Will the State of Texas Execute an Innocent Man?

Will Illinois Governor George Ryan's courageous call for a moratorium on the death penalty inspire George W Bush to stop the execution of Odell Barnes, Jr. and others?

by Ward S. Larkin <ward@adelante.com>

Odell Barnes, Jr. is a 31-year-old black man from Wichita Falls, Tex. He's been on Texas' Death Row since May 17, 1991 for a crime committed in November, 1989. On March 1, 2000 the State of Texas plans to execute him even though evidence now shows he is most likely innocent.

Helen Bass was brutally murdered in her Wichita Falls home on the night of November 29, 1989. Odell Barnes was a family friend of Ms. Bass and a frequent guest in her home. In fact, Helen Bass and Odell's mother were best of friends. Unfortunately, Odell Barnes had recently been released from prison for his second conviction of robbery and a witness put him in the general vicinity of Bass's home on the night she was murdered. In short, Odell Barnes was a likely suspect for the murder of Helen Bass but a likely suspect does not automatically make for a guilty man.

The 13 men who have been released from Illinois' death row since 1987 (10 since 1995) after having been found innocent know all too well what it is to be a likely suspect for capital murder. And although the wheels of justice moved very slow in some cases in Illinois (Dennis Williams was in prison for a crime he didn't commit for 18 years before he was released and exonerated) the appellate courts, the media and other interested third parties (Northwestern University journalism students, for example) are willing to reinvestigate death penalty convictions thoroughly.

In Texas, however, the appellate courts appear to be proud of their capricious and cynical conduct. In March 1999 U.S. District Judge Orlando Garcia warned the Texas Court of Criminal Appeals (the highest criminal appellate court in Texas) that if they refused to reexamine newly discovered evidence in the case of Texas Death Row offender Pedro Sosa, ''it would be a most reprehensible and cowardly act.'' Ignoring Judge Garcia's rebuke, on November 11, 1999 the Texas Court of Appeals dismissed Sosa's claims without even examining the new evidence. Pedro Sosa stays on Texas Death Row -- just one example of the many there who have been denied due process and equal protection of the law. No Texas State court is willing to look at his claims of innocence. No Texas media outlet is willing to do any associated investigative reporting on his case. Governor George W. Bush will not stand up and say that this callous disregard for the ideals of justice must stop.

Even though Illinois Governor George Ryan is still a strong proponent of capital punishment, he recognizes that justice cannot be served, public safety cannot be insured, general welfare cannot be promoted, nor can the blessing of liberty be secured by allowing an innocent man or woman to be executed. Ryan takes ultimate responsibility for the flaws in Illinois' application of the death penalty. While it is shameful that 13 people have wrongfully been sentenced to death in Illinois, it is also important to acknowledge the vigilance and commitment to uncovering the truth. Those errors would not have been remedied otherwise. And that vigilance should be remembered with no small amount of pride. Justice was ultimately served, albeit in a painfully slow manner.

The death penalty is different than any other aspect of the criminal justice system. It is more susceptible to bias and prosecutorial misconduct. The Criminal Justice System in the United States holds to the principle that an independent, fair and competent judge presiding over an adversarial trial in front of an unbiased jury all conducting themselves by accepted legal rule and procedure will give a just verdict. These four elements -- an independent, fair and competent judge, an adversarial trial, an unbiased jury, and accepted legal rule and procedure -- are equally important to arriving at a just verdict. Even if one element is missing or diminished, the chances of a just verdict are severely threatened.

The idea that criminal trials be presided over by independent, fair and competent judges is firmly established in American culture. This isn't to say that biased, unfair or incompetent judges don't preside over many trials in the United States, because they do. It's just that the idea that all criminal trials should be presided over by independent, fair and competent judges is accepted. Anything less is found objectionable, if not revolting. Likewise, the idea of having an unbiased jury render the verdict is also well understood and accepted.

Less understood is the idea that even the most guilty must be afforded a fair trial before he or she can legally be punished. It is here, within the intricacies associated with the legal rules and regulations that pertain to criminal trials that the ''guilty'' are many times released due to so-called ''technicalities.'' But it is not a technicality to hold inviolable the principle of presumption of innocence, that no one can legally be deprived of his or her liberty without due process of law. It is within this context that suppressing or fabricating evidence is prohibited. Likewise, witnesses cannot be hid nor coerced into giving false testimony. The accused cannot be forced nor tricked into giving evidence against himself or herself.

But the most fragile and misunderstood element of a just trial pertains to the adversarial process. In short and to be specific, why is the defense counsel required to try to get his ''guilty'' client off? First, the accused isn't always guilty and again the presumption of innocence cannot be impaired. Most important, the principle of the adversarial process is that the truth has the best chance of becoming evident when the state and the accused are represented by competent opposing lawyers who have equal access to witnesses, evidence and objecting to the improper actions of the other side. It is therefore the duty of the attorneys to stop at nothing -- save deliberate fraud -- in defense of their client. And this is where fair application of the death penalty has its weakest link. The state has a team of prosecutors backed by a whole city or county-wide police agency to oppose many times an inexperienced court-appointed lawyer given insufficient resources to examine witnesses thoroughly or analyze evidence properly. Many times it is David, naked and unarmed, going up against Goliath, fully armed and with reinforcements.

When the accused is not defended by competent counsel, the adversarial process is lost and a fair trial is denied. Defense lawyers must be competent and be given enough money to hire investigators and expert witnesses. In general, it is easy to see that ineffective assistance of counsel is the greatest problem facing fair application of the death penalty, but on a case by case basis it's very difficult to demonstrate. Even though this is the area where Ryan's Death Penalty Moratorium Commission will find the most need for repair, none of the 13 released from Illinois Death Row was released due to ineffective assistance of counsel.

Five were released because the prosecution coerced witnesses into giving false testimony. Four were released because the prosecution hid witnesses that could establish the innocence of the accused. Two were released because the police forced defendants to testify against themselves. One was released because his defense lawyer had a conflict of interest. One was released because the trial judge didn't properly interpret the law. In short, 12 were released because accepted legal rule and procedure wasn't followed and one was released because the judge wasn't independent, fair and competent. Even though the underlying reason for most of these wrongful convictions was ineffective assistance of counsel, none of these 13 was released for that reason.

Additionally, the Commission will find that the state is more likely to breach fairness in order to get convictions for capital murder cases as opposed to non-capital cases. The police can be put under too much pressure, so instead of serving justice, they make an arrest simply to get their boss -- or the media -- off their back.

One such case involved Clarence Brandley. Cheryl Ferguson, a 16-year-old high school girl was raped and murdered in the high school of the small Texas town of Conroe during a school sanctioned volleyball tournament. Understandably the whole community was outraged and scared to send their children to school. Caving under the pressure to get an immediate arrest, one of the local policemen took aside two of the school's janitors (one black and one white, and the two people who had found Ferguson's dead body) and said, ''One of you is going to fry for this. Since you're the nigger, you're elected.'' It was 9-1/2 years before Clarence Brandley was freed from Texas Death Row.

Police and prosecution too often see a capital murder arrest or conviction as a way to get a promotion. Prosecutors and judges see a death sentence as a way to get the media attention and public recognition necessary to run for higher elected office.

Willie Ray Williams and Joseph Bennard Nichols robbed a Houston convenience store and Claude Shaffer, Jr. was tragically murdered. Witnesses testified that only one of the assailants was armed and only one bullet was fired. Willie Ray Williams confessed to the crime, was convicted and sentenced to death. For reasons that are in irreconcilable conflict with the ideals of justice, the Harris County District Attorney's office also decided to press capital murder charges against Joseph Nichols even though Williams had confessed and was on Texas Death Row. During the Williams trial the state accepted that Williams was the lone gunman but at the trial for Nichols the state reversed direction and argued it was Nichols who was the lone gunman. Both versions of the story couldn't have been true. Either Williams murdered Claude Shaffer or Nichols murdered him. One of them was innocent of capital murder but the State of Texas knowingly and intentionally argued completely different accounts of the same crime simply to get two men sentenced to death on a single bullet. Willie Ray Williams was executed in 1995 and 18 years later Joseph Nichols is still on Texas Death Row.

Even after arrests and convictions are proven to be wrong, many police, prosecutors, judges and jury members are unwilling to admit wrongdoing.

Cesar Roberto Fiero is a Mexican National. He was apprehended in El Paso for another matter but was suspected of killing and robbing an El Paso taxicab driver six months earlier. The El Paso police decided to solicit the aid of the Mexican authorities. Fiero and his whole family lived in Juarez, Mexico. The Mexican police took Fiero's mother into custody, telephoned the El Paso police and told her under threat of violence to get her son to confess to whatever he was being accused of in El Paso. Fiero knew that the threat was not an idle one so he immediately agreed to sign whatever confession the El Paso police wanted. On appeal before the Texas Court of Criminal Appeals, Fiero argued that his confession was coerced. The Texas Court of Criminal Appeals agreed that the confession was coerced but they refused to overturn it because they found the coerced confession ''harmless.'' That is, even without the confession, a reasonable jury would have still convicted Mr. Fiero and sentenced him to death. But the truth of the matter is the without the confession the El Paso District Attorney would not have had enough evidence to even bring an indictment before the grand jury. Yet Cesar Roberto Fierro is still on Texas Death Row. He will be ''celebrating'' his 20th anniversary there this month.

Texas Death Row inmate Calvin Burdine was convicted and sentenced to death for the 1983 robbery and murder of W. T. Wise. At trial, Burdine's lawyer, Joe Cannon, repeatedly feel asleep. Jury foreman Daniel Strickland, juror Myra Davis and Court Clerk Rose Marie Berry all testified at a 1995 appeals hearing that Cannon fell asleep five to ten times during the trial. Yet the Texas Court of Criminal Appeals found that a sleeping defense lawyer was not a reversible error. Subsequently U.S. District Judge David Hittner disagreed, overturning Burdine's conviction and death sentence in September, 1999 -- ordering the State of Texas to either release Burdine or to retry him. Hittner ruled that ''a sleeping counsel is equivalent to no counsel at all.'' Nonetheless, as of this writing, Burdine is still on Texas Death Row and has been for over 16 years.

In Harris County, Tex. (Houston) assistant district attorneys include how many death penalty sentences they've obtained in their personal background statements -- implying that their skill as a prosecutor is directly linked to how many death sentences they've obtained. This compulsion starts to explain why Willie Ray Williams and Joseph Bennard Nichols were each prosecuted for capital murder.

Prosecutors running for elected office list the number of death sentences they've prosecuted as one of their most important qualifications for elected office. Clearly the path to promotion within the Harris County District Attorney's Office and the path to elected office is seen as a function of the death penalty. Prosecutors with this much pressure to get convictions and death sentences are very likely to prosecute unfairly. The ideals of serving justice are secondary, if they exist at all. And Texas Governor George W. Bush fits into this mindset perfectly.

George W. Bush is steadfast in his resolve not to interfere with the courts regarding a death sentence. This is in spite of the fact that the U. S. Supreme Court has repeatedly held (best articulated in Herrera v. Collins, 506 U.S. 390 (1993)) that ''Executive Clemency is the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.'' It is not only the state's responsibility to get involved with the courts in cases of innocence; it is their duty.

Admittedly, Bush did commute the death sentence of Henry Lee Lucas to life imprisonment but this was during an election campaign and an opponent made Lucas a campaign issue. Bush admitted that Lucas was most likely innocent of the crime for which he was sentenced to death; two different Texas State Attorney Generals had come to the same finding -- but instead of granting Lucas a pardon Bush simply commuted the sentence to life imprisonment. In other words, Bush said that Lucas is most likely innocent of this crime but I'm going to punishment him with life imprisonment anyway. Henry Lee Lucas is serving other concurrent life sentences, so even with a pardon for the death sentence he would not have been released from prison.

To make matters of innocence in Texas worse, the Texas Court of Criminal Appeals ruled in the case of Roy W. Criner that newly discovered evidence of innocence is insufficient grounds for overturning a conviction or ordering a new trial. Likewise, the U.S. Court of Appeals for the Fifth Circuit ruled in Odell Barnes' case (Barnes v. Johnson, No. 98-CV-007) that the court did not recognize under federal law claims of ''actual innocence.'' Even worse was the State of Texas’ oral argument before the U.S. Supreme Court in Herrera v. Collins.

Justice Anthony Kennedy: ''Let's say you have a videotape which conclusively shows the suspect is innocent. Is it a federal constitutional violation to execute that person?''

Texas Assistant Attorney General Margaret Griffey: ''No. It would not be violative of the Constitution.''

One has to wonder if Texas Governor George W. Bush wants to execute an innocent man or woman, or whether he just doesn't care. In either case, the evidence of innocence against Odell Barnes, Jr. is powerful and March 1st is approaching fast.

Odell Barnes was given ineffective assistance of counsel, witnesses against him were coerced into giving false testimony, evidence was fabricated to implicate him, incriminating evidence introduced at trial can now be impeached and other witnesses are now willing to come forward to give testimony. [Internet webpage www.ultranoise.org/odellbarnes contains comprehensive information about the case.]

Even though appointed to represent Odell Barnes over 15 months prior to trial, there is no evidence that either of his trial lawyers Marty Cannedy or Reggie Wilson did any factual investigation until the month before the trial started. Additionally, both Cannedy and Wilson admit they didn't do ''any scientific testing of any kind in preparation for the trial of Odell Barnes.''

The prosecution did not reveal any deals or benefits given to witnesses who testified against Odell Barnes, and counsel for Odell Barnes filed a motion with the court to receive such information over 15 months before trial. In return for leniency associated with two drug charges pending against him, Pat Williams testified that he saw Odell Barnes on the night of the murder with the gun identified as the one most likely to have been used in the murder of Helen Bass. Tammy Lewis, an old girlfriend of Williams, swears Williams informed her that he had an agreement with Wichita County District Attorney Barry Macha that he would not go to prison concerning his two pending drug cases. True to this boast, Williams received probation on both cases.

Robert Brooks testified that on the night of the murder he saw Odell Barnes jumping a fence into Ms. Bass's home property. It was not revealed that in return for his testimony against Odell Barnes, Robert Brooks was promised that his traffic tickets would be taken care of. Nor was it revealed that his sister -- Bobbie Jean Brooks -- was with him and was also a witness to this. His sister now swears that neither she nor Robert Brooks could tell who jumped the fence. Miss Brooks also now testifies that they each saw and recognized that Johnny Ray Humphries was in that direct vicinity.

A single pinky finger fingerprint from Odell Barnes that was found on one of the suspected murder weapons (a table lamp) can now be explained. Odell Barnes was a personal and family friend of Helen Bass. He had been a guest in her home many times. To demonstrate that his fingerprints found on the table lamp did not come from one of these prior visits, testimony was given at trial that Ms. Bass had just purchased the lamp. Corey Bass, Helen Bass's son, now swears unequivocally that the lamp had been in Ms. Bass's home for at least five years prior to her murder. Competent investigation would have discovered this information, allowing Corey Bass to testify to it at trial.

More importantly, blood spots of Ms. Bass's were found on Odell Barnes' clothes and used at trial to implicate him in Bass's murder. Dr. Kevin Ballard, M.D., Ph.D. recently tested the blood spots on Odell Barnes' clothes and he determined that the blood spots were planted. Because Dr. Ballard found blood preservatives normally used in blood storage tubes, he reported that the blood found on Odell Barnes's clothes could not be ''original, legitimate crime scene evidence in the form of a stain deriving from natural bleeding from a normal human being.''

Brenda Columbus swears that she saw Odell Barnes on the night of the murder and noticed no blood on his clothes. Also, Sandy Durant now swears that in 1996 Marquita Mackey told her that on the night of Helen Bass's murder, Johnny Ray Humphries threatened Mackey, saying that if she didn't help him that ''I'll kill you like I killed Mrs. Helen Bass.''

The 13 who have been released from Illinois Death Row.

1 & 2. Perry Cobb and Darby (Williams) Tillis. Convicted in 1979. Released in 1987. They were tried four times (three hung juries) before being convicted and sentenced to death on the fourth trial. Then they were acquitted on the fifth trial (the conviction and death sentence were overturned on appeal) when an assistant state's attorney finally came forward and revealed that someone else had already confessed to the original double murder. Additionally, one of the prior judges was later convicted of bribery in other cases.

3. Joseph Burrows. Convicted in 1989. Released in 1994. The two key witnesses against Joseph Burrows later recanted their testimony. One of the witnesses actually confessed to the murder of William Dulin, the other said that he had been pressured into giving false testimony by the prosecution and by the police.

4 & 5. Rolando Cruz and Alejandro Hernandez. Convicted in 1985. Released in 1995. Each was sentenced to death for the 1983 rape, kidnap and murder of 10-year-old Jeanine Nicarico, even though a third man (Brian Dugan) had confessed to everything. On appeal each conviction and death sentence were overturned. Cruz was re-sentenced to death in 1990. Hernandez was re-tried in 1990, but had a hung jury. Hernandez was tried a third time in 1991 and received an 80-year sentence. In 1994 the Illinois Supreme Court overturned Cruz' second conviction. In 1995 Cruz was tried a third time for the murder of Jeanine Nicarico and was found innocent, the judge entering a directed verdict. All charges against Alejandro Hernandez were dropped a month after Cruz' acquittal. Subsequently, three prosecutors and four police officers were indicted for obstruction of justice. Charges against two of the prosecutors were dismissed before trial. The others were acquitted at trial.

6. Verneal Jimerson. Convicted in 1985. Released in 1996. & 7. Dennis Williams. Convicted 1979. Released in 1996. Each was sentenced to death for the 1978 murders of Larry Lionberg and his fiance Carol Schmal. Two other men, Kenneth Adams and Willie Rainge, received lesser sentences for the same crime. The key witness was Paula Gray, a woman with an IQ of 57. Gray's account of events changed almost as often as she spoke with the police. Williams was convicted and sentenced to death in 1979. Changes against Jimerson were originally dropped, but were re-introduced seven years later when the police offered a deal to Gray if she changed her story once again and implicated Jimerson. Gray was facing a 50-year prison sentence but received two years probation. Jimerson was sentenced to death but DNA tests now indicate that none of the four were involved in the murders of Larry Lionberg and Carol Schmal. Charges against Jimerson, Williams, Adams and Rainge were dropped on July 2, 1996.

8. Gary Gauger. Convicted in 1993. Released in 1996. Gauger was convicted and sentenced to death for the murders of his own parents. On appeal the U.S. District Court overturned the conviction and death sentence, ruling that Gauger shouldn't have even been questioned, nonetheless for 21 hours.

9. Carl Lawson. Convicted in 1990. Released in 1996. Lawson was convicted and sentenced to death for the murder of Terrence Jones but both the conviction and death sentence were overturned and remanded back to the original trial court because Lawson's court-appointed lawyer at the time of his arrest was a prosecutor. The State's Attorney retried Lawson, resulting in a hung jury. Finally on the third trial, Lawson was found innocent.

10. Anthony Porter. Convicted in 1983. Released in 1999. Porter was released from Illinois Death Row in February, 1999 when another man confessed to the double 1982 murder. Paul Ciolino, working with Prof. David Protess and journalism students from Northwestern University, brought this injustice to light. Their investigation also found that the police had pressured another witness to testify against Porter.

11. Steven Smith. Convicted in 1986. Released in 1999. Smith's conviction and death sentence of the 1985 murder of the assistant Pontiac Correctional Center warden were overturned by the Illinois Supreme Court in 1999, ruling that the conviction was based on unreliable evidence. The Court said, "When the state cannot meet its burden of proof, the defendant must go free."

12. Ronald Jones. Convicted in 1989. Released in 1999. Jones was convicted and sentenced to death for rape and murder. Recent DNA testing shows that Jones was not the rapist and there was no evidence of any accomplice to the murder.

13. Steve Manning. Convicted in 1993. Charges dropped in 2000. Manning was convicted and sentenced to death for the 1990 murder of Jimmy Pellegrino based on the testimony of jailhouse informant Tommy Dye. In return for his testimony against Manning, Dye received an 8-year reduction in sentence. FBI evidence shows that Dye's testimony against Manning was false. Manning, however, is still in prison for unrelated crimes.

Sources: Death Penalty Information Center, Chicago Tribune.

Uploaded to The Zephyr Online February 21, 2000

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