In Texas, Seeking the Truth About an Executed Man

Barry Scheck has used DNA evidence to free hundreds of the falsely convicted. But if he's no more than a crusader for truth, why is his mission so controversial?

  • Mark Mahaney for TIME

    Barry Scheck, co-director of the Innocence Project

    Claude "Butch" Jones would seem an unlikely client for the Innocence Project, a legal foundation that has freed 254 men and women through DNA evidence since 1992. Jones was not, in the broadest sense, an innocent man. He was an alcoholic and an armed robber who once, while serving time in Kansas for murder, doused another inmate with lighter fluid and, in the words of his own defense attorney, "torched him."

    When Jones was executed by the state of Texas, however, it wasn't just for being a criminal. It was for a specific crime: the 1989 murder of a liquor-store owner named Allen Hilzendager in a small town with a violent name — Point Blank, Texas. Jones and Danny Dixon, another paroled murderer, had driven to the liquor store in a pickup truck. One of the two men walked inside and shot Hilzendager three times, leaving him dead in a pool of blood and spilled alcohol.

    It was a quick trial. The two eyewitnesses, who had been standing across the highway when the crime occurred, couldn't identify Jones, but they saw a beer belly and a gray jogging shirt, both of which could have belonged to Jones, according to other witnesses. Timothy Mark Jordan, the owner of the gun used in the crime and a friend of Dixon's who became the key witness for the state, testified that Jones confessed to him. A single hair found on the counter was examined under a microscope and was found, in the words of the state's crime-lab expert, to have "matched" Jones'.

    Not long after Jones' conviction, a new mitochondrial-DNA test came into use that could have identified the hair with far more certainty than that microscope analysis — a technique that remains largely unchanged since it was first used in 1861. But Jones' appeals to have the hair tested were denied, as was a last-minute petition to then Governor George W. Bush for a stay of execution. Bush had postponed other executions to wait for new DNA tests, but Jones had spectacularly bad timing. His petition came in the middle of the Florida recount fight after the 2000 presidential election. Bush's legal team sent him a brief on the case, but it neglected to even mention the possibility of a new DNA test, and Jones became the 152nd — and final — inmate executed during Bush's tenure.

    The hair, however, survived, and that's why Jones is actually the perfect client for the Innocence Project and its co-director Barry Scheck. A courthouse clerk had somehow neglected to destroy it in the years since the execution. Sealed in a plastic bag and forgotten in the evidence room, the hair became even more important after Jordan, the prosecution's star witness, recanted his testimony in 2004. He had received just 10 years for robbery, while Danny Dixon, who didn't cooperate, received a life sentence for aggravated robbery and is still in prison. "I took a deal because I was scared," Jordan said in an affidavit, "and I testified as to what they told me to say."

    Now the 1-in. (2.5 cm) hair has become the subject of a three-year-long legal battle pitting rural San Jacinto County against Scheck's Innocence Project and the Texas Observer magazine, both of whom are suing to have the evidence tested on the grounds that the public has a right to know the truth. Waiting in the wings with a separate lawsuit is the executed man's adult son Duane Jones, who says he wants the truth and that as next of kin, the hair belongs to him. San Jacinto County district attorney Bill Burnett, a former probation officer whose lawyer describes him as "a very capable prosecutor but a simple guy in his philosophy of things," says that under Texas law, only the defendant himself can ask for a new DNA test. "Once the defendant has been executed, I can do nothing more in the case," he said in a deposition. He plans to destroy the hair as soon as he's legally permitted to, closing the book on the only death sentence his small county has ever handed down. Both sides expect a ruling soon.

    1. Previous Page
    2. 1
    3. 2
    4. 3
    5. 4