From The Houston Chronicle:
Judge Rosenthal Rosenthal ruled that Draughon's attorney had failed to hire a ballistics expert to present evidence about the bullet in the trial.
She also cited "serious questions" about the accuracy of analysis in the HPD crime lab, which is still the subject of an independent investigation because of problems in several divisions, including ballistics.
Rather than put Draughon on trial again, prosecutors reached a plea agreement with him that called for a 40-year sentence.
That period is based on a combination of the time he has served and the "good time" he accumulated while in prison.
The conditions of his mandatory supervision include reporting to a parole officer nine times a month, Lyons said.
He also will be fitted with a global positioning system monitor so that parole officials can track his movements.
While living in Livington, Draughon won't be far from the Polunsky Unit and his former home on death row.
State District Judge Jan Krocker, the former assistant district attorney who prosecuted Draughon, did not believe his death sentence should have been overturned.
"If (the victim) was truly killed by a ricocheted bullet, the jury should have heard that evidence 17 years ago and Mr. Draughon should get a new trial," Krocker wrote in an e-mail to the Houston Chronicle. "It would be morally wrong for the execution to go forward if the jury didn't get to hear such important evidence."
However, Krocker does not think Draughon should get a new trial. She is adamant that the ballistics evidence she presented is correct, that the shooting was deliberate and that he should be executed.
Some legal experts say Krocker violated the state judicial code of ethics by becoming actively involved in fighting Draughon's appeal.
Rosenthal rejected Krocker's request to present testimony supporting her ballistics theory. However, she did allow Krocker to submit written statements from witnesses as part of the court record.
Those witnesses included C.E. Anderson, who retired from the HPD lab's firearms division in 1998. In his statement, Anderson, who performed the ballistics analysis of the bullet fragments in the Draughon shooting, stood by his findings.
"The bullet that killed the deceased did not ricochet before it entered the body," he wrote.
But in her order, Rosenthal speculated that the prosecution's assertion that the shooting was intentional may well have been the difference between Draughon's receiving the death penalty or life in prison.
"The (new) ballistics evidence presented (in federal court) establishes that evidence existed that would have supported Draughon's defense theory and would have allowed the jury to find a lack of intent," Rosenthal wrote. "Had the jury done so, Draughon would have been convicted of felony murder, not capital murder."
Jeff Keyes, Draughon's appellate attorney, says the case reveals shortcomings in Harris County criminal justice.
"When we came into the case in 1993, we tried on numerous occasions to get the bullet and the gun to have them examined, and we were denied that by the state courts," said Keyes, who is based in Minnesota. "You take a look at the evidence many years later, and it just gives you a lump in the throat to think that this is the way the system operates."
As for Jan Kroker, the former assistant DA who prosecuted the case and intervened in the appeal, The Texas Observer calls her one of the "worst judges in Texas":
In a county known nationwide for being tough on crime, District Judge Jan Krocker has set herself apart from her fellow judges as one of the toughest. Nineteen of Harris County’s 24 criminal district court judges, including Krocker, cut their teeth as prosecutors in the district attorney’s office. What’s different about Krocker, a Republican in her early 50s, is that she seems to have never really left. A dramatic case in point was her intervention in 2004 in the death penalty appeal of a young man named Martin Draughon. In 1987, while still an assistant district attorney, Krocker prosecuted Draughon for shooting a man to death during a restaurant robbery. During his trial, Draughon’s attorneys argued that the killing was the accidental result of a ricochet from a warning shot, and that Draughon shouldn’t have to face the death penalty. Krocker got the conviction, but Draughon’s appellate attorneys later produced convincing evidence that the Houston crime lab, already under public scrutiny for failings in its DNA work, had blown the ballistics testing of the bullet.
That revelation was embarrassing enough, but what happened next was even worse. Krocker—by now Judge Krocker—had been following the case as it made its way through the appellate process. According to the Houston Chronicle, Krocker contacted the appellate judge and insisted on testifying in the proceedings. The state team did not want her help, calling her intervention “improper and unnecessary.” But Krocker was adamant, arguing that her reputation was on the line in the case, the Chronicle reported. If it wasn’t before, it certainly was after Krocker’s efforts became public. The Chronicle editorial board castigated the judge, saying the case raised “serious issues regarding her impartiality.” At least one defendant convicted in Krocker’s court in an unrelated case requested a retrial, arguing, in effect, that one prosecutor in a Harris County courtroom was enough. The judge in Draughon’s appeal eventually allowed Krocker to submit written affidavits, and then granted Draughon a new trial anyway.