Episode Five: The Evidence

In the wake of a scandal within the Houston police crime lab, Charles Raby’s lawyers discover that forensic evidence was hidden from the defense at trial.

Foreign DNA is found under Edna Franklin’s fingernails. And in the wake of a scandal within the Houston police crime lab, Charles Raby’s lawyers discover that forensic evidence was hidden from the defense at trial.


A quick listener note: This podcast contains adult language and descriptions of violence.

Sarah Frazier: May it please the court, good morning. My name is Sarah Frazier. I represent Mr. Raby. This is a case pending out of Harris County.

In 2005, this court granted DNA testing in this case. With this appeal, I’m asking the court to reject the District Court’s Article 64.04 findings and rule that DNA results in this case are favorable to Mr. Raby for this reason.

They show a complete DNA profile from a man’s blood left under the decedent’s left hand fingernails at her death — and it is not Mr. Raby.

Liliana Segura: Sarah Frazier has been on Charles Raby’s case since 2001. She was just a rookie lawyer then, working for a fancy civil law firm that would sometimes take on death row clients pro bono. Charles’s first round of appeals — at the state level — had failed. Like all people on death row, he was entitled to federal review. So the federal judge handling the case appointed Sarah, along with some of her colleagues to represent him.

Jordan Smith: It wasn’t long after this that she asked the courts to grant DNA testing on a number of key items that had never been analyzed. Texas had recently passed a law making it easier to seek post-conviction DNA testing, and Sarah and her team thought that DNA evidence might exonerate Charles. But in order to get anything tested all these years later, Sarah had to seek permission in the court where Charles was tried.

Liliana Segura: Asking for DNA testing might seem reasonable in any death penalty case, but prosecutors often fight hard against it. And the courts are often reluctant to grant it. That’s exactly what happened here.

The prosecutors balked, and the trial judge in Houston denied testing. So Sarah appealed that ruling to the Texas Court of Criminal Appeals, or the CCA. That’s who you heard her talking to.

Jordan Smith: There were plenty of reasons to think this would be futile. The CCA is notoriously conservative and, over the years, has really gone out of its way to interpret the state’s DNA testing law in order to deny defendants access.

So when the CCA agreed with Sarah that the evidence in Charles’s case should be tested, it was a big deal. It actually made headlines. It was the first time that the CCA had overruled a lower court’s decision to deny testing. And the result of that testing was huge: It revealed a DNA profile from an unknown male in the blood crusted under Edna Franklin’s fingernails.

Remember, there was no physical evidence tying Charles to the crime. And the autopsy revealed defensive wounds on Franklin’s body, meaning she’d fought with her attacker. So it was reasonable to think that she’d gotten a piece of him. The DNA testing indicated that she had, and that it wasn’t Charles Raby; it was someone else altogether. To Sarah, this was proof that Charles was innocent.

[Theme music]

Liliana Segura: From The Intercept, I’m Liliana Segura.

Jordan Smith: I’m Jordan Smith. Welcome back to Murderville, Texas: Episode 5, “The Evidence.”

Sarah Frazier: I’m Sarah Frazier. I have been representing Charles Raby, along with a team of people, since 2001.

Sarah Frazier, Charles Raby’s attorney, posed for a portrait at her office in Houston, Texas on September 2, 2021.

Sarah Frazier, Charles Raby’s attorney, posed for a portrait at her office in Houston on Sept. 2, 2021.

Photo: Christopher Lee for The Intercept

Liliana Segura: We first met up with Sarah Frazier in August 2019. Her office in Midtown Houston was full of artwork Charles had sent her over the years. There was also a framed tribute to her dog, Iona, along with accolades from former clients, all of whom she represented in civil cases. One described her as a “beautiful redhead with a mind like a steel trap.” “If I ever have to go into battle again,” the client wrote, “I’ll take Sarah any time.”

When Sarah was appointed to represent Charles, she didn’t have any experience with criminal cases — aside from what she’d seen in the courtroom during her time clerking for a federal judge. It was during that clerkship that she was first exposed to questionable forensic evidence.

Sarah Frazier: There was one habeas corpus case involving a murderer among the Lumbee Indians in North Carolina, which was really pretty crazy. That was a crazy story. And that was definitely interesting to me.

Liliana Segura: The case involved a man accused of shooting, stabbing, and dumping a guy in a river. A bloody footprint had been left nearby. To tie the man to the footprint, the state called a supposed forensic expert named Louise Robbins, whose claim to fame was the uncanny ability to match footprints at a crime scene to the person who left them.

Sarah Frazier: There was this spurious footprint expert who said that she could tell by someone’s even shoeprint their height, weight, and socioeconomic status. And that was the expert evidence against this guy.

Jordan Smith: Sarah thought this was ridiculous and utterly unscientific. Apparently the prosecution had shopped for an expert, and only Robbins would give them what they wanted.

Sarah Frazier: The rigor of the science was important to me, I would say. It was not OK that the prosecution in that case had gone through a number of experts who just would not testify to what they needed against this person, and so they ended up with Louise Robbins. She was the go-to prosecution witness for a while. But in the end, the judge ruled that it didn’t change the result because of other evidence. So there we were.

Jordan Smith: What Sarah didn’t know at the time was that Robbins was part of a much larger problem: that junk science and faulty forensics are pervasive throughout the criminal legal system. And that a single bad actor can end up doing a lot of harm, especially in a system that is not designed to acknowledge its mistakes or correct them.

Liliana Segura: The cops who handled Charles’s case had predicted that DNA would tie him to the murder of Edna Franklin, but no DNA testing ever took place. For one, Charles had confessed to the crime. But there’s another reason, and that had to do with the Houston Police Department crime lab: It was a mess. And it would take the conviction of an innocent teenager to expose just how bad it was.

“60 Minutes” (Vicki Mabrey): Four years ago, a Houston teenager named Josiah Sutton was found guilty of rape and sentenced to 25 years in prison. He was convicted primarily on the basis of DNA tests performed by the Houston Police Department’s crime lab. But is he really a rapist? The DNA said so, and that was enough for the jury.

It probably would be enough for most of us, who have come to believe that DNA is foolproof.

Jordan Smith: In 1999, 16-year-old Josiah Sutton was convicted of raping a woman in Houston. She’d IDed him as her attacker, and DNA testing done at the HPD lab seemed to back that up. But Sutton was adamant that he hadn’t done it.

KHOU (Anna Werner): A jury found Josiah Sutton guilty and sentenced him to 25 years. But Sutton still insists —

Josiah Sutton: Something’s wrong.

KHOU (Anna Werner): And now it turns out, he may be right.

Liliana Segura: Three years later, an investigation by local journalists with KHOU, the city’s CBS affiliate, would call those lab results into question and, ultimately, break open a far-reaching scandal.

KHOU (Anna Werner): Meet Dr. William Thompson from the University of California at Irvine. 

William Thompson: Repeated gross incompetence.

KHOU (Anna Werner): He’s a nationally known expert on scientific evidence in the courts.

William Thompson: After a while, you have to wonder whether they could really be that stupid.

Liliana Segura: The HPD lab was a complete disaster, and it had been for a long time. There was no better emblem of its dysfunction than the lab’s leaky roof, which repeatedly led to flooding in areas where crucial forensic testing was being done.

William Thompson: I’m William Thompson. I’m a professor, or now professor emeritus, at the University of California, Irvine. I’ve been studying and writing about DNA evidence for over 30 years.

Jordan Smith: Thompson helped KHOU expose the problems at the HPD crime lab.

William Thompson: I became involved in the Houston crime lab scandal because I had written a series of articles critiquing the way labs do DNA testing and pointing out problematic aspects of lab work, and I was somebody people started contacting when they saw things that they thought were troubling. And I was hearing a lot about troubling activities at the Houston crime lab.

Liliana Segura: He’d actually been asked to speak to a grand jury that was investigating problems at the lab. They had scheduled a tour, and they asked him to come along. The lab officials told them that they’d devised an “innovative way” to keep water out of the lab while the roof was being fixed. Thompson said it was like a Rube Goldberg device.

William Thompson: So we went in the lab, and you could immediately see the “innovative” steps that involved like these tarpaulins and garden hoses that were hanging from the ceiling [laughs]. So the idea was that water would be falling down from the ceiling panels into the tarps and be channeled on to the floor.

Liliana Segura: That afternoon, there was a pressure test scheduled for the roof.

William Thompson: And we knew that they were starting to pressure test the roof because, looking up, water was falling. Water was falling down that was hitting the very benches that they told us had been protected [laughs].

Liliana Segura: The lab also had human problems: Poor supervision and analysts who didn’t know what they were doing. This was a particular problem in DNA cases. KHOU ended up highlighting seven questionable cases, including Sutton’s. He was eventually exonerated.

KHOU (Anna Werner): An 11 News Defenders investigation brought his case to light. But the retesting of DNA evidence that resulted from those reports exonerated him.

Liliana Segura: In December 2002, the lab’s DNA operations were shuttered. Houston officials started looking for someone to conduct an independent investigation into the lab. In 2005, they hired Michael Bromwich.

Michael Bromwich: Folks in the lab were inadequately trained. Many of them did not have strong scientific backgrounds to begin with. There was virtually no quality control that was done in the lab, and so they just did bad work. There’s no other way to say it accurately. 

Jordan Smith: Bromwich had seen these kinds of problems before. Years earlier, as inspector general for the Department of Justice, he had spearheaded an inquiry into the FBI crime lab, which, generally speaking, was considered the gold standard for forensics. Turns out, that wasn’t exactly the case.

Michael Bromwich: It took about 18 months, and we found that the emperor had no clothes, and that the FBI — which was such a vaunted forensic laboratory, both domestically and internationally — was in fact an agency, an entity that was not doing good scientific work. And it was mostly the result of not having well-trained people, not following scientific protocols, not having management that — at its high levels — was composed of scientists.

Jordan Smith: The truth is that forensic practices were developed by police and not scientists, which is an ongoing problem in the fight over junk science used in criminal cases.

Liliana Segura: Once the probe into the HPD lab got up and running, it didn’t take long for Bromwich and his team to realize that this wasn’t just about a few DNA cases.

Michael Bromwich: DNA had not been around that long in the criminal justice field, but serology had been around for a really long time. We came to realize that there were so many profound problems with the way that lab examiners had looked at serology cases that we had to go way back in time.

Liliana Segura: In this context, the serology work we’re talking about is the identification and characterization of blood evidence found at a crime scene. Like, what type of blood is it? This is some of the most basic work a crime lab would do. And if that work got messed up, the implications were pretty vast.

Michael Bromwich: It seemed to us that clearly the right thing to do was to go back as far as 1980 and to look at all of the serology cases that had been mishandled — and so we did that. We got a significant amount of resistance from some of the stakeholders. We got a very substantial amount of resistance from City Hall, who claimed that we were broadening the investigation inappropriately, but that’s where the evidence was taking us.

Liliana Segura: In the end, the investigators reviewed more than 3,500 cases involving a range of forensic disciplines — DNA, serology, ballistics, toxicology, and controlled substances — and issued seven reports, known as the Bromwich reports. Their revelations were a bombshell: Analysts had fabricated results in drug cases, a practice known as “dry labbing.” And in DNA cases, analysts had failed on a number of fronts: screwing up or misstating results, including in death penalty cases.

Jordan Smith: At the same time, there were other, more subtle patterns that emerged, including with how crime lab analysts reported their findings. In particular, there was an issue with the word “inconclusive” and how it was repeatedly used to describe the results of forensic testing that didn’t match the cops’ theory of a case.

So, say the cops had a suspect who had Type O blood. And Type A blood was found at the crime scene. Instead of reporting that the blood types didn’t match, the result would be reported as “inconclusive.”

Liliana Segura: And remember the HPD analyst from Charles’s trial, Joseph Chu? He testified that when he compared the blood under Edna Franklin’s nails to Charles’s blood, his finding was “inconclusive.”

Here’s Sarah Frazier again.

Sarah Frazier: So there are problems with what Joseph Chu said and also problems with what Joseph Chu did. So he took the material that he knew to be, like, probative material. At the request of Sgt. Allen, he took it from the fingernail scrapings and he tested it for blood typing.

Jordan Smith: He found Franklin’s blood type: Type B. So no surprise there.

Sarah Frazier: But he also found in the right hand scrapings, he found a strong presence of Type A blood group substance, which means that someone left blood underneath those right fingernails and that person could only have had either Type A blood or Type AB blood because those are the two kinds of blood types that include blood group substance A. So he got that result, and then he did nothing else because that pointed not to Charles but to some other attacker. Charles had Type O blood. That means there is no A blood group substance there; there is no B blood group substance there.

Jordan Smith: That’s because Type O blood is defined as the absence of A and B. Charles has Type O blood. And the blood found under Franklin’s nails contained the A blood group substance, meaning that blood could not have belonged to Charles — or to Franklin.

Sarah Frazier: And so, someone else contributed that A. That should have led to additional forensic testing and additional investigation by HPD. But nothing like that happened.

Liliana Segura: When the cops got the warrant to arrest Charles, they’d promised the judge that once they had him in custody they’d be able to get a blood sample — and through that, DNA — and that would tie up the crime. But that never happened. And once Chu reported out the blood typing as “inconclusive,” the forensic investigation stopped.

A view of the Houston Police Department headquarters in Houston, Texas on September 3, 2021.

A view of the Houston Police Department headquarters in Texas on Sept. 3, 2021.

Photo: Christopher Lee for The Intercept

Sarah Frazier: And the Bromwich reports that came out many years later reported that that is exactly the practice of HPD and its crime lab at the time: to just shut down forensic work once it starts to point away from the arrested person. But all he puts in the homicide report was that his blood typing results were inconclusive. And everybody has agreed that they were not actually inconclusive. It was a conclusive result. Everybody’s also agreed that you would have to be incompetent as a scientist to believe that that was an inconclusive result. The other possibility is that you were lying.

Liliana Segura: We tried to reach Joseph Chu multiple times. We made calls.

[Calling Chu]

We went to his house and left a note.

[Driving to Chu’s house]

We sent him a letter in the mail.

[Leaving Chu’s house]

We never heard back.

Jordan Smith: Chu’s lab report was never handed over to the defense. So they went to trial without this critical information.

Sarah Frazier: There is no way for them to know that the most important forensic evidence in the case points to a different person having been the killer. And so there’s no way that they can know to ask that when they are cross-examining Joseph Chu at trial. And again, all he says at trial is that the results are inconclusive. And that is false testimony.

Liliana Segura: Charles’s trial lawyer, Felix Cantu, provided an affidavit to Sarah back in 2009, saying that he knew nothing about the blood not matching Charles and the jury had been misled as a result.

“If I had known about the presence of blood group substance A in the blood typing findings before trial, I would have asked Mr. Chu about it further and made sure the jury understood the significance of the finding,” Cantu wrote. “This exculpatory fact would likely have altered both the way I saw the case and my trial strategy.”

We asked Cantu about this when we met him back in March 2020.

Liliana Segura: Were you surprised when that came out?

Felix Cantu: Well, surprised? That’s probably not the right word for it.

Jordan Smith: Cantu said he wasn’t surprised so much as disappointed in Roberto Gutierrez, the prosecutor who tried Charles. If he’d had this lab report back then, he was required by law to turn it over to the defense.

The information about the blood typing wasn’t the only piece of forensic evidence that was withheld from Cantu. As it turned out, Chu had also tested articles of Charles’s clothing for blood. He found none. And that was significant, because it was such a bloody crime scene. Also troubling is that key pieces of evidence were just lost.

There is the crime scene video, which was checked into evidence back in October 1992 but has since disappeared. And then there’s Edna Franklin’s nightshirt: white with little purple flowers. She was wearing it when she was murdered. According to police records, the shirt was inspected in the HPD property room by Gutierrez back in March 1994.

Then, just one day before opening statements in Charles’s trial, it was checked out permanently by HPD’s homicide division. It wasn’t entered into evidence, and it’s never been seen again. Charles’s lawyers have been looking for it for years.

During a March 2006 court hearing regarding the missing shirt, Gutierrez claimed ignorance, saying it could’ve been packed in with paper files after the trial — which is weird, at best, since it would be covered in biological evidence.

Sgt. Waymon Allen testified that the homicide division never had the shirt. Even though it was recorded that way in the files, he said the evidence went straight to Gutierrez.

Liliana Segura: The nightshirt was never tested by the crime lab, which is super sketchy because it was covered in blood: Franklin’s for sure, but also possibly her killer’s.

We know Franklin put up a fight, and we know foreign blood was found under her nails. And it wouldn’t be surprising if the killer had cut himself while stabbing her repeatedly. This happens. Blood is slippery, and the more of it there is, the greater the chance that an attacker’s hand will slip onto the blade.

The wounds to Edna Franklin were severe. Dr. Eduardo Bellas, the medical examiner, said some of the cuts were four or five inches deep. This is something else that’s always bothered us. At trial, Bellas testified that a knife with a blade as small as two inches could have been used to stab her.

Charles was known to carry a small pocket knife. For the case to make sense, these two things had to fit together: small knife, deep wounds. But they never even found a murder weapon. So all of this was just speculation on top of speculation.

Jordan Smith: We decided to ask our own expert to weigh in.

Lloyd White: Hello!

Jordan Smith: Hey, Dr. White! How are you?

Lloyd White: Hi, Jordan Smith. How are you?

Jordan Smith: Dr. Lloyd White has been a forensic pathologist for decades. He’s worked in Mississippi and all over Texas. He’s retired now, but he agreed to check out Charles’s case.

He’s a big fan of classical music and pretty much any time you talk with him, you’ll hear it in the background.

We wanted to be careful not to bias him in any way. So we sent him just a brief overview of the crime, along with the autopsy report, crime scene and autopsy photos, and Bellas’s testimony.

Lloyd White: This is a really vicious attack. I mean, it’s what we usually refer to as overkill. In other words, not somebody that just kills somebody, but they just really produce injuries upon injuries upon injuries intentionally with a lot of anger involved. Was this a robbery situation?

Jordan Smith: That’s a very good question. We don’t know.

Jordan Smith: White had some pretty clear feelings about the murder weapon and Bellas’s assertion that the injuries could’ve been caused by a knife with a two-inch blade.

Lloyd White: I mean, take out a ruler. This definitely was not a small pocketknife. I mean, yes, it could have been a pocketknife in the sense of a knife that you can close up and put in your pocket.

Look at the wounds, the muscles. He mentions the sternocleidomastoid. That’s the big muscle on each side of your neck that runs down from behind your ear down to your clavicle. That’s a big, thick muscle. Both of those muscles were severed all the way through, all the way through. And then he mentions the strap muscles — the small up and down muscles in front of the larynx — those were severed. And then part of the trachea was severed, about 50 percent of its circumference was severed through. That is a large, sharp knife to produce those kinds of injuries.

I mean, to me, I think it was some kind of a hunting knife, like a Bowie knife or something like that. Or it could have been some kind of a kitchen knife, a steak knife. During the investigation, did anybody ever look at the kitchen knives?

Liliana Segura: There’s no way to know, but there’s no mention in the police report of anyone looking for evidence in the kitchen or what might be missing. White said the killer wouldn’t necessarily have cut himself during the attack.

Lloyd White: They certainly are going to have some blood on them somewhere or on their clothing.

Jordan Smith: Do you think that would be hard to avoid?

Lloyd White: Yeah, I think it’d be impossible to avoid, unless you were dressed up head to toe in some kind of a protective suit.

Liliana Segura: He asked us if anyone had ever done any DNA testing. We told him there was the serology evidence from 1992 and then later DNA, both developed from blood caked under Franklin’s fingernails, and that neither matched Charles.

Lloyd White: You’ve got two pieces that are very significant. There’s a blood type that doesn’t match, and now you’ve got DNA that doesn’t match. So you’ve got two pieces of powerful physical evidence that exonerate the defendant.

Liliana Segura: Sarah and the rest of Charles’s legal team firmly believed that if the jury had known about the serology evidence back in 1994, the outcome of Charles’s trial would’ve been way different — that he would’ve been acquitted. Now they believed the DNA evidence should exonerate him. All they had to do was convince the courts.

Jordan Smith: OK. Easier said than done, because the criminal justice system is designed as a one-way ticket. You have a constitutional right to a fair trial, but once you’re convicted, the system is set up to keep it that way.

This is one of the reasons why appeals can be so drawn out — and why they bounce back and forth among various courts. Lawyers have to jump through dozens of hoops to get anything done. And these hurdles don’t disappear just because you have DNA evidence that points to your innocence.

In Charles’s case, the legal wrangling over the DNA went on for years. First, there was the fight to get DNA testing. And then when the DNA results came back, pointing away from Charles, his legal team would face a whole new battle.

Liliana Segura: Before we get into this legal saga, we need to share a bit of history with you about the Texas law that allowed Charles to seek DNA testing in the first place. It’s commonly referred to as Chapter 64. And before it passed, it was almost impossible for people like Charles to access testing that might help them prove their innocence.

Jordan Smith: And, as with so many of Texas’s criminal justice reforms, Chapter 64 was passed in response to a string of high-profile embarrassments, including in the case of Roy Criner.

KPRC 2 (Linda Lorelle): Good evening everyone, Roy Criner was sentenced to —

Jordan Smith: In 1990, Criner was sentenced to 99 years in prison for the rape and murder of 16-year-old Deanna Ogg. But he swore he was innocent. He caught a rare break in 1997 when he got access to DNA testing. It showed semen left in Ogg’s body did not match Criner.

[News montage]

News Anchor: The DNA test shows that the semen found in the victim is not Criner’s.

News Anchor: The judge says that if jurors had known all of this, they might have acquitted.

Jordan Smith: He wanted a new trial. But the Court of Criminal Appeals, the CCA, balked.

Sharon Keller: The evidence didn’t show that he did not have sex with this woman. It can’t. Just like the absence of fingerprints right here doesn’t show that I didn’t touch that chair. It can’t show he didn’t do it.

Jordan Smith: In a truly mind-boggling interview with PBS’s “Frontline,” the court’s presiding judge, Sharon Keller, said the DNA didn’t matter. She claimed Criner might’ve worn a condom and that Ogg was just “promiscuous” and probably had sex with multiple people before she was killed.

Sharon Keller: You’re not taking into account the fact that she was a promiscuous girl.

Jordan Smith: Neither claim had ever been argued before any court. And neither was true.

Liliana Segura: In 2000, then-Gov. George W. Bush pardoned Criner. And the following year, the Texas Legislature passed Chapter 64.

So when Sarah started seeking DNA testing in Charles’s case, the law was brand new. Pretty quickly, it became clear that prosecutors weren’t exactly embracing it. Sarah went to the court where Charles was tried to ask for DNA testing. At the state’s urging, the judge denied the request. That meant Sarah had to go to the CCA to ask the judges to step in.

In 2004, Sarah made her case. Since the serology that had been hidden from the defense pointed to another killer, it was reasonable to think the DNA might too. The state, on the other hand, argued that because Charles had confessed, he wasn’t entitled to testing — even under this new law.

The lawyer who argued this position was Assistant District Attorney Kelly Smith.

Kelly Smith: May it please the court. My name is Kelly Smith, I’m from Harris County on behalf of the state of Texas.

Jordan Smith: Smith was peppered with questions from a number of the court’s nine judges. Their job was to decide a legal question. But they seemed at least as interested in a practical one: Why didn’t the state want to know the results of DNA testing?

Judge 1: Are you prepared to state the position why you wouldn’t just do it, just allow?

Kelly Smith: Me personally? [laughs]

Judge 1: No, the state of Texas, as represented by you. Why would you not want to know DNA test results?

Kelly Smith: Well, I have to tell you that we’ve been inundated by requests. There has to be an expense issue there.

Liliana Segura: One judge brought up the HPD crime lab scandal and questioned why the state wouldn’t want to spend a little money to ensure, at the very least, the “perception of justice.”

Kelly Smith: I don’t want to say no. I would say I would agree with you, but personally I’m not the person making those decisions. That’s a valid argument, especially because the nightshirt is missing. We don’t know where it is.

Judge 1: I’m just wondering why you would not want to do it if it didn’t cost you a dime? I’m talking about you guys jumping up and saying, “We want to be sure all the evidence about this case is known before we kill this guy.”

Kelly Smith: Well, I understand, that’s a completely valid concern.

Judge 1: But you don’t know the answer. [crosstalk]

Kelly Smith: I’m not privy to that decision-making — no, I don’t know the answer.

Judge 1: You’re not the person who makes these decisions.

Kelly Smith: Right, no, and I’m kind of glad too. This is a hard decision to make. Where do we draw the line? There’s hundreds and hundreds of defendants that want tests.

Liliana Segura: The judges also wanted to know what the state would do if the DNA evidence came back pointing to someone else, and Smith’s answer was pretty remarkable.

Kelly Smith: I don’t think finding someone else’s blood or DNA at the crime scene would prove this appellant’s innocence, given his admittedly voluntary confession and the other circumstantial evidence tying him to the —

Judge Cheryl Johnson: But you just admitted that the state’s theory was that he was the one and only attacker.

Jordan Smith: Smith conceded that in his confession, Charles talked about committing the crime alone. But if the DNA didn’t match Charles, the Harris County DA’s office wouldn’t let that pesky fact interfere with its case.

Kelly Smith: Then we might charge someone else with the crime as a party. We would change the theory. But I think just looking at the reasonable probability standard here, I don’t think that finding someone else’s blood, finding the presence of a third person is going to exonerate this defendant.

Liliana Segura: Did you hear that? Her answer was that the DA’s office would just change their theory of the crime. They would look for another suspect, in addition to Charles, not instead of him — even though they acknowledged there was no physical evidence tying Charles to the scene.

Jordan Smith: In June 2005, the CCA handed down its ruling. The judges agreed with Sarah that Charles should be allowed DNA testing. It was a huge deal and way outta character for the court.

Before long the testing got underway. And the results were a revelation: An unknown male profile was found in blood caked under Franklin’s fingernails. The DNA results and the withheld serology work from 1992 both pointed to an unknown suspect. That was potent evidence. So you’d think the state would acknowledge that. But you’d be wrong.

A view of the old Harris County Criminal Courts building that has since turned into the Harris County Juvenile Justice Center in Houston, Texas on September 3, 2021.

A view of the old Harris County Criminal Courts building, now the Harris County Juvenile Justice Center, in Houston, Texas, on Sept. 3, 2021.

Photo: Christopher Lee for The Intercept

Liliana Segura: In 2009, Sarah and the legal team landed back in the district court where Charles was tried. This time, Sarah was there to argue that the physical evidence exonerated Charles. The judge was Joan Campbell. Both sides, the local prosecutor and Charles, had their own expert witnesses.

The striking thing about this hearing was that these experts agreed that Chu had falsely reported that the serology evidence was inconclusive. And they agreed that there was foreign DNA found under Franklin’s fingernails.

They also agreed that the DNA wasn’t the result of contamination; so it didn’t get there because of a lab mistake or other blunder. But while Sarah argued that the DNA evidence would have acquitted Charles at trial — and that it should clear him now — the state, represented by Assistant District Attorney Lynn Hardaway, insisted that it didn’t exonerate Charles and that the DNA under Franklin’s fingernails could have gotten there in any number of ways, including when she fell onto the carpet in her living room.

It was a lot like what the state did at Charles’s trial. There, prosecutors found a bunch of ways to explain away the total lack of physical evidence pointing to Charles. Now they were explaining away concrete physical evidence that pointed towards another person.

Jordan Smith: Also, this whole idea of casually getting foreign DNA under your fingernails is just ridiculous. There are a bunch of studies that show it’s really hard to get foreign DNA under your nails — and that once it’s there, it doesn’t easily disappear.

They’ve studied intimate partners (turns out, it’s not so easy to get your lover’s DNA under your nails) and bodies submerged in water (DNA was still there). So the whole idea that Franklin just touched the carpet and this DNA lodged under her nails was pretty hard to believe. And remember, this DNA was developed from blood found under her nails.

Plus, she was pretty isolated. She didn’t get around well and spent most of her time in her bedroom. The only people she came into daily contact with were her grandsons, Eric Benge and Lee Rose. And the DNA didn’t belong to them either. If getting foreign DNA under your nails was as easy as touching the carpet, you’d expect to find Lee’s or Eric’s genetic material there too.

Still, Judge Campbell wasn’t convinced. In a ruling riddled with typos, she denied that Charles’s trial would’ve gone any differently if the jury had known about the DNA. And to back up her opinion, she invoked some things that can only be described as bullshit.

Liliana Segura: Remember the supposed foot impressions found on Eric’s bed the night Franklin was murdered, the wrinkles that weren’t actually footprints — at least as far as the state’s own expert was concerned? Campbell pointed to these “footprints on the bed” as proof that Charles still would’ve been convicted. Campbell’s ruling meant Sarah would have to go back to the Court of Criminal Appeals.

Jordan Smith: When Sarah returned to the CCA in 2013, the state was once again being represented by Assistant DA Lynn Hardaway. And the arguments were a lot more jumbled, confusing, and, frankly, misleading.

The DA’s office had initially told the court that if the DNA didn’t match Charles, they would just change their theory of the case. Now they said the DNA didn’t matter at all, and you could forget about looking for anyone to match it to. The DNA evidence was “weak,” Hardaway said. What was important was the confession.

Lynn Hardaway: And in this case, you can’t get around the fact that not only did Mr. Raby confess, he got up and testified at the suppression hearing that his confession was truthful and voluntary.

Liliana Segura: Hardaway emphasized the parts of Charles’s confession were corroborated at trial. One judge responded by pointing out things in the confession that clearly contradicted the state’s case. She gave an example: Police said Charles left Franklin’s house out the back door, but there was no blood found on the door handle. And the confession said that it was only later that Charles realized his fingers were sticky and washed off the blood.

Judge Cheryl Johnson: That’s the kind of thing I’m thinking about. That there were some things that were remarkably inconsistent between the testimony at trial and his confession.

Judge Elsa Alcala: Is there any physical evidence, not his confession but physical evidence, that ties him to the crime scene, such as DNA on other articles?

Lynn Hardaway: No.

Liliana Segura: Was there any physical evidence tying Charles to the crime, another judge asked? No, Hardaway replied.

Jordan Smith: In the end, even though the judges had some good questions, it didn’t matter. They ruled that the new DNA and the serology evidence that had been hidden from Charles’s defense weren’t enough to overturn his conviction. The court, like the DA’s office, seemed to care a lot more about a confession with some serious holes in it than biological evidence that did not match the suspect and that would call into question the entire theory of the crime.

Liliana Segura: This might seem shocking. But for those who know the CCA, it’s all too familiar.

Elsa Alcala: My name is Elsa Alcala, and I am a former judge on the Texas Court of Criminal Appeals, which is the Supreme Court of Texas for criminal cases.

Liliana Segura: Alcala is one of the judges you just heard questioning Lynn Hardaway.

Jordan Smith: She worked as a prosecutor in Harris County at the time Charles was convicted. Later she was appointed to the CCA by Republican Gov. Rick Perry. In his 14 years in office, Perry oversaw 319 executions, the most of any governor in the U.S.

During her years on the court, Alcala was transformed. She became more and more vocal about her concerns with the state’s death penalty system.

Elsa Alcala: It just seemed like they were bending over to affirm the death convictions.

Jordan Smith: One of the long-standing criticisms of the CCA is that they’re all too eager to act as a rubber stamp, upholding death sentences no matter how messed up the case is.

Elsa Alcala: I found it very frustrating. I sometimes joked; I said, I feel like I’m the police officer of the court. That if I’m not here threatening to write a dissenting opinion to kind of shed light on what’s going on, that they would be happy to just issue this one paragraph order that just says “We deny.”

Jordan Smith: She found herself going along with some of their rulings but tried to write opinions that would explain why the court was doing what it was doing.

Elsa Alcala: I got tired of writing opinions that said, “This really stinks. This really, really, really stinks, and I feel really bad, but this is what I have to do.”

Liliana Segura: Eventually, she found that untenable and began writing fiery dissents.

Elsa Alcala: I just thought, “You know, you’re a judge on a high court. You can actually try to do justice. You can actually try to reform the law to make the law make sense.”

Jordan Smith: But in the end, she decided that advocating from the bench wasn’t gonna cut it. She announced that she was leaving the court at the end of 2018. 

Liliana Segura: We didn’t discuss the details of Charles’s case with Alcala. But it’s not every day that someone in her position speaks so honestly about their misgivings over a system they spent so much of their career upholding. The institutions that carry out capital punishment are largely opaque and unaccountable. And here’s someone who knows those offices inside and out, calling out the system for being unfair.

Jordan Smith: Still, like the CCA, Edna Franklin’s daughter, Linda McClain, sees the confession as pretty much the last word.

Liliana Segura: All these years later, she just doesn’t see why Charles would’ve confessed to something he didn’t do. So the DNA alone has never really impressed her all that much. But when we went to visit her and her son, Lee Rose, back in February 2020, we had a chance to talk to them a bit more deeply about the forensic evidence.

They didn’t know about the serology work that had been done in 1992. And they didn’t know that Joseph Chu had lied about it: said in court that the results were inconclusive, when he’d actually found a foreign blood type under Franklin’s nails. We were the ones who told them.

Jordan Smith: They found, back in 1992, blood that was not yours, blood that was not Eric’s, blood that was not Charles’s. And then at trial, the crime lab analyst lied about that. And I don’t know if you knew about that.

Linda McClain: No. But I mean, if he did that, why wouldn’t that be enough of a reason to get a new trial or something?

Jordan Smith: Because they hid it. The police hid that evidence.

Linda McClain: Wait, OK. [crosstalk]

Lee Rose: Back then, the police were —

Jordan Smith: The crime lab was under the police department.

Lee Rose: The crime lab was under scrutiny —

Jordan Smith: Well, it didn’t come out until later.

Linda McClain: But then what I’m saying is, if somebody said they lied about that, and everybody knows that they lied about that — [crosstalk]

Jordan Smith: Only found about it as the DNA was being found, then this paperwork that had existed that had never been turned over —

Lee Rose: So why couldn’t they give him a new trial now?

Linda McClain: Why wouldn’t they give him a new trial?

Liliana Segura: Why couldn’t they give Charles a new trial now? It was a good question.

Jordan Smith: Does it bother you that they lied about finding foreign blood, back in the ’90s?

Lee Rose: If they knew it was there, I mean, everything should’ve been legit, and they should’ve tested everything, I think. They shouldn’t have lied about it.

Liliana Segura: It’s worth taking a second to consider what it must have been like in this moment for Linda and her son. This was the first time — in some 28 years — that they were hearing about the fact that there was evidence that pointed to someone else back in 1992. And for some reason, they were learning about it from a pair of reporters. Not from the cops who were supposed to thoroughly investigate. And not from the prosecutors who always bend over backwards in death penalty cases, claiming everything they do is for the victims.

Jordan Smith: We listened as they thought through the implications. The serology evidence recast the DNA evidence. And, Linda wondered, could someone else have been there? And could this actually help Charles?

Next time on Murderville, Texas: “Linda.”

Linda McClain: I don’t understand why, where it came from. It does drive me crazy. Don’t think it doesn’t drive me crazy, because it does. But don’t think I think he’s innocent because I don’t. He is not innocent.

Liliana Segura: Murderville, Texas is a production of The Intercept and First Look Media.

Andrea Jones is our story editor. Julia Scott is senior producer. Truc Nguyen is our podcast fellow. Laura Flynn is supervising producer. Fact-checking by Meerie Jesuthasan. Special thanks to Jack D’Isidoro and Holly DeMuth for additional production assistance.

Our show was mixed by Rick Kwan, with original music by Zach Young. Legal review by David Bralow.

Executive producers are Roger Hodge and Christy Gressman. For The Intercept, Betsy Reed is the editor-in-chief.

I’m Liliana Segura.

Jordan Smith: And I’m Jordan Smith.

You can read show transcripts and see photos at theintercept.com/murderville. You can also follow us on Twitter: @lilianasegura and @chronic_jordan.

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Thanks, so much, for listening.

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