https://www.dallasnews.com/news/courts/2021/05/27/74-year-old-man-required-to-register-as-a-sex-offender-was-wrongly-convicted-in-1982-dallas-judge-finds/

Nearly 40 years after Mallory Vernon Nicholson’s trial, a Dallas County district court judge has agreed with prosecutors and defense lawyers that his convictions for burglary and aggravated sexual abuse of a child should be overturned.

Prosecutors in Nicholson’s 1982 trial failed to disclose reports from detectives and a doctor who evaluated the two victims that identified another suspect, according to court records signed last week by Criminal District Court 7 Judge Chika Anyiam.

Nicholson “would not have been convicted in light of the suppressed evidence,” the judge wrote.

The Dallas County District Attorney’s Office joined defense lawyers’ claims that evidence withheld by prosecutors should have been handed over and could have affected the jury’s verdict. Several reports were discovered in the prosecution’s file decades later, after District Attorney John Creuzot’s Conviction Integrity Unit agreed to review the case.

“It is our job as prosecutors to turn all evidence of innocence over to the defense counsel,” Creuzot said. “And it remains our job to correct past wrongs.”

The case now goes to the state’s highest criminal court, the Texas Court of Criminal Appeals, for its judges to decide whether to vacate the convictions.

Nicholson, who was 35 at the time of the crime and the father of two boys ages 6 and 8, was sentenced to 55 years in prison. He was released on parole in 2003 after serving 21 years.

Now 74, he has had to continue registering as a sex offender. When he moved to Anne Arundel County in Maryland in 2004, police there distributed fliers warning neighbors he had moved in, the Baltimore Sun reported.

“Mr. Nicholson has borne the weight of this wrongful conviction for over half his life,” said Adnan Sultan, an attorney with the New York-based Innocence Project who represents Nicholson. “He has not been able to obtain gainful employment since his release and has had to endure the stigma and humiliation of registering as a convicted sex offender for a crime he did not commit. We are thankful that he is one step closer to true justice.”

Nicholson always maintained his innocence and said he was attending his wife’s funeral in Waxahachie when the crime occurred. Through his lawyer, he declined to be interviewed while the case is pending.

The crime

Court records filed jointly by prosecutors and defense lawyers detail the crime and conviction.

On June 12, 1982, two cousins — 9-year-old and 7-year-old boys — said a man approached them while they played outside their grandmother’s apartment on Cleveland Street and offered to pay $5 for their help breaking into a nearby apartment, according to court records.

The children said they got in through a neighboring apartment window and kicked in the drywall through the bathroom. The burglar took a television, clock radio, clothing, meat from the refrigerator and other items, according to court records. He then instructed the boys to lie on the bed.

He threatened to stab them with a pair of scissors he grabbed from the bedroom dresser if they did not obey, according to the records. The children laid on the bed and the burglar forced them to take off their clothes, the records state.

He struck the boys and sexually assaulted them. After he left the apartment, the boys fled through the bedroom window and told their aunt, who notified Dallas police.

Officers took the children to Parkland Memorial Hospital, where a doctor referred to a 14-year-old assailant in both his reports, but prosecutors never shared those reports with defense lawyers, according to court records.

Police also wrote in their reports about a 14-year-old boy who went by the nickname CoCo. At least five police reports, some written by different officers, named CoCo. Those reports also were not shared with defense lawyers, according to court records.

CoCo lived in an apartment across the street from where the boys were assaulted. He is not identified by his full name in court records because he was a juvenile at the time. He was later killed in an unrelated incident in 1989, according to court records.

The day after the assaults, officers took the 9-year-old victim and his mother back to the crime scene. As they were driving, the child saw Nicholson on a porch and said he was the attacker.

He was arrested and a picture of him was included in a six-photo lineup presented to the 7-year-old victim. The child did not identify anyone in the lineup as his perpetrator.

The child’s mother later called the detective and said her son had recognized his attacker in the lineup but was too afraid to identify him, according to court records. The next day, the child was asked to identify his attacker in an in-person lineup.

The men in the lineup were instructed to say, “Shut up, boy, or I’ll stab you with these scissors.” The 7-year-old victim then identified Nicholson, according to court records.

At trial in September the same year, the jury that convicted Nicholson heard from the 9-year-old victim that his attacker said he was in a hurry to go to his wife’s funeral. But the child didn’t mention that when he testified before a grand jury a few months before. Defense lawyers for Nicholson requested a transcript of the grand jury testimony but were denied.

The original prosecutor’s file also includes notes about other inconsistent statements the child made and information that his family knew Nicholson and that his wife had recently died. Defense lawyers could have used the information to question whether family members inadvertently suggested Nicholson to the child and the defense could have challenged the boy’s inconsistent statements, the judge found.

Notes also showed that the 9-year-old victim described the attacker as having “very short hair” and Nicholson had an Afro at the time.

The only trait CoCo and Nicholson had in common was that they were Black males, the Innocence Project said.

Nicholson’s conviction was based solely on eyewitness testimony, which was considered reliable evidence in 1982, lawyers said.

“The outcome would’ve been different if they tried the case now,” said Cynthia Garza, chief of the Conviction Integrity Unit.

If the Court of Criminal Appeals overturns the convictions, the case will be sent back to the district attorney’s office to decide whether to retry the case or dismiss the charges.