Now Serving ... Time

Robert Conran is standing in the inmate visiting room of the Texas Dept. of Criminal Justice's Segovia Unit prison, located just outside the Rio Grande Valley town of Edinburg, singing "Fever." It is an incongruous sight: the 44-year-old inmate in prison whites crooning an old jazz standard while two armed prison guards look on. He'd show some of his flamenco dance steps too, he says, but since he sustained a knee injury playing handball a few months ago, he has had to walk with the aid of crutches. He seems a bit embarrassed to be singing here, and the guards watch the performance with aloof curiosity: until that moment, they didn't know he was a musician. "To them I'm just another inmate," he says, sitting down at a small table.

But before he landed in prison, Conran was living in Austin, trying to save up money and start a new band. He'd had past success doing just that, playing first in rockabilly bands that were occasionally featured at the Continental Club, and then in Latin-influenced Houston rock bands in the late Eighties and early Nineties. "He's got those 'Now Or Never'-type vocals," says Jim Wallace, who, before he joined the Reverend Horton Heat, played bass in the Conran-fronted bands the Mortals and Los Mortales. "He has an incredible voice that can hold out those operatic notes. He is also a trained flamenco dancer. He really is multi-talented."

By 1995, Conran was tired of Houston and sought to get things going in Austin, Live Music Capital of the World. "In Houston I just couldn't get anything done," Conran said. "And everybody knew Austin was 'that kind of place.' But I didn't have the experience [in the Austin music scene] besides going into the clubs there and playing." So Conran came to Austin -- by bicycle no less -- and began working odd jobs and staying in odd places until he could save up enough money and make enough contacts to jumpstart his music career.

But that ambition was cut short on March 2, 1996, when Conran was arrested and charged with robbing the Furr's Cafeteria on South Lamar at gunpoint, and taking nearly $1,000 from the restaurant's till. He was convicted on the testimony of a single eyewitness, a Furr's cashier -- who said she recognized him the night following the robbery, having dinner at the same Furr's. Conran has been in prison ever since, serving out a seven-year sentence handed down by a jury in the state's 167th District Court.

Conran has maintained his innocence since he was first arrested, and continues to do so. He has written the American Civil Liberties Union, the Texas State Bar, and the Chronicle (and many others) trying to get someone to look at his case and perhaps help him prove his innocence. The sole eyewitness in this case, he adamantly maintains, made a mistake in fingering him as the perpetrator of the Great Furr's Robbery.

His urgency is compounded by the fact that, unless it is determined that he is completely innocent of the crime for which he was convicted -- and is given a pardon to that effect by Gov. Rick Perry -- Conran, who was born in London, England, will be deported back to the U.K. upon his release from prison. Under immigration laws adopted in 1996, all nonresident aggravated felons face deportation regardless of how long they have been living in the United States. (See "Double Jeopardy," by Amy Smith, Feb. 23.)

Unfortunately, where DNA evidence has been crucial in recent years in exonerating defendants convicted for rape and murder, no DNA evidence exists in the Robert Conran case. In fact, no evidence exists at all, save for the eyewitness testimony of the cashier. The police never found the gun Conran supposedly used, the clothes he was supposedly wearing, or the money he supposedly took. And, as mounting empirical research and the exoneration of other defendants by DNA evidence shows, single eyewitness identification of suspects is, in fact, highly suspect. "The vagaries of eyewitness identification are well known," reads the U.S. Supreme Court decision in the 1967 case of Wade v. U.S. "The annals of criminal law are rife with instances of mistaken identification."

Indeed, Conran's friends, family, and at least one former employer said they were shocked that Conran was fingered for a crime they said would be "so out of character" for the man they know. "I'm sure this little lady that fingered my brother was terrified," said Elaine Conran, Robert's older sister. "But the money wasn't found, the gun wasn't found, and the clothing she said he had on was never found. There was nothing -- it was pathetic." Conran himself testified, albeit haughtily, in his own defense, after rejecting his lawyer's suggestion that he consider the possibility of taking a plea bargain in return for an admission of guilt.

The fact that Conran was convicted based on the cashier's testimony alone, his supporters say, is frightening. "Your life can unravel," said Elaine Conran. "It makes you feel like you need to document your every move."

Still, there is some hope for Conran. After four years, the presiding judge in his case, Senior Justice Thomas Blackwell, wrote a letter to the Board of Pardons and Paroles asking for Conran's immediate release. "Considering the facts of this case and in the interest of justice, I sincerely recommend a TIME CUT [Blackwell's emphasis ] for the defendant to the time actually served; or in the alternative that he be granted an immediate release on parole," Blackwell wrote in a letter dated May 24, 2000. "I have been a District Judge trying felony criminal cases for more than 30 years, and this is the first time I have recommended a TIME CUT or immediate release." Indeed, Blackwell told the Chronicle that, had Conran asked for a bench trial instead of a jury trial, Blackwell would've acquitted him. The evidence, he said, just wasn't there. "At the time of the trial I thought the jury was wrong," he said. "But I've been a judge for 30 years, and I'm not inclined to overturn a jury verdict."

In the wake of the Blackwell letter, Conran encountered another unlikely ally in Paddy Burwell, a member of the parole board who was appointed by Gov. George W. Bush in 1999. "[This] is a disturbing situation," Burwell said after reviewing Conran's case file. "It's a miscarriage of justice."

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"I Wish We Had Gone for Chinese"

Robert Conran has led an interesting life. His past is marked by crazy turns of fortune and twists of fate -- his present predicament no exception. He was a motocross racer until an accident that left his shoulder permanently dislocated derailed that career. He was a clothing designer in Manhattan, running a company called Blue Voodoo, which marketed what Conran calls the "Tex Glam" look -- way before Madonna made it popular last year -- until he broke up with his business partner/girlfriend. In the late Eighties, he survived a near-fatal case of testicular cancer. Most recently, long before Ricky Martin caught the pop spotlight and before his move to Austin and his own arrest shelved his singing career, Conran was an aspiring Latin-influenced rock musician. "We were way ahead of our time," said Jim Wallace, who played with Conran in two of his former Latin-styled rock groups. "People didn't know what to think of us then."

After his last band, Los Mortales, broke up in the mid-Nineties, Conran decided to try his luck in a new town, so he hopped on his bicycle and rode to Austin. A car his father loaned him after he decided to make a permanent move needed fixing, so in an effort to save money and pay for the car repairs, he decided to camp out wherever he could and look for work at the day-labor corner down by the now-defunct Liberty Lunch. "I was camping out so that I could keep the money," he said. "Mostly with the people you'd call the tramps that camp in Zilker Park."

In mid-1995, Steve Schoenfeld, who owns the Ground Works Excavating Company, picked up Conran at the work corner and hired him for the day. "At the time I was doing landscaping work, so it was spreading dirt and all," Schoenfeld said. "He was a good worker." Over the months that followed, Schoenfeld and Conran became friends. When the weather began to turn cold that winter, Schoenfeld even allowed Conran to set up camp on an 11-acre deer lease off Bee Caves Road, where Schoenfeld stored his heavy equipment. "I learned the tree-trimming trade, which was a big boon to me," Conran said. And Schoenfeld, he said, was something of a "father figure" for him in Austin. "He's sort of like Clint Eastwood, a very stoic figure," Conran said. "I had no problem obeying his orders -- he is forthright in every way. He is a hard-working man and we worked together a lot."

But it was Schoenfeld's take-no-shit attitude, Conran recalls, that contributed to a falling out they had in early 1996. "He had given me this job to do that I had to take a bus to," Conran said. "It was way far out, and I had to clear all this land and put all the trees in a chipper. Then I had to catch a bus that would drop me within about three miles [of the deer lease] and I would have to walk the three miles. I hated it, but I did it." But one day, he said, he left the keys in the wood chipper, and that made Schoenfeld mad. "He was really pissed off and fired me," he said.

Conran moved from the deer lease and returned to Zilker Park. Besides going to the work corner, he would call landscaping and tree-trimming businesses to see if they needed any laborers, which is how he came to work for Herbert Tarnow and his Round Rock-based tree-trimming service, on March 2, 1996. "I had never worked for him before. I called up and said, 'Do you have any work?' And he said, 'Yes, show up for work on Saturday morning [March 2] at 8am,'" Conran said. "So I worked all day until 4pm, and he paid me $40."

After working, Conran said, he bought some beer and went down to Zilker Park to visit his friends. They drank a few beers and then he and his friend Frank Kincaid left the park. "We were going to go to his house and clean up and play some pool," Conran said. On the way, the two decided to stop to get some dinner. (The Chronicle was not able to locate Kincaid.) "I wanted Chinese, so we were going to get Chinese," Conran said. "I very much wish we had." Instead, as they were driving south on Lamar Blvd., he said, Kincaid suggested they just stop at Furr's and grab a bite. "I said, okay, I've always liked cafeteria food. You know, tartar sauce, fried fish, and fried okra. So we went in to eat."

The two men went through the cafeteria line, got their food, and sat down. It wasn't long though, Conran says, before Kincaid started to notice that employees behind the food service line were stealing furtive glances at the two men. "[Kincaid] was looking over my shoulder and he said, 'All these people are peeking out of the line and looking at us,'" Conran said. "And I said, 'Man, you're crazy.' He said, 'No, they really are.' And, sure enough, they were." But still, Conran said, he thought nothing of it. "I was all dirty, filthy dirty from working all day, with a bandanna and a flannel shirt on," he said. "I thought they might think we were going to run out on the check or something, because we were just some dirty bums."

After Kincaid gave Conran some money -- Conran said Kincaid was buying since he'd sprung for the beers earlier -- and went to the bathroom, Conran went up to pay the cashier. "Then we walked into the lobby area and that was it," Conran said, incredulity still shading his voice five years later. "There were cops waiting there with their guns drawn."

While Conran and Kincaid were eating, the cafeteria cashier, Eva Aguilar, had identified Conran as the man who'd held her up at gunpoint the night before, stealing nearly $1,000 from the cafeteria's register. Furr's management called the cops, and Conran was arrested.

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"Bad Luck of the Draw"

As it turned out, the night before, March 1, 1996, the South Lamar Furr's had been held up, the money from the till taken by a robber whom witnesses described as "a homeless man." Court records show that three people said they saw the man that night. One, a customer, testified he saw a man that looked like a "street beggar" wearing a blue baseball cap. He never saw the man's face, though, because the guy kept his head turned. The second witness, a Furr's cook, testified that he was in the kitchen at the time of the robbery and didn't see the suspect, but that earlier, while he was placing food on the cafeteria line, he saw an "unusual man" wearing a red baseball cap.

But it was the testimony of the third witness, the cashier, that sealed Conran's fate. With the aid of an interpreter, Eva Aguilar, who spoke no English, testified that Conran was definitely the man who robbed the cafeteria, holding her at gunpoint on the evening of March 1. "She said, 'In my heart of hearts I know it was him,'" said Alan Bennett, Conran's trial attorney. "[She told the jury], 'I knew it when he walked in, my heart stopped.'" Of course, Aguilar also testified that the robber wore yet a third set of clothing, including a green cap, and despite her "positive" identification of Conran as the robber, she failed to recall exactly how she got home from work that evening. "They testified that he wore three different colored shirts and three different colored hats," Bennett said. "That just points out how flawed eyewitness testimony can be." In fact, says Bennett, he tried to make his point clear to the jurors by purchasing three outfits similar to the ones the witnesses had described, hanging them in a row in the courtroom for the jurors to see. "I said the state's witnesses identified perfectly the problems of eyewitness testimony," Bennett said. "But they found him guilty anyway."

Jurors later told Conran's appellate attorney Ken Driggs that it hurt his client's case that the defense hadn't called any of Conran's employers to bolster his claim that he worked all the time and therefore wouldn't need to rob the Furr's. "It was important to us that none of Conran's employers showed up in court to testify for him," juror Lisa Blackwell said in a sworn affidavit. "Conran took the stand and testified about how he worked all the time so the jury felt this was important that these employers should come in and speak for him." Unfortunately, Bennett didn't call either Tarnow or Schoenfeld to testify in Conran's behalf.

In his own affidavit, Bennett said that when he contacted Tarnow about testifying at trial that Conran had worked for him the day after the robbery, Tarnow "became belligerent and hostile." Tarnow told Bennett that Conran had worked for him that Saturday, but added that he would refuse to testify and that if subpoenaed he would "simply deny knowing anything about Mr. Conran or his case," Bennett wrote. "Given Mr. Tarnow's attitude and apparent willingness to commit perjury, I did not think it would be in Mr. Conran's best interest to have him testify on Mr. Conran's behalf."

Contacted by the Chronicle, Tarnow again confirmed that Conran worked for him for eight hours on March 2, 1996, but said that his reluctance to testify was "a freedom of speech issue."

"That was so long ago, why don't you just let it go?" he asked. Asked for clarification, Tarnow became agitated and asked that the Chronicle leave him alone. "I could care less what people do [about Conran]," he said. "I've got other things to worry about."

More perplexing is why Bennett failed to call Steve Schoenfeld. Schoenfeld "wasn't a fact witness," Bennett said, since Conran wasn't working for him at the time of the robbery or the day after. "At most he could've come to court to testify about [Conran's] character and reputation." Bennett didn't even have Schoenfeld do that, he said, because of their falling out over the wood chipper incident shortly before the robbery. "Steve had fired him shortly before the trial, and he'd had some tires slashed [on a piece of his excavating machinery], and he thought that Robert did that," Bennett said.

But Schoenfeld told the Chronicle that his first contact with Bennett didn't occur until after the trial. "No, I think I contacted him and told him he was stupid," Schoenfeld said. "He never contacted me until after the trial and he never asked me to appear or anything." As to the tire-slashing incident, Schoenfeld said he was "hacked" about his tires being slashed but quickly realized Conran couldn't have done it. "As it turned out, the tires were slashed again, two weeks later. So it couldn't have been him," Schoenfeld said. Besides, Schoenfeld said, in the year since he'd become Conran's friend, he'd never known him to be violent or dishonest. "No way -- he was usually the one that got screwed. I never had any inklings, and he had never displayed behavior of that sort."

So in the end, Conran's fate came down to his word vs. the cashier's word, and the jury believed the cashier. Given the lack of physical evidence, and the fact that Aguilar's testimony about the robber's appearance contradicted the state's other witnesses, how could it be that her testimony could send a man to prison? "It was bad luck of the draw," said Schoenfeld. "It is ridiculous, there's no doubt about it."

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The Need to Believe

Ridiculous it may be -- but, say experts in eyewitness identification, it is not uncommon. Texas case law is rife with convictions based on the testimony of a single eyewitness. A notorious Texas case is that of Gary Graham, executed last year for killing a man in a Houston parking lot in 1981, after being convicted on the testimony of one eyewitness. Bernardine Skillern identified Graham -- a stranger to her -- as the murderer, although she saw him through her car's windshield, at night, from 30 to 40 feet away. Despite the lack of other evidence, the jury believed her testimony and handed Graham a death sentence. To this day, Skillern maintains that Graham was the shooter.

"People tend to harden in their identifications. [But] misidentification is just a human frailty," said Guy Wellborn, a professor at the UT School of Law. "And eyewitness identifications of strangers are quite difficult, and people think they are better at it than they are." In fact, misidentification by witnesses is common enough to follow certain patterns, he said. "Whether a witness is believed is predicated on how confident the witness is on the stand," he said. "If you are confident, you are likely to be believed. But the problem is that there's zero correlation between witness accuracy and witness confidence."

In Conran's case, both jurors and defense attorneys said the cashier was very confident in her identification of Conran. Moreover, the three Hispanic jurors were able to understand Aguilar's testimony, in Spanish, without the aid of the interpreter. "That concerned me," said Conran's appellate attorney Ken Driggs. "At a minimum, the Hispanic jurors identified with the Hispanic witness. Was she interpreted literally or not, is part of the question. There is high Spanish vs. low Spanish -- something like the King's English vs. colloquial, which may convey something different." Juror Lisa Blackwell, the last juror to hold out for a not guilty verdict during deliberations, also felt the fact that the Hispanic jurors could understand the witness bolstered their belief in her testimony. "There were three Spanish speakers on the jury who could understand the Furr's cashier without the court translator. All three of them felt Conran was guilty from the very first vote," she said in a sworn affidavit taken by Driggs. "I felt that the fact they spoke Spanish gave them a special identification with the cashier, that they could feel her emotions and that she was a more credible witness."

The fact that Aguilar was a Hispanic witness identifying an Anglo suspect is a potential problem too, says Elizabeth Loftus of the University of Washington in Seattle. Loftus is a nationally recognized expert on eyewitness identification. "There are at least 20 studies out there that show that people make more mistakes in cross-racial identification," she said. "We've known this and have been studying this for at least 25 years."

If there were so many problems -- both factual and conceptual -- with Aguilar's testimony, why wasn't Bennett able to discredit her during cross-examination? "If the witness is simply a witness in the case, you can cross-examine with some degree of success," said attorney Bill Allison, whose client Carlos Lavernia was wrongly imprisoned as the Barton Creek Rapist. But it is nearly impossible to cross-examine a witness who is also a victim of the crime, Allison said, because of the bond jurors typically feel toward victims. "There's an added credibility given by jurors -- there is a need to help the victim. The only thing they can do to help is believe," he said. "To not believe is to almost re-victimize her. Those are the most difficult."

The only way to counter such testimony, Allison said, is to call an expert, like Loftus, who can offer the jurors a primer on how eyewitnesses make mistakes. "But that's still dicey, because it doesn't break that very strong rescue bond," he said. Not to mention the fact that court-appointed defense attorneys -- such as those defending Conran -- are given very little financial support from the state with which to mount a defense. "The defense, in a court-appointed case, would get about $500. I don't know an expert in this state that can testify for $500," Allison said. "[The prosecution] will spend whatever they need to prosecute a case, and they don't have to go through the court to get [the money]."

The way to combat errors made by eyewitnesses, Welborn and Allison agree, is to pass legislation requiring single eyewitness testimony to be corroborated by other evidence. "That's the only real solution to the problem -- to say you can't convict without significant corroboration," Welborn said. "DNA has helped a lot with crimes like sexual assault, but with crimes like robbery, that really doesn't help. And that's the kind of case where the system is most likely to fail, I think."

The current odds of getting such legislation passed, however, are slim to none. "The prosecutors' lobby in Texas is very strong, and the lobby will fight -- you will never see such a rising up in arms like you'd see if you tried to get corroboration of eyewitness identification," Allison said. "This is a very powerful prosecutorial weapon that they don't want to lose, and they'll fight to keep it uncorroborated."

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"Trying to Do What's Right"

Despite the odds, Conran's claims of innocence are slowly gaining support. In May 2000, Judge Blackwell, who presided over Conran's trial, received a letter from Steve Schoenfeld. In his letter, Schoenfeld said that he found it "preposterous" that Conran would not only commit such a crime, but that he would then return to the restaurant the very next day. "I never detected anything in his personality that would cause me to believe he would do what he was accused of, much less be stupid enough or brazen enough to return to the scene of the crime the very next day," Schoenfeld wrote. "He might have been a little vain about his singing, but he definitely isn't a megalomaniac." Further, Schoenfeld wrote, had he not fired Conran shortly before the incident, "I'm certain I would have been asked to testify at his trial as a character witness and that my testimony would have kept him from being convicted."

Apparently, Blackwell thought so too. On May 24, 2000, Blackwell wrote a letter to the Board of Pardons and Paroles, indicating that he also believed Schoenfeld's testimony would have made the difference. "The defendant emphatically denied having committed the robbery and the case turned on a question of identification," Blackwell wrote. "Since the defendant's conviction I have received the enclosed letter from Steve Schoenfeld which I believe would have made a difference in the jury verdict."

"During the trial, had I been the one [deciding the case], I would've found him not guilty," Blackwell told the Chronicle. But, he said, he thought Conran made a bad impression on the jury. "He had a chip on his shoulder. He testified, and he came across very negatively. He hurt himself." Recalling the trial, Conran says he couldn't help but be a bit haughty on the stand. "If you're snatched off the street and put in jail for three months for something you didn't do -- by the time you get in front of a jury, you're not in the best of humor," Conran said. "People say that criminals return to the scene of the crime and all that, but I don't think I would eat at that place the night afterwards if I saw the same people working. And I don't think I would've stayed and finished my dinner, giving them time to call the cops on me."

Still, even after Blackwell wrote his letter -- Conran also received a copy -- the parole board failed to grant Conran parole. A discouraged Conran continued his letter-writing campaign, this time to the Texas State Bar. The letter, written earlier this year, made its way to Cynthia Riley at Texas Lawyers Care, or TLC. "We're the pro bono legal services support for the State Bar," Riley said. "And we get an enormous number of letters from inmates." Conran's stood out, she said, partly because it was well-written, "but what really struck me was Judge Blackwell's letter," she said. "That struck me as being pretty powerful."

Riley called parole board member Paddy Burwell. "She said, 'What's the deal?'" Burwell said. "So I retrieved the file and reviewed it, and I was really appalled with this." It seems Blackwell's letter hadn't made it into Conran's file yet and so, at the time of his last parole hearing, there was nothing to catch the parole board members' attention save for Conran's constant protestations that he was innocent. "I'm really interested in justice and trying to do what's right," Burwell said, so he went to visit Conran, who had recently been transferred to the Segovia Unit from the Ramsey III Unit outside Houston.

"Out of the blue," Conran said, he was called to a parole hearing. When he arrived he found Burwell. "We talked about the crime they convicted me of and he asked me: Did you do it?" Conran said. "That floored me. No one had ever asked me about that at Ramsey III, I always had to bring it up."

Conran said he told Burwell what he tells everyone else: He is innocent.

"And I remember what he told me that day, almost word for word. He said, 'The legal judicial system isn't perfect, but it's pretty good. But when mistakes get made, I'm going to do what I can to fix them,'" Conran said, sitting on the edge of his seat in the stark inmate visiting room of the Segovia prison. "That just blew me away. He's really going out on a limb for me." Indeed, Burwell may be doing just that. Shortly after his first meeting with Conran, Burwell began communicating with the Texas Dept. of Criminal Justice's immigration officer, and has since secured Conran an attorney to handle his request for a full pardon from Gov. Perry. "I could get in trouble for this, but something has to be done," Burwell said. "We've got to get the governor to sign this, and I think we can do it. I'm a can-do guy."

Unless Conran receives a full pardon, confirming his innocence, he will be deported back to England, where he was born -- although he has not lived there since he was 6 years old. "That's the result of the tougher immigration laws that were passed in 1996," said Riley. "As far as immigration is concerned, he is an aggravated felon, and the only way [to keep him from being deported] is to have the governor claim his innocence and say 'you never did this.'"

"Getting him parole may be easier. The deportation is going to be the tough one," she said. "If anyone can do it, Paddy can do it."

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A Big Misunderstanding

Conran is encouraged by the support he's received, but he knows that whether he'll receive a pardon is a crapshoot, in a state loath to admit that its criminal justice system has some serious problems. "But I'm not willing to give up yet, I'm not willing to resign myself yet," he said. In fact, he says, if he is offered parole without a full pardon, he will decline the parole and serve out the remaining three years of his sentence. "I'll stay here three more years and duke it out in court," he said. "I don't know what I'd do [if deported]. I'd continue to pursue music there, too, I guess. I don't think I could do any tree trimming. I don't know that there are too many trees to trim in London."

In the meantime, Conran said, he spends his days working on his music, which -- if all goes well -- he hopes to pursue in Austin once released. "I want to be back in Austin," he said. "I am a very forgiving person. I think this was just a big misunderstanding."

In the past few months he has nearly completed a handful of new songs. "I've got a bunch of song titles in mind. That's where I start," he said, looking down at his white inmate uniform. "'Wearing White' -- that's a song title. This place is a great source of inspiration for that kind of thing."