Arguing that an innocent man is serving a 28-year prison term based on bad science and a lying jailhouse informant, defense lawyers have turned to the Texas courts to overturn the 2009 armed robbery conviction of Bell County’s George Powell III.
Powell’s case has attracted high-profile attention from the Texas Forensic Science Commission, a state agency that reinvestigated — and called into question — the key piece of evidence against Powell.
In addition, the jailhouse informant has recanted, saying he hoped to get favorable treatment on a burglary charge when he testified that Powell — a fellow prisoner at the Bell County Jail — admitted to robbing a 7-Eleven, plus four other stores and gas stations for which Powell didn’t face trial.
“Everything I said on the stand was a lie,” Demetric Smith said in the handwritten, sworn and notarized affidavit to Bell County District Attorney Henry Garza. “Mr. Powell never confessed anything to me at any time.”
Add it all up, defense lawyer Mike Ware said Friday, and “this is an obvious case where they simply arrested and convicted the wrong man.”
“He’s completely innocent of this crime,” said Ware, executive director of the Innocence Project of Texas, which is representing Powell with help, in part, from a $30,000 Texas Bar Foundation grant to investigate and litigate convictions based on invalid science.
Paul McWilliams, the first assistant district attorney for Bell County, declined to discuss the Powell case, saying he couldn’t comment on pending litigation.
Powell’s appeal was filed Thursday in state district court in Bell County, where a judge will examine the issues and submit recommendations to the Court of Criminal Appeals, which will ultimately decide Powell’s fate. Defense lawyers anticipate filing additional information in the coming weeks, and prosecutors will have a chance to respond to the appeal.
Powell’s conviction hinged on a dispute over the height of the robber.
The clerk at the 7-Eleven told police that the man wearing sunglasses and a ball cap who pointed a gun at her was about 5-foot-6. Powell, however, stands 6-foot-3.
To account for the discrepancy, prosecutors called to the stand an expert who examined video footage of the robber as he walked past the height-measurement strip next to the store exit. Michael Knox, introduced as an expert in forensic video analysis, testified that the 7-Eleven surveillance video showed a suspect at least 6-foot-1.
Although Knox “had never before estimated height based on photos or videos,” the appeal said, jurors convicted Powell of aggravated robbery.
In 2014, however, the Texas Forensic Science Commission voted to examine Knox’s determination as part of its role in helping judges, prosecutors and lawyers better use forensic evidence at trial.
The commission hired a national leader in forensic video analysis who — using industry-standard methods that Knox did not, including three-dimensional laser scanning and measurement scale analysis — determined that the robber was no taller than 5-foot-9, and could have been as short as 5-foot-6.
In its report on the Powell case, the commission concluded that Knox’s analysis was flawed and that his determination about the robber’s height was “unsupportable,” Powell’s appeals said.
The appeal also:
• Disputed the results of a photo lineup in which the 7-Eleven clerk identified Powell as the robber. The method the police used to present the photos has been proven to be so unreliable that the Legislature banned its use in 2011, the appeal said.
• Countered trial testimony that linked Powell to an audio recording taken of a separate robbery for which he wasn’t tried. An audio analysis done after the trial, however, showed that the voice didn’t belong Powell, the appeal said.