Finding Justice 

Rebuilding his life after his wrongful conviction, Christopher Ochoa graduates law school

 

By Jason Shepard

 

Sipping a latte at Borders bookstore while skimming the front page of the Wall Street Journal, Chris Ochoa looks more like the lawyer he’ll soon be than the convicted murderer he once was.

 

Today, Ochoa’s life in Madison is better than he dared imagine as a boy in El Paso, Texas, where he was the oldest of three children in a working-class family, his father a truck driver and his mother a garment worker. And it’s infinitely better than 12 years he spent behind bars in Texas for a rape and murder he did not commit.

 

Now 39, he’s financially secure, thanks to a multi-million dollar legal settlement. He’s got a circle of friends and, a few months ago, the law student he’s dating moved in with him. On May 12, Ochoa will celebrate his latest milestone: graduation from the University of Wisconsin Law School. His classmates elected him to give their commencement address.

 

Once, Ochoa toiled in prison, wondering how he could continue to live when society, and even his friends, had given up on him. Now he thinks of becoming (ironically enough) a prosecutor, or perhaps moving to New York and finding a job where he can use his law degree and interest in business. Working for a public-relations firm isn’t out of the question.

 

And it’s all because of the efforts of people here in Madison – people who worked to prove Ochoa’s innocence and restore his life. Ochoa has been in the belly of the beast and has emerged, if not unscathed, then certainly the wiser for it.

 

Most people like to believe the criminal justice system gets things right. And most of the time, it does. The safeguards in place, from limits on police interrogations to the rights of the accused in criminal trials, are meant to ensure that justice is served. The system is supposedly so righteous it would rather let a guilty man go free than see an innocent man be punished.

 

But in Ochoa’s case, the safeguards broke down at every level. And he is hardly alone. Ochoa is among 175 people who have been freed from prison in the past decade after DNA proved their innocence.

 

UW Law School professor Keith Findley, co-director of the Wisconsin Innocence Project, says that number only scratches the surface. Hundreds if not thousands of other people have been freed based on other post-conviction evidence. Exonerating America’s wrongly incarcerated has become its own field of legal scholarship. And stories of wrongful conviction are the subject of a new book, Surviving Justice, and an award-winning documentary, After Innocence.

 

Ochoa’s case made national headlines during the 2000 presidential election, when it was revealed that the office of then-Texas Gov. George W. Bush had gotten a written confession from the real killer but took no action. And for a brief time after his release in January 2001, Ochoa became something of poster child for the innocence movement. He appeared on talk shows like Sally Jesse Raphael and was featured on Nightline.

 

Then Ochoa quietly slipped away from the headlines to resume his life. He enrolled in an Austin-based program that helped Latinos prepare for law school, and set his sights on the UW, which had freed him from a life in prison. He was accepted, and started in 2003.

 

“Chris is a special case and he’s a special person,” says Findley. “To spend 12 years in prison for a rape and murder you didn’t commit is a tremendously damaging experience. For him to come out of it and for him to focus all his energies on making a better life for himself so he can become an attorney, well, it’s just really a testament to his own character and strength.”

 

Confessions

On Oct. 24, 1988, the manager of a Pizza Hut in north Austin, Texas, arrived to discover the naked body of employee Nancy DePriest, a 20-year-old mother of an infant daughter. She had been raped and shot, and money had been stolen from a safe.

 

The homicide was a priority case, but police had few leads. Then, a few weeks after the crime, a security guard at the restaurant called police to report that two men – employees of another Pizza Hut in town – had inquired about the murder while drinking beer at the restaurant.

 

The two men were Christopher Ochoa, then 22, and Richard Danziger, then 18. Ochoa remembers police coming to his Pizza Hut and asking him to come in for questioning.

 

“They were friendly,” recalls Ochoa, who thought he’d simply tell the truth – he wasn’t involved and didn’t know who was – and be on his way. At the station, he was taken to an interrogation room.

Hector Polanco entered. The burly police detective, who would later face multiple misconduct allegations, slammed his fist onto the table. Ochoa says Polanco was “yelling and screaming.” He remembers him saying, “I’ll make sure they put you to death.”

 

Ochoa was interrogated by Polanco and another detector for many hours. They did a good cop/bad cop routine, with Polanco hurling accusations and the other detective urging Ochoa to help himself out by revealing what he knew.

 

The detectives lied, telling Ochoa that Danziger had implicated him in the murders. They said he’d be charged with capital murder. Ochoa says he asked for a lawyer, only to be told he didn’t have this right until he was charged. He says they showed him a picture of a cell on death row. They showed him crime scene and autopsy photos of DePriest. They said he’d be fresh meat for prison rapists.

 

At one point, Ochoa says Polanco grabbed his arm and pointed to his vein. “This is where they stick the needle in, and I’m going to be there to watch you die,” Ochoa remembers him saying.

 

The relentless interrogations slowly wore Ochoa down.

Ultimately, he did something most find unthinkable: He agreed with the story put forth by the detectives. He said he and Danziger raped and murdered Nancy DePriest, something that 12 years later would be proven to be false.

 

“I know people think no reasonable person would confess to something they didn’t do,” Ochoa says now. “Who the hell is reasonable in that situation? You’re not normal. You’re there, never been in trouble before, you’ve been taught to respect officers with guns. They put you in a room, they’ve got the badges, what are you going to do?”

 

Ochoa believed the only way out was for him to agree with the detectives. Whatever the cops wanted him to say he did, he agreed. His story changed numerous times, over several days of active interrogations. A tape recorder was brought in for detectives to record his statements. He says that when he gave the wrong details, or used the wrong phrases and statements, the detectives rewound the tape and had him do it again. They typed a statement for Ochoa to sign; he did.

 

“I really didn’t think anything would come of it,” says Ochoa. “The justice system – a judge, the lawyers – they’d see that this wasn’t the truth. Now I know the justice system doesn’t work that way.”

 

Slip-sliding away

Ochoa began to see just how great a price he might have to pay for his naïveté when he met his first lawyer in jail. The lawyer was young, not more than a year out of law school, handling a capital murder case.

 

“I told him everything – that I was forced to make the confession, that I didn’t do it,” Ochoa recalls. “He goes to the cops, gets all the statements I signed, and comes back and says, ‘Nobody is going to confess to something like this if they didn’t do it.’”

 

An older, more experienced attorney joined Ochoa’s defense team. He didn’t believe Ochoa either, and told him his job was to make sure Ochoa didn’t get the death penalty. The only way to guarantee that was to accept a plea deal and testify against Danziger. Only if both men were convicted would the death penalty be off the table.

 

Ochoa relented and took the deal, resulting in his being convicted and sentenced to life in prison. Danziger took his case to trial, and was also convicted, thanks to Ochoa’s testimony -- along with the detectives’ equally questionable representations that Danziger told them details only the killers would know.

 

Even Danziger’s attorney, Berkley Bettis, didn’t believe anything was awry. “I left that trial feeling the state had proved beyond a reasonable doubt that my client was guilty,” Bettis later told Texas Monthly. “How could Ochoa have stood on the witness stand and related detail after detail after detail? People just don’t do that if they’re innocent, or at least I didn’t think so.”

 

Ochoa sat numbly in a Texas jail, waiting for a spot to open up in the crowded prison system. Once he was assigned to prison, he kept to himself. Early on, he defended himself in a few fights to establish that he wouldn’t be messed with. He got along with most inmates.

 

The years passed, and Ochoa saw his life slipping away. After he turned 30 in prison, on Christmas Eve in 1996, and he remembers thinking about all of the things he’d once hoped to have at this age: a wife, a family, a career, a good life.

 

“I didn’t have any of that,” he says. “I was a failure. Society looked at me like I was an animal. I just didn’t want to live anymore.” He broke open a razor and pondered slicing his wrist and forearm, hoping he’d bleed to death. But Ochoa decided his Catholic values wouldn’t let him take his own life.

 

Ochoa began attending church in prison. He took classes that would result in two associates degrees. “I resigned myself that I would spend the rest of my life in prison, but I would find some peace.”

 

One day in 1998, a police detective from Austin and a Texas Ranger visited Ochoa in prison. Ochoa remembers them saying that a third man had admitted being with him and Danziger when they killed Nancy DePriest. Ochoa didn’t trust them; he thought it was a trap. “I said I did this, so just leave me alone.” But he saw a small glimmer of hope: Why would these detectives be nosing around after all these years?

 

Ochoa had seen a television program on the work of Barry Scheck, a law professor who was a member of O.J. Simpson’s legal “Dream Team” and emerging leader in the use of DNA testing to overturn wrongful convictions. Ochoa asked a friend who was getting released to research Scheck’s Innocence Project. The friend sent Ochoa the address for the Wisconsin Innocence Project. Ochoa poured out his story in a letter.

 

“I explained everything,” he remembers. “I told them I’d given up on the system. I’d given up on the world. I don’t trust anybody. But I haven’t lost faith in myself. Can you please help me? I have no place else to turn.”

 

Overwhelmed

The Wisconsin Innocence Project, run out of the Remington Law Center at the UW Law School, is one of several clinical training grounds for lawyers-in-training. One of the biggest tasks is wading through the hundreds of letters from inmates in search of cases worth taking on.

 

Ochoa’s case was flagged for further review because of the possibility of DNA testing. “At the beginning, it was just one case on a long list of cases we were doing,” says John Pray, a law professor who co-directs the Wisconsin team.

 

Unbeknownst to Ochoa or the Innocence Project, the detective and ranger had been prompted to their prison visit by a startling development: another man had confessed to killing Nancy DePriest, and he claimed Ochoa and Danziger were innocent.

 

The man, Achim Josef Marino, was in the early 1990s sentenced to life in prison for rape. He knew others had been convicted of the Austin killing, but did not come forward until 1996, after a religious awakening. Marino confessed to DePriest’s murder in a series of letters -- first to police, then, in February 1998, to then-Gov. Bush.

 

“I do not know these men nor why they pled guilty to a crime they never committed,” Marino wrote in his letter to Bush. “I can only assume that they must have been facing [the death penalty] with a poor chance of acquittal, but I tell you this sir. I did this awful crime and I was alone.”

 

The letter had remarkable details, including Marino’s statement that the gun he used to kill DePriest had been confiscated by police a month after the murder. But Bush’s people did nothing. Spokesmen later said the office assumed the matter would be handled elsewhere.

 

In the summer of 2000, a leak from police led an Austin television reporter to the story. She interviewed both Marino and Ochoa at their separate prisons, and her report put enormous pressure on local authorities. At about the same time, the district attorney reported that DNA tests showed semen at the scene did not belong to Ochoa and Danziger.

 

“All of a sudden, we got the DNA evidence and the news of the Marino confession and we realized that we were looking at the potential for our first exoneration,” says Pray. “From that moment on, it was non-stop.”

 

Pray and his team traveled to Texas to meet Ochoa. “It was torturous because everyone knew he was innocent, but he was still in prison because we couldn’t get a court date. I was terrified that some crazy inmate would hurt him or do something to him.”

 

Finally, on Jan. 16, 2001, a judge released Ochoa, calling the evidence of his innocence “overwhelming.” Among those to greet Ochoa on his release was Jeanette Popp, DePriest’s mother, who has since crusaded to abolish the death penalty in Texas. She has blamed police for duping her into believing that her daughter’s killers had been caught, telling the Austin American-Statesmen: “For Lieutenant Hector Polanco to make me believe these things for 12 years is unforgivable.”

 

After Ochoa’s confession in 1988, Polanco was fired for perjury in another case but reinstated after a lawsuit. According to the Austin newspaper, he has also been caught on tape beating a suspect and been accused of obtaining coerced confessions in other murder cases.

 

Let freedom ring

After gaining his freedom, Ochoa moved into his uncle’s apartment in El Paso. He completed his bachelor’s degree and decided to pursue his interest in law. He chose the UW because of the Innocence Project and because on visits here he fell in love with Badger football and the Memorial Union: “Just the fact that you can drink beer there and watch life!”

 

Ochoa moved to Madison in July 2003, and began law school in the fall. His first semester was rough, in part because he was regularly flying to Texas and Florida as part of his lawsuit against the city of Austin. The city agreed to pay Ochoa $5.3 million after lawyers for the city said they made some “very troubling” discoveries regarding the police department’s handling of the case. A police department review blamed the detectives, for everything from botching interpretations of the crime scene to not following all leads.

 

The city settled with Danziger for $9 million. Among the case’s many tragedies was a prison attack on Danziger that left him permanently brain damaged.

 

The day of his release, Ochoa publicly expressed remorse for his role in sending Danziger to prison. Today he says he still feels guilt, although he wonders if, in a twisted way, he may have saved Danziger from getting the death penalty by agreeing to the plea deal. 

 

Danziger’s trial attorney placed Danziger’s ruined life squarely at the feet of Ochoa. In an interview with The Washington Post just prior to Ochoa’s release, she said of Ochoa: “He got on the witness stand and took my client and he sent him to the joint, where he got the crap beat out of him – ruined his life. It was damn cowardly, miserable thing to do.”

 

A recent report said Danziger was living in Florida with his sister and would require lifelong care.

 

Ochoa’s first months in law school left him on the verge of academic probation. He hadn’t made many friends: “I didn’t know how to socialize. People didn’t know how to approach me.” By his second semester, he got serious about studying and made some friends. He began to experience the college life he’d always hoped for. His classmates elected him to student government and he joined the Wisconsin Innocence Project – this time as a student rather than a client.

 

He also worked one summer as a prosecutor in Green County, to help give himself a more balanced view of the justice system. “I thought maybe it would make the system less emotional for me,” he says. The experience helped him see that “police and prosecutors are people too, and for most part, they are pretty decent people.”

 

In fact, he is now considering a prosecutorial career. “As a prosecutor, you have more power to help the innocent,” says Ochoa. “As a defense attorney, you’re always fighting an uphill battle.”

 

Among Ochoa’s admirers is Cory Tennison, one of the three law students who worked on Ochoa’s release. Tennison is now a prosecutor in Minnesota; last month, he lost a bid against a 12-year incumbent to become the Democratic nominee for district attorney of Ramsey County. Tennison keeps a photo of Ochoa on his office wall, and he loves to tell cops and fellow prosecutors the story of what it’s like to free an innocent man.

 

“For me, as a prosecutor, Chris’s case will always be a constant reminder that prosecuting is not about conviction rates but it’s about justice,” says Tennison, who is thrilled that Ochoa is considering becoming a prosecutor. “I’ve been telling Chris for years that you don’t have to be a bastard to be a prosecutor. You don’t go after the innocent. You can cut breaks to people who deserve breaks. And you hold the dangerous people accountable.”

 

On some days, Ochoa still recoils from the spotlight, dreaming of living in a big city where he can be anonymous. Other days, though, he realizes that speaking about his experiences can help focus attention on the justice system’s flaws.

 

“I’m just happy somebody finally listened to me, and that somebody finally believed me,” he says. “My life shows that anything is possible.”

 

Sidebar:
It can happen here

Viewed in isolation, Christopher Ochoa’s wrongful conviction may seem incredible. But the same flaws that appeared in his case – tunnel vision, police ruses and misconduct, coerced confessions and inadequate defense lawyers – are themes that appear in other wrongful convictions, both nationally and in Wisconsin.

 

Other common features of wrongful convictions, according to the national Innocence Project, are mistaken eyewitness identification, and fraudulent, exaggerated or tainted forensic evidence.

 

“We’ve now got a body of cases where we know for a fact that system got it wrong,” says Keith Findley of the Wisconsin Innocence Project. “We can study these cases and learn how the system went astray so we can try to fix those problems and make it less likely those mistakes will occur again.”

 

States across the country have slowly embraced reforms after high-profile exonerations have called attention to system deficiencies. “DNA bills all over the country have popped up in part because of Chris’s case,” says John Pray of the Wisconsin Innocence Project.

 

In Wisconsin, the 2003 exoneration of Steven Avery, who spent 18 years in prison for a rape that DNA tests showed another man committed, prompted the creation of a state task force to study reforms. A resulting bill, signed into law last December by Wisconsin Gov. Jim Doyle, requires the retention and testing of DNA evidence, encourages police departments to develop more reliable eyewitness identification policies, and mandates that all juvenile and adult felony interrogations by recorded.

 

Sadly, Avery is currently facing homicide charges for the gruesome torture death of Teresa Halbach. The case has resulted in angry calls and e-mails to the Wisconsin Innocence Project. But those who worked to free Avery in 2003 are quick to note that had the right man been convicted in the 1985 rape, the real rapist wouldn’t have been free to commit other crimes.

 

Other Wisconsin cases show Wisconsin is not immune from errors that lead to wrongful convictions. Experts say the case of Monona native Evan Zimmerman, whose 2001 murder conviction in Eau Claire was overturned by an appeals court, is a prime example of “tunnel vision” by police, who focused early on one theory of the crime while discounting other possibilities. Zimmerman, a former police officer, spent nearly four years in prison was represented by the Innocence Project in his appeal.

 

Madison has had its own DNA exoneration. In 1997, Anthony Hicks was freed after five years in prison when DNA tests excluded him as the source of a pubic hair found at the scene of a downtown Madison sexual assault, contrary to a prosecutor’s statements that the hair was a “match.”

 

And Isthmus readers should recall the power of police coercion in getting people to make false confessions from the story of the “Patty” rape case, in which Madison detectives coerced a rape victim into recanting, only later to have a DNA test identify the rapist.

 

Wisconsin has even seen outright illegal conduct by justice officials. Former Winnebago County District Attorney Joseph Paulus is serving a five-year sentence for accepting bribes to fix cases, mostly for petty charges. Paulus is also accused of hiding or tampering with evidence in several other cases, including two homicides in which the men convicted have always professed their innocence.

 

“As good as the system is, even here in Wisconsin, it isn’t perfect,” says Findley. “What’s sort of exciting though, is that these cases have brought together people of all different interests who concerned with the accuracy of the criminal justice system.”