Feature: Wednesday, June 20, 2002
Holy Grail in a Gray Box

Beyond jail and grave, Richard Jones might still strike a blow against the death penalty.

By Dan Malone

Richard Wayne Jones was dead as dead can be. Executioners for the state of Texas had made certain of that with a lethal injection administered minutes after the condemned Fort Worth man asserted his innocence for the last time.

The man who arrived at the funeral home shortly after the execution had a grim task, one that Jones had approved as a final act. A long cotton swab was run along the walls of Jones’ mouth. His hairs were plucked. The samples were placed in containers, signed, sealed, and dated.

Twenty-two months after his execution, all that remains of Richard Jones outside his grave rests in a gray metal box stacked amid files of closed cases in the closet of a Dallas private investigator’s office. The contents of that box — samples of Jones’ DNA — could soon take center stage in a statewide legal drama.

As a State Bar of Texas committee last week debated a moratorium on the death penalty, a group of defense lawyers from Fort Worth, San Antonio, and Lubbock plotted a strategy that some hope could deliver a powerful blow in Jones’ name to the state’s executioners. The moratorium failed, and the attorneys’ plan in the Jones case is a legal long shot. But it’s one that’s being tried increasingly around the country as death penalty attorneys and opponents crusade for their holy grail — irrefutable evidence that a state, any state, has executed an innocent person.

Jones was sentenced to death for the fatal stabbing of 27-year-old Tammy Livingston of Hurst. Her charred body was found abandoned in a field in east Fort Worth in 1986. Shortly after Jones’ execution on Aug. 22, 2000, his sons requested permission from a Tarrant County court to run 21st-century DNA tests on evidence in their father’s 20th-century criminal case in an attempt to determine if others were possibly involved in Livingston’s murder.

The request has landed at least temporarily in legal limbo. However, members of the Texas Criminal Defense Lawyers Association are trying another tack. Borrowing a strategy used successfully in Georgia, the group decided to seek permission to inspect and test the evidence in Jones’ case under laws designed to give the public access to government records, said Cynthia Orr, a San Antonio attorney who chairs the death penalty committee of the defense lawyers’ association.

“We’re concerned in the Richard Jones case that there is a distinct possibility that an innocent man was executed,’’ Orr said. Attempts to prove the innocence of executed persons may strike some as pointless, but Orr said they act as a final check on the criminal justice system in its most serious cases. “Everyone — the prosecutors, the victims, the public — has an interest in making sure the system is working properly. We’ve had seven people exonerated from death row [in Texas]. We owe it to ourselves to check and see if we have a system of justice that has integrity. ”

The Tarrant County District Attorney’s office says the effort is futile. Prosecutors said plenty of other evidence — a confession and a fingerprint — shows Jones was the actual killer. And they said there is no way to spin the facts of this case into an exoneration scenario.

“There is no possible result that might clear this gentleman,’’ said Ann Diamond, the veteran litigator in the DA’s office who has handled the Jones case since his execution. “Theoretically it might implicate a co-actor, but it would not clear him. It’s not a test case. It can’t prove this person didn’t do it.’’

In recent years, the public has been bombarded with news about cases in which DNA evidence proved juries had convicted innocent men. And more than 100 persons, including the seven that Orr cites, have been released from death rows — some of them after DNA proved their innocence. Death penalty advocates say these cases prove that “the system’’ works — that errors which could cost a person’s life are eventually rooted out. No one has yet to prove beyond doubt that any of the 782 persons executed in this country in recent years were innocent.

Jones is an unlikely candidate to become a poster boy for those attempting to end executions in America. His guilt has been repeatedly considered by courts stretching from Fort Worth to Washington — and none found reason to overturn his conviction. Though he insisted he committed no murder, the actions that Jones did admit are repulsive: He acknowledged setting the dead woman’s body on fire to destroy evidence against the two people who he said actually killed her.

Still, if scientific testing implicates another and proves Jones innocent, it could have a dramatic impact on the future of capital punishment not only in Texas but across the nation.

“If and when DNA evidence proves that we’ve executed an innocent person, it will fundamentally alter the very terrain of the death penalty debate in the United States,’’ said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty. “Make no mistake, the public is concerned about innocence. Innocence is the number one issue that gives the public pause when it comes to the death penalty. Innocence is the issue that cuts through everything.’’

Tammy Livingston was running an errand on the evening of Feb. 19, 1986, when she stopped at a Michael’s crafts store in Hurst. It was near dark. A witness told police she saw a man force his way into Livingston’s car. That was the last time anyone but her killer saw her alive.

Just before midnight, Fort Worth firefighters responded to a report of a burning field on the city’s east side. The grass around the charred, nude, 90-pound body, later identified as Livingston, had been set on fire. An autopsy revealed that Livingston had been stabbed more than a dozen times and died from a severed carotid artery. Dumped in a dark, remote field, she had been doused in gasoline and torched in a failed attempt to destroy evidence of her murder.

Given a sketchy description of the kidnapper and the absence of witnesses to the actual murder, the police investigation into Livingston’s death was remarkably short. Investigators were still waiting on autopsy results the following day when charges started appearing on the victim’s credit cards. When a young pregnant woman tried to use one of Livingston’s checks at a Fort Worth grocery store, a suspicious clerk alerted the police, and the woman was arrested.

She told police that her boyfriend, Jones, had given her Livingston’s checks. Police arrested Jones the next day and gathered up the clothes he had worn on the day that Livingston was killed.

Jones, a convicted thief and high-school dropout, eventually confessed to the murder. His confession seemed to fit neatly with physical evidence that police were gathering. Two spots on his jeans turned out to be a match for Livingston’s blood.

Jones took the witness stand during his 1987 trial to recant the confession. He said he confessed only after police threatened to send his pregnant girlfriend to the execution chamber in his stead. But the confession and the blood tests were more persuasive than Jones’ new version of the facts. A Tarrant County jury found him guilty of capital murder, then sentenced him to die.

During his first six years in prison, Jones continued to insist he had nothing to do with Livingston’s murder. Then the judge in his case set a date for his execution. A few days before he was to die, Jones wrote a letter to family and friends in which he again changed his story. His date with the executioner was cancelled and his letter spawned the appeals that would keep him alive another seven years.

In his letter from death row, Jones claimed that his sister, identified in the most recent court records as Brenda Jones Randolph, and a friend, Walt Sellers, had killed Livingston during a robbery. Jones said he had confessed to the crime to protect his sister. His letter also offered an explanation for the two drops of blood that police found on his jeans. After Livingston was killed, Jones said, his sister and her friend pleaded with him to help cover up the murder. Jones eventually agreed to help, by starting a fire in the field where Livingston’s body was found. If that blood on his pants was Livingston’s, then he must have brushed up against something in the field where her bloodied body was dumped, he said.

By this point, Jones had given three different accounts of his actions that night: He killed her. He knew nothing about it. He didn’t kill her but helped her killer cover up the crime.

It would be easy to discount his last account as a deranged fabrication aimed at settling some unknown score. But attorneys and investigators who worked on the case — a changing group led by Dallas private eye Tena Frances and Fort Worth lawyer William S. Harris — kept finding people whose stories suggested Jones’ last account might just be true. If they’re right, then Livingston’s killer could still be roaming the streets.

As unique as a fingerprint, DNA is an acronym for deoxyribonucleic acid, the genetic blueprint for all living things. Samples from criminal suspects — a drop of blood, a strand of hair — can be compared to biological samples collected at crime scenes to determine if they came from the same person. The technology to test DNA samples for matches was developed around 1985, but was not widely accepted or used by the courts until the early 1990s. In the last few years, Texas and other states have passed laws making DNA testing more available to criminal defendants.

Not all cases lend themselves to DNA analysis. A triggerman in a drive-by shooting or an underworld hit man might leave no DNA at a crime scene. But a rapist, a criminal involved in a violent struggle, or someone who traipsed through a bloody crime scene like Jones might.

The Texas attempt to re-examine an execution through the prism of genetic testing is not without precedent. Attorneys in Florida and Georgia have won permission to conduct such posthumous testing; attorneys in Virginia are attempting to persuade an appellate court to authorize the tests. An Oklahoma lawyer was on the cusp of having tests conducted when the FBI stepped in and confiscated the evidence for a related criminal probe.

Three weeks before Jones’ execution in Texas, a Georgia judge granted a request from The Boston Globe to test DNA collected in the case against Ellis Wayne Felker. Felker was executed in 1996 for the 1981 murder of 19-year-old waitress and college student Evelyn Joy Ludlam. The evidence in question: slides of swabbings from a rape examination, material found under Miss Ludlam’s fingernails, and a hair found inside her panties.

Houston County Superior Court Judge L.A. McConnell Jr. ruled that evidence in the case was a public record, subject not only to visual inspection but also to scientific examination. “In order for the inspection to be meaningful the public should have the right to know what, if anything, is contained in the subject evidence,’’ Judge McConnell wrote. “Accordingly, the court orders that hair samples and other item requested be tested for DNA. ...’’

The test results, which were performed by a California laboratory, were inconclusive, according to The Globe. Houston County District Attorney Kelly Burke said neither the rape kit nor the fingernail scraping contained any biological matter to test, and the hair was shown to be the victim’s. “It was a hullabaloo about nothing,’’ he said. “From the get-go, the DNA wouldn’t prove or disprove whether Wayne Felker committed the crime.’’

The Georgia prosecutor scoffs at the efforts of lawyers with so-called “innocence projects” who second-guess executions long after the fact. “Projects Innocence? I call them Projects Guilt because in almost every one of these, 99.99 percent of the time, justice gets it right.” And he resents the assumption that many make about the South, where the most cases have been challenged. “What really ticked me off [is the attitude that] it’s the South and it must be a bunch of idiots. It’s Georgia, a bunch of backwoods hillbillies.”

DNA testing might even be appropriate after some executions but only “if it’s the relevant issue in the case,’’ he said. “In Felker, it wouldn’t have changed anything.” Miss Ludlam’s body, he said, had lain in a running stream for more than a week before it was found. Any evidence that might have once been on it had washed away.

In Virginia, attorneys are trying to prove that a man executed 10 years ago was innocent. Roger Keith Coleman was sentenced to die in 1982 for the rape and murder of Wanda McCoy. The case against him was largely circumstantial. DNA testing was not yet developed when Coleman was tried and was just becoming accepted when he was executed in 1992. In fact, he won permission to have DNA in his case examined, but the early tests, which were not as precise as those available today, failed to exclude him as a suspect.

A group of organizations led by The Boston Globe and the New Jersey-based Centurion Ministries asked Virginia circuit courts for permission to subject the evidence to newer, more precise DNA tests. The court refused, and the organizations filed appeals last month with the Virginia Supreme Court.

In court papers filed June 5, attorneys for Centurion Ministries argued that the public has an overriding interest in knowing the truth about the Coleman case. “The public is entitled to know whether a man executed in its name was in fact guilty of the crime for which he was put to death,’’ the lawyers wrote. “Our criminal justice system, like our representative government, is premised on the right of the public to know what acts are being undertaken in its name. And to decide whether those acts are desirable.’’

In Oklahoma, attorney Doug Parr persuaded officials to let him test evidence against Malcom Rent Johnson, who was executed Jan. 6, 2000, after telling witnesses that he was headed “to heaven on a midnight train.’’ His conviction for the 1981 rape and murder of Ura Thompson was largely based on the testimony of a later-discredited police chemist, according to published reports.

The chemist testified that DNA in semen stains on Thompson’s bed matched that of Johnson. A subsequent investigation revealed that, contrary to the chemist’s testimony, there was no semen, much less DNA, on the specimens collected at the crime scene.

“Two days before the evidence was to be shipped [off for analysis], it was seized by a federal grand jury which was supposedly conducting a criminal investigation of [the chemist],” Parr said. Now he doesn’t know when or if he’ll ever get the chance to analyze the evidence.

In Texas, Orr said she also is interested in testing evidence collected against Windell Broussard, who was executed Jan. 30. The Port Arthur man had been convicted of capital murder in the 1992 stabbing deaths of his estranged wife, Dianna Broussard, and his 9-year-old stepson, Corey Harris, in their home.

In his final statement, Broussard, 41, said: “I just want everyone to know this here is a tragedy. What happened to Dianna, Corey, and what’s happening to me ... it is a tragedy.’’ Like many on death row, Broussard had a long history of violence. He had served time for robbery, kidnapping, and assault. The year before his wife was killed, Broussard was sentenced to 20 days in jail for slugging her in the face.

Broussard’s conviction was based largely on the testimony of his stepdaughter, who said she was awakened by the screams of her mother and brother. She identified Broussard as their killer. Broussard long maintained that he had nothing to do with either killing. His defense attorneys argued that his 9-year-old stepdaughter, Tocarra Harris, who saw only part of the killer’s face in partial darkness, was mistaken. Further, they claimed that DNA analysis of blood stains at the crime scene and fingernail scrapings would show that another person was present.

Using a state law that took effect last year, defense attorneys requested permission to test the blood and fingernail scrapings. But the judge waffled on the issue, eventually denying the request. “He orally granted it and changed his mind about two weeks later,’’ said attorney Michael Charlton. Charlton said he appealed the judge’s ruling to the Court of Criminal Appeals, but the appellate court allowed the execution to proceed before ruling on the appeal.

Broussard’s sister, Monica, said she is confident her brother is innocent. On the night Dianna Broussard was killed, Monica Broussard said, she was with her brother for all but about 30 minutes. During the brief interlude when they were apart, Windell Broussard was stranded without transportation at his grandmother’s house about a mile away from the crime scene, she said.

“The last thing my brother said to me was, ‘Make sure my name is cleared,’ ’’ she said. “We actually had the money to do our own DNA. The only thing we were asking the court to do was give us some time.

“I would like the system to be more assured that they are executing people who are actually guilty. In this case, I know my brother was not.’’

Of all the attempts around the nation to prove a death row inmate innocent from the grave, only one has come close.

Frank Lee Smith, 52, was sentenced to death in 1986 for the rape and murder of 8-year-old Shandra Whitehead of Fort Lauderdale. He had previously been convicted of two other killings. DNA analysis was not being used when his case went to trial. But his attorneys repeatedly sought permission to conduct the tests while his appeal was pending. Finally, last year, they won. DNA tests conducted on the rape exam that was performed on Whitehead showed that the semen found in her body could not have been Smith’s.

That news came too late for Smith, however. The two-time killer, wrongly convicted this time, died not from an executioner’s needle but from cancer, 11 months before the results were announced.

What lends a measure of credibility to Richard Jones’ claim of innocence are sworn statements from five other persons who corroborate aspects of his story. Two said that Sellers had confided in them that he knew Jones was innocent.

Three others said they had seen Sellers, whom they had met through drug connections, with bloody clothes or stolen checks or credit cards not long after Livingston was stabbed to death.

But the jury that sentenced Jones to death heard none of this. Some of the witnesses hadn’t surfaced by the time of the trial. Others could not be found or refused to testify.

Jones’ sister, who now lives in Abilene, has not publicly talked about the case. Sellers, who has a history of theft and drug charges, was released last year from federal prison. He has denied any involvement in the killing.

Though none of this information was introduced at trial, all of it was available to Jones’ legal team on appeal. His 1993 statement about the crime and the corroborating witnesses were presented time and again to the courts during the life of his appeal. Appellate lawyers also asked for permission to conduct DNA tests before the execution, but their requests were denied. In his final statement, Jones again professed his innocence and hinted at the battle his sons and attorneys would wage after his death.

“I want the victim’s family to know that I didn’t commit this crime. I didn’t kill your loved one,” Jones said. “Y’all convicted an innocent man and you know it. There are some lawyers hired that is gonna prove that.’’

The week following his execution, Jones’ sons, Richard Wayne Jones Jr. and Keith Donovan Jones, filed suit in 48th District Court seeking permission to take depositions from Randolph and Sellers and to conduct tests on crime scene evidence never before analyzed for DNA. Most of the evidence in question was collected from Livingston’s car: vacuumings, eight cigarette butts, three towels, two blankets. Biological matter left behind on those items might be those of Livingston’s killer.

State District Court Judge Bob McCoy last year authorized attorneys for Jones’ sons to take sworn statements from Sellers and Randolph while rebuffing all requests to test any of the evidence.

As it turned out, they’ve done neither. Just as they were preparing to take the sister’s statement, an attorney representing her notified the court that she and her husband had filed for bankruptcy. Because the lawsuit could potentially turn into a claim for monetary damages, it was sucked into the bankruptcy case. All that Randolph’s lawyer had to do to stop the deposition was file a note with McCoy alerting him that the bankruptcy case had stayed all other civil litigation.

The lawyer who filed that notice, E.L. Caraway, did not return a phone call. Ironically, Mark Daniel, a second lawyer who represented Randolph, is now president of the Texas Criminal Defense Lawyers Association. Daniel said the sister had nothing to do with the crime.

“The attempt to connect her to some criminal activity is absolutely laughable,’’ Daniel said.

Two weeks ago, one of the lawyers who represented the Jones boys, Greg Westfall, brought the case to the attention of the defense lawyers’ association, which is now preparing to file open records requests to test the evidence.

Although a similar strategy worked in the Felker case in Georgia, the challenges are daunting. No one has ever used the Texas public records act to test crime scene evidence. If attorneys are successful in getting their hands on the evidence, they will still have to figure out a way to obtain DNA samples from Randolph and Sellers, neither of whom are likely to cooperate.

“We’re hoping through the open records act that TCDLA will finally obtain access to the physical evidence and get the testing performed,’’ Orr said. The next step would be to try to obtain samples from the sister and the friend.

Existing law provides for attorneys to obtain such samples in death cases while their client is still alive. Orr says attorneys will have to make a “larger argument’’ to the courts that the law should let them take samples in this case ‘’to make sure the system is fair and the process is fair.’’

Philip Wischkaemper, the TCDLA staff attorney who is researching the issue, acknowledges an uphill battle.

“We’re going to have to make law because there’s nothing out there,’’ he said.

The TCDLA attorneys now involved in the Jones case said they weren’t sure when they will file their request. And there is some confusion about the precise location of some crime-scene evidence. Officials insist, however, that every shred collected has been preserved.

If the testing is approved, if there is DNA present in the evidence to test, and if samples from Randolph and Sellers can be obtained, then the results could exonerate Jones or excoriate him as a liar who falsely implicated his sister in a murder in an attempt to save his own skin.

It’s also possible that the tests, as in the Felker case in Georgia, could be conducted only to produce results that prove nothing. And — in this case, at least — questions about whether a guilty man was executed or a killer escaped justice would never be answered.

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