DNA evidence proved Lydell Grant’s innocence. So why won’t the state’s highest criminal court exonerate him?
BY MICHAEL HALL
DATE OCTOBER 21, 2020
In his darkest hours, Lydell Grant would think back to the promise he’d made to his mother.
Ever since arriving at the Hughes Unit, a maximum-security prison in Gatesville, just west of Waco, Grant had developed fanatical work habits. He rose each morning at 3 a.m. and did three hundred push-ups and 150 sit-ups. By 5:30 he was bent over a desk in the law library. He became a student of the U.S. Constitution and the Texas criminal code. He sent dozens of letters to defense lawyers, though most went unanswered. He filed at least eight motions and appeals to various courts; nearly all were turned down. One year stretched to two; two to three. Before he knew it, almost seven years had passed.
He was determined to prove he didn’t belong behind bars.
The more Grant learned, though, the more he realized how difficult that task was going to be. According to the Texas Court of Criminal Appeals, the state’s highest criminal tribunal, demonstrating that you are “actually innocent” is a “Herculean” endeavor. Grant would need to gather “clear and convincing” new evidence to overturn the jury verdict against him. That would mean somehow overcoming the testimony of a half-dozen eyewitnesses who claimed they had watched him viciously stab a man to death outside a Houston nightclub in 2010. DNA evidence was one avenue. A confession from the real killer was another. Sitting in his eight-by-twelve-foot cell late at night, Grant felt neither possibility was likely.
When things felt especially bleak, he would recall the brief moments after his sentencing. As the bailiff slapped on the handcuffs, Grant turned and looked at his mom, who had tears in her eyes. She knew he’d made terrible mistakes in the past, but he’d paid for them. This was different. Far worse. He was going away for the rest of his life for a murder he did not commit.
“Don’t worry, mama,” he said as calmly as he could. “I’ll be back.”
Photograph by Rahim Fortune
It was a balmy December evening in Houston, and four men—three bouncers and a bartender’s assistant—were enjoying a brief lull outside Club Blur. The door was closed, but they could hear the pulsing throb of dance music inside. Club Blur sat at the corner of Crocker and Pacific streets, in the Montrose District, the center of Houston’s gay cultural life. It had been a typically busy evening; boisterous crowds thronged the streets. At around 11:45 p.m., though, the four heard something out of place: a voice screaming in desperation.
“Help!” someone cried, “Someone help me!”
The cries grew louder, and within moments a stocky man with short dark hair sprinted toward the group. “Help me!” he screamed, “He’s trying to kill me!”
The man’s name, they would later learn, was Aaron Scheerhoorn. He ducked behind the bouncers and tried to open the door, which one of the men blocked. Breathing heavily, Scheerhoorn opened his jacket to reveal his blood-soaked shirt. At that very moment, a second man came charging up to the group. He paused, pulled out a knife with a three- or four-inch blade, and began waving it menacingly. He lurched at Scheerhoorn.
The Club Blur employees scattered, and Scheerhoorn fled into the club’s parking lot, where his pursuer caught him and stabbed him repeatedly. When Scheerhoorn finally collapsed, the attacker folded up the knife, slipped it in his pocket, and calmly walked away.
Scheerhoorn, who had been stabbed at least seven times, died soon after. He was 28.
There was no shortage of witnesses. When police officers arrived, they interviewed the bouncers, the barback, and several others, including a passerby on the street and two patrons of the club who had watched in horror from the second-floor patio as the savage attack played out below. The whole thing had happened quickly, in just a few minutes. The eyewitness accounts shared in common only a few vague descriptive details of the assailant: he was a Black man with short hair who stood between six foot and six foot seven inches tall and had an “average” or “muscular” build (between 200 and 230 pounds).
The police were still seeking a suspect as the sun rose the next morning, December 11, 2010. “ ‘Brutal’ killing could be crime of passion,” read the headline in that day’s Houston Chronicle. “Getting the name could make or break the case,” Houston Police detective sergeant Eli Cisneros told the paper. “You could have numerous witnesses, but if you don’t have a name, you have nothing.”
Cisneros didn’t have to wait long. The night after the attack, the barback was once again standing outside Club Blur when he spotted a tall, muscular Black man with short hair step out of a white Pontiac Grand Prix after parking in front of the bar. The man walked down the street to a different club, and the barback jotted down the car’s license plate number. He dialed Crime Stoppers. The tip was relayed to the Houston Police Department and passed to Cisneros, who looked up the car’s owner when he got to the office the following morning.
Now Cisneros had a name. Lydell Grant, 33, had a lengthy rap sheet, so detectives were able to pull a photograph of him. They created a photo spread, putting one of Grant’s mug shots in a lineup alongside photos of five other young Black men. That morning Cisneros set out to visit the eyewitnesses, beginning with the barback. By day’s end, six eyewitnesses—an extraordinary number for a violent crime—had picked out Grant as Scheerhoorn’s killer.
It was less than 48 hours since the stabbing, and Cisneros had what appeared to be an open-and-shut case.
Photograph by Rahim Fortune
From the moment Grant was arrested for Scheerhoorn’s murder, he wondered if he’d angered God somehow, if he was being punished. Maybe, he thought, God was trying to tell him something—or save him.
Grant grew up in the Windsor Village neighborhood of the Hiram Clarke area of southwest Houston, a working-class community with brick homes that was also known as a center of gang activity. (Vince Young, who would become a star quarterback at the University of Texas, was raised in “the Clarke” several years after Lydell and attributed his toughness to growing up there.) Lydell’s mother, Donna, never married his father, but in 1979, when Lydell was two, she wed Zachary Poe, an operator at a Shell manufacturing plant and a deacon at the New South Main Baptist Church. Grant was the middle child of five, a quiet, skinny, tidy kid whose nickname was Dello. He gravitated to music at a young age, especially hip-hop by artists such as Public Enemy and LL Cool J. He and his siblings sang in the choir at Poe’s church.
Grant and Alonzo Poe, his younger half brother by a year, did everything together. Their father would make them perform maintenance on the church, mow the yards of elderly neighbors, and distribute the community newsletter. At age eight, Alonzo became an entrepreneur, starting his own landscaping business. Five years later, he learned how to hang Sheetrock and landed gigs with local contractors. He’d always enlist Lydell to assist in whatever he had going.
Around middle school, though, Lydell started hanging out with troublemakers, getting into fights, smoking weed, and engaging in petty theft—Air Jordans, Guess jeans. His mother, who worked as a desk agent at a Hilton hotel after years driving a school bus, would often chide him. “You’re going to have to straighten yourself out,” she would say. He ignored her.
When Grant was sixteen, he walked into a local dry cleaner with a friend who was three years older. Grant would later insist he had no idea his friend was going to rob the place—or that he was carrying a pistol, which he pulled on employees and customers before taking their money. Both teens fled and were caught. Grant’s mother was devastated. His lawyer convinced him to plead guilty and accept ten years in prison, to avoid a sentence that could have been four times as long. “I didn’t know no better,” Grant said.
Grant was kept in Harris County custody until he turned eighteen and then was sent to prison. He spent his time lifting weights, playing basketball, and boxing. He was no longer a skinny kid, and he’d joined a gang. In his cell, Grant passed time writing raps about his life, dreaming of a career behind the mic.
After serving his full sentence, Grant was released in 2004. He found work alongside his brother Alonzo and his cousins as a pipe fitter at various refineries near the Houston Ship Channel. He also began performing under the name Dello Da Rude Dude and hanging out with members of the Screwed Up Click, a loose collective of Houston rappers led by the late DJ Screw, who was famed for slowing down raps and putting them on cassette tapes. The “screwed” style was wildly popular in Houston and across the South.
Grant also joined the Ballaticians, a hip-hop group that enjoyed mild success. One of the outfit’s songs, “Gettin Money Ova Here,” was played on the local hip-hop station 97.9 the Box, and a music video of the song was shown on Street Flava, a local Saturday night TV show. “You don’t understand how I’m livin’ my life,” Grant rapped, “No marriage papers, no rings. I ain’t safe for no wife.”
Grant was still living a life of crime. He got busted for possession of marijuana and stealing credit cards. Stints behind bars became part of a cycle: he’d get caught, serve time, get out, and get caught again. All the while, he continued writing about his experiences, and he kept rapping. He developed a reputation as a charismatic performer—“He could command a stage,” says his cousin Kemani Anthony—and he toured the state, doing shows in Austin, Corpus Christi, and Dallas. His mother was proud. “He was doing so good with his music,” Donna remembers.
Grant felt as if he were on the cusp of something big. “I was moving up in the scene, level by level,” he says. But it all came to an end on December 15, 2010, when he was arrested for the vicious murder at Club Blur. “We have six eyewitnesses that can positively identify you as the killer of Aaron Scheerhoorn,” Grant remembers a detective telling him.
“I don’t care if you have six hundred witnesses,” he responded. “I didn’t kill him.”
Alonzo believed him. Grant’s little brother hired and paid a veteran attorney. But the man died of cancer a year later, before Grant’s case went to trial. Grant was appointed a second lawyer from the Harris County Public Defender’s office, but he also got sick with cancer and had to withdraw. Grant was then appointed another attorney.
He was confident he would be found not guilty. He had an alibi, and there was no physical evidence tying him to the crime, which was odd given the violent nature of the attack. On the first day of trial, December 3, 2012, as Grant sat at the defense table wearing a new gray suit, one of the prosecutors even admitted in an opening statement to the jury, “I don’t expect that we’ll be able to prove motive to you.”
Prosecutors didn’t wait long to trot out their strongest evidence. Few things sway a jury like a confident eyewitness literally pointing out a suspect inside the courtroom. And in Grant’s case, the district attorney had six eyewitnesses who testified with high degrees of certainty that Grant had stabbed Scheerhoorn. Three said they were “positive,” two were “one hundred percent sure,” and another was “very sure.” Grant’s face “was burned into my memory immediately,” said one witness who had seen the murder from the second-floor club patio, roughly twenty feet above the attack.
The state then brought forward DNA evidence. An analyst from the Houston Police Department’s crime lab had found DNA profiles for two people beneath Scheerhoorn’s fingernails, though she could only find a full profile for one of them. It belonged, she said, to Aaron Scheerhoorn.
But when the analyst talked about the other profile, jurors were given muddled information. She testified that she couldn’t exclude Grant, implying that Grant’s DNA was potentially under Scheerhoorn’s fingernails. Grant’s lawyer, who hadn’t hired a DNA expert, didn’t object, though he did compel the analyst to affirm that she couldn’t “associate” Grant with the DNA mixture.
Grant’s lawyers only called one witness. A man named Raul Rodriguez testified that, on the night of December 10, he and Grant had struck up a conversation in the parking lot of a different Montrose bar. They’d gone barhopping together (they never stopped into Club Blur), and later wound up in Rodriguez’s hotel room, where they stayed until morning.
After three days of testimony, the jury retired mid-morning of day four. They didn’t deliberate for long, returning before lunch. Grant stood in shock as he heard the verdict and then the sentence. He took a moment to compose himself and then sought out his mother. As officers prepared to take him away, he gave her his promise.
Even before he was convicted, when he was in the Harris County jail awaiting trial, Grant had begun visiting the law library as often as he was allowed. He filed a motion asking the judge to give him more time “due to the severity of the charge alleged.” (The judge denied the request.) He and Alonzo talked frequently. Alonzo would drive to the State Law Library, in Austin, to photocopy documents from cases that were similar to Grant’s.
Shortly after Grant was convicted, he penned a letter. “Dear Reader,” he began, “I was falsely accused, arrested, charged, confined, indicted, and wrongfully convicted. … What is scary is how tenaciously police and prosecutors cling to their initial assumptions—and how much this reflects basic human tendencies.” He and Alonzo, his most fervent ally, sent copies of the letter to dozens of lawyers, including those at the Innocence Project in New York City and the Innocence Project of Texas, based in Fort Worth. They mailed them to celebrities such as Oprah Winfrey and the radio host Tom Joyner; to local radio stations, including Houston’s 97.9 the Box; and to various churches. Few bothered to respond.
Alonzo visited his brother every week at the Hughes Unit, and the two would discuss legal strategy. Grant was determined to reprogram himself. He now spent almost all of his free time in the prison law library, where he met another inmate who suggested that he request the police reports from the stabbing. Grant did, along with the nine volumes of trial transcripts, which he stored in a large box at the foot of his cot. He read them over and over, looking for inconsistencies in testimony, anything he might be able to raise on appeal. His library friend read the transcripts and told Grant that the DNA results that had seemed so confusing at trial were actually favorable to him. In fact, the analyst’s report clearly stated, “no conclusions will be made regarding Lydell Grant as a possible contributor.” The man encouraged Grant to get an independent lab to analyze the results.
Grant collected a variety of legal documents, including the thirty-sixth edition of the Georgetown Law Journal’s Annual Review of Criminal Procedure. He read Scott Turow’s novel Presumed Innocent (which was made into a movie starring Harrison Ford) about a man wrongly tried for murder. Grant committed himself to improving his vocabulary, learning five new words a week, which he would try to incorporate into his letters and motions. He wrote every day, but now it wasn’t rap lyrics; it was motions and appeals. He spent hours revising his prose; his handwriting was precise and stylized. Unlike during his first stint in prison, Grant only hung out with friends from the prison church and those who were researching their cases, dreaming of returning home. Other inmates began to come to him for legal advice. When his mother, Donna, visited, she could see how committed he was; how high his spirits were. “That was the only thing that kept me at peace,” she remembers.
Photograph by Rahim Fortune
Grant was appointed an attorney to help file an appeal, but after six months the inmate protested to the court that the lawyer “has not cooperated nor corresponded” with him. Grant asked for permission to file the appeal on his own. The lawyer did finally file an appeal, but in 2014, it was turned down. The next year, Grant was transferred to the Michael Unit, in Tennessee Colony, near Palestine. After studying the U.S. Constitution’s Sixth Amendment right to effective assistance of counsel, Grant filed a motion for a lawyer to help him with a writ of habeas corpus, which is used to challenge the fundamental fairness of a conviction. Grant alleged that his trial lawyer had failed to interview eyewitnesses, never objected to hearsay testimony during trial, and neglected to hire a DNA expert.
Grant was convinced that all he needed was a committed attorney. He petitioned for a court-appointed lawyer to help him get postconviction DNA testing—to retest the DNA mixture—and was appointed representation in 2016. But when the lawyer wrote to him that he was “unsure of how DNA could help you,” Grant became outraged and demanded another attorney. In January 2018 he was assigned Brittany Lacayo, who filed a motion for DNA testing.
Grant believed it was just a matter of time.
By that point, one of his letters had reached the desk of Mike Ware, the executive director of the Innocence Project of Texas (IPTX), a nonprofit group that has helped exonerate 27 wrongly convicted Texans since launching in 2006. The organization receives thousands of letters a year from inmates, many of which are vetted by law students. Ware teaches at Texas A&M School of Law, in Fort Worth, and once he read Grant’s letter—in which he swore he was innocent and said he had been convicted on mistaken eyewitness testimony—the professor assigned it to one of the students in his Actual Innocence clinic.
Ware, 66, is one of the most experienced innocence lawyers in the country. He has had a hand in some three dozen exonerations, both with IPTX (he became its leader in 2016) and with the Dallas County’s district attorney’s office, where from 2007 to 2011 he led a conviction integrity unit that oversaw 25 investigations of wrongful convictions. In class, the drawling, shaggy-haired attorney taught that, according to research done by the Innocence Project and the National Registry of Exonerations, mistaken eyewitness identification was the number one cause of wrongful convictions. We like to think of our brain as a video camera, recording our experiences and filing them away. But memory doesn’t work like that. It’s mutable, prone to error. What’s more, experiments have shown over and over that people of one race have major problems identifying individuals of another race, a factor in some two-fifths of all DNA-based exonerations. Of the six witnesses in Grant’s case, one was Black, two were Latino, two white, and one Asian American.
Ware explained to his students that investigators using a photo spread can inadvertently steer witnesses toward a particular person in the lineup by, say, commenting on a certain photo or by smiling or nodding when a witness looks at a particular face. Analysts have also found that showing multiple photos simultaneously can lead witnesses to pick someone merely because that person looks more like the suspect than anyone else in the panel.
In 2011, after lobbying by IPTX, the Texas Legislature passed a law that changed how law enforcement conducted lineups. It called for the adoption of a standardized methodology that included “double blind” lineups, in which the officer administering a lineup can’t know who the suspect is and therefore is unable to tip off the eyewitnesses. Of course, this still leaves plenty of room for error, but it represented a vast improvement. Unfortunately for Grant, whose lineup was conducted in 2010, those new rules were no help.
The student Ware assigned to Grant’s case spotted multiple red flags with his conviction, and after a class discussion, the professor agreed with the student’s assessment. Ware wasn’t intimidated by the large numbers of witnesses, either. He knew there was precedent for multiple witnesses to be mistaken. In 1984, five rape victims identified Thomas Haynesworth as their attacker in Richmond, Virginia. He was convicted and spent 27 years in prison before being exonerated by DNA evidence in 2011. In 1985, five eyewitnesses in Rosedale, Maryland, testified they had seen a man named Kirk Bloodsworth with a young girl who was later found raped and murdered. Bloodsworth was convicted but later exonerated by DNA.
It wasn’t just the eyewitness testimony that troubled Ware. He had seen hundreds of DNA tests in his career, and when he looked at the data from Scheerhoorn’s murder, he noticed numerous alleles (the repeating genetic variations that make up a profile) that didn’t belong to either the victim or to Grant. He read the trial transcript and saw that the analyst implied Grant’s profile could have been in the mixture.
In early 2019 Ware contacted Lacayo, the lawyer appointed by the court to file for DNA testing, and offered to help as pro bono counsel. He also consulted with Angie Ambers, a forensic DNA analyst and professor at the University of New Haven, in Connecticut, who converted the data from the original test and punched it into an Excel spreadsheet. What she saw was remarkable: twenty-six alleles that didn’t belong to either Grant or Scheerhoorn. “It was pretty straightforward,” she says. “Obviously someone else’s DNA was there.” Grant’s DNA, she told Ware, was clearly not present in the mixture.
She suggested to Ware that he confirm her analysis using a new software-based method of analyzing DNA mixtures, called probabilistic genotyping, which employs high-powered computers and is capable of interpreting mixtures by intricately unraveling all of the parts. In March 2019, Ware sent the raw data to Cybergenetics Corporation, in Pittsburgh. The lab’s report not only conclusively excluded Grant, it discerned a second profile, which was then uploaded into the FBI’s national database of roughly 14 million convicted criminals.
In June, the database got a hit. Jermarico Carter had an extensive criminal history in Houston but had moved to Atlanta a few months after the murder. Carter was Black, and around the same height and weight as Grant, though the two men bore little resemblance. He and Grant were even born on the same day, one year apart.
Carter had recently been arrested in Atlanta on a parole violation, and when he was interviewed by Houston cops, he initially denied the murder. However, when confronted with the DNA evidence, he confessed on videotape to having had an altercation with Scheerhoorn. He admitted to chasing Scheerhoorn toward the bar while carrying a knife, but he claimed he only punched him.
In October, Grant’s lawyers filed a writ of habeas corpus asserting that he was legally “actually innocent,” that they had developed new DNA evidence implicating another man, and that the DNA analyst at trial had given inaccurate testimony that violated Grant’s due-process rights. Ware delivered the DNA results to the Harris County district attorney’s office, which then asked the Houston police department to reinvestigate the crime. Officers could find no links between Grant and Scheerhoorn, but they found that Carter had indeed lived in Houston in 2010. He’d previously been arrested in the Montrose area and had been accused of stabbing someone in Atlanta four months after Scheerhoorn was killed.
Things moved quickly after that. Just before Thanksgiving, with the DA’s endorsement, Grant was released on $100,000 bond while the police and the DA’s Conviction Integrity Division continued their investigation. Grant walked out of the Harris County jail to a crowd of family members. As he addressed the throng of media, he was flanked by his mother and Alonzo. “What’s the lesson here?” someone asked. “Never give up,” Donna responded, beaming at her son, who had been behind bars for almost a decade. “You can’t,” Grant said, shaking his head. “You can’t, you can’t. If you know for a fact that you are innocent of any crime that you are alleged to have committed, the thing is, never give up—and trust in God.”
The police concluded their investigation. Just before Christmas, the DA’s office dropped the case against Grant and charged Carter with murder. “We will begin the exoneration process for Lydell Grant immediately,” said district attorney Kim Ogg. That same day Houston police chief Art Acevedo released a remarkable statement: “On behalf of the Houston Police Department, I want to extend an apology to Mr. Grant and his family as they have waited for justice all these years.”
Jon Shapley/Houston Chronicle via AP
A week later, trial judge George Powell ruled on the habeas appeal: Grant had proved he was actually innocent. It was as if the whole Houston legal community was coming together to correct a terrible injustice.
Now all Grant had to do was persuade the high court in Austin: the Court of Criminal Appeals. The stakes couldn’t have been higher. Not only would an actual innocence verdict wipe the murder conviction off his record, he would be eligible for $80,000 a year in compensation, plus subsidized health insurance.
It wouldn’t make up for what happened, Grant thought. But it was a start.
Most states have one court of final resort. Texas has two. The Texas Supreme Court handles the appeals of civil cases; the Texas Court of Criminal Appeals, or CCA, takes care of criminal cases.
The CCA has nine members, and like all other state courts, it’s an elected body, so its philosophical makeup shifts over time. This can have dramatic consequences for those whose cases are considered by the court. Since 1998 every judge elected has been a Republican. Seven members of the current court are former prosecutors, and many have brought to the bench a skepticism toward criminal defendants and their advocates. It hasn’t always been that way.
The CCA was composed entirely of Democrats in the early nineties and had a reputation for overturning convictions based on technicalities. In 1996 the court made a historic ruling that would empower convicts like never before. Joe Elizondo had been convicted in Port Arthur in 1984 of sexually assaulting his stepson. Years later the young man recanted his testimony, and Elizondo filed a writ of habeas corpus claiming that he was innocent based on this new evidence. The trial court threw out his conviction and the CCA, in a decision written by former defense lawyer Larry Meyers, not only upheld the ruling but wrote that “claims of actual innocence are cognizable by this court.” The ruling made Texas one of the first states in the country to allow inmates to overturn their convictions based on new evidence of their “actual innocence.”
Up until that point, an inmate’s writ of habeas had to be based on a broad constitutional problem. The courts wouldn’t hear a claim of actual innocence, even if the inmate was slated for execution, unless he could demonstrate he had been denied due process of law. As the late U.S. Supreme Court justice Antonin Scalia famously wrote in 2009, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Although the Elizondo precedent was historic, it didn’t lead to a surge in exonerations. That’s because claiming actual innocence is one thing; establishing it is another matter. To definitively prove that a person didn’t do something is like proving a negative; absent a video of someone else committing the crime, it borders on impossible. The standard set by the CCA: the convict must unearth new evidence that is so “clear and convincing” that no reasonable juror would have convicted him in light of it. This is a very high bar. And the convict first has to convince the judge in the trial court, where the habeas writ is filed, and then that judge’s ruling must be affirmed by a majority of the CCA. Usually the CCA accepts the decision of the trial judge. But not always.
And not even with seemingly conclusive DNA evidence. One of the more infamous examples of this was a 1998 decision involving Roy Criner. A resident of New Caney, just north of Houston, Criner had been convicted in 1990 of the rape and murder of a teenage girl, mostly based on the testimony of three friends who said he’d bragged about forcing a hitchhiker to have sex with him. Criner was sentenced to 99 years in prison. In 1997, however, DNA testing demonstrated that the semen found in the victim wasn’t his. A trial judge ordered a new trial, but four months later the CCA overruled that decision. Judge Sharon Keller wrote, “The new evidence does not establish innocence.”
Keller had been on the court for three years by then. Before that, she had spent seven years working in the appellate division of the Dallas County DA’s office. In 1994, when Keller ran for election to the CCA at age 41, she described herself as “pro-prosecutor.” What that meant, she said, in a bracing admission of bias, was “seeing legal issues from the perspective of the state instead of the perspective of the defense.” She won handily. And though the bar for proving actual innocence was already high, she soon made it clear she’d like to raise it still higher.
Even fellow conservatives didn’t always agree with her. Then-governor George W. Bush, for example, eventually pardoned Criner, in 2000, two years after the CCA declined to free him based on the new DNA evidence. That same year, Keller became presiding judge, and she sought to steadily move the court in a more pro-prosecutor direction. On occasion, rulings against defendants and inmates were outright abrasive. Perhaps the most notorious example came from Keller herself on September 25, 2007. Around 4:45 p.m., lawyers representing death row inmate Michael Richard petitioned for an extra thirty minutes to file a last-second writ. “We close at five,” Keller responded, denying the appeal and dooming Richard to die hours later. The decision was met with outrage, and the state’s Commission on Judicial Conduct launched an investigation. The New York Times called for her removal in an editorial, pointing to her “fundamental misunderstanding of justice.”
But Keller wasn’t going anywhere. The CJC gave her a “public warning,” which a special review court later dismissed. And in 2015 she found an active ally in what many court-watchers perceived to be a crusade against inmates who had proved their actual innocence. That was the year Kevin Yeary, then 49, came onto the court. Yeary, who grew up in Laredo and attended college and law school at St Mary’s University, in San Antonio, was philosophically aligned with Keller. From 1991 to 1992 he had worked as a briefing attorney for conservative CCA judge Bill White (not the Houston Mayor and Democratic candidate for governor), who later became one of Keller’s mentors. After Yeary’s time working for White, he’d spent twenty years working in the appellate divisions of the DA’s offices, in Dallas, Houston, and San Antonio.
The new judge quickly made public his position on actual innocence in the case of Sonia Cacy, who had been wrongly convicted in 1993 of setting a fire in Fort Stockton that killed her uncle. In 2016 the CCA threw out her conviction and granted her actual innocence. While Yeary thought that Cacy deserved a new trial, he wrote a separate opinion, joined by Keller, that argued that the CCA should not go any further. “I would avoid the label of actual innocence,” Yeary wrote, “at least in the absence of evidence that conclusively proves, not just that a reasonable jury, by clear and convincing evidence, would not have convicted [her], but that the applicant manifestly did not commit the offense.” The emphasis was Yeary’s, a sign of how strongly he felt that Cacy needed to literally prove she was innocent. Give her a new trial, he said, but nothing more.
Soon Keller and Yeary went even further. Texas had, over the previous fifteen years, become one of the nation’s standard-bearers in legislative criminal justice reform. This was spurred by a series of exonerations in Dallas County, which awakened many Texans to the reality that a significant number of innocent people were stuck in prison. The laws that followed included revolutionary new rules for eyewitness lineups and generous compensation packages for exonerees. A pioneering Forensic Science Commission was established. In 2013 a groundbreaking law enabled inmates to use habeas writs to overturn convictions based on outdated or faulty forensic science. In 2018 the CCA used this law to grant actual innocence to Steven Chaney, who had spent 28 years in prison after being wrongly convicted of a Dallas murder, based on since-discredited bite-mark evidence.
Keller, though, used Chaney’s case as an occasion to write a separate opinion in which she suggested raising the Elizondo bar of “clear and convincing” evidence to an almost unachievable height: proof of innocence beyond a reasonable doubt. Yeary wrote that he was “intrigued” by Keller’s idea and “open to a dialogue with my colleagues about that possibility in an appropriate case.” The practical effect of what the two were suggesting was clear: making it essentially impossible for a wrongly convicted person to be declared actually innocent.
Their peers, likewise conservative Republicans, were troubled by the idea, and said so in their opinions. “That is too high a hurdle,” wrote Bert Richardson, noting that it would mean even the obviously innocent Chaney would be denied exoneration. In an unusually fraught exchange, he disparaged Yeary’s “remarkable position.”
In the same opinion, Yeary mocked some of his fellow judges for what he saw as their enthusiasm for financial reparations. “It is evident to me,” he wrote, “that some members of this court relish being the arbiters of who is to receive monetary compensation and a lifetime of reduced-cost health-care benefits.” He wasn’t the first to grumble about paying former inmates. During the CCA’s weekly conferences, several judges, including Keller, have been known to suggest that compensation packages are a waste of taxpayer money. Other judges argued that no amount of money can repay someone for being wrongfully imprisoned by officials working in the public trust.
The CCA received Grant’s high-profile case in January, not long after Houston Police chief Acevedo issued his public apology. To Grant and Ware, it seemed like a slam dunk.
The court gets hundreds of cases a month, and a staff attorney typically works up a memo and gives it to whichever judge has been randomly assigned to the case. Many of the cases are quickly dismissed; some are eventually discussed at the court’s weekly conferences. And any judge who is interested in a case can “pick it up” and explore the possibility of writing an opinion.
Most of the CCA’s work is done out of public view, and its judges and staff lawyers declined requests to discuss Grant’s case. We do know that at some point after the CCA received Grant’s case, someone—either a staff attorney or a judge—noted that Carter’s confession wasn’t included in the case materials and thus suggested it be sent back to the trial court. This remand could have been ordered with or without discussion by the judges at their weekly conference; either way, it takes a majority to order a remand. On April 1, the two-paragraph order was sent to judge Powell’s court in Houston.
The confession was then submitted to the CCA on May 1. By then, the judges and staff were working remotely because of the pandemic. Later that week, the state’s court system was infected by ransomware, and all servers were shut down. The Texas Appellate Management and eFiling System (TAMEs) was also shut down. (The CCA has insisted that the coronavirus “has not affected the Court’s ability to deliberate on any case before it,” and the ransomware “did not compromise our data or case management systems. … After additional security protocols were implemented, we continued working as usual.”)
At some point thereafter, with the summer recess looming, Grant’s case was brought up during a weekly conference. We don’t know what was discussed, but on July 1 the judges (except for David Newell, who recused himself because he had worked for the Harris County DA’s office during Grant’s appeals) remanded it again to the trial court. Most remands are two or three paragraphs long; this one took six paragraphs and was very detailed. It asked the trial court for any available photos of Carter from 2010, as well as affidavits from eyewitnesses in which they were to “respond” to Grant’s actual innocence claim. It was a puzzling request. There were no details on what exactly the witnesses were supposed to respond to. For example, were they to give their opinion of the accuracy of the probabilistic genotyping, which had discerned the actual killer’s DNA profile? The remand also ordered the trial court to reckon again with whether Grant had proven he was actually innocent, or whether he merely deserved a new trial.
For Grant, this decision meant that, while free on bond, he was still considered a convicted murderer, and he was deprived of compensation. While the remand was possibly written by a staff attorney, it would have been overseen by a judge, and approved by a majority of the tribunal. “It’s the voice of someone fighting actual innocence,” says a veteran attorney who has argued numerous cases before the CCA. “This order has Kevin Yeary all over it.”
Jon Shapley/Houston Chronicle via AP
The reaction was swift. The Houston Chronicle called the decision “shameful.”
Ware said he had never seen anything like it. “The trial judge, DA, and police chief—each of them says he’s innocent. All of a sudden, the judges are ignoring DNA, questioning its validity as a science, and they want the trial court to get the witnesses to recant. It’s the most outrageous thing I’ve ever seen. It makes no sense.”
The DNA scientist Ambers was flummoxed (“I don’t know what else Grant could do—it doesn’t get any more definitive than that”), as were prosecutors in the Harris County DA’s office. They noted that the CCA’s order made it harder to prosecute Carter, who, based on the new DNA evidence and his statements to police, they regard as actually guilty of the murder.
Multiple former CCA judges were outraged. “Lydell Grant has overwhelming evidence on his side,” said Elsa Alcala, a judge on the court from 2011 to 2018. “This is beyond reasonable doubt. This is beyond all doubt. There’s no rational explanation for the court’s action.” Alcala acknowledged that the spring was a chaotic, terrible time for the court. “But I don’t cut the CCA any slack. The Texas Supreme Court cleared its docket.”
Cathy Cochran, who served on the CCA from 2001 to 2014 after working as both a prosecutor and defense attorney, said, “Another remand further delays justice for the obviously innocent Lydell Grant, and it insults the diligence of the trial judge, the DA, and law enforcement in righting this.”
Other lawyers thought the court was being unfairly criticized. On the same day Grant’s case was remanded, the court granted actual innocence to Otis Mallet Jr. Like Grant, Mallet was from Houston, and he also had the DA and trial judge firmly on his side. (Yeary once again questioned the current standard.)
David Botsford, an Austin criminal defense lawyer for 42 years, said he had never seen a clearer case of actual innocence than Grant’s. But he also noted, “The court has a duty to look at the record and make sure it’s accurate.” Botsford was a briefing attorney for the CCA in the seventies. “When the state and defense are in agreement and the trial judge signs off,” he said, “it’s not necessarily going to be rubber stamped by the CCA. A confession of error by the state is entitled to great weight, but it’s not controlling. I don’t fault the court for exercising its duty at all.”
And yet the end game—going back to the eyewitnesses—will ultimately be fruitless. “What could they possibly say to change the picture?” asks Alcala. “They got it wrong in the first place. All six of them could say, ‘I still think he did it,’ and the court would have to say, ‘Eyewitness testimony is inconsequential when put up against DNA evidence.’ ”
What upsets Alcala the most is that her former colleagues are guilty of a trap she occasionally fell into as well: deploying antiseptic legal logic while an actual human life is affected. “Judges forget—people’s lives are on hold. To us, it’s a file, a piece of paper. To the person affected, he can’t get a job. He was in prison for something he didn’t do, and now he’s still in prison, just a different kind.”
Alcala is certain that Keller and Yeary were behind the latest decision in the Grant case. Ware told me he worked on some 25 exonerations as a prosecutor with the Dallas County DA, many of them rape cases in which a man who had been misidentified by the victim was later exonerated by DNA. “In all those rape cases,” Ware says, “the CCA never asked to go back and get statements from the eyewitnesses. Lydell’s case is a DNA case, period. The objective facts are that Lydell Grant didn’t do it. And we have the evidence that proves it. For some reason that drives somebody on the CCA crazy.”
One reason might be the sheer volume of eyewitnesses. Perhaps the judges are curious as to how six of them could have gotten it so wrong. But even then, Laura Smalarz, a professor at Arizona State University who has done extensive research on eyewitness lineups, says the CCA’s decision is misguided. Smalarz noted that the police officer administering the lineups, Detective Cisneros, was also the lead investigator on the case—and that Grant was his only suspect. Though she couldn’t pinpoint exactly why all six were mistaken, she said Grant’s case was comparable to others she had studied. “The most plausible explanation for why the eyewitnesses picked Grant is that the detective somehow cued the witnesses toward him. That could have happened because of intentional or unintentional cuing.”
She calculated that the probability of six unbiased eyewitnesses independently picking the same innocent man is roughly .00002, or one in fifty thousand. Smalarz attributes the witnesses’ high level of confidence to Cisneros, who offered many of them positive feedback after their picks. (Cisneros did not respond to requests for comment.) For example, three witnesses testified that the detective told them they had selected the same suspect chosen by others. (Cisneros denied this at Grant’s trial.) He also told at least two of the witnesses “good job” after their picks. All of this confirmatory feedback, Smalarz wrote in an article she published on Grant’s case on the academic news website “The Conversation,” increases a person’s assurance in their memory. Not only that, it can fundamentally change the original memory. As a result, the person these eyewitnesses see in their mind’s eye today may not be the person they saw ten years ago on that terrible night at Club Blur.
For all of these reasons, she concluded, “There is little to be gained from speaking to the original eyewitnesses from Lydell Grant’s case.”
One sweltering day in late July, Grant sat on the outside patio of a Starbucks near the Galleria, in Houston, sipping a mocha Frappuccino with extra whip and drizzle. Grant is now 43, a big man at six foot two inches, 240 pounds. He wore black Ralph Lauren shorts, a red T-shirt, Adidas sneakers, a black COVID-19 mask, and two gold chains (one with a Bart Simpson pendant, the other with a unicorn head). After finishing a piece of lemon cake, he pointed out his haircut, short on top and shaved on the sides. “This is known as a Southside,” he said with a wide grin. “People from Houston, we invented this.”
Grant has a boyish laugh and a wide, expressive face. When he smiles, deep dimples form in his cheeks. He speaks rapidly, enthusiastically. He is outgoing and friendly, even with a mask on, constantly striking up conversations with complete strangers.
Photograph by Rahim Fortune
He lives with his mother, Donna Poe, who’s now 64 and works as a cashier at H-E-B, in her two-story brick home in the Berkshire neighborhood of northwest Houston. He spends most of his time there, drafting letters to friends still in prison and working on a memoir titled Where Did I Go Wrong? He’s also taking online courses at American InterContinental University. He still studies law, only now he’s focused on the section of the criminal code that governs habeas writs.
He’s struggled to find work. “I’m stuck,” he said. “I have a lot of love and support, but I can’t get a job.” Since his release last December, he’s applied for several positions at warehouses and grocery stores, and he’s landed several interviews, but it always falls apart after they see the murder conviction on his criminal background check. “It’s embarrassing,” he said. He checks in every week with his bail bondsman. He knows that one misstep could land him in severe trouble.
When he does go out, sometimes it’s to drive his red 2007 Kia Optima to local churches, including New South Main Baptist, where he addresses groups of kids who remind him a lot of himself a few decades ago. He tries to inspire them with his story, going from youthful troublemaker to convicted robber to a man wrongfully convicted of murder to an entirely new life. “My yesteryears don’t define me,” he says. “They contributed to me becoming who I am today. I experienced that so I could move on with my life.”
But Grant’s optimism has limits. He’s plagued by severe pain in his neck and back, brought on by years in prison “sleeping on concrete and steel.” He can’t afford to go to a doctor for treatment. He’s also tormented by despair. Just as he is quick to smile and joke, he’s also prone to outbursts of anger. It’s common for exonerees to struggle with bitterness after having years of their lives stolen. Grant’s feelings are compounded by the fact that he is still legally considered a killer, even after new DNA evidence pointed to the actual murderer.
He brings up the case of Michael Morton, probably the most famous Texas exoneree, who was convicted of killing his wife in 1987 and freed in 2011 after new DNA evidence pointed to another man. Once the writ was filed, it only took the CCA eight days to agree that Morton was innocent. “They walked him through with no problem. What’s different between Michael Morton and me?” One answer: Morton is white. Grant has also seen Outcry, the recently released five-part Showtime documentary on Greg Kelley, a golden boy and former high school football star whom the CCA recently agreed was actually innocent of child sexual assault, a decision made even though Kelley had no DNA evidence on his side.
Not long after the CCA remand in Grant’s case, Ware penned an op-ed for the Houston Chronicle headlined “Yes, racism is systemic. Ask Lydell Grant, an innocent black man the courts haven’t gotten around to exonerating.” Ware wrote: “Unfortunately, this sort of unexplained and unjustified delay in exonerating an obviously innocent man is not unusual. Systemic racism pervades the entire criminal judicial system from the street cop to the judiciary.” A 2017 study by the National Registry of Exonerations found that Blacks are seven times more likely than whites to be wrongly convicted of murder—and that they have to wait three years longer to be exonerated.
Donna thinks her son’s multiple arrests and convictions before his murder case are another factor in the way the CCA is treating him today. Perhaps the judges are more skeptical of his innocence, or reserve less empathy for him, because of his criminal record. As a mother, this infuriates her. Her son paid for his previous sins, and to continue to punish him for something he didn’t do is cruel and arbitrary, she says. “I don’t understand it. He proved his innocence. What more do they need?”
Both Donna and Alonzo Poe fear Grant suffers from PTSD from his time in prison. She says the rattle of keys and the flash of lights can cause him to fly off the handle. One night, she walked into her kitchen and flipped on the light. Grant was there, sitting in the dark, and he began yelling, “Mama, I told you I don’t need the light on!”
The CCA gave the trial court until September 30 to complete its requests, but as of press time, the DA’s office was only able to gather one eyewitness affidavit, so prosecutors asked for a ninety-day extension, prolonging Grant’s limbo. In the meantime, three CCA judges—Yeary, Richardson, and David Newell—are up for election on November 3, and the Grant case has become a campaign issue.
During a September 29 Zoom event hosted by IPTX, wrongful convictions and actual innocence were the primary topics debated by candidates. Richardson and Newell participated in the discussion, as did their opponents. Yeary, however, wasn’t there (he said he had a scheduling conflict), and his challenger, Dallas judge Tina Clinton, used the occasion to rebuke him. “My opponent is one of the individuals who does not believe there is such a thing as actual innocence,” she said. She attributed the different ways the CCA had dealt with Morton’s and Grant’s cases to a “racial disparity.” Grant, she said, “has been on bond for $100,000 since December and another man has been indicted already in that case.”
Once the CCA finally gets all the documents in order, there is no guarantee it will bestow actual innocence on Grant. In fact, some fear the court is primed to merely grant him a new trial. “That,” says former CCA judge Cochran, “would be a legally disingenuous and morally indefensible end-run around his actual innocence claim.” Still, she’s hopeful that her ex-colleagues will ultimately do the right thing. “I am confident that the court will not shirk its duty or set aside the trial judge’s and prosecution’s findings and recommendations.”
In spite of all his experiences, Grant remains upbeat, certain the CCA will exonerate him. He has thought often about the compensation, part of which he plans to use to buy a truck and a trailer and start a trash-hauling business. “I love trucks. All my buddies at the chemical plants had trucks.”
Photograph by Rahim Fortune
Photograph by Rahim Fortune
He also still hopes for a music career. Recently, Grant began writing new songs for the first time since 2010, though his subject matter has transformed. One new song, “They Don’t Like Me Now,” is about the false friends who mocked him when he went to prison for murder but cheered him when he was released. Another is “Mama’s Love,” about the person who never doubted him.
But one song he thinks could actually be a hit is a rap he wrote soon after being released. He had just had dinner at his brother Alonzo’s house, and he was sitting at the dining room table when he began spontaneously humming a beat. He found himself singing the words “I’m not guilty.”
That phrase wasn’t exactly right, though. He revised it, and began repeating a new line, almost like a mantra. Soon a melody arose. He turned the new phrase over in his mind, and then pulled out a pen and paper as more words came to him. The lyrics captured the story of his life: from arrest, to trial, to prison, to freedom. Some of the lines he conjured were philosophical: “Whatever’s done in the dark, it shall surface.” Others were inspirational: “Never give up!” Still others revealed Grant’s love of rhyme and wordplay. “I don’t need the stress,” he wrote, “I’m like, what’s next? Mike Ware and the Innocence Project!”
Grant sat at the table for hours, toying with rhymes, writing, rewriting, remembering. Just before sunrise, he finished. Heading off to bed, he ran through the song one more time, three long verses and a melodic chorus that was as simple and as true as he could possibly make it.
“I’m actually innocent,” sang Lydell Grant, “ ’cause I didn’t do it.”
