By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
"And the only guarantee," the prosecutor said, "in terms of a person such as Mr. Raby, not hurting anybody again ever...would be the death penalty. Would you agree with me?"
"That would do the work," the psychologist replied.
Karianne Wright, whom Raby dated as a teenager and who is the mother of his daughter, testified over two days, alleging brutal abuse far worse than Raby concedes or their friends had observed, saying she'd been afraid to speak out, and that her face doesn't easily bruise.
"And I feel that the world — everyone would be safer without him," she said.
By the time attorney Sarah Frazier was appointed, in the spring of 2001, to Raby's new legal team, he had tried to drop his defense and hurry along his execution. His appeals were almost finished and had been plagued by poor representation. When Frazier's firm, the multinational King & Spalding, took the case pro bono at the request of Federal District Judge Lynn Hughes, Frazier suspected that she and her colleagues would be little more than a rubber stamp on the impending death sentence. "We all felt like it was too late to do all the stuff that needed to be done," she says.
And Frazier also knew that Raby had confessed more than once.
With few other options, Frazier, who has since moved to Berg & Androphy, made a failed bid for DNA testing in late 2002. Confessions can be a barrier to DNA review, although the Innocence Project claims that 25 percent of DNA exonerees have "made incriminating statements, delivered outright confessions or pled guilty." But in the wake of the Houston Crime Lab scandal, and with Frazier's firm offering to foot the bill, in 2005 the Court of Criminal Appeals overturned the ruling — in an unpublished decision — and allowed DNA tests on Franklin's fingernail clippings.
Frazier had obtained Chu's original lab report, which noted the foreign Type A or AB blood beneath Franklin's fingernails. But to her, "inconclusive" meant that the tests did not reach a definitive result — which is the proper understanding of the term. In late 2008 she came across the fourth of a series of reports from a team of independent investigators led by Michael Bromwich into Houston's crime lab that revealed the extent of the problems there. It noted, among other issues, that blood-test reports were being manipulated to help with convictions. Potentially exculpatory findings "either were not interpreted or were not presented in the Lab's final report."
It seemed that in Raby's case, Chu had done exactly that. Lynn Hardaway, who is handling the DNA challenge for the state, requested an outside review of Chu's report this summer. Patricia Hamby, who worked with the Bromwich investigation, found that Chu's "inconclusive" reporting clearly contradicted his results.
Chu, who now handles evidence intake, is a recurring character in the Bromwich investigations. An HPD spokesman said Chu could not comment due to ongoing litigation.
Frazier's DNA tests suggested something similar to Chu's original blood-typing. Two partial male profiles were found under the nails from Franklin's left hand. (Frazier's expert believes both profiles could have come from the same man; an independent testing lab stated that they must have come from at least two different men.) Both profiles exclude Raby, as well as Franklin's grandsons, who were the only men to have regular contact with her. Frazier has submitted research and an expert opinion supporting her position that the DNA most likely came from Franklin's killer, and the judge is expected to rule at any time.
Frazier hopes a favorable verdict will help her unlikely bid for a new trial, in which she must show that exculpatory evidence — Chu's blood tests — was withheld at the original trial. A loss in the DNA appeal could result in an execution date.
Hardaway, the prosecutor, says the DNA could have come from innocent contact.
"I do not want to retry this whole case," she says. "That's not our burden. At this point, he's been found guilty by a jury, so he is guilty. That's the starting point. As for the blood, I don't know. But I would say that just because there's a different blood type there, that doesn't mean that he's innocent of the offense."
And she points to Raby's admission on the witness stand that his confession is true — almost two years after Franklin's death.
In a visitation box on Death Row in Livingston's Polunsky Unit, just past the Walmart and down a farm-to-market road, Raby, now 39, leans back and sticks his wrists through a slot in the locked door so a guard can remove his handcuffs. He brings his thick arms forward, and there is a flash of the young man who seldom lost a street fight, carried a knife and, according to his best friend, would "walk across town to getcha"; who admits that, as a teenager, he hit, sexually assaulted and once even dragged his girlfriend Wright, pregnant, down the street by her hair; who took a shotgun blast of bird shot to the stomach and, weeks later, was said to have run down and beat a man on the sidewalk with fluid still draining from the tubes in his gut.