Sunday, 24 February 2008

Triumph, tragedy mark lives of men exonerated in '88 murder

Chris Ochoa, in his law office in downtown Madison, Wis., went on to earn a law degree from the University of Wisconsin, whose Innocence Project helped release him from a life sentence in prison.

In 1988, one man confessed to a murder he didn't commit – and accused an innocent friend

01:13 AM CST on Sunday, February 24, 2008

By DIANE JENNINGS / The Dallas Morning News

MADISON, Wis. – How could you do it? The question dogs Christopher Ochoa. It always will.

In 1988, Mr. Ochoa, then a naive 22-year-old, confessed to a brutal rape and murder he didn't commit, and accused an innocent friend, Richard Danziger, of the same crime to avoid the death penalty.

The two men were sentenced to life in prison. Twelve years later, they were exonerated by DNA evidence and among the first of a parade of people who have made Texas the national leader in acknowledging wrongful convictions. Their shocking tale still reverberates around the state Capitol, where legislators keep passing laws to fix flaws that the case revealed in the criminal justice system.

Mr. Ochoa, now 41, triumphed over his past. He is now a criminal defense attorney, having graduated from the University of Wisconsin Law School – the same school that helped free him. Thanks to a multimillion-dollar civil settlement, he has set up a modest office across from the scenic Wisconsin Capitol, where he can pick and choose cases. He's planning to buy a house and get married.

"This is what I dreamed of" during years hemmed in by guards and razor wire, he says softly.
But Mr. Danziger's story is one of tragedy. Mr. Danziger, who always maintained his innocence, suffered brain damage when another inmate repeatedly kicked him in the head with steel-toed boots. He now lives under his sister's guardianship in Florida, his multimillion-dollar settlements providing medical care and personal assistance.

"Everybody involved in this case has drug himself through the desert behind a Jeep trying to figure out what happened," says Travis County District Attorney Ronnie Earle. "It is far and away the strangest case I can remember."
The real killer came forward and is in prison. The criminal justice system has changed for the better. But many affected by the Ochoa-Danziger case say their faith in the system was permanently shaken.

"In the end, justice did prevail," says John Pray, a law professor at the University of Wisconsin. But "you look at both those [men] and you don't know what to make of it. ... One is very exhilarating, and the other is just downright depressing."

The confession

How could you do it?
It's one thing to make a false confession about yourself; it's another to implicate someone else.

Mr. Ochoa responds patiently. Being threatened with the death penalty during interrogation, the choice seemed clear: lie or die.

Shy by nature, Mr. Ochoa says, "I never liked conflict. I always wanted to make people happy."
He'd been a good student at an El Paso high school, never in trouble with the law.
He moved to Austin to make money for college, getting a job at Pizza Hut. He shared an apartment with fellow employee Richard Danziger, 18, and another restaurant worker.

In the fall of 1988, Austin was buzzing about the brutal rape and murder of 20-year-old Nancy DePriest. Early one October morning, the young wife and mother was assaulted while alone mixing dough at a different Pizza Hut. She was bound, raped and shot in the back of the head.

A couple of weeks later, Mr. Danziger suggested that after work, he and Mr. Ochoa grab a beer at the restaurant where the killing occurred. "I found that strange," Mr. Ochoa says. "I just wanted to go home."

But he went along, joining Mr. Danziger in a toast to the dead woman's memory. Mr. Ochoa says he was nervous because Mr. Danziger was underage.

On their way out, Mr. Danziger chatted with a security guard about the killing.

Suspicious employees called the police.

When officers approached Mr. Ochoa two days later on a Friday at work, he assumed they were interviewing all employees. He went willingly to the police station.

"Aren't we all taught that police officers are there to protect you, if you haven't done nothing wrong?" he said. "And I hadn't done nothing wrong."

In an interview room, Mr. Ochoa says, one detective introduced himself by slamming his fist on the table and telling him he was known as el cucuy on the streets – "the boogeyman" in Spanish.

Officers asked him why he and Mr. Danziger had inquired about the robbery.

"Just curious," Mr. Ochoa responded.

"Nobody is just curious," an officer replied. "You've got to know something."

The detectives soon told him "somebody's gotta die" in such a highly publicized case.

"Police officers form a tunnel vision that they think, 'This is our guy,' " Mr. Ochoa explains with the clarity of hindsight. "They're not looking for the truth. They're just trying to find something."

Mr. Ochoa doesn't know how long he sat in the interrogation room because it was "like Vegas casinos – no clocks."

He says he asked for an attorney, but he was wrongly told he couldn't have one unless charged.

Finally, an exhausted Ochoa told them Mr. Danziger had told him about the crime. "At some point you think, 'If I just get out of here, if this will just stop, I can go talk to an attorney,' " he now says.

That night, he says, the officers took him to a motel for his safety because he'd "cooperated."

When the two officers picked him up Monday morning, Mr. Ochoa still hoped the system – a judge, a prosecutor, a defense attorney, somebody – would realize a mistake was being made.

But that morning, officers suggested he'd been the lookout. As his denials continued, so did the specter of the death penalty.

"By then, I am really mentally exhausted," Mr. Ochoa recalls. "I think back on this and sometimes it just gives me the chills."

The hours dragged on.

Through the two days of interrogation, detectives showed him autopsy pictures, pointed to the vein where the lethal injection would be administered, told him that he'd never hug his mother again and that he'd be "fresh meat to prisoners."

"I kept telling them I didn't know what they were talking about," Mr. Ochoa says.

Once, an officer threw a chair, which bounced off the wall above Mr. Ochoa's head. "That scared me even more."

When another officer offered to "bring out the typewriter and help you with your statement," Mr. Ochoa finally gave in.

His second statement was written with details about the crime apparently provided by the police – such as how the restaurant had been flooded in an effort to destroy evidence. When Mr. Ochoa got a detail wrong, he said, officers went over it with him until it fit the evidence.

That second statement said Mr. Ochoa and Mr. Danziger entered the building, tied Ms. DePriest's hands behind her back, and raped her repeatedly. Mr. Danziger shot Ms. DePriest, Mr. Ochoa said.

That statement came after two days and at least 15 hours of interrogations.

Mr. Ochoa says he knows people look at him expecting to see shame or guilt for confessing falsely. "But you know what?" he says. "In your mind, you were trying to survive."

An Austin Police Department review later found "strong indications that investigators supplied Ochoa with information," but there wasn't enough evidence to prove that the confession was coerced.

Two of the detectives could not be reached for comment. A third has since died.

Jamie Balagia, a police officer-turned-defense attorney and the brother of the deceased detective who interviewed Mr. Ochoa, frequently represents police officers. Courts have ruled that it's acceptable for officers "to yell, to scream, to threaten the death penalty," he says, "but never, ever should an officer feed not even one detail."

Michael Burnett, who represented another of the detectives in subsequent civil suits, which were settled by the city and county with no admission of wrongdoing, said some of the blame lies with Mr. Ochoa. Some also lies with the Police Department "for having an understaffed homicide department that relied too heavily on confessions."

Any mistakes were unintentional, both men say.

The plea bargain

Even after his arrest, Mr. Ochoa thought someone in the criminal justice system would realize an injustice was occurring.

He says he told his court-appointed attorney, Erik Goodman, why he'd confessed. But he says Mr. Goodman told him there was "no way an innocent person would give such a detailed statement."

Mr. Goodman declined to comment.

Mr. Ochoa says he also told a second attorney he was innocent.

That attorney, Nate Stark, says he can't recall Mr. Ochoa telling him he had falsely confessed. "That's far too long ago," he says.

But "I never believed that anyone would, No. 1, testify against another person in the compelling way he did and also testify basically against himself, unless a person's committed the crime," Mr. Stark says.

Mr. Ochoa had already confessed when Mr. Stark took the case. Mr. Stark says he performed his job as he should have.

Mr. Ochoa says he felt pressured by his attorneys to plead guilty, "probably because they believed I was guilty – but also because it was easier for them; it was less work," he says. And he admits, "They were trying to save my life."

Mr. Stark denies pressuring any client to plead.

Mr. Ochoa's mother, who believed in his innocence, also encouraged him to take a plea bargain, he says, because "they're going to kill you." When her health deteriorated, possibly from stress, Mr. Ochoa said, he finally agreed.

Four months after his confession, Mr. Ochoa took a polygraph exam as part of the plea bargain, Mr. Stark says. When the examiner reported "deception" to the question of whether Mr. Danziger had been the shooter, Mr. Ochoa changed his confession yet again: He identified himself as the killer.

Mr. Ochoa was offered a life sentence if he testified at Mr. Danziger's trial for aggravated sexual assault. "It was a really hard decision," he says.

He took it.

The trial

Chris Ochoa was a meek, mild-mannered young man. Richard Danziger was an angry one.

Mr. Danziger is the youngest of four in a military family. His world collapsed when his parents waged a nasty divorce, says his sister, Barbara Oakley.

Ms. Oakley declined an interview on her brother's behalf. He "doesn't talk to the media," she explains. "He finds them just as much at fault as he does Chris."

Mr. Danziger dropped out of high school in Beeville but earned a GED. His criminal record was short: five years' probation for forging a $55 check from his mother.

She pressed charges because "she was trying to prove a point to him," Ms. Oakley says. "I think it just made him angrier."

That anger probably kept him from caving in when questioned about the murder. "He was more angry than Chris was," Ms. Oakley says. "More defiant, less willing to give in to authority."

But with the naiveté of youth, Mr. Danziger didn't seem overly concerned when charged. His attitude was, "I didn't do it, so don't worry about it," Ms. Oakley says.
He told police he was asleep with his girlfriend at the time of the murder.
Ms. Oakley, who is five years older, knew her brother wasn't capable of that kind of violence. "You figure the system is going to work," she says.

It didn't.

When the state's star witness took the stand to lie about his friend, press accounts, largely from the Austin American-Statesman, painted Mr. Ochoa's testimony as riveting. According to reports about trial testimony, he concocted an elaborate, excruciating tale:
Mr. Danziger planned the robbery, because he needed cash. Mr. Danziger told Ms. DePriest "to shut up and give him the money." He pointed the gun at her, hit her, pulled off her pants and blouse and made her lie down.

Mr. Ochoa tied Ms. DePriest's hands with her bra and Mr. Danziger raped her. "He got me to sit down on her shoulders. ... She was kicking. He told her not to move or he'd blow her away."
Then Mr. Danziger told him, "It's your turn now. ... You're going to have fun with her, too."
"She was scared, she was crying. She was asking for help. ... Mr. Danziger said, 'You kill her.' ... I pulled the trigger." Then, he said the two men raped her again.

In contrast, when Mr. Danziger took the stand – wearing a bulletproof vest because of death threats – he was "flat, no passion there," says Judge Bob Perkins, who presided over the trial.
"I just thought, 'Man, this guy is a coldblooded killer.' "

Mr. Danziger simply told jurors he didn't know why Mr. Ochoa and other witnesses were lying.
In about three hours, jurors returned a guilty verdict; they took less than eight minutes to sentence Mr. Danziger to life in prison.
Days later, Mr. Ochoa received the life sentence he expected.

Life in prison

After his conviction, Mr. Danziger's letters home were mostly about working out. The mind-numbing monotony of daily prison life didn't have much chance to sink in because, about a year after he was sentenced, "he got hurt," Ms. Oakley says.

"Hurt" doesn't begin to describe what happened to Mr. Danziger, who, while watching TV, was attacked from behind by another inmate in a case of mistaken identity. The inmate kicked him in the head repeatedly with steel-toed boots.
He survived brain surgery, but he wasn't the same cocky young man. Part of his brain had been removed, leaving him subject to seizures, impairing his mobility, causing memory lapses and slurred speech.

Back in prison, Mr. Danziger found coping difficult. Sometimes he fell out of his bunk, once fracturing his skull. At other times he would get lost, and guards would find him crying in a corner. Sometimes he refused to shower because he was afraid of other inmates. If he didn't take his medication, he suffered from depression and hallucinations.

In December 1991, Mr. Danziger cut his wrist. Other suicide attempts followed.
Meanwhile, Mr. Ochoa learned to survive prison life. He was warned to be ready to fight, but it only happened once. "Then they respect you and you settle down," he says.
His low point came in December 1996. For years, he'd marked the weddings, births and job promotions of old friends through his hometown newspaper.

"A man usually looks at life when he's 30 and [asks] ... 'What have you done? Where are you at? How successful are you?' " he says. "I was a failure but not through fault of my own."
When Christmas Eve came and went without a card from his family, Mr. Ochoa says, he broke open a razor and planned to kill himself. A cut across the wrist is "a cry for help," he explains dispassionately. "Up [the arm] will do it."

But he remembered Catholic nuns telling him no one had the right to take a life, including his own.
"I dropped the blade in the toilet water, and the rest of the night I just cried," he says.
Despite his circumstances, Mr. Ochoa managed to make a life in prison. He renewed his faith, joined a prison choir and earned an associate's degree.

Today, no prison mementos decorate his law office. But a large, framed picture of an eagle in flight – a gift from law school friends – dominates one wall.
"When I was in prison, I would think how nice it would be to be an eagle," Mr. Ochoa says softly, "to be able to go wherever I wanted."

The real killer

Mr. Danziger and Mr. Ochoa were not the only inmates struggling because of the DePriest murder. So was Achim Josef Marino. But Mr. Marino wrestled with guilt.
That morning in 1988, Mr. Marino, an assistant manager at a flower shop, posed as a soda machine repairman. He talked his way into the Pizza Hut, bound Ms. DePriest's arms with handcuffs, raped her and shot her in the head as she knelt beside a sink.

Ms. DePriest was selected at random, Mr. Marino says. The killing was part of a satanic ritual, as well as an effort "to get back at society."
Mr. Marino says he showed symptoms of mental illness – torturing animals, destroying property, assaulting others – from an early age. He's been in and out of the legal system for decades.

In an interview at the South Texas prison where he's serving multiple life sentences, Mr. Marino, who has thick black glasses and the pasty complexion of someone who rarely sees the sun, was articulate and quick. But he's no criminal mastermind.
Still, no one ever suspected him in the DePriest killing.

Shortly after the murder, he was arrested in El Paso for carrying a weapon, which is illegal for ex-felons. The gun was the one used to kill Ms. DePriest, but no connection was made.
A couple of years later, Mr. Marino landed in the Travis County Jail. He received two life sentences for robbery and three more 10-year sentences for sexual assault, possession of a firearm and retaliation.

While in jail, another inmate told him about the confession in the DePriest killing.
"That's impossible," he says he replied. "I know the person who did that."
In prison, he joined Narcotics and Alcoholics Anonymous and embraced Christianity. Both groups and his new faith mandated that he "make amends to the persons you have hurt in the past."

Prison conversions aren't unusual, but they don't always last. Mr. Marino says he "decided to make a real conversion, not a shallow one."
In 1996, he wrote to Austin police and the American-Statesman, confessing to the DePriest rape and murder. "Chris and Richard needed to get out of prison," he says. "They didn't belong here."
"I don't like innocent people being hurt," he says, in spite of what he did to Ms. DePriest.
In his letter, Mr. Marino told police where to find the bank bag and handcuffs used in the attack. Authorities collected the evidence – but inexplicably did nothing else.

Two years later, the Travis County district attorney received a letter.

"I do not know these men nor why they plead guilty to a crime they never committed. I can only assume that they must have been facing a capital murder trial with a poor chance of acquittal," Mr. Marino wrote. "But I tell you this sir, I did this awful crime and I was alone."

Mr. Marino surmises Mr. Ochoa confessed after aggressive questioning. He's never met Mr. Ochoa but believes "he was very weak and not very assertive."
The district attorney's office interviewed Mr. Ochoa in prison. Without mentioning Mr. Marino's name, new investigators asked Mr. Ochoa about a third party to the crime.

Mr. Ochoa told them there was none. "I did this crime," he reiterated. "I did it, and let me do my time."
Mr. Ochoa says he stuck to his confession because acknowledgement of your crime helps at parole reviews. He says he also feared that remaining evidence might be destroyed if police realized they'd made a mistake. "I just wanted them to think I'm guilty" while getting help from outside the system.

In June 1999, he contacted the Innocence Project at the University of Wisconsin. Most requests for assistance are rejected because evidence often isn't available, says co-director John Pray. But in Mr. Ochoa's case, DNA was available.
False confessions are "a leading cause of wrongful convictions," Mr. Pray says. "We also knew that the reason that Chris gave was the death penalty. ... In Texas, it's not an idle threat. ... I can see how you confess to try to save your own life."

After the Innocence Project located the DNA evidence, the district attorney's office tested the material. About then, Mr. Ochoa's lawyers learned that someone else had confessed to the crime.
In September 2000, Mr. Ochoa was notified that DNA tests excluded him and Mr. Danziger. But they included Mr. Marino.

Mr. Ochoa was confused.
"Who's Marino?" he asked.

Authorities eventually sifted through all the evidence and conflicting stories, and in January 2001, Mr. Ochoa walked out of a courtroom and into the arms of his mother.
"She was happy," Mr. Ochoa remembers. "She was crying. She wouldn't let go of me."

Danziger's life

Richard Danziger's mother was not there to watch her son walk free a few weeks later. His release took longer because officials had to find a place for Mr. Danziger to stay until guardianship could be arranged. His mother had died three months earlier.

"What happened to you was horribly wrong," Judge Perkins told Mr. Danziger, according to the American-Statesman. "I can't say it enough, but we are sorry for what happened to you."

Mr. Danziger, who recovered more than anyone expected, said he didn't want "to be an object of pity."
When asked about Mr. Ochoa, he told reporters that he was "a pretty stupid dude."

Mr. Ochoa soon met with him and his sister to "make peace."
"Richard wouldn't talk to him," Ms. Oakley says. "Richard was in the room but he wouldn't acknowledge him."

Today, Mr. Danziger "has the best quality of life that he's capable of having," Ms. Oakley says. He can't drive and suffers from short-term memory loss. He may leave the stove on or forget to take his medication.

Mr. Danziger now lives a few blocks away from her, where he has a staff to look after him. That was made possible by civil lawsuit settlements – $9 million from the city of Austin, $950,000 from Travis County and $500,000 from Mr. Ochoa. A suit against the state is pending.
The money pays for not only medical care but for the video games he enjoys. Sometimes Mr. Danziger visits a friend at the Skyview prison in Rusk, Texas.

"Most of the staff there knows him," Ms. Oakley says. "They go out of their way to be polite to him. But when he goes to the bathroom, he still goes to the guards to ask permission. It makes me mad."

Ms. Oakley would like to thank Mr. Marino for his role in releasing her brother.
Despite the likelihood that he'll die in prison because of his confession, Mr. Marino says, he doesn't regret it. "No, I was deep in the faith," he says.
He's never heard from either Mr. Ochoa or Mr. Danziger.
Mr. Ochoa has no desire to contact him.

"I'm not a fan," he says. "He still took a life. And it was because of him ... me and Danziger lost our freedom."

Ochoa's life

As soon as Mr. Ochoa regained his freedom, he got an inkling of how the outside world had changed when a student handed him a cellphone. "I'm like, 'Whoa, this is cool. I'm talking on this little thing without a cord," he remembers.

The thrills kept coming – quiet moments at church; a steak instead of prison 'meat substitute'; a trip to Wal-Mart, where he marveled at the merchandise; his first new pair of pants with pockets and a belt.
"In prison, you don't have pockets" says law professor John Pray. "That was a moment of amazing joy."

After Mr. Ochoa's release, the only place he felt comfortable was in the company of lawyers, so he applied to the University of Wisconsin Law School.

His settlement money paid for school and made it possible to open his practice.

Today, he enjoys a few luxuries such as his $40,000 truck, a flat-screen TV and international travel. But he occasionally flashes back to his days behind bars. If he's pulled over for a traffic violation, he gets nervous. And walking into a police station makes him uncomfortable.
Gradually, with therapy, he's put those prison years behind him.

He'll always be an exoneree, he says. "But I want to be respected as an attorney first. ... I want to do more."
Practicing criminal law with his unique perspective is one way to do that, he says. He also speaks about his experience, about how false confessions occur, and makes occasional appearances with Nancy DePriest's mother, now a friend, in opposition to the death penalty.

Everyone agrees the person most wronged was Mr. Danziger.

"What happened to Richard Danziger is a crime," Judge Perkins says. He blames the injustice primarily on police officers who crossed the line by feeding details to Mr. Ochoa to fit the evidence, and partially to Mr. Ochoa, who made the confession.
The system "worked ultimately," Judge Perkins says, "but it took way too long."

Mr. Danziger's sister is angry at the system that failed her brother, but not at Mr. Ochoa.
She says she understands Mr. Ochoa feared for his life, but "it's not right to lie and destroy somebody else's life."
Still, Ms. Oakley is glad Mr. Ochoa has done well after exonerationbecoming a criminal defense lawyer.
"Maybe Chris can help somebody else," she says, "to where they're not in the same situation him and Richard were."

Mr. Balagia, the brother of one of the detectives, says Mr. Ochoa bears some responsibility for the lost years. "If Ochoa had just said, 'Screw you, get your needle,' he couldn't have been convicted," he says.
Mr. Ochoa says the police are to blame, but he's reflected on how much responsibility he bears. "I used to wrestle with it," he says. "Two percent? Three percent? That's logical, right?"

The murder of Nancy DePriest left a trail of broken lives – but it also changed the criminal justice system. "Everybody has a horror of convicting the wrong person," says Ronnie Earle, Travis County district attorney.

Changes include:
Austin Police Department: After a series of troubling cases, reforms had already begun in Austin by the time Christopher Ochoa and Richard Danziger were exonerated. Today, Austin is one of a handful of departments that videotapes interrogations. Unlike some states, Texas has not passed a law requiring taping.

Travis County district attorney's office: After the Ochoa/Danziger wrongful convictions, and two others, Mr. Earle's office reviewed 445 cases dating to the 1970s where DNA evidence had been preserved. No other mistakes were found. The office also established a protocol to examine innocence claims.

State of Texas: Texas is one of 22 states, plus the federal government and the District of Columbia, that provides financial compensation for wrongful convictions. The compensation was increased last year after Mr. Ochoa and others testified before the state Legislature. Today, Texas offers $50,000 for each year of wrongful imprisonment – $100,000 if time is served on death row. The state also provides some funding for mental health counseling, medical expenses, child support and attorney fees.

SOURCE: Dallas Morning News research

Number of people exonerated by post-conviction DNA testing nationwide since 1989: 213

Number of states with DNA exonerations: 31

Number of people exonerated in Texas: 32

Number of people exonerated in Dallas: 15

Average length of time served by exonerees: 12 years

Average age at time of wrongful conviction: 26

Factors in wrongful convictions:

77% include eyewitness testimony
65% include lab error or junk science
25% include false confessions
15% include jailhouse informants

SOURCES: The Innocence Project; Dallas Morning News research

Life after exoneration:
About 66% are not financially independent

Almost 50% depend on others for living arrangements

About 25% suffer from some form of anxiety, depression or post-traumatic stress disorder

SOURCE: Life After Exoneration Program 2005 study

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