As his defense lawyers were working to free Michael Morton from prison because of a wrongful conviction that raised questions of prosecutor misconduct, Austin police doctored a crime lab report to use during the interrogation of a suspect in a related case, the American-Statesman has learned.
Austin police officials and Travis County prosecutors confirmed last week that they are looking into the techniques investigators used as they questioned Mark Alan Norwood during lengthy interviews in September.
The detectives used what Police Chief Art Acevedo called “an investigative prop” when seeking information from Norwood in the 1988 bludgeoning death of Debra Masters Baker in her home.
Officials at the state crime lab told Austin police cold case investigators that DNA tests had linked Norwood to the crime scene, officials said. But investigators did not yet have the written report, so they took a DNA report from a separate case, altered it to indicate it was from the Baker case and showed it to Norwood during the interrogation, officials said. Acevedo said the scientist who conducted the test also had authorized them to share the result.
Norwood didn’t confess and has not been charged in Baker’s death but remains a suspect, according to Austin police.
Norwood’s lawyer and legal experts said they do not think the officers’ actions will impede the case because Norwood did not confess, but several raised concerns about whether the detectives’ actions may have violated laws on evidence tampering.
Acevedo said that investigators have since received the final report and that “the essence of the report is consistent with the prop used by the investigators.”
Norwood is in the Williamson County Jail awaiting trial in the 1986 death of Christine Morton, whose husband served almost 25 years in prison for the crime but was declared innocent and released last year. A former prosecutor is facing allegations that he violated state law by hiding several pieces of evidence favorable to Morton.
Police are generally allowed to deceive suspects during interrogations in an effort to get a confession, but the creation of a false government document to use in such interviews raises legal questions. A March 2010 decision by the Texas Court of Criminal Appeals threw out the confession of a man in San Antonio after a detective obtained the statement by using a falsely created report showing the suspect’s fingerprints were on a gun used in a homicide.
The ruling said the detective violated state document tampering laws, which are intended to help “maintain honesty, integrity and reliability of the justice system.” Officials have said the detective in that case was not charged with a crime.
The court said, “Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or proceeding. This is exactly the type of law violation that the Texas Legislature intended to prohibit when it enacted (certain laws concerning confessions) — conduct by overzealous police officers who, despite their laudable motives, break the penal laws directly related to gathering and using evidence in their investigations.”
That ruling helped prompt Travis County District Attorney Rosemary Lehmberg to ask prosecutors in the Travis County attorney’s office to review whether investigators may have violated the law by creating the altered DNA report.
A prosecutor from Lehmberg’s office was present for Norwood’s interrogation and was immediately troubled by the use of the altered document, she said. The prosecutor did some research on the legality of the technique and told his supervisors what had happened, Lehmberg said, adding that her office later informed Norwood’s lawyer about the matter.
“It is important that the public have confidence not only in our conduct, but in the integrity of the evidence,” Lehmberg said. “We will step up training to make sure officers understand what trickery and deception is allowed, and some is condoned, but that it has limits.”
Travis County Attorney David Escamilla said he will review the information he received from Lehmberg’s office and “take any appropriate action.” Escamilla’s office has been asked to oversee the inquiry because of the assistant district attorney’s involvement in the case.
Acevedo said last week that he has removed the investigation from the cold case unit and assigned it to homicide investigators. He also appointed a special internal investigator to review the matter “out of an abundance of caution and in the interest of transparency.”
Acevedo said investigators in the Norwood case, who he declined to identify, were doing what was “in the best interest of the citizens of Austin, the victim and her family.”
“I am well-versed in the careers of all the individual employees,” he said. “They have had outstanding careers and are honorable people.”
Acevedo stressed that the actions of his investigators differed from those in the court opinion. Those investigators did not have fingerprint evidence, as the document they created claimed, and they successfully obtained a confession, unlike his detectives, Acevedo said.
However, Acevedo said he is concerned that investigators throughout the department had not been told about the court’s 2010 opinion — even though an assistant city attorney has since acknowledged he knew about it. He said he has taken steps to ensure that future court decisions are sent among several units so officers are made aware of them.
Leading up to use of the ‘prop’
Norwood, a former carpet installer who had been working as a dishwasher in Bastrop, was arrested and charged in November in the brutal 1986 beating death of Christine Morton.
After a six-year court fight with Williamson County officials, Michael Morton’s lawyers won the right to test a bloody bandana found near the Morton home. Tests conducted last summer confirmed that the cloth contained the victim’s blood and DNA from Norwood — a key finding in Morton’s exoneration.
Morton’s lawyers, noting similarities between the Morton and Baker murders, also forwarded Norwood’s DNA results to Travis County prosecutors. Subsequent tests confirmed that a hair found in Baker’s bedroom also belonged to Norwood, court records show.
Police have said they found no evidence that Baker knew Norwood, negating “an innocent explanation for the presence of (his) pubic hair at the scene of the crime,” according to court filings in the Morton case.
Like Morton, Baker had been repeatedly hit in the head with a blunt object as she lay in her bed, and records show that beginning in 1985 Norwood lived at an address less than two blocks from the Baker home.
According to Acevedo, department supervisors set a short time frame for detectives in the Baker investigation.
Investigators had raised concerns about the time frame but still moved quickly to question Norwood, who was not yet in custody. By that time, Acevedo said, state crime lab officials had briefed detectives on the results of DNA testing but had not yet sent their written analysis.
Acevedo said that during the Norwood interview last fall, a department supervisor instructed a detective to make “cosmetic changes” to an earlier DNA report from another case that could be used as a prop during the interrogation.
During the interview, another detective sought permission from an assistant district attorney to talk about DNA evidence, and that detective thought he had the prosecutor’s consent to show Norwood the prop, Acevedo said. He said the decision to use the prop had not been previously discussed with prosecutors but was instead an impromptu decision.
“I think there was a miscommunication where assumptions were made by everyone involved,” Acevedo said.
Days later, the prosecutor who attended the interview called the supervisor to express concern about what they had done and cited the Court of Criminal Appeals case.
Acevedo said that the investigators have since acknowledged that had they known about the court opinion, they would not have used the prop, “to be absolutely safe.”
Deceptive tactics in investigations
The issue has opened a window on the steps investigators may take to obtain statements during interrogations. Techniques that can lead suspects to confess can also lead to questions about whether defendants were deceived into admitting a crime.
“Historically, there has been a very fine line legally between great police work and unconstitutional conduct,” said Robert Kepple , executive director of the Texas District and County Attorneys Association.
He said that courts have affirmed that investigators generally may use “trickery and deceit” — police may tell a suspect they have evidence that they don’t — but that such uses may be evaluated on a case-by-case basis to determine whether they led to coerced confessions.
“It is generally assumed that it is safe to use deception, but there is a discomfort,” said George Dix, a criminal law expert and University of Texas law school professor.
Dix said he is concerned with the actions of investigators in the Norwood case. He said that although he would want to study the law and view evidence before rendering an opinion, he thinks “it is certainly possible” that they broke document tampering laws.
Dix said he did not think the actions of investigators would impede the case against Norwood in Morton’s death or the investigation into Baker’s killing — an opinion shared by Norwood’s attorney, Russell Hunt Jr. of Georgetown.
“It seems like it did not push him into any false statement,” Hunt said. “If he had made some sort of incriminating statements, there might be something for me, but he did not.”
Last week, Lehmberg met with the Baker family to update them on developments in the case.
Austin has had at least one major case in which a suspect who confessed to a crime later recanted and had his conviction thrown out.
More than a decade ago, Texas prison officials released Christopher Ochoa, who said he confessed to the rape and murder of a woman after an Austin police homicide detective pressured him to confess, threatening to seek the death penalty and arrange for him to be placed in a cell with other prisoners who would regard him as “fresh meat.”
Ochoa spent almost 11 years in prison in the death of Nancy DePriest at a North Austin Pizza Hut, and the Austin City Council in 2003 settled his lawsuit against the city for $5.3 million.
Another suspect in the case, Richard Danziger, was convicted and beaten so severely by another inmate that he was left with brain damage. He also was released and received a $9 million city settlement.
Another man was convicted in the crime.
Austin police officials would not discuss how often they use “trickery and deception” in interrogations.
Acevedo said in Norwood’s case that “at the end of the day, what we hope is that long overdue justice will be served for the Baker family, which is ultimately what we were trying to accomplish.”
Tony Piohetski, Austin American Statesman