Bush refuses to pardon inmate despite DNA test Evidence indicates Texas man's conviction for rape was mistake


HOUSTON -- Rejecting the unanimous recommendation of the state board of pardons and of the judge and prosecutors in the case, Texas Gov. George W. Bush has declined to pardon a Houston man who spent 12 years in prison for a rape that DNA testing later indicated he did not commit.

The case, in which the forensic evidence points to the man's innocence but the victim continues to insist that he raped her, has sparked a highly unusual legal fracas and has even taken on political overtones.

A lawyer for the convicted man has accused Bush, a potential Republican presidential aspirant, of bending to concerns over the political fallout of pardoning a convicted rapist, even one who prosecutors now say they believe is innocent of the crime.

"He doesn't want to take any risk that Byrd could become his Willie Horton," said the lawyer, Randy Schaffer, referring to his client, a 35-year-old carpenter, Kevin James Byrd.

Horton was a Massachusetts criminal who raped a woman while he was released on a furlough.

The Horton case was used by the 1988 presidential campaign of Bush's father, George Bush, to portray his Democratic opponent, Massachusetts Gov. Michael Dukakis, as soft on crime.

But Governor Bush's spokeswoman, Karen Hughes, dismissed Schaffer's assertions as absurd, saying that the governor had not ruled out a pardon for Byrd but preferred not to decide until "all other legal remedies have been exhausted."

She also noted that Bush had rejected hundreds of other pardon recommendations by the pardons board, though the Byrd case is the first he has faced that is based on a contention of innocence.

Byrd was released on bail this summer by state District Judge Doug Shaver.

But under Texas' legal proceedings, he has not been cleared of the crime, and nearly everyone involved in the case had recommended a pardon as the most efficient way to clear his name.

Bush's decision means that Shaver must now preside over an evidentiary hearing, with his findings sent on to the state Court of Criminal Appeals.

The appeals court would conduct its own review and presumably order a new trial, though it could find the DNA evidence inadmissible and allow the conviction to stand.

The district attorney of Harris County, John B. Holmes Jr., vows that if a new trial is ordered, his office will not retry Byrd for the crime.

(Byrd would still have to pay $185 to clear his name from the state's criminal records, a step he would not have had to take if he had been pardoned.)

Holmes, concurring with Shaver and with the 18-member Texas Board of Pardons and Paroles, has urged the governor simply to pardon Byrd.

He called his decision to recommend a pardon extremely unusual, but one motivated by DNA testing that clearly shows that Byrd's semen was not the semen found in the victim.

"What I'm saying is, this guy is innocent," said Holmes, who has a reputation as one of the toughest prosecutors in the nation.

"I'm saying, he shouldn't be prosecuted at all."

Hughes noted that the victim had continued to insist that Byrd was the one who raped her in a 1985 incident in which a stranger attacked her in her bed.

She was eight months pregnant, and her 2-year-old daughter was lying beside her.

Police had been unable to crack the case until four months later, when the victim saw Byrd in a grocery store and told her husband that she was looking at the man who had raped her.

She gave her account to the police, who arrested Byrd.

And despite some contention at the trial -- her initial police report quoted her as saying her assailant was white, while Byrd is black -- he was convicted of the crime.

After an old friend of Byrd's got involved in the case, a retesting of the semen found that it could not have been Byrd's.

Hughes said that the governor, who sent his lawyers to interview the victim, had never pardoned anyone convicted of a violent crime and that his actions in the Byrd case were consistent with his handling of all court matters that come before him.

"The governor is very leery of granting pardons," she said.

"His basic philosophy is, if you commit a crime, you should be prepared to live with the consequences."

Since taking office in January 1995, Bush has issued 14 pardons, most involving minor property crimes committed when the culprits were young.

In their four-year terms preceding Bush's, Gov. Ann W. Richards issued 70 pardons and Gov. Bill Clements issued 290.

Pub Date: 9/14/97

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