Guilty, Innocent, Guilty

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The State of Texas has argued, repeatedly and eloquently, that Jesse DeWayne Jacobs did not pull the trigger of a .38-cal. pistol that killed a woman named Etta Ann Urdiales in 1986. The state convinced a jury that Jacobs did not even know that his sister, who the prosecutor insisted was the trigger person, had a gun at the time the crime was committed. Yet for that crime Jesse DeWayne Jacobs became the first person executed by Texas in 1995.

At 12:02 a.m. last Wednesday, he was strapped to a gurney in Huntsville state prison, his arms pierced by needles attached to intravenous tubes that would carry a lethal dose of metabolic poison moments later. Jacobs, 44, devoted most of his last earthly words to protesting the injustice of his death. "There is not going to be an execution," he said, his voice wavering and his eyes filled with tears. "This is premeditated murder by the appointed district attorney and the State of Texas. I am not guilty of this crime."

He was not the only one who found the circumstance of his execution implausible, if not illegal. Though the U.S. Supreme Court curtly dismissed his final appeal by a vote of 6 to 3, Justice John Paul Stevens wrote a sharp / dissent. "I find this course of events deeply troubling," he wrote. Stevens said that if the prosecutor's arguments at the trial of Jacobs' sister were correct, "then Jacobs is innocent of capital murder." Said George Kendall of the NAACP Legal Defense Fund: "The state should have reopened his case and, at the least, vacated his death sentence, if not his conviction." Even the Vatican denounced the execution as "not only incredible, but monstrous and absurd."

The story began in 1986, when Jacobs' sister, Bobbie Jean Hogan, enlisted him to kidnap Urdiales from her Conroe, Texas, apartment. Urdiales was the former wife of Hogan's boyfriend. She had upset Hogan by badgering her former husband for child-support money. At Hogan's prompting, Jacobs adbucted Urdiales from her apartment in Conroe, then took her to a wooded area where he joined his sister Bobbie. Urdiales was killed with a gunshot to the head, and her body buried in a sleeping bag.

Jacobs initially confessed to killing Urdiales. And it was plausible. After all, he had been on parole in Texas since 1983 after serving part of a 25- to 50-year sentence for participating in the murder of a mentally retarded man in Illinois in 1973. Immediately after Urdiales' murder, he had gone on a six- month robbery spree. However, he recanted the confession at his 1987 murder trial, saying that his sister had pulled the trigger. Still, the state used his confession as the centerpiece of the case against him. A jury found him guilty and sentenced him to death.

Here the contradictions begin. Seven months later, at the trial of Bobbie Jean Hogan, Peter Speers, the same Texas district attorney who had prosecuted Jacobs, reversed himself. In that trial, he argued on the basis of "new evidence" that Hogan had pulled the trigger and that Jacobs had thought they were merely trying to scare Urdiales. At Jacobs' murder trial, Speers had argued, "The simple fact is that Jesse Jacobs, and Jesse Jacobs alone, killed Etta Ann Urdiales." But in Hogan's trial he contradicted that, saying, "Through the course of it all I changed my mind about what actually happened. And I'm convinced that Bobbie Hogan is the one who pulled the trigger." Indeed, Jesse Jacobs became the central witness in that trial, and the state urged the jury to believe him. They did, and convicted Bobbie Jean Hogan. Her lawyers, however, convinced the jury that the gun had gone off accidentally, and thus she was sentenced to 10 years for involuntary manslaughter.

Meanwhile, Jacobs remained on death row. He was clearly guilty of kidnapping, and possibly of co-conspiracy to murder. But he would have no chance to use the state's contradictory prosecution of his sister to win a mitigation of his death sentence or even a new trial.

He sought relief from several appeals courts, and eventually the Supreme Court. But then came another Texas stratagem: the attorney general's office decided that in Bobbie's trial, Speers had erred in positing Jacobs' innocence and so there were no legal grounds for reconsidering Jacobs' sentence.

Under Texas law, a co-conspirator to murder can be put to death. But he can also receive a life sentence. And the fact remains that a Texas jury believed Jacobs' account at his sister's trial. Wrote Supreme Court Justice Stevens in his dissent: "In my opinion, it would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed."

There would be no reprieve. Moments before his death by lethal injection, Jesse DeWayne Jacobs said, "I hope in my death that I'm a little bitty snowball in an avalanche that will stop all executions." Small chance of that in Texas, where 398 people are on death row, or in the rest of the country, where up to 75% of the populace now favors the death penalty. As for Bobbie Jean Hogan, who may well have pulled the trigger, and who was a clear co- conspirator in Urdiales' death, she could be out on parole this spring.