Michael Berryhill chairs the
journalism department at Texas Southern University. He asked Grits to publish this extended guest post by him on the Max Soffar capital murder case, which also inspired this recent Dallas Morning News editorial. Soffar, who for decades has maintained his innocence and may have falsely confessed, is terminally ill and likely will not survive until his execution. While on paper he has many years' worth of appeals left before the state can kill him, as a practical matter he probably has just a few months remaining to prove his innocence before death overtakes him.
Mr. Berryhill is also the author of The Trials of Eroy Brown, the Murder Case
that Shook the Texas Prison System, published by the University of Texas
Press. Here's his article in full, with only minor copyediting by yours truly.
* * *
On the last Wednesday of July, a
death row convict named Max Soffar gave what may well be his last news interview.
Soffar, who is 59, has spent most of the last 34 years insisting he falsely
confessed to helping another man kill three teenagers at a Houston bowling
alley in 1980.
Harris County prosecutors, the
leading experts in the nation at winning death penalty verdicts, insisted that
no matter what his written confession said, Soffar acted alone. Although there
is not a shred of physical evidence that links Max Soffar to the murders, not a
trace of blood, not a hair, not a fingerprint, not a gun, not a getaway car, they
have twice convicted him of shooting a young woman, one of the three victims of
an execution-style murder and robbery.
Soffar was convicted once in 1981, and after
he won a second trial because of his ineffective lawyers, a second time in
2006. During the final arguments, one of Soffar’s prosecutors gloated to the
jury that his lawyers “didn’t bring you any evidence that someone other than
the defendant committed this crime.”
That is particularly galling to
Soffar because the Harris County prosecutors and his judge, Mary Lou Keel of
the 232nd District Court, did everything necessary to keep the jury
from hearing a plausible story about who really committed the bowling alley
murders. Now Soffar’s appeal lawyer has turned up a reliable witness who has
identified a convicted mass killer of seven people as being present at the
Houston bowling alley a week before the murders.
“I hope my federal judge in Houston
will let me put this witness on,” Soffar said. “He was the one who saw this
murderer in the bowling alley.”
Soffar’s lawyers need to hurry up
to get that hearing, not because Soffar faces impending execution, but because
he is terminally ill with liver cancer and has from five to eight months to
live, maybe less. So many questions surround Soffar’s conviction, which a judge
for the Texas Court of Criminal Appeals has called “fishy,” that he has never
been scheduled for execution. Soffar has
many years of appeals left: to the federal district court, to the Fifth Circuit
panel of three judges, to the nine judges of the Fifth Circuit en banc, and to the Supreme Court. Such
appeals could go on for several years. But Soffar is out of time.
Soffar’s current pro bono appeals lawyer, Andrew Horne,
has been feverishly working on new writs: an appeal for clemency from the Texas
Board of Pardons and Paroles and Governor Rick Perry, and an appeal for an
expedited hearing from the Southern District Federal Court. The odds of winning
clemency for a twice-convicted capital murderer in Texas from Perry, who is preparing
to campaign for president, are about zero.
The petition for an expedited federal hearing for a terminally ill
inmate breaks new legal ground, Horne told me. He said he hasn’t found any
precedent for it. But he wants his
client to have one more chance to clear his name before he dies.
Horne, a young Scot with a Harvard
law degree from the international firm of Kirkland and Ellis, has spent the
last six years and millions of dollars of his employer’s money to investigate
Soffar’s complicated case. The files alone fill sixty boxes in a small room at
his firm’s offices in midtown Manhattan.
He had been warned that in a case that has been litigated for thirty
years by dozens of lawyers, the chances were slim he would find something new.
Vowing to touch every piece of
paper connected with the case, he found a witness that anyone with a sense of
fairness (but perhaps not a judge or a Harris County prosecutor) would want to
hear. He was a bowling alley employee named Patrick Pye, and two of his friends
died that weekend. The case was widely publicized: it was a cold-blooded
execution of some helpless teenagers that horrified the city.
On July 15, the Monday after the
weekend killings, Pye told police that he and one of the bowling alley employees
who was killed had a “run-in” with a white man at the bowling alley a week
before the murders. The man bowled alone and drank alone, Pye told Horne, and
he and Steve Sims had thrown him out for not paying.
“Pye stated that he got a phone
call from this man,” the police report days, “who stated, ‘You better be
watching over your shoulder.’ Pye stated
that he thought he would be able to id this man if he saw him again.”
Even 28 years later, Pye could
identify him as Paul Dennis Reid, the man with the droopy eyes, from a wedding
photo taken a couple of weeks after the murders.
If the Houston police had followed
up on Pye’s story, they might have found Reid. For one thing, he had a criminal
record. But more importantly, he resembled a police sketch of the murderer,
drawn with the help of a surviving witness, Greg Garner. Garner lost an eye
when he was shot in the back of the head, but he had a strong recall of how the
robbery happened. Detectives interviewed Garner seven times, recording and
transcribing the interviews, and even hypnotizing him to see if he could
retrieve further details. It had happened quickly. There was one man, not two. The
man said his truck had overheated and he needed water. He had a gun. He made them
lie down. He said “good-bye,” and shot them one after another.
Garner remembered a single, mild-mannered
robber who was white, beardless, muscular and more than six feet tall. His hair
was parted down the middle, covered his ears and was down to his collar. It fit
Reid. Within a few of days of the murders, Houston newspapers and television
stations were circulating this drawing:
It was this drawing that led to Max
Soffar’s downfall. A reward of $15,000 was offered for the arrest of the killer,
and Soffar had a crazy notion that his running buddy and partner in burglaries
and drugs resembled the drawing closely enough that he could turn him in for
the bowling alley murders and collect the reward. It didn’t matter that his
buddy was bigger and rounder than the drawing indicated, and wore mutton-chop
sideburns. Max thought he looked just like the image.
“My sister, I told her I was going
to do it,” Soffar recalled, “ and she said, ‘Max, don’t do that, because if you
do, then you’re gonna get in trouble.’ And I’m thinking how am I gonna get in
trouble? I’m telling them he did the murders…. I said ‘They’re going to listen
to me and they’re going to give me that money.’ She said, ‘You’re crazy.’”
Thinking back 34 years, Soffar
sighed, and said, “I guess I should have listened to my sister.”
From birth Soffar had problems. He
was the adopted son of a drug-using mother, and both his liver and brain were
damaged from fetal alcohol syndrome. He was an impulsive and difficult child who
beat his head against the wall His parents had little idea of how to raise him.
Soffar’s adoptive father was a remote, alcoholic owner of a second-hand
furniture shop in Alvin, who beat Max when he was little. His mother was a hoarder,
who kept the house filled with so much junk and stacks of newspapers that a
person could barely walk through the house.
From an early age he sniffed glue
and gasoline. When he was 9, his parents had him committed to the Austin State
Hospital, where he was often kept
naked and terrified in a padded cell. He was given electroshock treatments and
dosed with powerful anti-psychotic drugs.
(At his second trial, in order to assert Soffar’s future dangerousness,
prosecutors falsely claimed he had been criminally confined, which created
another point of appeal. During his long confinement in death row, Soffar has
never been a threat to the inmates or correctional officers.)
When he came back home to
Friendswood, his parents couldn’t control him. He smoked marijuana, sniffed
glue, and took methamphetamine and other drugs. He dropped out of school at the
seventh grade. He worked as a truck driver for a while. In 1980, he was living
at his parents’ home, unemployed, committing burglaries, stealing cars and
motorcycles, and taking whatever drugs he could find.
Galveston County sheriff’s officers
got to know him well, and for the most part, Max liked the attention. With no authority figures at home, he looked
up to the police. He even helped them by ratting out drug dealers. Once in a
while he made fifty bucks as a drug informant for the Galveston sheriff’s
office. He had a friend there, a detective named Bruce Clawson. Clawson thought
of Max as having the mind of a 12-year-old, and testified that he never swore
out a warrant on the basis of one of Max’s stories, which could be lurid and
exaggerated. Max learned that the wilder the story, the more attention he could
get.
That’s how he came up with the idea
of turning in a friend for the reward money. It was going to be his big score.
When he was arrested riding a stolen motorcycle three weeks after the murders,
he was high on drugs. The cop who arrested him told Max he was going to see he
got thrown in prison for life for being a habitual criminal. Soffar decided he
wasn’t going to spend life in prison for a stolen motorcycle. He had already bragged to a couple of drug
dealers and that he and his buddy had done the bowling alley murders. Now he
had something big to offer the cops. He figured he would soon be home with
$15,000 in reward money.
The Houston police and an assistant
district attorney came to League City to listen. When Soffar balked at talking
to them, they brought in his handler, Bruce Clawson, to get him to open up.
Many years after Soffar’s first conviction, Clawson expressed regret about how
he had misled Soffar. Soffar had routinely waived his Miranda rights after they
were read to him, but when a suspect refuses to talk, that’s a sign under some
legal interpretations that the interview should end, and the suspect wants a
lawyer. Soffar asked Clawson what was involved in getting a lawyer and how soon
it would take him to get one. Maybe a day, maybe thirty days, Clawson said.
Clawson advised him that if he was guilty of the crime, he should talk to the
police; if he was innocent, he should get a lawyer. I guess I’m on my own,
Soffar told Clawson. Later, when Clawson observed a Houston detective
questioning Soffar about the murders, he concluded that Soffar didn’t know a
thing about the crime, that the police were feeding him details that would lead
to his conviction.
It took police three days for the
Houston police to get the confession they wanted. In his first signed statement,
Soffar said he was waiting outside in the get-away car while his partner robbed
the bowling alley and shot the teenagers. The next day, at the urging of the
detectives, he said he went inside and watched his partner do the killing.
But forget about the partner.
Harris County did. The son of a Houston police detective, he was hauled to the
police station and appears to have invoked his Miranda rights successfully. His
car and apartment were searched and nothing was found to link him to the crime.
Greg Garner, the surviving witness, couldn’t pick him out of a lineup as the
killer. He couldn’t identify Soffar, either. No record of the partner’s police
interrogation survived, except a scrap of yellow legal paper that says,
“Suspect is crying.” He was never indicted, because unlike Max Soffar, he never
confessed.
It would have helped Soffar’s case
if police had tape-recorded their interrogations of him. His case has been used
as an example for legislation requiring that they do. Police had the technology
at the time, but seem to have used it only when it suited their purposes. (They recorded their interviews with Garner,
for example.) Instead they talked to Soffar for hours, drove him to the bowling
alley where he inaccurately described the crime, and wrote up statements for
him to sign. By the third day of interrogation, Soffar was ready to say
whatever he thought would get the process to end. And the police needed to
charge him or let him go. Soffar told me he kept making up stories about buried
guns and bodies that were so wild he thought the police would figure out that
all he told was lies and that he knew nothing about the crime.
On the third day, the detectives
told him he couldn’t say he had just witnessed the murders. He had to say he helped
out. They had already cut his supposed partner loose. Soffar signed a statement
in which he said his partner ordered him to participate in the killing. After
shooting two of the men, the partner threw the loaded handgun across the room to
Soffar and told him he had to shoot the last two. Soffar signed a statement saying that first he shot one of the men. Next
came the chilling sentences that led to his convictions:
“I walked around the other side of
them and hesitated, and [he] said, ‘Shoot her.’ She had her face down and she
just looked up at me and I aimed and turned my head and shot her. I think I hit
her in the cheek.”
Prosecutors have claimed that this
is a detail that only the killer could know, even though it published in the
first Houston Post story the day after the crime. Soffar says he didn’t get the
detail from the newspaper but from the police detectives.
Soffar said one of the detectives
asked him, “’Why did you shoot the girl
in the face and everybody else in the back of the head or the side of the head?
‘ And that’s how I knew that Arden Alane Felsher had been shot in the face. That key element put into one of the
statements and that’s how they hammered me into death row right there.”
More than one judge had observed
that Soffar’s confession is all there is to this case, and none of it matches
the surviving witness’s account.
In 2002 a rock-ribbed conservative
judge for the Fifth Circuit Court of Appeals, Howard DeMoss, read Clawson’s
affidavit and concluded that Soffar had indeed asked for a lawyer, not about a
lawyer. He and a second judge concluded
that Soffar’s confessions had been illegally obtained and violated the Miranda
act.
Had the court thrown out the
confession as a violation of the Fifth Amendment , the state would have had no
case because it had no physical evidence. The state appealed, and in a kind of
tradeoff, the Fifth Circuit ruled that Soffar deserved a new trial because his court-appointed
lawyer, the infamously casual Joe Cannon, known for sleeping during trial, had
ineffectively defended him.
Then came the second trial in 2006,
24 years after the first conviction. It must have seemed strange to the jury to
hear a case that old, with no mention ever made of the previous conviction.
Soffar’s defense team had a witness
named Stewart Cook who had partnered with Paul Reid in a series of armed
robberies. With Reid in Tennessee death row for killing seven restaurant workers
in two different robberies, Cook thought he would write a book about Reid, a
boyhood friend. Cook signed an affidavit
stating that Reid had told him he had committed the bowling alley murders. But
Cook never went before the jury because the Harris County district attorney
threatened to prosecute him for murder if he testified.
Judge Mary Lou Keel would not let
the Tennessee police detective who helped convict Reid testify about how
closely the Tennessee murders resembled the bowling alley murders. She
concluded they weren’t that similar. Nor would she let the defense show jurors
how many of the details of the murder had been widely publicized on television
and in newspapers.
When Garner testified, which he had
not at the first trial, he couldn’t remember much. The clean-shaven murderer with hair to his
collar that he described to police did not resemble Soffar, who had a full
beard and mustache and hair down to his shoulders.
The prosecutors said he had grown
it after the murders. Besides, how accurate could Garner have been? He had been
shot in the head, lost an eye and suffered brain damage.
Soffar’s defense was gutted.
His prosecutor argued that the
confession was all the jury needed: “Why in the world would anybody ever do
that, unless they did that or more and the answer is you wouldn’t. You wouldn’t
say that. You wouldn’t make an admission. You wouldn’t say I shot Alane Felsher
in the cheek…”
This was a masterful use of the
word you. Most people are baffled by
false confessions. They can’t imagine doing such a thing. The jury can’t
imagine such a thing. And yet it happens all the time. More than one person
confessed to the bowling-alley murders besides Soffar. He was a mental patient
who was living with his mother. A study of
exonerations holds that false confessions play a role in 25 percent of the
cases.
One of the people who knows about
false confessions is a judge of the Texas Court of Criminal Appeals, Cathy
Cochran, who wrote
a concurrent opinion about Soffar’s case. She cited some of the better
known cases such as the Central Park Five, the subjects of a documentary movie
by Ken Burns, and the Norfolk Four, subjects of a book, The Wrong Guys. Four of the Central
Park Five were minors, held without legal or parental help and coerced into
confessing to a brutal rape and beating that left a jogger unconscious. When
the real rapist confessed, insisting he had acted alone, and his DNA matched
with the rape kit, New York police refused to concede their mistake. In the
Norfolk, Virginia, case, four sailors confessed to raping and murdering a young
married woman in a small apartment. The physical evidence of the scene
contradicted the theory of a gang rape. None of the sailors’ DNA matched the
rape kit. The real rapist, whose DNA confirmed he was the criminal, confessed
and said he acted alone, but again police insisted that anyone who confessed
must be guilty.
In the Kafkaesque world of criminal
appeals, Cochran concurred with the rest of the court that Soffar had no legal
grounds for a new trial, writing: “...although I personally do not have great
confidence in the reliability or accuracy of applicant’s written statements and
hence in his culpability for the triple murders, I was not the chosen fact
finder. Applicant’s experienced and extremely capable counsel presented the
jury with all of the information it needed to decide that applicant made a
false confession and that he was not involved in the bowling-alley murders. The
jury rejected that factual conclusion, as it was entitled to do.”
But the jury had never heard an
alternate theory to the case. It was excluded. All they had was the painful
choice of convicting Soffar or letting him go. They couldn’t tell the judge
that they had a reasonable doubt because they had never heard of Paul Reid.
When prosecutor Lynn McClellan
retired, he
told the Houston Chronicle that sending Max Soffar to death row a second
time was the highlight of his career. He had read about the case when he was in
law school, and hoped he would do something similar some day. It appears he
missed what could have been a major triumph, admitting a mistake and
prosecuting Paul Reid instead.
After Andrew Horne took on Soffar’s
appeals six years ago, he asked the Harris County office for conviction review
to consider Soffar’s case, but he never heard back. A couple of years later
when he was in Houston and asked about the oversight, he recalls a prosecutor
telling him, “Max is not a poster boy for innocence.”
He lacks what could be called the
Harrison Ford factor. Ford played an innocent doctor in the movie The Fugitive. The character is a handsome,
intelligent, educated man without a trace of bad behavior. He’s more like
Michael Morton, the kind of innocent man who gets the most attention, the kind
we can identify with. Max was not a good young man. He admitted to being a
thief, a drug addict and a rapist. He tried to turn in a friend for a reward.
Prison has changed him for the better, he said.
“I was a Class A knucklehead when I
got there,” he said. “I got beat pretty severely because I would not conform to
the rules and regulations. But those were lessons where I learned to respect
the authority of those around me.
“I’ve learned an awful lot behind
these bars for 35 years. I’ve met a lot of interesting people. I’ve met a lot
of truly dangerous, crazy people. I’ve met a lot of good people. I wouldn’t
change it for the world. I wouldn’t change it for the world because if I had
changed it, I would be dead. Because I had a habit of sticking a needle in my
arm and stealing from my own mom and daddy, and lying to people and doing
things I shouldn’t have been doing. I surely wouldn’t have survived. No way.”
His liver cancer grew out of his
battle with Hepatitis C, he said, which came from his needle use. Last December
surgeons at John Sealy Hospital in Galveston removed tumors from his liver. Recently
the pain came back, for which he is being given morphine.
“They told me I had this portal
vein tumor,” he said. “It’s inoperable. Even a liver transplant wouldn’t save
me. No hospital in the world can do anything for me.”
On August 11, Horne appealed to the
Texas Board of Pardon and Paroles to commute Soffar’s sentence to life and free
him from death row for what little is left of his life. That would distinguish him from Paul Dennis
Reid, who refused to talk to Soffar’s lawyers about the bowling alley murders. Reid died of a heart attack last spring in
Tennessee’s death row.
Soffar could choose to move to the
prison hospital at the Estelle Unit in Huntsville, but that would mean leaving behind
his radio, his legal papers, and all of his belongings, including letters from
the Swiss woman he married three years ago, and who visits him every six weeks.
Bad as conditions are for death row
inmates, if he can’t be freed, he would rather stay put.
“I’d rather lie right there in my cell,” he
said, pointing in the direction of his block at the Polunsky Unit, “and die
right where I grew up.”
MORE: A columnist for the Houston Chronicle, Lisa Gray, reacted to this post with an article titled, "Will an innocent man die on Texas' death row?"
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