He said his wife, Barbara, had died of natural causes on June 8, 1982, and her funeral was on the afternoon of June 12, in Waxahachie, about 40 miles south of Dallas. He testified in detail about his actions after the funeral, as he attended to his family and made preparations to move. 

Numerous friends and family testified they had seen him at the event and afterward, as he packed up his belongings and made plans to move back to Baltimore. They said that Mr. Nicholson returned from Waxahachie at about 6:30 p.m. and spent the evening with friends and family. Steven O’Neal testified that he accompanied Mr. Nicholson and some other men to Mr. Nicholson’s house at about 7:15 p.m. to pick up a television and a fan that Mr. Nicholson was giving away before he moved. Afterward, they went to Mr. O’Neal’s house.

On Sept. 24, 1982, the jury convicted Mr. Nicholson of two counts of aggravated sexual assault and one count of burglary. He was sentenced to 55 years in prison.

Mr. Nicholson’s conviction was upheld on appeal. He was released from prison on June 17, 2003. He moved to Maryland and was required to register as a sex offender. 

The Exoneration

The Innocence Project began representing Mr. Nicholson, and, in 2019, the organization asked the Conviction Integrity Unit (CIU) of the Dallas County District Attorney’s Office to review the trial file in this case.

That review found substantial exculpatory evidence that had not been turned over to Mr. Westerlage, who had died in 1996. The initial suspect named by the boys, J.M., also known as Coco, died in 1989. Officer McLeod had prepared five separate reports naming J.M. or Coco as a suspect in the assaults and burglary. None of these early reports mentioned anything about the assailant telling the boys that he had to go to a funeral. The State had not disclosed Dr. Hardeman’s reports, which mentioned that B.M. and L.M. had said their attacker was a 14-year-old boy. Notes in the prosecutor’s files incorrectly said Mr. Nicholson’s nickname was “Coco.”

The State also had not disclosed the grand jury transcript, which was at odds with the boys’ trial testimony. B.M. said nothing to the grand jury about the assailant having to attend a funeral. 

On Feb. 22, 2021, Mr. Nicholson’s attorneys, Gary Udashen of the Innocence Project Texas and Adnan Sultan of the Innocence Project, filed a petition for a writ of habeas corpus. 

In a response filed on March 4, 2021, Cynthia Garza, the head of the CIU, conceded that the prosecution had failed to turn over evidence favorable to Mr. Nicholson’s defense and asked that his habeas petition be granted. The CIU’s response said neither prosecutors nor Judge Scales disclosed the inconsistencies between B.M.’s trial testimony and his grand jury testimony, nor did they make any effort to correct his testimony. 

On May 18, 2021, Dallas County Criminal District Court Presiding Judge Chika Anyiam recommended that the writ be granted based on the failure of the prosecution to disclose the reports and information that could have been used to undermine the boys’ identifications.

The Texas Court of Criminal Appeals granted Mr. Nicholson’s petition on Nov. 10, 2021. 

On June 2, 2022, Judge Anyiam granted a motion by the district attorney’s office to dismiss the charges.