Wednesday, June 16, 2010

Ruh Roh: Posthumous DNA testing could exonerate already executed convict

From Matt Kelley at's Criminal Justice blog:
Did Texas execute an innocent man 10 years ago? We may be about to find out.

A state judge has granted a go-ahead for DNA testing on a strand of hair from the case of Claude Jones, who was executed in Texas in 2000 for allegedly shooting a liquor store clerk in (no joke) Point Blank, Texas.

The hair was collected from the store counter, and a forensic analyst testified at Jones' trial that it "matched" his head hair — a scientifically impossible finding. Based on this and the testimony of a snitch (who later recanted), Jones was convicted and sentenced to death.

The Innocence Project, together with the Texas Observer and two Texas-based innocence organizations, filed motions in court seeking to preserve the hair so testing could move forward. However, they've been opposed by San Jacinto County's district attorney, who fought to destroy the evidence, saying "once the defendant has been executed, I can do nothing more in the case." (Time Magazine ran a feature on the case at the end of May.)

Jones was the 152nd prisoner — and the last — who was executed during George W. Bush's tenure as Governor of Texas. A last-minute petition for clemency so DNA testing could be conducted was denied by his office. But thanks to this new ruling in support of a DNA test, ten years after Jones's death, we may learn soon if Bush allowed an innocent man to be executed.

See more from Dave Mann at The Texas Observer. The DA is being disingenuous. It's always worthwhile to test for innocence - even posthumously - because if the executed man wasn't the perpetrator, the real killer may still be out walking the streets. There's nothing to fear from removing all doubt and much to gain in terms of potentially identifying the real perpetrator, not to mention providing certainty to both the victim's family and the public whether Jones really committed the crime.

That said, among death penalty abolitionists, identifying an actually innocent person who's been executed is frequently considered the "holy grail," a macabre enthusiasm which I find misplaced. For starters, schadenfreude is a dishonorable motivation. Moreover, all evidence suggests the public wouldn't change their views even if such a grave error is proven. Most assume it's likely to happen, indeed may already have happened, and accept it as part of the cost of doing business. What that fact says about the American public is open to debate, but that's the reality regarding public opinion on capital punishment.

Another note: Though it's impossible to handicap such things and frequently DNA testing disproves innocence claims, my gut tells me this one may have legs. That's because the facts follow a pattern you'll commonly see in DNA exonerations where two or more errors or misguided tactics combine to convict an innocent person. Aside from faulty eyewitness identification, which by itself is often enough to secure a conviction, frequently it takes not one but two pieces of bad evidence to convict somebody, particularly faulty forensics which are often used to corroborate instead of being the sole evidence which convicts. In this case, the two bits of potentially false evidence were an unreliable informant who later recanted (I say unreliable because we know the snitch lied at least once, we just don't know when) and comparative hair forensics based on pre-DNA methods that the National Academy of Sciences now says had no scientific basis.

If that really was all the evidence presented and a judge has granted DNA testing, the results may well exonerate Mr. Jones. And what then? It's not going to change anything for these guys. Or will it?


Jeff Gamso said...

There's a difference between the generalized belief that some innocent folks have been executed and the particular knowledge that this guy, here, with a face and a name, was executed even though he didn't do the crime.

It's the difference Stalin understood when he said, "A single death is a tragedy. A million deaths is just a statistic."

At least, that's the working assumption of those who keep looking for the executed innocent guy. My sense is that not altogether wrong.

Gritsforbreakfast said...

Thanks for stopping by, Jeff. And btw, you've been doing a great job lately over at your shop.

Jeff Gamso said...

I stop over a lot. You don't just blow off living in Texas for twelve years and going to law school there. You keep me grounded in my Lone Star days.

And thanks for the plug.

Anonymous said...

I agree with everything. However, I am really getting tired of either side feeling the need to point out Bush or Clinton or whomever. I may not have voted for one of them or either of them. But as long as they are my elected official in my state or country I will stand by them. If I don't like what they are saying or doing then I will vote them out but I don't have to continually fo the next 20 years try to place blame on them. They did what they did. Time to get over it and move on.

Do you want everyone reminding you of all of your mistakes for the next 50 years? Keep to the story without pushing the negativity or pushing away people.

Anonymous said...

The DA is the real bad guy here. I rarely wish ill of people (believe it or not), but there's a special place in hell for judges and DA's who intentionally obstruct justice.

Sounds like he's already there.


George said...

Perhaps I am missing something, but I don't see howthis would prove innocence. At most it would prove that an element of evidence wasn't correct--that's not the same thing as a conclusive result he DIDN'T commit the murder (since the hair could have been on the counter from any number of people).

Gritsforbreakfast said...

George, as I understand it there's another suspect named Kerry Dixon and if it matches him it would disprove his testimony against Jones. Dave Mann at the Observer summed up the three possible outcomes from testing: "Advanced DNA testing techniques could now show if the hair was Jones'—and confirm his guilt. Or it could match Dixon, proving that he was the gunman who entered the store. That would exonerate Jones. Or tests could reveal the hair came from a third person and leave Jones’ guilt unknown."

Michael said...

I see nothing macabre in looking for an innocent defendant put to death by the State. I agree with Jeff Gamso's post. We have a United States Supreme Court justice who believes there is nothing unconstitutional about executing an innocent man. Part of Justice Scalia's belief is predicated on his assertion that no innocent has ever been executed and, if one had, his name would be "shouted from the rooftops". Until enough people shout "Todd Willingham!" or "Ruben Cantu!" or "Claude Jones!" from the rooftop of the Texas Capitol so Justice Scalia can hear them in Austin, searching for additional innocents in Texas is a worthy quest for the holiest of grails.

Anonymous said... exactly did the DA obstruct justice? My understanding is that mitochondrial DNA testing was not even available at the time of the original trial. According to today's Houston Chronicle, the state's expert's testimony was not as definitive as this article might have one believe. The Chronicle report states "The expert could not exclude many others whose hair could have the same characteristics." Sounds to me like the expert hedged his bets in front of the jury. But then again, when has the anti-death penalty establishment let the truth stand in the way of a good P.R. effort? According to a recent Time Magazine article about this case, there were evidently at least 2 witnesses who placed Jones at the scene of the crime. Not to mention the testimony of the co-defendant who has now mysteriously "recanted" after likely befriending these Innocence Project folks. Wonder how much money they put on his commissary books? My guess is that, at the end of the day, this testing will be determinative of nothing. Kind of like the Byler report on the Willingham case. If the hair matches Jones, fine. If it doesn't, it certainly won't mean that Jones didn't do it or that someone else did. Wasn't this a shooting in a liquor store? What are the odds that any number of people's hair might be found in a public place at any given time?

As for the constitutionality of executing an innocent, Michael. The constitution is absolutely SILENT as to this issue. All the constitution guarantees is "due process"--not perfect process. Hence, the burden of proof in criminal cases is "beyond a reasonable doubt" rather than "absolute certainty." Anything is possible including the possibility that sometime, since the founding of this nation, an innocent person has been executed. Contrary to what the anti-DP left might think, that doesn't make it a constitutional concern or a punishment which, otherwise, should not be available under our law.

Mark # 1 said...

Haha. John Bradley DOES post here.

Anonymous said...

3:23, by obstructing the release of the hair using procedural literalism. Like Perry saying he couldn't exonerate Tim Cole because he was already dead, saying there was no law that allowed it. When in fact, there was no law preventing it.

Also, I'm pretty sure that substantive due process, when read in coonjunction with the 9th amendment (there is more to the bill of rights than just the 2nd amendment, you know), would imply that the Constitution is not silent on executing an innocent person. If you think the founding fathers would agree that executing someone who was actually innocent is ok, you have no place in America.

Prosecutors and judges who think like you do are the greatest threat to the liberty of Americans that exist. We are far more likely to have our rights deprived of us by the likes of you than attacked by a Muslim turrorist (George Bush emphasis added).


Anonymous said...

And for the record, 3:23, I am not opposed to the death penalty. I am for expanding it in certain circumstances, in fact.

But if we're going to kill people, let's get it right, mkay?


TDCJEX said...

Just because the Constitution says nothing about executing the innocent is debatable . How did they get a fair trial if they are innocent some one had to knowingly act so could not be shown from trial to appeal one could reasonably argue his/ her 6th amendment rights were violated and the idea that being executed while innocent is not cruel and unusual is moral bankrupt and repulsive . Any rational human know it is wrong and immoral to execute a innocent person it is wrong to knowing incarcerate the innocent is wrong to overcharge o obtains sentence that is far more harsh than what actually happened if anything at all . That should not be up for debate. It is is troubling that people seem ot have no problem with it and make excuses for it is very troubling . It makes the state and those acting on it's behalf criminals

In the criminal (in) justice system procedure trumps the truth and reality . It has to in order for the state to accomplish its goals .

We can start by allowing peoples claims not be fully investigated help let them appeal any one regardless of sentence should be able to challenge the states conviction as much as they would like and if new evidence comes up or we found some one lied. Hell what does it hurt to reopen case and do the right thing . Or is it the state fears that if it is know just how groups it behavior is that many convicti0snwont stand and the flood gates wil open well if the state violated the law to secure a convictions let the floodgates open and too bad for Bradley and his ilk political ambition.

Anon (it could be Bradley ) , why mot explain why it is not a problem morally and legally o false convict overcharge The state commit perjury an with hold evidence ? Or is it you simply cannot win unless you cheat .,that in itself says the adversarial system has failed . Why not have a inquiry where we seek justice not revenge ot use the accused to advance your political career
Executing or incarcerating a human wrongly is a far worse crime than all but a few have committed those few would be terrorists and war criminals . ,That puts Mr Bradley and his brethren in the category of crimes against humanity group one rare false conviction and execution is a tragedy and morally repulsive but to do it routinely is a crime against humanity . Is this what Those who engage in this fear ?

The anon could be not only John Bradley but any number of TX prosecutors . See their forum sometime it is interesting and frightening at the same time One was looking for ways around that pesky 4th amendment and that troublesome 6th amendment . How dare a defendant want to face their accuser and challenge their credibility .Damn those increasingly smart defense attorneys who dare find out how to discredit our ahem “experts like Joyce Gilchrist ,Fred Zain , Paul Shorde George Denkowski who m inflated psychological and IQ test scores to help the prosecution . are just few the list is very long lat October I believe Grits had blogs the guy with his dogs in getting positives and convictions a forensic in Mississippi . Just how bad and far reaching is it? What happens if this is widespread and it involves tens of thousands of cases ?

Walter Reaves said...

I share your concerns about the impact on public opinion. I think most people would rationalize their support of the death penalty by convincing themselves it was an aberration - something that won't happen again.

However, I think there is benefit in exposing injustice at any point. The more we can show how the system breaks down, the more open judges will be to considering such claims. And hopefully jurors will scrutinize cases more closely.

Scott Stevens said...

An aside regarding Jeff Gamso's 9:41 a.m. quote re Stalin:

In the book The Best Loved Poems of the American People, there is a poem entitled How Great was Alexander in which a son tries to understand the difference between the common murderer and Alexander the Great. His father tries to explain. Very interesting dialogue in which the boy decides that if he was to commit such a crime, he would be sure to kill many so that he would be a great man not a murderer.

I also agree that exposing the fact that the death penalty has been given to actually innocent people is very important. Perhaps more people will come to believe as I do: I believe in the death penalty under the "right circumstances," but only if ABSOLUTELY certain of the guilt of the individual, and our system is simply not reliable enough to produce that certainty. Until it is, I remain opposed to the death penalty.

Many people go back and refer to the Bible and point out verses that call for stoning and death for various crimes. They ignore that at that time conviction required TWO eyewitnesses to the crime. Even two eyewitnesses could be unreliable, but it is more reliable than a system that, like ours, permits conviction on the testimony of one eyewitness, or even on the repeated hearsay of one eyewitness without even the eyewitness testifying (not talking about dead victims here, just witnesses) or upon the testimony of a single eyewitness to some suspicious act combined with circumstances that show guilt BRD.

No matter which way it is dressed up, our system is not sufficiently reliable to take someone's life. Which of us will volunteer to be the half of one percent or less that represents the innocent convicted of capital murder and sentenced to death. What? No takers? Of course not. How is that any different than the innocent that is convicted and executed. That is exactly that person's perspective: "Whoa, I didn't do this, but they are still going to kill me for it." Do you think that person is in favor of the rule that says "We are okay with killing innocents as long as we treated them fairly while we wrongfully convicted and condemned them"?

When we decided to make habeas corpus so limited, did we approach it from the point of view of the innocent man who after multiple writs finally gets the evidence that will conclusively exonerate him? Or did we decide that that man's life was just fodder for the illusion that all is OK--that because we kill killers we are much safer? Did we swap our consciences for the illusion of security?

I don't know the exact quote, but one of our founding fathers predicted that loss of freedom would be the gradual trading for "safety" for freedom and that such was anathema to our way of life.

Jeff Gamso said...

Scott, you're thinking, I believe, of this, generally attributed to Franklin:

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

Gritsforbreakfast said...

Michael, I don't think the activity of researching innocence cases is "macabre," but the enthusiasm that causes some abolitionists to actually HOPE an innocent person was executed because they think the error would help their cause. As I said, schadenfreude is a dishonorable motive.

Michael said...

The Constitution is silent on many issues, including the issue of whether it is constitutional to execute an innocent or not. (For the record, I think the death penalty is constitutional; a document that acknowledges, but does not prohibit, the existence of capital offenses must tacitly approve them.) The fact that the Constitution does not explicitly prevent a state intrusion does not give the state. or the feds, carte blanche to make that intrusion. This drawback of the enumerated rights in the Bill of Rights stuck in the craw of a lot of the Founding Fathers, including William Pierce:

The Constitution does guarantee Due Process -- both procedural and substantive. But I do not take the existence of procedural protections as a tacit implication that their satisfaction is all the Constitution requires.

By the way, while I am anti-death penalty -- whether the subject is Timothy McVeigh or a fetus whose mother wanted a blonde, not a brunette -- there may be others among the commenters who are not so much anti-DP as they are anti-injustice. It's the pro-injustice side, more frequently known as the "tough on crime" crowd, who are blocking the truth, as in the hobbling of the Forensic Science Commission by professional politician Rick Perry. Or the DA who's blocking the DNA testing in this case.

Michael said...

Grits, fair point taken on your macabre reference.

Anonymous said...

"If the hair matches Jones, fine. If it doesn't, it certainly won't mean that Jones didn't do it or that someone else did. "

The problem in this particular case is that Jones claims he was outside when the murder occurred. His co-defendant claims that Jones was inside and did the shooting. Obviously, if the hair matches the co-defendant, it means that he was the one inside and that Jones was not. It means that Jones was executed for a crime that he did not commit. That's a pretty big deal. And as for "an element of evidence wasn't correct," the State is required to prove every element of the crime beyond a reasonable doubt. The man was convicted and executed for pulling the trigger. If he wasn't in the store, that's sort of significant. It means he was executed based on false testimony and a lack of scientific evidence.

Anonymous said...

Anon 1:16 To expand on what you said. The death penalty element here was the killing of the store clerk. People that say what difference does it make are missing this point i believe. Sure Jones may have instead gotten a life sentence for being part of the robbery that also had a murder involved in it, however I find it hard to fathom that he would have been given death if he were outside of the store and not the trigger man. Those in the who cares crowd are missing this point.

Spodabi said...

Even if the hair does belong to Jones it doesn't mean Jones killed anyone... it only means his hair was found in the store.

Conversely if the hair was not from Jones it only means the hair of Jones was not found in the store.

The ownership of the hair offers very little insight into what really happened at the store.

One thing we do know is that Jones was in prison for burglary and murder when he killed another inmate. After his release from prison he was accused of this third murder.

Even if he was innocent in the third murder, he was not just an "innocent guy." For Jones, the death penalty was a lifetime achievement award.