BELTON — The executive director of the Innocence Project of Texas, Michael Ware, will be in the Bell County 27th District Court courtroom at Judge Jon Gauntt at 9 a.m. Monday to bring up information he strongly believes will clear his client.
Ware is advocating for George R. Powell III, convicted in 2009 for aggravated robbery and sentenced to 28 years in prison.
Powell’s been in prison for almost 10 years.
“There is no doubt that Powell is innocent,” Ware told a Telegram reporter Thursday.
Powell sent a letter to the Telegram dated Sept. 1.
“For 10 years (almost), I’ve suffered everyday of this injustice, and it’s time to expose the truth …,” Powell said. “If I am innocent should I be in prison for this robbery I didn’t do?”
June 2008 case
A man wearing sunglasses and a baseball cap in June 2008 went into a 7-Eleven in Killeen, pointed a gun and demanded money. Police suspected that man of similar robberies at other area stores, and a surveillance video captured the robbery. The video went on the evening news, and a phone tip led them to Powell.
The store clerk told people the robber was about 5 feet, 6 inches tall, but she picked Powell out of a phone lineup. Powell is 6 feet, 3 inches tall.
The arrest affidavit gave few additional details other than what the robber wore. He had on a white baseball cap and sunglasses and showed the clerk a silver handgun. In response to his demands, the clerk gave the man money from the register and cartons of cigarettes. The man left the store.
The clerk immediately identified Powell as the man she said who robbed her at gunpoint, the affidavit said. She said that she was positive of her identification.
The Bell County District Attorney’s office called on Michael Knox, a former Florida police officer, to explain the disparity in heights. Knox, using photogrammetry, estimated the robber was at least 6 feet, 1 inch tall.
Powell was found guilty.
The Texas Forensic Science Commission in 2014 started investigating Knox’s determination of the suspect’s height and, in 2016, used Powell’s case to raised questions about the reliability of the video analysis performed by Knox.
A woman who believed in Powell’s innocence persuaded Powell’s family to hire two men to examine the video. Their analysis said the robber was actually 5 feet, 7.5 inches — and that ruled out Powell.
A new analyst, Grant Fredericks, taught video analysis at the FBI National Academy in Quantico. His examination said that the man in the video was between 5 feet, 5.8 inches and 5 feet, 9.4 inches.
Knox re-examined the evidence, used new photos of the scene and changed his measurements to at least 5 feet, 10.4 inches.
Ware said Thursday that Knox’s measurement was about six inches off.
Another key element in Powell’s conviction was the testimony of Demetric Smith, who said that Powell, a fellow inmate at the Bell County Jail, admitted to robbing the 7-Eleven and other stores and gas stations.
However, in April 2016, Smith recanted in a handwritten, sworn and notarized statement sent to Bell County District Attorney Henry Garza. He said that he lied on the stand to try and get a better plea deal on a burglary charge he faced.
Smith was indicted in August 2008 on a burglary of a habitation charge and was a repeat offender, according to Telegram archives. He was indicted again in March 2012 on a similar charge, according to the Department of Public Safety criminal records website.
He was sentenced to only two years in jail on the 2008 first first-degree offense and 20 years in prison on the second offense, also a first-degree felony.
Ware and others in July 2016 interviewed Smith for about 90 minutes in the Washington state prison he was in, and the interview was submitted on Aug. 31, 2016, to Garza.
Smith is scheduled to testify remotely from prison.
Also testifying in a live call may be Fredericks, Ware said.
Ware has no idea what witnesses the prosecutors are calling because they’ve refused on the record to release the witness list, he said.
“We cannot comment on pending litigation other than to say we are contesting the claim,” Garza said Friday in response to the Telegram’s emailed questions.
When asked why Powell was sentenced to 28 years in prison, Ware said Powell was convicted of property crimes in North Carolina, which is where his family lives.
Misdemeanor convictions were also found during a check of Powell’s criminal history in Bell County. He also has several aliases, including Mark Altman, Marcus Powell and Robert Tanner, according to DPS records.
“This crime was very serious. It involved a gun,” Ware said. “But why aren’t the police and district attorney trying to get the real robber off the streets? He’s still out there.”
Several possible outcomes exist after Monday’s hearing, according to Ware:
- All relief to Powell could be denied.
- Powell’s conviction could be vacated and a new trial ordered.
- Powell could be declared innocent.
Ware referred to the due process clause of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”