The Dallas Morning News
Texas Criminal Appeals Court says man thought innocent
by lower judge should remain behind bars
Andy Jacobsohn/Staff Photographer
Ben Spencer, who maintains his innocence, is serving a life sentence at the Coffield Unit near Palestine, Texas.
By STEVE McGONIGLE and JENNIFER EMILY
Staff Writers
Published 20 April 2011 11:02 PM
The state’s highest criminal court on Wednesday rejected a Dallas judge’s
recommendation that a man who has served more than 20 years in prison for a fatal
carjacking should be declared innocent.
The Texas Court of Criminal Appeals said it was not convinced that poor lighting
discredited the eyewitness identifications that formed the basis of the prosecution’s
case against Benjamin John Spencer.
Had the court accepted Spencer’s claims, it could have made it easier for prisoners to
obtain exonerations in convictions that rested on eyewitness testimony but lacked DNA
evidence.
Judge Lawrence Meyers, writing for the appeals court, found that a scientific analysis of
lighting levels presented by Spencer’s appellate attorneys would not have convinced the
trial jury that Spencer did not rob and fatally beat clothing executive Jeffrey Young in
March 1987.
Unlike DNA evidence, Meyers wrote, lighting conditions cannot be preserved. The
lighting near the crime scene — which a defense expert examined in 2008 and found
too low for witnesses to make an accurate identification — did not duplicate conditions
on the night of the crime, Meyers found.
“An expert report saying that it was too dark and the car was too far away for the
eyewitnesses to have seen [Spencer] does not affirmatively establish his innocence,”
Meyers wrote.
Watkins’ reaction
The court’s ruling was a victory for Dallas County District Attorney Craig Watkins, who
has built a national reputation for his willingness to exonerate the wrongly convicted. All
but one of more than a dozen cases overturned in the county since Watkins took office
involved faulty eyewitness identification. Almost all the exonerations rested on DNA
evidence.
Watkins has become a vocal advocate for revising police procedures around the state
to improve the accuracy of eyewitness identifications. But he opposed state District
Judge Rick Magnis’ recommendation that the appeals court set aside Spencer’s
conviction.
“It’s unfortunate for him, but I think it’s great for our criminal justice system that we’re not
going to get bogged down,” Watkins said Wednesday.
Cheryl Wattley, Spencer’s lead appellate attorney, noted that a concurring opinion to the
main decision cited Watkins’ history of supporting innocence claims as one reason the
Austin court took three years to decide the appeal.
“The opposition from the district attorney’s office actually overshadowed any information
and arguments that we made,” Wattley said. “I think that made it an uphill climb that we
could not overcome.”
No decision has been made on the next step, Wattley said, but the case is not over. “If
that means seeking recourse in the federal courts, that’s where we’ll go,” she said.
She said the decision in Spencer’s appeal should remind defense attorneys that
prosecutors and courts are not automatically willing to re-examine convictions,
especially in cases without genetic evidence.
“DNA proves that the system in not infallible, but we are only willing to recognize the
infallibility when there is DNA,” said Wattley, a former Dallas attorney who now teaches
law at the University of Oklahoma.
“We’ve got to make the system work. We cannot give up,” she said. “Does it make it
harder? Have I been crying in my classes today? But you don’t give up on Ben.”
Neighbors’ testimony
Spencer, now 46, was convicted by a jury in March 1988 of robbing Young and
sentenced to life in prison. He has spent most of the past 23 years in the Coffield prison
unit near Palestine. He has been rejected for parole once and is not eligible again for
two years.
His conviction rested largely on the testimony of Gladys Oliver, a West Dallas neighbor
who identified him as one of two men she saw emerging from Young’s 1982 BMW
around 10 p.m. on March 22, 1987. Oliver’s house backed on the alley where Young’s
car was abandoned.
Two other neighborhood residents, Jimmy Cotton and Charles Stewart, also testified
they saw Spencer getting out of Young’s car. Cotton was cooking inside in his house
across the street from the car. Stewart was standing in a driveway more than 100 yards
away.
After Spencer’s initial round of appeals failed, he persuaded Centurion Ministries, a New
Jersey organization that investigates innocence claims, to take up his case. Centurion
filed a second appeal that claimed the identifications of Spencer were faulty and another
man had actually committed the crime.
In 2008, Centurion presented Magnis with an analysis by lighting expert Paul Michel
that concluded there was not sufficient illumination on the night of Young’s slaying for
Oliver, Cotton and Stewart to have made an identification.
The district attorney’s office insisted the scientific evidence was flawed and that each of
the eyewitnesses knew Spencer from the neighborhood and could easily recognize him.
“I think we’re being very prudent in our approach, that not everyone who makes a claim
should be exonerated,” Watkins said.
Magnis eventually ruled in Spencer’s favor. He found the visual evidence persuasive
and recommended that the Court of Criminal Appeals declare Spencer to be innocent of
Young’s robbery and murder. He declined to comment on the appeals court’s ruling.
Unusual circumstance
Magnis’ recommendation in the face of the district attorney’s opposition was unusual.
The vast majority of contested post-conviction appeals do not result in a ruling that
favors the applicant.
It is similarly uncommon for the Court of Criminal Appeals to reject the recommendation
of a trial court judge in post-conviction cases.
Jim McCloskey, president of Centurion Ministries, said he was stunned by the appeals
court’s decision, calling it “wrongheaded and deeply and tragically unjust.” “The thing
that really disturbs me is that Judge Magnis is the one who heard the witnesses,
questioned them at length and listened,” McCloskey said.
Spencer’s mother, Lucille Green, who still lives in the West Dallas neighborhood where
Young died, said she continues to hope her son will someday be released. Green said
she doesn’t understand why the district attorney’s office believes in her son’s guilt.
“He is innocent,” Green said. “They have no evidence.”
Staff writer Richard Abshire contributed to this report.
smcgonigle@dallasnews.com; jemily@dallasnews.com