Ex-area school principal loses parole bid; lawyers fight to free him

Joe Bryan in 1985 in an image pulled from file video footage. (Staff photo)
Joe Bryan in 1985 in an image pulled from file video footage. (Staff photo)(KWTX)
Published: Jun. 12, 2018 at 4:06 PM CDT
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Former Clifton High School Principal Joe Bryan, who was convicted of killing his schoolteacher wife more than three decades ago, has lost his fourth bid for parole, but two local lawyers who believe he was wrongfully convicted are working to free him.

The Texas Board of Pardons and Paroles on Monday announced that Bryan had been denied parole a fourth time, in spite of prison officials saying time and time again that he is a model inmate, has no disciplinary actions and plays piano at the prison chapel services.

But lawyer from West and one from Waco are working to free Bryan, saying that he’s not only not guilty, but also is innocent of the crime altogether.

Not only that, but Walter “Skip” Reaves and Jessi Freud both believe, as do a lot of other people involved in the case, that someone else is responsible for the murder.

Bryan was sentenced to 99 years in prison for the murder of his wife, Mickey Bryan, 44, who was a popular fourth grade teacher in Clifton at the time of her death.

He’s spent the last 33 years behind bars, but he has maintained since his arrest he is innocent of the crime.

Freud said late Monday she had a heavy heart over the most recent parole denial.

While the parole board won’t say so, many think the reason for the denials is simply that Bryan refuses to admit that he killed his wife.

That could be because, Reaves says, “He didn’t do it.”

Reeves said Bryan is a man of principle and even if it meant he’d be released on parole, he’s not likely to admit to something he didn’t do.

The evidence was thin, attorney maintains

Bryan, at the time of his wife’s murder in October 1985, was checked in at the Hyatt Regency Hotel, in Austin, preparing to attend a meeting of the Texas Association of Secondary School Principals, set for 8 a.m. the next day.

In his first murder trial, prosecutors told the jury that between 9:15 p.m. on Oct. 14, 1985 when the two spoke by telephone, and sunup the next morning, when Mickey was found shot to death, Bryan slipped out of his Austin hotel unseen, drove 120 miles to Clifton in the dark and through a heavy rain storm, with an eye condition that made it nearly impossible for him to drive at night, shot his wife, in spite of the fact there was no history of conflict between them; drove 120 miles back to Austin; went back to the hotel and sneaked upstairs to his room with plenty of time left over to shower and clean up so he could make his 8 a.m. meeting.

And that he managed to do all of that without leaving a single witness at any one of those places or any type of forensic evidence anywhere.

Reaves said on Monday, without doubt, there is less evidence in this case than any other one he has dealt with over 35 years and that on a scale of 1-to-10 the evidence presented in Bryan’s trials was a 1, seriously lacking.

But at trial then-District Attorney Andy McMullen had what scientists told him was the real nail in Bryan’s coffin--blood spatter evidence.

Bryan was represented by seasoned Waco criminal lawyers the late Lynn W. Malone and the late Charles McDonald, Sr.

Testimony in trial showed Mickey Bryan had been shot three times in the head and once in the abdomen at very close range.

Medical examiner Dr. Graeme Dowling, who completed the postmortem examination, reported finding the gunshot wounds in her head and body were caused by small shot, like rat or bird shot.

The room was covered in blood and the coroner told investigators the incident would have left the gunman extremely bloody as well.

Yet no bloody clothes or shoes were found at the crime scene.

A pair of Bryan’s underwear were found in a trashcan at the Clifton home that were said to be stained with semen, which still was damp when it was recovered, and proved to be stained by a Type A secretor, which Bryan also is.

The fatal wounds, prosecutors said, had been caused by rounds fired from a .357-magnum caliber weapon, but no trace of the handgun ever was found and it was not present at either trial.

Bryan had told investigators he owned a .357-magnum that he kept loaded with snake shot because there were snakes around where the couple lived.

Forensic tests provided enough evidence that during trial McMillan presented evidence that the gun used was a .357-magnum pistol and that was never challenged, Reaves said.

But the murder weapon, itself, never was recovered, nor was the jewelry.

At trial McMullen explained the missing items away by saying Bryan would have discarded them to prevent them becoming part of the investigation.

Bryan was found guilty and sentenced to 99-years in state prison.

After the 10th Court of Appeals in Waco reversed and remanded the case back to the Bosque County trial court for re-trial, venue changed to Comanche County.

The 10th Court’s opinion says it remanded the case: “because the trial court erred in refusing to allow (Bryan) ‘the right to re-open’ (testimony) before jury argument(s) (were presented) for rebuttal testimony,” the justices wrote in their decision.

Malone and McDonald, Sr., represented Bryan in his re-trial, as well, but that trial ended with the same result.

In the 10th Court’s opinion in Bryan’s second trial, for which the justices affirmed both the verdict and the sentence, the court wrote: “The conviction is based on circumstantial evidence.

“A conviction based upon circumstantial evidence cannot be affirmed unless the proof excludes every other reasonable hypothesis except the guilt of the defendant,” the justices wrote.

Conviction was based on “junk science”

Reaves and Freud are representing Bryan, 77, on appeal, largely based upon the fact that the science used to convict Bryan in 1985 and in 1989 was imprecise and fallible, a point which hasn’t been brought up in Bryan’s appeals process before.

Reaves believes, and that belief is supported by new science, that the blood spatter evidence protocol used to convict Bryan was based on what today is “junk science.”

A major link in the conviction came after McMullen introduced the blood spatter evidence that was found on the lens of a flashlight inside Bryan’s car trunk, and that evidence was, in large part, responsible for the conviction.

But it’s that very blood spatter evidence that Reaves is calling into question today and that blood spatter evidence that might in the end lead to Bryan’s release.

Convinced of an improper verdict in Bryan’s case, New York Times Magazine writer Pamela Colloff, who heard about the blood spatter issue, signed up to take the forensic blood spatter evidence course and the article about Bryan’s case she wrote for the magazine after her experience is extremely troubling.

The classes she attended were taught by Bevel, Gardner and Associates, a firm founded by nationally renowned forensic scientist Tom Bevel, who also served to teach the scientist who testified in Bryan’s trial back in 1985 and its from him Robert Thorman learned the craft.

The course Colloff took was taught by a Bevel protégé who also spent 27 years with the Colorado Bureau of Investigation.

Colloff wrote that she and other students learned about things like “drip trails,” lines of blood drops, either round or elliptical, that indicate blood dripping from a wound as a victim walked across the room.

Identifying such a trail was easy, but Colloff said there were spatter patterns that could have been caused by several different incidents and many of those were much more difficult to explain, if they could be explained, at all.

“In real life, a crime scene would provide context that would guide our conclusions, but as we studied different blood stain patterns, I was struck by how open to error this enterprise is,” she wrote.

Blood spatter shapes, size and arrangements can determine several things, like what kind of weapon was used, where both the victim and the suspect were standing, how the assault took place; but if any minute calculation is off, even by a smidge, the outcomes can be very different.

One of the things Colloff wrote that seemed odd was she questioned her instructor about the impreciseness of measurements and he told her “We’re not really going to focus on the math and physics; it just kind of bogs things down.”

Later the instructor told his students: “You won’t be walking out of here an expert.

“You’ll know just enough to make you dangerous,” he said.

Colloff said the comment startled her: “because judges across the nation have allowed police officers with no more training than I received – 40 hours – to testify as experts.”

Precise science?

Reaves said he thinks not.

“There are a lot, hundreds, maybe more, who were convicted by what we now believe is an inaccurate science,” Reaves said, “There’s a bunch.”

After she finished the $655 course, she spoke with Dr. Peter De Forest, Professor Emeritus of Criminalistics at the John Jay College of Criminal Justice, City University of New York, where he has taught for 37 years, and with Ralph R. Ristenbatt, III, a senior research assistant and Instructor at Penn State University, both considered among the best forensic minds in the country.

Thorman testified in Bryan’s trial that blood spatter on the lens of a flashlight was caused by “back spatter”, the result: blowback from a close-range gunshot.

Because the flashlight wasn’t found in the same location where the blood was spilled, or at the same time, it was essential for the state to draw a relationship between the flashlight and the body if it were to be allowed as evidence.

Thorman’s finding of back spatter did just that.

McMullen’s theory presented at trial was that when Bryan committed the murder, rather than turning on the bedroom light, he used his flashlight, which he held in his other hand as he pulled the trigger and that’s where the spatter came from.

But Ristenbatt said there are serious issues with that evidence in that it was: “an isolated piece of evidence, found in isolation and without context.

“Its history was completely unknown,” and “We don’t know when the blood got onto it or when it was placed in the (car) trunk.”

He said different weapons other than firearms can cause similar spatter patterns, “but it would be difficult to determine how the blood was deposited on the flashlight when it was divorced from the location where the actual bloodletting occurred.”

Experts today say that evidence is extremely questionable and “It was irresponsible to make such a classification given the small amount of blood involved and the limited area of the flashlight lens.”

“It’s totally specious, and there is no evidence to support it,” Deforest said.

DeForest said police officers and others who take such classes but who lack specific scientific training otherwise often make errors when they try to use blood spatter to re-construct a crime scene.

Bryan currently is in custody at the Huntsville Unit, in Huntsville, has a projected release date of April 17, 2025 and became eligible for parole in July 2007, inmate records show.

Another theory

Just four months before Mickey Bryan was killed, the body of a Clifton teenager, Judy Whitley, 17, was found in some cedar woods near the city’s hospital.

Before these two murders, people in Clifton couldn’t say when the last one happened.

Whitley had been brutalized and she was found lying naked, in a cedar thicket on the far west side of town.

No one has ever been arrested for her murder.

But the former editor and owner of the Clifton Record newspaper, who has written about both the Bryan and the Whitley cases since the murders were reported, says he, and many others, believe the two cases are connected.

At the time of Whitley’s murder, one of the primary suspects was a Clifton police officer, but there never was an internal investigation and he moved on to another job in 1985.

Officers from the Rosenberg police force, in South Texas, responding to a call for help in 1996, found the officer, Dennis Dunlap, hanging in his garage.

Subsequent investigation showed Dunlap, 49, had left a note in his bedroom that day saying he’d been a suspect in Whitley’s death.

Rosenberg police notified Clifton police of his suicide.

Not until after his suicide did law enforcement begin an investigation into his relationship with Whitley.

Former newspaper editor Leon Smith told Colloff he later would learn from an officer who worked with Dunlap that at the time of Whitley’s murder he had strongly suspected Dunlap in her death, but after the officer left Clifton, the investigation languished.

Late Clifton police Chief Jim Vanderhoof, a different chief from the man who oversaw the initial investigation, declared the case had been solved after associates of Dunlap’s told him the former officer had confided intimate details of the crime to them; those which likely no one but the killer would have known.

Dunlap reportedly told another police he was relieved at the time because investigators failed to find a roll of duct tape in the trunk of his car, the same kind of tape used to bind Whitley’s body.

Also, police learned of a long history of Dunlap’s violence against women.

One victim told police Dunlap had threatened to choke her if she refused to have sex with him.

One of Dunlap’s ex-wives told investigators he had bragged about having an affair with Mickey Bryan.

“All he told me was he dated her,” the ex-wife, who asked not to be identified, said.

“He told me he dropped her off at her house that night, or that evening and she had told him she was going to break it off,” she said.

Appeal ultimately may hinge on a flashlight

The lynchpin in the appeals effort, though, revolves around the blood spatter evidence and the most recent test on the flashlight where the spatter was found revealed very surprising results.

Reaves petitioned the 220th District Court, where Bryan was re-tried, and was granted permission to complete DNA testing on three pieces of evidence recovered from the Bryan crime scene: that flashlight, the underwear and the cigarette butt found at the house.

Then at a hearing last August, during which Reaves asked for yet more evidence testing, Retired District Judge James Morgan, who presided over both of Bryan’s trials three decades earlier, said he remained “skeptical of the state’s logic”.

Morgan pointed out that DNA testing was unavailable at the time of Mickey Bryan’s murder.

“What’s the harm,” Morgan said.

“This wasn’t available to us back in ’85,” he said, after which he signed the order for testing.

Prosecutors appealed the decision to Texas’ 11th Court of Appeals, based in Eastland, but that panel has not issued a ruling, so the new testing has yet to take place.

Even if that court upholds Morgan’s order, the state can again appeal to the Texas Court of Criminal Appeals for relief.

Results of the new DNA tests on the cigarette butt and the soiled underwear were inconclusive, but the test on the flashlight revealed “no presence of human blood.”

“A presumptive test for blood was negative on the (flashlight) lens,” the forensics report said.

In other words, the test could not confirm that what looked like blood actually was blood, and “no one was any closer to knowing whether the minute reddish-brown flecks on the flashlight lens (is) Mickey’s blood, or blood, at all.”

That begs the question: How could blood spatter evidence be useful if the material in question is possibly not blood?

Former 220th District Attorney B.J. Shepherd cooperated with Reaves’ original request for testing, but for reasons that have never been made clear, the current DA, Adam Sibley, has taken a harder stance, as did McMullen, who retired as DA in 1997.

Some say Bryan was convicted because the defense didn’t provide any clue that someone else could have committed the murder, but Smith disagrees with that.

Reaves and Freud filed a motion, separate from the writ of habeas corpus, requesting that the remaining forensic evidence, including a human hair found in the trunk of Bryan’s Mercury that did not match either of the Bryans, fingernail clippings and vaginal swabs taken at Mickey’s autopsy in the case, undergo new DNA testing.

Just before the docketed hearing, in mid-July, the Texas Forensic Science Commission should complete its investigation into the reliability of the bloodstain evidence presented in the Bryan case, but it’s not likely to have any judicial effect because the results aren’t admissible in court.

“The million-dollar question is, why is the DA’s office fighting this so hard?” Reaves asks.

“They’re fighting us tooth and nail.”

Reaves and Freud have another hearing set on Aug. 16.

Neither Sibley nor McMullen responded to calls and emails requesting comment.

Shoddy forensics

“Of the 250 DNA exonerations that occurred by 2010 throughout the United States, shoddy forensic work — which ranged from making basic lab errors to advancing claims unsupported by science — had contributed to half of them,” according to a review by the Innocence Project.

A 2009 study undertaken by the National Academy of Sciences issued a groundbreaking, and damning, report on the matter and found only inconsistencies.

“Its authors found that many forensic disciplines — including the analysis of blood spatter, hairs, bite marks, shoe and tire impressions and handwriting — were not as ‘scientific’ as they often (were) purported to be,” Colloff wrote.

“The report included a sobering appraisal of bloodstain interpretation,” and it said “Analysts’ opinions were often ‘more subjective than scientific,’ its authors warned, and open to ‘context bias.’

“Moreover, ‘the complex patterns that fluids make when exiting wounds are highly variable,’ they observed, and ‘in many cases their interpretations are difficult or impossible.’

“In conclusion, the authors cautioned, ‘the uncertainties associated with bloodstain-pattern analysis are enormous,’” she said.

Freud got involved almost five years ago in the Bryan case when she was still at Baylor Law School and was interning for Reaves, she said.

It was her research that guided the appeal issues set for hearing in August, according to Reaves.

Judge Douglas Shaver, retired from the Houston area, is set to preside over the next hearing.

Shaver, of Houston, has experience in this part of the state because it was he last November, in the Twin Peaks case filed against Matthew Alan Clendennen, of Hewitt, who began the ball rolling as one-after-one the 177 biker cases have fallen by the wayside, and he who said he’d have jailed the McLennan County District Attorney for his shenanigans in the cases.

Only some 25 of the original number remain.

Freud said she is so passionate about Bryan’s case because: “If an injustice can happen to Joe Bryan, it could happen to any of us,” Freud said, “it happened then and it can happen today.”

Considering the responses Colloff got from some blood spatter “experts” to her questions, Freud could be making an extremely valid point.

When Coloff asked about requiring additional education before someone can call themselves a blood spatter expert, a blood spatter expert who works for Miami-Dade Police said, “Why? Thomas Edison was self-taught.”