Good News: Helpful DNA Evidence. Bad News: Her Client May Still Die

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Defense attorney Sarah Frazier got the DNA results she wanted. They might even win her tomorrow's hearing. But her client could still be put to death.

Frazier has fought for years to introduce new DNA testing to the case of Charles Raby, who was convicted almost 15 years ago of murdering a grandmother in Northwest Houston. Now that they're finally in, Raby looks destined for lethal injection all the same.

"There's no remedy at the end of this rainbow," Frazier tells Hair Balls. "I've got to convince the trial judge that it's a favorable finding, but that's as far as the DNA statute lets you go. If she decides it's favorable, what then?"

The twisted trajectory of Raby's case starts on October 15, 1992, when 72-year-old Edna Franklin was found butchered inside the home she rarely left, as Frazier recounts the case. She'd been stabbed multiple times and had her throat slit. Though frail, her defense wounds suggested she'd put up quite a fight against a killer Frazier describes as frenzied.

Franklin's live-in grandsons suggested two possible suspects--Raby, who'd smashed a beer bottle on the ground after a recent argument with Franklin, and another local man.

The neighborhood had no shortage of shady characters. Frazier describes them as petty criminals--the "knives and bicycles," as opposed to "guns and cars," crowd. And the 22-year-old Raby was certainly among the usual suspects, with two assault convictions under his belt and a history of substance abuse. The bottle, in fact, ended up dooming him twice.

Aside from eventually giving the prosecution its only sliver of a motive (when he smashed one in anger), it killed his alibi, according to Frazier's narrative. Franklin died between 6:45 and 10:00 at night. During that time, Raby was blackout drunk. Frazier maintains that this,
among other things, opened Raby up to a false confession.

That confession, argues Lynn Hardaway, who is handling the case for the Harris County District Attorney's office, details a gruesome murder, though Frazier says it suspiciously fades out at the critical moments.

Raby pled not guilty in the original trial.

"I walked into the kitchen and grabbed Edna," it reads. "I know I had my knife, but I don't remember using it ..."

When Raby woke up the next morning, the confession continues, "I remembered being in her house and struggling with her, and Edna was covered with blood when I left."

Such sworn statements make the guilty verdict seem bullet-proof. That provided Frazier's biggest hurdle in traversing the sticky web of regulations that surrounds post-conviction DNA cases -- one that shows how tangled the process can be, and how little it may help in the end.

Though notorious as the country's top executioner, Texas actually has one of America's best DNA statutes, according to Jeff Blackburn, chief legal counsel for the Innocence Project of Texas, a non-profit dedicated to overturning wrongful convictions. Of the 227 people so far
exonerated by DNA evidence, 32 are from Texas, the highest total of any state.

The problem, Blackburn tells Hair Balls, is that the law leaves a lot room for shady maneuvering: "It's subject to a lot of stalling and abuse by prosecutors. It's an invitation for them to do the right thing, and also an opportunity for them to do the wrong thing," he says.

Frazier first petitioned for DNA testing in late 2002, and she had to fight hard for it. Confession convictions have typically been considered closed to DNA review, though recent studies show it's impossible to deem any type of case immune to error.

"The big fight in these cases is getting the test done," Blackburn says.

The court finally allowed Y-chromosome tests to check the evidence for male DNA -- a bloody nightgown (which has gone missing since the original trial, a problem endemic to the Texas legal system), a pair of panties, hair samples and, finally, Franklin's blood-crusted fingernails.

There are two key details in the way Frazier frames the story of the crime -- that Franklin was a recluse, and that she fought hard for her life. The latter suggests that the killer's DNA should indeed be under her fingernails, the former that anything found there belongs to him and nobody else. Two partial male profiles were discovered, and both ruled out Raby as well as Franklin's grandsons.

But that likely won't be enough to set Raby free.

In most DNA exonerations through hearings like this, the evidence is embarrassing enough to force an agreement with the DA. That won't happen here.

"My feeling is you don't have to get all the way to innocence, but you have to get pretty darn close. You have to be in the ballpark," prosecutor Hardaway tells Hair Balls, adding that the new evidence doesn't meet that criteria.

Frazier's best immediate hope is to establish reasonable doubt tomorrow, which could win her the hearing and make it politically impossible to kill Raby, if not overturn his verdict. She could try to parlay the favorable finding into a new trial, but even that's far from a lock. (Although she appears to be on a bit of a hot streak.)

Hypothetically, the court could rule in their favor, then set an execution date, which has been on hold pending the DNA tests. But it's hard to say what to expect.

"I don't think they've ever been faced with this type of thing before," says Frazier.

Check back tomorrow to see whether Frazier and Raby win or lose--or both.

-- Mike Giglio

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