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Does Innocence Matter in Criminal Appeals?
Cat Gibson58

ABSTRACT: This article examines the importance of innocence in criminal appeals through the
lens of Benjamine Spencer’s murder case history and its development through the appeals
process. Spencer’s case shows how innocent people can easily be convicted with false evidence
and a flawed criminal justice system. Criminal appeals should provide a true path to resolve
faulty convictions and fixed flawed aspects of the criminal justice process.

Benjamine Spencer was tried for the murder of Jeffery Young in October of 1987 despite
claims of innocence. He was convicted and sentenced to 35 years in prison. He maintained his
innocence and filed for a new trial, which he was then granted. In his second trial, he was
convicted of aggravated robbery, and was now sentenced to life in prison. Spencer continued to
assert his innocence and appealed his case. In 1989, this conviction was upheld.59 In 2008, Judge
Rick Magnis, after spending eight months reviewing information presented in an evidentiary
hearing, declared that Spencer should be granted a new trial “on the grounds of actual
innocence.”60 However, in 2011, the Texas Court of Criminal Appeals ruled that the new
evidence did not unquestionably establish the applicant's innocence, and since the threshold for
proving actual innocence was not met, habeas relief was denied.61 If Spencer was serving the
original sentence he’d been granted in 1987 for murder, he would be released in 2022. However,
after his second trial and conviction for aggravated robbery, he is still expected to serve life in
prison, and has been denied parole at every opportunity.62

According to Colin Miller, a professor and Associate Dean at the South Carolina School
of Law, there have historically only been two routes of obtaining post-conviction relief:
presenting newly discovered evidence of innocence and/or evidence of a constitutional violation.
Every state has enacted a statute establishing post-conviction relief based on DNA testing,
though not every state allows defendants to bring “freestanding claims of actual innocence.”63

Texas is actually one of those states that allows actual innocence claims outside of those with
DNA evidence, and yet, Spencer remains imprisoned. This is due to the fact that, when seeking
post-conviction relief based on a freestanding claim of actual innocence, the standard for a new
trial is incredibly high and almost unattainable.

63 Miller, “Why States Must Consider Innocence Claims After Guilty Pleas.”

62 Colin Miller, “Why States Must Consider Innocence Claims After Guilty Pleas,” SSRN Scholarly Paper
(Rochester, NY: Social Science Research Network, August 6, 2018), https://doi.org/10.2139/ssrn.3226915.

61 “Ex Parte Spencer, 337 S.W.3d 869 – CourtListener.Com.”

60 Story by Barbara Bradley Hagerty, “Can You Prove Your Innocence Without DNA?,” The Atlantic, accessed April
17, 2021, https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/.

59 “Ex Parte Spencer, 337 S.W.3d 869 – CourtListener.Com,” CourtListener, accessed April 17, 2021,
https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/.

58 Undergraduate Student at Brandeis University, Class of 2021.

29

https://doi.org/10.2139/ssrn.3226915
https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/
https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/
https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/


According to court documents, Jeffrey Young was found by police unconscious and
bleeding in the street on March 22, 1987. He died after being transported to the hospital, and it
was later determined that his death occurred as a result of severe skull fractures. There was no
physical evidence linking Spencer to the crime and the police were unable to link him to any of
the items stolen from Young, but several neighbors then testified that they had either seen
Spencer getting out of Young’s car or standing by the car, and one witness even testified that he
saw Young getting pushed out of the car before it pulled into an alley and he was allegedly able
to see Spencer exiting the car before jumping over a fence to go through a neighbor’s backyard.64

In the second trial, a woman named Gladys Oliver whose house overlooked the alley
where the car pulled into was the star witness for the prosecution. She claimed to have seen
Spencer get out of Young’s car and saw Spencer’s car parked in the street before it disappeared.
She said the street was well lit and she could identify Spencer as one of the men getting out of
the car.65 According to former prosecutor Andy Beach: “[t]here's no question that Gladys Oliver's
testimony convicted Ben Spencer.”66 He continues: "[i]n the 25 years I tried criminal cases, she
was one of the top three or four eyewitnesses of all time. Just her physical presence and her
ability to clearly answer questions, and to stand up to cross-examination, it carried the day for us,
there's no question."67 When the evidentiary hearing was opened by Judge Magnis in 2007,
Oliver held firm, though other witnesses backtracked. Spencer’s team called a “forensic visual
scientist,” who testified that no witness would be able to identify a face from over twenty-five
feet away under conditions similar to as they were on the night of March 22, 1987. The closest
eyewitness was ninety-two feet away. Even the state’s expert agreed that at best, the witness
would have been able to see a silhouette, not an identifiable face and whether the witness seemed
sure or unsure of the fact.68

In Texas, the standard used when looking at appeals based on DNA evidence is often
cited as whether “any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt,” as is displayed in Skinner v. State.69 The new evidence brought forth
by Spencer’s team was enough to convince Judge Magnis: "[w]hen you have two [experts] that

69 “Skinner v. State.”

68 “Why A Man Declared Innocent Can’t Get Out Of Prison.”; Hal Arkowitz Lilienfeld Scott O., “Why Science Tells
Us Not to Rely on Eyewitness Accounts,” Scientific American, accessed April 18, 2021,
https://doi.org/10.1038/scientificamericanmind0110-68.

67 “Why A Man Declared Innocent Can’t Get Out Of Prison.”

66 “Why A Man Declared Innocent Can’t Get Out Of Prison.”

65 “Ex Parte Spencer, 337 S.W.3d 869 – CourtListener.Com.”

64Johnathan Silver, “Inmate Declared Innocent Is Still in Texas Prison,” The Texas Tribune, March 17, 2016,
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/.; “Why A Man
Declared Innocent Can’t Get Out Of Prison,” NPR.org, accessed April 18, 2021,
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison.: “Ex Parte
Spencer, 337 S.W.3d 869 – CourtListener.Com.”

30

https://doi.org/10.1038/scientificamericanmind0110-68
https://doi.org/10.1038/scientificamericanmind0110-68
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison


say none of these three witnesses could have seen what they said they saw," Magnis said, "I felt
that was very, very compelling."70 It was even enough to convince the foreman of the second
jury, the one which sentenced him to life in prison: "[w]e worked with what we had, but we were
very wrong.”71 So why was Spencer’s request for habeas relief denied? Surely both a criminal
court judge and the foreman of the jury who convicted Spencer to life in prison would fall under
the standard of “any reasonable trier or fact.” However, when evaluating freestanding actual
innocence claims, the State doesn’t use the same test it used in Skinner v. State. Instead, the
appellate judge cites a threshold established in Ex Parte Franklin and cites a that “[e]ven if we
determined that the evidence here was new, it does not unquestionably establish Applicant's
innocence.”72

It’s easy to make a claim of actual innocence, but incredibly difficult for that claim to be
recognized in court. The fact that it is broad and largely unspecified means that anyone who is
looking to be released could hypothetically raise a claim of actual innocence and, in a system
already straining under the number of cases it has to hear, arguing that each case of actual
innocence should be given large deference would injure the integrity of the legal system.
However, reading about cases like Spencer’s demands that some room be made for appeals that
may not comfortably fit under the usual grounds for appeal, but are nonetheless important and
need to be heard. The fact that standard is so incredibly high means that, for people like Spencer,
it’s unlikely that he will ever be able to find relief save for some miracle. The integrity of the
legal process should be protected, but not at the expense of keeping an innocent man imprisoned.
Such action not only ruins the life of the person improperly convicted of the crime due to
procedural reverence, but allows the actual perpetrator to remain free, turning out a result that
cannot claim to hold justice for any of those involved.

Benjamin Spencer was 22 when he was arrested, recently married and expecting a child.73

The Texas Department of Criminal Justice lists his age now as 55.74 Spencer has spent over half
his life behind bars in a maximum security prison with no release date in sight despite a trial
judge determining his sentence should be overturned due to actual innocence over twelve years
ago.  Our post-conviction system is meant to give relief to those who did not receive justice in
their initial trial, but has little room for granting relief based on actual innocence, resulting in
innocent people spending time behind bars while guilty perpetrators are not held accountable for
their crimes. Obviously, someone who is convicted of a crime can’t simply be released due to a

74 “Texas Department of Criminal Justice Offender Search,” accessed October 23, 2020,
https://offender.tdcj.texas.gov/OffenderSearch/start.action.

73 “Why A Man Declared Innocent Can’t Get Out Of Prison.”

72 “Ex Parte Franklin, 72 S.W.3d 671 – CourtListener.Com.”;“Ex Parte Spencer, 337 S.W.3d 869 –
CourtListener.Com.”

71 “Why A Man Declared Innocent Can’t Get Out Of Prison.”

70 “Why A Man Declared Innocent Can’t Get Out Of Prison.”

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https://offender.tdcj.texas.gov/OffenderSearch/start.action
https://offender.tdcj.texas.gov/OffenderSearch/start.action


claim of innocence, but surely we have to have a better system for being able to evaluate claims
of actual innocence following conviction so that the momentum of the system doesn’t overtake
the importance of obtaining justice not just for those who have been convicted, but also for those
who may be the victims of a crime which doesn’t see the guilty party or party be held
accountable. Striking the proper balance between protecting the legal system and its results and
reevaluating those results based on evidence is incredibly difficult, but also incredibly necessary.
For a case to be reexamined due to new evidence, our system has to allow for reexamination of
evidence that has been cast in a new light in order to maximize the chance of producing a just
outcome for all those who are involved.

32



Works Cited

Hagerty, Story by Barbara Bradley. “Can You Prove Your Innocence Without DNA?” The
Atlantic. Accessed October 23, 2020.
https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/.

Lilienfeld, Hal Arkowitz, Scott O. “Why Science Tells Us Not to Rely on Eyewitness
Accounts.” Scientific American. Accessed April 18, 2021.
https://doi.org/10.1038/scientificamericanmind0110-68.

Miller, Colin. “Why States Must Consider Innocence Claims After Guilty Pleas.” SSRN
Scholarly Paper. Rochester, NY: Social Science Research Network, August 6, 2018.
https://doi.org/10.2139/ssrn.3226915.

Silver, Johnathan. “Inmate Declared Innocent Is Still in Texas Prison.” The Texas Tribune,
March 17, 2016.
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exo
neration/.

“Texas Department of Criminal Justice Offender Search.” Accessed October 23, 2020.
https://offender.tdcj.texas.gov/OffenderSearch/start.action.

NPR.org. “Why A Man Declared Innocent Can’t Get Out Of Prison.” Accessed October 23,
2020.
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-ou
t-of-prison.

Cases Cited

CourtListener. “Ex Parte Franklin, 72 S.W.3d 671 – CourtListener.Com.” Accessed October
23, 2020. https://www.courtlistener.com/opinion/2184585/ex-parte-franklin/.

CourtListener. “Ex Parte Spencer, 337 S.W.3d 869 – CourtListener.Com.” Accessed October
23, 2020. https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/.

Justia Law. “Skinner v. State.” Accessed October 23, 2020.
https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html.

33

https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/
https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/
https://doi.org/10.1038/scientificamericanmind0110-68
https://doi.org/10.1038/scientificamericanmind0110-68
https://doi.org/10.2139/ssrn.3226915
https://doi.org/10.2139/ssrn.3226915
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/
https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/
https://offender.tdcj.texas.gov/OffenderSearch/start.action
https://offender.tdcj.texas.gov/OffenderSearch/start.action
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison
https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison
https://www.courtlistener.com/opinion/2184585/ex-parte-franklin/
https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/
https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html
https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html



