I just received a Public Information Request for exhibits in a capital murder case; specifically hair samples collected from the shooter and a hair fragment from the counter of the liquor store to allow mitochondrial DNA testing to be performed. The request is from a Houston law firm on behalf of the Actual Innocence Project and the INITIAL letter indicates they are willing to sue to secure access to the trial exhibits. Quite a threatening first letter. This individual was found guilty in 1990 and executed December 7, 2000 (number 40 that year( so it has been seven years since the execution. AND the defendant admitted to the murder and apologized during his final statement. The hair fragment in question was just one piece of evidence used to corroborate accomplice witness testimony so it is not the "crux" of the case. A destruction order had already been prepared but not signed yet.

Anybody dealt with the Actual Innocence Project people?

And does the Public Information Act allow such evidence to be turned over and tested seven years after the exeuction?

The Attorney General's handbook tells us the following:

"Despite the assumption in Open Records Decision No. 252 (1980) that the Public Information Act applies to physical evidence, the prevailing view is that tangible items such as a tool or a key are not "information within the Act, even though they may be copied or analyzed to produce information."

Open Records Handbook 2006, at 17.

They overstate their case. Sounds like to me they are just trying to get around filing a Chapter 64 motion to me. IP should know better.

Having not read the record, but also considering your comment that the hairs were not big parts of your proof, it seems to me they'd have a hell of a time proving to a court what testing these hairs might show about the defendant's guilt. CCP 64.03(a)(2)(A). I would guess there is plenty of other evidence showing your guy did it. What about the shooter's identity? Was it an issue? CCP 64.03(a)(1)(B).

This is happening in other cases (we've gotten something similar). Seems that IP is looking for creative ways to do some unofficial testing in old cases without following the law. I would hope that offices would not release actual evidence without a court order and supervision of how and when testing is done.

Cory,

I was assistant DA and sat second chair on this one. There was the driver (who had two previous murders to his credt) and the shooter (who had one previous murder in TDC to his credit). A partial human hair was found on the counter of the liquor store. This was compared to the victim, driver and everyone else logged in and out of he scene. The only person it was found consistent with was the shooter. The autopsy report, blood splatter and what witnesses across the road saw and heard corroborated that the shooter left the trailer house in the passenger side of the vehicle, that the person who got out of the vehicle and went in was in the passenger side, and that the shooter was in the passenger side when they returned to the trailer. Also the witnesses across the road who saw the passenger get out and in described his build which was different than the driver.

Even under the law of parties he is not "actually innocent" of the crime. The partial hair was just one piece of evidence that corroborated the accomplice witness testimony from the third party who planned it but did not go. And the third party is the one the shooter told "i shot the Q B three times when they went to party in Vegas after robbing the Humble Bank two days later. (And the shooter was the person who went into the bank with the gun in Humble).

quote:

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Originally posted by CoryC:
They overstate their case. Sounds like to me they are just trying to get around filing a Chapter 64 motion to me. IP should know better.

Having not read the record, but also considering your comment that the hairs were not big parts of your proof, it seems to me they'd have a hell of a time proving to a court what testing these hairs might show about the defendant's guilt. CCP 64.03(a)(2)(A). I would guess there is plenty of other evidence showing your guy did it. What about the shooter's identity? Was it an issue? CCP 64.03(a)(1)(B).

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John, I got a call this morning from the attorney, Knull. I told him we would respond to his letter within ten days. He wanted a verbal agreement for us not to destroy the evidence since a destruction order has already been prepared and was waiting for a judge's signature. I told him we wouldn't give a verbal agreement to do any such thing, So I put the ball back in his park and will get ready to issue a lettr denying his request and recommending he follow the procedures in the Code if he wants the evidence.

It looks like the IP is really digging and scraping to find ANY case that they might spin to boost their statistics. This particular case is not even a close call.

quote:

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Originally posted by JB:
This is happening in other cases (we've gotten something similar). Seems that IP is looking for creative ways to do some unofficial testing in old cases without following the law. I would hope that offices would not release actual evidence without a court order and supervision of how and when testing is done.

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Look at Article 38.43--there is no right to preserve biological evidence after an execution.

News from the Innocence Project
Press Release and Background: Sept. 7, 2007
Contact: Eric Ferrero

DNA Tests May Show Whether Texas Man Was Wrongfully
Executed; Legal Motions Filed to Hold Evidence for Testing

Texas Observer and organizations that address wrongful convictions today filed motions in state court in the case of Claude Jones, executed in 2000

(SAN JACINTO COUNTY, TX; September 7, 2007) - Advanced DNA testing could prove whether a Texas man was wrongfully executed in 2000, so a state court should issue an immediate order preventing local officials from destroying the evidence and should also order DNA testing in the case, papers filed today in state court said.

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed motions in state court in San Jacinto County, Texas, today asking for a temporary restraining order that would
prevent officials from destroying the only piece of physical evidence in the case - a hair from the crime scene - and seeking a court order to
conduct DNA testing that could determine whether the hair matches Claude Jones, who was
convicted of murder in 1990 and executed on December 7, 2000.

The hair, which was found on the counter in a liquor store where a man was shot and killed, was central in Jones' trial and post-conviction
appeals. An expert for the state testified at the trial that the hair was consistent with
Jones'. The Texas Court of Criminal Appeals, the state's highest criminal court, narrowly upheld Jones' conviction, in a 3-2 ruling where the majority specifically cited the hair evidence as the necessary "corroboration" to
uphold the conviction.

"The San Jacinto District Attorney, who was one of the prosecutors during Claude Jones' trial, told us this week that he will not agree to DNA
testing without a court order. We are asking for an emergency order from the court that will mandate testing and prevent officials from destroying this evidence in the meantime," said Barry Scheck, Co-Director of the Innocence
Project, which is affiliated with Cardozo School of Law. "The public has a right to know whether Claude Jones actually committed the crime for which he was executed, and whether a serious breakdown in the state's legal and political
process led to a wrongful execution. Public confidence in the criminal justice system is at stake."

In the days prior to Jones' execution, his attorneys appealed to courts and to then-Governor George Bush's office for a stay of execution so that DNA testing on the hair could be conducted. Documents later obtained by the
Innocence Project through Open Records Act requests show that Governor Bush's staff did
not include the possibility of DNA testing in the material they prepared for him about the request for a stay of execution, which was denied. (The request for a stay of execution was being handled by Bush's office during the
period of the Florida vote recount after the 2000 presidential election.)

Several months earlier, Governor Bush granted another death row inmate's clemency request so that DNA testing could be conducted; at the time, Bush said, "Any time DNA 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." Several weeks later, DNA results showed that the man, Ricky McGinn, was guilty and he was executed.

Other than the hair, the primary evidence against Jones was testimony from Timothy Jordan, who said that Jones told him he committed the murder. Jordan and Kerry Dixon were initially arrested for the November 1989 liquor store
robbery and murder in San Jacinto County. Jones was later arrested, and he and Dixon were charged in the crime. In an affidavit in 2004, Jordan stated that everything he reported at trial about the robbery and killing he learned from Dixon, not from Jones. Jordan's affidavit also states that he testified against Jones in an attempt to receive a reduced sentence in this case and an unrelated robbery.

According to the Innocence Project, mitochondrial DNA testing on the hair evidence could establish any of the following:

(1) Jones was guilty;
(2) the hair comes from the charged accomplice Dixon, which would strongly support a claim Jones was innocent (since Dixon denied being present in the store); or
(3) the hair came from the victim or some other individual, which, by excluding Jones and contradicting the critical evidence against him at trial and relied on by the appeals courts, would mean there was not legally sufficient evidence to convict Jones, much less execute him.

On August 31, 2007, attorneys at Mayer Brown LLP sent Open Records Act requests to San Jacinto County District Attorney Bill Burnett and District Court Clerk Rebecca Capers, asking for access to the hair evidence to perform DNA testing. Burnett denied the request earlier this week, two days after telling attorneys that he didn't think DNA testing on the hair is
scientifically possible (since the hair does not have a follicle) and that Jones confessed to the crime in his final statement in the execution
chamber.

"None of the reasons the District Attorney has given for denying our request are valid," said Innocence Project Staff Attorney Nina Morrison.
"Mitochondrial DNA testing on this hair is definitely possible, and similar testing has exonerated several people who were wrongfully convicted in other cases. We don't know what the testing will show, but mitochondrial DNA
testing can and should be conducted on this evidence. The record from both the trial and the appeals clearly show that the hair, which is the only physical evidence against Jones, was key to securing and upholding his conviction. Eyewitness testimony in this case was shaky at best and did not identify Jones, and Jones did not confess to this crime in the execution
chamber. He told the victim's family that he hoped they would find closure and that he was sorry for their loss."

"The bottom line is that Claude Jones was convicted based on the hair evidence and testimony from Timothy Jordan. Jordan has already said, in a sworn affidavit, that his testimony was false, and DNA testing on the hair
could definitely show whether or not Claude Jones was guilty," Morrison said.

Texas leads the nation in the number of innocent people who were exonerated through DNA testing after being wrongfully convicted. Across the state, 29 people have been exonerated with DNA since 1994. They served a total of 354 years in prison. Nationwide, 207 people have been exonerated through DNA testing, 15 of whom were sentenced to die, according to the Innocence
Project, which is affiliated with Cardozo School of Law.

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network are represented by Mayer Brown LLP in Houston and New York.

##

Perhaps the hair fragment should be offered to the dead guy's next of kin for a proper burial?

If San Jac is planning to destroy it anyway then I guess there is no harm in giving it to the Innocence people unless they are also asking yall to pay for the testing.

Shouldn't they be spending time and money on finding innocent people that are still alive? Testing the hair found on the store counter can only prove that the guy was at the scene. If the hair grew on some else's head, it doesn't prove that the guy was not at the scene, only that this wasn't his hair.

Wait for the court order because if you agree to give them evidence based on an informal phone call then they might turn around and say you were too loose with it.

I'm not familiar with the details of this case, but Alex is surely right, isn't he? Even assuming the hair was not the defendant's, at this point the legal issue of his guilt is moot. The factual issue, while it might be interesting to know if a mistake was made, won't be resolved by the hair, will it? If knowing the hair's source will only establish that the defendant still might be guilty, but with a lesser degree of confidence, then what is the point? How does it help anyone to say that 1) a possibly guilty defendant might have gotten off if the testing had been done sooner, or 2) that an executed defendant might have been innocent, but we don't really know?

You may already know this, but . . .
don't forget, under the Public Information Act, if you're not going to turn over what's been requested, you must obtain a ruling on your decision from the AG's office. Check out Govt. Code section 552.302.

Not if they are asking for something completely outside the PIA, such as hair.

I don't know all the details of the case, but it sounds like the hair was only ever proven to be consistent with the defendant, anyway? So if there is new technology that says whether or not it was his difinitively still wouldn't exactly be a mistake....

I am requesting an attorney general's opinion just for good measure, although JM-640 and OR2003-2792 are clear.

My major concern is the effect this would have if they were allowed physical evidence by simply filing a PIA request. Any citizen could do it, and get the evidence, and then what?

We used the testimony that the hair was consistent with Jones and not the driver, victim or any party logged in and out of the crime scene as one piece of evidence corroborating the accomplice withess testimony. We also had other indpendent evidence that corroborated Jordan's testimony that Jones had told him he shot the guy three times. The accomplice witness corroboration tended to connect Jones to the offense and tended to show that he was the passenger in the pickup that entered the liquor store. Under 38.14 I think we had sufficient corroboration. The jury thought so, and the Court of Criminal Appeals majority thought so.

quote:

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My major concern is the effect this would have if they were allowed physical evidence by simply filing a PIA request. Any citizen could do it, and get the evidence, and then what?

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Good point.

How would the Actual Innocence Project (AIP) members feel if the evidence had already been handed over to members of the Fictional Innocence Project? What if, in the process of testing the hair, the FIP inadvertently destroyed or misplaced it? This isn't like a normal document where you can just make a Xerox copy.


That said, if the hair was about to be destroyed anyway, and the AIP pays the cost of testing, there seems no harm in letting them have at it.

In my opinion they should worry about people who are still alive but its their time and money so whatever.

[maybe that can be the new slogan for the Texas Rangers ...]

Ex-Texas Ranger objects to anti-death penalty group's assertions
By TONY FLOYD
Henderson Daily News

A retired Texas Ranger in Henderson accuses the leader of a New York anti-death penalty group of lying when questioning evidence used to put a convicted murderer and lifelong criminal to death in December 2000.

Tom Walker, who retired in his native Rusk County after serving as a Texas Ranger throughout his law enforcement career in the Houston area, said evidence overwhelmingly confirmed that Claude Jones was the triggerman in the November 1989 killing of liquor store owner Allen Hilzedager in Point Blank, located in San Jacinto County.

However, Nina Morrison, attorney for The Innocence Project, a legal clinic affiliated with Yeshiva University Law School in New York, contends a one-inch long hair was key evidence in the capital murder case. A state district judge has set a hearing for Oct. 3 to consider whether DNA testing should be performed on the hair.

Walker said current DNA analysis technology was unavailable in the late 1980s.

"Nina Morrison and the Innocence Project and all affiliated supporters are liars when they state a one-inch hair convicted Claude Jones of murder," Walker told the Henderson Daily News Tuesday.

Walker said a hair was never central to a conviction. "There was never any testimony that the hair came from the head of Claude Jones. The testimony was that it only had similarities to Jones' hair."

Walker also accused Morrison of being dishonest when she stated that Jones' accomplices, Timothy Jordan and Kerry Dixon, gave confessions about their crime spree. She failed to state that one of the witnesses, a 12-13-year-old girl, gave an exact description of Jones as he killed the liquor store owner, thereby corroborating Dixon's testimony.

"The description of Jones by the young girl was so accurate that when I was shown photographs of a bank robbery by the FBI that occurred shortly after the killing I recognized Jones as the person I was trying to identify in the murder investigation."

Morrison and the Innocence Project also failed to note that Jones' own mother identified Jones and corroborated the young girl's testimony.

Walker said the anti-death penalty group also failed to note that Jones had spent more time in jail than in the free world for a series of "horrendous crimes."

"His own mother, a decent and honorable person, was ashamed, which caused her to do the honorable thing in this crime spree," Walker said.

"Nina Morrison needs to be truthful when she represents her cause," he said. "DNA of the hair will prove nothing, besides the overwhelming evidence that convicted Claude Jones.

"When the state of Texas, under the governorship of George W. Bush, stuck a needle in this man's arm, they were right on target."

Seriously, there's a Walker, Texas Ranger? Wonder how many times he heard THAT.

For the AG's answer to the Open Records Request, demanding access to physical evidence (rather than a document), click here.