Blazing a cold trail

Justin Weiner

Assistant District ­Attorney in Henderson County

If your office doesn’t have a cold (or old) case unit (and very few do), how do you handle a writ of habeas corpus on a 20-year-old murder case?

1995 was 20 years ago. I’ll say that again, just to let it sink in: 1995 was 20 years ago. It was the year of Braveheart, pogs, the O.J. Simpson trial, and “The Macarena.” Cell phones were large— not in a cool way—and the Internet was so slow that it almost wasn’t worth using. (There wasn’t much to do on it anyway.)
    Needless to say, popular culture has changed a lot in 20 years—and so has the legal world. This significant span of time generates an unusual scenario for those prosecutors who might face a writ of habeas corpus on a case that has been dormant this long, as I recently was. My feeling of urgency was heightened because it involved a murder conviction. It certainly set the stage for an interesting and challenging journey for a prosecutor who didn’t have a bar card back in 1995. Heck, that was the year I spent most days in Mrs. Brewer’s fifth-grade class. Surviving math and making it to our daily pick-up basketball game at recess was what I fretted over the most—a far cry from battling to keep a murderer in prison.
    Just to give readers some background on our county, Henderson: Its population is just over 78,000; our county seat, Athens, has less than 13,000 people. Our DA’s office is pretty small. Eight attorneys handle every felony (from pre-indictment through appeal), plus protective orders, Department of Aging and Disability Services investigations, and Child Protective Services cases; we also assist law enforcement with drafting warrants and giving legal advice at crime scenes. The office almost always demands an “all hands on deck” mentality. Needless to say we don’t have a unit that handles old (or cold) cases. When an older case rears its head after 20 years, it is up to one of the prosecutors to make heads or tails of the situation and seek justice—just as I had to do when Robert Blagburn’s writ came to our office’s attention.
    Now that I’ve been through the process, I offer this article to help those prosecutors in smaller offices who must handle their own writs and cold cases. The Cliff’s Notes version of my advice is to first figure out where the case has been, where it is now, and where you’re going with it—answer these questions before trying to figure out how you’re getting there. Doing things in this order is counterintuitive for us prosecutors, largely because there are so many competing interests that have been building up for decades. Rather than focusing first on how to prove something, it is even more important to truly understand why it hasn’t been proven before. Though it is a significantly more cumbersome process and will undoubtedly consume more time and energy, slowing down to do things the correct way is a prerequisite of not only being right (seeking justice) but also getting it right (keeping justice secure).

Where the case had been
On November 20, 1995, Robert Blagburn pled guilty to murder in return for a 45-year sentence. The victim was Clyde Willis Wilkins, a 37-year-old pimp who was gunned down while trying to spare a prostitute from a beating. Blagburn, 19 at the time, had paid $20 to have unprotected sexual intercourse with Sheree Barker, 35. The scratches on her body and bizarre bite marks on her tongue were consistent with her story that Blagburn had roughed her up.
     Blagburn had been under everyone’s radar, biding his time in the Texas Department of Criminal Justice for nearly 20 years until he filed his very first writ of habeas corpus. Any prosecutor with even a small amount of felony experience knows that the writ can easily be abused—and often. (I can think of one inmate in particular who recently filed his ninth writ on nearly the same grounds as the previous eight.) So having a man who had pled to murder wait 20 years to file his first writ was fairly unusual.
    His writ, once I read and digested it, made the pending litigation even more complex and troubling. Blagburn claimed that his defense attorney was ineffective even though he had pled guilty. But that’s nothing out of the ordinary, right? Well, here is the kicker: The defense attorney has been dead for years and his law practice died with him. And the murder weapon—yes, you guessed it—is gone. It had been released to a family member shortly after the plea. Yikes.
    To get a “Google maps”-style, bird’s-eye view of the situation, I had to understand the rules that were in place back in the day. An older, wiser, and more experienced attorney once told me that we should always start with the law. Believe it or not, even an offense like murder has undergone some changes since 1995—pop culture wasn’t the only thing different 20 years ago. Whether you seek out the controlling law via an old code book or by WestLaw or Nexus, go find it and read it. Defenses, affirmative defenses, and even culpable mental states may have changed over the decades. Ultimately, grabbing this bull by the horns will save some heartache down the road and insure that you are preparing appropriately for the task at hand. Just because something is the law now doesn’t mean that it always has been the law. For example, currently the murder of a child 10 or younger constitutes a capital murder, but in 1995 the child had to be 6 or younger. The 1995 version also didn’t have the subsection regarding retaliatory murders of judges and justices.
    A secretary or legal assistant will love you when you ask them to pull an 18-year-old file out of the office’s infamous storage building. Ours has flooded several times, has poor lighting, and though large, has the uncanny ability to make you feel claustrophobic. Regardless, it is important to see what you have and what you don’t have as you triage the file’s contents. Fortunately, Blagburn’s file hadn’t been damaged by a flood or fire, shredded, or misplaced over time, but nothing in it had been scanned so I had to completely rely on the paper file. (Newer files are scanned into a system so everything can be viewed electronically, which also safeguards them from being lost or destroyed over time.) As sidekicks to this endeavor, I suggest a fresh legal pad as well as a fresh pot of coffee; also, do your best to procure a banker’s box, preferably one of the coveted ones with handles, as a safe place to put the contents of the file and your notes during the inevitable interruptions that will pop up while you’re combing through all of the papers.
    I personally find great benefit in organizing an entire file myself. We all think differently, of course, and one can actually learn a lot about a file by taking it apart and putting it back together. The first time I perused Blagburn’s massive file, I treated it as if my boss had called on me to try the case the following week. It is vitally important to fully immerse yourself in its contents. Knowing bits and pieces is not enough—you must have a functional understanding of how everything went down. As painful as it may seem, this includes listening to all the interviews and reviewing all the previously filed motions in the case.
    The biggest challenge with this one was finding a tape player—that’s right, Blagburn’s case predated digital recording devices. I had the darnedest time finding a cassette player! And though I probably could have sat in a coworker’s car for hours to listen to those tapes, let’s not make it any more awkward than the situation dictates. Fortunately, I was aware that our office has an old and rarely frequented filing cabinet. It is filled, and I mean filled, with archaic electronic equipment. Believe it or not, I found not one but two cassette players in our office’s technology graveyard. Be prepared for when you finally find a boom-box that it will likely get the attention of your coworkers, and they will feel compelled to tell you about their first cassettes. (Mine was Brand New Man by Brooks and Dunn.)

Where the case is now
It’s worth tracking down as many of the original players as you can. The prosecutors who had handled the case had left the office years ago, but Ray Nutt, who worked the Blagburn case as a Texas Ranger, is now the Henderson County Sheriff. (He was easy to find!) You never know why and for what reasons people may remember the case or the trial from the past. Someone may even remember the scene and the role that they played. Sheriff Nutt remembered the murder and the defendant, and he was able to give a nice narrative overview of his investigation. Having that resource made sifting through offense reports much easier.
    If the case didn’t have a large impact on the community, it may be hard to find people who remember it and can help. Blagburn’s case involved a white man killing a black pimp over the rough treatment of a hooker. His file contained a letter from then-Govenor George W. Bush’s office, which responded to the concerns from the victim’s family about possible Ku Klux Klan involvement in the case. It was a baseless accusation but still made for some fascinating reading.
    You can imagine that it was a bit alarming to discover that nearly all of the evidence that had been collected had been destroyed. Supplemental DNA testing would prove to be not only difficult but darn near impossible—you can’t test what you don’t have. Heck, the murder weapon, a shotgun, had been released to a family member shortly after the conviction was secured.
    Unfortunately, the defense attorney had stopped practicing only a short time after Blagburn’s plea and had died some time after that, and his practice died with him—nobody took it over after his death, and his old files were gone. The defense attorney appointed to Blagburn’s writ, Brian Schmidt, had gone so far as to track down the previous attorney’s former legal assistant and daughter, but no helpful information was found. It seemed as though trails had faded just as much as most people’s memories. Regardless of how many stones you turn over, you can’t find something that is no longer there. Outside of the original State file, there wasn’t much information available to give us any additional insight.
    I found nothing to prove Blagburn’s defense attorney was ineffective. And the real conundrum for Blagburn was that with a dead attorney and no file, he would have to testify, and by testifying he would open himself up to cross-examination. Preparing a cross-examination for any defendant can be challenging; preparing one for an accused murderer even more so. But preparing cross for a defendant who committed a murder 20 years ago is a field of landmines that takes a significant amount of preparation to maneuver. However, if you have done your homework and put in the time in advance, then you will be ready for just about anything.  

Where the case is going
I was raised to “hope for the best and prepare for the worst.” My sleepless nights during a trial involve figuring out how I could possibly lose a case rather than how to win it. If justice calls for it, we prosecutors should hope that relief will be denied and that the judge will side with the State. And even more importantly, we should be prepared to have to try the case all over again. That’s right, if all goes terribly wrong, we must figure out what to do in the impending hearing to bolster a future case if we have start all over again, even on a 20-year-old murder. I also had a back-up plan of using the equitable doctrine of laches, just in case. (Anyone else remember that from property class in law school? It’s dubbed the “clean hands” doctrine because it penalizes those who sit on their rights.) I hoped I wouldn’t have to use it, but I was prepared to.
    As I expected he would, Blagburn took the stand. He told the court that his deceased attorney had given him bad information on which he had relied in deciding to plead guilty. Blagburn claimed that he was told that his “work time” and “good time” would allow his sentence to discharge before his parole eligibility date and that he would have to serve only 18 years. In all honesty, I really don’t know how someone could come up with the idea that his sentence would discharge before he was paroled. That is the whole point of having a parole eligibility date; it is the first date that parole is even possible. Murder is a 3(g) offense, so Blagburn wouldn’t even sniff parole until he had served 221/2 years on his 45-year sentence. The intriguing part of the story is that Blagburn had not acted on this advice until 18 years had passed and he wasn’t released from custody—then he filed his writ. To me, it sounded like he had discussed his case with a jail-house lawyer and rehearsed the story in his mind so many times that he had accepted it as the truth. Though I didn’t believe it, it certainly sounded like HE believed it. Fortunately for prosecutors, that is not an applicable legal standard.
    To my surprise, once Blagburn got on the stand, he was not as standoffish as defendants can typically be when they testify. That may have been partly because of the way I asked him questions. Though I wasn’t a psychology major or anything, being a prosecutor has taught me a thing or two about how the human mind works. Blagburn believed he was a victim of a corrupt system and a crooked defense attorney. I earned his trust by treating him like a victim. “Let me take you back to that day—do you remember it?” I started off. By easing my way into cross and asking softly worded and open-ended questions, Blagburn was quick to get comfortable. Believing he was the victim here, he was open about the evening of the murder. Eventually he freely confessed to the murder. He testified under oath that he shot Wilkins in the back from about 40 feet away—the victim was actually running from him. Blagburn used the shotgun he had kept on the floorboard of his vehicle. It was important to get this admission on the record because if anything had gone terribly wrong and he would have been granted relief, his confession would help the prosecution the second time around. Once he had confessed to the crime, it was time to start asking the hard questions in an increasingly more strategic and sophisticated way. I was letting Blagburn set himself up.
    When we got to his attorney’s alleged ineffective assistance, all of my preparation paid off. Blagburn acknowledged that his attorney had filed seven pretrial motions after he had been indicted. I went over each one with him on the stand to emphasize the time and work that his attorney had put into his defense. He also acknowledged his attorney’s negotiation efforts for a plea bargain—he and the State had gone back and forth with four different offers, from life all the way down to the 45 years that he ultimately pled to. I walked Blagburn through the understanding that by taking a murder case to trial while he was on felony probation, he very well may have gotten 60 years or life in prison. (Most felony prosecutors know that 60 years is essentially a “life sentence” for most people.) By pleading to 45 years, a 15-year difference, he potentially moved up his parole eligibility 71⁄2 years.
    Regarding his misapplication of “work time” and “good time,” I may never know how in the world he came up with the concept. It was such a grave deviation from rational thought that no one believed that the deceased attorney would have told him that before the plea.

The court’s decision
District courts merely serve as the “eyes and ears” of the Court of Criminal Appeals on 11.07 writs. Ultimately, after reading the State’s meticulously worded six-page Findings of Fact and Conclusions of Law, the court followed our recommendations, stating that the Doctrine of Laches barred consideration of the claims Blagburn made in his Art. 11.07 writ. The court also found that Blagburn had failed to demonstrate ineffective assistance of counsel before and during the plea bargain. It was important to get the district court to rule on this issue, though not legally necessary, just in case the Court of Criminal Appeals decided to ditch the district court’s laches recommendation. Though it can take a lot of time that you probably don’t have, NEVER pass up on an opportunity to draft Findings of Fact and Conclusions of Law for the court. Though the judge will have the final say, doing so gives the State the first crack at controlling the manner and means in which the facts and law is presented. (For a checklist on handling Art. 11.07 writs, see the July-August 2015 issue of this journal at www.tdcaa.com/ journal.)
    Today, Blagburn resides in the Michael Unit of TDCJ and will be eligible for parole in August 2017. He was on probation for two other felonies when he committed the murder, and though I am not a parole expert, I think it is reasonable to assume that he will not make parole the first time he is eligible.

Conclusion
We as prosecutors, when faced with an old case (or a cold case) must remember to first find out where you have been, where you are, and where you are going. Only then will it be clear how to get there. Always have a backup plan in case things go terribly wrong in court, and don’t forget to enjoy the ride. How many people can say they get paid to do the right thing and seek justice every day?
    If you find yourself in a similar situation and need help, feel free to email me at [email protected] or call 903/675-6100.