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DNA Test Suggests Texas May Have Executed An Innocent Man

The Texas Observer takes note of the case of a man executed in Texas more than a decade ago who quite possibly may have been innocent:

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

This wouldn’t be the first case of a Texas execution being called into question. Last year, an arson expert pretty much definitely established that the 2004 execution of Cameron Tood Willinghman was based on faulty expert witness testimony:

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson — a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country’s busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all — the same findings found in a Chicago Tribune investigation of the case published in December 2004.

In Jones’s case, his conviction rested on an inexact science:

At Jones’ 1990 trial in rural San Jacinto County, prosecutors offered only one piece of corroborating evidence—the strand of hair recovered from the liquor store counter.

Stephen Robertson, a forensic expert hired by the Department of Public Safety, examined the hair under a microscope—an inaccurate visual analysis that was common at the time. Robertson compared the hair with samples taken from 15 people who entered the store the day of the murder. He testified at trial that he believed the hair matched Jones. But he conceded, “Technology has not advanced where we can tell you that this hair came from that person,” he told the jury, according to court records. “Can’t be done.”

But in 2000, when Jones was fighting for his life, it could be done. On December 6, 2000, the day before the execution, Jones’ attorneys filed a last-ditch motion for a stay—in district court and with the Texas Court of Criminal Appeals—so they could submit the strand of hair for mitochondrial DNA testing. Both courts turned him down.

Jones’ last hope was Gov. Bush, who in December 2000 was embroiled in the Florida recount controversy that followed the presidential election. Bush had already overseen the execution of 151 people during his governorship, but he’d also expressed support for DNA testing. Earlier that year, Bush had granted a 30-day stay to Ricky McGinn so that DNA testing could be conducted on key evidence in the case. (The tests would prove McGinn’s guilt and he was executed.) Bush, explaining his decision in the McGinn case to CNN in June 2000, said, “To the extent that DNA can prove for certain innocence or guilt, I think we need to use DNA.”

In Jones’s case, however, Bush was never told that a DNA test had been requested prior to the request for a stay of execution. So, he denied the request and Jones was put to death. Given his actions in the McGinn case, it’s easy to conclude that then Governor Bush would’ve granted a stay so Jones could also obtain a DNA test. At that point, Jones’s fate would have been in the hands of Rick Perry, Bush’s successor. But we’ll never know.

And that’s the problem.

Along with the facts noted by Steven Taylor in his post earlier this week, cases like this ought to give any death penalty supporter pause. The stories of prisoners freed after decades in prison once DNA evidence definitively establishes their innocence have been numerous in the years since the practice of DNA testing become common. The Innocence Project, the most prominent group involved in this effort, has cleared 261 people over that time period, and that’s just the beginning because many states still make it next to impossible to reverse a convicting post-trial even in the face of overwhelming scientific evidence.

It’s one thing, though, to discover that a man who has been sitting in prison for twenty years is innocent. It’s quite another to discover that someone who was put to death six years ago is innocent, or that one you put to death a decade ago may have been innocent. You can free an innocent man, you can’t reverse a death sentence.

In a comment to Steve’s post, I said this:

The Innocence Project, along with my own experiences over the last 16 years in the criminal justice system as an attorney, have turned this death penalty supporter into an opponent.

Do I think guys like Stephen Hays deserve to die ? Of course, and as Steven said it’s hard not be a DP supporter when presented with a monster like him.

The system, however, is full of far too much uncertainty and arbitrariness for me to be comfortable with the idea of giving the state the power to kill people.

The cases of Claude Jones and Cameron Todd Williamingham only serve to confirm that conclusion for me. Someone who commits a brutal crime should be punished severely, and in the most egregious cases a sentence of life in prison with no possibility of parole is entirely appropriate. I know too much about how “the system” works, however, to think that it is in anyway appropriate to give the state the power to put people to death based on a process that is inherently flawed and far too arbitrary.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. mantis says:

    The death penalty has to go, not because there aren’t any criminals who deserve death, but because the justice system can’t be trusted to get it right. Innocent people sometimes get convicted of crimes, and if you have a death penalty, it’s inevitable that some innocent people will be murdered by the state.

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  2. Boyd says:

    I, too, oppose the death penalty because the states have been proved wrong far too many times, and as you mentioned, Doug, it’s irreversible.

    Although I came to this conclusion several years ago, the thought just now occurs to me: where does the jury figure into all this? I’ve never served on a jury so I have no personal experience to draw from, but I must pause and wonder how a jury can convict a man based on the presence of a single hair, especially when the forensic expert working for DPS testifies that it can’t tell you that the defendant was present at the scene of the murder.

    I just have to wonder if many juries give too much deference to the prosecution in these kinds of cases. Someone was murdered, so someone must be found guilty and be punished appropriately.

    Even if we’re wrong about who committed the crime.

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  3. Ben says:

    I am personally against the death penalty for moral reasons. But I understand that two people can reasonably hold different views on that. As long as we can both agree that the legal system (and one could argue ANY legal system) is not trustworthy enough to trust with the power to kill someone, then I could sleep better at night.

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  4. PD Shaw says:

    Boyd:

    First, I would point out that people opposed to the death penalty cannot serve on a jury, so the jury composition is skewed (death hardened).

    Second, we may not have the whole story on the hair testimony. The expert certainly would not have been allowed to testify by the judge if his testimony was as equivocal as suggested here.

    Third, read the background on the guy. “Innocent” people don’t find themselves in this situation. The guy was a repeat violent felon. I don’t know how much of this background was given to the jury, but the prosecutor will work hard to provide whatever it can.

    Fourth, it was an accomplice case. I’m sure that the jury did not feel much remorse if they sentenced to death the guy in the get-away vehicle.

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  5. Steve Verdon says:

    Who cares, kill them all; God will know his own!

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  6. Herb says:

    “So while the results don’t exonerate him, they raise serious doubts about his guilt.”

    You’d think that having only “a strand of hair” to prove he murdered someone would be sufficient to do that on its own. I don’t think we need to get rid of the death penalty. I think we need to get rid of shaky convictions.

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  7. Steve Verdon says:

    You’d think that having only “a strand of hair” to prove he murdered someone would be sufficient to do that on its own. I don’t think we need to get rid of the death penalty. I think we need to get rid of shaky convictions.

    You’d be surprised how many people would walk out of prison then. The Innocence Project has provided an interesting test for things like eyewitness testimony (it can often be rubbish), confessions (false confessions are a very real problem). Forensic “science” was created by police departments for the purpose of helping to convict suspects….not to find the truth. This, by itself, creates a serious potential for bias. The use of jailhouse snitches is another problem area where suddenly hearsay evidence becomes good as gold.

    Might as well as just redo nearly everybody at that point.

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  8. PD Shaw says:

    Herb, the hair was corroborating evidence. The jury would have also heard the guy who provided the gun testify under oath that Jones confessed to the killing.

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  9. Trumwill says:

    First, I would point out that people opposed to the death penalty cannot serve on a jury, so the jury composition is skewed (death hardened).

    Depends, actually. My home state had the death penalty set up so that the jury didn’t directly make the call. The way it worked was that the jury would answer three questions about the nature of the crime and if any of those answers were “yes” and the prosecution was seeking the death penalty, the judge would apply it.

    This distinction is important because I am opposed to the death penalty and though the prosecution tried to get me tossed into the pool., the judge wouldn’t do it because I said that I could answer those questions truthfully. I didn’t serve on the jury, but the prosecution had to use a strike on me. The decision took the jury and judge less than an hour. There was not much doubt of the man’s guilt, though.

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  10. Anon says:

    Yes, but the people who testified against Jones were his supposed accomplices. Let’s suppose that in any given situation like this, we are 99% sure that the person on trial is guilty. That’s still going to result in a lot of wrongful executions. Give them all life without parole instead.

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  11. PD Shaw says:

    Interesting Trumwill. The exact question does matter.

    When I worked at a d.p. appeals center, looking at transcripts, I remember finding an interesting racial pattern in one case. The prosecution would ask whites whether they could impose a death penalty if the law required it. With blacks the prosecution would lead into the question by first asking if they considered themselves to be religious. And then they would ask if they had moral concerns that would prevent them from imposing the death penalty even if the law required it. Basically, I could tell the race of a potential juror by the religious preface to the question and how tight the question was. (BTW/ this defendant was not black)

    Anyway, I was very proud of this discovery, but was told by the lawyer in charge that it was interesting, but the defense attorney had not used all of his strikes, so it may not be considered prejudicial.

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  12. Franklin says:

    I think we need to get rid of shaky convictions.

    A bit pie-in-the-sky-ish, but if you’re suggesting that a higher threshold be required specifically for the death penalty, it would certainly be an improvement from the current situation. If we’re not going to simply ban the death penalty, then “beyond a reasonable doubt” should become “no f**king doubt at all”. And yes, I realize this might throw a wrench into the separate sentencing phase.

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  13. Herb says:

    “if you’re suggesting that a higher threshold be required specifically for the death penalty, it would certainly be an improvement from the current situation.”

    I’m okay with that.

    My views on the death penalty were changed forever after Tim McVeigh. Before that, I was one of those “How dare the state kill people” types. After Tim McVeigh, I recognized there is a place in our criminal justice system for the death penalty. Sometimes –rarely, thank God– it is the most appropriate punishment on the dock.

    With that said, I don’t think the death penalty is a deterrent to anything. To me, it’s purely punitive. You punish an act that has already occurred. You have no hope of preventing future acts by other people. I think a lot of folks in Texas think there’s some kind of deterrent factor at play, which is why they have a lot of death penalty cases. If we stepped back and reserved it for the worst of the worst, very few innocent people would be killed. But if we rush around trying to prove a point (capital punishment is a crime deterrent) then yeah, innocent people will be killed.

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  14. george says:

    I think the results of DNA testing over the last decade have changed a lot of people’s minds about the death penalty – its shown how shaky witnesses testimonies can be … even from witnesses who were 100% sure they had the right person.

    There may well be people who deserve to die, but I don’t trust our ability to determine who those are any more … and as was pointed out above, the death penalty is irreversible.

    Funnily enough, I think that the death penalty is in fact a minor deterrent, but that is more than outweighed by the huge uncertainty that anyone convicted of murder is actually guilty … and killing even one innocent person is too many.

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  15. Tim says:

    It’s so odd to me that such a great, inspiring nation like America can also be so petty, merciless and brutal — both in its exercise of the death penalty and the outrageous number of people it has locked up in its prisons. Americans tend to be kind, nice and polite, and yet they bay for blood at the drop of a hat. All I feel is despair.

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  16. MarkedMan says:

    There are many reasons I oppose the DP, but here are three that were formative for me:
    1) During OJ’s trial, while discussing the possibility of the DP, one trial lawyer said “No possibility”. When asked for the legal reasons he instead pointed out that of all the people in the country on death row at that point, not a single one had a private attorney at the time of the original conviction.

    2) When I was growing up there was constant refrain against the liberal court system and how murderers got off on technicalities. The poster child for this was a lawyer named F Lee Baily and his client, Sam Shepard, who walked free in the killing of his wife and child. The police chief made it abundantly clear they knew he was guilty and only got off due to that tricky lawyer. A broken man, Shepard turned to alcohol and died a wreck. His surviving son (?) never gave up and many, many years later not only proved him innocent but showed just what unethical lengths the police went to in order to help convict a man they ‘knew’ was guilty. If the guy hadn’t had a great lawyer he would have been electrocuted.

    3) Over the years, I’ve seen what lengths prosecutors and police departments will go to when someone is shown to have a real case for innocence. They become vicious and use every legal trick to hurry the execution along. Having this play out in the media hurts us as a society. In our desire to have our government kill the bad guys for us, we ensure that those government officials are, or become, increasingly callous and vindictive.

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  17. john personna says:

    DNA Test Suggests Texas May Have Executed An Innocent Man

    Dog bites man.

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  18. Dodd says:

    I have deep reservations about the possibility of rendering fair and just death penalty verdicts that lead me to lean against the practice as a practical matter. This case neither supports nor weighs against that inclination:

    The evidence at Jones’ trial was conclusive. A number of witnesses placed Jones at the scene of the crime, including Leon Goodson, who heard the shots and watched Jones leave the liquor store. A strand of Jones’ hair was found at the murder scene. Also, Timothy Jordan testified against his partners in crime. Jones was convicted of capital murder and received the death sentence. Dixon was convicted of murder and received a 60-year prison term. Jordan received a 10-year prison term.

    Also, its moniker notwithstanding, the Innocence Project hasn’t proven the innocence of anyone (or, at least, not very many; I don’t claim to be conversant with every casefile they’ve worked). Many of the exonerations they’ve secured have come from technicalities. I’s a laudable to work to ensure defendants’ rights are protected, but it’s not proof of innocence. See, OJ, supra.

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  19. Dodd,

    The point in the Jones case is that there was additional evidence that may have suggested his innocence, or at least provided a basis for either reasonable doubt or a sentence less than death, that was not presented at trial. Nor was the possibility that this evidence might exist brought to then Governor Bush’s attention when Jones’s case was presented to him in December 2000 (which is why the efforts of a few people I’ve seen elsewhere online to blame Bush for this are insane).

    Jones may well have been guilty, the point (at least for me) is that the way his case was handled from beginning to end is a prime example of why the criminal justice system should not be trusted to impose the ultimate sentence.

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  20. Ben says:

    Dodd,
    If there is anything the Innocence Project has taught us, its that eyewitness testimony is the MOST fallible type of evidence, and the fact that Jordan received a 10-year sentence in exchange for testifying against the others makes me automatically discount everything he says. Anytime someone is presented with the option of implicating someone else in ANYthing in exchange for a shorter sentence, they’re going to come up with a way to do it. The strand of hair was the ONLY physical evidence they had against Jones, and now they’ve shown that it was not his hair.

    As for your statement about the Innocence Project, you’re simply wrong:

    “Among our cases that go to DNA testing, the DNA proves our clients innocent about as often as it suggests they are guilty. In a review of Innocence Project cases that went to DNA testing and were then closed over a five-year period, DNA testing proved innocence in about 43% of cases, confirmed the prosecution theory in about 42% of cases, and was inconclusive or not probative in about 15% of cases. ”

    And your use of the word “technicalities” immediately makes my BS detector go off. What, pray tell, are these technicalities you speak of? What does that word even mean? Are you talking about when they have shown prosecutorial misconduct or the withholding of exculpatory evidence? I don’t consider those to be technicalities.

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  21. Paul says:

    “innocent” man is kind of a stretch. He once also murdered a cellmate by lighting him on fire. Isn’t anyone asking why he waited until the day before his execution to try testing the DNA?

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  22. george says:

    ““innocent” man is kind of a stretch. He once also murdered a cellmate by lighting him on fire. Isn’t anyone asking why he waited until the day before his execution to try testing the DNA?”

    I suspect that decision was his lawyers and not his.

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  23. Robert Anderson says:

    The death penalty is the ultimate expression of the brutality that lies at the heart of our socio-economic and socio-political systems.

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  24. Xrlq says:

    Oh, “innocent” my [insert symbol of Democrat Party here]. The guy’s involvement in the armed robbery leading to the owner’s death is not in dispute. The only question is whether he was the triggerman or whether he was “only” guilty of felony murder.

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  25. george says:

    Look, you just have to have faith in the gov’t, they know what’s best. If they think someone is guilty, then they’re guilty … they’re as infallible in this area as they are in everything else.

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  26. ZZ says:

    This guy wasn’t just found guilty and executed just because of his DNA. He was found guilty because of his DNA AND the fact that he was a scumbag.

    If, for some bizarre reason, erroneous DNA testing implicated ME in a liquor store shooting, I would be able to challenge it because I have no criminal record, don’t drink, and would have an alibi because I live a responsible life. Throw all those advantages to the wind, and you take your chances in life.

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  27. kfo90 says:

    Everyone should read about this guy on the state’s attorney website :

    http://www.clarkprosecutor.org/html/death/US/jones682.htm

    After reading the article by Mr. Mataconis, I was saddened to be reminded that such things happen in our courts. I am, and always have been, against the death penalty because of the possibility of executing innocent people. But it turns out that, in this case, the accused was pretty certainly guilty.
    It is not true that “his murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair.” There were witnesses who saw him entering and leaving the scene of the crime after hearing the shots fired. His accomplice testified against him. He had already been convicted of several robberies and two other murders during his long life of crime, the last one being when he was in prison and decided to throw gasoline on someone and then light them on fire. Also, according to the above website, he first requested DNA examination of the evidence, then tried to withdraw the request. Also, he made NO clemency request to Governor Bush.
    As I said previously, I am against the death penalty. But this kind of reporting does more to hurt the cause than to help it. Let’s stick to legitimate wrongful convictions. There are enough of them without resorting to inaccurate stories.

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  28. ZZ says:

    If you participate in a crime where someone is murdered, you deserve the death penalty, whether you pulled the trigger or not. Period.

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  29. Ryan Waxx says:

    The death penalty is irreversible.

    But then, so is imprisonment. Sure, you can free the imprisoned. Does that give him his 20 years back? So the death penalty isn’t quite as unique as you claim, and that’s why it’s better to use the lessons we learn from DNA to improve the system for every accused person, not just people sentenced to death.

    Anti-DP advocates argue via anecdote, then follow those anecdotes with unsupported claims about likelihood, which is a statistical claim. People who would claim their positions are supported by science should know better than that.

    Also, “his murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair.”?

    This is the internet – we can fact-check your butt. Never forget that.

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  30. Ryan Waxx says:

    “In a review of Innocence Project cases that went to DNA testing and were then closed over a five-year period, DNA testing proved innocence in about 43% of cases…”

    Let me guess. Mr. “guilty of murder but possibly not the triggerman” counts in your stats as innocent, right? This is why no one trusts the anti-DP lobby.

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