CHAPTER EIGHT: DID HE EXECUTE ANYONE WHO WAS INNOCENT?

 

 

            It is impossible to determine with certainty whether or not George W. Bush executed anyone innocent while he was Governor of Texas.  Usually, once someone is executed all evidence from the case is destroyed, a practice which clears room for the storage of other evidence and safeguards ascendant political careers.  Also, lawyers, investigators, and journalists are disinclined to invest large resources in proving the innocence of the dead when their lives can no longer be saved.  For purely pragmatic reasons, efforts are instead invested in proving the innocence of the living.

            Still, a number of factors point to the high probability of Gov. Bush having executed an innocent person.  The first factor is purely mathematical: in recent years some 1% of death row inmates nationwide have been found factually innocent and released; more than 100 people have been released from death row on grounds of actual innocence since 1973.  Since Gov. Bush executed 152 people during his tenure, sheer statistics suggests the probability that at least one of them was innocent.

            But a stronger argument can be made by looking at individual cases.  In these cases the terrible inadequacies of the Texas capital justice system come to light, including poor legal representation, suspicious police work, unethical prosecutions, death-selected juries (juries selected by the prosecution for their harsh law-and-order views), a bogus appeals process, and sham clemency procedures.  The cases presented will be arranged in order of doubt, from possibly innocent to probably innocent to innocent beyond a reasonable doubt. 

            No, you can’t have your DNA testing Part I.   On February 1, 1988 Terry Hokanson was stabbed repeatedly.  Before dying she stumbled into a parking lot, called for help, and was assisted by three boys and then a police officer.  She told two of the boys that she thought she had known her assailants when she went for a ride with them, but when she got into the car she realized that she did not know them.  When the officer arrived, she gave her name and other details of the case to him before dying.  One month later, Frank Basil McFarland was arrested for the crime.  The other suspect, Michael Wilson, had been killed between the time of the murder and any arrest.[1]

            Two witnesses testified that, before his death, Mr. Wilson told them that he and Mr. McFarland had committed the crimes.  Both witnesses were subject to pressure from law enforcement officials: Rachel Revill, Mr. Wilson’s girlfriend, was an illegal immigrant and Mark Noblett was released from an arrest warrant for a probation violation a day after the trial ended.  In a sworn affidavit Mark Noblett’s own mother rebutted his testimony, but she was not called to testify.  A witness to the conversation who would have rebutted Mr. Noblett’s testimony, Larry York, was also not called to testify, calling into question the competence of Mr. McFarland’s attorneys.  Another witness for the prosecution had a pending arrest warrant which was dismissed after trial; the reason given for the dismissal was “key witness in a murder prosecution in Texas.”

            During the trial, the prosecution suggested that Mr. McFarland might have been involved in Mr. Wilson’s murder.  The real murderer was apprehended and convicted years later and had no connection with Mr. McFarland.

            The two boys who had spoken with Ms. Hokanson before she died were not called to testify.  Only the boy who had not spoken with her was called to testify.  The sworn statements of the two boys who had spoken with her, which suggested the innocence of Mr. McFarland, were never given to the defense by the state.  In those statements, both boys mentioned seeing a white car at the scene of the crime.  But at trial, five police officers and a dispatcher testified that the boys had seen a blue car.  Mr. McFarland’s car was blue.  The two boys’ sworn oral and written statements were suppressed by the state for seven years, until they were recovered under the Freedom of Information Act.

             A police officer testified at trial that Ms. Hokanson and Mr. McFarland knew each other before the incident.  This seemed like a somewhat strange claim.  One would assume that, had Ms. Hokanson known Mr. McFarland, she would have named him as her murderer before she died.  But Ms. Hokanson did not name the murderer prior to her death, bolstering the defense’s claim that the assailant was unknown to the victim.

            Analysis of semen found in the victim could have come from Mr. McFarland or from 6% of the Caucasian population in the U.S.  Rabbit hair in Mr. McFarland’s car could have come from the victim’s own coat or from the coat of Mr. McFarland’s girlfriend, but it was not mentioned at trial that his girlfriend owned and wore a rabbit hair coat.  DNA testing on hair found in the victim’s hands was inconsistent with that of Mr. McFarland or his co-defendant.

            As Mr. McFarland’s execution neared, no further DNA analysis was performed on evidence recovered from the victim although such analysis was requested by defense attorneys.  This analysis could have ascertained Mr. McFarland’s guilt or innocence due to dramatic improvements in forensic technology between the time of his trial and the time of his execution.  Despite the lack of this crucial and conclusive evidence, Governor George W. Bush signed Mr. McFarland’s death warrant, and he was executed on April 29, 1998.

            Killed by multiple conflicting stories.  Deputy Clark Rosenbalm, Jr. was a hard working, diligent police officer, patrolling the streets at night, working on his degree during the day, and trying to be a good husband at the same time.  On the night of December 4, 1983 he stumbled across a drug deal involving three men: Troy Farris, Vance Nation, and Charles Lowder.  Deputy Rosenbalm was shot and killed.  A year went by without any arrest or significant leads in the case.[2]

            Then Vance Nation mentioned the murder to a police informant at a party, and all three men were arrested.  Jimmy Daniel, Mr. Farris’ brother-in-law, came forward and said that Mr. Farris had confessed to the crime: “He was scared of being caught with an ounce of marijuana,” he explained.[3]   

            Mr. Daniel also took investigators to a tree into which Mr. Farris had fired shots a year earlier.  The bullets from the tree did not match those which killed Deputy Rosenbalm.[4]  On top of that, Mr. Daniel also said that Mr. Farris had told him he had thrown the murder weapon into Marine Creek Lake, but trained police divers could not find the gun.  Still, lead prosecutor Mike Parrish would describe Mr. Daniel’s testimony as essential: “Without Jimmy Daniel’s testimony, we probably couldn’t have gotten a conviction,” he said.[5]

            Suspicions arose as to Mr. Daniel’s motivation for assisting the police.  There was a history of bad blood between Mr. Farris and Mr. Daniel, going back several years before the murder.  Mr. Daniel is now divorced from Mr. Farris’ sister. 

            Vance Nation, who also had a capital charge pending against him, testified against Mr. Farris at trial.  Both he and prosecutors denied that any deal was cut, but a year after Mr. Farris was sentenced to death, Mr. Nation’s capital murder charge was dismissed after he pleaded guilty to possession of marijuana, giving him a seven-year probated sentence. 

            Charles Lowder, who was also at the murder scene, testified that Vance Nation had tackled Deputy Rosenbalm and Troy Farris had shot him: “Van Nation had gotten out and ran around to the front of the pickup to distract the cop while Troy was talking to him . . . I don’t think the cop had ever seen Van . . . about the time Van grabbed him, a shot was fired.  I think the shot was fired by Troy from the pickup.  Before the shot was fired, Van had taken the officer’s gun and thrown it on the ground.”[6]  Capital charges against Lowder were later dropped as well.  His case file was stamped, “Defendant granted immunity.” 

            Later, Mr. Lowder would recant his testimony, saying that he neither heard nor saw the shooting because the patrol car’s spotlight was too bright and the radio in his Monte Carlo was too loud.  He no longer believes that Mr. Farris killed the officer.  “God, I can’t believe they’re about to execute that boy,” he said.

            Mr. Farris argued that as he drove away from the scene he saw Mr. Nation tackle Deputy Rosenbalm.  Mr. Louder, on the other hand, believes that the officer was killed by someone else after all three men had driven away.  Before the trial, Mr. Farris was offered a plea bargain: plead guilty and get 45 years in prison.  He turned it down since there was no physical evidence linking him to the crime, and he expected an exoneration.

            Deputy Rosenbalm’s immediate supervisor at the time of the killing, Richard Toy, believed that the evidence did not point to Mr. Farris as the killer, his widow said.  “He [Richard Toy] always said they’re going to put an innocent man to death.”

            Sheriff’s Captain Johnny Prince, a lead investigator in the case, was later charged with perjury and fabrication of evidence.  He gave three different stories as to why the marijuana disappeared from the crime scene and pleaded the Fifth at Mr. Farris’ trial.  Later, a special prosecutor investigating various improprieties in the case concluded that the “conduct of Johnny Prince was improper, and possibly criminal in nature” but that he could not be charged with any crime.

            The Texas Court of Criminal Appeals wrote that there were severe problems involving the investigation of the shooting.  “Overall, the crime scene was not well preserved” and “certain evidence” had disappeared, including marijuana found in Deputy Rosenbalm’s coat pocket, “plaster casts taken of certain tire tracks in the area,” and photographs of the interior of his patrol car.  Had the marijuana been preserved, it could have yielded valuable DNA evidence.  The deputy’s flashlight, which was stained by blood, was also lost, and DNA with it.  “The circumstantial and forensic evidence offered at trial not only failed to connect Farris with the killing of Rosenbalm, but also failed in nearly all material respects to confirm the testimony of Nation and Daniel,” the Court of Criminal Appeals wrote. 

            They also noted that Mr. Daniel (Mr. Farris’ brother-in-law) had contradicted himself between the grand jury trial and the criminal trial: “We are not unmindful that Daniel’s credibility was seriously undermined by the fact that he had previously testified under oath before the Grand Jury in a manner inconsistent with his trial testimony and, therefore, inconsistent with Farris’ guilt.”  Nevertheless, the Court allowed the execution to proceed.

            Mr. Farris’ attorneys appealed to the Texas Board of Pardons and Paroles for clemency.  The Board almost always votes unanimously against clemency, but in this case five of the eighteen members voted for clemency, and two added statements to their votes, expressing their doubts about Mr. Farris’ guilt.  Tom Moss, a retired federal parole officer, said that in Mr. Farris’ case he “saw something that may have indicated that they were innocent.”[7]

            Gov. Bush was unconvinced and denied Mr. Farris a reprieve.  Troy Dale Farris was executed January 13, 1999.  Cynthia Moss, a member of the Board of Pardons and Paroles, said she cried all day after Texas executed Mr. Farris: “I wasn’t sure he should have been given the death penalty . . . . That’s why I voted to commute.”[8]  A commutation would not have involved setting Mr. Farris free, but simply reducing his sentence to life in prison.

            After the execution, Mr. Farris’ brother Joe Farris came to pick up his brother’s body.  He faced unexpected bureaucratic difficulties and hurdles; the funeral home charges and necessary permits added up to $2,300.  Because the family couldn’t afford the funeral home’s transportation costs they transferred the corpse themselves in their Suburban.  But before they left, the prison administration demanded one more thing from them: the white jumpsuit on Mr. Farris’ body, which had his name and prison number permanently dyed into it.  Having no other clothes for his brother, Joe Farris drove him from Huntsville, Texas to Marietta, Oklahoma naked in a cardboard coffin.

            Mr. Farris’ family was originally going to bury him in Tarrant County, Texas but the family grave site was very close to the Rosenbalm family’s gravesite, and Troy Farris feared that his burial there would disturb the Rosenbalms.[9]

            No, you can’t have your DNA testing Part II.  In January 1979 a house which had been doused in gasoline burst into flames in Arlington, Texas.  Jayne Markham, 27, perished in the fire, having been bound in a crouched position with insulating wire and tied to a bed.  Neighbors heard her screaming but could not rescue her due to the intensity of the flames.[10]  Escaping from the fire were Steve Rennick and Mindy Crawford.

            Mr. Rennick and Mindy Crawford said that Jerry Lee Hogue, a recent acquaintance of Ms. Markham, had set the fire.  Mr. Hogue said that Mr. Rennick has set it.  Mr. Hogue had a prior rape conviction, which made the prosecutors and police suspect him.  He was convicted of the crime and sentenced to death.

            Years later, Mr. Hogue’s rape conviction was thrown out.  Also, a few weeks before Mr. Hogue was scheduled to die, Mr. Rennick was charged with arson for burning down his own house.  Texas arson investigator Joseph Stewart, after comparing the evidence from the 1979 fire and 1998 fire, started to worry that Mr. Rennick may have set the 1979 fire rather than Mr. Hogue.  The evidence was “disturbingly similar.”[11]  He began working with state officials to try to delay Mr. Hogue’s execution so that further investigation would be possible.

            Mr. Hogue gave a DNA sample to his lawyers who asked that it be compared to DNA taken from the victim’s body.  That request was denied, and Governor Bush went on to deny Mr. Hogue any reprieve.

            On March 11, 1998, the day of Mr. Hogue’s scheduled execution, Mr. Stewart obtained a sworn statement from a women saying that Mr. Rennick had bragged about committing the murder.  “She had no reason to lie to me,” he said.  “From experience, I’ve gotten pretty good (at judging) when somebody’s being truthful.  And from all indications, she appeared to be telling the truth to me.”  He faxed the sworn statement to Governor Bush’s office but received no reply.  Jerry Lee Hogue was executed several hours later.

            When he heard that Mr. Hogue had been executed, Mr. Stewart (the arson investigator) became upset.  “I wasn’t angry,” he said. “ I was just in disbelief.  I figured he’s been in there 20 years.  What was 30 days if there was some doubt?”[12]  Investigating the case, 60 Minutes II asked the state of Texas for DNA evidence recovered from Ms. Markham in order to compare it with the DNA sample offered by Mr. Hogue.  Texas authorities reported that the evidence had disappeared.

            Frame the black guy.  For information on the case of Odell Barnes, please see Chapter Four, “Was the Death Penalty Under George W. Bush Racist?”

            People as good as their word.  Early on November 9, 1986 Allsup’s Convenience Store in Hale Center, Texas was robbed.  Store clerk David Manrrique was shot and killed with a .22 caliber pistol.  Several months later police arrested David Stoker, a local drug dealer, for the crime based on a tip from a police informant.  Mr. Stoker had a prior assault conviction.[13]

            Three people came forward to testify against Mr. Stoker: Carey Todd, another local drug dealer, testified that Stoker had given him the murder weapon which he then gave to police.  It had Mr. Stoker’s fingerprints on it, and a shell casing found in Mr. Stoker’s car matched the murder weapon.  Mr. Todd denied under oath that the police had offered him any incentive to testify.

            Ronnie and Debbie Thompson testified that Mr. Stoker had confessed to the crime; Ms. Thomson said that Mr. Stoker needed the money to pay off a drug debt.  The local police and prosecutor denied that the Thompsons had been rewarded for their testimony in any way.  Mr. Stoker was convicted and sentenced to death.

            Then the prosecution’s case began to unravel.  In post-conviction proceedings Mr. Thompson recanted his trial testimony, saying that he had signed the statement written by his wife regarding Mr. Stoker without reading it, and only because his wife had told him that Mr. Stoker had raped her (a claim which Mr. Thompson no longer believed).  Once he had signed the statement, though, prosecutors told him that if his trial testimony disagreed with the signed statement then they would prosecute him for perjury.

            Ms. Thompson was described by acquaintances as a “methamphetamine whore” who slept with anyone who had drugs to share.  During Mr. Stoker’s trial she left Mr. Thompson for Carey Todd, the primary witness against Mr. Stoker.  She and Mr. Todd split the $1,000 Crimestoppers Award in the case, an award which local officials denied even existed.

            Mr. Todd had given police the murder weapon with Mr. Stoker’s fingerprints on it.  The pistol traded hands often in the Hale Center drug trade.  Mr. Stoker’s brother testified that Mr. Todd had given the gun to Mr. Stoker to fix the trigger, which he did.  Two witnesses testified that Mr. Todd was in possession of the pistol near the time of the murder.

            Mr. Todd had drug and weapons charges pending against him in a neighboring county as the trial began. Although the state denied that Mr. Todd would receive anything for his testimony, a note in the prosecutors’ file noted that his drug charges were dismissed in exchange for his testimony on the very day of that testimony.[14]  The note read, “Dismissed: this defendant helped Terry McEachern D.A. solve a murder case.”

            Officials attempted to hide the fact that Mr. Carey and Ms. Thompson had split the Crimestoppers Reward after the trial.  Initially, Hale Center Police Chief Richard Cordell testified that there was no local Crimestoppers group, but on the stand was forced to admit that he had started it himself.  On the stand, Riley Rogers, a D.A.’s office investigator, denied that $1,000 had been paid in reward for solving the crime.  Later, bank records linked him to a reward payment of $1,000.

            As mentioned above, there was a shell casing found in Mr. Stoker’s car which matched the murder weapon, but Mr. Stoker didn’t own the car when the crime occurred.[15]  It’s not known why anyone would save a shell casing.

            There are also questions about the quality of legal representation in the case: Mr. Stoker’s lead attorney surrendered his law license two years later and pleaded guilty to criminal charges.  The other court-appointed attorney had been a lawyer less than a year.

            At his sentencing hearing James “Dr. Death” Grigson, a psychiatrist who had never interviewed or even met Mr. Stoker, testified that he was a sociopath who would “absolutely” be violent again.

            The prosecution’s argument was based entirely on Carey Todd, a drug dealer and enemy of David Stoker who received money and a dismissal of drug charges for his testimony.  (In a later case prosecutors would refer to Mr. Todd as a “low-life scum drug dealer.”)  But the jury in Mr. Stoker’s trial was aware of none of this.  Nor were they aware of the hidden motives of Ms. Thompson or Mr. Thompson.  A federal appeals court judge noted that it is just as likely that Carey Todd committed the murder as it is that David Stoker committed it.[16] 

            A number of jurors from the trial have stated that if they had known the backgrounds of Mr. Todd and the Thompsons they might have reached a different verdict.  “I don’t know that we would have believed everything,” complained juror Myron Grisham.  “Knowing [Todd] was paid or he got a deal, I would have had a harder time believing his testimony.”  Added juror Wanda Carter, “If we had known some of these things, I’m sure it would have weighed on us.”[17]

            Texas Board of Pardons and Paroles member Thomas Moss, appointed by Governor Bush, has only voted for clemency in two cases – those of Troy Farris and David Stoker.  He wrote a letter to Mr. Stoker’s sisters saying that he regretted the capital verdict since there was a “possibility that [Mr. Stoker] was innocent.”[18]  The Governor disagreed.  George W. Bush denied any reprieve, and David Stoker was executed on June 16, 1997.

             No, you can’t have your DNA testing Part III.  On the night of February 19, 1986 Tammy Livingston, who had recently moved to Texas from North Carolina with her husband Russell, was abducted in her own vehicle from a department-store parking lot.  She was apparently selected at random.  She was stabbed 19 times, and the field where she was dumped was set on fire, badly burning her body.  The next day Yelena Comalander was arrested trying to cash checks that belonged to the victim.  After police interrogated her, she admitted that she had obtained them from her boyfriend Richard Wayne Jones, who had prior convictions for burglary, car theft, and robbery.  He also had an IQ of 75, or the approximate intelligence of a third-grader.  Mr. Jones was arrested the next day and interrogated until he signed a confession.  The confession contained no information not already known by the police.

            Mr. Jones was arrested on February 21, and the clothes he had worn on the day of the murder were confiscated.  Tests determined that two nickel-sized spots on the left leg of the pants matched the victim’s blood.  There was no other blood on his clothing.  An eyewitness identified Mr. Jones as the kidnapper, and he was convicted of murder and sentenced to death.

            Mr. Jones originally claimed that the checks had been given to him by his sister Brenda’s friend, Walter Sellers, and that he personally had nothing to do with the murders.  Later, on death row, he changed his story, saying the he had lied in order to protect his sister Brenda, with whom he had a very close relationship.  Mr. Jones claimed that she had broken down the night of the murder, crying that she and Mr. Sellers had robbed and killed someone.  Mr. Jones drove to Mr. Sellers’ house, where he confirmed the story.  Brenda, who was emotionally close enough to her brother to manipulate him, asked Mr. Jones to dispose of the body for her and Mr. Sellers, since he was the only person they could trust.  Mr. Sellers showed Mr. Jones the body, and Mr. Jones later returned to douse the field in gasoline and burn the evidence. 

            Mr. Jones admitted that he deserved punishment, but denied that he had committed the murder.  He still refused to believe that his sister had committed the murder.[19]

            Mr. Sellers was an ex-convict with prior convictions for similar crimes.  Three witnesses offered sworn statements prior to Mr. Jones’ trial that Mr. Sellers was in possession of items belonging to the victim and was wearing bloodied clothing on the night of the murder.  Scott Christian said that Mr. Sellers tried unsuccessfully to sell him credit cards and checks before giving them to Mr. Jones.  Mr. Christian said that Mr. Sellers “had blood spatters on his T-shirt, and on his hands and forearms.”[20]  James Richard King corroborated Mr. Christian’s statement, and Douglas Wayne Daffern said Mr. Sellers had credit cards and checks bearing the victim’s name.  During the trial Mr. King and Mr. Daffern could not be found.  Mr. Christian was involved in drugs and invoked the Fifth Amendment, refusing to testify.

            Three witnesses, a mother and her two daughters, saw Ms. Livingston abducted from the parking lot.  The mother’s description of the assailant did not match Mr. Jones’ hair color, facial hair, or clothing.  The teenage daughter could not pick him out in a lineup.  Jurors were never informed of these failures by the eyewitnesses.  Mr. Jones was convicted of capital murder and condemned to death.

            After the trial, two more witnesses came forward to testify that in jail Mr. Sellers had told them that Mr. Jones was innocent.  Terry L. Gravelle stated, “Walt [Sellers] told me that the state had convicted the wrong person for the Livingston murder . . . .  He chuckled about it, like he thought it was funny that the wrong man had been sent to prison.”  Mr. Sellers also told Mr. Gravelle that “there was a problem using the stolen checks or cards,” so they were given to Mr. Jones.  These statements were corroborated by Robert Dean Miller, another inmate who had conversations with Mr. Sellers.  (It should be noted that Mr. Gravelle and Mr. Miller had no ulterior motive for offering this information since Texas generally doesn’t reward inmates or released felons who claim it is executing the wrong person.)

            Police never investigated Mr. Sellers for the murder.  One month after the murder he was arrested with a dagger in his possession, but the dagger was destroyed without being tested for links to the killing.

            On appeal, Mr. Jones’ attorneys contended that his confession was coerced.  Police records suggest that he was interrogated for 12 hours without food or sleep.  During his trial, a police officer conceded that he had told Mr. Jones that his pregnant girlfriend would go to death row with him unless he confessed.  The officer later recanted the testimony.  After 21 hours of interrogation, Mr. Jones confessed.[21] 

            Nevertheless, Mr. Jones’ execution date approached.  The Texas Court of Criminal Appeals turned down his appeal based on new evidence, and the Texas Board of Pardons and Paroles voted 17-0 to reject his appeal for clemency.

            But there was one last hope: DNA samples which had never been tested since the technology was unavailable in 1987.  Ms. Livingston’s car had been recovered after the murder, along with hair and cigarette butts.  There was also a rape kit from the crime, although that evidence was inconclusive.  Mr. Jones’ lawyers asked Gov. Bush for a 30-day reprieve for testing on those samples and were optimistic about the reply since Gov. Bush had earlier stated, “Any time evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it.”  They also asked for DNA samples from Brenda Jones and Walter Sellers.  If the samples established that Ms. Jones and Mr. Sellers had been in the victim’s car, then Mr. Jones’ story would appear more plausible, and Ms. Jones’ and Mr. Sellers’ contention that they were not involved in the crime would appear implausible.  Two jurors from the original trial, Barbara Smith and David Watson, came forward and asked the state to do the testing as well, in order to assure them that they had condemned the right man to death.  Ms. Smith said, “Get it done right away and prove or not prove whether the DNA matches or not.  If there’s any chance, he should be given that chance.”[22]

            No reprieve was granted.  Although he had granted one earlier in the month to Ricky McGinn, Gov. Bush [with Lt. Gov. Rick Perry] denied one to Richard Wayne Jones, saying, “In the Ricky McGinn case . . . there was some doubt about whether or not he committed the rape.  In this case, I think you’re going to find that some of the DNA evidence he’s talking about really would not necessarily relate directly to the charge.”  Mr. Bush was out of state, campaigning for President, so Lt. Gov. Perry denied any reprieve.  Mr. Jones was executed August 22, 2000.

            The Tarrant County District Attorney’s office has vowed that evidence from the case will never undergo DNA testing, even if paid for by a private citizen.[23]

            One bullet, two death sentences.  On October 13, 1980 Willie Williams and Joseph Nichols bought corn dogs and soda from a delicatessen in Houston, Texas.  Then they both pulled out their guns and shot.  One of them hit the clerk, Claude Shaffer, in the back, and the other shot missed.  Mr. Shaffer died at the scene.

            Police caught Mr. Williams and Mr. Nichols the next day in Mr. Shaffer’s blood-spattered car.  Because the bullet which had killed Mr. Shaffer was too mangled to provide ballistic evidence, investigators were unable to determine who fired the fatal shot.  This inability would have made getting a murder conviction in the case difficult.  Prosecutors had a simple solution – convict both Mr. Williams and Mr. Nichols of firing the single bullet that killed Mr. Shaffer.  At the punishment phase of Mr. Williams trial, the prosecutor argued, “Willie Williams is the individual who shot and killed Claude Shaffer . . . There is only one bullet that could have done it and that was Willie Williams’ [bullet].”[24]  The jury sentenced Mr. Williams to death.

            Mr. Nichols’ first trial resulted in a hung jury.  So prosecutors retried him, this time arguing that he was the lone murderer.  They presented a crime scenario that completely contradicted the crime scenario presented at Willie Williams’ trial.  “Willie Williams could not have shot [Shaffer] . . . . [Nichols] fired the fatal bullet and killed the man in cold blood and he should answer for that,” they argued.[25]  Mr. Nichols was convicted of capital murder and sentenced to die.

            U.S. District Judge David Hittner found the inconsistency and contradiction by the prosecutors’ repugnant, and deemed their arguments in Mr. Nichols’ case to be “necessarily false.”[26]  He continued, “The integrity of the judicial system commands that citizens can rest assured that prosecutors are seeking truth and justice; and that when they find truth and justice they cannot seek a different truth and a different justice from the first.”[27]  But the Fifth Circuit Court of Appeals then overruled Judge Hittner, saying that the law does not require consistency, and allowed the execution to proceed.

            The standard of proof in any American criminal case is “beyond a reasonable doubt, ” not “more likely than not” or “probably” or even “possibly.”  Prosecutors knew that Mr. Shaffer was killed with one bullet, and that either Mr. Williams or Mr. Nichols had fired it.  It is difficult to understand how the same prosecutors could prove beyond a reasonable doubt that two different people with two different guns had killed one person with one bullet.

            Unquestionably, both Mr. Williams and Mr. Nichols should have been incarcerated for an extremely long period of time (such as life in a maximum security prison without possibility of parole) as punishment for their crime and in order to protect society from their violence.  But a murder conviction with life incarceration wasn’t enough for Texas; it wanted the death penalty, twice.  Problematically, Texas law does not allow execution for felony murder.  So, in order to secure two capital convictions Texas had to present two mutually exclusive crime scenarios.  At least one jury had to be deceived.

            Newly inaugurated Governor George W. Bush denied any reprieve, and Willie Williams was executed January 31, 1995.  Joseph Nichols is still on death row.

            Repeat.  On the night of October 9, 1984 someone burst into the trailer home of Gene Hathorn, Sr., Linda Hathorn, and and their 14-year-old son Marcus Hathorn and shot and killed all three.  Charged with the murders were Gene Hathorn, Jr. and James Lee Beathard.  Mr. Beathard was prosecuted before Mr. Hathorn.  He had no prior involvement with the law other than a hot check misdemeanor which resulted in a year’s probation. 

            At his trial prosecutors argued that Mr. Hathorn fired one shot through the back window of the trailer home while Mr. Beathard burst through the back door, entered the trailer, and shot everyone inside.[28]  Their star witness was Mr. Hathorn.  The state had no other evidence beside Mr. Hathorn’s testimony that Mr. Beathard had shot the three victims.  Mr. Beathard was convicted of murder and sentenced to die.

            Mr. Hathorn’s trial came next.  Prosecutors then argued that Mr. Beathard fired one shot through the back window of the trailer home while Mr. Hathorn burst through the back door, entered the trailer, and shot everyone inside.[29]  Mr. Hathorn was convicted of murder and sentenced to die.

            The primary witness in Mr. Hathorn’s trial was Neal Walter Shiver, a former patient at the psychiatric hospital where Mr. Hathorn and Mr. Beathard worked, currently residing in the Harris County Jail for auto theft.  He said that he and Mr. Hathorn had concocted a plan to kill Mr. Hathorn’s family in which one of them would fire a shot through a rear picture window and the other gunman would burst through the trailer’s back door and kill everyone inside.  They would make the murders look like a random burglary so that Mr. Hathorn could collect his father’s inheritance.  Upon collection, Mr. Hathorn would pay Mr. Shiver for his help.

            After the murders, authorities secretly miked Mr. Shiver as he met with Mr. Hathorn twice.  Mr. Hathorn implicated himself in the crime, but never mentioned any criminal activity by Mr. Beathard.

            Nevertheless, Mr. Beathard was charged with capital murder.  At his trial, the jury was told of Mr. Hathorn’s honesty by the prosecutor, who assured them, “He is telling the truth.  He told the truth before and he is telling it again, and he told it again in here.”[30] 

            But the prosecutor’s analysis of Mr. Hathorn’s character changed radically by the time of Mr. Hathorn’s own trial.  There, the jury was told of Mr. Hathorn’s deviousness.  The prosecutor warned them, “And if he told the truth I’m a one-eyed hunting dog . . . . It ain’t in him.”[31]

            Mr. Beathard claimed that Mr. Hathorn had offered him $1,200 to accompany him for protection on a drug deal.  He says that Mr. Hathorn drove to the trailer, went inside, fired shots, and emerged with an armload of stolen goods.  All the while, according to Mr. Beathard, he sat in the car wondering what was going on.  Mr. Hathorn then threatened the lives of the child of Mr. Beathard’s girlfriend and his nephew if he said anything.  Mr. Hathorn said, “You didn’t see a damn thing out here, you didn’t hear anything out here, if you care about the future of Leann and Kristen, [you] will remember that, and you are in this as deep as I am.”

            Mr. Beathard had lied extensively to investigators throughout the investigation and had contradicted himself numerous times.[32]  Mr. Beathard admitted his errors, but claimed that he was afraid of Mr. Hathorn: “Hathorn had made it real clear to me that I didn’t have a whole lot of options.  I could join the (dead) people inside the trailer, or people in my family could get hurt.”[33]  It was partly on the basis of these lies that the jury convicted Mr. Beathard and sentenced him to death.

            In July 1986 Mr. Hathorn recanted his testimony against Mr. Beathard in a sworn affidavit, saying that he had tricked Mr. Beathard into coming with him that night on false pretenses. He said that his confession had been coerced and that, although there was not a formal agreement for leniency, the prosecutor led him to believe that if he incriminated Mr. Beathard he would not receive the death penalty.  Mr. Hathorn expressed regret for putting his friend on death row.

            The Fifth Circuit Court of Appeal recognized that Mr. Hathorn and Mr. Beathard had been prosecuted on the basis of two mutually exclusive scenarios, one of which must be false.  But the Court concluded that such a prosecution does not violate due process.[34]

            It is entirely plausible that Mr. Beathard participated in the Hathorn killings for money.  It is also entirely plausible that Mr. Hathorn tricked him into coming with him that night on false pretenses.  It is not plausible that both the theories offered by the prosecution in order to secure two capital convictions are true.  Did Mr. Beathard participate in the killings or just sit in the car, confused?  The world will never know for sure.

            But certainty is not required to kill a man in Texas.  Governor George W. Bush denied any reprieve, and Mr. Beathard was executed on December 9, 1999.  Gene Hathorn remains on death row.

            Innocent beyond a reasonable doubt Part I.  Stephen Bright of the Southern Center for Human Rights said, in reference to the Texas death penalty, “I think it’s better to be rich and guilty than poor and innocent.”[35]  The story of Gary Graham may very well be a case in point.

            In north Houston, in May of 1981, a drug dealer and small-time gambler named Bobby Lambert was shot outside a Safeway store.  Police had no murder weapon nor any other physical evidence linking Gary Graham to the crime, but they did have Bernadine Skillern who saw the shooting from about 30 feet away in dim light.  She steadfastly insisted that a local troublemaker named Gary Graham was the perpetrator: “I saw Mr. Graham shoot and kill Mr. Lambert on that parking lot in 1981.  That has not changed.  That is not going to change.”[36] 

            The case sounds cut and dry, except that two other highly credible witnesses said Gary Graham didn’t shoot Bobby Lambert.  Sherian Etuk and Ronald Hubbard both worked at the Safeway and noticed a slim, handsome African-American man loitering around the store in clear light for about 15-20 minutes before the shooting.  Both described him as between 5 feet 3 inches and 5 feet 6 inches; Gary Graham was 5 feet 10.  Mr. Hubbard got a view of the loiterer from two feet away, and saw him run away after Mr. Lambert was shot.  He also attended the police lineup in which Ms. Skillern identified Gary Graham, but Mr. Hubbard said the killer wasn’t in the lineup.

            No one was saying that Gary Graham was a saint.  In a crime spree which preceded the evening of the murder he in all likelihood committed armed robbery, armed assault, and drug distribution.  Gary Graham needed to be incarcerated in order to protect society from him.  But Mr. Etuk and Mr. Hubbard, and several other witnesses, were saying that Gary Graham was innocent of the murder for which he was charged.  They were saying that he didn’t look anything like the killer of Mr. Lambert. 

            One would expect that, at trial, the defense would naturally call Mr. Etuk and Mr. Hubbard to testify.  Then you’d have their word against Ms. Skillern’s, reasonable doubt would be raised, and Mr. Graham would be acquitted of capital murder.  But strangely enough, Ms. Skillern testified at Mr. Graham’s trial, but Mr. Etuk and Mr. Hubbard didn’t.  Why?  Because of Gary Graham’s attorney, Ronald Mock.

            Ronald Mock is a Texas lawyer.  Sometimes he takes death penalty cases, but he usually loses them.  More of Ronald Mock’s clients have been executed than those of any other lawyer in Texas history, and by his own reckoning he had more clients on death row, six, than any other lawyer in the country (as of the year 2000).  And that doesn’t even count his five clients who had already been executed, or the one who died while awaiting execution.  Mr. Mock has been honored for his professionalism by the inmates of the Texas prison system, who refer to the unit where death row inmates are housed as “The Mock Wing.”[37]  He has been reprimanded by the Texas Bar Association five times, and one court investigator said Mr. Mock’s lawyering created “a breakdown in the adversarial system of justice.” In 1995, when Mr. Mock took the newly required certification exam to become eligible for appointment to capital murder cases, he did not pass.[38]

            Did any of these failures compromise Mr. Mock’s defense of Gary Graham?  According to Mervyn West it did.  Mr. West is the investigator who assisted Mock during Graham’s 1981 capital trial, and he swore in an affidavit that he and Mr. Mock devoted little attention to the case because they thought Mr. Graham was guilty.[39]  Mr. Mock’s actions as lawyer confirm this admission.  Mr. Mock never called the two eyewitnesses who said Mr. Graham couldn’t have committed the crime.  Mr. Mock never called any witnesses at all during the guilt phase of the trial, even after two new witnesses approached him and claimed that they had been with Gary Graham on the night of the murder, and he hadn’t committed it.  Mr. Mock explained that he was too busy to talk to them.  Mr. Mock never challenged the prosecution’s claim that the gun recovered from Mr. Graham was “like the one used in the crime,” even though ballistics had established that Mr. Graham’s gun was not the gun used in the crime.

            So why didn’t Mr. Mock call Mr. Hubbard and Mr. Etuk as witnesses?  Mr. Mock explained that if he had put them on the stand, then the prosecutors could have told the jury about Mr. Graham’s other crimes.  That’s not true.  Allowing defense eyewitnesses to testify does not give prosecution the opening to introduce other crimes at trial.  Perhaps a better explanation has been offered by Mr. Mock himself: “I drank a lot of whiskey.  I drank whiskey with judges.  I drank whiskey in the best bars.  But it never affected my ability.  It never affected my performance.”[40]

              But did any of this negligence make a difference?  Three jurors at the trial said they would not have voted to convict Mr. Graham had they heard from those witnesses.[41]  If Gary Graham had received a competent defense, he would in all likelihood be alive today and in jail, which is where he belonged for other crimes committed.

            George Bush has spoken about his Christian faith throughout his political career. The Bible states: “On the evidence of two or three witnesses the death sentence shall be executed; a person must not be put to death on the evidence of only one witness” (Deuteronomy 17.6).  This rather sensible injunction gets short shrift in Bible-belt Texas, though.  The 18-member Texas Board of Pardons and Paroles – all Gov. Bush appointees – recommended that the execution proceed.  The United States Supreme Court, in a 5-4 vote, refused to intervene.  Few seemed to care that the real killer probably still roamed the streets of Texas.  So, over the protests of the international community, human rights groups, and various religious denominations, Governor George W. Bush denied any reprieve, and Gary Graham was executed on June 22, 2000.

            Innocent beyond a reasonable doubt Part II.  On July 13, 1982 three teenagers were seen driving into Koehne Park on Lake Waco in Waco, Texas in an orange Pinto.  The next day Jill Montgomery, Kenneth Franks, and Raylene Rice were found bound and gagged and stabbed to death in Speegleville Park, across the lake from Koehne Park.  The two females had been sexually assaulted.

            Early on, there were several suspects in the case including a local named Terry Harper.  Several witnesses told police that Mr. Harper had bragged about the killings before the bodies were found or news stories regarding the murders had aired.  The witnesses claimed that Mr. Harper had offered details that even some law enforcement officials did not know, mentioning for example that one of the victim’s nipples had been severed in the attack.  Implicating Mr. Harper even more deeply, almost 20 witnesses saw either the victims or their car in Koehne Park on the night of the murders; many saw Mr. Harper with the victims, but no one saw another local (and later suspect) named David Wayne Spence with them.[42]

            Despite these leads, original investigations into the murder failed for various reasons and the case file was declared “inactive.”  Then Waco patrol officer Truman Simons asked to be assigned the case, boasting that he could solve it in a week.  The police chief gave him the case and Officer Simons declared the next day that he had a suspect, Muneer Deeb.  Mr. Deeb was a foreigner who owned a convenience store.  He had no prior criminal record nor had he ever been suspected of any criminal activity.  Nevertheless, Mr. Deeb was arrested three days after Officer Simons was assigned the case. 

            Officer Simons’ theory was simple: Mr. Deeb had $20,000 life insurance policies on all his employees.  Officer Simons suspected that Mr. Deeb had paid David Wayne Spence, Tony Melendez, and Gilbert Melendez $5,000 to kill a young female employee in order to collect the insurance money.  According to Officer Simons, Mr. Spence then mistook victim Jill Montgomery for the store employee and raped and killed her instead, along with her two friends.

            Upon arrest, Mr. Deeb adamantly protested his innocence, exhibited “no deception at all” according to police reports, and passed a three-hour long polygraph test.  The police chief released him on his own cognizance.  The next week, Officer Simons resigned from the Police Department.

            Two weeks later, Mr. Simons accepted a position in the Sheriff’s Department as Deputy Sheriff and resumed investigating Mr. Deeb.  Since Mr. Deeb probably could not have committed the killings alone, Deputy Simons reasoned, he must have had assistants, and those assistants must have been David Wayne Spence, Gilbert Melendez, and Tony Melendez.  Mr. Spence had recently been arrested with Gilbert Melendez on another charge.  Deputy Simons proceeded to interview Mr. Spence’s various cell-mates, and emerged with a long list of inmates willing to incriminate Mr. Spence as having confessed to the Koehne Park killings.[43]

            Mr. Spence underwent two separate trials, one in 1984 for kidnaping and another in 1985 for murder.  At the 1984 trial for kidnaping the state offered very little evidence against Mr. Spence besides the testimony of the jailhouse snitches and the expert testimony of a forensic odontologist, or bite mark expert.  The jailhouse snitches’ testimony was problematic: one testified that Mr. Spence left the bodies in the park because he never went there and therefore wouldn’t be suspected, another said he dumped them there because he knew the place like the back of his hand.  Another inmate claimed to have talked to Mr. Spence before Mr. Spence was taken into custody.[44] 

            The prosecution’s forensic odontologist, Dr. Homer Campbell, compared impressions of Mr. Spence’s teeth with bruises on the female victims and came to a “reasonable degree” of medical certainty that the marks on the victims were made by David Spence.  Unfortunately, Dr. Campbell sometimes tended to be a bit too certain in his judgments.  He had once claimed to identify with medical certainty the body of a missing person, Melody Cutlip, based on dental records.  In this case he had both the actual teeth of the corpse and the dental records of the alleged deceased.  After the funeral and burial, the real Melody Cutlip was found alive and well in Florida two years later, much to the relief of her family.[45] 

            Based almost exclusively on the testimony of the jailhouse snitches and Dr. Campbell, Mr. Spence was convicted of kidnaping and sent to prison.[46]

            Mr. Spence’s second trial, for murder this time, took place in Brazos County, Texas in 1985.  By this time the state had convinced Gilbert and Tony Melendez, Mr. Spence’s alleged co-conspirators, to testify against Mr. Spence.  Both men had serious felony charges against them as well as capital charges in the murder of Koehne Park victim Raylene Rice. The two defendants were offered exoneration and leniency, respectively, if they would confess and implicate Mr. Spence.

            Their confessions were inaccurate and inconsistent.  Tony Melendez’s brief statement inaccurately stated that Mr. Spence had dumped the bodies in Koehne Park; in fact, they had been left in Speegleville Park across the lake.   Gilbert Melendez’s original statement claimed that the bodies were loaded in the back of Mr. Spence’s old white station wagon, but Mr. Spence didn’t actually buy this car until several weeks after the murders.

            Unfazed, Deputy Simons helped the two men straighten out their confessions so they would be consistent with the facts of the case. With two alleged co-conspirators testifying against him, Mr. Spence didn’t stand a chance.  He was convicted of capital murder and sentenced to death.

            After the trial, with Mr. Spence sitting on death row, the prosecutions’ case began to unravel.  Three of the jailhouse witnesses admitted they had fabricated their testimony with the assistance of Deputy Simons in exchange for favors and promises of leniency in their own charges.  One of them, Robert Snelson, said, “We all fabricated our accounts of Spence confessing in order to try to get a break from the state in our cases.”[47]  Others claimed that Deputy Simons showed them photos of the crime scene and told them details, and changed their written statements to read more like he wanted them to read.  One witness said Deputy Simons threatened to charge her in a different homicide after she told him she had no knowledge about what he was asking her.  Still others testified to receiving special food, cigarettes, and conjugal visits with their wives and girlfriends in exchange for their testimony.[48]

            Mr. Spence’s appellate attorneys got together a panel of five forensic odontologists in order to examine the bite mark evidence in his case.  None of them agreed with Dr. Campbell’s results; one denied that the bruises could even be identified as bite marks.  He characterized the testimony of Dr. Campbell as bordering on the unbelievable.[49] 

            Defense investigators also discovered that the state had promised Gilbert Melendez complete immunity from prosecution if he incriminated himself and Mr. Spence, and threatened him with the death penalty if he refused to incriminate himself and Mr. Spence.  Not surprisingly, Mr. Melendez confessed and testified against Mr. Spence.  Then, having secured his confession, the state retracted its offer and, naturally, Mr. Melendez recanted his confession.  A hand-written note was found on the trial prosecutors’ official stationery which indicated that Gilbert Melendez had told another inmate “he did not know anything [about the triple homicide] but was going to make up a story to get off of the sexual abuse case.”[50]

            Tony Melendez also recanted his testimony.  In doing so, both brothers opened themselves up to prosecution for the murder of Raylene Rice.  Truman Simons admitted that these charges were intentionally left open by the prosecution as an “insurance policy” against recantations by the Melendez brothers.  Nevertheless, Gilbert Melendez testified, “I didn’t commit these crimes and anything I said about anybody else [is] just a lie.  I can’t say that because I wasn’t there.”  And Tony Melendez said, “I did not murder Jill Montgomery, Kenneth Franks, or Raylene Rice.  I do not know who killed them . . . I was not present during the crimes.  The statements and testimony that I gave in the past that implicated me, David Spence, and Gilbert were not true.”[51]

            The FBI compared pubic hairs and head hairs found on the victims’ clothing and bodies with samples from Mr. Spence, Gilbert Melendez, and Tony Melendez.  None of the samples matched.  Palm prints and fingerprints from the victims’ car also did not match those of Mr. Spence or his co-defendants.  Hair found in Mr. Spence’s car did not come from any of the victims.[52]

            Many officials still believed that Terry Harper was guilty of the crime.  To refute that possibility, the state claimed that he had an airtight alibi.  When Mr. Spence’s appellate lawyers deposed Mr. Harper,  he said that he was home watching “Dynasty” on the night of the murders.  But “Dynasty” did not air that night.  The state also argued that Mr. Harper’s criminal history suggested he could not have committed such a crime (the state said this after arresting Muneer Deeb, who had no criminal history whatsoever).  In fact, in the eighteen years preceding the Waco murders Mr. Harper had been arrested and charged 25 times with assault, including assault with intent to murder and assault on a minor.  On appeal, a local deputy recalled that Mr. Harper “had a reputation” for “using the knife” and liked to “cut people.”  Mr. Harper killed himself in 1994 when police came to arrest him for the fatal stabbing of an elderly man during a robbery.[53]  His DNA had never been compared to that found in the rape victims, and none of Mr. Harper’s DNA was preserved to compare with evidence from the murders.

            And what of poor Mr. Deeb, the store owner who was originally charged with paying Mr. Spence $5,000 to kill one of his employees for $20,000 in insurance money?  As noted above, since none of Mr. Deeb’s employees were actually killed prosecutors alleged that Mr. Spence had killed the wrong girl in a case of mistaken identity.

            Mr. Deeb was charged with capital murder along with Mr. Spence.  Neither Mr. Spence, Gilbert Melendez, nor Tony Melendez agreed to testify against him, although all three were charged with murder.  The only evidence against Mr. Deeb, besides the mere ownership of an insurance policy, was the testimony of a jailhouse snitch who claimed that one of the three co-conspirators had described the murder-for-insurance scheme in detail to him.

            So why did Mr. Deeb have the insurance policies?  He carried them on all his employees as a hedge against workers’ compensation claims.  Over the years, none of his employees had ever come to harm.

            Mr. Deeb was sentenced to death in 1985.  In 1991 his conviction was overturned by the Texas Court of Criminal Appeals which ruled that the jailhouse snitch’s testimony was inadmissible as hearsay.  Mr. Deeb was tried again in 1993 and exonerated.[54]

            Now consider: Mr. Spence is on death row for a murder-for-hire scheme.  But the person who ostensibly hired him has been found innocent.  Theoretically, the Texas criminal justice system has determined that no murder-for-hire occurred in this case.  Nevertheless, although the alleged hirer has been freed, the alleged murderer is still condemned, although no physical evidence links him to the crime and almost all the witnesses against him have denied their own testimony as coerced, purchased, falsified, or orchestrated by Deputy Simons.[55]

            Certain Texas authorities were disturbed by this and other aspects of Mr. Spence’s case. Several law enforcement officials were convinced of Mr. Spence’s innocence and expressed concern that the state of Texas might execute an innocent man.  Lt. Marvin Horton, supervisor of the Waco Police Department’s investigation into the Lake Waco murders, said, “I do not think David Spence committed this offense.”  Larry Scott, Waco Chief of Police at the time of the Lake Waco murder investigation, said, “I have really never been convinced [of David Spence’s guilt].”  And Ramon Salinas, a homicide detective who investigated the murders agreed, “My opinion is that David Spence is innocent.”[56]

            The Texas Court of Criminal Appeals, Fifth Circuit Court of Appeals, and the Governor’s Office all disagreed.  None of them agreed to hear any of the new evidence uncovered by Mr. Spence’s appellate investigators.  His fate was sealed: Governor George W. Bush denied any reprieve, and Mr. Spence was executed on April 3, 1997.

            There is a sad footnote to the case of Mr. Spence.  His mother, Juanita White, was killed in 1986.  The murder was strikingly similar to the murder of the three young teenagers: she was horribly beaten, her nose broken, with cuts on her chest, arms, back, and legs, and wounds resembling human bite marks on her buttocks, left hip, and left breast.  The investigation into the case was conducted by Truman Simons again.  Miraculously, almost singe-handedly he came up with the evidence to win a conviction in her case.[57] 

            Joe Sidney Williams, Jr. and Calvin Washington were charged and tried.  The only biological evidence against the accused were matches between the bite marks on the victim’s body and the defendants’ teeth. Again, forensic odontologist Dr. Homer Campbell asserted that only Mr. Williams and Mr. Washington could have made the bite marks.  There were bloody footprints at the crime scene which did not match Mr. Williams’ or Mr. Washington’s shoe size.    Nevertheless, the two were convicted of rape and murder and imprisoned.[58]

            Joe Sidney Williams spent six years in jail before being released in 1993 on the basis of inadmissible testimony.  Citing lack of evidence, the state did not retry him.  Calvin Washington spent 15 years in prison before being exonerated by DNA tests.  The tests showed that another man who had died of a self-inflicted gunshot wound in 1990 was the murderer.  Mr. Washington was pardoned by Gov. Rick Perry.[59]  It seems that once again Truman Simons got the wrong men.

            And what happened to Mr. Spence’s alleged co-conspirators?  Gilbert Melendez died in prison in 1996.  Tony Melendez remains in jail with a life sentence. 

            Not a big deal.  A lot of people assume that one goal of the Texas criminal justice system is to avoid executing an innocent person.  But that isn’t necessarily true.  Assistant Attorney General of Texas Margaret Griffey represented the state of Texas before the U. S. Supreme Court in 1993.  Texas was trying to defeat a capital appeal in the case of Herrera v. Collins.  Supreme Court Justice Anthony Kennedy asked her, “Suppose you have a videotape which conclusively shows the person is innocent, and you have a state which, as a matter of policy or law, simply does not hear new evidence claims, is there a federal constitutional violation?”  She replied, “No, Your Honor, there is not . . . Such an execution would not be violative of the Constitution.”[60]

            Dead and buried.  What happens to impoverished inmates executed by the state of Texas?  Some inmates who are executed either have no family or their family’s can’t afford to pay their burial costs.  Those inmates receive a burial by the prison.  Their graves are marked with a cross that does not bear their name, only their serial number and the letter “X” to denote that they were executed.[61]