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TRUTH HANGS BY A HAIR DNA tests sought by the Observer and the Innocence Project could show whether Texas executed an innocent man. I By DAVID PASZTOR ne 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 14 THE TEXAS OBSERVER SEPTEMBER 21, 2007 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 Burnettwho was not in office when Jones was prosecutedwould 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 3 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