[Deathpenalty] death penalty news-----TEXAS

[Rick Halperin]

Oct. 20



TEXAS:

Bloody evidence sent to crime lab almost two weeks after killings


A forensic scientist testified Friday that the Texas Department of Public
Safety forensics lab in Garland received the blood-spattered box and
napkin for testing less than two weeks after the Kilgore Kentucky Fried
Chicken murders occurred.

Manuel Valdez Jr., forensic lab director, said the Garland lab received
that with other evidence from the restaurant sent by the Tyler lab in the
mail on Oct. 4, 1983. The killings happened Sept. 23.

The Tyler lab sent the evidence to Garland because it was better equipped
to handle blood evidence. Because of the magnitude of the crime, the
scientists began analyzing the evidence almost immediately.

Valdez said he did blood typing and protein marker analysis on several
samples of blood, including the blood-spattered box and napkin that
connect defendants Romeo Pinkerton and Darnell Hartsfield to the killings.

According to his test results, most of the blood found at the restaurant
was Type O and had protein markers consistent with victim Mary Tyler.

The blood on the napkin did not match with any of the victims, and the
blood on the box did not match 4 of the victims. In 1983, Valdez could not
have confidently said the blood on the box was not that of victim Monte
Landers.

Valdez later compared a blood sample of former suspect James Earl Mankins
Jr. with the unidentified blood at the restaurant. Valdez said the blood
did not match.

The lab did not perform DNA analysis on the blood samples because the
technology had not been developed.

The box and the napkin remained in the Garland lab's storage for almost 19
years, Valdez said. Valdez said the items remained in a controlled lab
setting all that time.

In 2001, a discussion between Valdez, former FBI investigator George Kieny
and another forensic scientist led to the lab performing a DNA analysis on
the box and napkin and comparing the results to a national DNA database.

That comparison returned the investigation to Pinkerton and Hartsfield.

Other testimony Friday:

Glenn Johnson, a forensic firearms examiner, discussed bullet analysis.
Johnson said the bullets recovered from the murder scene and the victims
appeared to have come from 2, possibly 3, weapons. Johnson said he
compared the bullets with more than 50 guns during the investigation, and
no firearm has ever been matched with the bullets.

John Beene, a forensic scientist with the Tyler lab, discussed evidence
submission to the lab and described what the lab could do with blood
evidence. Beene said the lab could only determine the blood type of a
sample and whether it was human blood. He said the submission form that
included the box and napkin did not list where the items were found in the
restaurant.

Dennis Lockerman, a DNA analyst with the Department of Public Safety,
informed the jury about the Combined DNA Index System, or CODIS, national
DNA database. He said more than 4 million people nationwide are included
in the database, and the DNA profiles are only identified by a reference
number. The 1st Texas DNA profiles were uploaded to the system in 1997.

****

At a glance

 Background: 5 people were abducted from a Kentucky Fried Chicken in
Kilgore the night of Sept. 23, 1983. They were found the next morning dead
on an oil lease in rural Rusk County, about 14 miles from the restaurant.

 Charged: Romeo Pinkerton, 49, of Tyler is the 1st defendant on trial,
charged with the murders of all 5. His cousin Darnell Hartsfield, 46,
faces the same charges. If convicted, Pinkerton could face the death
penalty.

(source: Longview News-Journal)

*********************************

Evidence Held Focus Of KFC Murder Trial


The prosecution in the 1983 mass murders of 5 people abducted from a
Kilgore eatery ended the first week of testimony showing a box crucial to
their case was in possession of a state agency just days after the crime.

The prosecution also showed that 2 and possibly 3 guns were used in the
murders of Mary Tyler, 37; Opie Ann Hughes, 39; Joey Johnson, 20; David
Maxwell, 20; and Monte Landers, 19. Their bodies were found Sept. 24,
1983, in a rural Rusk County oilfield. Each had been shot at least twice -
"execution style."

After several days of the defense attorneys for Romeo Pinkerton picking
apart the states' witnesses and their testimony, the roles were reversed
Friday.

Lisa Tanner, Texas Attorney General's Office and lead prosecutor, began
her questioning of John Beene, DPS forensic scientist in Tyler, in regard
to the KFC case, and asked if he was the custodian of records in the case
with evidence submitted to his agency in Tyler.

Beene testified he received a large amount of evidence submissions over a
period of time following the murders from multiple police officers from
various agencies.

But it was a submission by Texas Ranger Stuart Dowell on Oct. 4, 1983,
that held two crucial pieces of evidence in the state's case against
Pinkerton and his cousin Darnell Hartsfield. The submission included a
white box, one napkin and one small cup - each with what appeared to be
blood on them.

Dowell requested that blood typing be done on the box, and Beene said he
performed initial testing, and it indicated the blood was human. He then
forwarded the evidence to the Garland DPS lab for additional testing.

The box and napkin were retested in 2001, and the prosecution says that
DNA evidence found on the box implicates Hartsfield and Pinkerton.

Garland DPS Forensic Lab Director Manuel Valdez Jr. testified he received
evidence in the KFC case, and that, in the fall of 1983, there was no such
thing as DNA testing.

Valadez also said he performed tests on the box and napkin and determined
it was human blood on the items, but it would be 2 decades before science
could differentiate between more than just blood types.

Valdez testified that the box and napkin remained in his lab from the time
they received the evidence in October 1983 until January 2002, when they
were released to former FBI Agent George Kieny, who was working as a
special investigator with the Rusk County Sheriff's Office in conjunction
with the Attorney General's Office.

2 GUNS OR 3?

Glenn Johnson, a former Texas Department of Public Safety firearms
forensic specialist, testified for the state under the questioning of
Texas Attorney General prosecutor, Laura Popps.

Johnson said bullets from the case were submitted to him from those
recovered from the bodies during autopsies, and from the dirt at the
murder scene.

He testified he believed he personally examined about 50 different weapons
in regards to the case.

"Of all the guns that were submitted to you over the years in this case,
have you ever had a match?" Popps asked.

No, he replied.

He testified that there were 11 bullets, and definitely two and possibly
three guns because there were six bullets of Federal Firearms ammunition,
four bullets that were round nosed from Winchester Western and another
type of bullet. He said he could not rule out the possibility that one gun
was used to fire 7 bullets, but that would have meant the revolver would
have had to been reloaded.

Johnson said a .38-caliber special and a .357-caliber Magnum were used in
the murders, and that 3 victims were shot with both guns.

Earlier in the week the prosecution told jurors in opening arguments that
one victim was sexually assaulted and that they had collected DNA from the
woman's uniform pants.

The trial is scheduled to resume Monday morning at the Bowie County
Courthouse in New Boston. The trial was moved due to extensive media
coverage through the years.

(source: Tyler Morning Telegraph)

***********************

Dallas DA's office seeking retrial after DNA test refutes testimony


A judge recommended a new trial Friday for a man who spent the last 21
years in prison for capital murder after a DNA test refuted the testimony
of a key witness who prosecutors say lied to hide his own guilt.

But the case is complicated by the intent of the Dallas County district
attorney's office to retry the defendant, Clay Reed Chabot. Prosecutors
say Chabot did not receive a fair trial in 1986 but insist that he is
guilty of killing a 28-year-old Garland woman over a drug deal gone bad.

Chabot, 48, will remain behind bars at least until an Oct. 26 bail
hearing. He will receive a new trial if the Texas Court of Criminal
Appeals in Austin accepts state District Judge Lana Myers' recommendation.

Mike Ware, a Dallas County assistant district attorney, said a DNA test in
June does not exonerate Chabot, even though the results exclude him from
the rape of the victim.

The test shows that the state's key witness in the 1986 trial, Gerald
Pabst, participated in the rape and "lied about his own role in the
murder," Ware said. Those lies were crucial in convicting Chabot, Ware
said.

Prosecutors oppose bail.

"We have agreed Chabot should get a new trial, and that's a reflection of
our respect for due process," said Ware, who added that the gun used in
the slaying belonged to Chabot. "This does not mean Chabot was not the
shooter in this case and does not prove he was not an active participant
in the brutal assault."

Vanessa Potkin, Chabot's attorney, said she believes that Chabot will be
vindicated. That could happen in at least 2 ways: an acquittal in a new
trial or if the district attorney's office dismisses the charges after its
investigation.

"It's a huge step for Clay Chabot toward securing his freedom and bringing
an end to this 21-year nightmare he has endured because of one man's
lies," said Potkin, an attorney with the Innocence Project, a legal center
specializing in overturning wrongful convictions. "The DNA in this case
not only revealed that the state's case was built on lies but has also
identified the rapist in this case -- and the murderer."

Pabst testified in the 1986 trial that Chabot raped and killed Galua
Crosby. She was found dead with her hands and feet bound. She had been
shot in the head 3 times.

Pabst said that he helped tie up Crosby but that Chabot raped and killed
her. Chabot told police that he was involved in Crosby's death and was
home with his family.

Chabot was convicted of the rape and murder, and Pabst was released for
time served on a misdemeanor theft charge, according to the district
attorney's office.

Chabot requested a DNA test in 2002, and in 2004 he received help from the
Innocence Project.

After the DNA test, Pabst was arrested in July in Ohio and indicted in
Dallas on a capital murder charge. He remains in the county jail with bail
set at $500,000. Wayne Huff, Pabst's attorney, declined to comment.

(source: Associated Press)

*****************************

Evidence from 1986 slaying is missing----Prosecutors plan to seek new
murder trial for man convicted


Prosecutors said Friday that they intend to retry Clay Chabot for the 1986
slaying of Galua Crosby, even though DNA evidence shows that he did not
rape her.

But prosecutors now face a daunting obstacle: The evidence used at his
original trial - including the murder weapon and a bloody shirt - is
missing.

Defense attorney and former Dallas County prosecutor Robert Montserrat,
who is not involved in the case, said he believes it is unlikely that a
jury would convict Mr. Chabot.

"They just can't throw mud up against the wall and see if it sticks," Mr.
Montserrat said of prosecutors. "It's a very difficult case to see how a
jury would believe it beyond a reasonable doubt."

But Terri Moore, first assistant Dallas County district attorney, said she
believes the case is winnable, despite the missing evidence.

"It makes this a little more odd, a little more difficult. But I think we
will be able to explain that to a jury," Ms. Moore said.

Mr. Chabot was found guilty in 1986 after his brother-in-law, Gerald
Pabst, testified that Mr. Chabot raped and killed Ms. Crosby at her
Garland home. She was shot in the head 3 times.

Results from DNA tests, which were not available at trial, show that Mr.
Pabst - not Mr. Chabot - raped Ms. Crosby. Mr. Pabst was arrested in Ohio
in July and charged with capital murder and is awaiting trial.

Judge Lana Myers said Friday that Mr. Chabot's conviction should be tossed
because of Mr. Pabst's perjured testimony during the trial. But the Texas
Court of Criminal Appeals must approve throwing out the murder conviction
for a new trial to begin. A bond hearing for Mr. Chabot that began Friday
will continue next week. He remains jailed.

It is unclear what happened to the evidence from Mr. Chabot's trial, and
the district attorney's office is still searching for it. The gun was in
the custody of the Dallas County Sheriff's Department, and other items
were kept by Garland police, the county records center and the district
clerk, Ms. Moore said.

During the trial, Mr. Pabst testified that he was ordered at gunpoint to
help tie up Ms. Crosby. Although originally indicted for murder, after Mr.
Chabot's trial, Mr. Pabst was sentenced to 30 days in jail for stealing
Ms. Crosby's radio.

At the original trial, the state alleged that Mr. Chabot killed Ms. Crosby
because her boyfriend sold Mr. Chabot bad drugs. The boyfriend testified
at trial that he offered to buy back the drugs and that Mr. Chabot
refused.

Despite the DNA evidence, Dallas County prosecutor Mike Ware, who oversees
conviction integrity, said he does not believe Mr. Chabot is innocent and
probably worked with Mr. Pabst.

"It doesn't mean Mr. Chabot was not the shooter and an active
participant," Mr. Ware said. "We don't believe he is actually innocent."

But Mr. Chabot's attorneys say that their client is innocent and that the
missing evidence, if found, would prove their assertion.

"Our perspective is that there is no evidence against Mr. Chabot because
he is innocent," said his attorney Vanessa Potkinof the Innocence Project,
a nonprofit legal organization that seeks to exonerate wrongly convicted
people through DNA evidence. "If that's missing, then it hinders his
ability to put on a defense."

Ms. Potkin said finding the shirt, which belonged to Mr. Pabst, would show
that the blood belonged to Ms. Crosby.

"Finding the victim's blood on Pabst's shirt would provide even further
evidence that [the state's theory that both men participated in the
murder] just isn't credible," Ms. Potkin said.

If the evidence is not found and Mr. Chabot is retried, it would not be
the first time the district attorney's office prosecuted a case without
evidence.

In August, a Dallas County jury sentenced a man to life in prison for a
1992 murder in a case in which the evidence was thrown away by Garland
police.

Authorities never had the murder weapon. The evidence consisted of a mask
and threatening phone calls police and witnesses said were made by the
defendant. In that case, the granddaughter of the victim witnessed the
shooting by masked men.

Susan Campbell, the sister-in-law of Ms. Crosby, said her family still
believes Mr. Chabot is guilty.

"We just want to make sure people understand he was convicted of murder.
He was not convicted of rape," said Ms. Campbell, who attended Friday's
hearing. "The DNA has nothing to do with the murder."

Mr. Chabot's brother, Mark Chabot, who lives near Cleveland and attended
Friday's proceedings, said he was disappointed that his brother wasn't
released on bond Friday.

"But the family is happy he's getting a new trial," he said. "We've always
felt he was innocent."

(source: Dallas Morning News)

*************************

A shame, and a surprise, what Keller did: appeals judge's 9-to-5 justice
seems shocking to one who has worked on the court


When I first heard the story about the execution of Michael Richard after
the presiding judge on the Texas Court of Criminal Appeals refused to keep
the clerk's office open an extra 20 minutes, when his lawyers incurred a
late-afternoon computer crash causing the delay, I thought it was a joke.

I don't know why I was so surprised to find that the story was real.
Sometimes, especially in Texas death penalty law, you just can't make this
stuff up.

I shouldn't be taken aback. After all, the Lone Star state leads the
nation in executions (405 of the 1,099 men and women who have been
executed since the return of the death penalty in 1977). Texas was the
first state to use the new execution style lethal injection with Charlie
Brooks in 1982, and had a governor (now president) who laughed at Karla
Faye Tucker's clemency request. "Please don't kill me," Bush whimpered,
his lips pursed in mock desperation, to a shocked Tucker Carlson, who was
writing a profile about Bush for a national magazine.

Texas is the same state in which a judge said that while you are entitled
to legal counsel at your death penalty trial, it's OK if your lawyer
sleeps through most of it. In that same case, two out of three federal
judges from the 5th Circuit Court of Appeals refused to reverse a lower
court ruling, blaming the defendant, Calvin Burdine, for not keeping
accurate records of the times his lawyer was sleeping. Sufficiently
embarrassed, the full 5th Circuit, in an unprecedented move, reversed
their fellow colleagues a year later.

Sept. 25 was a day of surprises. The U.S. Supreme Court's announcement of
its decision to review the issue of cruel and unusual punishment and
lethal injection on the same day of Richard's execution was unexpected. It
was really the first time that the method of execution, by lethal
injection, had ever been looked at, seriously, by the Supreme Court. The
high court's stay of execution in the case of two Kentucky death row
inmates put the brakes on scheduled executions across the United States.
Well, all except Texas.

The word from the Supremes just didn't seem to apply to Texas. As quick as
a hiccup, Texas Court of Criminal Appeals Presiding Judge Sharon Keller
denied Richard's lawyers the 20 minutes they needed to print the darn
thing out and get it to the court -11 copies of Richard's 108-page
petition and get it to the court. E-mails aren't allowed. And I guess a
frantic, pleading phone call doesn't count, either.

Keller didn't even pick up the phone and call the other judges on the
court to get their opinions. At least two of them have said they were
hanging around the court that evening, just waiting for Richard's
application. The judges were ready to vote. The U.S. Supremes couldn't
step in, procedurally, unless and until the Texas judges called it first.

All the Texas judges had to have been available by phone for this vote. At
least that's what they are supposed to do at the Texas Court of Criminal
Appeals, most especially in the hours before an execution. At least that's
what they did in 1983, when I worked there as a briefing attorney. In the
weeks and days and, most especially, on the day and in the hours leading
up to a midnight execution, everyone knew about it - the lawyers, the
court clerk, the clerical staff, even the nightly cleaning crew.

The air was thick with tension on "those days," especially in "the
bullpen," the nickname of the large room where 4 of us worked, side by
side, because the court had run out of space for our offices. It was the
unofficial headquarters, the office water cooler - for all the new
briefing attorneys to exchange gossip, pitch legal strategy or chat about
some nuance of case law.

No one went out for lunch on the day of or a few days before an execution;
some high-strung briefing attorneys could barely keep breakfast down.

It's hard for me to understand exactly what happened on Sept. 25. By the
time I had left the court in 1984, only 3 men had been executed in Texas.
The number is now 405. Has the Texas Court of Criminal Appeals become so
desensitized to executions that it can't stop the killing machine for an
extra 20 minutes?

Even on a day when there is an 11th-hour and very unexpected announcement
from the U.S. Supreme Court that it will review a crucial death penalty
issue, everyone knows it takes hours for the defendant's appellate lawyers
to review stacks of appellate briefs to see if the "out of left field" the
cruel and unusual punishment/lethal injection claim was raised earlier.
Then there is a quick strategy session and a race to the computer to crank
out a 108-page application to stop the execution based on the U.S. Supreme
Court's order. I can't imagine the pandemonium in that law office when,
out of the blue, their computer crashed, making a 5 p.m. deadline of 11
hard copies absolutely impossible. All of this was taking place one hour
before the execution.

Dutifully, Michael Richard's lawyers called the clerk at the Texas Court
of Criminal Appeals to explain the emergency and ask for 20 minutes. It's
on the computer, but e-mails are prohibited. Judge Keller says, "No." Our
office closes at 5 p.m. sharp. Keller wasn't going to wait, not even an
extra minute, much less 20.

2 hours later, 49-year-old Michael Richard, with an IQ of 64, well below
the U.S. Supreme Court's 70 IQ mark when it banned executions of the
mentally retarded in 2002, was dead.

To many people, especially some of the family members of Richard's victim,
53-year-old Lucille Dixon, a nurse and mother of 7, justice had already
been delayed for more than two decades. But 20 more minutes?

No, siree, Bob. Keller showed us that Texas' killing machine stops for no
man, no surprise announcement by the U.S. Supreme Court earlier in the day
and no computer crash.

On Sept. 25, the eyes of the United States and the world, were on Texas,
and still are. On Sept. 30, members of the European Parliament called for
an immediate moratorium on executions, and overwhelmingly voted in favor,
504-45, to mark Oct. 10 as the official European Day against the Death
Penalty.

But I still would like to know: Did Keller close the office at 5 p.m.
because she's dumb or just mean?

(source: Viewpoints, Houston Chronicle; Joan Cheever is a former briefing
attorney for the Texas Court of Criminal Appeals and the author of Back
>From the Dead: One woman's search for the men who walked off America's
death row (John Wiley & Sons 2006).