Inmate’s release too slow
Man catches virus while jailed on warrant tied to years-old questionable conviction
Jamaka Cottingham lost the energy to get out of his bunk in the Harris County Jail.
Dizzy and fatigued, his condition had deteriorated. He didn’t have an appetite and felt glued to his bed.
After nearly two months inside — mostly confined to his dorm with around 50 other men — Cottingham faced a nightmare scenario: catching the new coronavirus in jail when prosecutors agreed that the original conviction keeping him locked up was questionable and he should get a new trial. Cottingham’s original attorney did not use evidence that could have exonerated him, court records say.
“I felt angry,” he said. “This case has been affecting me for over 20 years.”
Cottingham had been convicted at 17 on a charge of aggravated robbery with a deadly weapon. He served his sentence but on Feb. 20 was booked on a parole violation.
Cottingham’s new attorney, Josh Schaffer, had been working for years to prove his innocence. But by the time he and prosecutors reached an agreement and filed paperwork laying out the issues in the case — and the Texas Department of Criminal Justice agreed to drop the parole violation warrant — it was too late.
Cottingham, now 40, tested positive for COVID-19 on April 15 at Ben Taub Hospital, days before his release.
The Harris County District Attorney’s office said it offered to sign off on an agreement in December; Schaffer was seeking a declaration of actual innocence
and continued to negotiate for that.
Schaffer said the case shows how the pandemic complicates the process of fighting a conviction, an already time-intensive legal struggle aimed at securing an inmate’s release.
Even with a favorable outcome for Cottingham, he couldn’t avoid the virus.
“I did almost 16 years in prison, and that two months was worse than anything I’ve experienced,” Cottingham told the Houston Chronicle. “I’m looking at people laying in a bunk like they were dying, and then you’re looking at the news and you see people dying. I’ve never experiencing anything like that. It’s scary.”
A new drug charge on Feb. 6 triggered Cottingham’s parole violation. He was accused of possessing more than 400 grams of methamphetamine with intent to deliver.
In the original case, he was identified as one of two suspects who on Jan. 13, 1997 robbed Kenneth Brown, a 39-year-old construction worker, at gunpoint in a convenience store parking lot in Houston. A third person drove a getaway car, but Brown could not identify the driver.
A month after the robbery, Brown said he spotted Cottingham riding a bike within a mile of the crime scene. At the time, Cottingham was wearing a dark blue sweatshirt that Brown said was “probably” the same one worn by the second robber. Brown identified him as the second robber at trial.
“This has all the classic characteristics of a mistaken identification… it wasn’t even a physical description of him or his face,” Schaffer said.
Cottingham pleaded not guilty, but a jury sentenced him to 30 years in prison. He was released on parole in 2012. By that point, Schaffer had already asked for a review of the robbery and uncovered details in the original police reports that Cottingham’s attorney did not use at trial.
Schaffer learned that police had lifted fingerprints from the car used in the robbery. One matched the left middle finger of Marty Richard Duran, according to court records. Duran later pleaded guilty to charges of murder and aggravated assault, crimes committed during the same time period as the robbery in which Cottingham was charged.
Schaffer interviewed Duran in 2007. Duran admitted to the robbery and said he did not know Cottingham. A crime lab excluded Cottingham as a source of the prints on the stolen car, court documents say.
Duran and an accomplice were not charged because the statute of limitations had expired, Schaffer said.
Scaeffer’s new evidence led prosecutors to conclude that Cottingham should get a new trial.
“There is a reasonable probability that, but for counsel’s deficient performance, (Cottingham) would not have been convicted,” according to an agreed order, signed by prosecutors, requesting a new trial.
When Cottingham landed in jail in February on the parole violation, Schaffer hustled to finalize an agreement with prosecutors to get him out.
“I can tell you that the (order) was filed as soon as there was a joint agreement,” said Dane Schiller, a spokesman with the Harris County District Attorney’s Office. “We had told defense counsel last December that we’d agree to filing a joint motion for a finding of ineffective assistance of counsel.”
The 19-page formal agreement was filed April 13. After some back-and-forth with the Texas Department of Criminal Justice parole division, the state agency agreed to allow his release.
In jail, Cottingham complained every day about the tight living quarters. He said he couldn’t avoid brushing against the man next to him while talking on the phone. Inmates slept so close to each other he could reach over and nearly touch the bunk next to his, he said.
“There was no way we could social distance from each other,” he said.
By Thursday, more than 390 jail inmates had tested positive.
Cottingham is now recovering in his South Park-area home. He remains on parole while his case makes its way to the Texas Court of Criminal Appeals, which will decide whether to give him a new trial.
Cottingham’s release could be viewed as a success story, Schaffer said, “but even then it took weeks.”
His other clients in state custody have a much more difficult road ahead, he said.
“I can’t move their cases fast enough,” he said. “Because the law doesn’t allow for it.”