Undue Process

Mitchell argued that Karage "is actually innocent," and his incarceration violated the 14th Amendment of the U.S. Constitution guaranteeing due process. Mitchell demolished all the state's arguments, laying out for Greene what she didn't see at trial.

He argued that the only thing that placed Karage in the presence of the victim after she was last seen alive was the "unobjected hearsay evidence" of Beck, who testified an "unidentified individual" saw them together leaving the video store between 4 p.m. and 5 p.m. on the day of her death.

"Applicant did not confess. There was no eyewitness testimony to the offense. There was no evidence of flight which...can be considered by the fact finder as an indication of guilt. Quite to the contrary, it was applicant who first alerted the police to the possibility that harm may have come to the victim. There was no physical evidence, such as a murder weapon or fingerprints, which connected the applicant to this homicide...The state failed to present any scientific evidence which even remotely established that applicant was the perpetrator of this crime...

"The evidence in this cause was found to be sufficient because applicant had motive and 'opportunity' to kill the deceased and because there was no evidence that any other individual had a motive to kill her..."

But mere motive is not sufficient to prove guilt. Mitchell contended that if Karage's failure to prove another person had a motive to kill the victim was being used by the Court of Criminal Appeals as evidence of his guilt, "then the court is improperly requiring the applicant to prove his innocence."

Mitchell thought it was a "clean win."

But Greene entered her written "findings of facts and conclusions of law" with the Court of Criminal Appeals: "Applicant has not...presented this Court with any new facts or citations of authority which would require a reconsideration of this case," Greene wrote. "This Court concurs with and is bound by the prior opinion of the Court of Appeals with regard to the issue of Applicant's innocence." She found he was lawfully confined.

Newth had filed an affidavit saying he'd neglected to inform Karage about his appeal being denied in a timely fashion so Greene did agree that Karage could file an "out-of-time" Petition for Discretionary Review.

So Mitchell filed a PDR with the Texas Court of Criminal Appeals in Austin on February 7, 2001. It was denied. Over and over, Karage ran up against a system of intricate legal rules and the conservative Texas appellate courts.

In a last-ditch effort to get Karage a new trial, on June 18, 2001, Mitchell filed a federal writ of habeas corpus with the U.S. District Court of the Northern District.

Again the court put the onus on Karage.

"Since there is no conclusive evidence that Karage could not have committed the murder, it remained within the province of the trial court to weigh the evidence and resolve the conflicts in the testimony," said U.S. Magistrate William Sanderson in denying the writ.

"I was shocked I lost," Mitchell said. "I felt so bad for that guy." There was nothing more Mitchell could do.

Karage had come to the end of the appellate road.

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Karage spent his seven years in prison trying to avoid gangs and learning about the law. In the prison library, an inmate who'd once been an attorney told Karage about a new law, effective on April 5, 2001, providing for post-conviction DNA testing. The inmate helped Karage write a motion to get samples from the vaginal and anal swabs and any material under Nary's fingernails tested for DNA to prove it didn't originate from him.

The DA's office opposed the test, and since the prosecution had not argued that the semen was Karage's, the motion was pointless. But his "pro se" filing prompted a judge to appoint a Dallas defense attorney to represent him.

A prison paralegal named Jon Michael Withrow intervened, writing to the lawyer in August 2002 that he'd tried in vain to dissuade Karage from filing the motion in the first place. He worried that it would antagonize the only people in a position to help Karage.

"Mr. Karage is Cambodian and he is not capable of preparing any type of legal document nor does he seem to understand our legal system," Withrow wrote. "I seriously doubt that he could even write you a simple letter that would make sense...He just does not understand the role DNA played in his conviction."

But Withrow had another suggestion: Drop the DNA request on the swabs and ask the court to order a cross-match comparison test of the semen sample with the new DNA data bank.

"My thinking is that if we can identify the semen donor, then we will know who the actual killer is, or at least ask him if he had consensual sex with Nary," Withrow wrote. "And if he is a convicted felon and he has a history of sexual assault, such evidence will strongly refute the state's theory that Nary was not raped...Make sure the court knows that the police have never attempted to learn the identity of the semen donor.