A PROJECT OF THE UNIVERSITY OF CALIFORNIA IRVINE NEWKIRK CENTER FOR SCIENCE & SOCIETY,
UNIVERSITY OF MICHIGAN LAW SCHOOL & MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
UNIVERSITY OF MICHIGAN LAW SCHOOL & MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
Thirty-five people in Tulia, Texas received pardons in 2003 for wrongful drug convictions based on the work of a rogue undercover police officer.
The pardons from Governor Rick Perry came after the undercover sheriff’s deputy was found to have given false testimony that the district attorney allowed to stand. Other evidence suggested that the deputy had falsified reports, tampered with a potential witness by plying him with alcohol, and perhaps tampered with evidence.
On July 23, 1999, law-enforcement officers who were part of a regional anti-drug task force conducted a pre-dawn raid into individual homes across Tulia, a small town in the Texas Panhandle. They arrested 46 people, charging most with delivery of cocaine.
The officers arrived with arrest warrants, but seized no cocaine, weapons or cash during any of the arrests. Forty-one of the defendants were black, and they comprised approximately 10 percent of Tulia’s black population. Their names were published in the local paper. One headline read: “Tulia’s Streets Cleared of Garbage.”
Tom Coleman, a sheriff’s deputy with Swisher County, directed the raid, and he was named Outstanding Lawman of the Year in 2000 by the Texas Department of Public Safety.
Swisher County Sheriff Larry Stewart hired Coleman in early 1998 through the Texas Panhandle Regional Narcotics Trafficking Task Force, out of Amarillo. After two weeks of training with the U.S. Drug Enforcement Administration, Coleman spent 18 months in Tulia, posing as a laborer and hanging out at the cattle auction house. While both Sheriff Stewart and the task force his work, they did not require much. His reports were skimpy, typically no more than a paragraph describing what he observed. He provided little corroborating evidence, used no wiretaps, and relied on almost no witnesses. Coleman would later say he often wrote down notes on his hands and legs or scraps of paper.
Additionally, the evidence he claimed to have seized was suspect. The drugs he turned over to the task force for analysis were almost always powder cocaine, as opposed to crack, which was unusual because powder cocaine was typically associated with affluent, white users.
Most of the defendants were indigent and received court-appointed attorneys. In several cases, these attorneys did minimal preparation for the clients, in part because the reimbursement rate for court-appointed work was capped and discouraged extra effort.
Laura Mata was the first defendant to resolve her case, and she pled guilty in the 242nd District Court of Swisher County to delivery of powder cocaine on Sept. 2, 1999. She was sentenced to five years in prison.
The next defendant was an older man named Joe Moore. He was a scrap dealer who raised hogs but also had previous convictions for cocaine possession and bootlegging and was a well-known figure in Tulia’s black community. Swisher County District Attorney Terry McEachern portrayed Moore as one of the town’s drug kingpins.
Moore’s attorney filed a motion to suppress Coleman’s identification of Moore. Coleman testified at the pre-trial hearing that he kept few notes of what he saw. In fact, he said he omitted the name of the witness who had introduced him to Moore from his report because he didn’t want the witness to have to testify. Later, the attorney asked Coleman if he had ever been the subject of any internal investigation by the task force or any other law-enforcement agency. Surprisingly, Coleman said he had been investigated for theft in May 1998, five months into his undercover work in Tulia.
The attorney did not bring that fact out at trial, where Coleman was the state’s only witness against Moore. After 20 minutes of deliberation, a jury convicted Moore of two counts, delivery of a gram of crack cocaine and delivery of an “eight ball” – an eighth of an ounce – of powder. He was sentenced to 90 years in prison.
Two other men were convicted at trial in January 2000. Jason Williams was sentenced to 45 years in prison. The other, William Cash Love, was convicted on eight separate deliveries of cocaine. He was sentenced to 361 years in prison, in part because the crimes were said to have occurred within 1,000 feet of a school or park or similar facility used by children. In tiny Tulia, it was nearly impossible to avoid that geography, and other defendants also found their sentences enhanced in a similar manner.
Very quickly, a majority of the defendants started to enter pleas to reduce their exposure to long prison sentences. Twenty-four defendants pled guilty during the next five months. They received sentences ranging from 90 days to 18 years. Expand below to find a chart that shows the sentencing disparities based on pleas vs. trials.
|Dennis Allen||Plea||18 years|
|James Barrow||Plea||10 years|
|Leroy Barrow||Plea||10 years|
|Troy Bernard||Plea||10 years|
|Fred Brookins||Trial||20 years|
|Marilyn Cooper||Plea||$2,000 fine|
|Andrew Ervin||Plea||10 years|
|Michael Fowler||Plea||5 years|
|Jason Fry||Plea||3 years|
|Vickie Fry||Plea||5 years|
|Willie Hall||Plea||18 years|
|Cleveland Henderson||Plea||5 years|
|Mandrell Henry||Plea||2 years|
|Christopher Jackson||Trial||20 years|
|Denise Kelly||Plea||1 year|
|Calvin Klein||Plea||5 years|
|William Love||Trial||99 years|
|Joseph Marshall||Plea||10 years|
|Laura Mata||Plea||5 years|
|Vincent McCray||Plea||3 years|
|Joe Moore||Trial||90 years|
|Daniel Olivarez||Plea||12 years|
|Kenneth Powell||Plea||90 days|
|Benny Robinson||Plea||4 years|
|Finaye Shelton||Plea||5 years|
|Donald Smith||Plea||14 years|
|Yolanda Smith||Plea||2 years|
|Timothy Towery||Plea||18 years|
|Kareem White||Trial||60 years|
|Kizzie White||Trial||25 years|
|Jason Williams||Trial||45 years|
|Michelle Williams||Plea||2 years|
Kizzie White, who was Love’s partner, refused to plead guilty. When she went to trial in April 2000, Coleman was again the state’s only eyewitness, and McEachern told the jury: “We brought forth ... the most outstanding law enforcement officer of the year. If you can’t believe him, well, then, who can you believe?”
White was convicted April 7, 2000 and sentenced to 25 years in prison.
During his testimony at several of the trials, Coleman had made offhand references to his disdain for a sheriff in Cochran County, where he had once worked. Paul Holloway, an attorney for several of the defendants, began researching Coleman’s work history and found out that Coleman had left behind approximately $7,000 in debts to Cochran merchants when he quit his deputy’s job in 1996. In addition, he had been charged with theft on May 6, 1998 for using a county credit card during his time in Cochran County to buy gasoline for his own vehicle.
Officials in Swisher County had received notification on August 10, 1998, that there was an unresolved arrest warrant for Coleman. By then, Coleman was eight months into his undercover job. He was quietly arrested, given a week off to get his affairs in order and make restitution and then allowed to continue his work. The theft charge was dropped.
Coleman had not been convicted, and the Texas rules of evidence did not generally allow the admission of evidence about past misconduct unless there was a conviction. Still, several of the attorneys, including Holloway, began trying to figure out a way to get this information into the courtroom and before the public.
On June 23, 2000, the Texas Observer magazine published a lengthy investigation about the situation in Tulia, including details about Coleman’s arrest and his troubled employment history. The story also questioned the basic logic of the arrests, that there were dozens of drug dealers in a hardscrabble town, and that there was little evidence – beyond Coleman’s word and his scant files – connecting the defendants to cocaine, particularly powder cocaine.
One defendant, Donnie Smith, who was Kizzie White’s brother, was charged with seven counts of delivering cocaine. Six of the charges were for powder. At the first trial, for the crack charge, Smith admitted to buying cocaine for Coleman, but said it was only crack and mostly he used Coleman’s money to help feed his habit; Neither he nor any of his friends used powder cocaine or had any idea where to find it. By the time of his arrest, Smith had been through rehab and was not using drugs. He would later tell the Observer, “I don’t mess with powder, man. I don’t shoot it and I don’t smell it.” He testified that he and Coleman had smoked crack together. He was convicted and sentenced to two years. He then pled guilty to the powder charges in February 2000 and was sentenced to 12 years.
The last Tulia defendant to stand trial was Kareem White, Kizzie White’s other brother. His trial was in September 2000, and by then the events in Tulia had started to attract attention from the regional and national media. White’s attorney was able to get a pre-trial hearing on a motion to introduce testimony and evidence about Coleman’s arrest and work history. At the trial, that evidence wouldn’t be heard, but each side had character witnesses testify about whether Coleman was truthful and credible.
Also during the trial, White’s attorney was able to show that Coleman falsified records. Coleman testified that after each purchase, he drove the 50 miles to Amarillo to the task force offices to log in the drugs. White’s attorney showed records that said two buys had been made within 65 minutes of each other. That was impossible, and when confronted with that fact, Coleman simply changed his story. In the end, Kareem White was convicted and sentenced to 60 years in prison.
Despite the numerous convictions, there had been problems with several of the cases that Coleman worked up. In one instance, he identified the man who sold him drugs as being tall with bushy hair. The man was short and bald. The charges were dismissed. In two other cases, the defendants, both women, had solid alibis for the times that Coleman said he had bought drugs from them. Neither one was living Tulia at that time. One of the women had a time-stamped deposit from a bank in Oklahoma. Their charges were dismissed.
Finally, there was Billy Wafer, a forklift operator snared in the sting. At a pre-trial hearing, he had timecards and his boss’s testimony that he had been at work. His charges were dismissed.
Wafer sued Coleman, Stewart and Swisher County for civil rights violations on February 22, 2001 in U.S. District Court for the Northern District of Texas. In June, Wafer’s attorneys, took depositions from Coleman and Stewart. Coleman, in particular, was evasive, particularly in regards to his arrest. He had signed a waiver of arraignment in May 1998, but also said he didn’t know the particulars until August of that year. He said that his attorney had advised him to sign a blank waiver to cover any contingencies and avoid a trip back to Cochran County. In October, Swisher County settled with Wafer for $25,000.
Venita Gupta, an attorney with the National Association for the Advancement of Colored People’s Legal Defense Fund ↗, became involved in the cases that month, after seeing a short documentary on Tulia. Working with a phalanx of private, pro bono attorneys, Gupta organized a massive legal challenge to the convictions of the Tulia defendants, filing habeas petitions with the Texas Court of Criminal Appeals. Eventually, four of the convictions were remanded back to Swisher County for hearings.
The appellate court’s order, filed on September 25, 2002, was both precise and broad. Specifically, it ordered the trial court to make findings about whether Coleman’s testimony was corroborated and the nature of that corroboration; what alleged impeachment evidence was known to the state at the time of trial; and whether any of this evidence was disclosed. The defendants claimed that exculpatory evidence had been suppressed in violation of the U.S. Supreme Court’s ruling in Brady v. Maryland. More broadly, the hearings were a way for the defense to put Tom Coleman and the law-enforcement community under the spotlight and force them to explain Coleman’s methods and the manner in which he was hired and supervised.
Judge Edward Self, the trial judge for the overwhelming majority of the Tulia cases, was to preside over the hearings. Gupta and her team wanted another judge and filed a motion for recusal. They believed that Self’s trial rulings suggested he gave little merit to the issues raised on appeal, and they cited public statements by Self that appeared to suggest he had already made up his mind. Self was forced to recuse himself, stating he didn’t want to give the defense extra ammunition.
While the state argued that it didn’t have a duty to disclose exculpatory information that wasn’t admissible, the defense said the decision on what to disclose wasn’t up to prosecutors. The state needed to disclose, and then a judge could decide what was admissible at trial.
The heart of the hearing concerned what Sheriff Stewart and the task force knew about Coleman’s arrest, when they knew it, and what they did with that knowledge. While Coleman insisted that he knew nothing about the reason for the arrest until August 1998, defense attorneys produced phone memos from Coleman’s attorney’s office showing he had called his attorney several times in July 1998.
Separately, after Coleman’s arrest, his information was never entered into the state’s criminal database. It was as if he hadn’t been arrested. During his testimony, Sheriff Stewart suggested it was a clerical error on the part of Cochran County, but a clerk there had kept good records, which showed that she had followed up with the sheriff’s staff and had been told they would take care of entering the arrest. In addition, Coleman was given a polygraph test after the arrest as a condition of returning to work. While Stewart and other members of the task force said Coleman had “passed,” an examination of the results by one of the state’s leading polygraph experts showed Coleman’s responses were “inconclusive, leaning toward deception.”
The defense team was also able to get Coleman to admit he used a racial epithet, although he insisted it was not offensive to the people he said it to. They also floated a theory, used in at least one of the trials, to explain why the cocaine Coleman said he had bought was mostly powder and also very weak. Under this theory, Coleman had bought cocaine elsewhere, cut it to make it go further, and then logged it with the task force in small increments as undercover drug buys. In the process, he pocketed the task force’s money and used the funds to pay off his debts. While he acknowledged such a thing was possible, Coleman did not admit to doing that in Tulia. He said, instead, that the poor community of 5,000 people had indeed been home to 45 drug dealers.
Before Coleman finished testifying, the two sides began working on an agreement, known as a Stipulation of Facts and Findings, to present to Judge Ron Chapman. At the time, the state was backed up against the wall. Coleman was still on the witness stand, and his testimony so far had led to a maze of contradictions and obfuscations. It wasn’t just about the arrests. Coleman had said he was married. He was divorced. He testified that he had been randomly drug-tested during his time in Tulia. He hadn’t.
In addition, McEachern would have to testify at the habeas hearing, and there was evidence he had known about Coleman’s arrest before the Tulia indictments were handed down and before McEachern had told jurors at several trials that none of the state’s witnesses had criminal records.
The stipulations were given to Chapman, and on April 2, 2003, he recommended that the 38 cases – 35 convictions and three probation revocations – be thrown out. He said from the bench, "It is stipulated by all parties and approved by the court that Tom Coleman is simply not a credible witness under oath."
Normally, the Texas Court of Criminal Appeals would sign off on Chapman’s ruling that granted the habeas motions, but that was made unnecessary by Perry’s pardons of 35 defendants on August 22, 2003. The three persons not covered under the pardons were in deferred adjudication and were never convicted.
The Tulia defendants, including those who were arrested but not convicted, later filed suit in U.S. District Court for the Northern District of Texas against the task force and the cities and counties who governed the body. In 2003, they reached a settlement of $5 million with the city of Amarillo and a separate settlement of $1 million with other communities. The money was split among 46 persons who were charged or convicted as a result of the undercover operation. The task force was also disbanded.
Separately, 19 of these defendants received compensation awards from the state of Texas totaling $3.1 million. These awards ranged from $14,583 to $106,250. Thirteen of those 19 defendants also receive monthly annuities, totaling $12,488 for the group, or approximately $150,000 a year.
Coleman was charged with two counts of perjury. He was convicted on January 14, 2005 on a single count, for lying at the habeas hearing about when he knew about his arrest. He was given 10 years of probation, and his law-enforcement career came to an end.
McEachern lost his campaign for reelection in 2004 and was investigated by the State Bar of Texas. The Bar concluded in July 2005 that McEachern had engaged in misconduct during his prosecution of the Tulia cases. The agency suspended his license for two years but probated the sentence, allowing McEachern to keep practicing law.
Landis and Mandis Barrow, twin brothers, were arrested on July 23, 1999 as part of the drug sting, but they were never convicted. At the time of the arrest, they were on probation for aggravated robbery through a deferred adjudication program in nearby Potter County. Their probation was revoked, and they were each sentenced to 20 years in prison on the robbery charge. Perry’s pardon did not include them, and they languished in prison for years, the last defendants from Tulia. In 2009 (for Landis) and 2010 (for Mandis), the Texas Court of Criminal Appeals vacated the adjudications and remanded the case to Potter County. In February 2011, their charges were dismissed.
- Ken Otterbourg
Dennis Allen, James Barrow, Leroy Barrow, Troy Bernard, Fred Brookins, Marilyn Cooper, Andrew Ervin, Michael Fowler, Jason Fry, Vickie Fry, Willie Hall,
Cleveland Henderson, Mandrell Henry, Christopher Jackson, Denise Kelly, Eliga Kelly, Calvin Klein, William Love, Joseph Marshall, Laura Mata, Vincent McCray, Joe Moore, Daniel Olivarez, Kenneth Powell, Benny Robinson, Finaye Shelton, Donald Smith, Yolanda Smith,
Romona Strickland, Timothy Towery, Kareem White, Kizzie White, Alberta Williams, Jason Williams, Michelle Williams.