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By 2000, Earle seemed to have found a balance with capital punishment. He usually reserved it for the most gruesome murders, but that year he also sought it for Leonard Saldana, who had killed his ex-girlfriend. Death-penalty prosecutions in domestic-violence cases are rare, and rarely successful. Jurors can often be convinced that killing one's lover in a rage doesn't warrant execution. (Saldana got a life sentence. Earle later said he sought the death penalty partly because he wanted to send a message that he took domestic violence as seriously as any other crime.)
But just as the Saldana case was wrapping up, Earle learned that his office had mistakenly prosecuted two men for the 1988 murder of Nancy DePriest, a 20-year-old mother killed at the Pizza Hut where she worked. To Earle, it had seemed a horrific but fairly straightforward case: not long after the murder, a man named Christopher Ochoa, who worked at another Austin Pizza Hut, signed an intricately detailed confession. Ochoa said that he and a co-worker, Richard Danziger, had raped DePriest and that Ochoa then shot her in the head. The confession said the two had sexually violated her corpse and then washed it off in the restaurant bathroom.
Danziger denied the crime from Day One, but Ochoa's graphic confession helped convict them both. Partly because neither Danziger nor Ochoa had the violent criminal history typically needed to convince jurors of future dangerousness, Earle's office didn't seek the death penalty; the two were sentenced to life in prison. But in 1996 another Texas inmate, Achim Marino, started writing letters to police, to the Austin American-Statesman, to Governor George W. Bush and eventually to the D.A.'s office saying he had killed DePriest. Few believed him until 2000, when DNA tests revealed that Marino was in fact the sole killer.
One of Ochoa's attorneys, Keith Findley, says his client signed the confession only because police had threatened that he would get the death penalty if he didn't. Earle and assistant D.A. Claire Dawson-Brown, who worked on the case, say Ochoa may have been frightened in the police station, but they point out that he told the same story for years afterward. Nonetheless, two innocent men had been convicted and one will pay for the rest of his life. In 1991 a fellow inmate wearing steel-toed shoes kicked Danziger in the head. Part of his brain had to be removed, and he now lives in a residential treatment facility in Jacksonville, Fla.
Earle was devastated. He felt awful for the victim's family, for Danziger and Ochoa, and, frankly, for himself. He told Bryan Case Jr., one of his most trusted assistant D.A.s, he was sure the Danziger-Ochoa debacle would mean the end of his political career. But instead of hunkering down, Earle admitted the system had screwed up. He asked Case to lead a task force to review hundreds of the office's old cases for any other errors. If an inmate still claimed innocence and if biological material from the crime still existed, prosecutors investigated further. Eventually they whittled down the list to seven inmates for whom new DNA tests might establish innocence. (None of the tests have been conducted yet because a new state law requires that the already overworked courts oversee the process of locating and testing biological material.)
After Danziger-Ochoa, Earle realized how lucky he had been that he had not sought the death penalty against the men. He was more determined than ever to ensure that no innocent went to the death chamber he couldn't live with himself if that happened. But is it possible to create a flawless system within a flawed one?
You might think that deciding whether to seek the death penalty is a simple matter of applying the facts of the case to the letter of the law. But capital statutes contain wide room for interpretation. To win a death sentence in Texas, for instance, prosecutors must first convince jurors "beyond a reasonable doubt" that a defendant is guilty of capital murder, which is an ordinary murder compounded by at least one of several aggravating factors, ranging from murdering someone you know is a cop to killing a child under 6. Second, the jury must find again, beyond a reasonable doubt that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."