Truth Hangs by a Hair

One strand of hair, a piece of evidence crucial to determining whether Texas executed an innocent man almost seven years ago, is apparently at risk of being destroyed by San Jacinto County officials who are resisting a formal request by The Texas Observer, the Innocence Project, and other criminal justice organizations to make it available for independent scientific testing.

Observer lawyers are calling on San Jacinto County District Attorney Bill Burnett to preserve the hair until a lawsuit determines whether it must be released under state open-records laws. DNA testing might provide a strong indication as to whether Claude Howard Jones was, in fact, innocent of the murder for which he was executed.

“If the state of Texas did execute an innocent man, the people of Texas deserve to know what was done in their name,” said Observer Executive Editor Jake Bernstein. “This case begs for further examination. It’s not as if the Texas Court of Criminal Appeals has an exemplary track record when it comes to scrutinizing death sentences.”

The 1-inch hair of ambiguous origin was the only piece of physical evidence that purportedly linked Jones to the November 14, 1989, murder of liquor store owner Allen Hilzendager in Point Blank, about 85 miles north of Houston. Jones was put to death by lethal injection on December 7, 2000, the last execution conducted under former Gov. George W. Bush.

Jones maintained his innocence until his death. No DNA testing was conducted on the hair, which has remained in the files of the San Jacinto district court clerk’s office. At Jones’ 1990 trial, a state expert who examined the hair by microscope testified that of all the people known to have been in the liquor store on the day of the murder, the stray hair most closely resembled Jones’.

Because of lingering questions about his guilt, on September 4 the Observer, the New York-based Innocence Project, the Innocence Project of Texas, and the Texas Innocence Network filed a public-records request with San Jacinto County asking that the hair be preserved and be turned over to an independent lab certified by the state Department of Public Safety for mitochondrial DNA testing.

“It is haunting to consider that the state may have executed an innocent man, but DNA testing should be conducted to get to the truth,” said Innocence Project co-founder Barry Scheck. “The bottom line is that Claude Jones was convicted based on the hair evidence… and DNA testing on the hair could definitely show whether Claude Jones was guilty,”

In a phone conversation on September 6, Burnett said he would take the 10 business days allowed by law to respond to the request, according to William H. Knull, an attorney with the international law firm Mayer Brown who is representing the Observer and other groups. In the meantime, Knull said Burnett would make no commitment to preserve the hair.

Burnett did not return phone calls from the Observer seeking comment.

Knull and other members of the legal team handling the case will now ask a judge to order the county not to destroy the hair while they pursue a lawsuit seeking to compel the hair’s release.

“My understanding is that the hair is the only piece of physical evidence that ties Mr. Jones to the crime,” Knull said. “If that single piece of physical evidence is destroyed, I’m not aware of any other basis with which to go forward with this investigation.”

Court records and opinions written by appellate judges clearly indicate that the hair was the most damning piece of evidence against Jones. Without it, prosecutors had only inconclusive eyewitness testimony and statements made by two co-defendants who said Jones was the killer. The co-defendants escaped death sentences.

Hilzendager, the 44-year-old owner of Zell’s liquor store on state Highway 150 near Lake Livingston, was shot three times with a .357-caliber magnum.

Jones, whose criminal record included prison stints in Texas and Kansas for robbery, burglary, theft, assault, and murder, had recently been released on parole. He was in the area hanging around with two other men, Kerry Dixon and Timothy Mark Jordan, the alleged owner of the gun used to kill Hilzendager.

Witnesses agreed that in the early evening of November 14, 1989, two men in a pickup truck similar to Dixon’s pulled up at the liquor store. One man went inside, three shots were fired, and the men drove away. Descriptions of the men varied, and neither of the two eyewitnesses who were across the highway at the time was able to positively identify the man who entered the store.

When picked up by police, Dixon and Jordan both told police Jones was the killer. Jones was arrested on a bank robbery charge in early December in Florida and sent back to Texas. All three men were charged with capital murder. Dixon received a 60-year sentence. Jordan agreed to a 10-year sentence in a plea bargain.

At Jones’ trial, a hair found on the liquor-store counter proved crucial to the prosecution. Stephen Robertson, a DPS forensics expert, testified that the hair was a potential match to Jones, but said, “Technology has not advanced where we can tell you that this hair came from that person. Can’t do that. We can tell you that this hair matches this person in all characteristics and could be his.”

The Court of Criminal Appeals upheld Jones’ conviction in 1994 in a sharply divided 3-2 ruling. Both sides placed great weight on the hair, but reached different conclusions. The three-judge majority upheld the conviction partly because Jones “was the only person with access to the pistol whose hair sample matched the one discovered at the murder scene.”

Two dissenting judges said Roberston’s analysis of the hair was “insufficient” to connect Jones to the murder, and criticized the majority for “carelessly reading the record or deliberately mischaracterizing the record.”

Shortly before his execution, Jones filed an appeal seeking new DNA testing of the hair using methods not available at the time of his trial. His appeals were rejected.

Jones also asked Bush to stay his excecution, but the case memo prepared by Bush’s staff and given to the then-governor made no mention of the possibility that DNA testing was available that might help establish Jones’ innocence. Bush rejected the request.

Sometime after Jones’ execution, a local judge issued an order allowing the county clerk’s office to destroy the evidence in the case, but that was never done.