By Camilo Smith
By Craig Malisow
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By Angelica Leicht
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By Sean Pendergast
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Habern will be the first to admit he's gotten people out of prison he didn't think stood a chance. At the same time, he rails about those he feels were ideal prospects but were rejected. What most frustrates him is that he and his client can't know what contributed to the denial; while some of the information in the parole files is public record, such as court documents, much of it is not. He cites the case of Greg Ott, who received a three-year set-off in March. Ott has served 23 years of a life sentence for shooting a Texas Ranger during a marijuana deal while a psychology graduate student at the University of North Texas in Denton. The case, the subject of a lengthy story last August in Texas Monthly, had many troubling aspects that left numerous key questions unanswered.
Despite the gray areas, Ott has accepted responsibility for what happened. And in those 23 years, he's been about as cooperative and hardworking as anyone behind bars. In 1982 he risked his life to save a guard who was being attacked by another inmate. During an escape attempt several years later, he saved countless lives by warning guards that a boiler was about to explode. Dozens of Texas Department of Criminal Justice staff members have urged his release. Even the district attorney who prosecuted Ott wrote a supportive letter to the parole board.
Approved in 1990, his parole was rescinded after the Texas Rangers mounted a campaign against his release. The board is supposed to consider the input of victims and others, but that usually occurs before the decision, not after the fact. That the law enforcement agency continues to oppose his parole every time he comes up isn't the issue either, says Habern. The problem is that no one but the parole board knows what the Rangers are saying. In 1999 Ott won the support of two board members, including Cynthia Tauss. But when protests came in, Tauss changed her vote. She told Texas Monthly reporter Gary Cartwright that "additional information was received," though she's proscribed by statute from revealing the details.
But Texas Rangers spoke with the Denton paper, which published articles about Ott's case. Unfortunately, some of the worst accusations conflicted with the trial record or were flat-out dead wrong. "What they said in the press wasn't true," recalls Habern. "Of course, it was too late then. If that was what Cynthia voted on, it was incorrect. But how was I to know?"
When Ott came up for review again this year, the panel based in Angleton split three ways, meaning the case got passed to the Gatesville office for a second vote. Again, law enforcement made a presentation to the panel; again, "additional information" was apparently received. And again, Ott got the thumbs-down, receiving the maximum three-year set-off. "I have no earthly idea what the information was," says Habern. "It's parole by secrecy."
When the information does see the light of day, it tends to confirm the fears of Habern and others who offered anecdotes to the Press. After a client of Austin lawyer Page Massey's was denied parole in the early 1990s, Massey guessed that a district attorney in north Texas had written a letter of protest that had affected the outcome. He went to the D.A.'s office and, in a stroke of luck, obtained a copy of the letter. He then compared the statements to the trial record and discovered 16 errors; all were slanted against the inmate. The D.A. would not withdraw the protest, but Massey laid out the facts before the parole panel, which granted release. But as Habern points out, "The D.A.'s normally don't give you that shit."
The arguments for maintaining closed files center around victims' rights and privacy issues. Victims, for example, might be reluctant to write letters arguing against parole if inmates or their supporters have access to them. But other states with more open systems address that problem by simply crafting their laws to require that sensitive documents be withheld or personal information redacted, as is done in Texas with other types of public records. Tauss sees both sides but is open to a change in the law. "If the legislature came and said, 'Open up the files,' I wouldn't have a problem with that," she says.
State Senator John Whitmire, who sits on the Senate Criminal Justice Committee and has been active in past reform efforts, agrees that the status quo is flawed. "We probably need to do more in seeing if the process should be more open," Whitmire says. "Somebody's got to give these folks information when somebody gets set off."
George Dismukes is haunted by his own invisible specter. A source close to the parole board told the Press that Tauss and Linda Garcia, the two who voted against him, were adamant because of something in the file. Tauss would neither confirm nor deny it, but she did say that she considered the totality of the circumstances before making her decision. "George has probably received more time and more review than any other inmate," she said.