- The Washington Times - Monday, May 20, 2002

FORT WORTH James Byrd, a 39-year-old Fort Worth man, has served more than four years of a 30-year prison sentence for a 1997 robbery he has persistently said he did not commit.
"He had an alibi, but the jury didn't believe him," said his mother, Olivia Byrd, 72. "Now all I can do is hope."
Mrs. Byrd's hope and the pain a close-knit family of 10 children, 49 grandchildren and 20 great-grandchildren has endured is two-sided. The 39-year-old's brother, Donnie Johnson, 43, has come forth and admitted to the robbery. Polygraph tests on both brothers indicate Mr. Johnson's guilt and Byrd's innocence.
Prosecutors here admit they do not know exactly how the matter can be straightened out, but they are trying.
Alan Levy, criminal division chief for the Tarrant County district attorney's office, said in an interview that his office planned to send the polygraph results to a federal agency he would not name the agency for review.
Assuming the polygraph tests were accurate in both cases, Mr. Levy said his office would make a recommendation to the governor and the state pardons and parole board that Byrd be released. He said he already leaned in that direction because he knew the polygraph operator, who he said was "excellent."
But what the governor can or will do is debatable, he said.
"All this has very little to do with law," said Mr. Levy. "All the legal remedies are gone. We could keep this guy forever, legally."
"But," he said, "in essence there is an escape valve, where the Commission not the governor himself, but the state Pardons and Paroles commission can make a recommendation to the governor. And they have to recommend it before the governor can act."
Under Texas law, Mr. Levy explained, "To get a prisoner out of prison because of duly discovered evidence, the legal criteria is that he really has to be proven innocent. Well, the polygraph isn't admissible for anything. It's not evidence in anything."
Before the pardons and parole board can make such a recommendation, it must have the consent of the trial officials the judge, sheriff and district attorney.
The situation may not have come up were it not for an enterprising young television reporter in Dallas.
Jeff Crilley, of KDFW-TV, was told that Mr. Johnson had signed a confessional affidavit two years ago when Byrd's lawyers appealed his conviction. The state appeals court refused to consider it.
Mr. Crilley took a camera crew to the Byrd home earlier this year and Mr. Johnson agreed to tell his story to the TV reporter. Then the reporter went to Mr. Levy, who told him he had heard such stories many times in his lengthy prosecutorial career.
They agreed that if both the brothers passed polygraph tests from a reputable operator it might add believability. Mr. Crilley's news director agreed to pay for the test.
In the TV interview, Mr. Johnson said he had lied during the trial when asked if he had done the robbery because his brother's lawyer had told him his brother would probably be found innocent.
He said he had entered a neighbor's garage one spring morning in 1997 and stolen several pieces of lawn equipment. As he was leaving to get in his car, the police report said, the homeowner rushed after him and the thief plunged his hand into his pocket, as if he had a weapon, and said to her, "Don't mess with me. I'm going to shoot you."
He tossed the stolen goods into his car and drove off. The victim got the license number and police arrested Byrd. The car had been registered in his name.
Because of the implied threat, the jury gave the defendant a 30-year sentence.
"My conscience has been bothering me," Mr. Johnson said in the TV interview. "It was eating me up. I can't live with it no more. James was my best friend and my brother. We used to do everything together."
Later Mr. Johnson told reporters, "I really feel relieved. I'm so glad I got this off my chest."
As for going to prison, he said, "I did the crime. I should do the time."
Mr. Johnson said he had driven "a wedge in the family. They thought I should have [confessed] a long time ago."
"I tried to tell the law," Mrs. Byrd told Fort Worth Star Telegram columnist Bob Ray Sanders, "and tried to talk to whoever I could to tell them he wasn't the one, but they wouldn't listen."
Mr. Byrd said he couldn't understand why his brother didn't admit his guilt at trial.
He said: "What hurt me more than anything my own brother, my own flesh and blood he constantly lied."
Last month, the brothers had a tearful reunion.
"I told him I was sorry I had put him through this," Mr. Johnson said. "He said he accepted my apology and that he loved me. That felt good."


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