The StandDown Texas Project

Texas Gaining National Rep for Executing Innocents

That's the title of Texas Observer Editor Dave Mann's take on the Columbia HRLR report, The Wrong Carlos.

Yes, it has come to this: Credible claims of innocence in multiple cases of men executed years ago. It’s becoming a disgrace for the state. What else can we say after the recent disturbing revelations in the case of Carlos DeLuna?

DeLuna was convicted of stabbing to death 24-year-old Wanda Lopez at a Corpus Christi convenience store in 1983. His conviction was based largely on the shaky testimony of a single eyewitness. Police had the eyewitness identify DeLuna at the crime scene while DeLuna was in custody—not ideal policing practice to say the least. No physical evidence linked him to the crime. Yet the state executed DeLuna in 1989. Now it appears they had the wrong man.

In 2003, Columbia University law professor James Liebman and a group of students began an eight-year reinvestigation of DeLuna’s case. Their results were recently published in a book-length Columbia Human Rights Law Review article.

And:

Texans have sadly grown accustomed to the horrifying tales of wrongful conviction after more than two dozen DNA exonerations in Dallas County and the high-profile cases of Anthony Graves and Michael Morton. But the DeLuna case is one of the most dispiriting yet. Though the details are different, what happened to DeLuna is eerily similar to the infamous Cameron Todd Willingham case and to the Claude Jones case. (If you’re not familiar with the Jones story, which the Observer broke in November 2010, then read this story. DNA tests debunked the key evidence against Jones, who was executed in 2000, though the tests didn’t conclusively establish his actual innocence.) Then there’s the case of Ruben Cantu, a former special ed student executed in 1993 for a crime he almost certainly didn’t commit.

"Carlos DeLuna, Cameron Willingham and Rethinking the Criminal Justice System," is Dan Simon's Huffington Post essay.  He's Professor of Law and Psychology at USC's Gould School of Law.  Here's the beginning:

Carlos DeLuna and Cameron Todd Willingham probably did not commit the crimes for which they were put to death by the state of Texas. In-depth inquiries into their convictions revealed bungled investigations, poor recordkeeping, mistaken eyewitness testimony, spurious forensic testimony and misconduct by law enforcement personnel, among other problems.

Sadly, the DeLuna and Willingham convictions are hardly isolated incidents. The National Registry of Exonerations, which launched this month, lists 890 men and women who were wrongfully convicted for serious crimes and spent, on average, more than 11 years in prison before being found factually innocent. That's not the complete story. The registry does not include an additional 1,170 people who were exonerated following large-scale police scandals. The actual number of false convictions is probably far greater.

At bottom, the primary cause for false convictions is the questionable quality of the evidence habitually used in criminal prosecutions. Poor evidence can be produced even when all actors follow procedures diligently and conscientiously. The problems lie with the investigative procedures themselves. Lineups, witness interviews, and suspect interrogations rely on crude and archaic investigative methods that are both insensitive to the prospect of human error and prone to exacerbate mistakes. As a result, the evidence elicited contains an unknown mix of accurate and inaccurate evidence.

Mystifyingly, criminal investigators are not required to make a reliable record of the evidence they collect. Verdicts are thus often based on faded memories, paraphrased statements, incomplete narratives and swearing contests about what transpired in the interrogation room. Hints of error are obscured from police supervisors and prosecutors, and they are concealed from lawyers, judges and juries. The lack of a reliable record opens the door to testimony creep -- as the trial date approaches, gaps in testimony get filled, narratives congeal, and reluctant witnesses become more confident.

The Catholic Sentinel posts, "Another innocent killed?"

America is one of the few remaining countries that allows its states to use the death penalty. For a state to kill people to demonstrate that killing people is wrong is crazy.

The Vatican and the U.S. bishops have spoken out against the death penalty.
Archbishop John Vlazny has called for an end to the death penalty in this newspaper.

“Human life is a gift from God, sacred from conception to natural death ,” he wrote last year.

In his encyclical Caritas in Veritate, Pope Benedict asserted that “society lacks foundations when, on the one hand, it asserts values such as the dignity of the person, justice and peace, but then, on the other hand, radically acts to the contrary by allowing or tolerating a variety of ways in which human life is devalued and violated, especially when it is weak or marginalized.”

Even as a deterrent to crime, the death penalty is not reliable. States with more executions do not generally have lower murder or crime rates.

The Story, an American Public Media radio broadcast, features an interview with Columbia Law prof James Liebman in, "Investigating an Execution."  It's conducted by Dick Gordon.  Audio is at the link.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link; also available, extensive coverage of the National Registry of Exonerations.  You can read the full article at The Wrong Carlos.

Cheering on the Death Machine

That's the title of an editorial in today's New York Times.

Even supporters of the death penalty used to consider execution a solemn state responsibility, not an occasion for celebration. But the crowd of Republicans who gathered at the Reagan Library last week to watch their presidential candidates debate actually applauded and cheered when a moderator noted that Texas had executed 234 inmates under Gov. Rick Perry, by far the most under any governor in modern times.

Then came Mr. Perry’s blithe denial that he had ever struggled with a single one of those state killings. Texas has a “thoughtful, a very clear process,” he said, which ensures everyone a fair hearing, so there is no need to lose sleep over the possibility of executing an innocent person.

It may not trouble Mr. Perry, but any clear-eyed observer would be shocked at the grim momentum of his state’s death machine, which stops for no suggestion of error. The clearest and best-known illustration of that was the 2004 execution of Cameron Todd Willingham for the home fire that killed his three children, despite egregious flaws in the forensic science that helped convict him. In the face of serious questions, Mr. Perry refused to grant a reprieve for Mr. Willingham, and years later replaced the members of a state forensic commission that was about to hold hearings on the execution.

And:

Mr. Perry is well known for being extremely parsimonious with his clemency authority. His attitude about death may make sense in the hard-edged Republican primaries, but other voters should have serious doubts about a man who seems to have none.

"Perry’s odd ease with death penalty," is the editorial from the Sunday Dallas Morning News.

Two things seemed creepily out of whack last week when the subject of the Texas death penalty came up during the GOP presidential debate at the Ronald Reagan Presidential Library.

First was the crowd’s reaction at the mention of this state’s leading execution statistic, a record 234 of them under Gov. Rick Perry. The audience actually applauded the body count tallied in Huntsville over the last 11 years.

That bizarre outburst set the stage for the governor’s defense of his record, and, with the crowd behind him, it probably was a politically effective media moment for the governor.

Yet the justice system Perry depicted is not the system that comes into focus when taking a hard look at the facts. His is a black-and-white rendition: bad crime, fair trial, thorough review, last words on a gurney.

The reality of Texas justice is not so sound-bite simple. The fight for fairness and truth can be an agonizing and often futile one.

And:

Perry was right about one thing: The public is generally comfortable with the death penalty. But consider that a mere theoretical statement. Dig deeper into uncomfortable truths and, we think, the public will see hard realities that are impossible to defend.

University of Houston Law prof David Dow posts, "Rick Perry's Lethal Overconfidence," available at MSNBC.

Jaws dropped when the governor of Texas, running for president, said on national television he was “100 percent sure” everyone who had been executed on his watch was guilty. The governor was George W. Bush, appearing on NBC's Meet the Press, during his first presidential run. Six months before Bush's election, Texas executed Gary Graham, who continued to protest his innocence even as the lethal injection was killing him and whose objections were almost certainly true. Then, just before Bush moved to the White House, Texas executed Claude Jones. Last year, new DNA testing on a hair found at the crime scene cast doubt on Jones's guilt.
Bing even more:

Rick Perry likes to say that while President Bush went to Yale, he went to Texas A&M, which I guess is meant to imply that Bush is smarter than he is. But when it comes to their confidence in Texas's executions, the two are equally idiotic. Asked at Wednesday night's presidential debate if he ever worried that Texas had executed an innocent person on his watch, Perry answered, “I've never struggled with that at all.”

Certainty is cheap if one achieves it by ignoring the actual facts, and indeed, Governor Perry's answer to the death-penalty question asked of him Wednesday night reflected a staggering inattentiveness to the facts. As the founder of the Texas Innocence Project, I've had a couple of dozen clients executed during Perry's tenure as Governor. There are some I think could well have been innocent-- Frances Newton, for example, who supposedly killed her husband and two children without getting even a spot of blood or speck of gunpowder in herself; or Charles Nealy, who did not remotely match the description of the person who killed the convenience store clerk. But, there was no DNA in either case, and so I am left being unsure.

In his New York Times Opinionator blog, Peter Catapano posts, "They Messed With Texas," with a roundup of blog commentary.

For some — in this case, opponents of the death penalty — this was sort of a double whiplash moment, a gasp within a gasp that may have been more confusing than mobilizing. Because which was more disturbing (or heartening, depending on your political view)? Perry’s unbowed defense of the “thoughtful” trial process in Texas and the clear expression of his untroubled mind in the face of possible moral doubt and complexity (i.e., Have I facilitated the death of an innocent human?)? Or the audience applause that bracketed the exchange, the rousing audience cheers for an aggressively applied death penalty? In California, mind you, not Texas.

Let’s look at the applause, the “execution cheer,” if you will. Because any number of analysts might have expected Perry to say what he said, but the cheer was a surprise — a welcome sort for some, but unwelcome for others.

Earlier commentary on Rick Perry and capital punishment in Texas begins at the link.

It's Time for Capital Punishment to Become Texas History

That's the title of an editorial in yesterday's Houston Chronicle.  It also carried the heading, "The death penalty."  The Chronicle becomes the third major Texas newspaper to editorially endorse repealing the state's death penalty.

The death penalty in Texas is fraught with demonstrable error, and the people of the state seem more willing to deal with that fact than their leaders.

Events of the past year have convinced us that defendants have been executed on the basis of invalid evidence. They may or may not have been guilty, but the fact that we have convicted people based on faulty evidence leads inexorably to a horrible likelihood — that we have executed innocent people. The high number of death row prisoners eventually exonerated makes a strong case that other innocent but less fortunate prisoners have been wrongfully put to death.

We don't lose sleep over the execution of guilty murderers. But the possible or probable execution of the innocent should trouble every Texan.

The freeing of Anthony Graves after 18 years in prison, many on death row, for a false murder conviction is only the most recent example of how badly the system is broken. His ordeal underlines how long the victims of wrongful death sentences must suffer in the cases where the errors are discovered before execution.

Two men, Cameron Todd Willingham, convicted of murder by arson, and Claude Jones, convicted of murder during a robbery, were executed on the basis of evidence later shown to be questionable or false.

We are heartened by figures showing that Texas and Harris County juries are sending fewer defendants to death row. Once known as the death penalty capital of the United States, Harris County has relinquished that grim title in recent years. If Texas were a nation, it would have been among the top state executioners in the world in past decades, in the company of judicial pariahs like China and Iran.

And:

The accumulating evidence indicates that the current application of the death penalty in Texas involves an unacceptably high risk of killing innocent people. Yet even as the evidence of false convictions and wrongful executions piles up, only the participants at the base of the Texas criminal justice system, jury members, seem to be waking up to the reality of this evil.

Some opponents have called for a moratorium on executions in Texas until new, unspecified safeguards are in place to protect the innocent. Yet it's difficult to imagine a fail-safe route to execution.

Besides, we already have the ultimate safeguard on the books: the sentence of life without parole. Spending the rest of one's days in prison is as terrifying a deterrent to most people as quick execution. By ending state-sanctioned killing, in the future when a jury makes a mistake, resurrection won't be required to remedy it.

The Austin American-Statesman has long supported repeal of the death penalty in Texas on its editorial page.  In April 2007, the Dallas Morning News reversed its longstanding support for capital punishment and call for abolition, as noted here and here. 

Related posts are in the editorial index; more on the cases of Todd Willingham and Claude Jones, at the links.

Latest Development in the Green Case

Attorneys for John Green have issued a news release, "Unusual Alliance of Former Governors, Legislators, Law Enforcement, Former Judges and Prosecutors, Victims and Exonerees Urge Texas Court of Criminal Appeals to Allow Death Penalty Hearing to Proceed:  Nearly Sixty Prominent Individuals File Amicus Brief Citing Concerns with Wrongful Convictions in Texas Capital Cases." 

The amicus brief filed with the CCA is in Adobe .pdf format.

Here's the text of the news release:

Today, a diverse group of nearly sixty prominent individuals from Texas and across the country, including former governors, legislators, law enforcement, former judges and prosecutors, victims, Innocence Network projects, and death row exonerees, filed an amicus brief calling on the Texas Court of Criminal Appeals (CCA) to allow Harris County District Court to continue hearing evidence in Texas v. Green. The unusual alliance submitted the brief (attached) to bring to the attention of the Court their shared concern over the risk of wrongful convictions in death penalty cases. 
 
Earlier this month, the district court had begun a serious examination of the substantial risk of wrongful conviction in the John Edward Green capital case. Two days into the hearing, on December 7, the CCA agreed to reconsider a motion by the Harris County District Attorneys Office and halted the proceedings.
 
 “Wrongful convictions and the problems that underlie them are widely recognized and documented,” the co-signers of the amicus brief state. “[U]nless Texas addresses the proven causes of wrongful convictions, including eyewitness misidentification, faulty forensics, unreliable informant evidence, among other documented factors, the state runs the grave risk of executing an innocent person.”
 
The signatories include: three former governors, including Gov. Mark White (TX), Gov. Parris Glendening (MD) and Gov. Joe Kernan (IN); former prosecutors and law enforcement, including former Dallas Assistant District Attorney James A. Fry, who prosecuted an innocent man exonerated by DNA testing after 27 years, and former Texas Department of Public Safety Commander J. Patrick O’Burke; crime victims including Michele Mallin, who mistakenly identified Timothy Cole, who was posthumously pardoned this year by Governor Rick Perry; legislators, including Texas State Senator Rodney Ellis; and death row exonerees including Anthony Graves, who was freed from Texas’ death row in October after new evidence proved his innocence.
 
The brief is also co-signed by current and former attorneys general, police chiefs, judges and prosecutors from Texas and states across the country (the complete listing of signatories is in the attached brief).
 
Before the CCA stayed the hearing on December 7, the district court was prepared to hear testimony regarding the cases of Cameron Todd Willingham and Claude Jones, both executed for crimes that new evidence suggests they did not commit.
 
The brief cites a nationwide trend away from the death penalty due to concerns about wrongful convictions. The signatories are concerned that “confidence in the criminal justice system is shaken when problems go unaddressed,” and they urge the CCA to allow the district court hearing to continue.
 
“[We] submit that the critical hearing that had been evaluating the accuracy and fairness of the Texas death penalty be continued. The trial court is the appropriate venue for hearing live testimony and gathering evidence. [We] petition this court to ensure that the public is informed by continuing this hearing and thereby providing information access to the public about the actual operation of the death penalty.”
 
Since 1976, 138 people have been exonerated from death row nationwide. Twelve of them were in Texas. Furthermore, of the first 250 DNA exonerations (in capital and non-capital cases), 40 were in Texas. The Texas v. Green hearing would allow attorneys for Mr. Green to continue to present expert testimony and evidence regarding the substantial risk of wrongful conviction and wrongful execution in his case.

Earlier coverage begins with the post, "Clarence Brandley on the Harris County Hearing."

Death Sentences Plunge in Texas

That's the title of Allan Turner and Mike Tolson's report in today's Houston Chronicle.  It's subtitled, "Foes cite new law, DNA testing; backers blame judges, delays in executions."

Juries in Texas — the nation's most-active death penalty state — sentenced only eight killers to die this year, the lowest number since 1976 when the U.S. Supreme Court ended its ban on capital punishment. Seventeen killers were put to death in 2010, six fewer than last year for the lowest total since 2001.

So far this year, Harris County, which typically has led the state in assessing death sentences, has condemned two convicted killers.

The figures were released Monday in an end-of-year review of capital punishment by the Austin-based Texas Coalition to Abolish the Death Penalty. The report came just weeks after a poll by Washington, D.C.'s Death Penalty Information Center, an anti-capital punishment group, found that only a third of registered voters in death penalty states thought death is the most appropriate punishment for murder.

"It shows that Texas and the rest of the country are moving away from the death penalty, even in Harris County. It's an astonishing development," said coalition executive director Kristin Houlé.

Houlé attributed the drop to Texas' 2005 life without parole statute and to the high cost to counties of seeking the death sentence.

Also eroding support for capital punishment is DNA testing, which has led to the exoneration of scores of inmates convicted of serious crimes, said Richard Dieter, the Washington, D.C., group's director.

"It's not that (most) people are all or nothing about the death penalty," Dieter said. "They just have this growing sense of uncertainty. It's a slow wearing away of confidence ... a feeling that it is just too risky."

And:

This year, Harris County juries sent Garland Harper, convicted of stabbing his girlfriend and strangling her two daughters, and Mabry Landor, convicted of killing Houston police officer Timothy Abernethy, to death row. Juries in Dallas, Brazos, Nueces, Rusk and Travis counties also sentenced killers to death

Harris County District Attorney's spokeswoman Donna Hawkins said the county has averaged two death sentences annually since life without parole became an option. "While we cannot speak for other jurisdictions," she said, "Harris County has not seen a decline in death sentences.

Life without parole was added as a sentencing option in capital murder cases in late 2005. By then the decline in death sentences already had begun in Texas and elsewhere. During the heyday of capital punishment in Texas in the 1990s, it was not uncommon for Harris County to send four or five murderers to death row. In 1992, it was responsible for 10 of the state's 31 new death-row inmates. In the past three years, however, Harris County has totaled only three death sentences, and in 2009 it did not record one at all.

District Attorney Pat Lykos called the decision to seek a death sentence "the gravest and most profound decision that a district attorney makes."

"We will continue to seek the death penalty in appropriate cases," she said.

Since Texas' resumption of executions in 1982, 464 killers — 115 of them from Harris County — have been put to death. Currently, 105 Harris County killers await execution.

The Fort Worth Star-Telegram reports, "Texas death penalty sentences fall again, California picks up slack."  It's written by Aman Batheja.

Only eight people were condemned to death in Texas this year, the lowest level since the state reintroduced capital punishment in 1976, according to data in a new report from the Texas Coalition to Abolish the Death Penalty.

Texas juries have been opting for the death penalty less often in recent years, in part due to the introduction of life without parole as an option in 2005. Several Texas prosecutors have said they are now less likely to push for the death penalty.

Over the same period that Texas death sentences have fallen, California's rate of condemned has been rising. Last year, the Golden State sent 29 people to its San Quentin death row. Texas sent 9. This year, California juries have picked death 21 times as of Oct. 1.

Earlier coverage of the TCADP report, Texas Death Penalty Developments in 2010: The Year in Review, begins with the preceding post.

TCADP Releases 2010 Annual Report

The Texas Coalition to Abolish the Death Penalty has issued its annual report, Texas Death Penalty Developments in 2010: The Year in Review.  The report is available in Adobe .pdf format at the link.

TCADP has also issed a news release announcing the report, "Only 2% of Texas Counties Imposed Death Sentences This Year, According to New Report from TCADP.  Death sentences, executions drop in 2010 as concerns about reliability and fairness continue to plague Texas death penalty system."

Here's an extended excerpt from the release:

Death sentences in Texas have dropped more than 70% since 2003, reaching a historic low in 2010 according to the Texas Coalition to Abolish the Death Penalty’s (TCADP) new report, Texas Death Penalty Developments in 2010: The Year in Review. TCADP, an Austin-based statewide, grassroots advocacy organization, releases this annual report each December in conjunction with the anniversary of the resumption of executions in Texas in 1982.
 
Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976. These new sentences occurred in six counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis.
 
Recent sentencing trends illustrate the arbitrary and biased imposition of the death penalty. An analysis of data from 2007 to 2010 reveals that only 21 counties – 8% of the 254 counties in Texas – meted out death sentences over the last four years. Out of a total 43 death sentences imposed statewide between 2007 and 2010, Dallas County leads with seven, followed closely by Harris County, with six new sentences.  Bexar and Travis Counties each accounted for three new death sentences since 2007. Nearly three-fourths of all death sentences in Texas over the last four years have been imposed on people of color – 40% African American, 30% Hispanic/Latino, and 2% other.
 
As part of the report, TCADP has produced two interactive maps highlighting new death sentences by county from 2007 to 2010 and from 1976 to 2010. Clicking on each county reveals the total number of sentences, the number executed, the number awaiting execution, and the number exonerated. See below for links to each map.
 
The number of executions also dropped in 2010.  The State of Texas executed 17 people, the lowest number since 2001.  The state remains the nation’s leading executioner, accounting for approximately 37% of U.S. executions in 2010.  The number of executions in Texas this year represents a smaller percentage of the national total than it has in recent years, however.
 
“Texas – along with the rest of the nation – is moving away from the death penalty,” said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty.  “The system is broken beyond repair, and the continued decline in new death sentences shows that jurors and prosecutors in Texas are seeking other ways to address violent crime.”
 
Concerns about wrongful convictions and emerging evidence of wrongful executions dominated headlines this year.  On October 27, 2010 Anthony Graves walked out of the Burleson County Jail after spending 18 years in prison – including 12 years on death row – for a crime he did not commit. Prosecutors dropped all charges against Graves and declared him innocent after conducting their own investigation of the case.  His conviction was based on the testimony of Robert Carter, who was convicted and executed for the same crime in 2000 and who recanted several times, including from the gurney.  Anthony Graves is the 12th person in Texas to be wrongfully convicted and removed from death row and the 138th nationwide.

The ongoing inquiry into the case of Cameron Todd Willingham also underscored the fallibility of the system. Willingham was executed in 2004 for setting a fire to his Corsicana home in 1991 that killed his three young daughters. The Texas Forensic Science Commission admitted “flaws” in the science used to convict him. In January it will hold a special meeting with some of the fire experts who have examined the case since the time of conviction and concluded that there was no evidence to support the finding of arson.
 
In another case of “flawed” science, recent DNA testing of evidence that was used to convict and execute Claude Jones ten years ago this month revealed that the strand of hair belonged to the victim, not to Jones, as a forensic expert testified during his 1990 trial. While the DNA results do not exonerate Jones, they raise serious questions about the reliability of his conviction.
 
Other highlights of Texas Death Penalty Developments in 2010: The Year in Review include the following:
•    In three capital murder trials, juries rejected the death penalty and opted for a sentence of life in prison without the possibility of parole. Over the last three years, juries have rejected the death penalty in a dozen cases (two each in Travis and Bexar Counties).
•    Three inmates scheduled for execution in 2010 received last-minute stays; the execution date of another inmate was withdrawn. On March 24, Henry “Hank” Skinner received a stay from the U.S. Supreme Court shortly after eating his “last meal.” In October, the Court heard arguments to determine whether Skinner can seek access to post-conviction DNA testing through the federal Civil Rights Act.  Texas officials have refused to release key pieces of evidence gathered at the crime scene in 1993 for testing.
•    At least six inmates received reduced sentences in 2010 and were removed from the death row population, including several inmates whose death sentences were overturned because jurors did not hear mitigating evidence during their original trials. Three other inmates died in custody, including Ronald Chambers, who spent 35 years on death row and was awaiting a fourth sentencing hearing related to the 1975 murder of Mike McMahan.
•    A nationwide shortage of the first drug used in the lethal injection protocol, sodium thiopental, led some states to postpone executions as their supplies dwindle or expire.  In November, officials with the Texas Department of Criminal Justice revealed that they had enough drugs on hand to execute 39 people, but that doses of sodium thiopental will expire in March 2011.
•    There currently are 317 people (307 men and 10 women) on death row in Texas. Texas holds the third-largest death row population in the nation, after California (713) and Florida (393).

News coverage of the report will be in the next post.

Coverage of TCADP's 2009 report is at the link.  The Death Penalty Information Center issues an annual report focusing on national trends.  I expect it will be issued soon.  Coverage of the DPIC 2009 report is noted at the link. 

Related posts are in the reports index

Editorials From New Hampshire

"Abolish the death penalty," is the editorial in today's Concord Monitor.

Last week, after a year of testimony, public hearings and careful study, the state's 22-member Commission to Study the Death Penalty issued its report. By a 12-10 vote, the commission recommended neither to abolish the death penalty nor to act on pleas to expand it, but to leave things just as they are.

After 19 meetings and many hours of testimony, few if any of the commissioners appear to have changed their minds about capital punishment. Perhaps that's not surprising, given the emotional nature of the death penalty and the legal and moral complexities involved. So despite all the commission's work, not much was learned. In fact, recent evidence in one Texas murder case sheds more light about the wisdom of the death penalty than the commission's report.

One of the many arguments against the death penalty is its arbitrary nature. The outcome of a capital case can depend on the makeup of a grand jury and its willingness to indict; the ability of a prosecutor to exclude jurors opposed to capital punishment or even queasy about it; the resources available to the defendant; and the potentially unequal skills of prosecutors and defense lawyers.

Similarly, the outcome of a study commission can be heavily influenced by its makeup. The death penalty commission's conclusion was likely foreordained by the experiences and predispositions of those chosen to serve.

Of the 12 members who voted to retain the death penalty, five are current or former police officers, one was the father of a slain police officer, five are current or former prosecutors, and one was the relative of a murder victim.

The 10 votes for abolishing the death penalty came from a retired judge, three criminal defense lawyers, an environmental lawyer, a murder victim's son, a psychotherapist, a civil rights activist, a nonprofit organization executive, and a former attorney general.

And:

Though more than a score of death-row inmates have been found innocent in recent years, death penalty opponents have been hard-pressed to provide definitive proof that an innocent convict was executed. That no longer appears to be the case.

In Texas, a man accused of killing a liquor store clerk during a robbery was convicted based on the testimony of an accomplice and a hair sample collected at the scene. Four years after the execution of Claude Howard Jones, however, the accomplice said he lied. And last month, DNA analysis of the key hair sample proved that it did not come from Jones.

States are not infallible. A life wrongly taken by the state cannot be returned. But an innocent person serving life without parole can be freed. New Hampshire should join the states and the many nations that have progressed beyond capital punishment.

"Death penalty debate raises other concerns," is the editorial in Foster's Daily Democrat.

Commission member and former state Rep. Renny Cushing begin_of_the_skype_highlighting     end_of_the_skype_highlighting was among the minority who would have preferred to eliminate the death penalty in New Hampshire.

He recently told the Portsmouth Herald that at the end of the day, the death penalty is not about those who kill, it is about society.

"We, as a society, become what we abhor: killers," said Cushing, whose father was shot to death two decades ago. "I don't want the state killing in my name."

It can be argued that it is not the state who chooses to kill. Rather that it is the killer who chooses to sacrifice his or her own life.

But philosophy aside, Cushing rightfully casts a light on the often ignored side of the death penalty.

Ending a life of a murderer, no matter who they kill, only addresses a small portion of the damage exacted on those impacted by the crime.

Cushing, executive director of Murder Victims' Families for Human Rights, an advocacy group, is correct when he argues that the needs of victims far exceed the ability of the death penalty to address.

But Foster's Daily Democrat disagrees that offering greater help to victims needs to be an either or matter.

And:

For some, the death penalty does provide a level of comfort, of relief, of closure. And for those never directly impacted by murder, it signals a commitment by society to go the ultimate distance in penalizing someone who wantonly kills.

Some see that as retribution. Others argue that it usurps a right that should only be left to God.

But in a Democratic republic that values separation of church and state, the latter judgment must wait for another day. Meanwhile, the immediate judgment of the commission on which Cushing serves should hold sway.

Earlier coverage of the New Hampshire Commission begins at the link; related posts are in the study commission index.

Claude Jones' Ashes

"A brother's last wish: 10 years after his execution, Claude Jones' ashes are laid to rest amid new questions about his guilt," is the title of Cindy Horswell's report in today's Houston Chronicle.

For 10 years, Travis Jones faithfully carried the ashes of his brother, who he believed had been wrongfully executed in Texas, in a box with him most everywhere he went.

That box, which became Jones' constant companion, was finally lowered into a grave at White Oak Cemetery in Porter on Tuesday. It marked the 10th anniversary of his brother Claude Jones' execution. That was just as Claude wanted, a last wish that some family members initially viewed as "crazy" but now see as prophetic.

Until his last breath, Claude, a 60-year-old career criminal, denied being the one who entered a San Jacinto County liquor store in 1989 to fatally shoot and rob the owner, Allen Hilzendager.

Before the execution, Jones told his younger brother, Travis, that he did not want to be buried in a cemetery in Huntsville with other killers and rapists. He asked his brother to sprinkle a small portion of his ashes in

three spots: the Gulf waters in Kemah, his mother's grave in Houston and his ex-wife's grave in Humble, but then preserve the rest for 10 years.

"My brother promised 'all would come out good' after that. Good things would happen," said Travis, saying his brother refused to explain further and just repeated that things would turn out "good." "He'd gotten kind of religious. I don't know if he'd had some kind of vision or dream or what."

But a few weeks before the 10th anniversary of the execution, new DNA testing has raised questions as to whether Claude was innocent. Mitochondrial DNA tests determined a strand of hair — which had been the only physical evidence linking Claude to the crime scene - actually belonged to the murder victim instead.

And:

Travis Jones, 58, a carpet installer now living in Miami, was the only one of Claude Jones' seven brothers to attend the execution.

Neither Travis nor Claude's other six brothers had ever been in trouble with the law. For about 20 years, Claude's brothers lost track of him after he stormed out of the house as a teenager. He was the admitted black sheep of the family who ran with a rough crowd and had gotten hooked on drugs and alcohol, the family said.

In 1975, Travis decided to hunt down the oldest brother, Claude, after losing two younger brothers - one to leukemia and another who was fatally run over by a motorist. He found Claude in prison.

"We grew very close," said Travis, who lost his home and went into debt to cover his brother's legal expenses and his own transportation costs to regularly visit him in prison.

Even as Claude faced his death, he didn't waver over his innocence.

"He said that he'd die and go to hell before confessing to something he didn't do," Travis said. "But he never pretended to be a saint."

From age 19, Claude spent most of his life behind bars. Yet he admitted committing only one murder - when he set a fellow inmate on fire whom he accused of trying to rape him.

Every year, the Dallas Morning News editorial board selects a Texan of the Year.  Columnist Steve Blow has offered up his suggestion, "Steve Blow's Texan of the Year pick: Wrongly executed man showed fatal flaw in capital punishment."

My Dallas Morning News Texan of the Year is dead. And you killed him.

So did I – and all other Texans. Together, we took the life of Claude Jones in a Huntsville execution chamber on Dec. 7, 2000. And now we know we were wrong in killing him.

Jones, 60, was executed for the robbery and murder of a liquor store owner in 1989.

Let it be stipulated: Jones was a sorry human being and a lifelong criminal.

But that's beside the point. What is important is that we erred in executing him. It shouldn't have happened.

Jones' alleged accomplices testified against him. But under Texas law, accomplice testimony alone isn't enough for a conviction. It must be backed by other evidence.

And in Jones' case, that was a single strand of hair found at the crime scene. A forensic expert examined it by microscope and testified that the hair could have come from Jones but not the store owner.

But a DNA test performed earlier this year revealed that the strand of hair was not Jones'. His conviction and execution rested on false evidence.

But our system failed him twice.

As his execution date neared, Jones asked the governor's office for a 30-day reprieve to allow DNA testing. George W. Bush was governor at the time and had granted such requests.

But Bush's staff failed to include the crucial DNA request in briefing papers. He denied a reprieve.

So 10 years ago this week, we wrongly killed a man.

Earlier coverage of Claude Jones begins with the post, "Taking Notice of Texas and Claude Jones."

Taking Notice of Texas and Claude Jones

Today's Philadelphia Inquirer carries the editorial, "Kill the Death Penalty."

The wrongful execution of a man in Texas is just the latest case that argues against the use of the death penalty.

Claude Howard Jones was executed in December 2000 after being convicted of murdering a liquor store clerk during a robbery.

Prosecutors argued that Jones shot the clerk using a gun owned by Timothy Jordan, while a third man waited in a pickup truck. Jordan testified against Jones and received a reduced sentence.

The other key evidence used at trial to convict Jones involved hair samples collected by police at the crime scene.

A chemist from the Texas Department of Public Safety testified that the hair fragments could have belonged to Jones. A sample of Jordan's hair was never tested.

Jones, who always maintained his innocence, appealed his conviction. The appeals court ruled 3-2 to uphold the conviction. The majority cited the hair sample as critical evidence, while the dissenting judges said there was insufficient evidence to justify a murder conviction.

Four years after Jones was executed, Jordan recanted his testimony and said he testified in order to receive a reduced sentence.

Last month, DNA testing of the hair from the crime scene showed that it did not belong to Jones. A report last year by the National Academy of Sciences raised questions about the reliability of the type of hair analysis used to convict Jones.

Without the physical evidence, the only thing prosecutors had going for them at trial was the testimony of the codefendant Jordan. Texas law says such testimony is insufficient to prove guilt.

In the end, Jones was convicted and put to death based on faulty evidence. That is the worst possible miscarriage of justice.

And:

New Jersey and several other states have wisely done away with the death penalty. Pennsylvania should do the same.

Just knowing that the wrong person can be, and has been, executed is more than enough reason to eliminate the death penalty.

Earlier coverage of Claude Jones begins with this post.

Reforms Needed to End Injustices

That's the title of an editorial in today's San Antonio Express-News. 

A strand of hair was the single piece of evidence linking Claude Jones with a 1989 murder that took place in Point Blank, north of Houston. By the forensic standards of the day, the hair was a match — enough to put Jones on death row. And it was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to keep him there.

The strand of hair had, however, never been tested for a DNA match with Jones — until last month, when a lab in Pennsylvania found conclusive evidence that the DNA in the hair matched the murder victim, not Jones.

That would be good news for Jones, if he were still alive. The state of Texas executed him on Dec. 7, 2000, with Jones maintaining his innocence.

And:

A statute that allows post-conviction DNA testing took effect in Texas in 2001. More reforms are needed.

At the state level, the Tim Cole Advisory Panel on Wrongful Convictions — named after another man who died while serving time for a crime he did not commit — has made 11 recommendations to the Legislature. They include the establishment of uniform policies for eyewitness identification, recording interrogations, legal discovery proceedings and post-conviction proceedings, as well as the creation of a Texas Innocence Commission.

At the national level, a bipartisan bill in the Senate would create a National Criminal Justice Reform Commission. The commission would identify best practices in the states that protect the innocent and enhance public safety.

There are now enough cases to demonstrate that injustices occur even in the most serious cases that supposedly have the most safeguards. Correcting those injustices should be a state and national priority.

More on the Claude Jones case at the link.  Earlier coverage of the Timothy Cole Advisory Panel on Wrongful Convictions begins with this post.  The panel's the Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.

Claude Jones - Looking Backwards, Looking Forward

"The DNA non-redemption," is the title of a Los Angeles Times editorial.  It appeared in the Saturday edition.

In 1990, a Texas jury convicted Claude Jones, a career criminal, of murdering Allen Hilzendager.

Jones and another ex-convict, Danny Dixon, had stopped their truck at Hilzendager's liquor store in Point Blank, Texas. One of the men got out, entered the store and shot Hilzendager. Jones blamed Dixon and Dixon blamed Jones, but Jones was eventually convicted of pulling the trigger on the basis of one person's testimony (subsequently recanted) and on one piece of physical evidence: a strand of hair found inside the store and identified as Jones' by a crime lab expert. That hair tipped the balance between life and death, because Texas law requires corroborating physical evidence in a capital case. Dixon is serving a life sentence; Jones was put to death in 2000.

This month, however, a DNA test determined that the hair did not belong to Jones after all; it belonged to the victim. With no physical evidence, there is now no legal basis for Jones' death sentence.

Some may argue that this miscarriage of justice was an aberration. But Texas' rapid pace of executions, coupled with its abysmal standards for effective representation for defendants, have long made the likelihood of wrongful executions exceedingly high. The state offers a prime example of why the death penalty, which requires 100% accuracy, is so difficult to mete out fairly.

Innocence Project Co-Founder Barry Scheck wrote the OpEd, "Capital Punishment and Human Fallibility," for the weekend edition of the Wall Street Journal.

On Friday, Dec. 7, 2000, as the world waited for a decision from the Florida Supreme Court on whether the recount of that state's presidential ballot should continue, Texas Governor and soon-to-be President George W. Bush was provided with a final memo from his Counsel's Office on the fate of death-row inmate Claude Jones.

He was advised to reject Jones's application for a 30-day reprieve because there was "no doubt about guilt." Jones had received "full and fair process" in the courts, and "Jones' hair matched a hair found at the crime scene."

Incredibly, Mr. Bush was not told that lawyers for Jones had requested the 30-day reprieve so that a mitochondrial DNA test could be performed on this hair, the key piece of evidence in the case and the only piece of physical evidence tying him to the crime scene. Jones was executed by lethal injection that day.

Earlier this month, after six years of litigation, that hair was finally tested. On Nov. 11, Mitotyping Technologies, a private lab in State College, Pa., found that it did not come from Claude Jones, but from the victim of the crime. If this DNA test had been done in December 2000, Claude Jones would not have been executed, and his conviction would likely have been reversed.

The case might have been dismissed altogether because the hair "match" was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to meet a requirement of Texas law that the accomplice testimony used to convict Jones be corroborated.

And:

There is growing bipartisan recognition that there are a set of reforms that can make the criminal-justice bureaucracy more accurate, accountable and cost-effective. We can learn from our mistakes, including those made in the hours before Claude Jones's execution. Sen. Jim Webb (D., Va.), along with 39 co-sponsors including Sens. Lindsey Graham (R., S.C.) and Orrin Hatch (R., Utah), is sponsoring a bill already approved by the House to establish a National Criminal Justice Reform Commission.

The Webb bill would lay out a blueprint of best practices that have proven effective, including ways to reduce prison populations without endangering public safety and investigative procedures that protect the innocent while enhancing the capability of law enforcement to apprehend the guilty. And it would also help prevent wrongful convictions, including in death-penalty cases, by evaluating past procedures and recommending improvements and guidelines. But if the bill is not passed in this brief lame-duck session, it will almost certainly perish, another casualty of partisan gridlock.

Earlier coverage of the Claude Jones case begins with the post, "Why the Claude Jones Case Matters."

Why the Claude Jones Case Matters

Texas Observer editor Bob Moser posts, "Blood on Our Hands: Why the Jones Case Matters.  What the DNA results tell Texas citizens—and journalists."

On Friday morning in Houston, I spoke at a news conference discussing the upshot of the Observer's successful lawsuit to preserve and test DNA evidence that might have posthumously exonerated Claude Jones, who was executed on Dec. 7, 2000. Former Gov. Mark White, Innocence Project director Barry Scheck, and attorneys from Mayer Brown, the firm that won the suit, also addressed the media along with Jones' son, Duane.

As Dave Mann has reported, the DNA evidence didn't prove Jones' innocence—but it did show that he was convicted, and executed, based on false evidence. And documents dredged up by the lawsuit showed that Gov. George W. Bush, making his last decision on an execution in Texas, was not informed that Jones was requesting DNA testing that might exonerate him.

With two Texas executions—Jones' and Cameron Todd Willingham's—now known to have been based on false forensic evidence and mishandled by the state, every citizens' conscience should be shaken to the core, no matter their opinion on the death penalty. We can all agree, surely, that the highest punishment should be reserved for those who are guilty beyond the shadow of a doubt. In Texas, we now know, that fundamental moral and ethical standard has not applied.

Moser's full statement is at the link, and it's a must read.

Wichita Falls Times Record News editor Deanna Watson's latest column is, "Our flawed justice system."

Even if there is one death-row inmate awaiting his or her fate, just one with a sliver of doubt, we must not take that risk.

We must be sure.

Even of you’re a strong proponent of the death penalty — or even a wavering one who sees Jones as the poster child for eye-for-an-eye — this must give you pause.

The state of Texas executed a man who may have been innocent. Killing one innocent person in the process of killing another 99 is a risk we should not take — or, at the very least, not take lightly.

Ta-Nehisi Coates notes the case in his post, "More Texas Justice," this morning at the Atlantic.  Earlier coverage begins with this post.

Claude Jones News Conference - Expanded Coverage

"Texas should overhaul death penalty laws, lawyer says," is the title of the AP report by Michael Graczyk, via the Austin American-Statesman.

The execution of a Texas man whose plea for DNA testing was ignored shows procedures and laws covering capital punishment need to be changed, a leading anti-death penalty lawyer said Friday.

Innocence Project co-founder Barry Scheck said the execution of convicted murderer Claude Jones 10 years ago took place only because then-Gov. George W. Bush wasn't told by his legal team that Jones' lawyer was seeking DNA testing on a piece of hair used to convict him.

"I have great hopes that when President Bush reviews this case he will acknowledge what I think is obvious here, and that is that he was blindsided, he was misled, and he would have granted that DNA test to Claude Jones and everything would have been different for Claude Jones."

Bush's office has declined to comment on the case.

Bush's former spokesman, Scott McClellan, said Friday that Bush would typically ask two questions in execution cases.

"Did the defendant have full access to the courts, and was there any doubt about his or her innocence," said McClellan, who said he had no involvement in the Jones case.

Jones' execution was the 40th and last of the year 2000 in Texas — a record that still stands in the nation's busiest death penalty state. Earlier that year, Bush, who was running for president at the time, used his authority as governor to give another condemned inmate a 30-day reprieve for DNA testing. Those tests confirmed the evidence, and the prisoner was executed.

Scheck said that earlier decision from Bush convinced him the governor also would have stopped Jones' punishment if his staff had accurately told him about the DNA request. Documents obtained by attorneys working for the Innocence Project showed Bush was told Jones' guilt "is not in doubt" and that the prisoner had "full and fair access to judicial review of his case."

"We know that's not true," Scheck said.

The piece of hair was the only physical evidence prosecutors used to tie Jones to a fatal shooting during the robbery of an East Texas liquor store in November 1989. Because the DNA test showed the hair did not come from Jones, the evidence used to convict him was insufficient under Texas law, Scheck said.

The Houston Chronicle reports, "Questionable capital cases raise hopes for reform," by Allan Turner and Mike Tolson.

It was, at the very least, an odd political sight: former Texas Gov. Mark White, who had sent almost a score of killers to their executions, rubbing shoulders with New York lawyer Barry Scheck at a downtown press conference.

Scheck is co-director of the Innocence Project, an organization whose goal is to free the incarcerated innocent — and to achieve at least a temporary halt to executions in the United States.

Uniting these unlikely allies was this week's revelation through DNA testing that key evidence that led to the execution of career criminal Claude Jones for a 1989 San Jacinto County robbery-murder was faulty.

White, who insists he never sent an innocent man to his death, termed the events leading to Jones' 2000 execution "every governor's worst horror," and called on the coming Legislature to implement wide-ranging changes in the way courts and governors handle death cases.

Foes of capital punishment believe the cases of Jones, executed after then-Gov. George Bush was given an incomplete report about the career criminal's request for a stay, and Cameron Willingham, who was executed in 2004 on the basis of flawed investigations of a Corsicana house fire in which his three children died, will galvanize legislators and the public to demand reform.

Adding fuel to incipient anti-death penalty fervor, they believe, is the recent case of Anthony Graves, who was exonerated after spending 18 years on death row for a Brenham-area murder he did not commit.

"It's just mind-boggling," said Houston state Sen. Rodney Ellis, who as acting governor oversaw three executions while Bush was on the presidential campaign trail.

Ellis is optimistic that legislators will enact "common-sense reforms" to improve eyewitness identification procedures, record interrogations and provide more money for indigent defense programs.

"All people are imperfect," said Rick Halperin, director of Southern Methodist University's Embrey Human Rights Program, "and the systems that people design are imperfect. There is no such thing as a perfect criminal justice system."

While capital punishment reform is "frustratingly slow," he acknowledged, "Texas in 2010 is vastly different than it was in 1990. As people become better educated, we have this evolving standard of decency."

Five years ago, Texas offered capital juries the option of assessing convicted killers life without parole.

Major Texas newspapers, including the rock-ribbed conservative Dallas Morning News, have weighed in against capital punishment. Significantly, prosecutors have moved away from seeking death sentences.

This year, Harris County prosecutors sought - and juries awarded - death in just two cases.

Rob Owen, director of the University of Texas' capital punishment clinic, agreed with Halperin.

"There's inevitably more public skepticism about a system that has produced these highly publicized mistakes," Owen said.

The Jones case was the latest in a series that have raised questions about capital punishment.

At Daily Kos, MeteorBlades posts, "Executing the Innocent."

"Unbelievable" that they failed to inform the governor in this matter? "Lapses"? Obscenely predictable is more like it. Perfectly believable given Texas's long record of fighting against appeals in which defense attorneys actually fell asleep in trials in which their clients were convicted and sentenced to death. This is, after all, the third instance this year in which someone convicted of a capital crime in Texas was discovered to have been wrongly executed, very likely to have been wrongly executed, or exonerated and freed.

Commenting last month on the latter case, Gov. Rick Perry said it just goes to show the system is working.

Scheck has to be diplomatic in his public statements, and he certainly was in his response to Perry's claims:

“Each of these exonerations, particularly when someone’s on death row, are very important learning moments on how to figure out what went wrong and change the system,” Scheck said. “If the conclusion you reach is that a near miss like this means that the system is working, then you don’t understand the problems with the system. It’s sticking your head in the sand.”

The governor's head is stuck somewhere light does not penetrate all right, but it's not in the sand.

Earlier coverage begins with this post.  Dave Mann's exclusive first report is, "DNA Tests Undermine Evidence in Texas Execution:  New results show Claude Jones was put to death on flawed evidence."

Innocence Project News Conference

Here are the initial news accounts.

"Innocence Project: Overhaul death penalty laws," is the first AP report, via Google News.  There is a photo gallery, as well.

A leading anti-death penalty lawyer says the execution of a Texas man whose plea for DNA testing was ignored shows procedures and laws covering capital punishment need to be changed.

Innocence Project co-founder Barry Scheck said Friday in Houston that the execution of convicted murderer Claude Jones 10 years ago took place only because then-Gov. George W. Bush wasn't aware Jones' lawyer had asked for DNA testing on a piece of hair used to convict him.

Bush's office has declined to comment on the case.

The hair was the only piece of physical evidence tying Jones to the 1989 killing. Recent tests have shown it wasn't Jones' hair.

KTRK-TV posts, "Man's execution questioned by Innocence Project," by Cynthia Cisneros.  It includes video.

Barry Scheck, co-founder of the Innocence Project, came in person to discuss the case, along with former Texas Governor Mark White, who worked on this case as well.

The new DNA testing revealed evidence used to convict Jones -- a single strand of hair, says Scheck -- did not belong to Jones. The hair was considered key evidence in Jones' original trial. The only other evidence linking Jones to the crime was the testimony of a co-defendant, Timothy Mark Jordan, who later admitted he lied about Jones' involvement.

The post-execution DNA test on the hair was brought about by the Innocence Project. It's too late to help Jones' case, however, his son Duane Jones hopes this case will become a catalyst for change.

Duane said, "The true closure will be when the justice system is improved and brought into the 21st century and takes advantage of all the recognized science and information, technology and all the different things. The way that the system works now is archaic."

That sentiment echoes what Scheck said about the criminal justice system in the state of Texas. He leveled some harsh criticisms this morning and talked about some of the changes he would like to see made.

Finally, the Houston Chronicle has posted video of the news conference on its site, as well.

Earlier coverage begins with, "Claude Jones Case - Additional News Coverage.

Claude Jones Case - Additional News Coverage

The Innocence Project is holding a news conference this morning.  I'll post coverage as soon as it becomes available. The Innocence Project has also posted this timeline of the case.

If you haven't already read Dave Mann's exclusive "DNA Tests Undermine Evidence in Texas Execution:  New results show Claude Jones was put to death on flawed evidence," you'll want to.

The latest version of the AP report by Jeff Carlton is, "Test finds hair in murder case doesn't match," via the Fort Worth Star-Telegram.

When career criminal Claude Jones was condemned after a robbery and slaying in 1989 at a San Jacinto County liquor store, a single hair was the only physical evidence linking him to the crime scene.

In the weeks before his execution on Dec. 7, 2000, his appellate attorneys asked for a reprieve to get DNA testing of the hair. But then-Gov. George W. Bush's staff didn't pass the request along to Bush, who was in the midst of a historic presidential ballot-counting dispute.

On Thursday, the Innocence Project and The Texas Observer magazine announced the results of recent DNA tests on the hair: It did not belong to Jones.

Barry Scheck, co-founder of the Innocence Project, said the analysis doesn't prove that an innocent man was executed. But, he said, it means the prosecution's evidence was not sufficient for a conviction under Texas law.

"There was not enough evidence to convict, and he shouldn't have been executed," Scheck said.

Jones' execution date arrived in the closing weeks of Bush's term as governor and as the nation focused on the recount of Florida ballots, which ended with Bush being elected president.

Jones' lawyers pressed Bush's office for permission to do a DNA test on the hair. But the briefing papers that his staff passed on to Bush didn't include that request, and Bush denied Jones a reprieve, according to documents obtained by the Innocence Project.

Scheck said he believes "to a moral certainty" that Bush would have granted a 30-day stay had he known.

"It is absolutely outrageous that no one told him that Claude Jones was asking for a DNA test," Scheck said. "If you can't rely on the governor's staff to inform him, something is really wrong with the system."

Today's Houston Chronicle carries, "Hair casts doubt on executed man's guilt," reported by Allan Turner, Cindy Horswell, and Mike Tolson.

A strand of light-colored hair prosecutors insisted linked career criminal Claude Jones to the robbery-murder of a San Jacinto County liquor store owner likely came from the victim, not from the accused killer, DNA testing revealed on Thursday.

The new DNA testing came one decade after Jones' lawyer filed an unsuccessful execution-eve plea to then-Gov. George Bush to grant a 30-day stay so that such high-tech testing could be performed.

Jones, 60, was executed on Dec. 7, 2000, for the November 1989 murder of Allen Hilzendager during the stickup of a Point Blank package store.

Jones consistently maintained that he was innocent of the crime.

The tests do not offer conclusive proof of Jones' innocence, but raise questions about his conviction, which was largely based on the hair fragment, the only physical evidence against him.

Thursday's announcement came as vindication to Jones' son, Houston associate engineer Duane Jones, 50, who was reunited with his father only after the elder man found himself on death row.

"I was 98 percent sure of what he was telling me," Duane Jones said of the convicted killer's claim of innocence, "but now I believe him 100 percent. He was railroaded. He did not shoot that man. I think not only am I owed an apology, but so is everybody in the whole state of Texas."

Bush's decision to reject Jones' plea for a 30-day reprieve the day before he was executed followed the recommendation of his staff counsel Claudia Nadig, whose confidential report to the governor made no mention of the condemned man's request for DNA testing, despite that being the reason a stay was sought by Jones' lawyers.

"Texas: DNA Test Disproves Evidence in Death-Penalty Case," is the title of Nathan Thornburgh's post at Time.

For over two decades, the hair was stored in a plastic evidence bag in the courthouse in Coldspring, Texas, cataloged as belonging to Claude Jones, who was convicted of murder in 1990 and executed 10 years later. Now, it can be relabeled: a court-ordered DNA test found Thursday that the hair actually belonged to the murder victim Allen Hilzendager. The result casts significant doubt on the validity of Jones' conviction and his execution.

That single 1-in. (2.5 cm) strand of hair was the key to Jones' original conviction. A truck carrying Jones and Danny Dixon did pull up in front of Hilzendager's liquor store that night. One man got out, went inside and gunned Hilzendager down, according to two eyewitnesses across the highway (neither could see the murderer's face). Both Jones and Dixon were certainly capable of the crime — both were on parole after serving time for murder. But there was little other firm evidence of which one had done it. Dixon accused Jones, and Jones accused Dixon. The prosecution's star witness against Jones was a friend of Dixon's who later said that prosecutors had coerced him into testifying.

And from the beginning, the evidence was handled questionably. The hair expert at the Texas crime lab originally thought the small sample was "unsuitable for comparison" using the microscopy technology available at the time, but eventually changed his mind and decided to test it after all. Using that outdated technology — which essentially has two hairs examined side by side under a microscope — the expert then determined that the hair belonged to Jones and not Dixon.

That dubious determination went on to haunt all of Jones' failed appeals as well. Time and again, lawyers and judges pointed to the physical evidence against Jones as a damning factor.

Except, in the end, it wasn't. The fact that the hair was actually Hilzendager's doesn't mean that Jones was necessarily innocent, but it does mean that the jury convicted him — and did so quickly — based largely on false evidence. "What's crucial to understand is that the hair was critical evidence in the case," says Barry Scheck, whose Innocence Project, along with the Texas Observer, led the lawsuit demanding that the hair be subjected to DNA testing. "I have no doubt the conviction would've been reversed with these results."

In May, Thornburgh wrote, "In Texas, Seeking the Truth About an Executed Man," for Time.

USA Today has, "DNA test casts doubt on guilt of Texas man executed after 2000 vote," by Michael Winter.

The DNA test on a single strand of hair — the only physical evidence linking Claude Jones to a deadly 1989 liquor store robbery — determined that it may have come from the victim, Allen Hilzendager, who was shot three times outside the town of Point Blank.

Jones, a career criminal, had asked Bush's office for a DNA test but Bush's staff did not include that request in briefing papers they gave him before he denied a reprieve, according to state documents obtained by the Innocence Project. Jones was executed Dec. 7, 2000.

A spokesman for Bush, who is on a book tour, did not immediately respond to AP's request for comment.

A Texas judge approved the DNA testing this past June.

"Doubt cast on executed man's guilt," is the UK Press Association report.

As the execution drew near, Jones was pressing the governor's office for permission for a DNA test on the hair. But the briefing papers Mr Bush was given by his staff did not include the testing request and Mr Bush denied a reprieve, according to state documents obtained by the Innocence Project.

Mr Scheck said he believed "to a moral certainty" that Mr Bush would have granted a 30-day reprieve had he known Jones was seeking DNA testing.

"It is absolutely outrageous that no-one told him that Claude Jones was asking for a DNA test," Mr Scheck said. "If you can't rely on the governor's staff to inform him, something is really wrong with the system."

Mr Bush had previously shown a willingness to test DNA evidence that could prove guilt or innocence in death penalty cases. Earlier in 2000, he had granted a reprieve to a death row inmate so Mr Scheck and other lawyers could have evidence tested. The test confirmed the man's guilt and he was executed.

Earlier coverage begins with, "Claude Jones' Other Shoe Drops," and is available throught the Claude Jones index.

Claude Jones' Other Shoe Drops

The Texas Observer has just posted its exclusive news article, "DNA Tests Undermine Evidence in Texas Execution:  New results show Claude Jones was put to death on flawed evidence."  It's written by Dave Mann.

Here's an extended excerpt from the beginning of this must-read:

Claude Jones always claimed that he wasn’t the man who walked into an East Texas liquor store in 1989 and shot the owner. He professed his innocence right up until the moment he was strapped to a gurney in the Texas execution chamber and put to death on Dec. 7, 2000. His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones.

But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. The day before his death in December 2000, Jones asked for a stay of execution so the strand of hair could be submitted for DNA testing. He was denied by then-Gov. George W. Bush.

A decade later, the results of DNA testing not only undermine the evidence that convicted Jones, but raise the possibility that Texas executed an innocent man. The DNA tests—conducted by Mitotyping Technologies, a private lab in State College, Pa., and first reported by the Observer on Thursday—show the hair belonged to the victim of the shooting, Allen Hilzendager, the 44-year-old owner of the liquor store.

Because the DNA testing doesn’t implicate another shooter, the results don’t prove Jones’ innocence. But the hair was the only piece of evidence that placed Jones at the crime scene. So while the results don’t exonerate him, they raise serious doubts about his guilt. As with the now-infamous Cameron Todd Willingham arson case, the key forensic evidence in a Texas death penalty case has now been debunked.

“The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong,” said Barry Scheck, co-founder of the Innocence Project, in a statement. “Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”

Jones was 60 years old when he was executed on December 7, 2000—the last man put to death by then-Gov. Bush. The Observer and three innocence groups recently obtained the hair after a three-year court battle and submitted it for mitochondrial DNA testing.

That technology didn’t exist when Jones was convicted in 1990. But the DNA test had been developed by 2000, when Jones’ execution date was nearing. He requested a stay of execution from two Texas courts and from the governor’s office in order to test the hair evidence and prove his innocence. His requests were all denied.

Earlier coverage begins with the post, "Additional News Coverage of Claude Jones Case."

Read more about the Observer's initial involvement in the case in:

• Coverage of Claude Jones Evidence Issue
• Texas Observer & Innocence Projects Seek DNA Testing

All Todd Willingham coverage is at the linked category index.

Additional News Coverage of Claude Jones Case

"Judge orders DNA testing for man executed in 2000," is the title of Cindy Horswell's report in today's Houston Chronicle.

Claude “Butch” Jones’ last request before his execution just before Christmas 10 years ago was an emotional telephone call to his son in Houston who had never known his father until they were reunited on death row.

The son, Duane Jones, now 49, remembers pointedly asking his father whether he had robbed and murdered the liquor store owner in San Jacinto County.

“I told him he had nothing to lose by telling the truth now,” Duane Jones said. “But my father continued to remain adamant that he didn’t do it.”

While the younger Jones, an associate engineer, thought his father was being truthful, he could never be certain — but now that may change.

Visiting Judge Paul C. Murphy this week ordered testing of a strand of hair from Claude Jones’ case that death penalty opponents believe might provide the first DNA proof that an innocent man was executed.

Murphy issued a summary judgment in favor of the New York-based Innocence Project and The Texas Observer, an Austin newsmagazine, which three years ago petitioned to do mitochondrial DNA testing on a hair fragment recovered from the counter of Zell’s liquor store in Point Blank, about 65 miles north of Houston.

San Jacinto District Attorney Bill Burnett, who had assisted in the prosecution and died this month from pancreatic cancer, blocked the hair’s release. He argued state law provided no legal avenue for him to relinquish the 1-inch strand after Claude Jones’ death.

Neither Burnett’s attorney, David Walker, nor the first assistant, Jonathan Petix, who has temporarily replaced Burnett, could be reached for comment on whether they will appeal.

Meanwhile, the younger Jones remains guardedly optimistic.

“It would mean a lot to me to know the truth, but it is really more important or paramount that the justice system know the truth,” he said. “If our state is going to be the execution capital of the free world, then it needs to be above reproach.”

In 2000, Claude Jones was the 40th and last person executed in Texas that year, which set a national record.

Duane Jones’ does not see himself as a so-called bleeding-heart liberal opposed to the death penalty, as his own family knows what it’s like to be a crime victim. He survived a bullet to the back of his head during a robbery in 1986, and his wife was the target of a home invasion just two months ago.

The latest AP filing is "Texas judge orders DNA test decade after execution," written by Jeff Carlton.

For the second time in a year, the guilt of an inmate executed in Texas is in doubt after a judge ordered DNA testing on a strand of hair that was the only physical evidence linking a man to the murder for which he was killed 10 years ago.

Judge Paul C. Murphy ordered testing done on a 1-inch-long strand that helped prosecutors convict Claude Jones of capital murder in the 1989 shooting death of liquor store owner Allen Hilzendager near Point Blank, about 75 miles north of Houston.

"This is a DNA test that could prove someone was wrongly executed," said Barry Scheck, the co-director of the Innocence Project, a New York-based legal center that helped ensure the preservation of the strand of hair.

Jones, a career criminal and paroled murderer, always insisted he was innocent. He died in 2000, the last of 40 inmates executed in Texas that year and the last of 152 inmates put to death during former President George W. Bush's time as governor.

Murphy, a retired appellate judge assigned to the case, ordered the test Friday. In April in a separate case, a state forensics panel renewed its review of a questionable arson finding that led to the 2004 execution of Cameron Todd Willingham, who was convicted of setting the fire that killed his three children.

According to the Innocence Project, Texas leads the nation with 40 DNA exonerations. Gov. Rick Perry issued the state's first posthumous pardon of a DNA exoneree in March. Tim Cole, wrongly convicted of a 1985 rape, died in prison of complications from asthma in 1999.

In Jones' case, a hair analysis expert linked the strand to Jones at his trial. The other primary evidence was testimony from an accomplice, who later acknowledged in an affidavit that he had no firsthand knowledge of the killing and said he testified against Jones to get himself a lighter sentence.

The single strand of hair allegedly belonging to Jones inexplicably survived, although it was supposed to have been destroyed years ago after the case was resolved. In 2007, a state district judge ordered it preserved to leave open the possibility of DNA testing after the Innocence Project, other innocence groups and The Texas Observer, a biweekly magazine, sought a temporary restraining order preventing its destruction.

And:

The hair must be transferred to a laboratory within 60 days, according to the order. The tests could link the hair to Jones, one of his alleged accomplices or the victim. It also could be a stray hair.

Scheck said if the test proves the hair did not come from Jones, it will show the state had no grounds on which to convict. In Texas, a defendant cannot be convicted on the testimony of an accomplice unless there is corroborating evidence, he said.

The Dallas Morning News runs the AP item, "Update: Executed man's case reviewed."

Earlier coverage of the case begins with this post.

All Willingham coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the case with links to all relevant documents.

Claude Jones

Dave Mann posts, "DNA Could Show If Claude Jones Was Wrongly Executed," at the Texas Observer.

A state district judge has ordered East Texas prosecutors to hand over key evidence from a 1989 murder case to the Innocence Project and The Texas Observer for DNA testing—analysis that may prove for the first time that Texas executed an innocent man.

The Innocence Project and the Observer filed suit in 2007 to obtain a strand of hair from the scene of a homicide 21 years ago at a liquor store in San Jacinto County. The one-inch hair was key evidence that supposedly implicated Claude Howard Jones in the killing. Jones was put to death on Dec. 7, 2000—the final execution overseen by then-Gov. George W. Bush.

On June 11, state district Judge Paul Murphy issued a one-page order, granting the Innocence Project and Observer’s motion for summary judgment in the case and commanding the San Jacinto district attorney’s office to turn over the hair for DNA testing. Prosecutors can appeal the decision.

The Innocence Project and the Observer hope that DNA tests on the hair will confirm Jones’ guilt or prove he was innocent, as he always claimed. (For Background, read the Observer’s 2007 story about the Jones case here. Time magazine also recently profiled the case here. A timeline is here.)

If DNA evidence exonerates Jones, it would mark the first time an innocent person was executed for a crime that DNA tests would later prove they didn’t commit. DNA tests have freed nearly 20 death row inmates in the United States before they were executed. Innocence attorneys and reporters have also uncovered quite a few troubling cases in which states executed inmates who were likely innocent. That includes the infamous case of Cameron Todd Willingham—the North Texas man put to death for starting the fire that killed his three children and who forensic experts say was convicted on flawed evidence.

But there hasn’t yet been a case in which DNA evidence has proven without a doubt that an innocent person was executed.

Questions about Jones’ guilt have long lingered.

And:

Jones claimed that he never entered the store.

Beyond fuzzy eyewitness accounts, and the questionable testimony of Dixon and Jordan (who later recanted his testimony), the only reliable evidence that linked Jones to the murder was a strand of hair found on the liquor store counter.

At Jones’ 1990 trial, a forensic expert testified that the hair appeared to come from Jones. But the technology didn’t exist at the time to determine if the hair matched Jones' DNA.

Advanced DNA testing techniques could now show if the hair was Jones'—and confirm his guilt. Or it could match Dixon, proving that he was the gunman who entered the store. That would exonerate Jones. Or tests could reveal the hair came from a third person and leave Jones’ guilt unknown.

The AP has just filed, "Texas judge orders DNA testing in execution case," via the Connect Amarillo.

A judge has ordered DNA testing on a strand of hair that was the only physical evidence linking an executed inmate to the murder that sent him to the Texas death chamber.

Judge Paul C. Murphy's order will lead to testing of a 1-inch-long strand that helped prosecutors convict Claude Jones of capital murder in the 1989 shooting death of 37-year-old liquor store owner Allen Hilzendager in San Jacinto County. Jones, who maintained his innocence, was executed in 2000.

An expert in hair analysis linked the hair to Jones at his trial. The other primary evidence was testimony from an accomplice, who later acknowledged in an affidavit that he had no firsthand knowledge of the killing.

Earlier coverage begins with the Time article noted above and here.

Truth Hangs by a Hair

That's the title of David Pasztor's latest article, a must-read, in the Texas Observer, one of the organizations that went to court to save the evidence used in the Claude Jones case for DNA testing.  LINK

One strand of hair found on the counter of an East Texas liquor store whose owner was gunned down in 1989 could help determine whether Texas executed an innocent man for the killing.

On September 10, a state district judge in San Jacinto County ordered county   officials not to destroy the hair and other evidence used to convict Claude   Howard Jones at his 1990 trial while The Texas Observer, the Innocence   Project, and other criminal justice groups pursue a lawsuit seeking to have   the hair released to a certified private laboratory for testing.

“If the state of Texas did execute an innocent man, the people of Texas   deserve to know what was done in their name,” said Observer Executive   Editor Jake Bernstein. “This case begs for further examination. It’s   not as if the Texas Court of Criminal Appeals has an exemplary track record   when it comes to scrutinizing death sentences.”

If successful, the lawsuit could not only discover whether Jones was innocent, but better define the public’s right to information that sheds light on the integrity of the Texas criminal justice system. “It’s really been a source of great frustration for us when we can’t get access to evidence we think could be useful to determine if there’s been a miscarriage of justice,” said David Dow, director of the Texas Innocence Network, a University of Houston law clinic that assists inmates with innocence claims.

The 1-inch hair of ambiguous origin was the only piece of physical evidence that purportedly linked Jones to the November 14, 1989, murder of Allen Hilzendager in Point Blank, about 85 miles north of Houston. Jones was put to death by lethal injection on December 7, 2000, the last execution conducted under former Gov. George W. Bush.

Jones, a multiple felon who was 61 when he was executed, maintained his innocence until his death. No DNA testing was conducted on the hair, which has remained in the files of the San Jacinto District Court clerk’s office. At Jones’ trial, a state expert who examined the hair by microscope testified that of all the people known to have been in the liquor store on the day of the murder, the stray hair most closely resembled Jones’.

Because of lingering questions about his guilt, on September 4 the Observer,   the New York-based Innocence Project, the Innocence Project of Texas, and the   Texas Innocence Network filed a public records request with San Jacinto County   asking that the hair be preserved and be turned over to an independent lab certified   by the state Department of Public Safety for mitochondrial DNA testing. It is   apparently the first time Texas open records laws have been used to seek release   of physical evidence in a death penalty case.

“It is haunting to consider that the state may have executed an innocent man, but DNA testing should be conducted to get to the truth,” said Innocence Project co-founder Barry Scheck. “The bottom line is that Claude Jones was convicted based on the hair evidence ... and DNA testing on the hair could definitely show whether Claude Jones was guilty.”

In response to the open records request, San Jacinto County District Attorney   Bill Burnett—who was not in office when Jones was prosecuted—would   make no commitment to preserve the hair, according to William H. Knull, an attorney   with the international law firm Mayer Brown. Knull is representing the Observer   and other groups. Burnett did not return phone calls from the Observer   seeking comment.

Mayer Brown lawyers won a temporary restraining order from District Judge Elizabeth Coker protecting all evidence in the case. Coker scheduled a hearing for October 3 to decide whether to issue a temporary injunction extending the preservation order while the lawsuit is pressed.

And:

Whether or not DNA testing bolsters Jones’ innocence claim, resolving lingering questions about the case is crucial, Knull said. “We all have an interest in knowing that our state and its mechanisms are working properly, especially in issues involving life and death,” he said.

Texas has an established track record of sending innocent men to death row. Some—Clarence Brandley, Randall Dale Adams, and Kerry Max Cook among them—have escaped execution and eventually been freed on appeal.

But substantive questions remain about how many innocent inmates the state might have executed. In about a half-dozen cases, serious indications have arisen after the fact that point to an executed inmate’s innocence.

Perhaps the most notorious case was that of Cameron Todd Willingham, executed in 2004. Willingham was convicted of setting a fire that killed his three children, a 2-year-old girl and 1-year-old twins. Experts who later scrutinized evidence in the case concluded that the fire probably was not arson.

Other questionable cases have involved inmates largely implicated on the testimony of accomplices who escaped death sentences themselves, a botched crime-scene investigation that destroyed evidence, and an incompetent defense attorney who failed to present a case for his client.

State public records laws apparently have never before been used to obtain   physical evidence for independent testing. In the lawsuit, the Observer   and other plaintiffs argue that testing the hair in the Jones case is a logical   extension of the public’s right to access. Prosecutors and the courts   no longer have any use for the hair, the lawsuit argues, leaving no reason why   it cannot be tested.

With limited exceptions, the evidence used to convict someone is considered public record, enjoying a “powerful and historic presumption in favor of public access,” the lawsuit argues.

The Texas Innocence Network has filed public records requests for evidence in noncapital cases, but has always been turned down, Dow said. The public access question has never been litigated, he said.

Earlier coverage is here.

Inmate's Legacy Rests on a Single Hair Strand

That's the title of Allan Turner's examination of the Claude Jones in today's Houston Chronicle.  LINK

A single strand of hair found on the counter of a rural East Texas liquor store lies at the center of a legal dispute in which death penalty opponents hope to prove that career criminal Claude Jones may have been put to death for a crime he did not commit.

Jones, 60, was executed Dec. 7, 2000, for the November 1989 robbery-murder of Point Blank liquor store owner Allen Hilzendager. Jones consistently maintained his innocence in the Hilzendager case.

Key to Jones' conviction, the only physical evidence from the crime scene, was a 1-inch fragment of hair that was linked to him through microscopic examination. On the eve of Jones' execution, then-Gov. George Bush denied a request for a stay so that the hair could undergo DNA testing. Bush earlier had endorsed such testing in life-or-death cases.

Since Jones' 1989 trial, the incriminating hair has been locked away and — until recently — largely forgotten in the San Jacinto County district clerk's office in Coldspring, about 65 miles north of Houston.

Now, a group of anti-death penalty activists, including The Texas Observer, a liberal Austin-based magazine, and New York-based Innocence Project, has filed suit in state district court seeking release of the hair for mitochondrial DNA testing.

Even though 18 years have elapsed since Jones' conviction, plaintiffs in the case say testing of the hair remains vital in determining how well Texas, which has killed more than 400 murderers since executions resumed in 1982, handles the deadliest of its judicial functions.

Jones was the 239th Texas killer executed since 1982 and the only one from San Jacinto County.

"It's pretty clear that DNA testing can either show that he was guilty ... or that he was convicted based on legally insufficient evidence," said Barry Scheck, Innocence Project co-director. "There must be a way that the public, the Legislature and the courts, in post-execution situations, can determine whether the system succeeded or failed.

Earlier coverage of the Claude Jones case is here.

Coverage of Claude Jones Evidence Issue

David Pasztor has, "Hair Evidence Preserved," the Texas Observer's online edition.

A San Jacinto County district judge has ruled that a crucial piece of evidence that might help determine whether Texas executed an innocent man almost seven years ago must be preserved while The Texas Observer, the Innocence Project, and other criminal justice groups pursue a lawsuit seeking to have it tested by an independent laboratory.

Judge Elizabeth Coker on Monday issued a temporary restraining order barring county officials from destroying evidence in the case of Claude Howard Jones, who was executed on December 7, 2000, for killing a liquor store owner. Coker scheduled a hearing for October 3 to consider allowing DNA testing of a hair found at the crime scene.

Jones’s conviction rested largely on a single, 1-inch strand of hair found on the liquor store counter. A state expert testified at trial that the hair closely resembled Jones’, but it was never subjected to DNA testing.

The Observer, the New-York-based Innocence Project, the Innocence   Project of Texas and the Texas Innocence Network have filed a public records   request seeking to have the hair released and turned over to a lab certified   by the state Department of Public Safety for testing.

Jones, a multiple felon, professed his innocence until he was executed. DNA testing of the hair not available at the time of his trial should indicate whether Jones was, in fact, the killer, or cast greater suspicion on two other suspects who blamed Jones for the killing and escaped the death penalty.

The Observer also has, "Truth Hangs by a Hair."

One strand of hair, a piece of evidence crucial to determining whether Texas executed an innocent man almost seven years ago, is apparently at risk of being destroyed by San Jacinto County officials who are resisting a formal request by The Texas Observer, the Innocence Project, and other criminal justice organizations to make it available for independent scientific testing.

Observer lawyers are calling on San Jacinto County District Attorney Bill Burnett to preserve the hair until a lawsuit determines whether it must be released under state open-records laws. DNA testing might provide a strong indication as to whether Claude Howard Jones was, in fact, innocent of the murder for which he was executed.

"If the state of Texas did execute an innocent man, the people of Texas   deserve to know what was done in their name," said Observer Executive   Editor Jake Bernstein. "This case begs for further examination. It's not   as if the Texas Court of Criminal Appeals has an exemplary track record when   it comes to scrutinizing death sentences."

The 1-inch hair of ambiguous origin was the only piece of physical evidence that purportedly linked Jones to the November 14, 1989, murder of liquor store owner Allen Hilzendager in Point Blank, about 85 miles north of Houston. Jones was put to death by lethal injection on December 7, 2000, the last execution conducted under former Gov. George W. Bush.

Jones maintained his innocence until his death. No DNA testing was conducted on the hair, which has remained in the files of the San Jacinto district court clerk’s office. At Jones’ 1990 trial, a state expert who examined the hair by microscope testified that of all the people known to have been in the liquor store on the day of the murder, the stray hair most closely resembled Jones’.

And:

Shortly before his execution, Jones filed an appeal seeking new DNA testing of the hair using methods not available at the time of his trial. His appeals were rejected.

Jones also asked Bush to stay his excecution, but the case memo prepared by Bush’s staff and given to the then-governor made no mention of the possibility that DNA testing was available that might help establish Jones’ innocence. Bush rejected the request.

An AP report, "Final execution case with Bush as Texas governor is under scrutiny,"

A Texas judge on Monday sided with an anti-death penalty group seeking to find out whether an inmate was wrongly executed, ruling that officials must keep a 1-inch (2.5-centimeter)-long piece of hair that was a key piece of evidence in the man's murder trial almost two decades ago.

The Innocence Project wants to know whether Claude Jones was wrongly executed in December 2000. Jones was the last of a record 40 inmates executed in America's busiest capital punishment state that year and the last of 152 inmates put to death during now-President George W. Bush's time as Texas governor.

The piece of hair led to Jones' conviction and execution for the 1989 shooting death of a liquor store owner in San Jacinto County, about 75 miles (120 kilometers) north of Houston.

State District Judge Elizabeth Coker set a hearing for Oct. 3 to consider whether DNA testing should be performed on the hair.

Earlier coverage is here.

 

 

More News on the Claude Jones Case

Eric Ferrero of the Innocence Project informs me that a state district judge has ordered that DNA evidence available for testing in the case of Claude Jones not be destroyed.  Jones was executed by Texas in 2000.  The IP's news release is here.  An excerpt:

A Texas state judge this morning issued a temporary restraining order to prevent the state from destroying evidence that could show whether a man was wrongfully executed in 2000.

On Friday, attorneys filed motions seeking DNA testing on critical evidence in the case and also seeking an immediate order to stop the state from destroying the evidence while the court considers the request for DNA testing.  Today’s order, issued by District Court Judge Elizabeth E. Coker in San Jacinto County, granted the immediate request to block destruction of the evidence and set a hearing for October 3 on whether to conduct DNA testing in the case.

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed motions in state court in San Jacinto County, Texas, seeking DNA testing on the only piece of physical evidence in the case – a hair from the crime scene – that could determine whether the hair matches Claude Jones, who was convicted of murder in 1990 and executed on December 7, 2000.

The hair, which was found on the counter in a liquor store where a man was shot and killed, was central in Jones’ trial and post-conviction appeals.  An expert for the state testified at the trial that the hair was consistent with Jones’.  The Texas Court of Criminal Appeals, the state’s highest criminal court, narrowly upheld Jones’ conviction, in a 3-2 ruling where the majority specifically cited the hair evidence as the necessary “corroboration” to uphold the conviction. 

The groups, represented by attorneys at Mayer Brown LLP, filed the court motions Friday after the San Jacinto District Attorney refused to agree to DNA testing – and also refused to agree not to destroy the evidence while courts consider whether DNA testing can be conducted.

“The judge today recognized that this case raises very serious issues about the integrity of the criminal justice system.  We’re grateful that the state will not be able to destroy this evidence before DNA testing can be conducted,” said Nina Morrison, Staff Attorney at the Innocence Project.  “We are hopeful that the judge will also see that it’s in everyone’s interests to conduct DNA testing that could resolve serious, lingering questions about this case.  DNA testing could show that Claude Jones was guilty, or it could show that the state had no basis for executing him.  The public has a right to know whether Claude Jones committed the crime for which he was executed, and today’s ruling moves us one important step closer to learning the truth.”

A posting from Friday is here.

Texas Observer & Innocence Projects Seek DNA Testing

Eric Ferrero, Communications Director of the Innocence Project, has just distributed a news release regarding the case of Claude Jones.  He was executed by Texas in 2000, the last of 152 men and women executed during the administration of Governor George Bush.  Here's the beginning of the release:

Advanced DNA testing could prove whether a Texas man was wrongfully executed in 2000, so a state court should issue an immediate order preventing local officials from destroying the
evidence and should also order DNA testing in the case, papers filed today in state court said.

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed motions in state court in San Jacinto County, Texas, today asking for a temporary restraining order that would prevent officials from destroying the only piece of physical evidence in the case - a hair from the crime scene - and seeking a court order to conduct DNA testing that could determine whether the hair matches Claude Jones, who was
convicted of murder in 1990 and executed on December 7, 2000.

The hair, which was found on the counter in a liquor store where a man was shot and killed, was central in Jones' trial and post-conviction appeals.  An expert for the state testified at the trial that the hair was consistent with Jones'.  The Texas Court of Criminal Appeals, the state's highest criminal court, narrowly upheld Jones' conviction, in a 3-2 ruling where the majority specifically cited the hair evidence as the necessary "corroboration" to
uphold the conviction.

"The San Jacinto District Attorney, who was one of the prosecutors during Claude Jones' trial, told us this week that he will not agree to DNA testing without a court order.  We are asking for an emergency order from the court that will mandate testing and prevent officials from destroying this evidence in the meantime," said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  "The public has a right to know whether Claude Jones actually committed the crime for which he was executed, and whether a serious breakdown in the state's legal and political process led to a wrongful execution.  Public confidence in the criminal justice system is at stake."

In the days prior to Jones' execution, his attorneys appealed to courts and to then-Governor George Bush's office for a stay of execution so that DNA testing on the hair could be conducted.  Documents later obtained by the Innocence Project through Open Records Act requests show that Governor Bush's staff did not include the possibility of DNA testing in the material they prepared for him about the request for a stay of execution, which was denied.  (The request for a stay of execution was being handled by Bush's office during the period of the Florida vote recount after the 2000 presidential election.)  Several months earlier, Governor Bush granted another death row inmate's clemency request so that DNA testing could be conducted; at the time, Bush said, "Any time DNA can be used in its context and can be relevant as to the guilt or innocence of a person on death row, we need to use it."  Several weeks later, DNA results showed that the man, Ricky McGinn, was guilty and he was executed.