Joyce Ann Brown - BonPasse Exoneration Services

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Joyce Ann Brown - National Registry of Exonerations
A PROJECT OF THE UNIVERSITY OF MICHIGAN LAW
SCHOOL
USING THE
REGISTRY
CURRENTLY 1,621 EXONERATIONS
RESOURCES
MAKE A GIFT ABOUT
US
JOYCE ANN BROWN
Other Texas Cases with Female Exonerees
On May 6, 1980, two armed women robbed Fine Furs by
Rubin in Dallas, Texas. The owner, Rubin Danziger, was shot
and killed. Another shot missed his wife, Ala, and she was
spared after she lied and said she was dying of cancer.
The woman who fired the shots, wearing pink pants and
sunglasses, said, “We’ll just let you suffer.” The robbers fled
with a bag of furs in a brown 1980 Datsun.
The car was found the next day and police learned the car had
been rented in the name of Joyce Ann Brown. Dallas police
found an arrest record for a Joyce Ann Brown, 33, of Dallas
on a charge of prostitution and put her mug shot in a
photographic lineup.
Danziger's wife picked out Brown—who worked at another fur
store in Dallas—as the accomplice of the woman who killed
her husband. When Brown learned that she was a suspect by
reading the May 8 edition of the Dallas Morning News, she
turned herself into police and was charged with the crime.
Police then learned that the Joyce Ann Brown who had rented
the car was from Denver, Colorado. Interviewed by police,
this woman told police she had lent the car to a friend and
had not seen the friend or the car thereafter.
Police identified the friend as Renee Michelle Taylor, of
Denver, and a search of Taylor's apartment turned up the
furs taken in the robbery, pink pants and a 22-caliber
revolver. They did not find Taylor and a warrant was issued
for her arrest.
Joyce Ann Brown from Dallas went on trial in October 1980.
Ala Danziger identified her as one of the robbers and the
prosecution presented a woman who had been in a cell with
Brown prior to trial. The woman, Martha Jean Bruce, testified
that Brown had admitted the crime. Asked about her criminal
record, Bruce failed to disclose that several months earlier
she had been convicted of lying to a police officer.
Brown asserted an alibi defense, presenting a time card and
witnesses who said that except for a 36 minute lunch break
she had been at work on the day of the murder. The
prosecution contended the 36 minute break was enough time
for Brown to leave work, change clothes, meet up with her
accomplice, commit the crime and return to work.
Brown was convicted by a jury on October 23, 1980 of murder
and aggravated robbery. She was sentenced to 25 years to
life in prison.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3061[7/5/2015 8:26:21 AM]
State:
Texas
County:
Dallas
Most Serious
Crime:
Murder
Additional
Convictions:
Robbery
Reported
Crime Date:
1980
Convicted:
1980
Exonerated:
1990
Sentence:
25 to Life
Race:
Black
Sex:
Female
Age:
33
Contributing
Factors:
Mistaken Witness
ID, Perjury or
False Accusation,
Official Misconduct
Did DNA
No
evidence
contribute to
the
exoneration?:
About 10 months after the robbery, Taylor was arrested in
Michigan on a shoplifting charge and sent back to Dallas. In
October 1981, she pled guilty and was sentenced to life in
prison. She swore in an affidavit that Brown was not her
accomplice.
Brown enlisted the help of James McCloskey at Centurion
Ministries and his investigation turned up evidence that the
prosecution knew about Bruce’s prior conviction for lying to a
police officer and had failed to turn it over to Brown’s defense
attorney.
The investigation also revealed that Taylor had been wanted
for a 1978 armed robbery of a fur store in New Mexico, along
with a known associate named Lorraine Germany—a woman
who resembled Joyce Ann Brown of Dallas. Germany had
been acquitted of the New Mexico robbery and was later
convicted of another robbery in Colorado. Taylor admitted
that Germany was her partner in the Dallas robbery.
On November 1, 1989, the Texas Criminal Court of Appeals,
ruling on a state petition for a writ of habeas corpus, set
aside Brown’s conviction and sentence. She was released on
November 3. In February 1990, the charges were dismissed.
After she wrote a book about her experience, Brown started
MASS, Mothers for the Advancement of Social Systems,
which is dedicated to helping those freed from prison get
their life together. She died in 2015
– Maurice Possley
Report an error or add more information about this case.
Posting Date: Before June 2012
Last Updated: 6/13/2015
CONTACT US
ABOUT THE REGISTRY
We welcome new information from any source about the
exonerations that are already on our list and about new
cases that might be exonerations. And we will be happy
to respond to inquiries about the Registry.
The National Registry of Exonerations is a
project of
the University of Michigan Law
School.
Tell us about an exoneration that we may have
missed
Follow Us:
Copyright © 2015. All rights reserved.
Correct an error or add information about an
exoneration on our list
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Editorial Reviews
From Library Journal
After being imprisoned unjustly for nine years, Brown, through the assistance of Centurion Ministries, was freed. She had been convicted of
participating in an armed robbery and murder, in spite of having an ironclad alibi and reliable witnesses testifying on her behalf. In this book,
http://www.amazon.com/...li_qf_sp_asin_il_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=0962268356&linkCode=as2&tag=thewaspos09-20&linkId=GGFBVJUYHQUH53FE[7/5/2015 8:16:37 AM]
Brown tells her story--a black woman who maintained her courage and dignity while enduring the hardships of a Texas prison. The reader is
at once horrified by the events and sympathetic to Brown; but there are no larger perspectives here. Recommended only for libraries
developing all-inclusive crime/justice sections.
- Sandra K. Lindheimer, Middlesex Law Lib., Cambridge, Mass.
Copyright 1990 Reed Business Information, Inc.
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12 of 12 people found the following review helpful
Justice Denied by:Joyce Ann Brown & Jay Gaines
Customer Images
By
Diane H. George
on July 17, 2002
Format: Paperback
I must give a rating of 10 stars!!~ This book was so well written. It placed you in Ms.Browns shoes
before, during & after. This author may you feel as though You were a apart of her awful journey
through this ill-fated justice system of ours. Reading her story, (if you have any compassion) at
all........It will indeed make you so damn Angry at these men in Suits (lawyers)& Robes (judges), that
we so often call "Justice Seekers" in America. Too many times we read about 'innocent' people,
being thrown into prison, & finding out Years Later that a BIG Mistake had be made. How do OUR
System compensate these individuals? With an out-landish simple Apology??? How can anyone
'accept' what has happened to them? It's time to wake up America! It's time for these Paid, & Court
appointed Attorney's to represent each & every case with every piece of skill they possilbly can, to
make Damn Sure about "WHO" they are really sending to the depths of Hell!
All the facts in Ms. Brown's case were right before their eyes, yet Justice did not prevail. I searched
high & low for a copy of this book for my very own, after asking a co-worker if I could read hers.
Locating a copy in good condition was a feat, because it was no longer in print. Finally I located one
& it had Joyce's autograph, I treasure it today still as a Great Read.
I cried many tears, I walked every inch of this sentence with Ms. Brown. Through all of what she
indured, she still remained Strong in the Lord, (this was her Only Hope), as for as I could see. I say
now: If the judge who sentenced this young lady is still practicing law, holding his gavel, & wearing
that black robe, he should be made to do the Years that Ms. Brown served!
Even it was so done, It still would Not serve Ms. Read more ›
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Most Recent Customer Reviews
RIP Ms. Brown
Ms. Joyce A. Brown died of a heart attack/stroke
today 6/13/15 RIP Ms. Brown. I will keep my
autographed book to remind me of her struggle. I
will remember how she helped others.
Published 21 days ago by Lane225
Five Stars
Great book and fast shipping too!
Published 4 months ago by Sharon J. Pettie
Love can set you free!
I enjoyed reading justice Denied so much I couldn't
put it down! Each and every time I read it I felt so
proud of Joyce pressing through never giving up and
all the love she...
Read more
Published 4 months ago by Linda B.
Touches Your Heart
This book touches the heart!
Wonderful, a story of determination and family
support.
By
A Customer
on February 3, 1999
Format: Paperback
Joyce Ann Brown's documentation of her trials and tribulation should be required text for elementary
through college students. It would be better served than some of the archaic readings for the past
50 years. All students could learn and take something from her experience. If this book saves one
child, touches a decision maker in our judicial system, reaches one who is incarcerated or
enlightens even one reader, then it is worth it. This book is a "bible" in its own right. Ms. Brown
suffered at the hands of the system but prevailed through determination and the everpresence of
God. The moral of this book should be "He may not come when you want Him, but He's always
there when you need Him"!
Comment
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No
Water in the Desert
Published 10 months ago by B. PHILLIPS
Inspiring
Memoirs of innocent people wrongly convicted
usually are painful to read, oftentimes nightmarish
(Kerry Max Cook's tops the list).
Read more
Published on February 22, 2013 by Gloria Wolk
If You're Outraged by this story....
If you were as shocked and horrified by what
happened to Joyce Ann Brown as these other
readers, please consider supporting the organization
that reinvestigated her wrongful...
Read more
Published on September 23, 2005 by L. Kurtz
By
Christopher Largen
on March 6, 2005
This is why I don't believe in the
Format: Paperback
Joyce Ann Brown has compelling reasons to be angry with the criminal justice system. After all, the
State of Texas robbed her of her family, friends and freedom. In Justice Denied, however, Joyce
takes her life sentence back from the judges and overseers who wrongly declared her a murderer!
Joyce Ann Brown writes powerful and empowering words that bleed honesty and passion, yet she
never allows her righteous anger to become hateful. Instead, she channels her rage into positive
action, serving as inspiration, appealing to the reader's sense of humanity. The author is a minister
at the core of her being.
Justice Denied is a gritty, painful and ultimately triumphant journey with the potential to change
public policy. This book should be required reading for judges, juries, attorneys, police officers,
prison guard, prison ministers, politicians, educators, activists, and anybody who has ever felt like
the circumstances of their lives threaten to undermine their sense of self-worth. Like an oasis in the
desert, Justice Denied compels readers to move forward and quench their thirst for justice.
1 Comment
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No
death penalty
Imagine being in prison for something you know you
didn't do, this is what happened to Joyce Brown.
Joyce had witnesses, was at work the time the crime
was committed, but was still...
Read more
Published on April 9, 2003 by "July Lady"
excellent book, our Judicial system
needs help!
Once I started the book, I couldn't lay it down. My
heart ached for the nine years Ms. Brown was
unnecessarily in prison. Something needs to change
within our system!
Published on March 12, 1999 by [email protected]
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An Excellent Book......
By
citystar
on September 24, 2001
Format: Paperback
From the moment I opened this book I could not put it down. I started it one afternoon and was up
most of the night because I could not quit reading. I wanted to see what happen in the next chapter.
I laughed, I cried, my heart ached as I lived along with Miss Brown as she suffered and fought
against the unfair justice system we now have.
I cried when I read where they would not release her even after it was proven that she was
innocence.
Since reading the book I have had the opportunity to meet Miss Brown in person in the home of my
niece who now work on her Board of Directors. I could only sit and stare at her. She is warm and
friendly and looking at her you would never believe that she endured such a hard time in her life. I
wanted to ask so many questions....but I did not want to dampen that beautiful spirit that shown so
brightly before my eyes.
Her story is being made into a movie and I hope everyone will watch it and tell evreryone they know
to watch it. It will be on Life Time. Justice Denied coming up soon.
Citystar
Comment
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No
This is why I don't believe in the death penalty
By
"July Lady"
on April 9, 2003
Format: Paperback
Imagine being in prison for something you know you didn't do, this is what happened to Joyce
Brown. Joyce had witnesses, was at work the time the crime was committed, but was still found
guilty for the murder of a store owner, who's wife pointed her out as being the guilty party. If this can
happen to Joyce Brown it can happen to anyone. I think GOd for those gentlemen who came to her
aid in the book. If you think there is now way that you could end up in prison, read this book, and
you will see that you very well could even if you are innocent with lots of evidence.
Comment
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No
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CRY OF INNOCENCE - D Magazine
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AUGUST 1989
CRY OF INNOCENCE
Convicted of a brutal murder she swears she didn’t commit, Joyce Ann Brown has vowed to
clear her name-or die trying.
BY BRAD BAILEY
FROM D MAGAZINE AUGUST 1989

FOR A WHILE, IT LOOKED LIKE SHE MIGHT GET OUT THIS spring. But she’s been wrong

when she still naively believed that justice will always prevail. ■ Joyce Ann Brown has been
before; it looked that way once before, back in 1984. And, of course, it looked that way in 1980,
waiting for that magic day, any day now, for nine years, and so even if it comes tomorrow, it can
never be soon enough. ■ It can’t give her back nine years. ■ And if things remain as they stand,
she has eleven more years to go, here in the Mountain View Unit of the Texas Department of
Corrections. ■ She will tell you that memories fade in a place where nothing ever happens, and
besides, there is precious little happening here that is worth remembering. ■ And so still more of
her life trickles through her fingers, unrestrained. And she will tell you one more thing: she will
tell you that she does not deserve to be here. ■ Joyce Ann Brown will tell you that on May 6, 1980,
she was at her desk at Koslow’s furs-that she was not anywhere near Fine Furs by Rubin. ■ She
will tell you that she did not walk into Fine Furs by Rubin with Rene Taylor, and that she was not
there while two robbers held the owner and his wife, Rubin and Ala Danziger, at gunpoint while
they loaded plastic trash bags with several thousand dollars’ worth of furs. And she will tell you
that she did not stand by while Rene Taylor cold-bloodedly shot and killed Rubin Danziger.
Because she just wasn’t there.
Others will tell you that, too.
And after you’ve met Joyce Ann Brown and have heard some of the particulars of her trial, there
is a fair chance you may believe her. And if you believe her, then you will not feel too very good.
All she is asking is a fair chance. The same fair chance given Lenell Geter and Randall Dale
Adams. She’s not even asking for all they got; she doesn’t want to just walk away from jail without
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another trial. She wants another day in court.
Joyce Ann Brown will tell you and anybody who will listen that she is innocent. She says she will
keep on trying to tell that to someone who can help her until she is finally heard by another jury,
or she has died trying to be heard. Or until eleven more years trickle by and she leaves prisonanother convicted felon on parole.
It’s a humane prison. Even so, it’s your worst nightmare come true. It’s a nightmare made of vast
reaches of subjective time, minutes dribbling into hours molded into days shaped slowly into
years.
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skim over it, touching down here and there amid those interminable periods of sorrow and
sameness, routine and rage, depression and desperation.
Sometimes, when my thoughts about Joyce Ann Brown catch me off guard, when I can almost
http://www.dmagazine.com/publications/d-magazine/1989/august/cry-of-innocence[7/5/2015 8:27:56 AM]
by Jamie Thompson
feel for a moment how she must feel all of the time, I want to scream.
CURRENT ISSUES
And not just over her particular plight. Because if what she says is true, then there’s a big hole in
D Magazine
our system, one that any of us might fall through, any day now.
July 2015
SHE IS BROUGHT BY THE GUARD INTO THE visiting area to the accompaniment of those
omnipresent and never-ending prison sounds-the clank and jangle of heavy keys, the scraping
and the clanging of metal doors reverberating off bare concrete walls while monotonous
machinery thrums somewhere unseen.


Even in the visiting area, cleaned up for public consumption, there’s still a trace of that stifling,
fetid humidity that arises from too many fearful or angry or finally apathetic human bodies
warehoused in a place they can’t escape or even forget for a while.
But as Joyce Ann Brown, wearing a crisp white prison dress, takes her seat on the other side of
the wire-mesh screen, she is illuminated by sunlight slanting down-sunlight thinned and strained
and made pale through the impenetrable sieve of dirty glass and steel bars and barbed wire and
chicken-wired windowpanes, but sunlight never-theless, from the west down to the east. A
hopeful light.
And she smiles, and it is still a remarkably sunny and hopeful smile. What makes the smile
particularly poignant is that it comes out of the face of a person who no longer has a real life.
"Prison, really and truly, is a living hell," she says. But for her part, Joyce Ann Brown is not losing
any sleep. On the contrary, she’s sleeping only too well.
"You get into these routines, and it’s work and sleep and work. There are times," says TDC
#314036, "when I just get totally tired, and I go and sleep. I sleep sometimes for fourteen hours
straight. If I’m off work, that’s my time to do as I please, and when I’m bored or I don’t want to be
bothered, I go to sleep. Because I have to consider that there are other people who didn’t put me
here- the guards, the inmates-so therefore, when I get in one of my irritable moods, rather than
stay up and say something I didn’t mean to say, I go to sleep and try to sleep it away.
"And I escape that way. I dream about going home, and my daughter, and my stepson that I lost
since I’ve been here. He committed suicide."
She still agonizes over the question she can’t answer about that: would he have done it if she had
been there?
This place would be hell enough for the guilty. For the innocent.. .well, there’s a temptation to
succumb to an urge to find a short rope and a high light fixture. Part of what keeps Joyce Ann
Brown going is a belief in ultimate justice-even though nowhere is that written into Texas law-and
the fact that her family believes in her.
"I made up my mind when I came in that even though I was doing time for something that I
didn’t do, I wasn’t going to let them break me. I didn’t use drugs, use pills, drink, or smoke before
I came in here, and I wasn’t going to let them drive me to that now.
"They had taken away my freedom, taken me from my children, and I just wasn’t going to give
them the satisfaction of knowing that they had gotten the best of me-that I came to the penitentiary and flipped out.
"My family is doing this time right along with me. And I know it’s hard on them-the wear and tear
of coming down here every two weeks to make sure I keep a close bond with my child and with
them."
The hardest part, for her family, was reading during her trial that she had been convicted of
prostitution.
Brown, the eldest of a large family, makes no bones about that career. She is not at all proud of it.
She tries to paste some slight dignity on it by saying, "I never stood on street corners.1’ And she
says she took that ill-fated job at Koslow’s furs to gain some measure of respectability: her
daughter had reached an age where her friends might start to ask "What does your mama do for a
living?"
"That’s what hurt more than anything else; them having to read about that conviction in the
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paper. I figured my family wouldn’t want anything to do with me, that they’d be so ashamed. But I
remember they came to me while I was in the county jail and they said, ’We didn’t know. You’ve
always been there for us, and now we’re going to be here for you.’ That meant a lot to me, more
than you can know.
"I think quite a few people in here believe me. 1 know quite a few guards that would even speak
up in my behalf. Some of them have said, ’How do you do it? I probably would have been in psych
center or would have killed myself by now.’
"And I say, ’You’d be surprised.’ There’s no way I’d wind up in psych center or killing myself,
because the only way I’d kill myself is die of a heart attack or something fighting to prove I did not
do this. That’s the only way I’ll ever get off [prosecutor] Norm Kinne’s back: reaching out for
anybody that’s willing to help me to prove that I did not do this, because I didn’t."
The record of Joyce Ann Brown’s trial pretty much speaks for itself. In twenty years in journalism,
much of it spent in courthouses around the state, I have not seen a weaker case-at least, not a
major one in which a conviction resulted.
Others agree. Al Teel is a former postal inspector who investigated the case for defense attorney
Kerry FitzGerald. He has some thirty years in law enforcement. He is no bleeding heart. He’s sent
people to prison himself, without a second look. But in Joyce Ann Brown’s case, says Teel: "It’s
unbelievable. I don’t get on a soapbox often, but there’s no way this gal should be in jail."
Del Vandiver, a former FBI agent whose duty as a federal officer in 1980 was to track Rene Taylor
on charges of interstate flight to avoid prosecution, has put more than a few behind bars, too. But
he feels the same way.
"I think she probably is innocent. Intuition? Well, no. The way her name came to my attention
was unusual to begin with. I had someone who was incarcerated at the Dallas County Jail come to
me and say that Joyce Ann Brown was in for something she didn’t do.
"Inmates generally don’t stop The Man to talk to him. Never in all the time I was with the FBI did
I have anybody stop me to profess someone else’s innocence. They just don’t stop The Man. So I
talked to Joyce. She told me what the situation was. I reviewed the information available maybe a
week and a half after her arrest. And I talked to some other people who were working on the case
for the defense, people I respected. Al Teel and Bill Holloman, a former FBI agent himself, who
was a first-class agent. I respected his opinion, and he was convinced she was innocent. The more
we dug, the funnier it looked. It just didn’t look like she was very ’good’ for the offense."
Vandiver discussed his feelings with the U.S. Attorney’s office and with the Dallas County
prosecutors.
And attorney Kerry FitzGerald had Brown polygraphed. The polygraph showed she was telling the
truth. So did a later one.
FitzGerald took the polygraph information to prosecutor Norm Kinne, who told him "I’ve got an
eyewitness. We’re going to trial."
It’s stayed with Vandiver and the others involved with the case lo, these nine years. Why? "This is
the only case I’ve ever worked on where I was convinced someone was going down for a long time
for something they didn’t do," says Vandiver. "Joyce Ann Brown is no pillar of virtue, but she
doesn’t need to go down for this."
ON MAY 6, 1980, TWO BLACK WOMEN, ONE dressed in pink and wearing sunglasses, the other
wearing a navy blue jogging suit, entered Fine Furs by Rubin sometime around 1 p.m.
Danziger, then fifty-four, went to the rear of the store. The woman in pink followed. The one in
blue stayed up front with Mrs. Danziger, who panicked and pushed a silent alarm. She pushed the
button so hard, she later testified, that it broke her fingernails. Then the woman in pink, holding a
pistol, shoved Rubin Danziger up against the wall while he begged the woman not to harm him or
his wife.
She shot him and he fell to the floor. He would die a short while later.
The gunwoman shouted at Mrs. Danziger to stuff the furs into some black plastic bags they had
brought and kicked her as she began loading the bags. The woman with the gun fired a shot at
her, but it missed her head and struck the store’s front window. Mrs. Danziger was able to save
herself from a second bullet by telling the woman that she had terminal cancer and had only a
couple of weeks to live.
"We’ll just let you suffer," the woman in pink said, and ordered her into a rear room. The two then
left.
Mrs. Danziger has suffered plenty: she didn’t have cancer, so she lived, and in some respects, that
may have been worse. It was an incredibly cold-blooded crime. And making it even more
inflammatory in the minds of the jurors and spectators was the fact that Danziger and his wife
were both immigrants and survivors of the Holocaust. The prosecution could not have asked for a
better witness: Mrs. Danziger was wracked with grief during much of her testimony, with State
District Judge Ron Chapman asking her repeatedly if he should stop the proceedings to allow her
to regain control.
At one point, after Assistant District Attorney Norm Kinne finished questioning her, Mrs.
Danziger looked at Joyce Ann Brown and began wailing, "Why did you do it? Why do you do it
and took my purse with everything else, you ruined my life, you took my life. My husband’s life
and my life..."
That might’ve been what cinched it.
Mrs. Danziger remains convinced to this day that her identification of Joyce Ann Brown, first
from police photos and later from the witness stand, is absolutely 100 percent correct. She is
unequivocal, In fact, Del Vandiver, who became well acquainted with Mrs. Danziger, says that as
much as he would like to see Brown come to trial again, he would equally "like to see Ala Danziger
change her mind. If Brown were acquitted, Mrs. Danziger would go to her grave convinced a
guilty person had been turned loose, and she deserves better. She deserves some peace of mind."
Police testified that the day after the shooting, the getaway car was found. A rental slip in the
front seat said it was rented by Joyce Ann Brown. Then, things happened fast: someone in the
police department’s vice squad remembered having arrested a Joyce Ann Brown on prostitution
charges.
Police said a confidential informant, whom prosecutors did not produce at the trial, had called in
to finger Joyce Ann Brown.
Mrs. Danziger picked Joyce Ann Brown out of a photographic lineup.
Another informant gave police Rene Taylor’s name and the address of her apartment near
McKinney Avenue and Fitzhugh.
When police searched Rene Taylor’s home, they found a pink jogging outfit, a .22-caliber revolver
with two spent rounds, some fur pieces, and business cards from Fine Furs by Rubin and
Koslow’s. Nothing incriminating was found at Brown’s.
Police identified one print on a coat hanger from the rented car as being from the left middle
finger of Rene Taylor. Other prints were not identified but did not belong to Joyce Ann Brown.
A warrant was issued for Joyce Ann Brown. Hearing on the grapevine that she was wanted, she
contacted her lawyer and arranged to come "straighten it out. I wasn’t running, I wasn’t hiding,
and I would be coming in because I did not commit that crime."
On May 14, Mrs. Danziger identified Rene Taylor as the woman in pink who shot her husband. In
the same photographic lineup, Mrs. Danziger repeated her identification of Brown. Taylor was
not arrested until March 23, 1981, when she was caught shoplifting in Michigan.
It didn’t much matter what Brown was saying about her innocence at the time of her arrest,
because, as Al Teel put it, "If I were the police, I would have figured I’d made my case, too." It
looked rather cut and dried-the usual horrible crime by the usual ratty people. But things changed
rather dramatically.
It turned out that the car had indeed been rented by a Joyce Ann Brown-but one who lives in
Denver, not Dallas. Police found Denver Joyce, who admitted renting and then lending the car to
Rene Taylor, at that point still a fugitive in the Danziger case.
Was the same-name thing an incredible coincidence?
As a matter of fact, one of the deputies in the very court that tried Dallas Joyce was herself named
Joyce Ann Brown. This third Joyce Ann Brown actually signed some of the papers in the case. The
woods are full of Joyce Ann Browns.
The woods, in fact, are full of every kind of coincidence.
I once personally spent a scary thirty minutes during a routine traffic stop leaning against the
back of a squad car while officers ascertained by computer that I was not in fact the same Bradley
Scott Bailey who was sought on a Florida auto theft warrant.
Was Mrs. Danziger’s eyewitness identification of Dallas Joyce so damning? In a more clear-cut
case with other evidence to support the identification, probably so.
But as Vandiver puts it, "Eyewitness identifications are always weak. The human brain does
strange things, particularly under stress, Sometimes it sees things in such detail that it never
forgets, but other times sees things that aren’t there. And sometimes under stress it is very
susceptible to suggestion. So many things can go wrong."
For parallels, look no farther than Lenell Geter. But for the strongest parallel of all, consider the
White Man with the Red Beard. For a while in the Danziger case, police were trying to make a
case that David Sheafer, a white man with a red beard, was an accessory.
Mrs. Danziger swore that the man police arrested while he was working on a car in front of Joyce
Ann Brown’s home-and who was seated in the courtroom during her testimony-was the same
man she had seen loitering outside her store, and who police suspected might have driven the
getaway car.
Again, Mrs. Danziger was adamant and unequivocal. In fact, she testified she was every bit as
positive of her identification of the white man with the red beard as she was of her identification
of the two women who robbed her.
Only problem: at the time of the robbery, the man was picking up his wife at the dentist’s office
where she worked. His wife said so. So did the dentist, and his secretary.
Studies of similar situations show that in most cases, people held at gunpoint are, more than
anything else, very interested in the gun itself. They can describe it with a great deal of detail. And
second, they are interested in the person who’s holding it, who was in this case undoubtedly Rene
Taylor.
It would seem only logical to expect Dallas police, after finding out the car was rented to Denver
Joyce, would just realize their error, say "ain’t life a tunny thang," and let Dallas Joyce go with an
admonition not to leave town.
Instead, they tried Dallas Joyce.
The state’s case, such as it was, hinged on minutes-about thirty-six of them-unaccounted for by
Joyce Ann Brown.
Joyce Brown testified that she did not eat lunch and did not leave her desk between noon and 1
p.m. Four coworkers and a co-worker’s husband corroborated nearly all of Brown’s story,
including her statement that she was wearing a white skirt that day-and not a blue jogging suitbut left a gap of about thirty-six minutes during which no one was in exactly the same room with
her. That gap happened to coincide roughly with the time of the robbery.
Brown punched a time clock at 8:48 a.m. on May 6, 1980, and did not punch it to leave until 4:12
p.m., her timecard showed. Perhaps more importantly, Brown, a receptionist, had fully mastered
Koslow’s phone system, and seldom left for lunch so she could be there to attend it. Nobody
reported any communication foul-ups that day.
The prosecutors, led by Norm Kinne, presented no witness who could testify to seeing Joyce Ann
Brown either leaving or entering Koslow’s or Fine Furs by Rubin anywhere near the noon hour.
Beyond presenting Ala Danziger’s identification, they could only damn Brown with faint
speculation. They argued that a half-hour was enough time for Joyce Ann Brown to leave, drive to
the Danzigers’ store, watch as Rene Taylor blew away a fifty-four-year-old furrier, load up the
furs, change clothes twice, travel three miles two ways through noontime traffic, and return to
work without being missed-and without even breaking a sweat.
Oddly enough, the Denver Joyce to whom the robbery car was leased had used the same alibi of
being at work, and that was good enough for police to have dropped their investigation against
her.
It is a tremendous tribute to Norm Kinne’s skill as a courtroom orator and water-muddier that he
was able to imbed in the jury’s mind the theory that Dallas Joyce and her common-law husband,
Lee Visor, were actually in cahoots with Denver Joyce and an alleged underworld acquaintance of
Denver Joyce’s named Selman Fletcher to conspire to rent a car under Denver Joyce’s name and
use Dallas Joyce and Rene Taylor to commit the robbery.
There was not one shred of credible evidence or testimony presented to support that theory
either, other than the fact that Lee Visor had indeed spent some time in the Denver jail, and that
Joyce Ann Brown was unaccounted for-not missing, mind you, just unaccounted for-during a
period that roughly coincided with the robbery.
It was all a matter of Kinne’s incredible theatrical style and innuendo disguising the fact that the
case had little substance.
Even Brown has to admire Kinne’s skill at getting juries to eat out of his hand. "The guy does such
a good jot)-Norm is too good for our own good, that’s what the problem is. They selected a jury.
None of these people have any experience with the law, and half of them can’t even interpret what
the DA or the lawyer is talking about. It’s whichever lawyer makes the best speech. The defense
lawyer has to make an above-excellent speech because the DA already has the jury in his pocket
because he’s working for the public. All the evidence, all the testimony is really a waste of time.
It’s whichever one gets up there and preaches the best. The defense lawyer is starting off second,
not even, because of the DA’s position. It’s sad. It’s sad but it’s true."
Up to this point, fair’s probably still fair. But here the plot sickens. Kinne called to the stand
Martha Jean Bruce, who was incarcerated with Brown in county jail while she awaited trial. Bruce
testified that Brown told her during their incarceration that she had in fact committed the
robbery, and how.
Bruce’s testimony was sketchy and evasive, but she did testify to some details that were never
made public. They were details that only two sets of people could have known: the robbers.. .and
the prosecutors with whom Bruce conferred before testifying.
Says Joyce Ann Brown: "Norm Kinne used my intelligence against me with the jury. He told them
about how intelligent I was, about how I had worked around the DPD for ten years and only in the
last year had been convicted. He made me out to be a master criminal who had outslicked them.
He made them think that I was so sure of my intelligence and so sure that this little illiterate black
girl was so stupid that she’d never understand what I was saying that I went ahead and told her
all about it.
"But my mother always told me to beware of anyone who brings you any gossip or bone, and
Martha Bruce is the very same girl who came to me the first day in jail and told me, ’don’t talk to
anyone in this jailhouse about your case, because they’ll be the first one to go down and make a
deal with the DA.’ I am by no means a fool, and I know that if you’d tell me something like this,
you’ve been involved in something like it before. So then I’m gonna turn around and tell her I did
it? They gotta think I’m crazy."
Martha Bruce also repeatedly testified that she was offered nothing by prosecutors in exchange
for her testimony. If she lied, it is, of course, perjury.
But court records show that Bruce was released from prison shortly after Brown’s trial, after
Kinne requested that the judge in Bruce’s case ask the state parole board for a reduction in her
sentence.
Another interesting little fact concerning Bruce’s credibility-and a fact never brought to the
attention of the jury-was that Martha Bruce, only a short time before the Brown case, had added
this to the list of her many convictions: on March 13, 1980, less than eight months before she
testified in the Dan-ziger case, Martha Jean Bruce was convicted of lying to a police officer.
A S EARLY AS 1984, SO MUCH MONKEY business had come to light in the case that Brown’s
attorney, Kerry Fitz-Gerald, figured he had enough to get Brown a new trial, and then to get her
acquitted.
Early that year, Rene Taylor met with The Dallas Morning News’ Steve McGonigle, who has been
a staunch and tireless advocate of Brown’s. Taylor told McGonigle that she had never laid eyes on
Joyce Ann Brown until they met in prison, in 1982.
State District Judge Ron Chapman, who sentenced Brown, went on record as saying she should
be given a second polygraph ex-am, and told McGonigle: "If there is any chance that she is not
good for the case, I feel it should be investigated. This has a possibility of being a more legitimate
case for further investigation than the Geter case."
Chapman heard FitzGerald’s motion for a new trial in July of 1984. During that hearing, Rene
Taylor repeated her contention that Brown had nothing to do with the robbery. FitzGerald also
presented evidence at that time that Norm Kinne had withheld from jurors the fact that the
prosecutor had persuaded Martha Bruce to testify in exchange for having her own prison term
reduced; though Bruce maintained she had been promised nothing for her 1980 testimony when
she came before Chapman in 1984, FitzGerald introduced letters from District Attorney Henry
Wade and Bruce’s trial judge asking the state parole board to reduce her sentence. The sentence
was reduced from five to two years, and prison records show Bruce was paroled in July 1981 after
serving thirteen months for attempted murder.
Judge Chapman forwarded the evidence to the Texas Court of Criminal Appeals without a
recommendation. And then, bang, Joyce Ann Brown was shot down once again: in December
1984, the Court of Criminal Appeals denied Brown a new trial, and refrained from commenting
on FitzGerald’s contention that prosecutors had acted improperly.
End of story, with no change until the year 2000, when Brown will become eligible for paroleexcept for Jim McCloskey.
Joyce Ann Brown went to prison, but other forces were at work: she contacted the Lenell Geter
Foundation, which put her in touch with Centurion Ministries Inc. and its chief, McCloskey. He is
a hard-driving, hard-talking bulldog of a man who sees his mission on earth not as saving souls
from hellfire in the afterlife but from their hells right here on earth, and once he had screened and
researched Brown’s case, McCloskey and his investigator, Richard Reyna, went to work with a
vengeance.
They’ve done miracles, considering the fact that the case is nine years old.
In fact, Jim McCloskey’s got an extremely good idea of who committed the robbery and murder.
It almost got right by him.
"On November 3 of 1988," McCloskey recalled, "Reyna and I are both down at TDC talking to
Rene Taylor. We’ve been still screwing around tracking leads and getting nowhere in South
Dallas. And Rene says, ’The associate in Albuquerque was my associate in Dallas.’ It went right
over our heads. We’re just screwing around taking notes, and it went right over our heads. She
told us that clear as a bell. I guess she didn’t think we’d figure out the reference to the
Albuquerque case because there had been an acquittal."
By some mental fluke they missed the significance of her statement and went on chasing along
other bunny trails until a January interview when Rene Taylor again told McCloskey and Reyna
"very pointedly and clearly and explicitly that if you got her Albuquerque accomplice, then you’ve
also got the Danziger accomplice."
Bingo: Rene Taylor and a woman named Lorraine Germany were indicted in June 1978 for the
March 1978 armed robbery of Lloyd’s Furriers in Albuquerque.
The M.O. was remarkably similar, Mc-Closkey says, right down the line: the gun-toting member
of the pair was in charge. The furs were carried out in a black plastic bag. One of the pair was even
wearing a navy blue jogging suit similar to the one worn in the Danziger robbery/murder.
After Rene Taylor was apprehended in connection with the Danziger case, and long after Joyce
Ann Brown was in prison, New Mexico authorities agreed to drop charges against Taylor in the
lesser Albuquerque case. The New Mexican authorities were particularly amenable to that request
in light of the fact that Taylor’s accomplice, Germany, had already beaten the rap.
Lorraine Germany had been captured in Denver. She had fought extradition, but was finally
brought to trial in Albuquerque a year later, in June 1979.
It was not easy for McCloskey, who is not a member of "The Brotherhood" of law enforcement
officers, to track all this down. It is a fact, however, that the information should have been readily
available to Dallas police in May 1980. There was a New Mexico warrant out for Taylor and
Germany on a fur store robbery.
But ten years later, McCloskey had little trouble tracking Germany down: in 1989, she was sitting
in the Colorado state prison convicted of yet another robbery charge.
And she’s a dead solid ringer for Joyce Ann Brown.
"When she walked into the conference room, in the flesh, I got chills and Richard’s heart leaped
into his throat," McCloskey says. "The facial similarity is just amazing. There is a difference;
Lorraine is dark brown in complexion and Joyce Ann Brown is definitely light-skinned. But the
facial similarity is amazing."
Germany admitted to her role in the Albuquerque case, but was not stupid enough to admit any
connection to the Danziger case,
She presented them with a very leaky alibi, McCloskey recalls.
"She denied even knowing about the Dallas robbery until, she said, a day or two later when her
father comes in holding a newspaper and says, ’Look what happened here.’ Lorraine said there
was an article in the Denver paper, either the Post or the News, about the Dallas crime. That’s
wrong. There wasn’t. We checked. No article in either paper-and since nobody in Denver would
care anyway, why would there be?
"She claims her alibi in the Dallas case is her father. He’s not a real good character and has arrests
himself."
To say that Germany is a ringer for Brown may be an understatement. They look so much alike
it’s spooky. Says Joyce Ann Brown, who has seen the photo, "My mother’s mouth looks like mine.
This woman has my mouth." And eyes, and nose.
When McCloskey told Taylor he had found Germany, she recanted,
A strange honor afflicts thieves. It’s quite possible that Rene Taylor’s conscience is large enough
to extend to feeling bad about the wrong woman being in the pen, but not quite far enough to go
ahead and put the right one, an old partner in crime, behind bars.
THERE’S A FUNNY THING ABOUT THE way the DA’s office works here. First, they may be, as
Brown said, "too good for our own good."
Second, this kind of thing seems to be a game with them. Contained in the records of the Joyce
Ann Brown case on file at the courthouse is this exchange of letters between Judge Ron Chapman
and prosecutor Norm Kinne concerning FitzGerald’s 1984 request for a new trial:
RE: State of Texas vs. Joyce Ann Brown
Dear Norman:
I am personalty offended by your thinly veiled threat to notify Mrs. Danziger of the upcoming
hearing in the Joyce Ann Brown case. She cannot, by any stretch of the imagination, be
considered a party or a fact witness.
I am disappointed in you.
Sincerely,
Ron Chapman
Judge, Criminal District Court
Kinne’s reply was brief:
Dear Judge Chapman:
Some people have no sense of humor.
Norman Kinne
Chief Felony Prosecutor
It was chilling enough that Chapman included it in the casefile.
A prosecutor under Kinne’s supervision may have summed up the prevailing attitude in the DA’s
office. His name will be left out of this because he’d had a drink or two and wasn’t being
interviewed, but after I expressed some of my concerns about the Brown case, he looked at me
rather blankly and said, "Well, hell-you know she’s guilty of something. Hell, everybody is."
In 1984, when asked if he would join in the motion for a new trial, Kinne said: "Her case is over
and done with. I don’t have any further plans for it." But this spring, McCloskey brought to light
the fact that some coat hangers from Fine Furs by Rubin were still in the evidence locker at DPD
after they’d been found in the rent car, and they still had some fingerprints on them.
Kinne and the boys said, yeah, sure, they’d be willing to take a look at the case again- but only if
the prints on the hangers matched those of Lorraine Germany. Sort of like, you jump through the
hoop-but we’ll hold it way up here.
"I know one thing," Joyce Ann Brown said at Mountain View: "They’re sure not mine."
They didn’t match Germany’s, at least not in the opinion of the Dallas police.
So: Case Still Closed.
McCloskey and FitzGerald attach some hope for retrial to some recent statements by jurors that,
had they known more about Martha Bruce, they might have decided differently. Even at the time
of the trial, one juror said, "it was close."
It’s not enough that, sitting there in prison, Joyce Ann Brown has to prove she didn’t do it; she’s
got to go that extra zillion miles from her prison bunk to find out who did.
On its face, the solution would seem rather simple.
Bring her back. Try her again. If she did it, prove it with facts, not innuendo and testimony that
stinks of perjury, and then send her back to prison. If she didn’t do it, let her go. You’d expect that
out of a decent, humane society.
Yes, it would be expensive to retry Joyce Ann Brown-but then, she’s going to be pretty expensive
to feed, clothe, and house for the next ten years.
But it’s not that simple.
Under the law, she’s already been tried, she’s already been convicted, and she’s exhausted her
appeals, so ipso facto, she did it, and justice, as the law defines it, has been served. Under the law,
no mistake has been made. There is nothing to be put right.
As Del Vandiver put it, "Should she be retried? If perfect, classic justice is to be served, well, yes.
But there has to be some legal reason. You have to bring new evidence to light, or show that it was
a bad trial. There really is no new evidence in this case-just permutations of old evidence. There
are some strange coincidences, and some opinions, but no new witness-none that will come to
court with documentary evidence."
In other words, Joyce Ann Brown says she didn’t do it, but so what? Lorraine Germany says she
didn’t, either, and Rene Taylor won’t say who did.
If Brown’s old cellmate, Martha Bruce, came forward to recant, she’d be staring a perjury charge
in the face. Don’t wait on her conscience to push her forward. And unless he did offer Martha
Bruce some inducement-and he has said that he did not- Norm Kinne, by definition, did well the
job we pay him to do: as the public’s advocate, he took a dog of a case and got a conviction.
"I think Kinne did this with no malice," Vandiver says. "I don’t think Brown was railroaded in the
deliberate sense of the word. You could argue the prosecutor has some moral or ethical
responsibility, but those are ethical questions, not legal ones. If a prosecutor doesn’t get the
numbers on convictions, he doesn’t keep his job. You don’t get to be first assistant DA by not
getting convictions. His duty is simply to present the evidence that supports his case. The defense
presents theirs. The jury decides.
"It doesn’t matter how many ex-FBI agents might have an opinion. The case has to be decided on
the evidence presented, and that was done."
Joyce Ann Brown takes it a bit more personally. The last thing she said to me was a message for
Norm Kinne.
"Tell him one day things are not going to look so glorious for him. I believe that our children and
our children’s children pay for our mistakes-I shouldn’t use the word mistake; this was no
mistake. But one fine day, there will be a payback. I don’t mean anything like I’ll do something, or
someone will take out a hit or anything silly like that. I just mean that somewhere down the line,
it’s going to show up. Norm Kinne has been in the DA business for a long time. And you have to
wonder: how many more innocent people have had to suffer at his hands?"
That’s why I want to scream.
Because for every Lenell Geter, every Randall Dale Adams who has finally overcome the odds by
fighting his way out of prison, there’s got to be a Joyce Ann Brown still lost in there.
Because she had the same name as someone else. Because she can’t account for every half-hour of
every day.
You see, I can’t either. Neither can you.
And remember, everybody’s guilty of something.
JOYCE ANN BROWN, OUR INTERVIEW completed, waved one last time before the guard took
her back behind the steel door and back into her gray steel nonex-istence, She flashed one last
sunny smile and disappeared.
The female guard escorted me into a little courtyard where I was surrounded by chain-link and
concertina, under the watchful eye of a guard in a far-off tower. She told me that another guard
was on his way to let me out of the other side, back into the real world, and then she went on
about her business.
I waited and waited.
I smoked. I paced. I fumed. And then, feeling pretty silly, I nevertheless got a little scared. I put
my finger through the chain-link, and wondered what the man in the watchtower would do if I
just lost it, and started screaming bloody murder.
And then I thought: what if this was my life?
The second guard never came. After maybe thirty minutes, the first guard realized there was a
problem, went through all the security systems, drove around to the other side of the gate, and let
me out. She apologized. She said I hadn’t done anything wrong.
There was just this glitch in the system.
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COMMENTS
TEXAS, STEP UP TO THE PLATE AND COMPENSATE:
FACE TO FACE WITH JOYCE ANN BROWN, WRONGFULLY
CONVICTED NEVER TO RECEIVE COMPENSATION
NATASHA L. BROOKSt
I. Introduction ...............................................
II. Background on Wrongful Convictions .....................
A. Factors That Lead to Wrongful Convictions ...........
1. Eyewitness Testimony .............................
2. Cross-Racial Identification ........................
3. Jury Composition .................................
III. The Law on Wrongful Convictions ........................
A. The Constitution of the United States .................
B. The Texas Constitution ................................
C. Compensation Statute .................................
D. Pardon Statute ........................................
1. Pardons in Texas ..................................
2. Definition of Full Pardon .........................
3. Procedure for Obtaining Pardons ..................
46
50
50
50
53
55
57
57
59
59
60
60
60
62
- Candidate for J.D., St. Mary's University School of Law, May 2002; B.A., Political
Science, Baylor University, May 1999. First and foremost, I would like to thank God for
giving me the strength and determination to draft this comment. I would also like to thank
both the members of the Editorial Board and the writers for their help with this comment.
In addition, I would like to thank my individual editors, Norma Ortiz and Scott P. Craig,
for their hard work and dedication in developing this comment. Furthermore, I would like
to thank Art Hall for his guidance with this comment. Words could not express how much
I thank my parents, Wanda and Juluis Brooks, for their continued love and support. If it
were not for my parents instilling in me good morals and values, it would be almost
impossible to make it in a world filled with trials and tribulations. However, it is through
my parents that I have learned that nothing or no one who comes against me shall prosper.
This comment is dedicated to Joyce Ann Brown, and all the other innocent people that are
wrongfully convicted never to receive compensation.
THE SCHOLAR
[Vol. 4:45
Pardons and the Courts ...........................
63
E. Expunctions ...........................................
66
Entitlement to an Expunction .....................
Distinct Differences in the Statutes ................
Liberal Application of the Statutes ................
Joyce and the Expunction Statutes ................
68
69
73
75
4.
1.
2.
3.
4.
IV. Proposal ..................................................
76
A. Revision of the Compensation Statute .................
B. Less Restrictive Interpretation of the Expunction
Statute ................................................
C. Eliminating Factors Responsible for Wrongful
77
77
Convictions ...........................................
78
D . Apology ..............................................
78
V. Conclusion ................................................
79
I.
INTRODUCTION
But I saw something else and what I saw sent a cold shiver of fear
through my body. They wanted to find me guilty. I could see it in
their eyes. I saw hatred for me on their faces. One of "them" had
been murdered and one of "us" was accused. A Holocaust survivor
had been shot in the head and a black nigger woman was on the
stand. At that moment, I knew I had been had.1
Face to face with Joyce Ann Brown, I found that she is not a woman
who allows herself to be filled with anger and hostility.2 Nor is she a
1. JOYcE ANN BROWN, JoYcE ANN BROWN: JUSTICE DENIED 22 (1990) (stating
Joyce Ann Brown's story of her wrongful conviction). Joyce's heart stopped, her hands
were shaking as she read in the headline of the Dallas Morning News that the police were
looking for her in connection with a robbery and murder. See id. at 12-13. Knowing that
there was some misunderstanding, Joyce decided to go down to the police station to
straighten out the mistake. See id. at 13. Before she took her final step out the door, Joyce
called an attorney. See id. She explained the situation, and to her dismay, he advised her
not to go by herself. See id. "Why," she thought, "attorneys are for guilty people." i.
Joyce and her attorney arrived at the police station and repeatedly stated that she was at
work at the time of the robbery. See id. The police accused her of lying: "We know you
left work, went and robbed that store, and returned to work. We have an eyewitness who
has identified you." Id. Her attorney requested a lineup; however, the officer said that
one was not needed because the witness had already identified Joyce from a photograph
lineup. See id. Joyce then realized her past had caught up with her. See id. From her life
of past sin, she remembered the voice of the police officer who told her that her picture
was on file even after the charges were dropped. Id. Joyce's nightmare began. See id. at
14. What she did in the dark surfaced to the light. See id. Nevertheless, her past could
never equal the injustices she would face for a crime she did not commit. See id.
2. See Interview with Joyce Ann Brown, Author of JoYcE ANN BROWN: JUSTICE DE.
NIED, in Dallas, Tex. (Sept. 16, 2000). At one point in the interview, Joyce Ann Brown
2001]
JOYCE ANN BROWN
woman who feels sorry for herself.' She is a strong Black woman, whose
relentless determination allows her to remain formidable beyond all defi-
nition.4 Determined to fight for her freedom, Joyce Ann Brown went to
5 She refused
prison maintaining the mindset that she was coming home.
6
her.
to let the prison system dehumanize or demoralize
Sentenced to life in prison, Joyce Ann Brown served over nine years
before the district attorney dropped the charges that lead to her wrongful
conviction.7 Joyce is not alone, as many people wrongfully incarcerated
in the United States prison system struggle daily to prove their innocence.8 Although the Constitution clearly states that no state shall deprive one of their liberty without due process of law,9 in reality, wrongful
convictions still occur and the innocent go without compensation for the
injustices they have faced.
Joyce Ann Brown is not alone in her wrongful conviction.1" In a study
reviewing four hundred cases of wrongful convictions, a devastating
speaks about life in prison and how she was able to create some positive out of the negative. See id. She accomplished this by acquiring cooking utensils, pans, and food so that
she could make home cooked meals for her and her cellmates. See id.
3. See id.
4. See id. Joyce believes that it was not luck, which she considers the devil's word, but
being blessed that allowed her to be freed from her wrongful conviction. See id.
5. "With thanks to the Lord, who never left me, forsook me or deceived me, and by
whose Grace so many came into my life to help free me from bondage." BRowN, supra
note 1, preface v, Interview with Joyce Ann Brown, supra note 2. "[W]hen I went to
prison, I went into prison with a mindset that I was coming home and that I wasn't going to
do a life sentence. I did not get institutionalized when I was in prison because I wouldn't
allow myself to get institutionalized." Interview with Joyce Ann Brown, supra note 2.
6. See Interview with Joyce Ann Brown, supra note 2. Joyce even became a sports
fanatic in prison and watched an enormous amount of sports on television when she could.
See id. She figured that as long as she kept herself occupied she avoided the stigma and
trauma that jail often brands on one's soul. See id.
7. See BRowN, supra note 1, at 177. "[A]t last after nine years, five months and
twenty-four days, my nightmare was over." Id.
8. See James Cleary, When tire PrisonerIs Innocenc Vrongful Convictions Are a Legal FactofLife. How Do CompensationBoards Work - and Do They Work?, 14 Hum. Rhrs.
42, 43 (1987) (demonstrating that there are incarcerated prisoners who are wrongfully
convicted).
9. See U.S. Const. amend. XIV, § 1. The Due Process Clause reads as follows:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law;, nor deny to any person within its
jurisdiction the equal protection of the laws.
Id.
10. See generally, e.g., Cleary, supra note 8, at 43 (giving the details of a wrongful
conviction); Daniel Givelber, MeaninglessAcquittals, Meaningful Convictions: Do We Reliably Acquit tire Innocent?, 49 RuTrGERs L. REv. 1317, 1317-21 (1997) (describing the increased media attention on the releases of innocent prisoners who were wrongfully
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[Vol. 4:45
twenty-three lives ended in executions." Furthermore, the National Institute of Justice found twenty-eight instances of wrongful convictions for
sexual assault and murder in which the innocent individual had served an
average of seven years in prison. 2 These innocent victims of the justice
system, who have been wrongfully convicted, must be compensated for
the injustices they suffered.
Texas claims to provide relief via a statute that allows compensation for
those deprived of due process.13 However, examination of the compensation statute reflects how difficult it is for a person to actually obtain relief
for wrongful imprisonment. In order to be compensated, one must show
that he or she: (1) has either completed or has partially served the sentence in a state institution; (2) plead "not guilty" to the charge that led to
the wrongful conviction; (3) is actually innocent of the crime for which
they were
convicted; and (4) received a full pardon for the convicted
14
crime.
Thus, a person could meet all the requirements of the compensation
statute, as in Joyce's case, and find that there are still shortcomings even
if all of the elements are met. One of the shortcomings of the statute is
convicted of crimes); James McCloskey, Convicting the Innocent, CRIM. JUST. ETHICS 2
(1989); Joseph H. King, Jr., Comment, Compensation of Persons Erroneously Confined by
the State, 118 U. PA. L. REv. 1091, 1091 (1970) (citing a wrongfully convicted person as
speculating that there are thousands wrongfully convicted).
11. See Adele Bernhard, When Justice Fails: Indemnificationfor Unjust Conviction, 6
U. CHI. L. ScH. ROUNDTABLE 73, 78 (1999) (examining a study conducted by Michael L.
Radelet, Hugo Adam Bedau, and Constance E. Putnam which offered instances of wrongful conviction). See generally, e.g., RUTnH BRANDON & CHRISTIE DAVIEs, WRONGFUL IMPRISONMENr MISTAKEN CONVICTIONS AND THEIR CONSEQUENCES (1973) (highlighting
the impact of wrongful convictions in society); EDWARD RADIN, THE INNOCENTS (1964)
(discussing the subject of wrongful convictions); MARTIN YANT, PRESUMED GUILTY:
WHEN INNOCENT PEOPLE ARE WRONGLY CONVICTED (1991) (illustrating the factors and
occurrences of wrongful convictions).
12. See EDWARD CONNERS F- AL., U.S. DEP'T OF JUSTICE, CONVICMrED BY JURIES,
EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH
INNOCENCE AFITER TRIAL (1986); Bernhard, supra note 11, at 75 (evaluating a report of
the National Institute of Justice about wrongful convictions for those accused of sexual
assault and murder).
13. See TEx. Civ. PRAc. & REM. CODE ANN. § 103.001 (Vernon 1997).
14. See id. The Claimants Entitled to Compensation code reads as follows:
A person is entitled to compensation if the person:
(1) has served in whole or in part a sentence in prison under the laws of this state;
(2) pleaded "not guilty" to the charge for which he was convicted and that led to the
imprisonment;
(3) is not guilty of the crime for which he was sentenced; and
(4) has received a full pardon for the crime and punishment for which he was
sentenced.
Id.
20011
JOYCE ANN BROWN
the requirement that the individual obtain a pardon.15 Obtaining a pardon does not eliminate a guilty record or show a finding of innocence, but
merely serves as an act of grace from the governor. 16 Consequently, individuals who want to maintain their innocence may feel that in order to
receive a pardon they must admit guilt for a crime they did not commit. 7
Additionally, the seemingly simple task of removing the wrongful conviction from a person's criminal record becomes complex in the face of the
requirements of the expunction statute, which allows a person who is
wrongfully convicted to clear his or her record."8
While some may view compensation of the wrongfully convicted as unnecessary and unsuitable, compensation is necessary to fight the injustices
which wrongful convictions impose. Compensation helps to ensure that
individuals receive an equitable end to an unfortunate situation. It is one
thing society can do to work towards healing the harm caused by being
wrongfully convicted.
This comment examines the problems the wrongfully convicted face in
regard to not receiving compensation. Part I offers an introduction to
Joyce Ann Brown's story. It also details the problems she and others who
are wrongfully convicted face, especially regarding due process and compensation. Part II explores some of the factors that lead to most cases of
wrongful convictions, including incorrect eyewitness testimony, cross-racial identification, and biased jury composition.' 9 Part III assesses the
existing law on wrongful convictions and demonstrates the inadequacies
found in the law for those who are wrongfully convicted. Part IV offers a
proposal, which incorporates a revised statute, allowing the innocent to
receive compensation for wrongful convictions. Other alternatives will
also be offered to help promote compensation for individuals who are
15. A pardon is an "act or an instance of officially nullifying or other legal consequences of a crime ... usually granted by the chief executive of a government." BuAci's
LAW DICnTONARY 1137 (7th ed. 1999). See generallyT->. CocsT.art. IV, § 11 (explaining
that the pardoning power in Texas rests ultimately with the governor).
16. See generally Tax. CONsr. art. IV, § 11 (giving the governor the power to grant
reprieves and commutations of punishment and pardons); Er parte Nelson, 209 S.W. 148
(Tex. Crim. 1919) (describing the power of clemency granted to the governor, which is
subject to no limitations by the legislature, but only to constitutional limitations).
17. See Interview with Joyce Ann Brown, supra note 2. Joyce knew that she did not
want to pursue a pardon. See id. For her, a pardon was like telling her that she committed
the crime and the state was just going to dismiss it. See id. An expunction was the only
acceptable remedy for Joyce. See id.
18. See Tax. CODE CRIM. PROc. ANN. art. 55.01 (Vernon Supp. 1999).
19. See Bernhard, supra note 11, at 76. See generally EDWIN M. BoRcHARDo, CON.VIl"ING THE INNOCENT- ERRORS OF CRIMINAL JUSTICE (Leonard W. Levy ed., 1970);
MICHAEL L. RADELEr E-r Al-,
CAPrrAL CAsEs
(1992).
IN SPITE OF INNOCENCE:
ERRONEOUS CoNvicTIoNs IN
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[Vol, 4:45
wrongfully convicted. Finally, Part V concludes by reiterating the fact
that wrongfully convicted individuals must be compensated in order to
establish legitimacy in the justice system and right the wrongs of the past.
II.
BACKGROUND ON WRONGFUL CONVIuIONS
A. Factors That Lead to Wrongful Convictions
There are several common factors that lead to wrongful convictions."0
They often include: incorrect eyewitness testimony, cross-racial identifi-
cation, and all-White jury pools."1 Each factor listed above must be addressed in order to demonstrate how wrongful convictions can occur.
1. Eyewitness Testimony
Although eyewitness testimony is the most important evidence in criminal cases, incorrect eyewitness testimony presents the premier cause of
wrongful convictions.2 2 One study found that half of all wrongful convictions are the result of incorrect eyewitness testimony.' Furthermore, it is
estimated that more than 4,250 innocent Americans are wrongfully convicted each year due to inaccurate eyewitness identification.2 4 In addition, the National Institute of Justice reported that in approximately
eighty-two percent of cases, the accused were incorrectly identified."
20. See Bernhard, supra note 11, at 76 (introducing a study which shows the common
factors of wrongful conviction). These'common factors include: incorrect eyewitness testimony, witness perjury, and poverty. Id. For the purpose of a limited discussion, the analysis will only include eyewitness testimony, cross-racial identification, and jury composition.
See also Interview with Joyce Ann Brown, supra note 2 (commenting on some of the factors which played a great role in Joyce's wrongful conviction).
21. See Bernhard, supra note 11, at 76 (utilizing a publication by Edwin M. Borchard
to emphasize a variety of errors that lead fact finders to erroneous conclusions).
22. See id. at 75; PSYCHOLOGICAL ISSUES INEY-wrrN.ss IDENTIFICATION 3 (Siegfried
L. Sporer et al. eds., 1996) (showing that, although eyewitness testimony is heavily relied
upon, errors occur in some percentage of the testimony); David M. Shofi, Comment, The
New York Courts' Lack of Directionand Discretion Regarding the Admissibility of Expert
Identification Testimony, 13 PACE L. REv. 1101, 1141 (1994).
23. The number of wrongful convictions is estimated at 8,500 per year in the United
States alone. See Elizabeth F. Loftus, Ten Years in the Life of an Expert Witness, 10 LAv &
HUM. BEHAV. 241, 242-43 (1986) (citing a 1983 Ohio State University Doctoral Dissertation). "If faulty eyewitness testimony is a major cause of wrongful conviction (or erroneous verdicts more generally), perhaps the study of witnesses, with an aim towards
eventually improving that testimony, could lead to a reduction in errors." Id.
24.
ANDRE A. MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL
§ 19.15, 1171-1172 (4th ed. 1995). See generallyUnited States v. Wade, 388 U.S. 218
(1967) (illustrating the potential for improper influences on eyewitnesses regarding the
lineup procedure).
25. See CONNERS ET AL., supra note 12. The National Institute of Justice claims that
twenty-three out of twenty-eight cases involve accused persons who were wrongfully idenCASES
2001]
JOYCE ANN BROIVN
These figures serve as a wake-up call for those who underestimate and
ignore the influence of incorrect eyewitness testimony.
While eyewitness testimony is important to the jury in its function as
fact finder, this testimony can lead them into a valley of great deception.2 6 It has been reasoned that a principal cause of wrongful convictions is "the fact that, in general, juries are unduly receptive to
27
identification evidence and are not sufficiently aware of its dangers."
Juries tend to believe the testimony offered by an eyewitness even when
the evidence is extremely doubtful. 8 Many jurors admit that presenting
positive eyewitness identification is the most devastating and persuasive
evidence presented in criminal trials?" Jurors often feel "there is almost
nothing more convincing than a live human being who takes the stand,
points a finger at the defendant, and says 'That's the one!"' 3 0 Thus, inno-
cent victims are easily convicted because jurors are often unaware that
tifled. Id. See also Bernhard, supra note 11, at 75 (exploring specific instances when the
accused were incorrectly identified).
26. See William D. Gross, Comment, The UnfortunateFaith: A Solution to the Uniwarranted Reliance Upon Eyewitness Testimony, 5 TEx. WEsLEYAN L Re. 307 (1999) (clarifying that while eyewitness testimony is important, it can also be unreliable).
27.
PATRICK M. WAL., EYE-WrrNmss IDNTIFICATION IN CIMtINAL CAsES
19 (1965).
Scientists believe court testimony is unknowingly distorted and invented. See id. Dr.
Daniel Wright is among the scientists who believe this to be true. See id. He works for the
Eyewitness Research Unit and feels that mistaken identity and conviction are more prevalent than we think. See id. This is largely because juries trust eyewitness evidence when
there is no forensic evidence on which to rely. See id. See Anjana Ahuja, Can You Believe
What You See?, TPAins (London), Sept. 10, 2001, available at 2001 WL 4928641. See also
Hector Becerra, Yet Another Reversal with a Witness Issue, LA. TIMEs, Aug. 22,2000, at 18
(quoting Dr. Elizabeth F. Loftus, an expert on eyewitness testimony, as saying, "all the
other factors that [lead] to a person's wrongful conviction... don't add up to the damage
caused by bad [eyewitness] testimony").
28. See WALr, supra note 27, at 21; Gross, supra note 26, at 313; see also Roger B.
Hanberg, Expert Testimony on Eyewitness Identification: A New Pairof Glasses for the
Jury, 32 AM. Cmnm. L. Rav. 1013, 1022 (1995) (finding that juries usually overestimate the
accuracy of eyewitness testimony).
29. See Watkins v. Sowders, 449 U.S. 341, 352-53 (1981); Manson v. Brathwaite, 432
U.S. 98, 120 (1977) (Marshall, J.,
dissenting) (dealing with the notion of juries being too
ready to believe eyewitness evidence). There are psychological studies that highlight the
weakness of eyewitness testimony. Brathwaite,432 U.S. at 120. Moreover, police officers
and those who have witnessed traumatic events are likely to be erroneously believed based
on a false belief that they have the best memories. See Becerra, supra note 27.
30. EuzAEm F. LoFrus, EYEwrrNEss TESTIMONY 237-47 (1979), quoted in Watkins
v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting). This same incident occurred
in Joyce's case: "'Is the woman who robbed you in the store when your husband was shot
in this courtroom?' Mrs. Danziger looked straight at Joyce and answered, 'It's that woman
sitting right there."' See BROWN, supra note 1, at 18.
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[Vol. 4:45
eyewitness testimony can be unreliable, 31 and jurors are granted immunity once they reach a verdict, unless it can be shown that they acted with
malice. 32 Furthermore, juries are
not liable for wrongful verdicts ren33
dered due to mistaken identity.
William Jackson was convicted due to incorrect eyewitness identification.34 He spent five hard years in the Ohio state penitentiary for the
rapes of two women.3 After five years, the authorities finally discovered
their error.3 6 They realized the wrong man was serving time for a crime
he did not commit.37 Besides the fact that both Jackson and the actual
perpetrator had similar physiques, a face-to-face comparison showed only
a rough resemblance. 38 However, two White women positively identified
William Jackson as the man who committed the crime. 39 Although Wil40
liam provided several alibi witnesses, a White jury still convicted him.
A similar instance of incorrect eyewitness testimony led to Joyce Ann
Brown's wrongful conviction. A major factor in Joyce Ann Brown's
wrongful conviction was incorrect eyewitness testimony. Even though
Joyce had thirteen alibis who said she was at work, none of them were
taken into account. 4 ' Moreover, not only did the eyewitness wrongfully
31. See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69
CORNELL L. REV. 934, 946 (1984) (recognizing a tendency of jurors to believe eyewitness
testimony even under doubtful circumstances); Note, Did Your Eyes Deceive You? Expert
Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L, REV.
969, 994-95 (1979).
32. See Bernhard, supra note 11, at 87 (considering that when jurors convict someone
through unreliable eyewitness testimony they are free from blame); see, e.g., Anthony v.
Baker, 955 F.2d 1395 (10th Cir. 1992); White v. Frank, 855 F.2d 956 (2d Cir. 1988); Nardelli
v. Stanberg, 377 N.E.2d 975 (N.Y. 1978); Martine v. City of Albany, 364 NE.2d 1304 (N.Y.
Ct. App. 1977).
33. Witnesses are protected under the doctrine of immunity as the courts wish that
evidence not be withheld because of a fear of reprisal for a mistaken testimony. See Bernhard, supra note 11, at 87; see also United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995)
(explaining that expert testimony involves cost and risk, and trial judges are typically afforded discretion as to its exclusion).
34. See James Feron, Identification Procedure in Brink's Case Attacked, N.Y. TiMEs,
Sept. 24, 1982, at B2; 60 Minutes: Open-and-Shut Case (CBS television broadcast, Feb. 27,
1983); see also Johnson, supra note 31, at 935 (discussing the problem of cross-racial identification and addressing possible solutions).
35. See 60 Minutes, supra note 34; see also Johnson, supra note 31, at 935.
40. See Johnson, supra note 31, at 935.
41. See Interview with Joyce Ann Brown, supra note 2. Despite thirteen White persons testifying to Joyce Ann Brown being at work, having time cards filled out, and other
paperwork, an all White jury still found her guilty. See id.
2001]
JOYCE ANN BROWN
identify Joyce, she also misidentified David Shafer, the alleged driver of
the getaway car. 2 However, the authorities believed Shafer was telling
the truth.43 They released him twenty-four hours after he was arrested
and noted how Mrs. Danziger, the same lady that misidentified Joyce,
misidentified Mr. Shafer.4"
The possibility that misidentification played a role in Joyce's case was
never considered. Joyce adamantly believes race played a factor in the
release of Shafer as well as in her imprisonment.4" It should have been
unreasonable to believe that the same witness who had misidentified Mr.
Shafer could be trusted to properly identify Joyce 6
2.
Cross-Racial Identification
In addition to the thirteen people who could place Joyce at work dur47
ing the time of the robbery, she had a time card and other paperwork.
Yet, an all-White jury still found her guilty and sentenced Joyce to life in
prison. 48
Further exacerbating the dilemma of inaccurate eyewitness testimony
is that of cross-racial identification. The phenomenon of cross-racial
identification, also referred to as the "own race effect," occurs when one
identifies a member of a different race.49 Scientific proof illustrates that
42. See BROWN, supra note 1, at 14-16. At the time the police booked Joyce Ann,
they asked her about David Shafer. See id. She repeatedly told the officers that she did
not know anybody by that name. See id. Even when he was pointed out to her she did not
know who he was or why he was there. See id.
43. See id. at 16. The police finally believed Shafer, but it was not until they had
pointed a gun at him, accused him of stealing furs, called him a "nigger lover," and arrested
him for aggravated robbery and capital murder. See id.
44. See id. Despite being wrong in their assessment of Shafer's guilt, the police released him without an apology or an explanation. See id. Shafer even had to pay S500 to
have his record cleared. See id.
45. See Interview wvith Joyce Ann Brown, supra note 2.
46. See id. When asked the question, "Why do you believe the white man was released after they investigated his story, and they never considered misidentification on
your behalf?" Joyce responded, "Ooh, I don't even know why you asked me that question.
Because you already answered it just saying 'he was white."' Id.
47. See BROWN, supra note 1, at 18-19. The prosecution made the claim that there
was a thirty-minute gap in Brown's day that was unaccounted for, and that was all that was
necessary. See id. at 19. This would have included leaving her desk, changing, driving
three miles to the fur store, robbing it, shooting the owner, changing again, and heading
back to work during noon traffic in Dallas. See id. at 19.; Interview with Joyce Ann
Brown, supra note 2.
48. See Interview with Joyce Ann Brown, supra note 2.
49. See Johnson, supra note 31, at 937 (showing that cross-racial identification is also
referred to as the "own-race effect").
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[Vol. 4:45
50
people of one race have difficulties in identifying people of other races.
Cross-racial identification occurs disproportionately in cases wherein a
person is deemed to have been wrongfully convicted.51 In fact, within the
last fifteen years, psychologists have found empirical evidence5 2linking
cross-racial identification and incorrect eyewitness identification.
When a person identifies a member of another race, the identification
is four times more likely to be incorrect than when the person identifies a
member of his own race. 3 For instance, a study conducted on convenience store clerks concluded that White clerks incorrectly identified
Black customers at a rate of 54.8 percent, while only misidentifying White
customers 34.9 percent of the time.14 This disparity has also been recog-
nized by a federal court of appeals.5 5 Who noted that "[tihe available
data ...unanimously supports the widely held commonsense view that
members of one race have greater
difficulty in accurately identifying
56
members of a different race."
Furthermore, when it comes to instances of interracial crimes, rates of
misidentification increase.
7
In fact, when identification involves a mi-
nority group suspect and a majority group identifier, error is more likely
to occur.58 For example, in People v. McDonald,5 9 the crux of the case
50. See Gross, supra note 26, at 315 (referring to United States v. Telfaire, which demonstrates the difficulty of one race identifying another).
51. See BORCHARD, supra note 19, at 74-79, 277-80 (discussing several cases involving
cross-racial identification when the identification is incorrectly made); WALL, supra note
27, at 75; Johnson, supra note 31, at 935-36 (stating that a number of wrongful convictions
can be attributed to cross-racial identification).
52. See Johnson, supra note 31, at 936 (reporting the greater number of errors of mistaken identity in cases involving cross-racial identification, and despite evidence pointing
to errors committed by witnesses in cross-racial identification, most judges still do not allow defense counsel to warn the jurors of this potentially fatal form of evidence).
53. See id. at 942-43.
54. See id. at 939-46 (offering a study to support the claim that Whites incorrectly
identify Blacks more than Whites).
55. See United States v. Telfaire, 469 F.2d 552, 559 (D.C. Cir. 1972) (Bazelon, C.J.,
concurring) (holding that the trial court harmlessly failed to give a sta sponte identification
instruction). See generally Macklin v. United States, 409 F.2d 174 (D.C. Cir. 1969) (establishing the requirement necessary to offer a sua sponte identification instruction).
56. Telfaire, 469 F.2d at 559 (Bazelon, C.J., concurring) (showing the most readily
available non-exhaustive data states the difficulty in cross-racial identification); see also
United States v. Downing, 753 F.2d 1224, 1231 (3d Cir. 1985) (discussing the existence of
studies which illustrate that cross-racial identifications are unreliable).
57. See Johnson, supra note 31, at 949 (concluding from data that error occurs more
often in interracial crimes than from intra-racial crime). The risk for misidentification is
highest when there is a White victim coupled with a Black defendant. Id. This type of
own-race identification is strongest when White persons seek to identify Black persons. Id.
58. See id. (looking at the likelihood of error when identification is made by a person
of another race).
2001]
JOYCE ANN BROWN
rested on cross-racial identification; the case was overturned due to the
fact that an expert witness was not allowed to rebut eyewitness
testimony.60
Differences regarding cross-racial identification are not representative
of a particular group's conscious control. 61 Furthermore, in order not to
be perceived as racist, jurors may deny the effects of cross-racial identity
because it is perceived as discriminatory if the accused "all look alike" to
the jurors.6 2 While eyewitness testimony is admissible in most cases, the
law does not require an expert witness to point out possible inaccuracies
that can occur due to cross-racial identification testimony.' In addition,
most judges do not allow the defense counsel to inform the jury of possible cross-racial identification errors.' With this in mind, cross-racial
identification is an important factor in the wrongful conviction of innocent people and needs to be addressed by the legal community.
3. Jury Composition
Jury composition is also a major factor leading to wrongful convic-
tions.65 Most juries in the United States are generally all White. 6 Thus,
with all White juries, issues such as incorrect eyewitness testimony and
cross-racial identification places a minority defendant at a disadvantage.
Furthermore, in failing to explore racial bias regarding jury composition,
59. 690 P.2d 709 (Cal. 1984).
60. See id. See also Gross, supra note 26, at 315 (establishing the fact that cross-racial
identification issues arise in cases, and the courts need to recognize these inconsistencies).
61. See Johnson, supra note 31, at 941. Even in a study offering monetary awards,
people still incorrectly identified people of another race. Id. This points to the idea that
such faulty identification is not within the conscious control of people. See id.
62. Gross, supra note 26, at 315. "[S]ome jurors may deny the existence of the ownrace effect in the misguided belief that it is merely a racist myth exemplified by the derogatory remark, 'they all look alike to me,' while others may believe in the reality of this effect
but be reluctant to discuss it in jury deliberations for fear of being perceived as bigots." Id.
63. See United States v. Brien, 59 F.3d 574 (1st Cir. 1995); Gross, supra note 26, at
315.
64. See Johnson, supra note 31, at 936; see also McFarland v.Smith, 611 F.2d 414,41617 (2d Cir. 1979); United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert.denied, 404
U.S. 833 (1971); State v. Reynolds, 639 P.2d 461, 464 (Kan. 1982); People v. Flinnon, 260
N.W.2d 106 (Mich. Ct. App. 1977); People v. Hears, 18 N.E.2d 922, 923 (N.Y. 1963).
65. See Sheri Lynn Johnson, Black Innocence and the White Jury, 83 Micti. L REv.
1611,1613 (pointing out that racial prejudice still occurs in all White juries). The Supreme
Court has yet to consider the matter of the effect of race in wrongful convictions. See id.
66. See generally JoN M. VAN DYKE,JuRY SEr.EcnoN PRocEDUREs 28-32, app. G
(1977) (showing that non-Whites are underrepresented in juries, thereby making juries
mostly White); Hayward R Alker, Jr., et al., Jury Selection as a Biased Social Process, 11
LAW & Soc'y Rv. 9, 33 (1976) (stating that African and Asian Americans are underrepresented in juries); Johnson, supra note 65, at 1616.
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the Supreme Court has been lenient in applying standards of proof regarding racial discrimination in the jury venires.67 For example, the case
6" demonstrates
of Castanedav. Partida
that standards are more stringent
in cases that require proof of purposeful discrimination rather than in
challenges of racial prejudice due to a jury.69 The Supreme Court held in
the case of Batson v. Kentucky 70 that a prosecutor could exclude a juror
solely on account of his race; if the prosecutor sets forth any race-neutral
reason, the defense still must prove purposeful racial discrimination. 71
Moreover, in four criminal trials, in which the defendants were Black,
it was found that racial prejudice had an influence on the jury in all four
cases. 72 In addition, some jurors felt that Blacks should be convicted simply because of their race.73 Other jurors admitted to having negative and
derogatory views of Blacks that influenced their rulings.74 Also, there are
significant differences in the rates of convictions of Black and White defendants.75 For instance, seventy-seven percent of Black defendants were
67. See Johnson, supra note at 65, at 1614. The Supreme Court has cut back on the
use of preemptory challenges and has been unsympathetic to arguments that racial
prejudice has infected jury deliberations. See id. In addition, the Supreme Court has been
unsympathetic to arguments claiming that racial prejudice impacted a jury's deliberation
process, especially as it relates to death penalty cases. See id. at 1615. See, e.g., Coker v.
Georgia, 433 U.S. 584 (1977) (illuminating where the Court has been unwilling to take into
account racial disparities).
68. 430 U.S. 482 (1977).
69. See id. The case essentially revolves around whether the state of Texas (in the
person of Castenda, the sheriff) was able to rebut Partida's claim of discrimination against
Mexican Americans during grand jury selection. See generally id.
70. 476 U.S. 79 (1986) (holding that the prosecution must exercise preemptory challenges to remove from the venire members of the defendant's race).
71. See generally id. at 96-98 (explaining the factors which lead to an inference of
purposeful discrimination).
72. See Hagan & Albonetti, Race, Class, and the Perception of Criminal Injustice in
America, 88 AM. J. Soc. 329 (1982); see also Johnson, supra note 65, at 1619 (explaining the
results of twenty-three trials between January 1954 and June 1955 that demonstrated racial
prejudice).
73. See Dale W. Broeder, The Negro in Court, 1965 DuKE L.J. 19, 23 (reporting that
one juror voiced there was nothing wrong with convicting an individual based on race); see
also Johnson, supra note 65, at 1619 (looking at situations when White defendants are
acquitted and Black defendants are convicted).
74. See Hagan & Albonetti, supra note 72, at 329; see also Johnson, supra note 65, at
1619 (noting jurors expressed wanting to convict defendants solely because they were
Black).
75. See Jules B. Gerard & T. Rankin Terry, Jr., DiscriminationAgainst Negroes in the
Administration of CriminalLaw in Missouri, 1970 WASH. U. L.Q. 415, 436-37 (1970) (stud-
ying differences in conviction rates of Black from White defendants); see also Johnson,
supra note 65, at 1620 (reporting the findings of three studies that demonstrated substantial
differences in the conviction rates for Black versus White defendants).
2001]
JOYCE ANN BROWN
convicted of crimes, whereas all-White juries convicted only thirty-three
percent of White defendants76
The race of the defendant has an impact on guilty verdicts. White individuals are more likely to find a Black defendant guilty than a White
defendant in a similar situation or circumstance.71 The victim's race also
plays a part in the sentencing of Blacks when jurors are White and the
victim is White.7 8 In that particular case scenario, the Black defendant is
convicted sixty-five percent of the time. 7 9 However, when the victim is
Black, only thirty-two percent voted for conviction of the Black defendant.8' Thus, more weight is attributed to the defendant's guilt if the victim is White rather than Black. Jury verdicts, therefore, are affected by
racial bias.
M.
THE LAW ON WRONGFUL CONVIcriONS
A. The Constitution of the United States
All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws. 8 '
The Supreme Court has identified two basic principles required by the
Fourteenth Amendment's Due Process Clause: fundamental fairness and
rationality.' 2 Furthermore, the Supreme Court has held that states do
76. See Gerard & Terry, supra note 75, at 430 (noting differences in the conviction
rates of Black and White defendants); see also Johnson, supra note 65, at 1621 (demonstrating a significant disparity in the conviction rates of Black and White defendants).
77. See Johnson, supra note 65, at 1625 (detailing findings based on external validity,
where problems might arise due to the fact that subjects know they are being studied).
78. See id. at 1634 (utilizing a study that looked to see if race played a factor in the
decisions of White jurors when faced with a Black defendant).
79. See id. (highlighting a study which indicates that a Black defendant faces a chal-
lenge in proving his innocence to a White jury).
80. See id. (revealing that Black victims must struggle in the face of an all White jury
to win the justice they seek).
81. U.S. CONsr. amend. XIV, § 1.
82. See Schad v. Arizona, 501 U.S. 624, 637 (1991). There cannot be one single criterion for which courts must look to meet with due process; however, it is urged that courts
follow a sense of appropriate specificity when dealing with the due process concepts of
fundamental fairness and rationality. See id. See also Kelli Hinson, Comment, Post-Conviction Determination of Innocence for Death Row Iunates, 48 SMU L REv. 231, 235
(1994).
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not violate the Due Process Clause unless they offend either a fundamen-3
tal principle of justice or a principle that would shock the conscience.
The Supreme Court, however, usually does not use the Due Process
Clause to regulate criminal procedures in the states.' 4 Thus, the State of
Texas has enumerated many constitutional safeguards through its Bill of
Rights.85 Therefore, if one is convicted for a crime in Texas which he did
not commit, the conviction would violate fundamental fairness and shock
the conscience, thereby violating one's constitutional rights. To redress
this violation, an individual is entitled to receive compensation.
Violating one's constitutional rights by sentencing him to a lifetime in
prison at least calls for some type of compensation. No amount of money
could adequately compensate Joyce for the life she lost or the life of her
son Lee Jr. 6 According to Joyce, prison authorities reminded her that
she was less than human when they refused to grant her permission to
attend her son's funeral, despite Joyce not having one single rule infraction in four years.8 7 The last words spoken by her son were, "Mama,
8
when are they going to let you out? We don't have a family anymore."
The state's actions violated both the lives and liberty of Joyce and her
family. Granting Joyce compensation is the least the state of Texas could
do.
83. See Speiser v. Randall, 357 U.S. 513, 523 (1958) (citing Snyder v. Massachusetts,
291 U.S. 97 (1934), which finds that the state may not burden the law so as to violate the
traditional understanding' of justice that is deemed to be fundamental within society); see
also Rochin v. California, 342 U.S. 165, 169 (1952) (holding that due process requirements
"inescapably impose upon this Court an exercise of judgment in order to ascertain whether
they offend those canons of decency and fairness... of English-speaking peoples").
84. See Medina v. California, 505 U.S. 437, 442-43 (1992) (stating that "it has never
been thought that [decisions under the Due Process Clause] establish this Court as a rulemaking organ for the promulgation of state rules of criminal procedure") (quoted in Spencer v. Texas, 385 U.S. 554, 564 (1967)).
85. Tex. CONST. art. I, § 19. The Texas Due Process Clause states, "no citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disenfranchised, except by the due course of the law of the land." Id.
86. See BROWN, supra note 1, at 107. "Your son Lee shot himself iii the head." Id.
This is what Joyce read in a letter to her about her son. See id. Unable at times to call,
Joyce had to wait for letters of her son's condition as she continued to serve a sentence for
a crime she did not commit. See id. at 108.
87. See BROWN, supra note 1, at 108-09. "The next morning, April 5, I was awakened
around mid-morning. I assumed I had a visitor, but when I walked up to the officer in the
pipe chase, she said, 'Joyce, you need to report to the chaplain's office immediately.' I
couldn't move. Without being told, I knew." Id. One thing Joyce did not know was that
the prison officials were about to deny her a chance to say goodbye to her son. See id. at
109. Since she was serving a life sentence, she was ineligible for a furlough; Joyce would
have to settle for a private service with the prison chaplain. See id.
88. Id. at 109-10.
JOYCE ANN BROWN
2001]
B.
The Texas Constitution
The Texas Constitution provides that the Legislature may aid and compensate any person who has either paid a fine or served a sentence in
prison under the laws of Texas for an offense the person did not commit.89 In Texas, an individual wrongfully convicted is entitled to $25,000
dollars due to emotional pain, trauma, or suffering.'
C. Compensation Statute
The Texas Legislature, through a state statute, sets forth the require-
ments for a wrongfully convicted person to receive compensation. 9 Pursuant to Section 103.001 of the Texas Civil Practice and Remedies Code,
a person is eligible for compensation if he or she:
(1) has either completed or has partially served the sentence in a
state institution;
(2) had to plead "not guilty" to the charge that led to the wrongful
conviction;
(3) is not guilty for the crime convicted; and
(4) the wrongfully convicted must have received a full pardon for
the crime in which he or she was wrongfully convicted.'
Although the Texas statute is in place, there are still instances like that
of Joyce, in which those who are wrongfully convicted and served tremendous amounts of their lives in prison are not compensated. One reason
Joyce was not compensated was because she did not wish to receive a
pardon.9 3 She wanted to be exonerated, not forgiven for something she
did not do.
89. TEX. CONST. art. III, § 51(c). The statute reads as follows:
The Legislature may grant aid and compensation to any person who has heretofore
paid a fine or served a sentence in prison, or who may hereafter pay a fine or serve a
sentence in prison, under the laws of this State for an offense for which he or she is not
guilty, under such regulations and limitations as the Legislature may deem expedient.
Id.
90. Tax. Civ. PRAc. & REm. COD ANN. § 103.006(b) (Vernon 1997). Damages assessed for physical and mental pain and suffering may not exceed $25,000. Id. See Cleary,
supranote 8, at 45 (noting that despite the scarcity of compensation funds, the funds do not
really compensate one who had to endure the dangerous, inhospitable prison lifestyle).
One who files suit in federal court will be limited to damages in the amount of $5,000.
Cleary, supra note 8, at 45. Only two states, New York and Tennessee, allow for no maximum for damages of wrongful convictions. Id.
91. See TEx. Crv. PRAC. & REM. CODE ANN. § 103.001.
92. Id.
93. See Interview with Joyce Ann Brown, supra note 2. Determined not to receive a
pardon, Joyce once told the Commissioner that she was not after a pardon but an expunction. Id. She did not want her record to be sealed away for fear that it may come back in
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D. Pardon Statute
If I had gotten out and they had given me a pardon, they would have
given me $25,000. And, it would have been the Joyce Ann Brown
Bill. I wasn't interested in the Joyce Ann Bill, and I wasn't interested in a pardon because a pardon is something that says, "Okay
we've sealed your record, you've been a good little girl, run on."
But, it was still on your record.94
1. Pardons in Texas
Texas is one of the states that have set forth constitutional and statutory laws that allow for different types of clemency for the wrongfully
convicted. 95 One of the requirements to receive compensation for a
wrongful conviction is that a full pardon must be granted."
2.
Definition of Full Pardon
A full pardon absolves an individual freely and unconditionally of the
crime for which he or she has been convicted.9 7
A 'pardon' is a remission of guilt or an act of grace proceeding from
the power entrusted with the execution of the laws, which exempts
the individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed, and that power, under our
Constitution, may be exercised by the President of the United States
and the Governors of the several states. 98
some shape or form. Id. She understood that an expunction would solve the problem by
wiping the slate clean. Id. Also, she felt as though a pardon meant the government acknowledged that you committed the crime, but is letting you go anyway. Id.
94. Id. Joyce never tried to get a pardon. Id. For her, an expunction was the only
way to adequately ensure that she would not have to be haunted by her past. Id.
95. See James C. Harrington, Does Real Innocence Count in Review of Capital Convictions?, 1 TEX. F. ON C.L. & C.R. 38, 38 (1994). Available forms of clemency include, but
are not limited to the following: temporary reprieves, commuted sentences, and unconditional pardons. Id. The same statutes and constitutional provisions that allow for these
types of clemency also limit their availability through various requirements. See id.
96. See TEx. Civ. PRAc. & REM. CODE ANN. § 103.001(4) (requiring a full pardon in
order for someone imprisoned to receive compensation).
97. Carr v. State, 19 Tex. Ct. App. 635, 657-58 (1885) (discussing an example of a full
pardon). A full or absolute pardon unconditionally grants a prisoner his/her freedom. See
id. On the other hand, a conditional pardon does as its name implies and grants a pardon
that is conditioned on certain requirements being fulfilled. See id.
98. Ex parte Rice, 162 S.W. 891, 899 (Tex. Crim. App. 1913) (asserting that absolute
pardon absolves the party from all the legal consequences of his crime). The power of
pardon granting can be seen as far back as the Saxon kings of England. Id. This power
now follows us into our modem history and rests with the executive branch. Id, It is a
2001]
JOYCE ANN BROWN
Examples demonstrating the granting of pardons are provided in the
cases of Ex parteLefors9 9 and Ex parteRice.10 In Lefors, the relator was
sentenced to ten years due to a conviction for theft, but he was granted a
conditional pardon from the governor.' 0 ' This case illustrates that a par-
don is considered an act of grace granted by the Governor upon the recommendation from the Board of Pardons.' 0 2
An individual convicted can seek a pardon subsequent to his or her
conviction. 0 3 For instance, in Hankanterv. Templin,'" an individual was
paroled and received a full pardon after serving partial time on a felony
conviction." 5 This pardon entitles the individual to restoration of citizenship rights, "including competency to testify in any and all courts, together with10full
rights of suffrage and benefits and obligations attendant
6
therewith.'
power that is even recognized by our Constitution in addition to those of the several states.
Id.
99. 303 S.W.2d 394 (Tex. Crim. App. 1957). In this matter, relator seeks a writ of
habeas corpus due to the belief that the sheriff of Dallas County, Texas deprived him of his
liberties. See id.
100. 162 S.W. 891 (Tex. Crim. App. 1913). Appellant served five years of his term and
received a conditional pardon from the governor. See id. Upon violation of the pardon, it
was revoked and appellant now seeks to overturn the decision by way of appeal. See i.
101. See Ex parte Lefors, 303 S.W.2d at 395-96. The conditional pardon required that
relator conduct himself in an exemplary manner. See id. If he failed to do so, then pardon
was revocable at the governor's discretion. See id. In addition, he has to report to a parole
supervisor and promise not to leave the county. See id.
102. See generally id. (illustrating that the power of pardon revocation lies in the
hands of the governor, and the power to keep the pardon valid rests with the pardoned
through compliance with its terms).
103. See generally Camron v. State, 22 S.W. 682, 682 (Tex. Crim. App. 1893) (explaining the pardon process, which is available only after conviction).
104. 187 S.W.2d 549 (Tex. 1945).
105. See Hankanzer, 187 S.W.2d at 549-50. The most pertinent part of the pardon
reads thusly.
I... by virtue of the authority vested in me under the constitution and laws of this
state, upon the recommendations hereinabove cited and for the reasons herein set
out. . ., do hereby grant unto the said HAROLD M. HANKAMER, A FULL PAR-
DON AND RESTORATION OF CITIZENSHIP including competency to testify in
any and all courts, together with full rights of suffrage and benefits and obligations
attendant therewith.
Id.
106. Id. at 550. The retention of citizenship rights is one of the perks of getting a
pardon. See id. One is restored to his original standing in society as far as rights are
concerned with the power to vote and to testify. See id.
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3.
[Vol. 4:45
Procedure for Obtaining Pardons
The Governor has the authority to grant pardons based on the recommendations of the Board of Pardons and Paroles, which was established
by Article IV of the Texas Constitution and codified in Section 48.01 of
the Texas Criminal Procedure Code.10 7 The Board researches and collects information in order to provide their recommendations to the Governor so that he may make decisions regarding granting pardons.10 8 They
are also responsible for keeping records and explanations for their
actions. 0 9
In Ex parte Ferdin,1" 0 the defendant was sentenced to two years in the
penitentiary for a charge of burglary; he was granted a conditional pardon from the Governor based on the recommendations of the Board of
Pardons and Paroles."' In this process, the Board of Pardons and Paroles makes the recommendations, which are then sent to the Governor,
and once he receives the recommendation, the Governor can accept or
reject the Board's recommendation for pardons, as well as grant something less."' The Governor, in reviewing the cases after one is convicted,
has the authority to grant pardons if the conviction rests on a criminal
107. See TEx. CONST. art. IV, § 11(b). It reads as follows:
In all criminal cases, except treason and impeachment, the Governor shall have
power, after conviction, on the written signed recommendation and advice of the
Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishments and pardons; and under such rules as the legislature may proscribe, and upon the written recommendation and advice of a majority of the Board of
Pardons and Paroles, he shall have the power to grant one reprieve in any capital case
for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason.
Id. See also TEx. CODE CriM. PROC. ANN. art. 48.01 (Vernon 1979).
108. See TEx. CONsT. art. IV, § 11(b); TEx. CODE CM. PROC. ANN. art, 48.01; Ex
parte Ferdin, 183 S.W.2d 466,466 (Tex. Crim. App. 1944); Harrington, supra note 93, at 38.
109. See TEx. CODE CuM. PRoc. ANN. art. 48.01; Ex parte Ferdin, 183 S.W.2d at 466;
Harrington, supra note 93, at 38.
110. 183 S.W.2d 466 (Tex. Crim. App. 1944).
111. See id. The pardon is conditioned on Ferdin's proper behavior and is revocable
at the Governor's discretion. See id. It also calls for his return to the penitentiary to serve
out his term. See id. See generally Jones v. State, 147 S.W.2d 508 (Tex. Crim. App. 1941)
(noting that the power of enforcement and penalty collecting lie with the governor).
112. See Harrington, supra note 95, at 38. It is impermissible for the Governor to
grant greater clemency than the Board recommends. See id. The only other authority
granted the governor in the matter of clemency is the ability to give a one-time, thirty-day
stay of execution. Id.
2001]
JOYCE ANN BROWN
upon the recommencharge.' 13 The Governor makes his decisions based
14
dations of the Board of Pardons and Paroles.
However, the recommendations made by the Board are not binding on
the Governor.' 5 The Governor has the authority to exercise executive
clemency without any limitation from the legislature unless a specific con-
stitutional provision is mentioned."
6
For example, the Governor of
Texas has used his sole power in granting clemency for a person who was
convicted of a misdemeanor theft in district court.11 7 The Governor of
Texas has also granted clemency in the form of parole to an individual
118
serving a twenty-five year prison sentence for the crime of murder.
Although the Board of Pardons and Paroles made the recommendation,
it was the exclusive authority vested in the Governor that allowed for the
order granting clemency." 9 The Governor also has the authority to grant
an order of something less than the Board suggests; however, the Governor does not have the right to grant something greater than the Board's
recommendation. 2'
4. Pardons and the Courts
The Texas Court of Criminal Appeals, which is the highest court for
criminal justice in Texas, also has an impact on the Texas clemency procedure. The Texas Court of Criminal Appeals has a history of handing
113. TEx. CONST. art. IV, § 11. However, the governor cannot grant pardons in cases
where treason and impeachment are involved. See id.
114. Id.
115. See Ex parte Ferdin, 183 S.W.2d at 467. There is no power to bind the governor
to any recommendation made by the Board of Pardons and Paroles; the decisions are
made to assist him to make the best informed decision possible. See id. As long as the
governor acts within the law pertaining to pardons, there is nothing the courts can do to
remedy any decision that he may make within his enumerated powers. See id.
116. See Ex parte Nelson, 209 S.W. 148, 149 (Tex. Crim. App. 1919) (describing the
Governor's authority to exercise executive clemency). The Legislature does not have the
power to enlarge or restrict a pardon, nor to alter conditions established on the pardon.
See id.
117. See generally Exparte Green, 295 S.W. 910 (Tex. 1927) (showing that the governor granted a pardon which was revoked upon the relator's failure to comply with its
terms); Ex parte Black, 59 S.W.2d 828, 828 (Tex. Crim. App. 1933) (discussing the governor's grant of clemency due to the health of the prisoner).
118. See generally Ex parte Nelson, 209 S.W. at 149 (discussing the clemency order
issued by the Governor of Texas). Robert Nelson was sentenced to a five to twenty-five
year term for a murder conviction. See id. After serving a little over a year of his sentence,
he was paroled by then Governor Hobby. See id.
119. See Tax. CONsT. art. IV, § 11; Ex parte Nelson, 209 S.W. at 149 (explaining
through section 11, article 4 of the Texas Constitution and through various cases the governor's power of clemency); Harrington, supra note 95, at 38.
120. See TEx. CONsT. art. IV, § 11; Harrington, supra note 95, at 38-39.
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down harsh procedural decisions that make it difficult for the innocent to
receive clemency.''
Until very recently, their decisions over claims
based on newly discovered evidence that shows actual innocence have
not been given any judicial consideration.12 2 The court finds that these
claims have to be made within the proscribed procedural time frame of
thirty-days after the judgment is signed, during which a motion for new
trial can be made."2 Thus, in order for a wrongfully convicted person to
gain release more than thirty days after a judgment, that person must rely
on the pardon procedure. This reliance results in a nearly impossible
threshold to cross.
In Gilbert v. State,'24 the plaintiff was denied compensation in a suit
against the state based on a wrongful imprisonment claim.' 25 Gilbert did
not meet the last requirement of the compensation statute because he did
not receive a full pardon from his conviction) 2 6 In this case, no pardon
was available because the plaintiff was granted a new trial and his charges
were dismissed. 27 The court held that because Gilbert sought relief by
way of habeas corpus through federal court, instead of by1 way
of a par28
don under state law, he was not entitled to compensation.
121. See Harrington, supra note 95, at 39; see also Ex parte Graham, 853 S.W.2d 564
(Tex. Crim. App. 1993) (en banc); Ex parte Binder, 660 S.W.2d 103, 106 (Tex. Crim. App.
1983) (en banc).
122. See Harrington, supra note 95, at 39; see also Ex parte Graham, 853 S.W.2d at
564; Ex parte Binder, 660 S.W.2d at 106.
123. See Harrington, supra note 95, at 39. Texas politicians reflect the state's vast
popular support of the death penalty. See id. This creates an atmosphere in which a person must overcome an almost impossible threshold to receive a pardon. See id. See also
Ex parte Graham, 853 S.W.2d at 564; Ex parte Binder, 660 S.W.2d at 106.
124. 437 S.W.2d 444 (Tex. Civ. App. - Houston [14th Dist.] 1969, writ denied)
125. Gilbert, 437 S.W.2d 444 (introducing the civil appellate courts' interpretation of
pardon statutes), see also Bohm v. Alaska, 320 F.2d 851, 852 (9th Cir. 1963); See generally
United States ex rel. Elliott v. Hendricks, 213 F.2d 922, 926 (3rd Cir. 1954); Jones v. Biddle,
131 F.2d 853, 854 (8th Cir. 1942).
126. See Gilbert, 437 S.W.2d at 445. This highlights the difficulty in receiving compensation when wrongfully convicted. See id. It is an unreasonable hurdle, and one that society ought not require one to achieve. See id. The state is basically saying that
compensation is only available when the governor feels like giving it. See id. Something so
tied to due process and liberty ought not be left up to the whims of a state governor. See
id. See generally TEx. Civ. PRAc. & REM. CODE ANN. § 103.001(4) (Vernon 1997).
127. See Gilbert, 437 S.W.2d at 445. Gilbert was simply not convicted of anything for
which he could be pardoned. See id. This does not take away from the fact that he served
a prison term under a wrongful conviction. See id. The government is saying that because
his conviction was of a certain type it should not merit compensation; however, Willie
Gilbert still had to face all the harsh realities prison life had to offer. See id. His conviction may not have been deemed deserving of compensation, but certainly his time away
from his home, his job, and freedom ought to entitle him to monetary recognition of his
false incarceration. See id.
128. See id. at 445-46 (pointing to the fact that there is no compensation for Gilbert).
2001]
JOYCE ANN BROWN
In the case of Ashford v. State,129 the plaintiff met the elements required by the statute, but was denied relief because he was granted a new
trial once his conviction was reversed and remanded.130 The court affirmed the trial court's findings that the full pardon granted by the Governor of Texas was not valid because at the time the pardon was granted,
no convictions remained and there was nothing to pardon. 13' Without
the pardon, Ashford did not meet the statutory elements required for
compensation.
32
In Joyce Ann Brown's case, she did not want to receive a pardon.1
After living a nightmare in prison for nine years, five months, and twentyfour days for a crime she did not commit, she could not bring herself to
seek a pardon.1 33 Although obtaining a full pardon was the only way that
compensation could have been obtained, Joyce's pride was worth more
than money. In order to receive a pardon, Joyce would have to settle for
"an act of grace" from the Governor for a crime she did not commit.
Joyce stated that she "wasn't interested in a pardon because a pardon is
something that says, 'okay, we've sealed your record, you've been a good
little girl, run on,' but it was still on your record."" After the pain Joyce
Ann Brown had endured, she could never say "I did it, please forgive
me," for a crime that she was innocent of committing. 35 Joyce felt that
receiving a pardon would be equivalent to saying that she committed the
crime and the state of Texas was dismissing it. 13 6 Joyce has emphasized
that "[tihe state could take [her] freedom, but that was all they were going to get from [her].' 3 7
129. 515 S.W.2d 758 (Tex. Civ. App. - WVaco 1974, no writ).
130. See id. Arnold Ashford was convicted of the felony offense of theft. See id. The
jury found him guilty and sentenced him to eight years in the state penitentiary. See id.
After some two years of serving time, he was granted a pardon from the governor. See id.
He sought compensation for his time in prison. See id. (holding that Gilbert failed to establish two elements of his cause of action).
131. See id. at 759-60 (affirming the trial court's authority to find the pardon void); see
also Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968) (outlining the presumption
necessary to find that evidence introduced supports the findings of the trial court); Hassell
v. New England Mutual Life Ins. Co., 506 S.W.2d 727 (Tex. Civ. App. - Waco 1974, writ
ref'd); Alexander v. Bank of Am. Nat'l Trust & Say. Ass'n, 401 S.W.2d 688 (Tex. Civ. App.
- Waco 1966, writ ref'd).
133. See BRowN, supra note 1, at 177.
134. Interview with Joyce Ann Brown, supra note 2.
135. See id.
136. See id. "I don't need a pardon because that's like telling me that I committed
that crime and they just dismissed it." Id.; see BROVN, supra note 1, at 7.
137. BRowN, supra note 1, at 7.
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[Vol, 4:45
E. Expunctions
Expunction is a process by which an individual's criminal conviction is
erased or removed from his record.'
Once an expunction is granted,
officials and agencies with access to any arrest records or files must produce all records and files, and then deposit them with the court. 13 9 However, if removal of the records and files is impractical, then the records
and files should be destroyed. 40 Once those procedures take place, the
records and files are deleted from the individual's public record. 4 1 The
expunction order proceeding is then only available for inspection by the
person who is the subject of the expunction.1 42 As a result, the deletion
of all records and files in an expunction allows a person's name to be
cleared of any arrest or conviction, and he receives all of the applicable
records. 4 3
138. BLACK'S LAW DiCrnONARY 603 (7th ed. 1999). The expungement of record is the
removal of a conviction from a person's criminal record. Id.
139. See TEx. CODE CRiM. PROC. AN. art. 55.02 § 5(a)(1) (Vernon Supp. 1999). The
applicable portion is found in the procedure for expunction portion of § 5:
Section 5. (a) On receipt of the order, each official or agency or other entity named
in the order shall:
1. return all records and files that are subject to the expunction order of the court or,
if removal is impracticable, obliterate all portions of the record or file that identify the
petitioner and notify the court of its action.
Id.
140. See id.
141. See id. § 5(a)(2). In addition to the requirements of § 5(a)(1), the following is
required:
Section 5. (a) On receipt of the order, each official or agency or other entity named
in the order shall:
(2) delete from its public records all index references to the records and files that are
subject to the expunction order.
Id.
142. See id. § 5(c). The code also calls for the following:
(c) If an order of expunction is issued under this article, the court records concerning
the expunction proceeding are not open for inspection by anyone except the petitioner
unless the order permits retention of a record under Section 4 of this article and the
petitioner is again arrested for or charged with an offense arising out of the transaction for which he was arrested.
Id.
143. Id. § 5(b). This section reads thusly:
(b) The court may give the petitioner all records and files returned to it pursuant to its
order.
Id.
2001]
JOYCE ANN BROWN
The expunction process has a positive effect because the individual
gains certain safeguards.' 4 For example, the release of the expunged record is prohibited.' 4 5 Also, if no exceptions apply, the person subject to
the expunction order is entitled to deny the existence of the arrest and
expunction order. 1 46 If asked about the arrest in a criminal proceeding,
petitioner or another person may only state that it has been expunged.147
The expunction provision is only intended for people who are not
guilty of a crime.' 4 Thus, expunctions are not granted to those who are
arrested, plead guilty to the crime, and receive probation as a result of the
offense. 49 Because expunctions are civil in nature, the party who applies
for an expunction must meet the burden of proof in order to have his
record deleted. 5 0
144. See TEx. CODE CRim. PROC. ANN. art. 55.03(1) (Vernon Supp. 1999). 'The release, dissemination, or use of the expunged record is prohibited after an expunction order
is entered. Id.
145. See Tax. CODE CRIM. PRoc. ANN. art. 55.03(2) (discussing the rights of the petitioner under an order for expunction).
146. TEx. CODE CRim. PROC. ANN. art. 55.03(3). Exceptions apply in a criminal proceeding when the person is questioned under oath about the expunction proceeding; however, the person may state only that the issue in question has been expunged. See id.
147. See id.
148. See generally Harris County Dist. Attorney's Office v. J.T.S., 807 S.NV-d 572
(Tex. 1991) (noting that expunction law was not intended to allow a person who pleads
guilty to expunge their arrest and court records); State v. Arellano, 801 S.W.2d 128 (Tex.
App. - San Antonio 1990, no writ) (discussing legislative intent of the expunction statute
and the fact that it applies retroactively); Tex. Dep't of Pub. Safety v. Failla, 619 S.W. 2d
215 (Tex. Civ. App. - Texarkana 1981, no writ) (presenting a petitioner for expunction who
plead guilty to a misdemeanor theft); 27 Ta. JUR. 3D Criminal Law §§ 4404-08 (1983)
(outlining the procedure, effect, and right to an expunction).
149. See generally Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318 (Tex. App. Corpus Christi 1997, no writ) (reiterating that a plea of guilty resulting in probation renders expunction inapplicable); Moore v. Dallas County Dist. Attorney's Office, 670 S.W2d
727 (Tex. App. - Dallas 1984, no writ) (holding that grant of probation prohibits right of
expunction); Tex. Comm'n on Law Enforcement Officers Standards & Educ. v. Vatlington, 656 S.W.2d 666 (Tex. App. -Tyler 1983, writ denied) (stating that expunction is available only when statutory conditions have been met); Failla,619 S.W.2d at 215 (illustrating
that one who pleads guilty and is put on probation cannot be granted an expunction).
150. See Harris County Dist. Attorney's Office v. Lacafta, 965 S.W.2d 568, 569 ('rex.
App. - Houston [14th Dist.] 1997, no pet.) (quoting Tex. Dep't of Pub. Safety v. Wiggins,
688 S.W.2d 227,229 ('rex. App. - El Paso 1985, no writ)); Thomas v. State, 916,916 S.NV2d
540, 543 (Tex. App. - Waco 1995, pet. denied) (quoting Harris County Dist. Attorney's
Office v. Burns, 825 S.W.2d 198,202 (Tex. App. - Houston [14th Dist.] 1992, pet. denied));
Ex parte Scott, 818 S.W.2d 226, 226-27 ('rex. App. - Corpus Christi 1991, no wrTit); rex.
Dep't of Pub. Safety v. Wiggins, 688 S.W.2d 227, 229 ('rex. App. - El Paso 1985, no writ).
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[Vol. 4:45
1. Entitlement to an Expunction
An individual is entitled to an expunction pursuant to the Texas Code
of Criminal Procedure.'' Article 55.01 not only sets out the requirements for an individual to receive an expunction, but also illustrates the
factors that can prevent one from obtaining an expunction.'i 2 The two
pertinent subsections of Article 55.01 of the Texas Code of Criminal Procedure dealing with expunctions will be discussed.
First, Article 55.01(a) of the Texas Code of Criminal Procedure allows
an individual to expunge his or her record if they were arrested for either
153
a felony or a misdemeanor and if certain other conditions are met.
Once an applicant proves that he is eligible under this part of the section,
.4
the court is not allowed discretion to refuse to expunge the records1
The primary purpose of subsection (a) is to allow expunctions for those
who are wrongfully arrested.'
55
151. See TEx. CODE CRIM. PRoc. ANN. art. 55.01; see also Harris County Dist. Attorney's Office v. Pennington, 882 S.W.2d 529, 530 (Tex. App. - Houston [1st Dist.] 1994, no
writ) (quoting Wilkomirski v. Tex. Criminal Info. Ctr., 845 S.W.2d 424, 126 (Tex. App. Houston [1st Dist.] 1994, no writ)). A person may only have their record expunged when
all of the statutory conditions are met. See id.
152. See TEx. CODE CRIM. PROC. ANN. art. 55.01 (Vernon Supp. 1999).
153. Id. § a (demonstrating the conditions which must be met in order for one to
obtain an expunction). The conditions for expunction of criminal records are as follows:
(a) A person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging him with commission of a felony
has not been presented against him for an offense arising out of the transaction for which he was arrested or, if an indictment or information charging
him with commission of a felony was presented, it has been dismissed and the
court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence
of probable cause at the time of the dismissal to believe the person committed
the offense or because it was void;
(B) he has been released and the charge, if any, has not resulted in a final
conviction and is no longer pending and there was no court ordered probation
under Article 42.12, Code of Criminal Procedure, nor a conditional discharge
under Section 481.109, Health and Safety Code; and
(C) he has not been convicted of a felony in the five years preceding the date
of the arrest.
Id.
154. See id.; Ex parte Current, 877 S.W.2d 833, 836 (Tex. App. - Waco 1994, no writ).
155. See J.T.S., 807 S.W.2d at 574; Harris County Dist. Attorney's Office v. R.R.R.,
928 S.W.2d 260, 264 (Tex. App. - Houston [14th Dist.] 1996, no writ).
2001]
JOYCE ANN BROWN
Second, Article 55.01(b) of the Texas Code of Criminal Procedure pro-
vides that unless subsection (c) applies, a district court has the discretionary power to expunge the records of one arrested due to a felony or a
misdemeanor pursuant to Article 55.02, which identifies the procedure
for an expunction if certain requirements are met.156 Article 55.01(b)
gives the court discretion to expunge an individual's records."
Even if
one meets all the requirements under this subsection, the discretion to
issue the expunction is still placed with the trial court.158 Furthermore,
under subsection (b), the court's decision is reviewed pursuant to the
abuse of discretion standard, which means the previous court decision is
unlikely to be overturned.' 59
2. Distinct Differences in the Statutes
The confusing requirements of subsections (a) and (b) of Article 55.01
are expressly illustrated in the case of Ex parte Current.""' In that case,
the petitioner Carl Current moved to expunge his record of a prior conviction for the burglary of a building.' 61 However, the District Attorney's
156. TEx. CODE CRiM.PROC. ANN. art. 55.01(b) (laying out the foundations for receiving an expunction under this subsection). To expunge one's record under Article
55.01(b), the following applies:
(b) Except as provided by Subsection (c) of this section, a district court may expunge
all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article
55.02 of this code if the person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
Id.; see also Tmx. CODE Ctmi. PROC. ANN. art. 55.02.
157. See Ex parte Current, 877 S.W.2d at 836.
158. See id. See also Barlow v. Lane, 745 S.W.2d 451,453-54 (Tex. App. - Waco 1988,
writ denied).
160. See TEx. CODE CraM. PROC. ANN.arts. 55.01(a), 55.01(b). See generallyErparte
Current,877 S.W.2d 833 (discussing whether Article 55.01 can be applied if not reversed
by the court of criminal appeals). The case centers around the following:
The two sections of this statute are distinctly different. Section (a) provides for an
entitlement to the expunction of the criminal records. Once an applicant demonstrates
his eligibility under the provisions of this section, the court does not have the discretion to refuse to order the records expunged. Section (b), however, states that the
court "may" expunge records; thus, an applicant who meets the criteria of this section
places the decision on the motion to expunge within the sound discretion of the trial
court.
Current 877 S.W.2d at 834 (emphasis added).
161. See id. at 835. Carl Current was convicted by a jury for the crime of burglary, but
the Court of Appeals determined the evidence to be insufficient and remanded the case to
the trial court for an acquittal. Id.
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[Vol. 4:45
Office argued that "Current was not eligible for an expunction because
the indictment had not been dismissed."' 6 2 The court reviewed this case
by considering Current's entitlement to an expunction under the strictly
applied Article 55.01.163 The court went to extensive lengths 64to clarify
the distinction between subsections (a) and (b) of the statute.
First, the court evaluated subsection (a) of the statute. 165 The court
concluded that Current did not meet any of the conditions that would
afford him an expunction under subsection (a).' 6 6 The court then considered Article 55.01(a)(1)(B). That subsection applied to a pardon and was
not at issue in this case, so it is not applicable.' 67 Next, the court reviewed Article 55.01(a)(1)(A) of the statute, in which there is a requirement that an individual prove that the trial court acquitted him.1 68 This
subsection also did not apply because a jury convicted Current, thus he
was not entitled to an expunction under this subsection. 69 Furthermore,
subsection (a)(2) of Article 55.01 is not applicable because Current did
not complain as to a dismissal of an indictment. 70
The court then applied subsection (b) to Current's case, which only
"applies when a conviction is reversed by the court of criminal appeals.'' Current believed that he was entitled to an expunction because
he was acquitted. 72 However, the appellate court ordered the acquittal
that instructed the trial court to sign the judgment; thus, in reality, the
trial court did not acquit Current. 7 3 Since the Court of Appeals, and not
162. Id. Because the indictment was dismissed, Current is not entitled to an expunction of his records under Article 55.01 (a)(2). Id. See Harris County Dist. Attorney's Office V. M.G.G., 866 S.W.2d 796, 798 (Tex. App. - Houston [14th Dist.] 1993, no writ)
(explaining that in order to receive an expunction, a petitioner has the burden of proof to
prove he has met the requirements); see also Tnx. R. EVlD. 201 (stating that the court has
the right to take notice of an indictment not being dismissed); Holley v. Holley, 864 S.W.2d
703, 706 (Tex. App. - Houston [1st Dist.] 1993, writ denied).
163. See Ex parte Current, 877 S.W.2d at 835. The court looked at the various provisions within Article 55.01 to determine Current's ability to receive an expunction of his
records for the crime of burglary. See id.
164. See id. at 836; TEx. CODE CRiM. PROC. ANN. arts. 55.01(a), 55.01(b).
165. See Ex parte Current, 877 S.W.2d at 835-37.
166. See id. at 837; see also TEx. CODE CriM. PROC. ANN. art. 55.01(a)(1)(B).
168. See id at 837; see also Tnx. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A).
170. See id. at 836.
171. TEx. CODE CuM. PRoc. ANN. art. 55.01(b); see Ex parte Current,877 S.W.2d at
837.
172. See Ex parte Current,877 S.W.2d at 836 (noting Current's reasoning for believing
in his right to have his record expunged).
173. Id. "We do not believe that this subsection applies when an acquittal is ordered
by an appellate court, even though the trial court may actually sign the judgment of acquittal." Id. at 837. See TEx. CODE CRIM. PROC. ANN. art. 55.01(b).
20011
JOYCE ANN BROWN
the trial court, ordered the acquittal, Current was not eligible to receive
an expunction under a literal interpretation of 55.01(b).1 74
In order for the court to interpret the statute, the court must look to
the plain language of the statute.1 7 If the language is found to be clear
and unambiguous, then the court does not make any changes to the law
and goes forward with the legislative intent. 6 In Current's case, the
court believed that a literal reading of the statute would lead to an absurd
result.1 77 The court rationalized that the "legislature's clear intent was to
formulate a remedy that allows the innocent to clear their records of the
offense, regardless of when they were found to be innocent." 178 Therefore, the court ordered that Current was eligible to have his case considered for expunction pursuant to subsection (b) of Article 55.01.179 The
court reiterated, that while they felt that Current was eligible to have his
record expunged, the trial court still had the authority to exercise its discretionary power in determining whether Current's records were actually
entitled to be expunged.' 8 0
However, the court does provide for changes when it feels that the statute's language will lead to absurd consequences that the legislature did
not intend.' 8 ' There can be nothing more absurd than a person's record
being permanently ruined because the court refused to clear it due to a
procedural hurdle that makes it more difficult for the innocent to clear
their name and good standing in the community. A wrongfully convicted
person ought not be denied the right to expunge his record because of a
mere formality that is inconsistent with a sense of fairness and justice.
The case of HarrisCounty DistrictAttorney's Office v. Jimenez"s also
illustrates the distinction between subsections (a) and (b) of Article
174. See Ex parte Current, 877 S.W.2d at 837; see also Tax. CODa CInM,. PRoc. A,,%-.
art. 55.01(b); see also Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App. 1993) (Baird, J.,
concurring) (holding that despite an appellate court ordering the lower court to acquit
someone of an offense, it is ultimately the appellate court and not the trial court who
renders the judgment).
175. See Ex parte Current, 877 S.W.2d at 837; Boykin v. State, 818 S.W.2d 782, 785
(Tex. Crim. App. 1991).
176. See Ex parte Current, 877 S.W.2d at 837; Boykin, 818 S.W.2d at 785.
178. Id. at 839. But see Herron v. State, 821 S.W.2d 329 (Tex. App. - Dallas 1991, no
writ) (holding that the court of appeals does not have the power to extend the meaning of
the expunction statute).
179. See Er parte Current, 877 S.W.2d at 840.
180. Id. (emphasis added).
181. See id. at 837. "There is of course, a legitimate exception to this plain meaning
rule: where application of a statute's plain language would lead to absurd consequences
that the Legislature could not possibly have intended, we should not apply the language
literally." Id. at 837 (quoting Boykin, 818 S.W. 2d at 785).
182. 886 S.W.2d 521 (Tex. App. - Houston [1st Dist.] 1994, urit denied).
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55.01.183
[Vol, 4:45
Jim Jimenez was acquitted for sexual assault and then at-
tempted to expunge his criminal record." 8 Although the Jimenez court
agreed in part with the holding in Current,concerning subsection (a) of
the statute, the court did not have the same opinion of the Current court's
finding of subsection (b).'8 5 The district court in Jimenez granted an expunction, but the Court of Appeals reversed and ordered that the expunction be denied. 8 6 First, the Court of Appeals considered the
mandatory expunction statute under Article 55.01(a)(1)(A). 8 7
The Court of Appeals reviewed the matter to determine which court,
the trial or appellate court, granted Jimenez's acquittal.'8 8 This distinction was imperative because an acquittal by the trial court would then
make Jimenez eligible for an expunction; however, if the trial court did
not grant the expunction, the right to an expunction would be regarded as
discretionary.' 8 9 The Jimenez court followed Current's first holding
which stated that Article 55.01(a)(1)(A) is not applicable to acquittals
made by the Court of Appeals. 9 Thus, Jimenez was not granted a
mandatory expunction because he was acquitted by the appellate court
rather than by the trial court.
183. See generally Jimenez, 886 S.W.2d at 523 (holding that the judgment be reversed
and rendering that the expunction be denied); see also TEx. CODE CRIM. PROC. ANN. arts.
55.01(a), 55.01(b) (Vernon Supp. 1999).
184. See Jimenez, 886 S.W.2d at 522. Jimenez was granted the expunction after he
received an acquittal for sexual assault allegations brought against him by the Harris
County District Attorney's Office. See id.
185. See id. at 522-23. This court agreed with the Current court, in that Article
55.01(a)(1)(A) does not apply to cases in which an acquittal is ordered by a court of appeals. Id. at 522. Therefore, neither Jimenez nor Current is entitled to an expunction
under that provision. See generally TEx. CODE CruM. PROC. ANN. art. 55.01(a); Ex parte
Current, 877 S.W.2d at 840.
186. See Jimenez, 886 S.W.2d at 523.
187. Id. at 522 (citing Ex parte Currentand aligning itself with that opinion and stating
that it was the Court of Appeals that granted the expunction and not the trial court as
necessitated under Article 55.01(a)(1)(A)); see TEx. CODE CRIM. PROC. ANN. art. 55.01
(a)(1)(A).
189. See id. (stating the expunction right is discretionary because the statute states
that when a court of criminal appeals acquits a person, the "district court may expunge all
records") (emphasis in original). But cf. Herbert v. State, 827 S.W.2d 507, 508 (Tex. App.
- Houston [1st Dist.] 1992, no writ) (demonstrating that it is possible to lose rights due to a
trial judge's error); Winter v. State, 725 S.W.2d 728, 731-34 (Tex. App. - Houston [1st
Dist.] 1980, no writ) (Cohen, J., concurring) (furthering the notion that rights may be lost
because of error created by the trial judge).
190. See Jimenez, 886 S.W.2d at 522. The court takes into account the legislative intent and determines that an acquittal by an appellate court cannot be held in the same light
as an acquittal granted by a trial court. Id. See also Ex parte Current, 877 S.W.2d at 836
(stating that the subsection does not apply when the appellate court orders a person's
acquittal).
2001]
JOYCE ANN BROWN
Next, the court reviewed article 55.01(b)(3) and concluded that an expunction granted under these terms would violate the plain meaning of
the statute.'
The Court of Appeals found that the intent of 55.01(b)
was to have expunctions occurring after appellate acquittals to be discretionary rather than mandatory. 192 Furthermore, the court felt that the
statute was clear in its intentions, and that the provision granting discretion to the trial court following an acquittal by the Court of Criminal
Appeals could not be read as an acquittal by any appellate court. 193
3. Liberal Application of the Statutes
The court in Harris County DistrictAttorney's Office v. R.R.R.' 94 explains why Article 55.01 of the Code of Criminal Procedure should be
construed liberally. 95 When the grand jury did not indict appellee for
the offense of aggravated sexual assault, he sought an expunction of his
records; however, the state again presented the complaint that resulted in
a second grand jury indictment.' 96 The appellee filed a motion to quash
the indictment entered by the second grand jury; the appellee argued that
insufficient information was presented and critical information was not
mintroduced to the second grand jury. 197 The second grand jury indictment
was eventually quashed, and the appellee again filed for the expunction
191. See Jimenez, 886 S.W.2d at 523 (disagreeing with the holding in Current that the
legislature's words should be defined more broadly to encompass more expunction possibilities); see also TEX. CODE CRM. PROC. ANN. art. 55.01(b)(3) (requiring an acquittal by
the criminal court of appeals) (emphasis added); Board of Ins. Comm'rs v. Guardian Life
Ins. Co., 180 S.W.2d 906, 909 (Tex. 1944) (claiming that a second-guessing of the legislature's intent will bring about "disastrous or mischievous results").
192. See Jimenez, 886 S.W.2d at 523. "We do not agree with the statement in Current
that the statute is nonsensical if it allows expunction after appellate acquittals only by the
Court of Criminal Appeals." Id. But see Exparte Current,877 S.W.2d at 839 (holding that
the language of 55.01(b)(3) could be applied to any appellate court which had criminal
jurisdiction).
194. 928 S.W.2d 260 (Tex. App. - Houston [14th Dist.] 1996, no writ).
195. R.R.R., 928 S.W.2d at 263 (holding that the quashing of the indictment met the
requirement that the indictment needed to have been dismissed). See Jimenez, 886 S.W.2d
at 521.
196. See R.R.R., 928 S.W.2d at 261.
197. Id. (asserting four points of error first, he was not permitted to offer testimony
to the second grand jury, second, information such as appellee passing a polygraph test was
eliminated; next, information due to the complainant's mental illness which affected his
credibility was withheld; finally, inconsistencies concerning the testimonies of the complainant and his mother were disregarded).
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[Vol. 4:45
an expunction purof his records. 198 The trial court granted the appellee
99
suant to Article 55.01 of the expunction statute.
Following a challenge by the district attorney, the Court of Appeals
affirmed the trial court's ruling ordering an expunction of criminal
records by looking at the legislative intent of Article 55.01. in reviewing
the requirements of a dismissal.20 0 The Court of Criminal Appeals concluded that the legislative intent would be thwarted if an individual's
records were not expunged following a wrongful arrest.2 0 ' The court held
that the order from the trial court quashing the indictment was equivalent
to a dismissal of that indictment. 0 2 Subsequently, the court concluded
that when an "indictment was dismissed because 'its presentment was the
result of mistake, false information, or other similar reasons indicating
absence of probable cause' and was not 'so against the great weight and
preponderance of the evidence as to be manifestly unjust"' that the individual was entitled to an expunction. °3
Even though the court did not have the equitable power to extend the
clear meaning of the statute, it nonetheless has construed the statute liberally on the grounds that it is remedial in nature." ° Because the statute
is remedial in nature, applying the statute strictly would defeat the purpose for which the statute was intended." 5 The intent of the legislature
and the reason for Article 55.01 would be nullified if the appellee's record
was not expunged.20 6 Thus, the statute should be construed liberally so
198. Id. (alleging that the indictment was due to mistake, false information, or similar
reasons because evidence was withheld from the grand jury).
199. Id. at 264-65 (finding that the indictment was a result of mistake, false information, or reasons which are similar).
200. Id.
201. Id. at 264.
202. Id. at 263.
203. Id. at 265; see also Harris County Dist. Attorney's Office v. Burns, 825 S.W.2d
198 (Tex. App. - Houston [14th Dist.] 1992, writ denied); Cyrus v. State, 601 S.W.2d 776
(Tex. Civ. App. - Dallas 1980, writ ref'd n.r.e.). But see Texas Dep't of Pub. Safety v.
Katopodis, 886 S.W.2d 455 (Tex. App. - Houston [14th Dist.] 1994, no writ) (finding that
when the dismissal of one's indictment was due to false information or mistake, there was a
lack of probable cause that the defendant is entitled to an expunction).
204. See R.R.R., 928 S.W.2d at 263; Harris County Dist. Attorney's Office v. Pennington, 882 S.W.2d 529, 530 (Tex. App. - Houston [1st Dist.] 1994, no writ) (reasoning
that since the expunction statute is remedial, it should be construed liberally); Ex parte
E.E.H., 869 S.W.2d 496, 497 (Tex. App. - Houston [1st Dist.] 1993, writ denied).
205. See Pennington, 882 S.W.2d at 530; Arellano, 801 S.W.2d 128 at 132 (Tex. App. San Antonio 1990, no writ).
206. Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 573 (Tex. 1991);
R.R.R., 928 S.W.2d at 263; see also Agbor v. St. Luke's Episcopal Hosp., 912 S.W,2d 354,
357 (Tex. App. - Houston [14th Dist.] 1995, writ granted) (illustrating the believe that the
primary purpose of the court is to effectuate the intent of the legislature).
2001]
JOYCE ANN BROWN
that its purpose, to rid those who were wrongfully arrested of the injustices they faced, can be achieved. 0 7
4. Joyce and the Expunction Statutes
Joyce Ann Brown was only interested in receiving an expunction3m
The district attorney signed an affidavit stating that Joyce did not receive
a fair trial in 1980.09 Furthermore, the district attorney admitted that the
prosecutors did not disclose evidence that would have been vital to
Joyce's defense.2 0 Examining the information, the judge recommended
the case to the Texas Court of Criminal Appeals, and Joyce was finally
granted a new trial.2 1 On the date set for an announcement of the trial,
the district attorney dropped the charges 212 As a result, Joyce became a
free woman.
However, upon release, Joyce received neither a pardon nor an ex-
punction for serving years of prison time for a crime she did not commit.213 In Joyce's case, the expunction statute did not serve its intended
purpose, which was to allow people's records to be expunged if they were
wrongfully arrested for a crime they did not commit.2 14 Joyce should
have been immediately granted an expunction of her records because she
207. See J.T.S., 807 S.W.2d at 574 (stating that "the primary goal of statutory construction is to effectuate the intent of the legislature"); State v. Knight, 813 S.W.2d 210, 212
(Tex. App. - Houston [14th Dist.] 1991, no writ) (recognizing that "Article 55.01 was enacted to enable persons who are wrongfully arrested to expunge their arrest records"); Tex.
Dep't of Pub. Safety v. Failla, 619 S.W.2d 215 (Tex. Civ. App. - Texarkana 1981, no writ)
(reiterating the purpose of Article 55.01).
208. See Interview with Joyce Ann Brown, supra note 2 (choosing this alternative over
a pardon, Joyce Ann Brown Wanted her record cleared).
209. See BROWN, supra note at 1, at 163. "Armed with that affidavit, Kerry was going
to present my writ to the court right then instead of waiting for the October 23rd hearing.
Ironically, the date was September 29th - the same date I had begun my trial nine years
earlier." Id.
210. See id. Only fifteen minutes was necessary for the hearing, but Joyce knew a
recommendation for appeal meant a stronger chance for a favorable review. See id.
211. See id. at 163, 167. "'Yes.' I answered, my heart pounding. He took a deep
breath and then, in that beautiful golden voice of his said, 'Joyce Ann, the Texas Court of
Criminal Appeals handed down their decision this morning. You're going to get a new
trial."' Id. at 167.
212. See id. at 177. Although Joyce was able to walk away from her incarceration, she
was not able to receive the necessary compensation that would help to mend the rift that
has been created in her life by the faulty conviction. See id.
213. See 1d. For Joyce and others like her, it has been difficult to be released from a
wrongful conviction without any real compensation for their loss of liberty. See id.
214. See 27 Trx. JuR. 3D Criminal Law §§ 4404-08 (1983).
THE SCHOLAR
[Vol. 4:45
was arrested, did not plead guilty
to the crime, and did not receive proba2 15
tion as a result of the offense.
In order to allow those individuals who were wrongfully convicted of a
crime a means to expunge their records, the legislature established Article 55.01 of the Code of Criminal Procedure. 6 Joyce was wrongfully
convicted, serving almost ten years in prison for a crime in which she did
not commit. This Article was created specifically for people like Joyce,
people who find themselves wrongfully convicted. Furthermore, since
the statute is supposedly remedial in nature, it should be read liberally in
order for an innocent individual to receive an expunction of their record. 7 While Joyce's case was only dismissed, the expunction statute
should be read for the purpose it was intended, to allow those who were
wrongfully arrested to clear their records. Nevertheless, Joyce Ann
Brown served several years in prison for a crime she did not commit and
had to fight to clear her criminal record.
IV.
PROPOSAL
Receiving neither compensation nor a pardon for her wrongful conviction, Joyce Ann Brown was eventually released from her shackles of
bondage without even a simple apology. This comment offers four proposals that would allow the state of Texas to finally grant those who were
wrongfully convicted their due process of law.
First, the compensation statute should be revised. It should include additions that, if in place, would set forth methods to ensure innocent persons wrongfully convicted receive compensation for their time lost while
incarcerated. The revisions of the statute would balance the playing field
and allow the innocent and wrongfully convicted to receive adequate
compensation, thus making the statute less harsh and more just.
Secondly, the expunction statute requirements should stand for the
purpose for which they were written, to provide remedial measures in
order to rid the innocent of unjust criminal records. The expunction stat-
215. But see Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318 (Tex. App. - Corpus
Christi 1997, no writ) (demonstrating circumstances in which one cannot be granted an
expunction despite convictions that are wrongful).
216. See Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 573 (Tex.
1991); State v. Knight, 813 S.W. 2d 210, 211 (Tex. App. - Houston [14th Dist.] 1991, no
writ); Tex. Dep't of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. Civ. App. - Texarkana
1981, no writ).
217. Harris County Dist. Attorney's Office v. R.R.R., 928 S.W.2d 260,263 (Tex. App.
- Houston [14th Dist.] 1996, no writ); Harris County Dist. Attorney's Office v. Pennington,
882 S.W.2d 529, 530 (Tex. App. - Houston [1st Dist.] 1994, no writ); Ex parte EEH., 869
S.W.2d 496, 497 (Tex. App. - Houston [1st Dist.] 1993, writ denied).
2001]
JOYCE ANN BROWN
ute should be interpreted liberally in order to erase the wrongful convictions of the innocent.
Third, the government has not ordered a comprehensive study that
identifies the major errors leading to innocent persons being wrongfully
convicted. Conducting this study allows the government to take effective
measures on the factors that contribute to wrongful convictions.
Lastly, the Governor should publicly apologize to the wrongfully convicted. The state ought to acknowledge the wrong it has caused and the
pain it has inflicted. It would be unconscionable to expect those newly
freed from their wrongful convictions to enter into society without an
express declaration of their innocence.
A. Revision of the Compensation Statute
Instead of imposing harsh requirements on the innocent, the state
should advocate that the statute be read in a manner that offers the most
favorable results for those who have been wrongfully convicted. The statute should be read liberally to include everyone who was wrongfully convicted by the criminal justice system of Texas, no matter the form of
release. Therefore, the compensation statute should be revised and rewritten to read as follows:
A person is entitled to compensation if the person meets three of the
four requirements:
1. has served in whole or in part a sentence in prison under the laws of
this state;
2. plead "not guilty" to the charge for which he was convicted and that
lead to the imprisonment;
3. is not guilty of the crime for which he or she was sentenced; and
4. has received a full pardon for the crime and punishment for which
he was sentenced, noting that the pardon recognizes the person as
not guilty of the crime for which he or she was wrongfully convicted.
If revised, in instances where the charges are simply dismissed after an
individual has served several years in prison, the revised statute would
still allow the innocent to be justly compensated. The revised statute
would also allow for the automatic expunction of one's records pursuant
to Article 55.01. By revising the statute to read as stated above, the state
of Texas would provide its citizens due process of law as required by both
the United States and Texas Constitutions.
B.
Less Restrictive Interpretation of the Expunction Statute
Next, the expunction statute requirements should stand for the purpose
for which they were written, to provide remedial measures in order to rid
THE SCHOLAR
[Vol. 4:45
the innocent of criminal records that they should have never received in
the first place. The expunction statute should be interpreted liberally in
order to erase the wrongful convictions of the innocent. The court hearing the request for expunction of record ought not bog itself down in
inflexible and rigid interpretation. This approach only serves to harm
those who suffered under a wrongful conviction; the court needs to avoid
causing any further injury. Therefore, this harsh and difficult statute
should include a provision to expunge the records of the wrongfully convicted that meet the requirement of the aforementioned newly revised
compensation statute. With these new provisions in place, innocent victims like Joyce Ann Brown would receive some type of compensation for
their wrongful conviction.
C. EliminatingFactorsResponsible for Wrongful Convictions
Several factors identified help lead the innocent to the pronouncement
of their wrongful convictions. In order to eliminate some of these factors,
it is necessary to get to the root of the problem. The state of Texas should
conduct a comprehensive study on the factors that lead to wrongful convictions. Once the study shows the contributions to errors in these instances, the state of Texas could come up with policies that would help
eliminate the cause of these problems. For instance, since eyewitness testimony is an extreme problem when one crosses the racial line to identify
another, juries could at least be properly instructed on this phenomenon
to avoid inaccuracies in their decisions.
A study could shed light on a problem and bring about fairness and
equity to the justice system. Any justice system that allows people to be
wrongfully incarcerated is always in jeopardy of being questioned as to its
legitimacy.
D. Apology
This part of the proposal is the easiest to undertake. Upon the release
of one who is wrongfully convicted, the Governor of the State of Texas
should arrange a press conference in order to recognize the wrongfully
convicted person's release. During this press conference, which should
be televised throughout the state of Texas on major networks, the Governor of Texas should apologize to the person. This apology would be on
behalf of the state of Texas, allowing the innocent party to know that the
state is sorry for having deprived that person of their liberty.
While an apology may not be deemed as much to some, it would be a
necessary step in solving the problem, and would work towards repairing
the lives ruined by wrongful convictions. A problem must first be recognized before it can be solved. With the apology, the state of Texas is no
longer trying to bandage the wound, but working towards allowing the
2001]
JOYCE ANN BROWN
wound to heal. While the wound is healing, the innocent will know that
the state of Texas feels remorse for the time the innocent person has lost
from their life while incarcerated.
V.
CONCLUSION
Innocent people who have been wrongfully convicted for crimes and
subsequently imprisoned should not be frustrated when trying to seek
compensation. These innocent persons deserve a simple avenue made
available to them to receive compensation for their wrongful convictions.
The reised statutes and other alternatives offered in the proposal eliminate wrongful convictions and compensate the innocent, thereby providing redress for these innocent persons. It is the responsibility of the state
of Texas to ensure that those who were unjustly convicted and subsequently imprisoned recover based upon their damages.
"It's over Joyce. You can go home. The district attorney has dropped
the charges. You've won."2'1 Those words cannot even begin to express
the anticipation and anguish with which Joyce had in awaiting the court's
decision. It goes without saying that winning came at a high price for
Joyce. She spent nine long years, five hard months, and twenty-four sad
and lonely days incarcerated for a crime that she did not commit.21 9 One
day, it was over for Joyce; she was free to go home, but without compensation. For nearly a decade, Joyce was imprisoned, and there was no real
justice for her, and no compensation readily available to her.
Although there are several factors that lead to wrongful convictions,
few remedies exist for the innocent to actually receive compensation.
The statutes available in Texas have strict requirements for an individual
to receive compensation. For instance, the Texas compensation statute
requires that all four elements of the statute need to be met before one
can truly receive compensation. 2' Furthermore, obtaining a pardon in
Texas is difficult.2 It also degrades the pride of the innocent who was
wrongfully convicted, because the innocent victim does not need forgiveness, but compensation.
Moreover, when the expunction statute is interpreted strictly, it does
not always serve its intended purpose. The statute was drafted in order to
BROWN, supra note 1, at 177.
219. See id.
220. TEx. CIV. PRAC. & REM. CODE ANm. § 103.001 (Vernon 1997).
221. See Interview with Joyce Ann Brown, supra note 2 (noting that few Blacks receive pardons). Joyce Ann Brown stated, "You research how may Black folks have left
prison and gotten a pardon. Because it is always sitting on the governor's desk, and they
change 5 or 6 governors, and they are still on the governor's desk." Id.
218.
THE SCHOLAR
[Vol. 4:45
allow expunctions for those who are wrongfully convicted. 222 Thus, the
statute should be read liberally in order to serve the purpose for which it
was intended. That is, to provide expunctions for those convicted of
crimes they did not commit.
While Joyce considers herself extremely blessed, there are others not as
fortunate as she was. Joyce believes that of the high percentage of those
who are wrongfully imprisoned, those with DNA evidence stand a chance
of being released. 2' Nevertheless, Joyce feels that others in her situation
are not as fortunate. Wrongful convictions are still a problem in the state
of Texas. Joyce Ann Brown, aware of the problem firsthand, has formed
an organization (MASS) which she hopes will grow into an institution
that will "be able to change and make things better for innocent people
a
going into and coming out of prison and for those who actually commit
22 4
crime and are eventually going to be released back into society."
Joyce has taken an active stance to help not only those in her situation,
but others who are actually guilty of crimes. Now, it is up lo the state of
Texas to take an active stance. Though Joyce may not be as concerned
with compensation as others, she and others should be entitled to some
type of redress for the injustices they have faced. Measures need to be
taken to grant these innocent victims compensation. The Texas statutes
regarding compensation and expunctions are not adequate to compensate
innocent victims for their wrongful convictions. The compensation and
expunction statutes should be revised to truly provide justice for those
who are wrongfully convicted. Texas, this is an appeal to your sense of
fairness, justice, and decency to step up to the plate and compensate.
222. See J.T.S., 807 S.W.2d at 574; R.R.R., 928 S.W.2d at 264.
224. Id.
Joyce Ann Brown, exoneree who championed justice, dies at 68 | Dallas Morning News
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Joyce Ann Brown, exoneree who championed justice, dies at 68
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By JOE SIMNACHER 
Staff Writer
Published: 13 June 2015 10:44 PM
Updated: 15 June 2015 09:36 PM
Joyce Ann Brown, who became a tireless champion of the incarcerated and formerly incarcerated after she was exonerated on a robbery
conviction, died Saturday. She was 68.
Brown suffered a heart attack at her Dallas home Tuesday and suffered a series of strokes before she died at Methodist Charlton Medical Center
in Dallas, her family said. Funeral arrangements were pending at Golden Gate Funeral Home.
Brown served nine years, five months and 24 days of a life sentence before her robbery conviction was overturned in 1989.
The Texas Court of Criminal Appeals set aside her conviction because of prosecutorial misconduct. Dallas County prosecutors withheld the fact
that the state’s chief witness, a jailhouse informant, was a convicted perjurer.
After she was freed, Brown helped the incarcerated and their families for 25 years, said her daughter, Koquice Spencer of Dallas.
“She’s helped thousands of inmates, not only in Texas, but in other states,” Spencer said. “She was a blessing that comes once in a lifetime.”
Brown lobbied on behalf of many issues, including exoneree compensation in Texas, said longtime friend Cheryl Smith of Dallas.
“Regardless, she was trying to help everybody else, speaking out against wrong,” said Smith, who was editor of the Dallas Weekly when the two
met after Brown’s 1989 release.
“One thing she told me in the first interview was ‘I don’t lie,’” Smith said. “That’s something that’s stuck with me the whole time I’ve known her.
“Her family believed her when she was incarcerated, because whatever she did, she did not lie.”
In the spring of 1990, Brown became an assistant to Dallas County Commissioner John Wiley Price, a position she held for more than nine years.
After completing her day’s work, she turned her attention to helping others. She initially worked evenings from her garage. She later founded
MASS Inc., Mothers (Fathers) for the Advancement of Social Systems.
“It was in her to help people,” her daughter said. “There wasn’t a time when she wasn’t helping people. She was constantly on the phone. Her
whole life was dedicated to that.”
http://www.dallasnews.com/obituary-headlines/20150613-joyce-ann-brown-68-exoneree-who-championed-justice.ece[7/5/2015 8:21:41 AM]
Brown was down to earth, had a positive attitude and was passionate about her family.
“She loved to cook big meals and just have everybody stop by on Sundays and eat,” her daughter said. “She was just the matriarch of our family;
she was the glue that held it together.”
Brown was born Joyce Ann Spencer in Wills Point, where she started school. She grew up in Dallas, where she graduated from Roosevelt High
School in 1965.
“She had already bought her ticket for the 50th reunion,” her daughter said.
Brown was married briefly and had three children. She led a double life as a church-going mother who worked part time, while secretly
supplementing her income as a call girl. She was arrested on prostitution charges.
She put her past behind her and was rebuilding her life, working at Koslow’s Furs. On May 6, 1980, two black women robbed Fine Furs by Rubin,
three miles from Koslow’s. The owner was killed in the robbery. A getaway car had been rented by a Joyce Ann Brown, who was later determined
to be from Denver. Brown was identified by an eyewitness — the wife of the furrier — from a police mug shot.
Brown went to police after she learned she was a suspect. Her time card placed her at Koslow’s that day, with the exception of a 36-minute lunch
break. She was was jailed and her bond set at $1 million.
Meanwhile, police learned a Joyce Ann Brown of Denver had rented the car and loaned it to a friend. A police search led to Renee Michelle
Taylor’s apartment, where they found furs taken in the robbery, as well as the weapon and clothing worn in the crime.
That October, Brown was convicted of the robbery, based on the evidence of the witness and a former cellmate, who claimed she had confessed.
In 1981, Taylor was arrested, charged and sentenced to life in prison.
An investigation by reporter Steve McGonigle of The Dallas Morning News led to national publicity about the case. Defense attorney Jim
McCloskey and his Centurion Ministries began working on the appeal.
After McGonigle’s death in 2013, Brown credited the articles for her exoneration.
“He just reported the truth,” Brown said. “If it were not for Steve, Joyce Ann Brown probably would still be in prison ... I owe him a new life.”
Brown often spoke to journalism workshops, including an annual visit to students at Lincoln High School in Dallas.
“She talked about good journalism and good journalists,” Smith said.
In addition to her daughter, Brown is survived by a son, Mygeish Dennis of Dallas; her mother, Ruby Kelley of Dallas; seven sisters; seven
brothers; two grandchildren; and two great-grandchildren.
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7 Comments
Jackie Jones
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12 days ago
I remember Ms. Brown story R.i.p Ms. Brown
Reply Share
Cecil Y
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0
13 days ago
She will be deeply missed. Met here prior to being sent to prison and after being freed worked with her. A
wonderful person. And a great cook.
Reply Share
Gidget Hrobowski
0
0
19 days ago
Some years ago, I read Ms. Brown's book, still have it, and through reading her story I was impressed with
her direct honesty about her life, and her determination and strength to win her freedom. I once saw her on
a talk show and I was further impressed when she honestly replied when asked a question about her she
felt about her wrongful conviction, she expressed she was angry about it. And although, I feel she
eventually overcame those feelings, especially given the fact she tirelessly helped others, I felt it was an
honest response to a very tragic incident and something others on the panel who were wrongfully convicted
for whatever reasons were reluctant to honestly to admit. She was my hero. I live in Texas, and I am
saddened by the news of her death. If I had known she lived in Dallas I would have took upon myself to
somehow meet this beautiful lady. R.I.P. Ms. Brown... Jesus has got you now.....G
Reply Share
Gloria
0
0
19 days ago
i knew joyce ann brown and family from mckinney family lived next door to my family also know her from
riding to school with she and teach, a good person and very sweet to all i know u will be missed. gloria
fininen cunningham
Reply Share
Vickie Thompson
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0
19 days ago
We go back a long way, we had so much fun going to Noth Dallas to play softball, McKinney against Dallas,
Joyce Ann was a mean little hind catcher so petite and we had her cousin playing on McKinney sotball
team tiny and petite and could play good to, I remember all the joys of life at that time, Aunt Ruby is a
Jewel and my deepest sympathy for Vickie, Jean and all the brothers and sisters, Vickie Holley
Reply Share
granny
0
0
20 days ago
never met ms.brown.but heard a lot about her in the newspapers.she seen like a nice lady.and trying to
help every one she came in contact with who needed help.
Reply Share
Frank Smith
2
0
20 days ago
I've only met "Miz Brown" once, but was extremely impressed. She really effectively dedicated her life to
helping those who are or have been incarcerated, both those who were guilty and those who were
wrongfully imprisoned.
Reply Share
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Joyce Ann Brown - BonPasse Exoneration Services

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