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

[Rick Halperin]

Sept. 10



TEXAS:

Truth Hangs by a Hair


One strand of hair, a piece of evidence crucial to determining whether
Texas executed an innocent man almost 7 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 clerks 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'.

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 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 a phone conversation on September 6, Burnett said he would take the 10
business days allowed by law to respond to the request, according to
William H. Knull, an attorney with the international law firm Mayer Brown
who is representing the Observer and other groups. In the meantime, Knull
said Burnett would make no commitment to preserve the hair.

Burnett did not return phone calls from the Observer seeking comment.

Knull and other members of the legal team handling the case will now ask a
judge to order the county not to destroy the hair while they pursue a
lawsuit seeking to compel the hairs release.

"My understanding is that the hair is the only piece of physical evidence
that ties Mr. Jones to the crime," Knull said. "If that single piece of
physical evidence is destroyed, I'm not aware of any other basis with
which to go forward with this investigation."

Court records and opinions written by appellate judges clearly indicate
that the hair was the most damning piece of evidence against Jones.
Without it, prosecutors had only inconclusive eyewitness testimony and
statements made by 2 co-defendants who said Jones was the killer. The
co-defendants escaped death sentences.

Hilzendager, the 44-year-old owner of Zell's liquor store on state Highway
150 near Lake Livingston, was shot 3 times with a .357-caliber magnum.

Jones, whose criminal record included prison stints in Texas and Kansas
for robbery, burglary, theft, assault, and murder, had recently been
released on parole. He was in the area hanging around with 2 other men,
Kerry Dixon and Timothy Mark Jordan, the alleged owner of the gun used to
kill Hilzendager.

Witnesses agreed that in the early evening of November 14, 1989, two men
in a pickup truck similar to Dixon's pulled up at the liquor store. One
man went inside, three shots were fired, and the men drove away.
Descriptions of the men varied, and neither of the two eyewitnesses who
were across the highway at the time was able to positively identify the
man who entered the store.

When picked up by police, Dixon and Jordan both told police Jones was the
killer. Jones was arrested on a bank robbery charge in early December in
Florida and sent back to Texas. All three men were charged with capital
murder. Dixon received a 60-year sentence. Jordan agreed to a 10-year
sentence in a plea bargain.

At Jones' trial, a hair found on the liquor-store counter proved crucial
to the prosecution. Stephen Robertson, a DPS forensics expert, testified
that the hair was a potential match to Jones, but said, "Technology has
not advanced where we can tell you that this hair came from that person.
Can't do that. We can tell you that this hair matches this person in all
characteristics and could be his."

The Court of Criminal Appeals upheld Jones' conviction in 1994 in a
sharply divided 3-2 ruling. Both sides placed great weight on the hair,
but reached different conclusions. The 3-judge majority upheld the
conviction partly because Jones "was the only person with access to the
pistol whose hair sample matched the one discovered at the murder scene."

2 dissenting judges said Roberston's analysis of the hair was
"insufficient" to connect Jones to the murder, and criticized the majority
for "carelessly reading the record or deliberately mischaracterizing the
record."

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.

Sometime after Jones' execution, a local judge issued an order allowing
the county clerk's office to destroy the evidence in the case, but that
was never done.

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

Hair Evidence Preserved


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 7 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 2 other suspects who blamed Jones for the killing and escaped the death
penalty.

"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."

(source for both: Texas Observer)

********* Hair ordered preserved in Texas execution case


A Texas judge ordered that a hair that could exonerate a man executed for
a 1989 murder be preserved for possible DNA testing, a legal reform group
said on Monday.

Judge Elizabeth Coker in San Jacinto County north of Houston issued a
restraining order against destruction of the hair and set an October 3
hearing to decide whether DNA tests should be performed, said the
Innocence Project in a statement.

At issue is whether the hair belonged to Claude Jones, who was executed on
December 7, 2000, for a November 1989 liquor store robbery and murder.

The hair was found on the liquor store counter and used by the prosecution
to prove his guilt. An expert witness for the state said it was consistent
with Jones' hair, but it was not DNA tested.

The other primary evidence came from trial witness Timothy Jordan, who
said Jones told him he committed the murder. But Jordan recanted his
testimony in 2004.

The Innocence Project, which works to get wrongful convictions overturned
through DNA testing, the Texas Observer newspaper and other groups filed
on Friday a motion requesting the preservation of the hair and that DNA
testing be ordered.

San Jacinto prosecutors had not promised to save the hair, which has been
kept with other exhibits from the trial, and said they would get DNA tests
only if ordered to.

Innocence Project attorney Nina Morrison said "DNA testing could show that
Claude Jones was guilty, or it could show that the state had no basis for
executing him."

Texas leads the nation in executions with 403 conducted since 1982. It
also leads in the number of people -- 29 since 1994 -- who have been
exonerated through DNA testing, the Innocence Project said.

(source: Reuters)

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

Necessary punishment----Death penalty needed for system


Kenneth Foster was scheduled to die on August 30. He was convicted of
capital murder, and sentenced to death. However, on the day of his
execution, Governor Perry commuted his sentence because he was tried as an
accomplice in the case.

The commuting of Foster's sentence, which didn't dispute his guilt or the
facts of the case, has sparked the ever present debate of whether or not
the state needs the death penalty. The fact is, it does.

It's an unpleasant truth, but our society needs an absolute penalty,
reserved for only the most heinous crimes. Harris County District
Attorney, Chuck Rosenthal, agrees. "It's the ultimate penalty, and that's
something we need," he said. The death penalty is even more severe than a
life term in prison, and unfortunately, some crimes in our state deserve
it. All crimes are not equal, and the very worst of them shouldn't be
given the same punishment as lesser ones.

Often, critics of the death penalty say that it is unfair. But the process
surrounding the death penalty is an impartial and just system. The penalty
is only applied to the worst of crimes, and even then, the decision
whether or not to pursue it is carefully weighed, based on the facts of
the case.

Those against the death penalty also claim that innocent people could be
sentenced to death, but in reality that doesn't happen. "By the time
someone is put to death, the case has gone through the appellate system,
sometimes even up to the U.S. Supreme Court," said Rosenthal, who has been
in the DA office for about 30 years. "So many people have reviewed the
facts [that] there aren't going to be mistakes."

Criminals convicted and sentenced to the death penalty often go through
years of appeals, with ample chance to prove their innocence. The death
penalty is taken quite seriously, and the court system realizes that there
is no room for error. Foster's reprieve from the death penalty, even
though he is still guilty of his crime, is a prime example.

Opponents of the death penalty should take a look at countries where it
doesn't exist. Mexico is the closest example of a nation without the death
penalty, and their need for it is obvious. Mexico struggles with high
rates of violent crime and robberies in addition to a growing drug
trafficking industry and all the problems that stem from it. If a death
penalty like the one in Texas was introduced, it would surely serve as a
deterrent to criminals, or at the very least, keep some of them off the
streets for good.

The people of countries like Mexico realize this. "I've spoken with
journalists from places where the death penalty has been outlawed, like
Spain and Mexico," Rosenthal said, "and they say that if it were put to a
popular vote, [those countries] would have it."

What's hard for some people to swallow is the fact that some people
deserve to die for what they have done. Some crimes are so violent and
malicious that the people who commit them should have to pay with their
lives.

"When people see the facts of man's inhumanity to man," Rosenthal said,
"even opponents of the death penalty realize sometimes it's necessary."

(source: The Battalion)

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

Readers Disagree On Capital Punishment


EDITOR'S NOTE: This week's discussion topic: Do you agree with the Texas
law which authorizes capital punishment for accomplices in murder cases
even if they didn't do the actual killing? Should capital murder
defendants be tried individually?)

MADE HIS CHOICE

Kenneth Foster should have been executed as scheduled. This man was more
than just a willing accomplice in this murder. He willingly drove his
buddies on an armed robbery spree, which ended up with someone being
murdered.

He was there, drove them to different locations for the robberies and
followed the murder victim home to rob him. Foster was 90 feet away.

Wasn't near far enough in my opinion. He shouldn't have even been there in
the first place. He had a choice. He could have said no, he was not
driving them around to rob people. But he chose to do the driving, which,
in my opinion makes him just as guilty as if he had pulled the trigger
himself.

He made the choice when he got behind the wheel, driving his buddies
around while they robbed people. The victim may well be alive today if not
for Kenneth Foster making the decision to participate in this crime spree.
I put him even more responsible for the death than the trigger man. He, as
well as all involved, should be tried together. They did the crime as one
they should be tried as one.

Linda E. Montrose----Frankston

------

SPEED IT UP

I believe that if you are sitting on death row, you are guilty - period.
You have exhausted all of your rights and wasted untold amounts of hours
and money fighting your sentence.

I don't care if you pulled the trigger or were sitting in the car
listening to the radio. You made a stupid decision to hang out with a
criminal and you should be held responsible. Kenneth Foster knew exactly
what was going to happen and he did nothing to stop it.

The only thing that should change regarding capital punishment is how fast
it takes. Speed it up.

This may sound harsh, but so is murdering someone.

Heidi Lockridge----Flint

------

RIGHT DECISION

I will have to side with Governor Perry on his issuing a reprieve to
Kenneth Foster for his participation in the hold-up that ended in murder.
It doesn't surprise me that it took a public outcry to get our Governor to
do what he should have done in 2004. What office is he planning to run for
next, when he gets his snoot out of the public trough this time?

Face it, the person who should be in the hot seat over this ridiculous
miscarriage of justice is the D.A. that prosecuted the case in the first
place. I have no problem with saying if you are an accomplice in the
murder, you are just as guilty as the guy/gal who pulled the trigger. My
problem with this case is with the D.A., who prosecuted the trigger puller
and the getaway driver in one trial, while trying the two who were up
close and personal during the murder separately.

You will notice, that they both got life. If the D.A. really wanted
justice for all 4, he would have tried them all together. Then all three
that were aiding in this crime would probably have received the same
sentence.

Don Hopper----Flint

------

ENFORCE THE LAWS

I agree with the "law of parties." How many people involved in the LaHood
murder were really "surprised" when he was shot?

By the way, shooting someone in the face is a personal and especially
cruel crime. I would be willing to bet this crowd planned to "bust a cap"
in somebody. A "botched robbery" is a defense lawyer's fantasy. The whole
party should all get the same penalty. That would be death.

The death penalty is probably not much of a deterrent. It is, however, a
punishment for a crime done. It does work. The one who is executed will
never do that crime (or any other for that matter) again.

A life sentence, on the other hand, should be for life no matter for what
crime it was awarded. Life in prison should be exactly that, life.

I am no saint. I'm probably not even a good Presbyterian, (though I try).
I know too many people from disadvantaged backgrounds who are successful
to believe blame for crime can be placed anywhere but the shoulders of the
criminal. Enforce the laws and allow people to defend themselves, what a
great idea.

R.W. Moore----Tyler

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CAPITAL PUNISHMENT

I believe capital punishment is a useful tool to deter crime and would
work better if the appeals process were shortened to insure effective and
speedy results.

I am a "do the crime -you do the time" type. All I ask is for the system
as unevenly as it is applied and as flawed as it appears at times follow
the rule of law according to our trampled and abused constitution.

If after the process it is practical to commute sentences of some, so be
it. But make it fair and speedy according to the law of the land. Use
every available process to hand down fair and equitable sentences.

That is why this is still a great nation. We can agree or disagree on our
rule of law and not go around killing others just because we can't agree
like some nations I could mention.

The capital punishment question has been down just about every road we the
people can send it. It is now the law of our land in most states.

If the pendulum swings the other way in a few years or decades, so be it.
I just hope some one doesn't kill me or my loved ones just because the
jails and prisons are too crowded, and they were let out early. This has
happened a lot more than the media will let us know. But find out someone
that was incarcerated by mistakes and lack of due and proper process and
it is in every newspaper, TV, radio and Internet blog. I say keep capital
punishment as part of our process.

Clarence G. Brown----Mineola

(source: Letters to the Editor, Tyler Morning Telegraph)