News 03.09.07

James Waller Exonerated through Pardon from Governor; One of 13 Dallas Men Proven Innocent By DNA Testing

(DALLAS, TX; March 9, 2007) – Texas Governor Rick Perry today officially pardoned James Waller, who was wrongly convicted of rape more than 23 years ago. Waller, represented by the Innocence Project, was proven innocent by DNA testing in 2006. He first requested these tests in 1989, and continued requesting them after his release on parole in 1993. Waller becomes the 197th person nationwide exonerated by DNA evidence.

In January, the Dallas County District Attorney’s Office and the Innocence Project filed papers showing that Waller did not commit the rape of a child he was convicted of in 1983. Since January, he has been awaiting a pardon or further legal action to clear his name; today’s pardon fully exonerates him.

Waller was the 12th Dallas County man proven innocent by DNA testing in the last five years, a pattern the Innocence Project has called “alarming and completely unprecedented.” A hearing is expected soon in the case of James Giles, who would become the 13th Dallas man to be proven innocent by DNA testing. A comprehensive review of hundreds of other Dallas cases, conducted by the Innocence Project of Texas in cooperation with the Dallas District Attorney’s Office, is underway.

“I’ve been trying to get DNA testing for years. It’s been a long, horrible road. This is one of the happiest weeks of my life – I am finally having my day in court, and I will be able to clear my name at long last,” Waller said in January. Shortly before his first court hearing seeking testing, in 2001, he and his pregnant wife were in a car accident on the way to the airport to meet relatives who were traveling to the hearing; Waller’s wife died in the accident, and their fetus did not survive.

In 1983 – after a trial lasting only several hours, and jury deliberations lasting 46 minutes – Waller was convicted of aggravated sexual abuse in connection with the rape of a 12-year-old boy, and he was sentenced to 30 years in prison. Waller was released on parole in 1993, and has spent the last 13 years living under strict parole conditions as a registered sex offender. In 1989, he began seeking DNA testing to prove his innocence; in 2001, when the State Legislature passed a law granting post-conviction access to DNA testing, he redoubled his efforts. The state refused to allow the testing to be conducted at a private DNA lab, and a state lab was unable to obtain a sufficient DNA profile when it conducted tests. In 2004, the Innocence Project helped secure a previously unavailable type of DNA testing (on liquid extracts of the evidence, since the evidence was consumed during the inconclusive tests by the state lab), and the results show that Waller is innocent.

Waller was convicted based largely on the 12-year-old victim’s identification of him – an identification that the Innocence Project said should have raised serious concerns among law enforcement agencies at the time. The day after he was sexually assaulted, the boy was in a 7-Eleven convenience store near his apartment complex, and heard a voice behind him that sounded like the perpetrator’s. When he turned and saw Waller, he became further convinced that he was the perpetrator – even though the victim had earlier told police that he never saw his attacker face-to-face. The sexual assault happened at 6 a.m., when an African-American man entered an apartment occupied by the 12-year-old boy and his younger brother (their mother and other relatives had already left for work) and ordered the victim to lie face down on a pillow. He then orally and anally sodomized the child and left the apartment. The victim told police that his attacker wore a bandana covering most of his face. Waller and his family lived in the same apartment complex, and they were in the only African-American residents of the complex. Waller was substantially taller and heavier than the victim’s initial description of the perpetrator.

“Rather than questioning a traumatized boy’s memory or using simple procedures to evaluate how certain he was of the identification, police arrested James Waller and built a case around convicting him. They turned a scared child’s mistake into a miscarriage of justice,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law at Yeshiva University. “Most of the 12 wrongful convictions in Dallas County that have recently been uncovered through DNA testing involved eyewitness misidentification. Nobody can credibly deny that there is an alarming pattern in Dallas County, or that we need a statewide mechanism to identify and address the causes of wrongful convictions.”

Texas State Senator Rodney Ellis introduced legislation in January to create a state Innocence Commission. This bill, which was also introduced in the last legislative session, would create an expert panel from across the state’s criminal justice community to examine wrongful convictions in Texas, learn what caused them and recommend steps the state can take to prevent them in the future.

“Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span of time. This demands closer look and statewide action,” Scheck said.

Eight years after he was released on parole, Waller began a lengthy legal struggle seeking DNA testing – at his own expense. “James Waller has been out of prison since 1993, but he has not been free,” Morrison said. “The conditions of his parole, the requirements of the convicted sex offender registry, and the stain of being convicted of such a heinous crime have taken an enormous toll. Even when he volunteers to serve food to homeless people, James is not allowed to interact with children. When a homeless child comes through the line, James has to ask someone else to serve the food, since he is a registered sex offender and cannot have contact with kids.”

At the January hearing, the DA and the Innocence Project entered findings of Waller’s innocence into the record and filed a writ with the Texas Court of Criminal Appeals to vacate Waller’s conviction. In Texas, a person is not fully exonerated until they have been pardoned or the Court of Criminal Appeals has vacated the conviction.

A hearing is expected to be scheduled in the coming weeks for James Giles, who was also wrongly convicted of a 1982 Dallas rape.

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