13 November 2010 :

DNA Tests Undermine Evidence in Texas Execution -- New results show Claude Jones, 60, white, was put to death on flawed evidence. Claude Jones always claimed that he wasn't the man who walked into a liquor store in 1989 and shot the owner. He professed his innocence right up until the moment he was strapped to a gurney in the Texas execution chamber and put to death on Dec. 7, 2000. His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones. But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. The day before his death in December 2000, Jones asked for a stay of execution so the strand of hair could be submitted for DNA testing. He was denied by then-Gov. George W. Bush. A decade later, the results of DNA testing not only undermine the evidence that convicted Jones, but raise the possibility that Texas executed an innocent man. The DNA tests—conducted by Mitotyping Technologies, a private lab in State College, Pa., and first reported by the Observer on Thursday—show the hair belonged to the victim of the shooting, Allen Hilzendager, the 44-year-old owner of the liquor store. Because the DNA testing doesn’t implicate another shooter, the results don’t prove Jones’ innocence. But the hair was the only piece of evidence that placed Jones at the crime scene. So while the results don’t exonerate him, they raise serious doubts about his guilt. Claude Jones was put to death for what allegedly happened on the afternoon of Nov. 14, 1989. Jones and an accomplice named Kerry Daniel Dixon pulled into Zell’s liquor store. They had a .357 magnum revolver given to them by Jones’ roommate, Timothy Jordan. Either Jones or Dixon remained in the pickup truck, while the other went inside and shot the store’s owner, 44-year-old Allen Hilzendager, 3 times and made off with several hundred dollars from the cash register. The question is, which of them committed the shooting? Witnesses who saw the crime from across the street couldn't positively identify which man they saw leave the store. The 3rd accomplice, Timothy Jordan, would testify that Jones confessed to the shooting. (Jordan later recanted his testimony, claiming police told him what to say in exchange for a lesser charge. Jordan, Dixon and Jones had committed a string of robberies, though the liquor store heist was the only one that involved murder. Jordan was sent to prison for 10 years. Dixon was given a 60-year sentence.) But Jordan’s testimony wasn’t enough to convict Jones of murder. In Texas, accomplice testimony can't be the sole basis for a conviction; it must be corroborated by independent evidence. At Jones' 1990 trial in rural San Jacinto County, prosecutors offered only 1 piece of corroborating evidence—the strand of hair recovered from the liquor store counter. Stephen Robertson, a forensic expert hired by the Department of Public Safety, examined the hair under a microscope—an inaccurate visual analysis that was common at the time. Robertson compared the hair with samples taken from 15 people who entered the store the day of the murder. He testified at trial that he believed the hair matched Jones. But he conceded, "Technology has not advanced where we can tell you that this hair came from that person," he told the jury, according to court records. "Can't be done." But in 2000, when Jones was fighting for his life, it could be done. On December 6, 2000, the day before the execution, Jones' attorneys filed a last-ditch motion for a stay—in district court and with the Texas Court of Criminal Appeals—so they could submit the strand of hair for mitochondrial DNA testing. Both courts turned him down. But the strand of hair survived, tucked away in a box in the San Jacinto County courthouse for years. In fall 2007, the Observer, the national Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed a lawsuit to obtain the hair for DNA testing. The county district attorney’s office fought release of the hair sample and announced its intention to destroy it. But in June 2010, Judge Paul Murphy ruled in favor of the Observer and the innocence groups, and ordered prosecutors to turn over the remaining hair evidence for DNA testing. Anti-death penalty advocates had hoped that the Jones case would provide the first-ever DNA exoneration of an executed person. While quite a few death penalty cases have been called into question, including several in Texas, no executed prisoners have been proven innocent by DNA testing, widely considered the most reliable form of forensic evidence. Instead, Jones' case now falls into the category of a highly questionable execution—a case that may not have resulted in a conviction were it tried with modern forensic science. In that respect, it's much like the case of Cameron Todd Willingham, executed in 2004 for starting a house fire that killed his 3 children. Fire scientists now say the arson evidence used to convict Willingham was flawed. (For the Willingham’s case see also Feb. 17, 2004; May 2, 2006; Aug. 31, Oct. 11 and 14, 2009; July 23, 2010. The Forensic Science Commission will continue its investigation of the Willingham case at hearing on Nov. 19.)