THE SCHAFFER FIRM

Butler's incarceration had begun in June 1983 after a Tyler woman had identified him as a man who had abducted her at knife-point from a hotel parking lot and raped her. Butler, who was on 10 years probation at the time for a previous rape case, was first picked from mug shots, then from a line-up.    

 

The woman later identified him in court and, despite three witnesses who testified Butler was with them when the crime occurred, a jury convicted him and he was sentenced to 99 years.    

 

In 1987, he read of DNA analysis and filed the first of numerous motions seeking to have his blood analyzed. Over the years those motions repeatedly failed, but Butler persisted.    

 

"There were times when I'd feel like giving up, but then I'd start again," he said.    

 

Oddly, those failures proved to benefit Butler. He eventually contacted Houston attorney Randy Schaffer, who succeeded in obtaining court orders to have Butler's DNA tested.    

 

Schaffer had one test conducted and that proved inconclusive. At that time, however, the New York City medical examiner's office developed a form of Y chromosome testing that isolates male from female DNA.    

 

Schaffer then sought further testing in New York and those results showed Butler was not the rapist. Further tests of hair samples also excluded him, and Smith County District Attorney Jack Skeen agreed to join Schaffer in requesting a pardon from Gov. George W. Bush.    

 

"A.B. simply didn't understand the writ process, though his basic contentions were clear that 'I didn't do it and I want to be tested,' " said Schaffer.    

 

"But he was lucky he failed. If his previous efforts to be tested had been successful when they had the old testing methods, the tests would have proved inconclusive, I probably wouldn't have taken him on, and he would have used up his chances."    

 

Butler said he bore no bitterness toward the system, the district attorney's office or the woman who had identified him as her attacker. "I'm just too happy," he said. "I'm just so thankful to be out."    

 

The victim, however, apparently did not join in Butler's elation. The woman, recently widowed, declined interviews. She supplied prosecutors with an affidavit, however, in which she reiterated her conviction that Butler was her attacker, DNA evidence notwithstanding.    

 

"My testimony today would be the very same as it was at the trial in 1983," she wrote. "There is still no doubt in my mind that A.B. Butler Jr. committed these crimes against me . . .   

 

"Although I am positive . . . myself and my family will support any decisions made by Skeen."    

 

"I don't know what to say to her," said Butler. "There was evidence at the trial that could have exonerated me if the jury had chosen to consider it.    

 

"This (the DNA analysis) simply confirms it."    

 

Kent did not immediately join Schaffer and Skeen in requesting a pardon from Bush but said she would review the file and either join in that petition or order a new trial next week.    

 

Bush has been slow to sign pardons in the past and could be slowed by his presidential bid in this case, but Schaffer said he believes the governor will grant it to Butler.    

 

Schaffer also represented Kevin Byrd of Houston, who spent 12 years in prison before DNA cleared him. Byrd was released in 1997, but the tests were more than a year old at the time and Bush had refused to sign a pardon until a state district judge ruled that the DNA evidence proved Byrd was innocent.    

 

Similar circumstances occurred with Ben Salazar, an Austin man who was the second convict exonerated and freed by DNA.     "In this case Butler has the requests of the defense, the prosecution and the finding of a court," said Schaffer. "I'm confident the governor will grant a pardon. I just don't know how long it will take."    

 

In the interim, Butler said he plans to live with relatives in Tyler and has a job promised as a truck driver. He will be eligible for $25,000 from a state fund when the Legislature approves money for such payments in 2001, said Schaffer.     Butler will receive the stipend "for pain and suffering," the lawyer added.    

 

"In A.B.'s case it figures out to something like 4 cents per day," said Schaffer. "Not quite enough to make it worth all those days in prison."