Truth Hangs by a Hair

One strand of hair found on the counter of an East Texas liquor store whose owner was gunned down in 1989 could help determine whether Texas executed an innocent man for the killing.

On September 10, a state district judge in San Jacinto County ordered county officials not to destroy the hair and other evidence used to convict Claude Howard Jones at his 1990 trial while The Texas Observer, the Innocence Project, and other criminal justice groups pursue a lawsuit seeking to have the hair released to a certified private laboratory for testing.

“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.”

If successful, the lawsuit could not only discover whether Jones was innocent, but better define the public’s right to information that sheds light on the integrity of the Texas criminal justice system. “It’s really been a source of great frustration for us when we can’t get access to evidence we think could be useful to determine if there’s been a miscarriage of justice,” said David Dow, director of the Texas Innocence Network, a University of Houston law clinic that assists inmates with innocence claims.

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 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, a multiple felon who was 61 when he was executed, 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’ 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 apparently the first time Texas open records laws have been used to seek release of physical evidence in a death penalty case.

“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 response to the open records request, San Jacinto County District Attorney Bill Burnett-who was not in office when Jones was prosecuted-would make no commitment to preserve the hair, according to William H. Knull, an attorney with the international law firm Mayer Brown. Knull is representing the Observer and other groups. Burnett did not return phone calls from the Observer seeking comment.

Mayer Brown lawyers won a temporary restraining order from District Judge Elizabeth Coker protecting all evidence in the case. Coker scheduled a hearing for October 24 to decide whether to issue a temporary injunction extending the preservation order while the lawsuit is pressed.

“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 Robertson’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 DNA testing of the hair using methods not available at the time of his trial. Coker rejected the request, ruling that Jones had used up his chances to appeal his conviction. The Court of Criminal Appeals also rejected the last-minute plea for DNA testing.

The day he was set to die, Jones appealed to Bush for a 30-day stay of execution to buy time for DNA testing. Typically in death penalty cases, the governor’s office of general counsel prepares a memo summarizing the appeal and making a recommendation as to whether the governor should grant a stay.

In Jones’s case, the four-page staff memo provided to Bush made no mention of the possibility that DNA testing might shed light on Jones’ guilt. Instead, it summarized the prosecution’s case and recommended that Bush reject the request. Bush had earlier granted a stay for another death-row inmate seeking DNA testing, saying “anytime DNA testing can be used in its context and can be relevant as to the guilt or innocence of a person on death row, we need to use it.”

Although it was clearly spelled out in the stay request filed by Jones’s lawyer-and a lawyer in Bush’s office apparently contacted Robertson to talk about the hair-Bush was apparently unaware of the DNA question. He rejected the plea, and Jones was executed hours later.

Since Jones’ death, DNA testing has emerged as a powerful tool in freeing the innocent and exposing fallibilities in the criminal justice system. The Innocence Project, founded in affiliation with the Benjamin Cardozo School of Law in 1992 to pursue such cases, counts 207 inmates who have been freed from prison when DNA testing proved their innocence, including 15 who were sent to death rows across the country. In 77 cases, DNA testing also helped identify the guilty party.

DNA testing after an inmate has been executed is rare, but not without precedent. In Virginia, widespread speculation about the possible innocence of Roger Coleman, executed in 1992 for the rape and murder of his sister-in-law, led to DNA testing of a semen sample 13 years after he was put to death. Despite Coleman’s vigorous protestations of innocence, the test confirmed his guilt, showing a one-in-19 million chance that the semen belonged to someone else.

In Georgia, Ellis Wayne Felker was executed in 1996 for the rape and murder of a 19-year-old student. Evidence against him was largely circumstantial. Four years later, DNA tests on fingernail scrapings found on the victim’s body were inconclusive.

Whether or not DNA testing bolsters Jones’ innocence claim, resolving lingering questions about the case is crucial, Knull said. “We all have an interest in knowing that our state and its mechanisms are working properly, especially in issues involving life and death,” he said.

Texas has an established track record of sending innocent men to death row. Some-Clarence Brandley, Randall Dale Adams, and Kerry Max Cook among them-have escaped execution and eventually been freed on appeal.

But substantive questions remain about how many innocent inmates the state might have executed. In about a half-dozen cases, serious indications have arisen after the fact that point to an executed inmate’s innocence.

Perhaps the most notorious case was that of Cameron Todd Willingham, executed in 2004. Willingham was convicted of setting a fire that killed his three children, a 2-year-old girl and 1-year-old twins. Experts who later scrutinized evidence in the case concluded that the fire probably was not arson.

Other questionable cases have involved inmates largely implicated on the testimony of accomplices who escaped death sentences themselves, a botched crime-scene investigation that destroyed evidence, and an incompetent defense attorney who failed to present a case for his client.

State public records laws apparently have never before been used to obtain physical evidence for independent testing. In the lawsuit, the Observer and other plaintiffs argue that testing the hair in the Jones case is a logical extension of the public’s right to access. Prosecutors and the courts no longer have any use for the hair, the lawsuit argues, leaving no reason why it cannot be tested.

With limited exceptions, the evidence used to convict someone is considered public record, enjoying a “powerful and historic presumption in favor of public access,” the lawsuit argues.

The Texas Innocence Network has filed public records requests for evidence in noncapital cases, but has always been turned down, Dow said. The public access question has never been litigated, he said.

“Under any circumstances, (this case) will clarify what the public’s right is when it comes to having access to evidence used to obtain a criminal conviction,” he said.

Observer intern Leah Finnegan contributed to this report.