This article appeared on Time Magazine s website on Monday, May 31, 2010:

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1 Professor David Dow was quoted in a Time Magazine article about the Innocence Project s works to free prisoners through DNA evidence, especially its recent efforts to exonerate Claude "Butch" Jones who was executed by the State of Texas. This article appeared on Time Magazine s website on Monday, May 31, 2010: In Texas, Seeking the Truth About an Executed Man By Nathan Thornburgh 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 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 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 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."

2 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. For the Defense The fight comes too late for Jones but at a perfect time for Scheck. The Innocence Project that he and fellow defense lawyer Peter Neufeld started as a clinical course at New York City's Cardozo School of Law in 1992 is now the centerpiece of the national Innocence Movement: 59 loosely affiliated law schools, journalism programs and nonprofit organizations aiming to prove the fallibility of outmoded evidence practices and, more broadly, of the entire legal system. They have successfully lobbied for changing postconviction DNA statutes (like the one that still applies only to living defendants in Texas) and for having stricter crime-lab oversight. Because of their work, the possibility that an unacceptably high percentage of U.S. prisoners did not commit the crimes for which they were convicted has redefined the way prosecutors, defenders and jurors approach their roles. "There are way fewer death cases in the last five years [in Texas]. Prosecutors ask for it less, and they get it less," says David Dow, a University of Houston Law Center professor who founded the Texas Innocence Network. "I think it's because the juries started to know about exoneration." Yet for all his success, Scheck has never landed what would be the holy grail of innocence in the U.S.: DNA proof that a prisoner was executed in the modern era for a crime he didn't commit. His team came close recently after investigations, first by the Chicago Tribune and then by the New Yorker, showed that a Texan named Cameron Todd Willingham was put to death for a deadly fire that he probably didn't start. But even that case, which prompted Texas Governor Rick Perry to sack key members of the Texas Forensic Science Commission before it issued a report that would likely have criticized the state's handling of the Willingham case, didn't offer the kind of scientific certainty that would come from a conclusive test on the hair in San Jacinto County. "That case is actually a very simple one in a fair world," says Scheck. "If it matches Dixon, then Dixon is the shooter." The idea of legal innocence has gripped the public imagination for a long time. Author Wilkie Collins probably invented the legal thriller with his 1874 book The Dead Alive, which told the true story of two Vermont brothers convicted of murdering a man who was actually living in New Jersey. (Early American justice actually featured almost a dozen murder victims who later turned out to be alive.) But it took Scheck a self-described "schmendrick lawyer" who is still best known for his role on O.J. Simpson's defense team to give real faces to the wrongfully convicted in modern America.

3 At lunch in Manhattan, Scheck bears little resemblance to the man whose courtroom antics were once described by journalist David Plotz as "meticulous, obnoxious and unforgettable." The mop of hair is the same, but instead of a suit, he's wearing jeans, an off-the-rack blazer and Asics sneakers. There's none of the sneering showmanship that can be so devastating in court, just a savant's tour through his mental Rolodex. In between bites of salad, he manages to name-check former law students, celebrity clients, philanthropist friends, exonerated prisoners and congressional allies. It is perhaps not surprising that Scheck travels to Texas more than anywhere else. Crime-lab scandals in Houston and Dallas have given him steady work over the years, as have the reform efforts that followed. In his office, filled with plaques and awards as well as thank-you notes and artwork from the exonerated, he showed me a recent acquisition: a copy of Kinky Friedman's latest book, signed by the author, "From a real Texas Jewboy to an honorary one." In Point Blank, though, Scheck is not likely to be given the keys to the city anytime soon. His legal interactions with the county lawmen, whose courthouse is just a few blocks away from the broad oak that used to serve as the local hanging tree, have been adversarial. David Walker, a prosecutor from the next county over who is representing San Jacinto district attorney Burnett, sees the lawsuits as the product of "well-financed groups" with a hidden national agenda. "If you believe capital punishment should be done away with," he says, "then come out with it." So Burnett has done something that defense lawyers are usually accused of. He put process over outcome. That is to say, on technical grounds he contends that the parties have no standing he has prevented something that every other prosecutor I spoke with supports, at least in theory: using an available DNA test to find out the truth in a case. "I don't think there's anyone in America who, along with defense attorneys, cares more about getting innocent people out of prison" than prosecutors, says Scott Burns, executive director of the National District Attorneys Association. Thin Evidence It's unlikely that the original hair analysis could have delivered the "match" that was claimed several times in Jones' trial. Nicholas Petraco, an NYPD hair and fiber consultant who filed an affidavit on behalf of the Innocence Project in the Jones case, says microscopy is best used for screening, not for positive identification. In a lab at John Jay College of Criminal Justice, he put a couple of my hairs under a polarized microscope. He pointed out the medulla, the cortex, the cuticle all of which vary not just from person to person but from follicle to follicle. That's not counting my gray hairs or the "bastard hairs" that all humans have, which have no resemblance to the rest of the hairs on one's head. In Jones' case, an independent lab confirmed Texas' finding that the hair could be Jones', but the examination was complicated because it was such a short fragment; the Texas crime lab originally found it "unsuitable for comparison" before deciding to examine it. Also, according to court documents, Jones' mother had given him a perm just after he got out of Leavenworth, which would have altered the hair's appearance. But the biggest knock on hair microscopy is that there are just no good data: there's no national database of hair evidence and no accepted

4 statistics on how common any characteristics are. So you can say a hair could have been Jones', but you don't know how likely it is that it could have come from someone else. "Methods have a limitation, and you have to stay within those limitations," says Petraco. "I wanted the word match thrown out of the glossary." The Innocence Project gets thousands of letters a year from inmates who say DNA evidence will free them. Some of the petitioners are intensely formal; some can barely write. Many are desperate. "I am not the man that did this Rape," wrote Rickey Johnson from Angola prison in Louisiana in "All I wand is to go 'Home.'" (In the end, he did.) The letters are read by a small intake team led by a poet named Huy Dao. It includes a former high school teacher, an ACLU veteran, an ex-journalist and an anthropologist who once studied circuses around the world. They aren't looking to see whose stories they believe; they just want cases for which new DNA tests would provide firm answers. Those files are added to the some 2,800 cases in the long white "maybe" cabinets that line the hallways. (There are more than 8,000 cases in some stage of evaluation.) It can take from five to eight years for a case to get fully vetted the project relies mostly on private funding and struggles to keep up with the volume of work but if the seven staff lawyers decide to take a case, then that inmate joins a singular fraternity: the 200 or so active Innocence Project clients. The law students and regular staff work long hours for what Scheck charitably calls "publicinterest salaries." The work vacillates between the tedium of paperwork and, as Dao says, exposure to "the terrible things that people do to others and to themselves." Even after the exhaustive vetting, nearly half of the DNA tests end up proving the client was guilty after all. To unwind, the staff go to the nearby Karaoke Cave, where anyone who drinks can sing for free. They've brought some of their exonerated clients out to sing with them. And those clients, says Nina Morrison, an Innocence Project attorney working on Jones' case, are what keeps them all going. "Most lawyers never have a day in their career like the ones I've had, walking a client out of prison," she says. "I've been to their weddings, went surfing with one, had them over for Thanksgiving." The work, however, remains hugely controversial with prosecutors. Many see Scheck as a defense lawyer above all else. (He still takes on high-profile private clients on the side.) The reforms he proposes, says St. Louis County, Missouri, prosecutor Bob McCulloch, "are designed to protect guilty people. That's a defense attorney's job." Others dismissively call innocence claims the SODDI defense some other dude did it. Some prosecutors have learned to coexist with Scheck. "I actually don't have a problem with him now," says Jennifer Joyce, the St. Louis city circuit attorney, who was contacted by Scheck on her first day in office almost a decade ago. "He was very confrontational in the beginning, as was I. But now I have his cell number, and he has mine." In part to deflect lawsuits from Scheck, she ran her own version of the Innocence Project, which she called the Circuit Attorney's Justice Project. Joyce used law students too but had much stricter criteria for review. Of 1,400 cases, she says, 300 were thoroughly reviewed, and four were found to be not guilty.

5 Scheck and prosecutors disagree on the real meaning of the 254 exonerations. Burns says that "even one wrongful conviction is too many" but adds that it represents a very low error rate, considering the "millions of cases" that are prosecuted. Scheck says those DNA exonerations show how fallible the other tools of evidence used in those cases eyewitnesses, snitches, even confessions can be and therefore suggest the possibility of many more mistakes throughout the legal system. "Less than 10% of criminal cases have any biological evidence," he says. "So what about the other 90%? This is an iceberg. These cases are the tip." What may matter more is the battle for public opinion and, more to the point, juror opinion. Scheck is clearly winning. Exonerations are "incredibly rare, but they're incredibly high-profile," says McCulloch, who claims prosecutors have been too passive about publicly countering Scheck's claims of an epidemic of prosecutorial misconduct. "He's great at marketing," says McCulloch. "We've let him hijack the debate." Not all defense attorneys are pleased with the rise of the innocence agenda either. The University of Houston's Dow says life has gotten harder for the guilty, who are a majority of his clients. "The focus on innocence has not been helpful," he says. "Now people just want to know if the client's innocent. And if he's not, then nothing is too bad for him." Defending His Father Duane Jones is not entirely comfort able advocating for a man who others think is guilty of murder, even if that man is his father. Duane, 49, spent most of his life as a victim. When he was 6, he says, he saw his mother's boyfriend hold her head under the water of an east Texas lake until she drowned. He was the only witness, he says, and no one believed him; her death was ruled an accident. When he was a young man, he nearly died after he was robbed and shot in the back of the head with a shotgun. So when he found out that his father, whom he hadn't known as a child, was on death row, it sparked a minor identity crisis. "You think, Could I ever be a person like that?" says Jones. "You go over your own personality, all the times you got angry." Satisfied that the "apple rolled far from the tree," he decided to visit. In all, he went to death row a half-dozen times. He would bring his father money for the commissary, and his father would give him ink portraits of Plains Indians and buffalo he had drawn. Jones asked his father directly if he had killed Hilzendager, and his father told him no. "He was quite adamant," says Jones. "I believe him." Mitochondrial DNA is exclusionary evidence, which means that if the hair is tested and Jones is not excluded, then he was the shooter. The same goes for Dixon. But if they are both excluded, then the hair belonged to someone who wasn't involved in the crime at all. That wouldn't mean Jones didn't do it, but it would still be troubling to know that the only piece of physical evidence that sent a man to his death was actually completely unrelated to the crime. Joe Hilzendager Jr., whose brother was murdered that night in Point Blank, vacillated about whether the hair should be tested. When I sat down with him in his house on Hilzendager Way near Point Blank, it was the first he had heard of the fight over the hair. His first reaction was to

6 welcome the testing: there was no harm, he said, because "there's no doubt they executed the right person." But later in our conversation, he restated his position. "Even if Dixon did kill him, they were both in on the murder," he said. "I don't want to kill the wrong guy, but they were both bad. Both had killed people." By the end, he reversed himself entirely to say that the hair should be destroyed without testing it: "You can't bring [Jones] back." A potentially wrongful conviction is a doubt that not even death can erase. It's a heavy burden for Duane Jones and Joe Hilzendager Jr. alike. They both deserve the best chance at knowing the truth of what happened that night. As Scheck puts it, each wrongful conviction in the U.S. should be treated the same way the National Transportation Safety Board treats a plane crash. Each instance represents a "total system failure." Each merits a full, unbiased and urgent inquiry. It's a laudable goal. The truth of what happened in Point Blank that night in 1989 is bound to wound someone, no matter what the outcome: Bill Burnett's pride, Joe Hilzendager Jr.'s sense of closure, Duane Jones' faith in his father. It would be far worse, however, to remain stubbornly incurious, even 20 years on, about a crime and a conviction that led two men to their death.