Does Wilbur make a good point about the absence of DNA not meaning, necessarily, innocence?

DNA test to set man free after 18 years
Houston lawyer pushed for review of evidence, which eliminates man in 1986 assault

By REN�E C. LEE
Copyright 2006 Houston Chronicle

The persistence of a Houston attorney, who kept digging for DNA evidence to clear his client, will lead to the release of a Montgomery County man who has served 18 years in prison on a sexual assault conviction.


DNA test results released Tuesday eliminated Arthur M. Mumphrey, 42, as the rapist in a Feb. 28, 1986, attack on a 13-year-old girl in the Dobbin area, about 20 miles west of Conroe.

Mumphrey is scheduled to leave the Rufe Jordan Unit in Pampa this week and return to Montgomery County for a Jan. 27 hearing, said his attorney Eric J. Davis. At the hearing, 359th State District Judge Kathleen Hamilton is expected to release him on a personal recognizance bond until he is granted a pardon, Davis said.

Hamilton ordered a bench warrant for Mumphrey's return Tuesday after receiving the DNA test results. The tests were based on DNA evidence � semen from a vaginal swab and panties and Mumphrey's blood and saliva samples � collected and stored by the Texas Department of Public Safety since 1986 when the crime occurred.

Pardon will be sought

Assistant District Attorney Marc Brumberger said he plans to file a request with the Texas Board of Pardons and Paroles now that the results are conclusive. The board will then make a recommendation to Gov. Rick Perry, who will decided whether to grant a pardon.

''As soon as we found out biological material was available, we were in agreement that it should be tested," said Brumberger, who expects the pardon to be granted.

A jury found Mumphrey guilty of aggravated sexual assault and he was sentenced to 35 years in prison on Aug. 12, 1986, largely based on testimony from co-defendant Steve Thomas and the victim. Mumphrey and Thomas were accused of repeatedly sexually assaulting the girl in a wooded area near Dobbin.
Thomas confessed and agreed to testify against Mumphrey in return for a 15-year sentence, according to attorneys involved in the case.
DNA testing was not available then. Instead, blood analysis was conducted. However, Mumphrey's type O blood did not exclude him as a suspect, Brumberger said.

Not willing to give up


Mumphrey had exhausted his appeals when he and his wife hired Davis about three years ago to reopen the case. Mumphrey was paroled at one point after serving several years, but was returned to prison after he violated parole.

During Davis' investigation he discovered blood tests had been done on Mumphrey, Thomas and the girl. He contacted DPS to see if it still had the evidence for possible DNA testing.

After DPS officials said they did not have the evidence, Davis contacted the Montgomery County District Attorney's Office. Brumberger said DPS officials also told his office they did not have the evidence.

Not willing to give up, Davis called DPS again and reached an employee who searched and found the DNA evidence stored in a refrigerator. A second motion was filed for DNA testing and approved by Hamilton in the fall of 2005, Davis said.

The results show that DNA from Mumphrey's saliva and blood excluded him as a contributor to the stains on the vagina swab and panties, according to the lab report by the DPS laboratory in Houston.

''If we had given up, he'd still be in jail. It's by the grace of God," Davis said.



Had tried for plea bargain



Mumphrey's attorneys who represented him during his trial and appeal said they always thought he was innocent.

Court-appointed defense attorney W.B. Etheridge said Mumphrey told him he was at a grocery store on South Main Street in Conroe at the time of the crime. Mumphrey claimed he was arrested for shoplifting, but no police records were found to corroborate his story, Etheridge said.

''We felt for sure he was not guilty and tried to work a plea bargain with the DA," he said. "They offered 40 years. We wouldn't take it."

Etheridge said all the surrounding circumstances and Mumphrey's general demeanor convinced him of his innocence. Mumphrey had never committed a crime of that nature before, he said.

Mumphrey had been convicted on a charge of burglary of a building in August 1982, according to court records.

Attorney George Renneberg took on Mumphrey's appeal, which was denied by the state Ninth Court of Appeals in Beaumont in June 1989. Renneberg said he was glad to hear the news about Mumphrey.

''I was never really satisfied he was guilty and I'm pleased DNA testing is going to spring him, because I thought he was innocent.

"Though the evidence was insufficient at the time, it was a problem in an old case that allowed the evidence to be sufficient and we lost on appeal."

The case on which the appeal was denied ''says that if someone accuses you of a crime while you are not in custody and you don't deny it, it can be taken as circumstance of culpability," Renneberg said.

During the first trial, a third witness named Shannon Smith told police that he ran into Thomas and Mumphrey the night of the assault. Smith said Thomas boasted about having sex with a young girl. He said Mumphrey was standing nearby as Thomas told the story and never said anything, according to court records.

''Before he was taken into custody, he didn't have the good sense to jump up and say, 'No, not me,' " Renneberg said.

He said the victim told police she saw only the face of one of the suspects but never identified the suspects. She told police two men grabbed her from behind about 8 p.m. as she was walking along railroad tracks. They then dragged her into a wood area and assaulted her, Renneberg said.

The girl said one of the men put a knife to her throat while the other took off her pants, according to court records.

Renneberg said Thomas identified Mumphrey as the other suspect. ''Arthur told me it wasn't none of his work," he said.

Others have doubts

Not everyone thinks Mumphrey is innocent. Former Montgomery County Assistant District Attorney Wilbur Aylor said Wednesday that all the evidence pointed to Mumphrey's guilt. In addition to Thomas' and Smith's testimony, he said he thinks the girl also identified Mumphrey as her attacker.
There also was evidence that Mumphrey and Thomas had been drinking the night of the attack. A wine bottle with fingerprints and the girl's shoes were found at the crime scene a few hours after the assault, Aylor said.

''They ought to look at evidence more before they go for a pardon, because I felt like he was good for it," said Aylor, who is retired. "The fact that his DNA was not found doesn't prove to me that he didn't do it."

i thought it wasn't the absence of DNA it was that the DNA evidence was tested and it excluded the defendant?

Where is Wilbur working now, JB?

Yes, the article says the DNA test excluded the defendant from the biological sample found on the clothing. But, given the presence of two rapists, does that mean that the defendant could not have been a participant in the crime? Does every rapist leave a semen or saliva sample?

I'm not saying this guy isn't innocent. I can't tell from the limited information in the article, and I certainly trust the prosecutor's judgments on the facts, but for the purpose of discussing the bigger issue of what DNA means, does excluding the defendant necessarily mean he is innocent?

Wilbur, as the article says, is retired from prosecution.

Seems to me that the critical inquiry is whether the DNA matches Thomas, the co-defendant. If it does not, then I'd agree that Mumphrey is innocent. End of story.
If it matches Thomas, however, then I don't think you can necessarily conclude that Mumphrey is innocent, and the other evidence should be looked at to make that determination.
I had a capital case a while back in which two guys indisputably raped a young girl before killing her. I had loads of DNA - both from blood and semen - and it pointed to only one of the guys. However, the fact that the one from which we had no DNA pled to the case and admitted to "consensual" sex with the victim suggests pretty strongly that you don't necessarily need DNA to be a rapist....

''We felt for sure he was not guilty and tried to work a plea bargain with the DA," he said.

What a sterling job by trial counsel!

I can't believe y'all are implying that the Houston Chronicle, of all newspapers, would leave out pertinent details in one of their anti-prosecution/anti-law enforcement "reports!" Shame!

Oh Ken, haven't you been defense counsel at some point. You CAN be actually convinced of your client's innocence, but he may be facing cold, hard evidence, like the tear filled testimony of a young lady who was viciously raped, snatched by strangers on a walk home. And she's going to finger your clients FRIEND, who will get up and sing like a canary against your client, if the state will shave a few years off of his pen trip.

When you tell your client that the jury might find his inspirational testimony self-serving, glib and insincere (after the prosecutor gets done hammering that down their throats at closing), and he is possibly going down for 5 - 99, the clients sometimes want a deal. It is a good defense attorney that properly advises their clients of ALL THE POSSIBLE OUTCOMES, and doesn't hold their client in front of a moving train on 'principle'.

OK, that's my two cents for the day.

Actually, that was about a dollar's worth. And worth the price.

Beck, I have been, but I would not have worded my response the way he did. He made it sound like he thought the client was not guilty and proceeded to engage in plea bargaining. You always give a client his/her options since they may not be telling you the truth about their innocence.

Ken,
Yup, you're right, the response the attorney gave cast a bad light on the process. I'm hoping he was misquoted.

Official: Cleared man's brother admits guilt
Prosecutor says DNA tests ordered so they can be '100 percent' sure

By REN�E C. LEE
Copyright 2006 Houston Chronicle

In a surprising twist Monday, a younger brother of Arthur Mumphrey confessed to an aggravated sexual assault for which Mumphrey served 18 years in prison, a Montgomery County prosecutor said.


Assistant District Attorney Marc Brumberger said he has already requested that Charles Ray Mumphrey's DNA be compared to the unknown male DNA discovered during recent tests used to clear Arthur Mumphrey. A saliva swab was taken from Charles last week.

''We will seek to further corroborate his statement with the DNA just to make it 100 percent confirmed," said Brumberger, who added he will listen to a tape of Charles' statements today.

Brumberger said results from the DNA test will take a few weeks.

He said Charles Mumphrey, 34, shared details of the crime with a DA investigator, who went to question him Monday at the Gist State Jail in Jefferson County, where he is serving a one-year sentence on an unauthorized use of a motor vehicle conviction.

Brumberger said the investigator told him that when confronted about the case, Charles paused, lowered his head, and then admitted to the crime. The investigator couldn't be reached.

Charles Mumphrey has an extensive criminal record dating from 1998 to 2005. He has been convicted burglary of a building, theft, possession of a controlled substance and robbery, according to state and county records.

DNA test results released last week cleared Arthur Mumphrey of raping a 13-year-old girl in a wooded area in Dugan, a south Conroe neighborhood, on Feb. 28, 1986.

His co-defendant Steve Thomas plea bargained and received a 15-year sentence for testifying against Mumphrey.

Arthur Mumphrey, 42, might still be serving time if it weren't for his attorney, Eric J. Davis, who pressed for the DNA evidence. Texas Department of Public Safety officials in Houston said they did not have the evidence, but Davis kept pursuing the matter and eventually contacted a supervisor who found the evidence stored in a refrigerator.

The test results found Thomas' DNA in the evidence samples as well as an unknown male's DNA, according the DPS lab report.

Brumberger said the DA's office wanted to find out who the other suspect was even though the statute of limitations has expired, making prosecution unlikely.


Evidence could be used

However, if DNA test results support Charles Mumphrey's confession, the information could be used against him in sentencing if he is convicted of another crime, he said.
The statute of limitations for sexual assault at the time of the crime was five years. And because the victim was under 18, the statute of limitations stretches an additional 10 years from the victim's 18th birthday.

Brumberger said the DA office's investigation immediately focused on Charles Mumphrey after the DNA results were in. ''Everyone was pointing this way," he said.

Brumberger said Charles and Arthur's other brother, Reginald Mumphrey, told the DA investigator that Charles confessed to Reginald.

''Charles told me after he done it," said Reginald Mumphrey, 39. "Everybody down here knew; the police, the neighborhood."

According to court records, Charles Mumphrey told police he committed the crime but later changed his story after police told him he could serve time in jail for perjury. Police told him he didn't know enough about the crime and that he was trying to protect Arthur, court records said.

Charles later testified in court about a statement in which he indicated that he was trying to take the rap so that Arthur would not go to prison, court records said.

Reginald Mumphrey said he did not know whether Charles has an attorney.

During a prison interview Friday with the Associated Press, Arthur Mumphrey said police manipulated Thomas and the victim into blaming him for the crime.


Brother says he's glad

Three of the four Conroe police officers who worked the case and were called as witnesses during the trial still work for the department. Deputy Chief Philip Dupuis said he would be willing to comment after he reviewed the case file. The others could not be reached for comment.
Reginald Mumphrey said he's just glad his younger brother finally spoke up and that Arthur will be set free.

''He (Arthur) was a scapegoat. I hate he spent most of his life locked up," he said.

Meanwhile, Arthur Mumphrey was released Monday from the Rufie Jordan Unit in Pampa and is en route to the state prison in Huntsville, where Montgomery County sheriff's officials will pick him up this week.

Arthur Mumphrey is scheduled to appear in court on Jan. 27 before 359th State District Judge Kathleen Hamilton, who said she will release him on a personal recognizance bond.


Pardon to be sought

Brumberger said he will request a pardon of innocence from the Texas Pardons and Paroles Board. The board will then recommend a pardon from Gov. Rick Perry, who can either accept or deny it.
Davis said there is a Texas law that allows financial compensation for those granted a pardon of innocence. However, Arthur Mumphrey would have to pursue it, he said.

''The priority now is getting him home and clearing his name," Davis said. "All the rest will follow in time."

Wouldn't you love to be a fly on the wall of the Mumphrey family Thanksgiving dinner this year.

What if the suddenly located refrigerated DNA doesn't match the brother either ? Don't you think that if the tables were turned and the DNA that was supposedly non-existent, were suddenly located in a refrigerator at the lab and it matched the convicted brother that the defense would be screaming foul big time ? Just sounds strange to me that this unmatchable DNA was even located. But again, stranger things have happened. I think the statute of limitations running out might help the family get-to-gethers, and perhaps the soon to be filed compensation for "wrongful incarceration" claim will help also.