Metropolis: Wednesday, October 8, 2003
‘[T]hey are afraid that ... someone will prove they killed an innocent person.’
A Very Closed Case

This death-row DNA hasn’t cleared anyone’s name.


The Texas Attorney General’s office has pounded perhaps the final nail in the coffin of Richard Wayne Jones, a Fort Worth man who was executed three years ago for a 1986 murder.

Prosecutors never had any doubt that Jones was responsible for the stabbing death of Tammy Livingston. But Jones went to his death saying he was innocent and claiming that DNA testing would clear his name — even if the exoneration came after his execution.

In a lawsuit filed after his execution, Jones’ sons sought to have DNA testing performed on evidence in the case in an attempt to clear their father’s name. That suit fizzled after a judge said Jones’ family wasn’t entitled to examine the evidence.

A second attempt to gain access to the evidence came this summer in a public information request filed by The Washington Post. Fort Worth officials, however, refused to release any of the material, and the state attorney general’s office recently said the newspaper is no more entitled to examine the evidence that Jones’ family was.

That decision means that, unless the newspaper files a lawsuit of its own or some other party intervenes, the evidence in the 17-year-old case might soon be eligible for destruction.

Prosecutors have long contended that DNA testing could never establish Jones’ innocence in the death of Tammy Livingston. But Georgia Jones, who says her son asked her to help clear his name the day that he was executed, said this week she still “would like to find out’’ just exactly what a DNA analysis of the evidence might reveal.

As things now stand, it doesn’t appear that she’s going to learn anything soon. The Post made its request on July 3, 2003, under the Texas public information act, the law that gives the public the right to examine and copy a broad range of government records ranging from police reports to expense accounts for public officials. In a letter to the city, the newspaper’s attorney, Eric Lieberman, argued that “the evidence constitutes ‘information’ under the act’’ and should be made available for inspection.

Fort Worth officials, however, refused to release any of the items, claiming the law doesn’t pertain to evidence. The city asked the attorney general’s office to determine whether evidence is considered information under the law.

Texas Attorney General Greg Abbott’s office answered the question late last month — but not in the manner desired by the Post. Abbott’s office said “tangible physical items are not the type of information contemplated under the act. Thus we agree that the tangible physical evidence requested is not pubic information.’’

Exactly what the Post planned to do with the evidence if it obtained access to it is not clear. Lois Romano, the reporter on whose behalf Lieberman filed the request, understandably didn’t want to discuss the paper’s plans in detail — few reporters, this one included, enjoy being questioned by other journalists about their work before their stories are published.

But to get access to the evidence at this point, the Post would likely have to file and win a lawsuit of its own. Lieberman wouldn’t say what next step the newspaper might take. “We’re disappointed by the attorney general’s decision,’’ he said in an email. “We’re considering our options.’’

The Jones case is one of a group of execution cases around the country in which untested DNA exists. Death penalty opponents have long searched for a case in which they could prove the innocence of an executed prisoner, believing that such a finding might tilt public and judicial sentiment against capital punishment.

Jones was sentenced to die for the stabbing death of Livingston, 27, of Hurst. Her burned body was abandoned in an Eastside field. Jones’ girlfriend was arrested for trying to use one of Livingston’s credit cards and led police to Jones, who eventually confessed. While on death row, however, Jones recanted and claimed that while he had set Livingston’s body on fire, she had actually been killed by two others whom he identified. Attorneys for Jones attempted to win permission to do DNA testing on crime scene evidence before his execution, but failed, as others have afterwards.

Jones’ supporters hoped the DNA testing might prove that the two others the condemned man implicated also were at the scene, giving credence to his claim that others were involved in Livingston’s death.

Greg Westfall, one of the attorneys who represented Jones’ sons, said the criminal justice system is reluctant to permit posthumous DNA testing in death cases “because they are afraid that somewhere down the road someone will prove they killed an innocent person.’’

“If we’re going to have capital punishment, we as a society ought to be willing to look inside and see if we’re killing innocent people,’’ Westfall said. “Our legal system is given to mistakes. Even though he [Jones] is dead, killed by the state of Texas, the state of Texas ought to be willing to [give] up this evidence and have it tested.’’

But Ann Diamond, the assistant district attorney who has been the office’s point person on the case, said the quest to prove Jones innocent from the grave never would have succeeded even if the evidence had been released.

“There is no way that the evidence would clear this guy because there is other physical evidence that links him to the scene,’’ she said. “All DNA does is place you at the scene or exclude you. He was at the scene. He had her blood on him. His fingerprints were inside her car.

“It cannot clear this person,’’ she said. “That couldn’t happen here.’’

The attorney general’s ruling wasn’t a complete wash for the Post. Abbott’s office said the city had to release a written inventory of the evidence preserved in the case. That 58-item list include blood samples, hair, stained clothes and cigarette butts — detritus of a murder that may finally be laid to rest.

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