Texas Court Recommends Vacating Mallory Nicholson’s 1982 Wrongful Conviction

(Dallas, Texas – May 25, 2021) A Dallas County District Court has recommended Mallory Nicholson’s 1982 conviction for burglary and sexual assault be vacated based on newly discovered evidence of his innocence that had been withheld by the State at his original trial.  

Mr. Nicholson spent 21 years in prison for crimes he did not commit and has had to register as a sex offender since his parole release in 2003. District Court Judge Chika Anyiam signed the order after determining that the State had withheld key evidence that pointed to an alternative suspect and demonstrated inconsistencies in the victims’ identification of Mr. Nicholson. Under the United States Supreme Court case Brady v. Maryland, the State must disclose such favorable evidence to the defense and must vacate convictions, like Mr. Nicholson’s, that involve Brady violations. Mr. Nicholson was arrested for burglary and the sexual assault of two children in June 1982. No physical evidence connected him to the crime and he has steadfastly maintained his innocence. At trial, he presented strong evidence and alibi witnesses to support the fact that he had been with family, attending his wife’s funeral, 45 minutes away from Dallas at the time of the crimes. 

In addition to the Brady violations, the case was also marred by eyewitness misidentification and racial bias. The Texas Court of Criminal Appeals will now decide whether to adopt Judge Anyiam’s recommendation.

In 2019, at the Innocence Project’s request, Cynthia Garza, chief of the Dallas County District Attorney’s Conviction Integrity Unit (CIU), and Holly Dozier agreed to review Mr. Nicholson’s case. Their review uncovered this exculpatory evidence, and the CIU agreed that Mr. Nicholson was entitled to a new trial. 

“We are thankful for the Dallas County District Attorney’s CIU’s cooperation in reviewing Mr. Nicholson’s conviction, uncovering this Brady evidence, and recognizing the misconduct of the trial prosecutors in this case,” said Innocence Project Staff Attorney Adnan Sultan, who represents Mr. Nicholson. “This conviction and his subsequent 21 years in prison destroyed Mr. Nicholson’s life and for the last 18 years, he has to endure the humiliation of having to publicly register as a sex offender, all for a crime he did not commit.” 

Mr. Nicholson is also represented by Gary Udashen of Udashen Anton. 

Dallas County District Attorney John Creuzot added, “Mr. Nicholson did not receive a fair trial that he was entitled to by the U.S. and Texas constitutions. It is our job as prosecutors to turn all evidence of innocence over to the defense counsel. And it remains our job to correct our past wrongs.”

The Background: Witness Misidentification 

On June 12, 1982, two boys, 7- and 9-year-old cousins, were approached by a young man who offered them $5 to help him enter an apartment window. Once inside, the man stole several items and sexually assaulted both children. The boys told their aunt, who called the police, and they were taken to Parkland Hospital for sexual assault examinations.

Both boys initially told police and the examining doctor that they had been assaulted by a 14-year-old Black boy. They also provided the attacker’s nickname to police who later learned he lived near the crime scene.  

Two days after the assault, police drove one of the victims to the crime scene. On the way, the boy saw 35-year-old Mallory Nicholson standing in front of an apartment building with friends and claimed he was the person who had committed the crime. 

The following day, police showed the other victim a photo lineup, which included Mr. Nicholson. While the victim did not identify Mr. Nicholson at the time, his mother later called detectives and claimed her son had recognized the person who had committed the crime but had been afraid to point him out. Police put Mr. Nicholson in a live lineup the next day, and both victims identified him. Even though Mr. Nicholson had been at his wife’s funeral on the day of the crime, police arrested him and charged him with burglary and sexual assault.  Eyewitness misidentification has contributed to approximately 63% of the 232 wrongful convictions that the Innocence Project has helped overturn. 

At trial, the boys claimed for the first time that the attacker had told them he had been in a hurry because he had had to attend his wife’s funeral. The State argued that this was a distinct fact, unique to Mr. Nicholson, which proved guilt.

Throughout the trial, the defense maintained that the boys had misidentified Mr. Nicholson as the person who committed the crime. The defense also presented numerous alibi witnesses who confirmed he’d been at his wife’s funeral with friends and family in the hours that followed. Despite the strength of this evidence, Mr. Nicholson was convicted and sentenced to 55 years for the assaults and eight years for burglary.

Brady Evidence

In this case, the favorable evidence which the State failed to disclose to Mr. Nicholson’s defense counsel included:

• Five police reports documenting conversations the victims had had with police in which they identified their attacker as someone other than Mr. Nicholson by name. The reports were written by a police officer who was never called by the State as a witness despite his role in the investigation.
• The sexual assault report written by the doctor who had examined the victims, which documented their description of the attacker as a 14-year-old Black male. 
• Handwritten interview notes from prosecuting attorneys listing physical characteristics of the attacker which were inconsistent with Mr. Nicholson’s appearance at the time of the crime in critical ways.  
• Grand jury testimony from one of the victims in which he failed to say anything about the attacker being in a hurry because he had to attend his wife’s funeral. This was a critical omission, which defense attorneys could have used to discredit the victim at trial. 
• Handwritten interview notes from the prosecuting attorneys which stated multiple times that the mother and grandmother of one of the victims knew Mr. Nicholson’s wife, and had been aware of her death and funeral date. Had the defense been privy to this information, they could have challenged the State’s argument that the victims’ statements about the attacker needing to attend his wife’s funeral had been “the most telling factor” of Mr. Nicholson’s guilt. 

Racial Bias 

Mr. Nicholson was tried before an all-white jury who rejected his five alibi witnesses, all of whom were Black. All-white juries have historically convicted Black defendants at a higher rate than white defendants and have been shown to disregard the testimony of truthful Black defense witnesses in favor of weak circumstantial evidence.

Additionally, the prosecutor had relied heavily on negative racial stereotypes at trial, focusing on Mr. Nicholson’s recent unemployment and implying that his alibi witnesses were not reliable because they had hung out and drunk every night. 

Officers were apparently satisfied by the simplest similarity between Mr. Nicholson and the original description of the attacker — the only commonality being that both were “Black males” — and therefore made no efforts to follow up on the alternative suspect. Such tunnel vision is a known function of implicit racial bias. The resulting wrongful conviction of Mr. Nicholson robbed him of nearly four decades of his life.