Preliminary DNA tests have cleared two Texas men who have spent 11 years in prison for a 1988 rape and murder that another man confessed to several years ago, sources close to the case said Friday.
Ronnie Earle, the district attorney in Austin, Texas, reopened the case earlier this year. Preliminary DNA test results, ordered by Earle, have exonerated the two inmates, Christopher Ochoa and Richard Danziger, according to several sources. Further tests are being conducted to see if they implicate Achim Josef Marino, the man who confessed to the crime and is serving a life sentence on a separate conviction of aggravated robbery with a deadly weapon.
“We are confident that the final test results will exonerate Ochoa and Danziger and incriminate Marino,” New York attorney Barry Scheck said Friday night. Scheck, co-founder of the Innocence Project at Cardozo Law School, is one of the attorneys now attempting to secure the freedom of Ochoa and Danziger.
On Friday, a spokesman for Texas Gov. George W. Bush said that Bush had received a confession letter from Marino on Feb. 25, 1998, but had not turned it over to law enforcement authorities. Bush spokesman Mike Jones said the governor’s office had not turned over the letter because Marino said in the letter that he also was sending it to the Travis County district attorney’s office.
The four-page letter is a statement of contrition that includes details about the crime. Marino stated that he “robbed, raped and shot” Nancy DePriest, 20, at an Austin Pizza Hut in October 1988.
The letter states the name of the victim and the location of the Pizza Hut. Marino also said that the crime was committed “after purchasing the murder weapon via the Austin American Statesman’s classified section,” according to a copy of the letter provided to The Times by Scheck.
Scheck, defense lawyer Bill Allison of Austin, and law professors Keith Findley and John Pray of the University of Wisconsin’s Innocence Project all praised Earle for “doing the right thing” and attempting to ferret out the truth. Earle was not available for comment Friday night.
Scheck said that the case was very disturbing on a number of levels. He said that Ochoa, 22 at the time of the crime, only confessed to the crime after being threatened with a capital murder prosecution.
“There is no way to explain what happened here without pointing out one of the real problems with the death penalty,” Scheck said. “We have a man [Ochoa] who gave a false confession and testified falsely against another man [Danziger] in order to avoid execution. These are two men without criminal records who were convicted because of the actions of a coercive police officer.”
“The threat of the death penalty seems to have led to a false confession,” Findley added. “The police officers scared the daylights out of Ochoa. They told him Danziger had confessed and” implicated Ochoa in the crime--statements that were untrue, Findley said.
Scheck said that a particularly tragic aspect of the case was that Danziger, 19 at the time of his arrest, was severely beaten in prison and sustained permanent head injuries.
Dist. Atty. Earle started investigating the case earlier this year, after Ochoa’s family had contacted the Innocence Project. Earle ordered that DNA tests be done by Forensic Science Associates, the Richmond, Calif., firm headed by Edward Blake, who specializes in DNA testing and has worked on several other cases that have led to exonerations of people who have been wrongfully convicted.
Reports that Marino had written a confession first was reported by television station KVUE, an ABC affiliate in Austin. The letter was posted Friday night on Salon.com’s Web site.
Jones, the Bush spokesman, said that the governor’s office had no legal obligation to turn the letter over to the district attorney. “This matter was handled appropriately.” Jones said the governor’s office gets about 1,400 letters a year from inmates and normally refers them to a law enforcement agency.
Scheck said he thought the governor’s office clearly should have followed up because the letter was “coherent, detailed and plainly sincere.”
In his February 1998 letter, Marino wrote that in 1990 he learned from another inmate that Ochoa and Danziger had pleaded guilty to the crime. (In fact, Ochoa had pleaded guilty and testified against Danziger. Both got life sentences.)
“Governor Bush, sir, I do not know these men nor why they [would] plead guilty to a crime they never committed,” Marino wrote in the letter. “I can only assume that they must have been facing a capital murder trial with a poor chance of acquittal, but I tell you this, sir, I did this awful crime and I was alone.”
Marino wrote that he earlier had tried to alert other parties to the truth. “Early last year, I wrote the editor of the Austin American Statesman,” the Austin police chief and the Austin office of the American Civil Liberties Union, “confessing to this crime because I believed that I was about to be killed here at the prison, and therefore I wanted to clear my conscience somewhat in regard to the lives of [Danziger], Ochoa and their loved ones.”
Marino said that his life was “no longer in danger, but my conscience still sickens me. I cannot help Nancy Lena Dupriest or her family, but at least I can make amends to [Danziger] and Ochoa and their [loved] ones by doing my Christian duty and come clean about this terrible crime which has been enlarged and magnified by the arrest and conviction of two innocent men.”
Marino wrote that he was “insane” at the time of the murder, but he does not attempt to excuse his conduct. Rather, he explained that “I have had a spiritual awakening and conversion resulting in me becoming a Christian.”
He added, “The Christian lifestyle and value system demands that I do this, even at the loss of my life, which I’m fully prepared to lose and expect to lose.”
Marino said that he also was sending the letter to Earle. He concluded the letter by saying, “I wish to respectfully remind you, that in the event that you all decide to once again ignore this confession that you all are legally and morally obligated to contact [Danziger] and Ochoa’s attorneys and families concerning this confession.”
In the letter, Marino said that a month after he murdered DePriest he was arrested in El Paso for another crime, “where the murder weapon was confiscated by the El Paso Police Department.”
“At the time of my arrest, I had the key as well as two currency bags from the Pizza Hut with the name of Pizza Hut’s bank on the bag, in my possession and which remained in my personal property in the county jail for approximately 14 months.” Marino wrote that a friend of his eventually picked up the property “and took them to my parents’ home where they remain to this day.” Sources said that the authorities now have recovered those items.
Earle, a veteran prosecutor, previously has expressed concern about the possibility of innocent people being in jail and on his own initiative started reexamining old cases. On Thursday, he and defense lawyer Allison jointly asked a judge to release another man who has been in prison 16 years on a rape conviction, saying that he had been cleared by DNA tests.