On Sept. 8, Chad Allen Uptergrove will turn 36 years old. But unlike most of us, he will not celebrate that birthday surrounded by family and friends.
Instead, he will observe it in Amarillo at the William P. Clements Unit of the Texas Department of Criminal Justice, in a cell that is roughly 8 feet deep and 5 feet wide.
For nearly 20 years, since he was just 16 years old, Uptergrove has been incarcerated in the Texas state prison system for a crime that many feel he didn't commit.
Uptergrove's case, and those of dozens of other juveniles who were tried and convicted as adults, illustrates the human flotsam left behind by the changing judicial and legislative tides of how Texas, and indeed the nation, punishes its youngest offenders.
Even more pointedly, his experience exposes the flaws in a criminal system that is meant to assure a level playing field for all, but which all too often places retribution over rehabilitation and which sacrifices justice on the altar of high conviction rates and stiff sentencing.
By all accounts, in early 1992 the 16-year-old Uptergrove was a good kid who had fallen in with the wrong crowd in sleepy Bonham, Texas. His father, Ricky Uptergrove, had been largely absent from his life since Chad was 5. His mother, Pamela Sweet Richardson, was a hardworking county employee who would eventually be elected Chief Assessor Collector for Fannin County.
Terri Caffee, one of Chad's high school teachers, remembers him as quiet, respectful, and "a typical teenage boy" who was a decent student, doing "what was asked of him" while not always working up to his potential.
Lois Horton, a loan officer and manager of the local credit union, recalls the good kid who "always had a big smile" and was considerate. Both individuals, along with some 70 other members of the small Fannin County community, would later write letters to the Texas Board of Pardons and Paroles asking that Chad's life sentence be commuted.
Perhaps it was being a quiet kid who did what was asked of him that first brought Chad Uptergrove under the influence of Terrence "Terry" Dewayne Abbott and Abbott's circle of friends. Terry was bad news—a 19-year-old who already had two felonies under his belt.
And on that fateful night of Feb. 18, 1992, Terry Abbott and two other youths entered Jimmy Brannon's music store intending to rob it. According to the trial transcript, neither Abbott nor either of his companions were armed, but when Brannon produced a gun, Abbott seized the weapon and shot Brannon dead.
In a written statement later given to police (and read into evidence at his trial), Chad Uptergrove denied being present when the murder of Jimmy Brannon occurred, and said that he only learned of the shooting sometime later.
When he did, though, Uptergrove contacted the then-sheriff of Fannin County, Talmage Moore, and identified Terry Abbott as the shooter and told Moore where the murder weapon could be found.
Moore would later state that "without [Uptergrove's] assistance, I feel strongly that the case would not have been solved."
But doing what many would consider to be the right thing proved to be Chad's undoing: he found himself facing capital murder charges side by side with Terry Abbott. Abbott, no stranger to the system, quickly cut a deal that threw his 16-year-old friend under the bus, identifying Chad as being present during the crime and serving as the state's main witness against Uptergrove as the government leveled capital murder charges against both teenagers.
Initially, it seemed inconceivable that a 16-year-old kid with no previous felony record, and who had voluntarily led police to both the shooter and the murder weapon could face charges as serious as the 19-year-old killer. Timing, however, was not on Chad Uptergrove's side.
Dan Meehan, the District Attorney for Fannin County from 1981 to 1993, considered placing Chad in the Capital Offender Program for juveniles; this nationally-recognized program through the Texas Youth Commission has been wildly successful, boasting a 95 percent success rate of keeping its juveniles from being re-arrested for violent offenses within three years of their release.
Unfortunately, Chad was ineligible because he had already turned 17 before he could be placed there.
Meehan also anticipated that a plea bargain arrangement could be worked out; he had visited extensively with members of the victim's family, and they were on board with a suggested 15 year sentence for Uptergrove, a term Meehan later characterized as "appropriate for [Uptergrove's] part in this crime."
But in 1993, Meehan's days as Fannin County District Attorney were numbered; he would leave office on Jan. 1, 1994. The case was prosecuted by the man who would succeed Meehan, James Moss.
While Moss' perspective on the case is sadly lost (he died in a 2002 farm accident), many Fannin County residents feel to this day that the political pressures at election time explain why no plea was offered.
No candidate for the district attorney's office wants to appear soft on crime to voters, and the result was no deal for Chad Uptergrove.
As Bryan Wix of Bonham later put it, "Many of us locally felt that political reasons . . . affected the case unfavorably. Chad should have remained in the juvenile system."
Chad Uptergrove went on trial in June 1993. Now 17, he was represented by John Skotnik, a lawyer who had been licensed for less than eight years and who was trying his first capital murder case.
Although it was standard for a capital murder defendant to have the benefit of two lawyers, Skotnik's request for additional counsel at county expense was denied by the trial court judge.
With the actual murderer, Terry Abbott, placing Chad at the scene, the jury found Uptergrove guilty of capital murder on June 24, 1993. He was sentenced to life in prison—the same punishment given to Abbott.
But before examining the issue of where Chad Uptergrove and so many youths just like him fit within the changing landscape of Texas' treatment of juveniles in the adult criminal justice system, a troubling question remains: did the jury convict an innocent young man?
Uptergrove's first appeal, centered around a claim of ineffective assistance of counsel, was quickly disposed of by the Texarkana Court of Appeals in 1994 and his conviction was upheld. Years after the trial and appeal, though, disturbing facts began to emerge.
In early October 2003, Chad's mother was approached in the Bonham Wal-mart by Sue Speed Van Hooser. After asking how Chad was doing, Van Hooser asked the mother why she had never been called to testify at trial.
The question shook Pamela Sweet Richardson; nowhere had there been any indication of Ms. Van Hooser as a witness—neither the police nor the prosecution had ever breathed a word of her.
Then Ms. Van Hooser began sharing what had happened, details she had provided to the police soon after the murder and which would eventually form the basis of sworn testimony in Chad's next appeal.
According to Van Hooser, she was contacted by the Bonham Police Department during their investigation, because a rental receipt from the shop next to the crime scene showed she was in the area during the timeframe when the murder occurred.
She dutifully went to the Bonham police, and told an Officer Laverne that she had seen three suspicious-looking men leaving the music store, and that none of them fit Chad Uptergrove's description.
Officer Laverne even argued with her about the number of suspects, insisting to Van Hooser that only two young men were involved. The woman insisted that police had her name and statement, even if they had never called her to testify.
Under a 1963 U.S. Supreme Court case, Brady v. Maryland, it is a violation of a defendant's constitutional rights for the prosecution not to turn over such exculpatory evidence. A long line of Texas cases reaffirms this duty on the part of the state, and specifically refers to material witnesses who would be favorable to the defense, like Ms. Van Hooser.
Law enforcement witnesses like Officer Laverne and Detective Mike Bennett (the Bonham Police Department's detective in charge of the case) said that it was possible they had talked to her and acknowledged that the three men Van Hooser saw were leaving the music shop at the time that Jimmy Brannon had been killed; they further admitted that no one had ever advised the defense of this favorable account.
Bolstered by this revelation, in 2007 Uptergrove's appellate lawyers asked the highest criminal court in Texas, the Court of Criminal Appeals, for a writ of habeas corpus based on his actual innocence.
The Court of Criminal Appeals didn't rule right away; instead, it directed the trial court in Fannin County to hear the new evidence and issue findings of fact as to whether—in light of such new testimony—a jury would acquit Uptergrove, and whether the newly-discovered evidence could put the whole case "in such a different light as to undermine confidence in the verdict."
The hearing took place as ordered, and Sue Speed Van Hooser testified unchallenged, as did Uptergrove's original lawyer, John Skotnik, who said the prosecution had never disclosed this evidence that could have freed his client. One of the jurors from the original trial, Joann Ridge, even testified that the Van Hooser testimony would have made a difference to her as a member of the jury.
But it was all in vain. The trial judge's "findings of fact" were essentially that the new evidence was of questionable value, could have been discovered earlier, and wouldn't have led to a different verdict anyway.
Hesitant to substitute its collective judgment for that of the judge who had (theoretically, at least) considered all of the evidence old and new, the Court of Criminal Appeals declined to grant Chad Uptergrove the relief he sought. Now 32 years old, he had lived exactly half his life in the Texas prison system. For him, its doors would remain shut.
In the next installment, we'll look at how Chad Uptergrove and others convicted as juveniles and sentenced to life in prison have found themselves caught in a legal limbo as judicial and legislative outlooks on juvenile offenders have changed.