Pe ee eg ee eee ee
DREW, Robert Nelson, white, Ll TX9P (Harris) August 2, 1994
eo Jame 2S Housiren Chronicte
| August execution set _
for killer from Vermont
' evidence must be presented within
By JENNIFER LIEBRUM
Houston Chronicle
F
,
‘
{
r
'
A judge Friday set an August
execution date for Robert Drew, a
hitchhiker from Vermont -whose
fight for life included a con‘tention
that a Houston judge violased his
rights by drawing a “happry face”
on his death warrant.
Appellate prosecutor Ktoe Wil-
son said Drew has “pretd.y much
exhausted his appeals” .and will
likely be executed Aug./2, as or- |’ aS
dered by state District Fudge Ru-
ben Guerrero. !
Drew was convicted ¥n Houston
‘for the 1983 stabbing dizath of 17-
year-old Jeffrey Maws. He and
Ernest Puralewski hitszhed a ride
with the Alabama teen in ex-
change for gas nmaioney, then
stabbed Mays when ‘they arrived
in Harris County. |
Puralewski got a life sentence in
exchange for test’ifying against
Drew, but recantec! about Drew’s
role 101 days after Drew was
sentenced to death.
Because Texas law says new
¥
.
é
| 30 days of sentencing, it could not
' be considered, which outraged
‘ Vermont officials who oppose the
' death penalty.
s But what
Pesewemeueras made Drew's
case more no-
torious -~was
his defen$e at-
7 torney’s~ ob-
jection to a
> “happy face”
that then-
state District
Judge Charles
Hearn drew
on his July 15,
1992, i a
Drew _
tion order.
\
_ The judge defended the signa-
ture, saying it expressed his Chris-
tian faith. :
The Texas Court of Criminal
Appeals decided that the face,
which appeared on documents in
the case since 1988, did not viblate
Drew’s constitutional rightst;and
the federal courts agreed. ©
Associated Press
‘HUNTSVILLE, Texas — Convict-
ed-Kitler Robert Drew was executed
by lethal injection early Tuesday
for the slaying of an Alabama teen- ats
ager’ 11 years ago near Houston.
‘Mr. Drew insisted to the end that :
he* was innocent and did not de-. *
serve to be executed. ee
Mr. Drew was pronounced dead
at 12:22 a.m., eight minutes after the
lethal drugs began flowing into:his
veins.
In a final statement directed at
four personal witnesses who
watched the execution, Mr. Drew
again asserted that he was inno-
cent.
“love you all. Everybody keep
up-the fight. Remember the death
penalty is legal murder. Tonight,
tiey:re taking the life of an inno-
cent man.”
“The state refuses to admit they
made a mistake,” Mr. Drew said in
arm interview last week. “I'm ready
if {t comes to it. As I've said before, I
loye Jesus Christ, but I’m in no hur-
ry*to meet him.” .
Robert Drew ... “The state
refuses to admit they made
a mistake.”
In a final appeal, Mr. Drew’s law-
yers, Ronald Kuby and William
-Kunstler, appealed to the federal
courts Monday contending that Mr.
Drew was not guilty of capital mur-
der. They challenged the selection
of his trial jury and asked Gov. Ann
Richards to grant a 30-day reprieve.
Earlier Monday, the U.S. Su-
preme Court denied Mr. Drew a stay
Man executed for killing teen in ’83
Monday with only Justice Harry A.
Blackmun dissenting. Mr. Black-
mun is a death penalty opponent
and routinely votes to grant stays of
execution. a + Ae
The ruling came after the Texas
Court of Criminal Appeals, the
state’s highest criminal court, re-
jected Mr. Drew's arguments.
The lethal injection was the
eighth this year. :
Mr. Drew, 35, of West Pawlet, Vt.,
was convicted of the 1983 beating
and stabbingdeath of 17-year-old
Jeffrey Mays of Birmingham, Ala.,
who had given the hitchhiking Mr.
Drew a lift toward Houston from
Lake Charles, La.
Mr. Drew said another man in
the car, Ernest Puralewski, was re-
sponsible for the slaying. Mr. Pura-
lewski, now serving a 60-year pris-
on term after pleading guilty,
changed his earlier story that Mr.
Drew also participated.
Eric Hagstette, who prosecuted
Mr. Drew, said there never was any
question about Mr. Drew’s role in
the killing.
TUES.
AUG.2,
444
DALAS
MORN ING-
new
gf
H Saturday, September 4, 1993
The Dallas Morning News
- Convicted killer’s lawyers challenge
Press
ee for death
row inmate Robert-.N. Drew asked a
. court Friday to throw out the con-
: victed killer's scheduled lethal in-
. * jection because a fudge scribbled 4
‘ happy face on the execution order.
; New York lawyer Ronald Kuby
said the embellished July 15 order
by visiting state District Judge
Charles J. Hearn “was as shocking
as it was gratuitous.”
“The judicial addition of ‘Mr.
Happy Face’ on a death warrant is
far outside the bounds of civilized
punishment and fails to comport
with the most fandamental notion
of the dignity of man,” Mr. Kuby
said in his motion.
On the order, which set Mr.
Drew’s execution for Oct. 14, Judge
Hearn'’s sweeping signature is
capped with a happy face about the
size of the capital “C” in his first
name.
Mr. Kuby's motion asks a state
They want court to annul his execution
District Court to overturn Mr.
Drew's death sentence on grounds
that the happy face showed a pre-
determined bias in the case. Judge
Hearn, as the trial judge in Mr.
Drew's case, would hear the motion.
Judge Hearn said Friday he
hadn't seen the motion but wasn't
surprised. He said he probably
would consider it next week.
The motion also asks that Judge
Hearn remove himself from the
case, but the judge said he doesn't
expect that to be necessary.
“If Lrule unfavorably, then they
may want a judge in another county.
to see if I acted in any biased way,”
Judge Hearn said.
Mr. Drew, a 33-year-old native of
West Paylet, Vt., has been on death
row for a decade for the 1983 stab-
bing death of Jeffrey Mays, 17, of
Birmingham, Ala. Mz. Mays had giv-
en Mr. Drew, a hitchhiker, a lift
toward Houston from Lake Charles,
La:
Mr. Kuby and attorney William
Kunstler maintain Mr. Drew's inno-
cence, saying his co-defendant has
Since admitted under oath that he
acted alone in the killing.
But the Supreme Court in Janu-
ary upheld a Texas law that re-
quires new evidence to be present-
ed within 30 days of a defendant's
order, cite ‘happy face’
sentencing. Evidence that Mr. Kuby
and Mr. Kunstler say they have was
presented more than two months
late.
“ Judge ‘Hearn, 62, expressed
shock when his signature first
stirred controversy in July. He said
he has always used the happy face,
even on court documents, as a sym-
bol of his faith in God. .
The judge said Friday he
wouldn't alter his signature.
“I don't see any need to,” he said.
IMMINENT EXECUTION OF MAN WITH. VERY. STRONG .CILATMS: OF INNOCENCE IN TEXAS,
. 4 r
‘ ey ot Te Ene SPC RELY Sy cree Se
ty CIOS EAIIR Ps Ae |
‘ - 3
‘ aged Cascais > Fe cat's aK id yh. its
Oe SOIRD SSNS Mes ie tice a; SRE brcger te
r
Robext Drew is due to be exectited’ on ‘Auguet 2,°1994. “He was convicted
in Harris County (Texas) for the 1983 stabbing of 17 yoar old Jeffery
Mayes, ne bs he
Drew was to have been executed dn the autumn last year, However the
pressure from Drew's native state of Vermont, including Vermont's
Legislature (Parliament) threatening a cultural. and. ecotsmic boycott
of Texas should Drew be executed without receiving a dhanea to have
his new evidence publicly | - examinad by an appropriate body (among the
most vociferous proponents of this was the man who tried to re-introduce
the deeth-penalty to Yermont!)& legal. moves saved Drew's life,
ile received a last minute Stay From Civil Court Judge Peter Lowry (the
Same judge who granted Gary Graham a Btay), The Texas Court of Appeals
has since ruled that Texas! 30-day Jdmdtation on the introduction of
new evidence no longer applies jn a Capital case where the person
concerned has compelling new evidence of a very high standard, They
then ruled that Gary Graham had reachad thie etandard, In Robert Drew's
case they implied that he had reached thig standard - hovever they
only implied, Theythen' lifted his stay, ruling Lhat dvi) judge has no
right to grant a "stay", The state of Texas now fully intends to execute
Robert Drew on August 2 unlese the public outcry 1s strong enough to
ake them reconsider,
Robert Drew's attorneys have advised us of the following facts in
hie case, and they have requested that you include them in yous letters,
Robert Drew has serious claims of innocence,
‘The man who claims to be responsible for the murder and
whosa testimony would exoncrate Mr Drow has never tesfi-
_ fied anywhere. However he hae given written statements
under oath, but has never testified in open court,
' There needs to be a Jive public hearing where all these
_ questions can be answered once and for all, so that
there will not he this lingering doubt as to whether
they are killing the. wrong man, fi eon
S ies 3 , WRirEe:
They suggest that people. write to Governor Richards demanding that Gov.
she request the Board of Pardons & Paroles hold a ful} el emancy pee ee
hearing for Robert Drew. Also should all other avonues be closed, "TO
a she use her discretionary power and grant a 30-day veprieva. AUST N, TR. FSR
(She can only pardon or commute a sentence if the Roard of Pardons FR:
& Paroles requests her to.) | : PO Hal Ie
aheciu te , . 463-849
cal
It 46 also. requested that you write to the following newspapers (you F
could write one letrer,, make copios and personalize for seach paper):
os
OVER)
THE AUSTIN~AMERICAN STATESMAN
Editor, P,0, Box: 670 suites.
Austin, TX 78767
Faxy +1 512 445 3557
THE HOUSTON CHRONICLE
"Viewpoints"! _
P.O. Box 4260
Houston, TX 77210-4260
Fax: +1 713 220 6575
THE HOUS'TON POST
Attn: "Soundotr"
P.O. Box 4747 .
Houston, TX 77210-4747
Fax:. +] 713. 840 6722
THE HOUSTON Press ;
"Letters to the Editor"!
2000 West Loop South, 19th Floor
Houston, TX -77027 eh
Fax: +1 713 624 400°
THE RUTLAND . HERALD
"Letters to the Editor"
P.O. Box 668
Rutland, yr 05701
Fax; +1 802 775 2423
. Finally please egi1 the Attorney Gan
to voice your concern, He hag a toll
(We are not gure if it can be used o
S90 we hava: Jisted his 24 hour number
Telephone; 1~800~621-0508
or. F135 126463-1788
Governor Richards toll~free number i
-/hephone: 1-800-252-9600
eons This Paper is read by all the
States elected officials,
’
This is Houston's establishment
paper and is read by Houston's
elected officjals (including: .
judges), :
is lee
Houston's ‘other main newspaper,
also widely read, Considers itself
to be more liberal than the
Chronicle,
Week] y NCwspaper, much smaller
— Teadership than other 2 papers, -
However this is the only paper
» dn thie VERY pro-execut don city
whose readership are likely to
be insensed by the Possibility
ofan innocent man being kilied,
If they can be provoked into action
then they could Supply the needed
~Preseure from loca] voters. (Rewember
these cases are not Widely reported in
Houston unlesa there ig a public Outcry),
* actions to this Vermont Paper,
If a group of you have bean
writing individually to the
Other addreaseg tt should be
Snough to write one Jiatter ‘Jist—
. ing your namea and who you have
written to (its cheaper),
oral (Din Morales)
~freenumber ~ BO usa it]
utside the state of Texas
just in case,
8:
Finally Houston residenta tuay wish Co call District Attorney John
‘ St the See rE: a +} dhs Dh ' Be
B. Holmes’ — BN ales tee
Telephones (414713) 755-6657 ox 7
Fax: (+1~713) 755-5809
Finally Drew's attornics, hig suppor
elsewhare wish to make it clear that
for ANY support given,:
55-5800
ters in Vermonce and
they ara very grateful
Rutland Daily Herald + Th
—
ursd
a a. he
Obituaries
ude sree a wo ttn eS
- . RobertN. Drew |
~WEST PAWLET="The graveside ser-.
vice for-Robert’ Nelson Drew, 35, -who
died Tuesday. in Huntsville, Texas, will
be held at the convenience of the family.
. .He was born April 8; 1959, in Rutland, .
son: of Robert and Barbara ({Martelle)
Drew. | Ue Ee
He grew. up in West Pawlet and at-
tended schools in Pawlet, Wells and .
Granville, NY. — x i
«He servedin the U.S: Army. "=
__ Mri Drew had lived at the Téxas-De-
_ partment. of. Corrections, for: the past 10
years. In prison, he was a clock maker,
writer and legal advocate.
- He was recently nominated to the
New Alternatives Inc. board of directors. .
>. On: Feb:-28;,1994; -he was married to.
Judith Tomlinson in Huntsville.
-
o2- ats?
ters: June Rich of Greenwich and Donna
Blair: oft Marion, Ohio; three stepchil-
dren, and aunts; uncles, cousins.; - -
~ Hismotherdiedin1985. °° "|
4*Memorial ‘contributions may be made-
to: Dismas HouseyBox 1816, Rutland, |
0570%,;or: New#Alternatives Inc., Box.
2142, Henderson,Texas, 75653. *
Jay te? pine 4
ay Morning, August 4, 1994
urvivors include his’ wife: of Coven- |
try: England: his father and‘stepmother, ©
Robert -and:’ Mary.’ Drew of: Greenwich; -
N.Y.;... maternal + andfather,. Nelson.
Martelle . of Wells;- a: half-sister; Kelly ~
Mortieault of West Pawlet; two stepsis- ©
- Robert N.. Drew. |
“HUNTSVILLE, Texas — Robert: -
_- Nelson-Drew died Aug, 2, 1994, in
— |
+ Born’ in Rutland.on-April 8,
= 1959, he was the’son..of Barbara:
» (Martelle) and Robér,C:Drew.
-~He married. Judith Tomlinson in
Pond Huntsville, Texas, on Feb. 28, 1994.
: Mr. Drew grew up in West
Y. Pawlet and attended schools in
&° ‘pawlet, Wells, and Granville, N.Y.
_ Zp: He was a U.S. Army veteran.
aE 2For the past 10 years, he lived at
ae je, Texas Department of Correc--
“Sq. tions, where he’ worked as a clock-
Si jmaker, writer, and legal advocate.
ve
<$85He had been recently nominated to
“Sys the Board of New Alternatives, Inc.
Sle Survivors:include. his. wife of Cov="
OS éntry, England; his father and step--
= “mother, Mary Drew, of Greenwich,
wat NCY. a half sister, Kelly Morneault
> Qt ‘of West, Pawlet; stepsisters, June
- & Richof Greenwich, N.Y., and
Donna, Blair of Marion; Ohio, a ma-
.--@! ternal grandfather,,Nelson Martelle
= of, Wells; three, stepchildren; many
= aunts and uncles. His mother died
Ot im 1OBB Lg Bo al
te His funeral.and burial will be in
Vermont at the convenience of the
_ Memorial contributions may be
made to Dismas House, Box 1816,
Rutland, Vt. 05701, or New Alter-
natives, Inc., Box 2142, Henderson,
Texas. 75653. The Huntsville Fu-
neral Home in Huntsville, Texas, is |
in charge. 7 3
(x21) Mod q
i)
Killer Executed
on ‘Happy Face’
Death Warrant
%#sHUNTSVILLE, Tex.—A man
whose death warrant was signed
‘with a “happy face” was executed
early Tuesday, 11 years after kill-
Wig:a teen-ager who gave him a
.» Robert Drew coughed and
» and tears streamed down
Ris face as a needle carrying lethal
@hemicals was inserted into his left
“.
hr just where a tattoo of a green
ya was inscribed “Big Bad Bob.”
+ gagrew, 35, insisted to the end that
“he did not stab and beat Jeffrey
‘Mays to death after the 17-year-
‘old from Birmingham, Ala., picked
dim up in February, 1983.
+ “Remember, the death penalty is
Jégal murder,” Drew said while
strapped to the Texas death cham- :
ber gurney.
s«"Drew’s attorneys, Rohald Kuby
and William Kunstler of New
‘¥ork, had appealed Monday. They
¢ontended that another hitchhiker
in the car was responsible for the
killing.
¥, The U.S. Supreme Court, how- _
ever, rejected Drew’s claims in two
e¢parate rulings, and Texas Gov.
‘Ann Richards refused a reprieve.
““""Drew’s case ,had angered death
“penalty opponents when a Houston
judge signed his death warrant
with a “happy face.” The judge
defended the action, saying he had
signed all of his correspondence for
years with the cartoon.
Los Angeles Time Le Ay 3, 99g.
fF /0
.
Texas executed Robert Drew, 35, of West
EXECUTION
Pawlet, Vt, by injection early today for the 1983 robbery
, of Birmingham,
The
Ala. Mays had picked up Drew, who was hitchhiking.
on the death warrant. Drew
—-—a@
said recently that he was “ready if it comes to it... I love
6A + TUESDAY, AUGUST 2, 1994 - USA TODAY
case angered death-penalty opponents two years ago when
Jesus Christ, but I’m in no hurry to meet him.”
and stabbing murder of Jeffrey Mays, 17
thé judge drew a happy face
NO
»
Killer of Teen-Ager ||
Is Executed in Texas
HUNTSVILLE, Tex., Aug. 2 (AP)!
— A man convicted of killing a teen-|
_ ager who gave him a lift was execut-'
“ed by injection early today.
The man, Robert Drew, was pro-
nounced dead at 12:22 A.M., eight.
minutes after the injection began.
The United States Supreme Court
denied a stay on Monday.
Mr. Drew, 35, of West Pawlet, Vt.,
was convicted in the February 1983
beating and stabbing death of 17-
year-old Jeffrey Mays of Birming-
ham, Ala. Mr. Mays had picked up
Mr. Drew, who was hitchhiking to-
ward Houston from Lake Charles, La.
Mr. Drew maintained that he had’
seen another hitchhiker, Earnest
Puralewski, kill Mr. Mays but that he
was drunk and afraid to intervene in
the fight.
PAID
a ne
: Associated Press. 4
R : \ St
“=
: The Texas Court of Criminal
p-
: peals refused Saturday to block a
Tuesday execution for death tow
" inmate Robert Drew, whose cry of
: innocence has received unusual s
- port from a convicted murderer
ermont, Drew's attorney said. :
The ruling was 5-4, according to a
news release from the New York
- Offices of Kunstler and Kuby.
The action could not immediately
be confirmed Saturday afternoon.
’ There was no answer at the appeals
_ Court, and prison spokesman David
- Nunnellee said no immediate word
_ Of the order had reached state prison
officials Saturday. .
The Texas attorney general’s of-
. quish his spot to
Appeals court refuses to blo
fice said it doesn’t get involved until
the case reaches the federal level,
said spokesman Ron Dusek.
Drew’s attorneys say they plan
further appeals,
And if they're [ie
upheld, Drew &
has a standing @
offer to relin- Mim
te S. Mason
Mason wrote
a letter to |
Drew’s lawyers |
from his prison
cell in Swanton,
Vt., offering
himself to the executioner instead of
Drew, a Vermont native.
“I'm willing to go in his place ang |
Drew
give them a show of death, plus I’m
Spiritually connected more than
flesh,”, wrote Mason, whe is serving
15 to 30 years for murder. “Please do
hot think of this as crazy...”
Mason said his offer is “serious and
sincere THIS IS NO JOKE, for Life
and Death is NOTHING TO JOKE
ABOUT!” Drew’s lawyers faxed it to
the news media.
In 1983, Drew and Ernest Pura-
lewski hitched a ride with Jeffrey
Mays, 17, in exchange for gas money
and stabbed the Alabama teen-ager
when they arrived in Harris County. ©
Puralewski received a life sen-
tence in exchange for testifying
against Drew but recanted his story
about Drew’s role 101 days after
Drew was sentenced.
But it could not be considered
EY RA a eee RRaRE
ck execution
during appeals because Texas law
Says new evidence must be pres-
ented within 30 days of sentencing.
Drew’s case gained national atten-
tion when his attorney objected to a
“happy face” that retired District
Judge Charles Hearn drew on his
execution order on July 15, 1992.
Hearn said the signature expressed
his Christian faith.
The Texas Court of Criminal Ap-
peals ruled the face, which appeared
on case documents since 1988, did not.
violate Drew’s constitutional rights.
The federal courts agreed.
State District Judge Ruben Guer-
rero, who set Drew’s Tuesday execu-
tion date, called Mason’s offer pre-
posterous. “They are just trying to
get some publicity,” the judge said.
‘
| BE-BC-f 54
Y
HousTon CHRomeLe
Avaust 3, ATS
Diew claims
innocence as
he’s executed
HUNTSVILLE (AP) — A con-
demned murderer, whose death war-
rant once carried the “happy face”
signature of a Texas judge, pro-
claimed his innocence and sobbed as
he was executed early Tuesday.
Robert Drew, 35, of West Pawlet,
Vt., received lethal injection for the
1983 beating and stabbing death of
17-year-old Jeffrey Mays.
The Birmingham, Ala., youth was
killed near Houston after he had
picked up Drew, who was hitchhik-
» oe Interstate 10 in Louisiana.
rew insisted another hitchhiker
in the car committed the murder.
“Remember, the death penalty is
legal murder,” Drew said while
- strapped to the Texas death cham-
ber gurney to await the lethal injec-
tion. “Tonight they're taking the life
of an innocent man.”
With tears streaming down his
( face, Drew coughed and gasped sev-
eral times before dying.
The execution came several hours
after the U.S. Supreme Court re-
jected the last of two appeals it
considered in the Drew case.
“It is such a relief,” Mays’ mother,
Rebecca, who now lives in Florida,
said when told the execution was
carried out. “Drew was not innocent.
He went to his death knowing what
he did and still trying to convince
people he was innocent.”
Drew’s attorney, Ronald Kuby, bit-
terly told about 20 death penalty
opponents who gathered outside the
alls Unit prison that the execution
was a tragedy.
“This was a killing that was pre-
meditated by people wearing suits
and ties, yy with law degrees,”
Kuby said. “They ... planned this
killing and carried it out.”
Drew contended Ernest Pura-
lewski, the other hitchhiker in the
Mays car, killed the Alabama teen-
ager. Puralewski is serving a 60-year
prison term after pleading guilty. He
recanted his earlier story that Drew
participated in the slaying but prose-
cutors ‘said there never was any
question about Drew’s actions.
Drew gained notoriety in his home
State as the only Vermont native on
death row anywhere. Vermont is one
of 14 states without the death penalty
and his case generated protests
there.
Drew's case also gained publicity
and angered death penalty Oppo-
nents swhen a Houston judge two
years ago signed his death warrant
with a “happy face.” The judge de-
fended the action, saying he had
signed all of his correspondence for
years with the cartoon.
dd
Convicted killer offers _
to die in place of Drew
By JENNIFER LIEBRUM
Houston Chronicle 7- 30-9 Y
A convicted murderer jailed in
Vermont has offered to die in place
of soon-to-be executed Texas death
‘row inmate Robert Drew.
From his cell in Swanton, Vt.,
Doug S. Mason II sent a handwrit-
ten note to Drew’s lawyers sup-
porting Drew’s claim of innocence
and offering himself as a sacrifice
to the state of Texas.
“I'm willing to go in his place
and give them a show of death, plus
I’m spiritually connected more
than flesh,” wrote the inmate, who
is serving 15 to 30 years for a
murder, the details of which were
not available, “Please do not think
of this as crazy...”
Mason assured the lawyers that
his offer is “serious and sincere
THIS IS NO JOKE, for Life and
Death is NOTHING TO JOKE
ABOUT!”
Drew’s lawyers faxed it to the
news media.
It is just one more wrinkle in the
case against Drew, whose death
—— was signed with a smiley
ace.
Drew was convicted in Houston
for the 1983 stabbing death of 17-
year-old Jeffrey Mays. He and
Ernest Puralewski hitched a ride
with the Alabama teen in exchange
for gas money, then stabbed Mays
when they arrived in Harris
County.
Puralewski got a life sentence in
exchange for testifying against
Drew, but recanted his story about
Drew’s role 101 days after Drew
was sentenced to death.
Because Texas law says new
evidence must be presented within
30 days of sentencing, it could not
be considered during appeals,
which outraged Vermont officials
who oppose the death penalty.
But what made Drew’s case
more notorious was his defense
attorney’s objection to a “happy
face” that retired District Judge
Charles Hearn drew on his July 15,
1992, execution order. --
The judge defended the signa-
ture by saying it expressed his
Christian faith. . ——
The Texas Court of Criminal
. Appeals decided that the face,
which appeared on documents in
the case since 1988, did not violate
Drew’s constitutional rights, and
the federal courts agreed.
State District Judge Ruben
See DREW on Page 31A.
'
Drew
Continued from Page 29A.
o set an Aug. 2 death date for
Tree Appeltats prosecutor Roe Wil-
son said at the time she thought he
would be executed then because
Drew’s attorneys had mostly exhaus-
ted their appeals.
“I am totally at a loss,” Wilson said
after hearing of the latest attempt to
stay the executioner. “I think that
Mr. Mason’s offer certainly doesn’t
fit in with our justice system. He
didn’t do the crime, therefore he
can’t be punished for it. That s why
our justice system is constitutional
because we only punish those found
guilty.” , 6 eS!
Guerrero said he has never seen
such a preposterous offer, even as an
11th hour tactic.
“Tl can’t even ... I think it is
outrageous for anyone to even pro-
pose that someone would swap in-
mates. The whole thing has gotten
ridiculous,” Guerrero said. “I realize
they are pulling out all the stops to
save their client’s life, but this is
bizarre.”
uerrero said he believes the fact
that Vermont lacks the death pen-
alty contributes to the lack of under-
standing of the situation. It allows
people to forget the facts, he said.
“This was a brutal killing,” he said.
“you don’t trade somebody’s life for
another. They know that would
never happen. They are just trying to,
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wert MUUswit Gintuy iuie ‘iui >Uay, June 16, 1yyq
Houston Chronicle Austin Bureau -—eStablished by the appellate court in ency hearing on new evidence that
the Gary Graham case Drew said would clear him.
Drew, Convicted in H, ton of the it did ;
AUSTIN — The Texas Court of In Hous As it did in the Graham case, The
hha murder of Alabaman Jeffrey Mays, Court of Criminal A ls ruled that
dercuital Appeals on Wednesday or- 17, received national attention whes the Sra Court had wy Serio to
the tri
Robert Drew, a hitchhiker from Ver- Hearn drew a “happy face” on an S*@Y an execution.
mont convicted in the 1983 Stabbing order Setting an execution date. However, the Court set a Standard
death of a man who had given him a The death row inmate won a stay Under which convicts Can ask their
of execution from the 3rd Court of _‘Tial courts to hear new evidence.
The ruling also allows Drew to Appeals in Austin after a lawsuit Previously, state law barred the
present new evidence to his trial was filed to try to force the Board of use of new evidence that was pro-
Judge under a procedure recently Pardons and Paroles to hold a clem- duced 30 days after conviction.
ride
ee
—————— ——
' HUNTSVILLE, Texas - Pros-
ecutors filed a last-minute motion
yesterday to challenge a Vermont
man’s execution reprieve issued six
hours before he was to die for rob-
bing and fatally stabbing an Ala-
Assistant state attorney Bob
Walt said late yesterday that his of-
fice filed the motion with the Texas
Court of Criminal Appeals challeng-
ing the jurisdiction of the 8d Court
of Appeals in the case of Robert
Drew.
Drew, 34, of West Pawlet, Vt.,
faced lethal injection early today for
the Feb. 22, 1983, slaying of Jeffrey
Mays, 17, of Birmingham, Ala. Testi-
mony showed Mays was stabbed in
the heart and his throat was slashed
before his body was dumped off In-
terstate 4
east of Houston.
Walt said his office decided to ap-
peal the ruling because the civil deci-
sion could open the door to a flood of
< Acting on the appeal filed by
Drew’s ‘attorneys, the 8d Court of
Appeals \in. Austin issued an order
ecution. f°".
earlier in the day that barred the ex-
a
2 itm
answer ‘to Drew attorney
forced the state ‘ of Pardons
and Paroles to hold a hearing on
Drew’s assertions of innocence. The
‘board earlier yesterday refused, on a
16-0 vote, to deny Drew a clemency
hearing, commute his sentence or
grant him a 120-day reprieve.
Drew had just arrived at the
Walls Unit prison and was taken to a
small holding cell outside the death
chamber when word of the reprieve
arrived, prison spokesman Charles
Brown said. :
4 “Tm not scared,” Drew said last
week. “I don’t see being scared
would be any good.” |
© Drew was hitchhiking from Flor-
ida to Oklahoma when he was picked
- Drew as icipant in the slaying
and-says he alone did it.
BosTay GLOBE.
?
Someone
: ee og
Se 4 isha
‘ pc
| Drew claims: {
- Robert Drew, 35, of West Pawlet,
| Vt, received lethal injection for the
: 1983 beating and stabbing death of
Do Nog ee Jeffrey Mays. . =...
ie e Birmingham, Ala., youth was
killed near Houston after. he had
efits up Drew, who was hitchhik-
g along Interstate 10 in Louisiana.
- Drew insisted another hitchhiker
in the car committed the murder.
“Remember, the death penalty is
: legal murder,” Drew said while
. strapped to the Texas death cham-
i ber gurney to await the lethal injec-
' tion. “Tonight they’re taking the life
i of an innocent man.”
With tears streaming down his
face, Drew coughed and gasped sev-
eral times before dying.
The execution came several hours
after the U.S. Supreme Court re-
& jected the last of two appeals it
: - . considered in the Drew case. :
- “Jt is such a relief,” Mays’ mother,
Rebecca, who now lives in Florida,
said when told the execution ‘was
carried out. “Drew was not innocent.
He went to his death knowing what
he did and still trying to convince
people he was innocent.”
Drew’s attorney, Ronald Kuby; bit-
terly told about 20 death penalty
opponents who gathered outsidé the
Walls Unit prison that the execution
was a tragedy.
“This was a killing that was pre-
meditated by people wearing’ suits
and ties, people with law degrees,”
Kuby said. “They ... planned: this
killing and carried it out.”
Drew contended Ernest Pura-
lewski, the other hitchhiker in the
Mays car, killed the Alabama teen- :
ager. Puralewski is serving a 60-year ‘
prison term after pleading guilty. He
recanted his earlier story that Drew
participated in the slaying but prose-
. cutors said there never was any .
question about Drew’s actions.
Drew gained notoriety in his home ;
, state as the only Vermont native on
death row anywhere. Vermont is one
of 14 states without the death penalty
and his case generated protests
there.
ee . Drew’s case also gained publicity
and angered death penalty oppo-
nents when a Houston judge two
years ago signed his death warrant
with a “happy face.” The judge de-
fended the action, saying he had
signed all of his correspondence for
years with the cartoon. e —
e1o1UOIYD uoysnoH
9661 ‘e-Bny ‘kepsoupem
Judge rebuffs bid to dismiss execution order
@ HOUSTON — A judge who embellished his signature on an inmate's
execution order with a “happy face’ denied a request Tuesday that the
man’s scheduled lethal injection be thrown out because of the symbol.
Attorneys for convicted killer Robert Nelson Drew said the order setting
an Oct. 14 execution “was as shocking as it was gratuitous’ and asked
State District Judge Charles J. Hearn to toss it out. Judge Hearn, who
maintains he meant no malice with the embellishment, rejected Mr.
Drew's petition. The judge says he has always capped his signature with a
happy face as a symbol of his faith in God. Mr. Drew’s attorney said he
would appeal to the Texas Court of Criminal Appeals.
| As Meenwe NEWS —
WED, 92993
is it is
30, 105
-
ir dire
on 8@V-
e State
a “‘vea-
ll case.
is indi-
te toa
Smith
1e case
consti-
doubt.
nployed
a jury's
al. See
’ (citing
*x.Crim.
a mis-
, (3) by
vhich is
oe that
ish-
Drew contends that Adams prohibits dis-
missal of a prospective juror on this
ground. In Adams, the Court held that
the Constitution did not permit exclusion of
jurors
from the penalty phase of a Texas mur-
der trial if they aver that they will hon-
estly find the facts and answer the ques-
tions in the affirmative if they are con-
vinced beyond a reasonable doubt, but
not otherwise, yet who frankly concede
that the prospects of the death penalty
may affect what their honest judgment
of the facts will be or what they may
deem t@ be a reasonable doubt: Such
_ assessments and judgments by jurors are
inherent in the jury system, and to. ex-
clude all jurors who would be: in the
slightest way affected by the prospect of
the death penalty or by: their views about
such a penalty would be to deprive the
defendant of the impartial jury to which —
he or she is entitled under the law.
448 U.S. at 50, 100 S.Ct. at 2529. Here,
however, prospective juror Smith: did not
merely state that he might apply the rea-
sonable doubt standard differently in a cap-
ital case. He stated on numerous occa-
sions during voir dire questioning that he
would apply a standard higher than what
he understood as the reasonable doubt
standard. The trial court could correctly
determine that Smith’s insistence on such a
high burden of proof would substantially
impair his performance as a juror.
[6] Archie Cotton’s definition of ‘“con-
tinuing threat to society” under the second
special issue? prompted the trial court to
dismiss him for cause. Cotton explained
that he understood this question as requir-
ing the State to prove the probability that
the defendant would commit future: mur-
ders. He indicated that he would answer
the question affirmatively only if the evi-
dence convinced him that the. defendant
was likely to murder again. Based on
Smith’s responses, the trial court could cor-
rectly conclude that this restrictive defini-
tion of “future acts of violence” would
prevent or substantially impair the per-
3. Tex.Code Crim.Proc. art. 37.071(b)(2) asks the
jury to determine “whether there is a probabili-
ty that the defendant would commit criminal
DREW v. COLLINS
Cite as 964 F.2d 411 (Sth Cir, 1992)
417
formance of Cotton’s duties as a juror by
requiring a more stringent burden of proof
than the law requires. Because the record
supports the conclusions of the trial court
concerning prospective jurors Smith and
Cotton, we presume that it is correct.
Drew’s arguments fail to overcome this
presumption. Accordingly, we conclude
that this claim lacks merit.
C. Prosecutorial Misconduct
1. Improper argument
Drew argues that the prosecution en-
gaged in persistent and repeated acts of
misconduct, depriving him of the right to a
‘fair trial under the Fourteenth Amend-
ment. Drew specifically objects to the
prosecution’s (1) appeal for swift return of
the verdict to avoid insulting the victim’s
family; (2) what Drew characterizes as its
misstatement of the law of capital murder
as allowing conviction if the jury finds an
ongoing robbery, including robbery of an
individual other than the victim; (8) improp-
er reference to the trial judge; (4) bolster-
ing and personally vouching for witnesses;
and (5) inflammatory language referring to
Drew. In addressing this claim, “(t]he rel-
evant question is whether the prosecutors’
comments ‘so infected the trial with unfair-
ness as to make the resulting conviction a
denial of due process.’” Darden v. Wain-
wright, 477 U.S. 168, 181, 106 S.Ct. 2464,
2471, 91 L.Ed.2d 144 (1986) (quoting Don-
nelly v. DeChristoforo, 416 U.S. 687, 94
S.Ct. 1868, 40 L.Ed.2d 481 (1974)); accord
Bell v. Lynaugh, 828 F.2d 1085, 1095 (5th
Cir.), cert.: denied, 484 U.S. 988, 108 S.Ct.
310, 98 L.Ed.2d 268 (1987). The district
court coneluded that the prosecutor’s ac-
tions “did not rise to the dimension of
constitutional error necessary to sustain
Drew’s petition for writ of habeas corpus.”
{7] After reviewing the argument in
the context of the trial as a whole, we
agree with the district court’s assessment.
First, although the prosecutor's request for
a swift verdict on behalf of the victim’s
acts of violence that would constitute a continu-
ing threat to society.”
dice.
{3] In response to Fleury’s affidavit,
the State furnished the state habeas court
with an affidavit executed personally by
Eisenberg. In his affidavit, Eisenberg
stated that “{tJhe fact that Drew might or
might not one day receive parole if he
received a life sentence did not influence
our answers.” Based on this evidence and
the record, the state habeas court found
that “{aJithough the jury was generally
aware that a life sentence might result in
eventual parole for [Drew], the jury’s an-
swers to the special issues were based sole-
ly on the evidence and the jury’s belief that
there was, beyond a reasonable doubt, a
probability that [Drew] would commit crim-
inal acts of violence that would constitute a
continuing threat to society.” Ex parte
Drew, No. 18,998-02, at 411. The court
also found that “[tJhe evidence presented
does not demonstrate that there was a mis-
statement of law, asserted as a fact by one
professing to know the law that was relied
upon by other jurors who, for that reason,
changed their vote to a harsher punishment
for [Drew].” Jd. Because the record
fairly supports these findings, we accord
them a presumption of correctness pursu-
ant to 28 U.S.C. § 2264(d). See Marshall
v. Lonberger, 459 U.S. 422, 482, 108 S.Ct.
843, 849-50, 74 L.Ed.2d 646 (1988); Loyd »v.
Smith, 899 F.2d 1416, 1425 (5th Cir.1990).
Drew does not present evidence to support
his allegation of jury prejudice. As such,
he fails to show a constitutional violation
on this ground.
1. Drew's contention falls into this category.
For this reason, United States v. Luffred, 911
F.2d 1011 (Sth Cir.1990), which Drew urges us
to apply, is inapposite. In Luffred, we ad-
dressed the jury's consideration of a chart used
by the Government as a trial aid during its
closing argument but excluded from evidence
by the district court. Under those circum-
stances, we held that a presumption of prejudice
arose. /d. at 1014.
416 964 FEDERAL REPORTER, 2d SERIES
constitutional right to a fair tria].! See id.
at 338-39. Since Drew does not allege any
outside influence on -the jury, he cannot
avail himself of the presumption of preju-
B. Wrongful Dismissal of Prospective
Jurors
Drew asserts that the trial court improp-
erly excused for cause prospective jurors
Grover Smith and Archie Cotton. This er-
ror, he contends, violated his Sixth and
Fourteenth Amendment rights as recog-
nized in Wainwright v. Witt, 469 U.S. 412,
105 S.Ct. 844, 88 L.Ed.2d 841 (19865).
[4,5] In a capital case, a prospective
juror may not be excluded for cause unless
the juror’s views “would prevent or sub-
stantially impair the performance of his
duties as a juror in accordance with his
instructions and oath.” Adams v. Texas,
448 U.S. 88, 100 S.Ct. 2521, 65 L.Ed.2d 581
(1980); accord Witt, 469 US. at 424, 105
S.Ct. at 852. Witt also explained that the
presumption of correctness conditionally
required under § 2254(d) applies to the trial
court’s. determination of a challenge for
bias. 469 U.S. at 480, 105 S.Ct. at 855.
“{S]uch a finding is based upon determina-
tions of demeanor and credibility that are
peculiarly within a trial judge’s province.”
Id. at 428, 105 S.Ct. at 854 (footnote omit-
ted). The trial court need not detail its
reasoning or explicitly conclude that a pro-
spective juror is biased, so long as it is
evident from the record. Jd, at 430, 105
S.Ct. at 8565.
A review of Grover Smith’s voir dire
examination reveals that he stated on sev-
eral occasions that he would hold the State
to a higher burden of proof than the “rea-
sonable doubt” standard in a capital case.
Drew portrays Smith’s statements as indi-
cating not that he would hold the state to a
higher burden of proof, but that Smith
would permit the capital nature of the case
to influence his perception of what consti-
tutes proof beyond a reasonable doubt.
2. This finding tracks the five-part test employed
by Texas courts to determine whether a jury's
discussion of parole law requires reversal. See
Monroe v. Collins, 951 F.2d 49, 52 n. 7 (citing
Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.
App.1984)) (defendant must show “(1) a mis-
statement of law, (2) asserted as a fact, (3) by
one professing to know the law, (4) which is
relied upon by other jurors, (5) “who for that
reason changed their vote to a harsher punish-
ment”),
Drew cor
missal 0:
ground.
the Const:
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3. Tex.Code
jury to dete
ty that the
418
family was improper, it was brief. In
view of the strength of the evidence point-
ing toward Drew’s guilt, we conclude that
this remark did not leave an unconstitution-
al taint on the proceeding. See United
States v. Ellender, 947 F.2d 748, 758 (5th
Cir.1991) (analysis of whether a prosecu-
tor’s argument deprived a defendant of a
fair trial involves consideration of (1) the
magnitude of the prejudicial effect of the
statements; (2) the efficacy of any caution-
ary instruction; and (3) the strength of the
evidence of the defendant’s guilt); see also
United States v. De La Rosa, 911 F.2d 985,
991 (5th Cir.1991) (same test employed in
plain error analysis), cert. denied, — U.S.
——, 111 S.Ct. 2275, 114 L.Ed.2d 726
(1991).
[8] Second, we disagree with Drew that
the record clearly reflects that the prosecu-
tor misstated the law of capital murder in
Drew’s case. In context, the prosecutor’s
statements can be read to remind the jury
of its ability to draw reasonable inferences
from the evidence.’ The record does not
show that the prosecutor argued that the
jury could convict Drew for capital murder
if it found that he robbed someone other
than the victim. We do not find that this
portion of the prosecutor’s argument re-
sulted in a denial of Drew’s right to due
process. See Boyde v. California, 494
US. 870, 110 S.Ct. 1190, 1200, 108 L.Ed.2d
816 (1990). '
4. The prosecutor argued:
The only question is was a robbery going on
and was the defendant the one who did it.
That doesn’t take long. To take a long time is
unfair. It’s an insult to what this has been
about. It is an insult to people here—to the
victim’s family and to Bee.
The trial court overruled defense counsel's ob-
jection to this comment. In closing, the prose-
cutor concluded:
T am going to sit down and ask that you come
to a swift verdict and the only verdict that is
applicable under the law that of [sic] this
defendant being guilty of capital murder.
5. The thrust of the prosecutor's argument was
that the evidence showed that there was an
ongoing robbery. Based on this showing, the
prosecutor argued, the jury could infer that
Drew killed Mays in the course of committing a
robbery.
964 FEDERAL REPORTER, 2d SERIES
{9] Third, Drew contends that the pros-
ecutor improperly argued that the trial
judge was telling the jury that it had to
find Drew guilty of capital murder. The
thrust of the prosecutor’s argument was
that the definitions contained in the charge
required the jury to find Drew guilty. We
“should not lightly infer that a prosecutor
intends an ambiguous remark to have its
most damaging meaning or that a jury,
sitting through lengthy exhortation, will
draw that meaning from the plethora of
less damaging interpretations.” Donnelly
v. DeChristoforo, 416 U.S. 637, 647, 94
S.Ct. 1868, 1878, 40 L.Ed.2d 431 (1974),
quoted in Boyde, 110 S.Ct. at 1200. We
therefore hold that this remark did not
' violate Drew’s due process rights.
{10] Fourth, Drew argues that the pros-
ecutor improperly vouched for the credibili-
ty of Landrum and Sly. The prosecutor
told the jury that he had not told Landrum
or any other witness what to say, stated
that he thought “Landrum was trying to do
what was right,” and declared that Sly was
credible because Mays’ killing “shocks his
conscience, too.” The Court of Criminal
Appeals rejected Drew’s argument on di-
rect appeal, finding that the argument in
rehabilitation of these witnesses, in re-
sponse to the defense’s attack during its
closing argument, was a reasonable deduc-
tion from the evidence. Drew v. State, 743
S.W.2d at 218.
6. At one point, the prosecutor stated:
I ask you to look at the facts and realize that
based upon those facts that there is no other
conclusion than that there was a robbery go-
ing on, an all day robbery. You had a rolling
chamber of torture, a chamber of execution in
that car. That’s what that rolling party be-
came that this defendant—guilty, guilty, more
guilty than Mike [Puralewski] of this offense.
And I think you can see that the only way to
come to this conclusion safely is by looking at
the charge. The Judge needs you.to do that.
Realize that most of its definitions you have
heard before and the Judge is telling you that
you have to find him guilty.
At another point, the prosecutor argued to the
jury:
“Keep in mind what that evidence is and keep
in mind the Court is not telling you what to
do. The Court cannot do that.”
Prosec
credibilit
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DREW v. COLLINS
419
Cite as 964 F.2d 411 (Sth Cir. 1992)
Prosecutors ‘‘may not assert [their] own
credibility as a foundation for that of
[their] witnesses.” United States v.
Garza, 608 F.2d 659, 664 (5th Cir.1985).
Here, while the phrasing may have been
improper, the prosecutor’s comments did
not bolster the credibility of the witnesses
based solely on the prosecutor’s own credi-
bility. The prosecutor’s comments were
grounded in evidence presented to the jury
and did not infect the trial with unfairness
so as to violate Drew’s due process rights.
{11] Finally, Drew argues that the pros-
ecutor engaged in verbal abuse and inflam-
matory rhetoric, referring’ to Drew as a
“sadistic killer,” a “macho man,” ‘and refer-
ring to the trip from Louisiana to Texas as
a “rolling torture chamber’ and a “¢ham-
ber of execution.” Although we agree that
the prosecutor used. inflammatory ‘ lan-
guage, his comments referred to specific .
evidence in the record. In this eontext, we
do not find, that these arguable errors re-
sulted in a violation of Drew’s due —
rights. eee
2. Brady claim
failure to reveal the existence of a taped
police interview with .Bee Landrum, ‘in:
which Landrum stated he did not see the
murder, amounted to a violation of his: due
process rights.. He asserts. that the oral .
statement would have provided significant:
ly more effective impeachment evidence
against Landrum than the written state-
ment provided, which was prepared based
on an interview conducted master weed
six hours later.’
The state habeas court found that Land.
rum’s recorded statement was generally
consistent with his later written statement,
and that ‘defense counsel was able to ef-
fectively cross-examine Bee Landrum con-
cerning his observations of the stabbing
7. Drew refers to the following exchange in the
taped interview:
[Landrum] I don’t know. OK, so we pulled
over and they took the keys out of the car
Lock my door and says if I move I am a dead
man. They take Jeff outside and hear them
hit him a few times and then I hear him
cutting him. You know, stabbing him.
‘utilizing Landrum’s written statement.”
The district court also concluded that the
prosecutor's inadvertent failure to provide
Drew’s counsel with the recorded state-
\ment did not amount to a Brady violation.
[12] Brady v. Maryland, 373 US. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), re-
quires that the prosecutor produce evi-
dence that.is useful for impeachment, as
well as exculpatory. material. United
States v.. Bagley, 473 U.S. 667, 676, 105
S.Ct. 8375, 3380, 87 L.Ed.2d 481 (1985). To
prevail on a Brady claim, a defendant must
show .(1).the prosecution suppressed evi-
dence that was (2) favorable to the accused
and (3) material to either guilt or punish-
ment. Cordova v. Collins, 953 F.2d 167,
171 (5th Cir.1992). The proseeutor’s failure
to, respond ‘fully to a specific request for
evidence fayorable to the accused amounts
to a constitutional violation “only if there is
a reasonable probability that, had the evi-
dence been disclosed to the defense, the
result of the proceeding would have been
different.” Bagley, 473. US. at ra 105
| S.Ct at 8383.
Drew also argues that the protection’ 8
[13] We agree with the district court
that Drew does not establish a Brady
claim. Drew argues that had he been giv-
en the recorded statement, the prosecutor |
could not ‘have rehabilitated Landrum by
arguing that Landrum was more fatigued
when he prepared the written statement, or
that the typist transcribing Landrum’s
statement could have written it down inac-
curately. .We defer to the state court find-
ing that these statements were generally
consistent with each other. While the pros-
ecutor failed to provide Drew with Land-
rum’s recorded statement, any incremental
impeachment value Drew would receive
from the minor inconsistencies between the
statements does not raise a reasonable
probability that, had the statement been
{Interviewer] Did you look over and see
them stabbing him?
[Landrum] I'd seen them throwing him on
the ground and | seen them bending over and
then when I heard the sounds’I shut my eyes
and turned away.
DRINKARD, Richard Gerry, white, injection TXSP (Harris Co.), May 19, 1997,
DRINKARD, Richard Gerry, white, dob 7/11/1957; Harris Co., received TDC
10/16/1986; TDC #846.
2 He ie He oR as He fe ae fe fe oR ase fe oie ee Re ae eee i 2 oie Ht eo Bs ee fe fe aie ie af fe ok oft oe ale fe fe ae aie oft fe fe ae afc fe ale fs aie ae fe ole afk ae aie ake oe fe aie 2k okt ok
“Huntsville, Texas.-A carpenter who beat three people to death with a claw hammer in
1985 was executed by injection Monday...Richard Drinkard, 39, was sentenced to die for
bludgeoning Lou Ann Anthony, 44; her sister, LaDean Hendrix, 47; and Mrs. Hendrix’s
boyfriend, Jerry Mullens, 43.
“The U. 8. Supreme Court in February refused without comment to hear his appeal,
joining other federal and state appeal courts in rejecting his cases. At one point during his
imprisonment, Drinkard had volunteered for early execution, although he later dropped the
request and allowed appeals to be filed on his behalf.
“Drinkard at his 1986 trial, became the first convicted killer in Texas to merit a
death sentence under the new state law that made multiple murders a capital offense. At his
trial, defense lawyers argued the carpenter from Mobile (Alabama) was drunk at the time of the
killings and didn’t know right from wrong. Drinkard had a record in Alabama, where he received
three years in prison for burglary in 1974. He escaped the following year, was arrested for
attempted robbery inb Mobile in 1976 and was sentenced to five years.
“Evidence showed Drinkard had been at Ms. Anthony’s Houston townhouse the night
before the slayings. The brother, Mike Watson, testified that after drinking at least a case of beer,
two pints of scotch and smoking some marijuana he made a pass at Ms. Anthony, who demanded
that he leave. Drinkard returned alone to the home a few hours later, broke in by prying a
window and dismantling a lock, stabbing them and beating them with the hammer.
“...Mr. Watson, the next day, saw news reports of the triple murder and called police to
say he had been at the home the night before with his brother. Drinkard told the police he was
elsewhere. But detectives found in Drinkard’s truck a piece of glass from a broken light
fixture from the murder scene. In Oyster Creek, in southwest Houston where Drinkard often
fished, they found a hammer and other items from Ms. Anthony’s home. He was arrested five
_ days later.-Advertiser, Montgomery, AL, 5/20/1997.
[Ma BO, 997
Montgomery Advertiser
Ye AIL.
Man from Mobile
executed in Texas
ASSOCIATED PRESS
HUNTSVILLE, Texas — A Car-
penter who beat three people to
death with a claw hammer in 1985
was executed by injection Monday
in the first of four straight execu-
tions scheduled this week.
Richard Drinkard, 39, was sen-
tenced to die for bludgeoning Lou
Ann Anthony, 44; her sister, La-
Dean Hendrix, 47; and Ms. Hend-
rix’s boyfriend, Jerry Mullens, 43.
The U.S. Supreme Court in Feb-
ruary refused without comment to
hear his appeal, joining other fed-
eral and state appeals courts in re-
jecting his case. No other late ap-
peals were filed.
At one point during his impris-
onment, Drinkard had volunteered
for early execution, although he
later dropped the request and al-
lowed appeals to be filed on his be-
half.
Drinkard at his August 1986 trial
became the first convicted killer in
Texas to merit a death sentence
under the new law that made mul-
tiple murders a capital offense.
At his trial, defense attorneys ar-
gued the carpenter from Mobile
was drunk at the time of the kill-
ings and didn’t know right from
wrong. Drinkard had a record in
Alabama, where he received three
years in prison for burglary in
1974. He escaped the following
year, was arrested for attempted
robbery in Mobile in 1976 and was
sentenced to five years.
Evidence showed Drinkard and
his brother had been at Ms. Antho-
ny’s Houston townhome the night
before the slayings.
The brother, Mike Watson, testi-
fied that after drinking at least a
case of beer, two pints of scotch
and smoking some marijuana he
made a pass at Ms. Anthony, who
demanded that he leave.
Drinkard returned alone to the
home a few hours later, broke in
by prying opening a window and
dismantling a lock, and began at-
tacking the victims, stabbing them
and beating them with the ham-
mer. |
“Tt was just unbelievably
bloody,’ Roe Wilson, a Harris
County assistant district attorney,
said. Mr. Watson the next day saw
news reports of the triple murder
and called police to say he ‘had
been at the home the night before
with his brother. Drinkard told po-
lice he was elsewhere. es
But detectives found in Drink-
ard’s truck a piece of glass from a
broken light fixture from the mur-
der scene. In Oyster Creek, in
southwest Houston where Drink-
ard often fished, they found a ham-
mer and other items from Ms. An-
thony’s home.
He was arrested five days later.
NAME: DRINKARD, RICHARD GERRY DATE OF EXEC.: 1997/05/19 NUMBER: 383
8: YofE: 97 DR #: TX-000846 METHOD: INJECTION TIME: 1817
SOC. CLASS: ECO. CLASS: EXECUTION SET ; 97/05/19-EXE NO.:
RACE: W SEX: M TO-DR: 10.8 T-C: 11.5 AGE AT EXEC.: 39 DOB: 57/07/11
STATE: TX CO; HARRIS CITY: HOUSTON
HOR: MOBILE AL BOOK/MOVIE:
Hs L: 3 C: 3 E: 1 SPECIAL LIST:
DATE OF CRIME: 1985/11/15 AGE AT CRIME: 28 CATEGORY: LEO:
DATE OF SENT.: 1986/08/15 WEAPON: BEATEN & STABBED
CRIME; MURDER-ROBBERY NO. KILLED: 3 TOTAL KILLED: 3
VICT. CODE: WF44; WF47; WM43
CMTS#1: LOU ANN ANTHONY (44), beaten w/ hammer ~stab 3 times -sister -her home
~-she was heard telling: “no, Gerry ... Gerry leave me alone..." 0330
LaDEEN HENDRICKS (47), beaten w/ hammer -stab several -sister -visiting
JERRY MULLENS [43], beaten w/ hammer -stab 15 times -visiting
DRINKARD had been there earlier in the day, returned & killed
KNOWN PREVIOUS CONVICTIONS: BURGLARY ({5cnts]; ESCAPE; ATM. MURDER (JUV.)(AL)
ACCOMPLICE: FIRST ENTER:
CMTS#2: ~--CONFESSED --Had gone to house to rob. HENDRICKS but all three there
--stolen items found in Oyster Creek -hammer found
--showed police where they were
--"I guess I did it. I guess I'll get whatever I deserve"
--APPEALS: temp. insanity [intoxication]
~~carpenter
~-bodies found by LaDeen HENDRIX’s daughter
776 SW2d 181 [1981]
LAST WORDS: "No, Sir!" --turned toward his family “I love you.”
LAST MEAL:
HUMOR~STRANGE :
SOURCE: FPD 8706; AP; US CofA IQ LEVEL:
CMTS#3: WITNESSES: DRINKARD: -~mother, 2 sisters & two others
VICTIMS: --yes
464
affidavits and evidence of record and have
rejected Drew’s claim. The federal courts
have previously rejected Drew's claim.
Drew has abused the writ, and his applica-
tion for CPC and his motion for stay of
execution are
DENIED.
Ww ne
fe) E Key NUMBER SYSTEM
>
‘UNITED STATES of America,
Plaintiff—Appellee,
v.
Daverne M. FOY, Defendant-Appellant.
No. 92-8516.
United States Court of Appeals,
Fifth Circuit
Aug. 2, 1994.
Defendant was convicted by the United
States District Court for the Western Dis-
trict of Texas, Sam Sparks, J., of drug con-
spiracy and firearms offenses, and he appeal-
ed. The Court of Appeals, Garwood, Circuit
Judge, held that: (1) District Court’s accep-
tance of plea was contingent upon its review
of presentence report; (2) there was evi-
dence that District Court improperly reject-
ed plea agreement based on defendant’s ob-
jection to presentence report; (3) controlled
buy operation provided probable cause to
support search of defendant’s apartment; (4)
defendant voluntarily waived his rights be-
fore making incriminating statements to po-
lice after his arrest; (5) evidence of defen-
dant’s residency in apartment where large
quantities of crack cocaine were found and
presence of crack with tally sheet in his
bedroom supported his conviction on conspir-
acy offense; (6) evidence supported defen-
dant’s conviction on firearms offense; and (7)
District Court erred in determining drug
attributable to him for sentencing
quantity
amount of
without making any finding on
28 FEDERAL REPORTER, 3d SERIES
drugs involved that was reasonably foresee-
able to him.
Vacated and remanded.
1. Criminal Law ¢#274(3.1)
Trial court could reject defendant's plea
agreement at sentencing hearing after earii-
er accepting plea, where court’s final accep-
tance of agreement was contingent on its
review of presentence report, which had not
been completed at time of earlier hearing.
USSG. § 6B1.1(0), p.s., 18 U.S.C.A-App.
2. Criminal Law ¢#273(4.))
District court’s acceptance of guilty plea
is contingent upon court’s review of presen-
tence investigation and report. U.S.S.G.
§ 6B1.1(c), p.s., 18 U.S.C.A-App.
3, Criminal Law ¢°273.1(2)
District court may.properly reject plea
agreement without stating its reasons for
rejection, where record as whole renders ba-
sis of decision reasonably apparent to review-
ing court.
4. Criminal Law 1149
District court’s rejection of plea agree-
ment is reviewed for abuse of discretion.
5. Criminal Law @273.1(2), 1181.5(3.))
Statements of district court at sentenc
ing hearing possibly showed improper rejec-
tion of plea agreement based on defendant's
objection to presentence report and his re-
fusal to admit culpability for other offenses,
requiring remand for reconsideration of
agreement, where district court did not ulti-
mately reject agreement until defense coun-
sel reminded court that defendant had al-
ways taken position that he was not involved
with any cocaine distribution. U.S.S.G.
§ 6A1.3, p.s., 18 U.S.C.A.App.
6. Criminal Law ©273.1(2)
Court may properly reject plea agree
ment based on undue leniency.
7, Criminal Law @=273.1(2)
District court decision to reject plea
. snr tO
agreement based on defendant objecUne *
presentence report and refusing to
culpability for other offenses would normy
4
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q
4
3 t
yrs
(eel
DUFF~SMITH, Markham, wh, LI TX (Harris) 6/29/1992
Murderer confesses
as execution begins
HUNTSVILLE, Texas (AP) — Seconds before a
man was executed yesterday, he confessed that he hired ©
someone to murder his adoptive mother, sister and
other relatives so he could inherit the family fortune:
“T am the low sinner of sinners,” Markham Duff-
Smith said while strapped to a death chamber gurney
with needles in his arms. “I am responsible for the 49. -
and ’79 cases.”
In Georgia about an hour earlier, a Fort Stewart.
soldier was electrocuted- for killing a fellow soldier by
‘| putting him in the trunk of a cab and pushing it into a
water-filled pit.
Duff-Smith’s rambling confession was difficult for
witnesses to hear because a new. ‘speaker. system and —
plastic partition installed in the Texas death chamberto .
separate the inmate from witnesses distorted sound.
Duff-Smith had denied having anything to do. with
the’ slayings of his mother, Gertrude Duff-Smith Zabolio
in 1975; or his adoptive sister, her: husband and their
14-month-old son, Kevin, in 19798). |
In Jackson, Ga., Thomas Dean Stevens. 36,1 was exe-
cuted for. killing Roger Honeycutt in 1977, ‘Honeycutt
was moonlighting as a cabdriver when he was: Tobbed of
$16; sodomized and drowned.
Duff-Smith, 46, was convicted ¢ of eiviing $10, 000 to
| Allen Wayne Janecka to kill his. mother and make her
death look like a suicide. Mrs. Zabolio, 57, was strangled
| with pantyhose at her home in the exclusive River isa
neighborhood of Houston. |
After squandering a $90,000 inheritance, Dutt-
Smith was accused of seeking out Janecka again to kill
his sister and her family so he could have up to $500, 000
of their inheritance.
~ Janecka also wound up on death’ row, but his con-
viction. was reversed by an appeals court and he is
awaiting a second trial.
PY:
er
ont Daily Star
Tucson, Wednesday, June 30, 1993
Georgia
Markham Duff-Smith, 46, ‘said}
while strapped: to a death cham-{
- arms. “I am responsible for the "715
{ and’79 cases.”
- er, a Fort Stewart soldier: was
Ae . a water-filled pit.
and drowned.
er Oe
EE ERs
a
“paying $10, 000 to Allen Wayne.
mga
2 executed
in Texas,
Associated Press
HUNTSVILLE, Texas - Sec-i
onds before a man was executed}
by injection Tuesday, he confessed}
- that he hired someone to snivdart
, his adoptive mother, sister’ and}
' other relatives so he could inherit!
, the family fortune. 7
“I am the low sinner of sinners,’ *
_ ber gurney with needles in his
In Georgia about an hour earli-
electrocuted for killing a fellow
soldier.by putting him in the
2 ACO OR ee A Cte ae SR gg we
ay ae ‘The Sacramento Bee Final e. Wednesday, June 30, 1993 _
_ trunk of a cab and pushing it into} j
Sam a pS age
Thomas Dean Stevens, 36, wasi
|, executed for killing Roger Honey-'
cutt in 1977. Honeycutt ‘wast
miponban ting as a.cab driver when!
_ he. was robbed: of $16, sodomized
The appeals court delayed Ste-!
»vens’ execution for three hours’ tot
allow the U.S. Supreme Court!
- time to consider his case, but the:
high court refused.
Previously, Duff-Smith denied |
-having anything ‘to do with the:
. Slayings of his: mother, Gertrude}
.,.Duff-Smith Zabolio in 1975, or his}
adoptive sister, Diana Wanstrath;
. her husband, John, and their 145
~ month-old son, Kevin, in 1979. +
Duff-Smith, ‘46, was convicted off
~Janecka to kill his mother and
make her death look like a sul-}
cide. Janecka also wound up on}
death row, but his conviction was;
reversed by an appeals court and!
_ he is awaiting a second trial.
5
i
¥
“ t.
om
WANINVX4 (OOSIDNVUA NVS
_
E £661 ‘67 oun{ rag sy Lt
ST-V
'| $16, sodomized and locked in the trunk
: Christopher Burger, whose execution
was stayed in 1990 by a federal appeals |
| killings of three other relatives.
JACKSON, GA. A man was executed
Son is executed
in mother’s death
HUNTSVILLE, TEXAS A man convicted
of arranging the murder of his wealthy
. adoptive mother so he could inherit her
estimated $500,000 estate was executed
_ Monday by lethal injection at the state
penitentiary here. __
Markham Duff-Smith, 46, was pro-
nounced dead at 10:16 p.m. PDT, state
penal spokesman Charles Brown said.
Brown said that Duff-Smith in his
final words admitted responsibility for
the death of his mother and the later .
Man gets chair for ~
killing fellow soldier —
Monday for killing a fellow Fort Stewart :
soldier in 1977 by locking him in the:
trunk of a car that was pushed into a-
water-filled pit.
Thomas Dean Stevens, 36, died in
the electric chair for killing Roger Ho-
neycutt, a soldier who was moonlighting
as a cab driver. Honeycutt was robbed of
of his cab. He drowned after Stevens and; [
another man pushed the car into the pit.
Also convicted in'the case was anoth-
er soldier stationed at Fort Stewart,
court. His case remains on appeal,
1
fe
_) TUESDAY; JUNE 29, 1993
oMS> Lf
Bs
"In Georgia and Texas ©
2 inmates executed
Thomas Dean Stevens, 36, was
put to death Moriday at the state
prison in Jackson, Ga., for kill-
ing Roger Honeycutt, a soldier
who-was moonlighting as a cab
driver. He drowned when Ste-
vens and another man. put him
into the trunk of his cab and _ .
pushed the car into a water-filled a
pitin 1977... 3 ize ‘ |
ham Duff Smith, 46, was put to dn Jackson, Ga., for killing Roger
death by injection early today for ———=_}» Honeycutt, a soldier who had been |
arranging the murder of his | moonlighting as a. cabdriver, in |
~ tric ch
CV Avital ‘os punag urs i tM
wealthy adoptive mother, Ger- : 1977 after robbing him. an
trude Duff-Smith Zabolio, in |
1975. -
__ Duff-Smith, 46, was executed in -
ne ze , Huntsville; ‘Texas, for paying an::
ee or other man $10,000 to strangle Ger- |
trude Duff-Smith Zabolio, 57, in:
1975. Duff-Smith inherited and
squandered $90,000..A’ Houston de-
fective, Johnny Bonds, uncovered
~- the murder scheme by poring over
~ bank and telephoné records.. ~~
LY 661 ‘6e ounp:‘Aepsen, @ . 89g OUSAJ4 OUL
BeaEy Seeree aa = - m see=
ted in Geor- : :
: Thomas Stevens, 36, was executec C —
me pebiciy wags the 1977 murder of mong ad Soe 4 Ley
Duff- m ? >’ . eo : : ean :
day fer arranging the killing of his wealthy adoptive moth
ex Gertrude Duff-Smith Zabolio in 1975.
et ie. Lo oA
USA TODAY « TUESDAY, JUNE 29, 1993+ 9
Pr reese o1S 27 semua
ee
he would be
letector test
he had been
d asleep at the
mmitted.
fused. ‘‘I’ve
stor tests,’” he
{ or be wrong.
a this and I’m
n machine get
ipartment frus-
‘ir office.
that guy lied to
ia and Shultz.
e test confirms
’ Garcia asked.
y needed were
taken from the
evidence that
the murders.
9k the stuff, he’s
t,’’ Shultz said.
mpster, chances
<eep checking,”
dly. ‘‘Maybe we
id questioning in
e complex turned
ore profiictive.
been emptied by
earched. Moreo-
»sses could be lo-
ter noon; Garcia
Kersten. ‘‘Here’s
ye wall,’’ Garcia
e ceiling, off any-
‘‘What have you
rted that they had
as an avid fisher-
ais favorite fishing
oing to get rid of
yance that he might
.’ Shultz said.
1ought, Kersten re-
ita drowning man
iis could be it. But
od right now. Let’s
ntacted the Harris
-ch and Rescue Unit
rvices of two skin
ut to Oyster Creek
ng hole the suspect
:, the divers came up
:nclosed in a plastic
vas opened to inspect
what was inside of it.
There was a hammer with what ap-
peared to be bloodstains on it. Also inside
the sack were two purses and a wallet
with the identification of the murder vic-
tims, in addition to several pieces of jew-
elry and two pieces of glass that apparent-
ly were from the globe of a light fixture.
“Well, I’ll be!’’ Kersten exclaimed.
" **We did it!”’
The articles were rushed to the crime
lab. Kersten went to the district attor-
ney’s office. A warrant charging Richard
Gerry Drinkard, 28, with murder, was
drawn up and then taken to a court to be
issued.
Drinkard was taken into custody at
eight o’clock in the evening.
After being booked at headquarters,
Drinkard was read his legal rights and
asked if he wished to make a statement.
Confronted with the evidence, Drinkard
admitted he committed the murders.
He allegedly said that after being with
his friend at the apartment of Ladean
Hendricks, he had gone home and contin-
ued to drink. He was unsure when he had
decided to go back to the townhouse and
rob the woman.
Drinkard was vague about the actual
bludgeoning of the victims. He claimed
that it wasn’t until he returned to his
apartment and found himself covered
with blood that he realized what he had
done. He claimed he had washed his
clothes and then got rid of them in a
dumpster. Later, he realized he had the
things he had taken from the townhouse
and drove out to Oyster Creek and
dumped them in the water.
At the conclusion of the interview,
Lieut. Kersten asked curiously, ‘“‘Why
did you take those broken pieces of glass.
from the light fixture?’’
Drinkard responded that he did not
know. He thought perhaps his finger-
prints were on them, but could not recall
all that took place while he was in the
-townhouse.
Drinkard was brought to trial before
Judge Bill Harman on the triple murder
charge. A jury of 10 women and two men
were selected to hear the evidence pre-
sented by Prosecutor Glenn Gotschall.
It took two-and-a-half weeks to hear
all of the witnesses. The defense at-
_ tempted to have the alleged confession
made by Drinkard excluded as evidence,
claiming it had been obtained through
coercion. The court, however, allowed
the jury to hear it.
The panel was sent out to deliberate a
verdict. After 11 hours of deliberation,
they returned with a finding on August
15, 1986, that Drinkard was guilty on all
three counts of capital murder.
The jury remained sequestered to hear
arguments for their recommendation of
the penalty. s
Gotschall asked for the death penalty
and was able to present the evidence that
' Drinkard had attempted to kill his rela-
tive when he was a teenager, and that the
three murders he had been convicted of
were extremely brutal and he posed .a
threat to society.
The defense asked the panel to spare
his life because he was under the influ-
ence. of liquor and did not khow what he
was doing when the slaying took place.
The panel took only a half hour to
reach an unanimous decision that
Drinkard should be executed by lethal
injection.
At the conclusion of the trial, Gots-
chall told news reporters that he was
pleased with the death penalty verdict
but expected it tobe years and many
appeals before Drinkard was actually ex-
ecuted.
‘T just hope his last appeal is with his
maker and not an appellate court,’’ Gots-
chall said.
Lieutenant Kersten commented after
the trial that solving the case was one
chance in a million.
“If we hadn’t found out about him
being a fisherman and that fishing hole in
Oyster Creek, it might still have been on
the books unsolved,”’ he said. ®
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Front Page Detective 73
>
by HENRY RADNER
li was hard not to envy Diana Wanstrath — she was pretty,
brilliant, wealthy and happy, or so it appeared to friends and
family. The only daughter of a prosperous Houston, Texas,
businessman, Diana was raised in the River Oaks area, a
lush older section of the city known as Houston’s “Beverly
ills.”
She was a refined, elegant woman, yet
‘‘down to earth.’’ A member of the So-
cial Register, Diana moved ‘easily in
several circles of friends, and felt as com-
fortable in an evening gown as ina pair of
blue jeans.
She was married to John Wanstrath, a
highly respected oceanographer, em-,
ployed at Tetra-Tech Inc., a top Houston
company. The handsome, brilliant scien-
tist and the equally brilliant Diana (she
held a master’s degree in French from the
University of St. Thomas and had been
an interpreter at the French Consulate in
Houston) shared a loving marriage, and
” were ecstatic when in 1979 they adopted
their first child, Kevin.
‘*She was thrilled to death over
Kevin,’’ a friend noted. ‘‘They had had
the kid a year but were still just high as
kites over him. They just worshipped
him and lived everyday for Kevin.’
Their love for their first child made
what happened July, 1979, seem so mon-
struous.
At mid-morning on Wednesday, July
6th, a hysterical phone caller told a Hous-
ton police dispatcher: ‘‘They’re all dead.
(continued on next page)
Houston lawman Johnny Bonds.
‘His unrelenting detective work
forced the killer to consider put-
ting him away for good.
SAO IRINA NRE Ay tte tio Se
’ Murder victims John Wanstrath and his 14-month-old son. Police said the kills were the most
gruesome they had ever investigated.
11
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His wife was terrified of him; she told
police he had an explosive temper, and
often beat her for no reason.
Once, in a jealous rage, he broke into
her apartment and threatened to tor-
ture her with a light bulb. “He said he
would insert in in me to make sure I'd
never have anthing to do with another
man,” the woman sobbed to authorities.
Janecka was told to stay away from
his wife. But in 1975 she came home one
evening, found her apartment broken
into, and on top of her picture, was a
light blub. She called the police, Alan
Janecka’s fingerprints were all over the °
bulb, and he was sentenced to five years
in prison on a burglary charge.
“Alan isn’t very bright,” Detective
Bonds said. “If he had something to do
with those killings, he would have blab-
bed to everyone he knew.”
Nevertheless, investigators focused
on Janecka. The trial was almost 12
months old, and it took a lot of sleuth
work to track down the 32-year-old sus-
pect, and learn what he had been doing
during those 12 months.
The manager of an apartment com-
plex on Wilcrest Drive identified
Janecka from a mugshot, as the man '
who had rented an apartment in “Sep-
tember or October of last year.
“Alan had some sort of deal going,”
the manager explained. “I rented him a
car, a dark blue job on July 6. Alan un-
screwed the license plates and put on
some others he had stolen. He never told
me why.”
On July 6—the day of the Wanstrath
murders—a neighbor had seen a blue
sedan similar to the one rented for
Janecka driving near the Briar Rose
home. The investigators got the name of
Janecka’s roommate. Detective Bonds
contacted him, a tall, bushy-haired man.
who worked construction.
“We're investigating a capital mur-
der case,” Bonds told the former room- -
mate, flicking out his police credentials.
“We think you can help us.”
The roommate stared up at Bonds, a
huge man, with the muscular features
of a football linebacker. “What do you
want to know?” the man inquired.
During the ensuing interrogation,
the roommate said Janecka had pulled
out a copy of the Houston Post in July
and showed him a sté6ry of the
Wanstrath killings on the front page.
“He said he had done it. ‘He said I
wasted them and Walt got-sick and
couldn’t handle it,’ ” the roommate «.
quoted Janecka as saying.
“Did he say-what Walt’s last name ©
was?” the detective asked.
“No,” the roommate replied. “Never
said who Walt was. But that was Alan.
He was a real talker, so I didn’t know if
he was telling the truth or just shooting
the breeze.”
Investigators located one of J aneckét 8
cousins who said that Alan had boasted
58
bs
of killing the Wanstrath family. .
“I didn’t think Alan was serious,” the
cousin told police. “Alan said, ‘Hey, you
know that family that got killed, well I
did it.’ I said, ‘Oh, come on Alan, I don’t.
think you could do that,’ but he said,
‘Yeah, I did it.’ He told me the brother of
the lady, Mrs. Wanstrath, was having
them killed.”
On November 15, investigators de-
cided to put.their cards on the table.
Janecka was picked up and brought in
for questioning. The detectives ‘con-
fronted Janecka with the evidence. At
first he denied any part in the crimes.
After intense questioning the ex-con
er “Iknew about shew, but I didn’ t
0 it.”
“Why don’t you tell us shout it?” De-
tective Dan McNulty asked.
In a taped and later handwritten con-
fession, Janecka explained how Walt
Waldhauser had contacted him about a
job. “Walt told me there was a dude that
needed to be.-wasted. He didn’t know
when it needed to be done, but he would
give me more details later. it
Three weeks went by. Then Janecka
said he was told the killings involved a
man, a woman and a child. Janecka said
he tried to talk two friends into helping
him out but they turned him down flat.
Waldhauser didn’t let up on the pres-
sure, and finally, they made a plan. “We
were supposed to carry out the killings
“for some big’shot named guy,’” Janecka:
told police.
At Waldhauser’s instructions,
Janecka said he rented a car the day of
the shootings and drove to Wald-
hauser’s apartment early that even-
ing. They drove to a phone and Wald-
hauser made a few calls. Afterwards,
they went to the house on Briar Rose Nod
Street and parked in the driveway.
'“We went to the front door and rang
the bell and the man and woman came
to the door,” Janecka rasped, choking
back tears. “They knew Walt and called
him by name,” Janecka said. He was
introduced as Bobby and hardly said
two words.
Waldhauser presented the couple
with a bottle of champagne “as a little.
gift,” the suspect confessed. “Each of us
sat down. Walt told me that when he
stood up I was to make my move and
start doing it, only Walt stood up ahead
of schedule. He opened his coat pocket
and I think he maced the woman. She
hollered and said, ‘What’s this? ”
Janecka said he walked over to John
Wanstrath, who was sitting in an up-
holstered chair, pointed his gun at the-
oceanographer’s head, and looked away py
while firing twice.
“Walt, meanwhile, had wrestled Mrs.
Wanstrath to the floor. He said ‘Come
get this one,’” Janecka recalled. “I went
down and did my thing. I shot her once
in the head. I just went ‘pow.’ ”
He then stalked into the child’s room.
Flipping on the light switch, he got his
bearings, then turned off the lights.
Janecka approached the crib where
Kevin slept silently next to his. giant
stuffed frog.
“I took care of the little one,” Janecka
sobbed.
Returning to the Living room, he said
. his buddy Walt was running through
the house searching for jewelry to make
the killings appear like a robbery. “I
heard him yell, ‘Come on, let’s get out of
here,’ so we left.”
. “What did you do with the weapon, i
Alan?” Detective McNulty inquired.
Janecka admitted he was supposed to’
dispose of the gun. “Only I decided ‘to
keep it as my ace in the hole. I nevey
trusted Waldhauser. You’ve got to
watch his type. He’s a smooth talker.”
He quickly learned the gun was worth
its weight in gold. After the murders,
Janecka took a trip to Georgia to visit
‘his common-law wife. He took the gun
with him. One day his common-law wife
placed a call to Waldhauser at his home.
“She told him that we had the fishing
reel that he and I had used to go fishing
with and that the District Attorney
would probably like to have it to go fish-
ing with himself.
‘“Walt just went bananas over the
phone. His voice was in spasms,”
\Janecka smiled to McNulty.
He stated he was paid between
‘How t
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$11,000 and $14,000 for the murders,
but he didn’t know whom he had killed
until he had heard news reports of the
deaths.
“I then figured who it was,” Janecka
confessed. “I asked Walt to meet the
dude who set them up, but he said it was
best I didn’t.” Janecka admitted he was
never told the name of the “higher up”
who wanted the murders committed.
“But,” he added, “I figured the dead ©
girl’s brother had something to do with
it.”
In early December, Detective
McNulty went to a home in Atlanta,
Georgia and talked to the occupant,
Janecka’s common-law wife.
“Alan has confessed to three mur-
ders,” Detective McNulty told the
woman. “At this time you are not in-
volved in the crime. We want to hear
your side of the story.”
The woman said she met a friend of
Janecka’s sometime in April or May of
1979. He was introduced as an attorney.
She later learned he was Walt Wald-
hauser. “Walt asked me if I knew any-
one who had a pistol for sale. He said he
. didn’t want one that was stolen and he
didn’t want a throw-away.”
The woman answered that she, did
and later bought a revolver from a
Drive apartment complex.
“Tt cost $110,” she said. “I don’t know
nothin’ ’bout guns. But it looked like a
cowboy gun used in the old times,” she
said. After Waldhauser picked up the
weapon he reportedly told the woman
“You forget who bought this gun.”
“Where is the gun now?” McNulty
asked. .
The woman. said one of Janecka’s
female friends had it hidden under her
mattress. McNulty jotted down the wo-
man’s address and later paid her a visit.
After the detective identified himself
and explained the reason for his visit,
the woman quickly retrieved the
weapon.
In Mid-December, police confronted
Walt Waldhauser with the evidence.
After conferring with his attorney, the
27-year-old Houston businessman ag-
reed to turn state’s evidence. He plead
guilty to-a reduced murder charge in
return for a 30-year sentence and his '
testimony against Diana Wanstrath’s
adopted brother. __
In March 1981, Alan Janecka went on
trial. Because Texas law prohibits a de-
fendant to be tried for more than one
murder at a time, the District Attorney
decided to prosecute him for Kevin
Wanstrath’s murder first. The D.A.
could later try Janecka for the other
murders if it was necessary. é.
The defense did not deny Janecka
committed the murder. “We are not dis-
puting his moral guilt,” Defense Attor-
ney Ken~Sparks argued. “But legally
speaking, he is'not guilty.” Sparks’ co-
60
/
-neighbor who lived in the Wilcrest
hi
counselor, Doug O’Brian, maintained
that legal warnings given to Janecka by
Houston ‘detectives were’ outdated by
legislative degree. Sparks also attacked
the testimony of Detective McNulty,
calling him, “King Dan” and arguing
McNulty “persuaded” Janecka to con-
fess.
But co-prosecutor, Ted Poe, argued
the defendant “sacrificed a family on
the alter of greed. For filthy lucre—for
blood money—he killed. three people.”
His voice rising, Poe snapped, “Janecka
shot Kevin in the head while he was
laying in his baby bed, curled up to his
favorite teddy bear. When Kevin was
dreaming whatever little boys dream,
Janecka snuffed the life out of him.”
,.The jury of nine men and three
women deliberated for eight hours over
two days. They. initially reported-they
were “hopelessly deadlocked” on
whether to sentence Janecka to life in
prison or to death. On Wednesday morn-
ing, April 8, 1981, they reached a ver-
dict: Alan Janecka must die by chemical
injection at the Huntsville State
Penitentiary. .
Asked for a personal reaction, the
older brother of John Wanstrath said, “I
had a sinking feeling that justice
wouldn’t be served. Now I feel good
‘about the whole situation. The jury did
~
>
itsduty.” >
. The alleged mastermind of the mur-
ders, Diana’s 34-year-old adopted
brother, goes on trial later this summer.
He has been charged with the three
Wanstrath murders. The key defense
witness will be Walter Waldhauser, his
former business associate, and alleged
partner in crime.
The Wanstrath investigation also fo-
cused attention upon the Trudy Zabolio
“suicide.” Testimony during the trial
implicated the adopted son in her 1975
strangulation. Detectives have al-
legedly uncovered evidence linking him
to his mother’s death. The alleged mo-
tive in the Zabolio case was money. De-
tectives arrested a 34-year-old business
man in West Palm Beach, Florida in
March. Since being returned to Hous-
ton, the suspect has allegedly told police
he drove the killer of Mrs. Zabolio to the
woman’s house and picked him up sev-
eral hours later. According to sources,
police have the name of the killer but no
one as yet has been charged with the
crime.
The adopted brother must be pre-
sumed innocent of the charges against
him until he can be proven otherwise in
a court of law.
POSTMISTRESS
information on the missing woman.
By the time this investigation had
_made great progress, the different law
agencies were exchanging their funda-
mental findings; part of this process was
to keep State Attorney Robert Eagan
informed. Certain ‘aspects of the crime
were unclear with regards to jurisdic-
tion since what had been committed at
this point was obviously a federal
crime. o po.
However, until the case had been
fully resolved, no conclusions on
jurisdictio could be drawn. :
Furthermore, the kidnapping of Mrs.
Alexander might also be regarded as a
federal crime. :
, Despite complications arising out
of jurisdiction, the postal inspec-
tors proceeded in deyeloping the iden-
tity of the couple who had cashed the
money orders and the place of their re-
sidence. They were identified as Mr. and
Mrs. Linroy Bottoson, residents of Kis-
simmee. Linroy, 40, and his wife, age
41; it was learned, operated a debt coun-
seling service. —
With this information taken from the
bank films and from the direct question-
_ing of the tellers and officials of the two
banks, investigators requested an ar-
rest warrant from a federal magistrate.
In the meantime, the Bottoson house
was staked out and held under surveil-
lance, beginning at 7 p.m: About 8:30,
Linroy Bottoson drove into his driveway
—
continued from page 20
in a’73 Chevelle.
The official paperwork -which was
completed shortly after 9 opened: the
way for the apprenension of the sus-
pects, but authorities decided to hold off
on the arrest until both Mr. and Mrs. |
Bottoson were at their residence.
At 10:50 Mrs. Bottoson and a friend
pulled into the Bottoson driveway after
a day of shopping. The postal inspectors _
moved in and began grilling Linroy
about the postmistress. The interroga-
tion put pressure on the suspect but-he »
rigidly fended off all responsibility of
the whereabouts of Mrs. Catherine
Alexander. - :
Meanwhile, at 11:25 the same night, |
shortly after the-Bottosons were actu-
ally arrested for theft and the writing of
money orders, a call was received at the
Orange County Sheriffs Department
from a man. He told police he was walk-
ing home from work on Avenue C,
which runs between Palmetto Street
and Landstreet Road in Taft, Florida (a
minuscule township south of Orlando),
and found the body of an aged black
woman lying face up alongside the
roadway. ;
Immediately, the Orange County
Sheriffs Department moved in and sec-
ured the crime scene for processing. Dr.
Thomas Hegert, the Ninth Judicial Dis-
tric’s celebrated medical-examiner,
rushed to the scene when notified and
worked on the body with the technicians
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DUFF=SMITH, Marcum, wh, LI TX (Harris) Jume 29, 1993
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‘i
Detectives flank murder-for-profit suspect Markham Duff-Smith as he heads for trial.
DETECTIVE FILES MAGAZINE,
May, 1982
out a fight.
McAnulty caught the next plane back
to Houston and made a beeline straight
for ballistics. The lab tests conclusively
proved that the twenty-two fired the
fatal shots into the heads of Diana, John
and Kevin Wanstrath.
Janecka had held up under hours of
rigorous interrogation, but he was un-
prepared for McAnulty’s bombshell at
their first session after the Thanksgiv-
ing holidays. He broke down and bawled
when informed the cops had the gun.
Allen Wayne Janecka was no crim-
inal genius, but he had sense enough
to know when he was beaten. He
waived his right to counsel, nodded at
McAnulty to start the tape recorder and
began to talk.
Walter Waldhauser picked him up.
at eight o’clock the evening of July 5,
1979. Both wore business suits, the
banker because a coat and tie were
his typical attire and the hired killer
to pass as the architect Markham
Duff-Smith recommended to his sis-
ter for a remodeling project.
Waldhauser stopped at a gas station
and called Duff-Smith from a pay
phone. He hung up seconds later,
bought a soft drink from a coin ma-
chine and nervously waited for Duff-
Smith to call him back. He seized the
receiver on the first ring. The coast was
clear, and the victims were waiting like
trusting lambs.
John Wanstrath greeted the murder-
ers at the door and welcomed them into
his home. What was’ there to fear
from his brother-in-law’s best friend
and the well-dressed stranger?
Waldhauser introduced his associate
and initiated the small talk that kept the
three men occupied until. Diana
Wanstrath made her entrance. Every-
one took his place, John and Diana in
matching straight-back chairs, Wald-
hauser in a recliner by the fireplace and
Janecka on a sofa, and began tossing
around ideas for sprucing up the house.
For no apparent reason Janecka stood
up in mid-sentence and stepped toward
the kitchen. Waldhauser reacted on cue
by lunging at John and spraying him
in the eyes with a pocket-size can of
tear-gas.
- Janecka detoured behind the blind-
ed husband and pulled the long-barrel
revolver from its hiding place under his
coat. Two squeezes of the trigger
made Diana a widow for twenty sec-
onds.
The terrified wife was on her feet and
20 ;
°
screaming, “What is this?” Waldhauser
shut Diana up with a disabling dose
of tear-gas and penned her to the floor
after she lost her footing.
Janecka dropped to his knees beside
the struggling female and cocked the
smoking twenty-two. He fired a sin-
gle shot into her temple, and the thrash-
ing ceased,
Two down and one to go.
Like an obedient robot, Janecka fol-
lowed Waldhauser down the hall to a
closed door. “In there,” ordered the
middleman as he backpedaled toward
the den.
Janecka turned the knob and tiptoed
into the nursery. He switched on the
light to spot his tiny prey and plunged
the bedroom back into darkness to hide
his heinous crime from himself A fourth
bullet robbed Kevin Wanstrath of a life-
time.
Pleased as they were with Janecka’s
confession, Bonds’ and McAnulty re-
alized the investigation was far from
over. Under Texas law they needed
more than the hitman’s statement for
his conviction as well as independent
corroboration to nail his accomplices. :
The detectives were also dead-set
against letting Janecka off the hook
for the Zabolio killing, which he
adamantly denied, When this case
was closed, there would be no loose
ends.
Although he intended to go through
the motions of a jury trial, Janecka
never doubted he was doomed. Deter-
mined to take Waldhauser down with
him, he inventoried his booze-blurred
memory for a forgotten fact that might
put him away. —
He ultimately remembered two teens
he recruited to steal license plates for
the getaway car. The boys had seen
Waldhauser with him the night of the
Wanstrath job.
Sure enough, the kids recalled run-
ning into Waldhauser when they de-
livered the stolen tags to Janecka. They
even remembered his name. That
cinched it. ay ©
On December 11, 1980, a Harris
County grand jury indicted Allen
Wayne Janecka and Walter Waldhauser
Jr. on three counts of capital murder.
By nightfall the dapper wheeler-deal-
er was under lock and key.
Duff-Smith and Waldhauser were of-
fered identical deals, cop out and stay
alive. In exchange for a guilty plea
and testimony against their accom-
Plices, the district attorney pledged
not to seek the death penalty.
But there was a catch. As McAnulty
put it, “Whoever talks first gets the deal.”
Markham Duff-Smith, who believed
he would never be charged much less
tried, scoffed at the suggestion. Wald-
hauser and his attorney drove a hard
bargain in negotiations that culminat-
ed in February, 1981, with a rock-bot-
tom proposition from the prosecutor
for thirty years. The deal was done leav-
ing Duff-Smith out on a legal limb.
Even the most cynical insiders had
expected the coroner to rewrite the
Wanstrath death certificates before
the ink dried on Janecka’s confession.
But the chief medical examiner dragged
his heels for three months, incurring
the wrath of a special grand jury and
the public at large, before grudgingly
revising his ruling. On the Valentine’s
Day anniversary of the year-old blun-
der, the Wanstraths were officially pro-
nounced murder victims.
Getting the truth out of Waldhauser
was like pulling impacted wisdom teeth.
His goal was to portray himself in the
most flattering light by minimizing
his part in the bloodbath. Besides, he
was in no hurry and genuinely en-
joyed the daily duel with the detectives.
After a month of playing catch-and-
mouse with Waldhauser, his inter-
rogators had enough on Duff-Smith
to go to the grand jury. Most Housto-
nians were eating breakfast on Friday,
March 13, 1981, when the warrant
was issued for his arrest. Johnny Bonds
had the supreme satisfaction of break-
ing the bad news to the startled sus-
pect and hauling him off to jail.
* Waldhauser relaxed and opened up
as soon as his sidekick was off the
street. He spoke freely for the first time
about Trudy Zabolio and verified
Bonds’ much-criticized misgivings.
The same gang, Duff-Smith, Janecka
and Waldhauser, was responsible for
her death, which was hardly a sui-
cide. He also fingered the fourth and
final villain, an old acquaintance named
Paul MacDonald, who brought Janec-
ka on board.
MacDonald, thirty-three, was ap-
prehended in Florida, where he moved
his family after the murder. But he
knew deep down that someday he
would have to pay his blood debt to
Duff-Smith’s dead mother.
Arrested on Saint Patrick’s Day by the
‘West Palm Beach police, MacDonald
could not wait for his extradition back
to Texas to confess. He drove Janecka
1176
’
and oath by answering special answer “no’
to avoid death penalty, and later stated she
did not know what she would do. U.S.C.A.
Const.Amend. 6.
7. Criminal Law ¢641.13(2)
Capital murder defendant was not de-
nied effective assistance of counsel because
his attorney did not object to excusal of
prospective juror; juror had indicated he
would not take oath requiring him to give
special answer that could lead to imposition
of death penalty. U.S.C.A. Const.Amend.
8. Criminal Law ¢>641.13(2)
Capital murder defendant was not de-
nied effective assistance of counsel because
his attorney failed to object to prosecutori-
al misconduct, which allegedly was failure
to notify defense counsel of prosecution’s
advance knowledge that defendant’s case
had been perjured and that prosecution had
in its possession “script” prepared by de-
fendant for use by witness who would give
perjured testimony; defendant had full
knowledge of information prosecution had
not revealed. U.S.C.A. Const.Amend. 6.
9. Criminal Law ¢641.13(7)
Capital murder defendant did not re-
ceive ineffective assistance of counsel be-
cause his attorney failed to introduce any
evidence in mitigation during punishment
phase; defendant had given counsel names
of several persons as prospective character
witnesses, counsel had interviewed them,
and had made strategic decision that wit-
nesses would do defendant more harm than
good. U.S.C.A. Const.Amend. 6.
10. Criminal Law ¢>641.13(6)
Capital murder defendant did not re-
ceive ineffective assistance of counsel be-
cause his attorney failed to challenge medi-
eal examiner’s report on victim’s cause of
death; trial strategy was involved, as ac-
complices of defendant had admitted to kill-
ing victim.
11. Criminal Law ¢°641.13(2)
Capital murder defendant did not re- -
ceive ineffective assistance of counsel be-
cause attorney had not pursued initial
strategy of seeking change of venue; after
973 FEDERAL REPORTER, 2d SERIES
voir dire defense counsel was satisfied that
defendant could receive fair trial in origina]
county, and there was neither demonstra-
tion nor suggestion of prejudice.
12. Criminal Law ¢641.13(6) ,
Capital murder defendant did not re-
ceive ineffective assistance of counsel be-
cause his attorney did not conduct a more
thorough background check on state’s pri-
mary nonaccomplice witness; defendant
failed to indicate what would have been
accomplished by a more thorough investi-
gation. U.S.C.A. Const.Amend. 6.
13. Homicide ¢=357(9)
Evidence supported determination, un-
der Texas law, that capital murder defen-
dant had hired accomplices to murder his
mother, in order to speed up his inheri-
tance, even though he claimed ultimate
amount of money he received would be
- same whether mother died naturally or ear-
lier as a result of murder, and that remu-
neration element of crime was missing.
14. Constitutional Law <270(2). .
Homicide ¢358(1)
Admittance at sentencing in state capi-
tal murder trial of evidence of prior unadju-
dicated offenses does not violate defen-
dant’s due process rights. U.S.C.A. Const.
Amend. 14.
Douglas C. McNabb, David Cunningham,
Houston, Tex. (court-appointed), for peti-
tioner-appellant.
Robert Walt, Asst. Atty. Gen., William
Zapalac, Dan Morales, Atty. Gen., Austin,
Tex., for respondent-appellee.
Appeal from the United States District
Court for the Southern District of Texas.
Before POLITZ, Chief Judge,
GARWOOD and JOLLY, Circuit Judges.
POLITZ, Chief Judge:
Markham Duff-Smith, a Texas prisoner
sentenced to death, appeals the rejection of
his application for a writ of habeas corpus.
Finding no error, for the reasons assigned
we affirm the district court’s
beas relief.
Background '
On October 15, 1975, Geri
Duff-Smith’s adopted mothe
dered in her home. According
cution, Duff-Smith solicited
dhauser to kill her and his ste
Zabolio. Waldhauser in turn
MacDonald, a bail bondsma
Allen Wayne Janecka. Janec
trude Zabofio by strangulati:
Duff-Smith was a spendth
beyond his means. During t
ceding his mother’s murder !
arguments with her over req
ey. He told several persons ©
her dead. Duff-Smith actec
and determined to secure
both his mother and stepfat'
bolio was included becaus:
speculated that his stepfath
the final distribution of his n
“Detailed evidence of the c
vided by MacDonald who te
the late summer-of 1975 W
MacDonald that a friend
needed an estate cleared «
accelerate receipt of his‘inhe
MacDonald stated that™he v
to commit murder Waldhav
to use his bail bond conn:
someone willing to do so.
Waldhauser later called ©
MacDonald had located a hit
was present and MacDon:
whether he knew of anyor
murder for hire and Janeckz
would take the job. -MacDo
ka then contracted to perfo
for $10,000—$6,500 for Jan:
for MacDonald who was to
1. We present: only the facts
understanding of the issues
peal. A detailed review of tt
the pertinent corroborating
found in the Texas Court of
opinion affirming Duff-Smit
direct appeal, Duff—Smith v.
26 (Tex.Crim.App.), cert. der
106 S.Ct. 186, 88 L.Ed.2d 15.
th penalty.
atch. As McAnulty
S first gets the deal.”
mith, who believed
charged much less
: suggestion. Wald-
yey drove a hard
ions that culminat-
51, with a rock-bot-
om the prosecutor
deal was done leay-
‘on a legal limb.
ynical insiders had
ner to rewrite the
certificates before
necka’s confession.
al examiner dragged
months, incurring
cial grand jury and
before grudgingly
On the Valentine’s
f the year-old blun-
were Officially pro-
ictims.
out of Waldhauser
»acted wisdom teeth.
rtray himself in the
sht by minimizing
dbath. Besides, he
ind genpinely en-
with the detectives.
playing catch-and-
{hauser, his inter-
igh on Duff-Smith
jury. Most Housto-
yreakfast on Friday,
when the warrant
rrest. Johnny Bonds
tisfaction of break-
io the startled sus-
iim off to jail.
xed and opened up
lekick was off the
ely for the first time
»olio and verified
icized misgivings.
duff-Smith, Janecka
vas responsible for
was hardly a sui-
ered the fourth and
acquaintance named
who brought Janec-
rty-three, was ap-
la, where he moved
he murder. But he
that someday he
his blood debt to
mother.
Patrick’s Day by the
police, MacDonald
iis extradition back
He drove Janecka
to the Zabolio mansion the night ‘of
October 15, 1975, and later listened to
his first-hand account of the strangula-
tion. The killer’s lone regret was that
the second intended victim, Trudy’s hus-
band Dow, was out of town.
Already under the gun for the un-
conscionable delay in changing the
cause of death for the Wanstraths, the
coroner performed the necessary about-
fate in the Zabolio, case within forty-
eight hours of MacDonald’s confession.
Two weeks later, Walter Waldhauser
pleaded guilty on all counts in one
court, while in another the trial of Allen
Wayne Janecka for the murder of Kevin
Wanstrath got underway. Better bal-
' listics coupled with the raw emotion-
al impact of infanticide ranked the
baby’s murder as the strongest of the
four cases against the blond butcher.
The lead prosecutor, who now serves
as a State district judge, said in his sum-
mation, “For filthy lucre, for blood
money, he killed three people. He
shot Kevin in the head while he was
lying in his baby bed and curled up to
his favorite teddy bear and dreaming
whatever little boys dream.”
The jury reached a verdict in three
hours but deadlocked eleven to one
on the punishment. The holdout final-
ly relented, and Janecka was given
the death sentence.
As the prosecutors and police debated
whether to try Duff-Smith for the triple
murder and risk having the less than
air-tight case blow up in their faces, the
newspaper reporter’s anonymous caller
surfaced. He was willing to go. public
and testify in open court rather than see
Duff-Smith get away with murder.
Doug Chaney and Duff-Smith sold in-
surance for the same company in the
- early 1970s. From casual conversations
over drinks, the rich kid from River Oaks
learned Chaney had previously worked
“for a bail bondsman. To Duff-Smith
this naturally meant that he was on
cozy terms with cut-throats and killers.
The two lost touch after changing
jobs, which was fine with Chaney be- -
cause he never cared for the preten-
tious blowhard. He was surprised to
hear from his former co-worker in 1975
and flabbergasted by his request for
help in hiring somebody to get rid of
his mother.
Not long after the highly publicized
“suicide” of Trudy Zabolio, Chaney
bumped into Duff-Smith. “We were
sitting in his car, and Markham began
telling me how he had his mother killed.
6 sa SC NE a demand AS te
He said that the person -who killed his
mother also intended. to kill his stepfa-
ther, but he never came home.”
Based upon Chaney’s. dynamite affi-
davit, the DA switched victims on Duff-
Smith. A new indictment was handed
down on April 24, 1981, accusing him
of murdering his own mother.
The trial. was anti-climatic. Paul Mac- |
Donald proved to be an effective wit-
ness for the prosecution, and Doug
Chaney was even better. But Johnny
Bonds spoke from the heart, and the
jurors hung on every word as he tear-
fully relived his discovery of the dead
baby in the Wanstrath nursery.
After the jury came back with a guilty
verdict in forty-seven minutes, the de-
moralized defendant resigned himself
to his fate. Duff-Smith instructed his at-
torneys not to bother with begging for
" mercy in the punishment phase because
he preferred death to life imprisonment.
The jury gladly granted his wish.
Paul MacDonald served three of his
sixteen plea-bargained years, and Wal-
ter Waldhauser was out in nine, instead
-of the forecasted fifteen, on his three-
decade deal. But Duff-Smith, whose
interest in staying alive was magical-
ly rekindled, and Janecka stayed put on
Texas’ Death Row sweating out the ap- »
peals that might save them from the
lethal needle.
Janecka won’a new trial when his
conviction was overturned on a trivial
technicality in 1992. The grand jury
Aa
had neglected to name Duff-Smith in
the 1980 indictment as the individual
who paid for the Wanstrath murders.
With the retrial of his hired gun just
around corner in the summer of 1993,
Duff-Smith pulled every legal trick in
the book to postpone his imminent
execution. He volunteered, for exam-
ple, to take the stand if the presiding
judge would let him live a little while
longer. '
But time ran out for Markham Duff-
Smith a few minutes past midnight on
June 28, 1993. Seconds after the nee-
dles were inserted and the deadly chem-
icals began flowing through his veins,
‘he finally acknowledged his guilt.
Johnny Bonds, who was present for
the execution, heard the remarkable last
words of the money-hungry maniac
he brought to justice. “I am the low
sinner of sinners,” muttered Duff-
Smith. “I am responsible for the ‘75
and ‘79 cases.”
If the sentence of the second jury,
which in November, 1993, again gave
the triggerman death, is carried out,
Allen Wayne Janecka will follow in
the fatal footsteps of his paymaster.
And it’s a safe bet that the dogged
detective will be right there to watch
him die. *
(Editor’s note: The names Tracey Duff-
Smith, Darlene Waldhauser, Joyce Welch,
Dr. Franklin Casey and Doug Chaney are
fictitious. To reveal the real names of these
individuals would not serve the public in-
terest.)
OLDEST ROOKIE
DUFF-SMITH, Markham
SERIES
same-reasons, we find the evi-
zally insufficient to support the
ury finding on laches:
Question No. 41
Jae Financial Services (Purchas-
for an unreasonable length of
ore asserting a mutual mistake
ateral mistake or an ambiguity
‘tion with the Rental Guarantee
nt and that 5300 Memorial (Sell-
disadvantaged by such delay?
Yes
ceording to the evidence, the
ion of a difference of ‘‘interpre-
the Agreement by Seller and
occurred.as a result of Seller’s
22, 1986, application for refund.
nroximately. two months. of re-
:ller’s. application, Purchaser
ar to Seller that Purchaser con-
- contract substantially different-
ile t, and Purchaser contest-
Cli... The fact that Purchaser
ecifieally identify the bases for
in terms of “mutual mistake”,
antations”, “ambiguity”, etc. un-
er filed its counterclaim in De-
87, is a‘matter governed by the
as of Civil Procedure. The eq-
trine of “laches” does not apply
s and pre-trial conduct of parties
tion has been instituted.
ain appellants’ points of error
and 11. We find that the jury’s
jury question four is a specific
at is in fatal and irreconcilable
ith the specific findings in re-
jury questions 22, 30, 31, 33, 36
Accordingly, the judgment must
.e and the cause remanded for a
Straite v. Krisman, 787 S.W.2d
>
of our disposition of the points of
ady discussed, it is not necessary ;
rule on the remaining points of »
cross points, and we decline to do
om 3 reversed, and the cause
ed.
i 2
_ DUFF-SMITH v. COLLINS
_ Cite as 973 F.2d 1175 (Sth Cir. 1992)
». APPENDIX—Continued
/s/ Margaret Garner Mirabal
Margaret Garner Mirabal
Justice
Justices Bass and Cohen also sitting.
Do not publish. Tex.R.App. p. 90.
Judgment rendered and opinion delivered
True Copy Attest: :
Kathryn Cox
Clerk of. Court
Ww
° g KEY NUMBER SYSTEM
T
a Markham DUFF-SMITH,
Petitioner-Appellant,
Vv
James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent-Appellee.
No. 91-2204.
United States Court of Appeals,
Fifth Circuit.
Sept. 17, 1992.
Defendant was convicted in state court
of capital murder. Defendant completed
direct and collateral review procedures in
State court. Thereafter defendant filed pe-
tition for habeas corpus. The United
States District Court for the Southern Dis-
trict of Texas, Lynn N. Hughes, J., denied
petition and appeal was taken. The Court
of Appeals, Politz, Chief Judge, held that:
(1) substituted counsel had sufficient time
to review case; (2) prospective jurors ex-
pressing reservations about imposition of
death penalty were not improperly removed
from panel; and (3) evidence supported de-
termination that defendant had ordered his
mother killed.
Affirmed.
a Ckewfed 6/29/43 /virbrvifle TX
1175
1. United States Magistrates ¢=23. a
Habeas corpus petitioner was not prej-
udiced by his counsel not receiving suffi-
cient time to object to magistrate’s report;
there was period of four and one-half
months for substituted counsel to familiar-
ize himself with case prior to issuance of
report and counsel was given three months
after issuance in which to respond and ob-
ject.
2. Habeas Corpus ¢=337
Failure of trial counsel for capita] mur-
der defendant to object to exclusion of two
prospective jurors was a state procedural
bar precluding federal court review on ha-
beas corpus of defendant’s claim that ju-
rors had not been so opposed to death
penalty as to warrant disqualification.
3. Habeas Corpus ¢341
Failure of counsel for capital murder
defendant to object to introduction of notes
prepared by defendant setting forth
“script” prisoner testifying for defendant
was to have followed constituted separate
State law ground requiring rejection of de-
fendant’s federal habeas corpus claim that
“seript” should have been provided to de-
fendant as part of discovery.
4. Criminal Law ¢=700(3)
Capital murder defendant was not enti-
tled to have prosecution provide him with
copy of handwritten notes he had delivered
to fellow prison inmate containing perjured
testimony inmate was to give in further-
ance of defendant’s case; inmate’s testimo-
ny and script were fully known and avail-
able to defendant.
5. Habeas Corpus ¢=500
Infirmities in state habeas proceedings
do not constitute grounds for federal habe-
as relief; federal court looks only to trial
and direct appeal proceedings in state
court.
6. Criminal Law $641.13(2)
Capital murder defendant was not de-
nied effective assistance of counsel because
his attorney did not object to excusal of
prospective juror; juror had initially indi-
cated she would resolve conflict between
her conscientious objection to death penalty
Oot erererrnqeeres —
Se ee eee — ei ete fi i hae —_— ” ai i — le veil ai ll 7
(Blaine DYER; 257 SOUTHWESTERN 902; Earnest LAWSON: 257 SOUTHWESTERN 558),
DYER, Blaine, and LAWSON, Earnest, blacks, electrocuted Texas State Prison (Dallas County)
on March 28, 192),
EXECUT ION
"Huntsville, Texas, March 28, 192l-Earnest Lawson and Blaine Dyer, negroes, both of Dallas,
were electrocuted in the Statepenitentiary here shortly after midnight. They were convicted
of murdering two peace officers, J, L. Gibson and W. C, Crane, both of Dallas. It was the
second electrocution since the chair was installed, Lawson went to the chair at 12:1)
and was pronounced dead five minutes later, Dyer took his seat at 12:5 and was removed at
12:50, Lawson made a full confession before his death,
CRIME
"Farnest Lawson and Blaine Dyer, negroes, were convicted last summer and sentenced to die,
following trial in Dallas Courts on charges of mrder, Lawson was charged with the killing
of John H, Crain, a night watchman, and Dyer was charged with the killing of Motorcycle
Policeman J, C, Gibson, Their cases were approved by the Court of Criminal Appeals in
February and District Judge Charles A, Pippen, before whom they were tried, set Friday,
March 28, as the date for their execution, MotorcyclePoliceman Gibson was shot and killed
on the night of April 19, 1922, as he started to enter Grant's Pharmacy, Ross Avenue and
Hall Street, in search of burglars. Mr. Crain was shot and killed on the night of May 25
as he started to enter Browne's Pharmacy at College and Jinius Streets, in search of bur-=
glars. A worn overcoat, which was found in Grant's Pharmacy, was reported to have been
theonly clue left by the slayers, The police investigation was carried on for several
weeks before Lawson and Dyer were arrested by Detectives Will Fritz, John Henderson and
L. E. Simmons and Police Sergeant D, C, Garrison, Within a few minutes after the arrest
Lawson made a statement in which he admitted killing Crain, but accused Dyer of killing
Gibson, Dyer also made a statement in which he admitted being with Lawson when both the
officers were killed and said he was robbing the stores, but denied that he killed either
of the men, 8, L, Quillen, clerk for the Connty Commissioners' Court, Thursday morning,
issued instructions to the penitentiary warden at Huntsville for the bodies of Lawson and
Dyer to be sent back to Dallas," NEWS, Dallas, 3=28-192), (1/5),
ag eS | a a ae -_ ——_
>
old Fresno county seat of Millerton now After hearing what was k 0}
at the bottom of Millerton Lake behind tragedy, Aten and Hughes prg
Friant Dam. Roane sold his trading post the discovery site and set abow f
to Samuel B. Coffee and returned to his ing for more clues. They lo Nueces Canyon in February. Aten Duncan was then sentenced to die on
native South. He fought in the Civil on tracks which led toward the! sheriff to book Duncan on a September 18, 1891 on a gallows in May-
War and later married. indication that some unknown % my charge SO he could be held in erick County. He was returned to ‘the
In the late 1850s, Red Mustang was been dragged in the same direg# “anitely. This would provide time Maverick County jail, and a twenty-
arrested in a house operated by an early land near the river and in the bwitnesses te Eagle Pass to identi- four-hour guard was ordered. . .
Fresno County official. No reason for area was flat, with few rocks Fodies of the murder victims. In those days each county carried out
her arrest was given, and shortly that resembled those used to E arch 23, 1889, an inquest was the orders of its own court. Some did
after she returned to the reservation. bodies. To the Rangers this off magle Pass, conducted by Justice not like the idea of public executions, and:
Ten years later she was living on a probability that the victims w Saace G. B. Dunn. The bodies, had had gallows erected inside the jail or ?
rancheria in the Auberry region of the dered some distance away @% ehumed for the inquest and in shielded the gallows from public view by Indian Scout Buckle
Sierra with a man of her own tribe. transported to the river for cong he advanced state of decomposi- such means as a canvas screen. The offi- Replica of the buckle awarded to retiring Indian
4 pa jail, the Ranger recognized sentence had not been commuted and that
Ee peing one of the men he had the Jaw should take its course.
a Chutalaya married Whokah of the It also was obvious that the kilf messes from San Saba were cials of Maverick County had the gallows scouts by the U.S. Military in the late 19th
» be Yokuts and in 1870 four boys were re- not familiar with the currents § mre they were the bodies of the constructed inside the jail. — paar Reigate ru Rares fs cast of
a corded in their household. Grande—had they been, the bodil gons. Final indentification was The day before the execution, a deputy aoe a ameter paieicenting cetieuc finish.
Se Both Indian girls, in desperation, had never have been discovered, by Dr. Brown, the dentist. He ob- was sent to Brackettville to secure ‘a 3° diameter. Up to 144" belt. $4.95.
accepted the attentions of foreigners in Aten and Hughes returned Snat one of the corpses had buck hanging rope as there was none of suf- Satisfaction guaranteed.
order to survive. It is certain they later Pass and discussed the case wif Ben Williamson had had, and ficient size and length in Eagle Pass. Also these Tiffany-Styled buckles:
rejected the ways of the whites who had Cooke again. Then they r@ stor was also able to make a Ironically, the rope was obtained from Colt Revolver Tea
so bitterly changed the lives of a happy coroner’s written report and s§ Mjdentification on a dental platehe the same merchant who had sold the |. Winchester. :
and honorable people. It is hoped they description of each of the slain de for Lavonia Holmes. Dr. rope used to secure the murder victims Wells Fargo—Stagecoach: .
found peace in the old ways. reviewed the clues and disew “tated that since the other two to the rocks that weighted their bodies. Levi Strauss & Ca: . $A95
Thure Theodore Stroembeck, “Swede .case, they suddenly remembi fit the description of Mrs. Wil- On the morning of the execution, Dick Buffalo Bill’s Wild West Show 4 h
Bill,” married his Memjelitt in 1858 and travelers they had seen in Nu md Beulah, there was no doubt Duncan awoke early.. He bathed and. Westein Union—Ovat ‘Eagle's tor $13 95
both lived long, useful lives among the Sah few — earlier. The fq mM ee ane their a Other dressed in a new, black suit and. black Send check or money order jo: :
whites and Indians. Today their descend- in the new Mitchel wagon ma es in agreement. boots. He ate his breakfast and listen “A TE
ants are numerous and respected and description of the four victimg rand jury took quick action, and seemingly without sa as aurerrs conEeCe. Scene ae
993, 1889 returned an indictment _ read the death warrant. A Catholic priest ‘Serid -25c for catalog of unique Western gifts & art
Duncan and Landers for the joined Duncan in his cell and remained
Poems Needed
still live in the foothills of what had The two men who had been§
been the gold country on, the western became the prime suspects:
slopes of the Sierra Nevada. point, the Rangers felt that
logical step in the investigatiol
go to San Saba and make ingf
pmurder. A warrant was issued with him until time for the execution.
i arrest. Dick Duncan, who was’ Duncan had joined the Catholic Church -
i held in jail in San Saba, was during his stay in jail. His religion
RELICS ©
; From No-Account to Plain Mean was decided vi rn it tri co ; i ‘
dina ths was decided that Ira Aten W@i red to Eagle Pass to await trial. appeared to have been a comfort to him, FOR SONGS & RECORDS
i ee (Continued from page 27) the trip to San Sab. d g cali " $ : ;.4 7
Re a 1 e trip to San Saba, and Hugi falias Jones, was never found. for it was said later that he was the PUBLISHING CONTRACT guarantéed on selected ma-
aged woman. Her head had been battered stay in Eagle Pass to search
and crushed, and her body had been clues. :
weighted by a forty-pound boulder at- The murders had come at a@
tached with a small rope. The body was Texas was desperately trying
eople suspected that he had been calmest man at the hanging.
y Duncan to eliminate the only = At 11:07 Sheriff Cooke. went to Dun-
a the slaying. — can’s cell and accompanied him ‘tao ‘the
me 1, 1889 the trial got under- ~ gallows. When asked if he would :like to
terial, Send your. best Var or songs for FREE
evaluation to; HOLLYWOOD, SONGWRITERS SERVICE,
Dept. we-29 6253: Hollywood Bivd., Suite 1117
Hollywood, Cedf. 80028 (Cerner Hellywood & Vine}
badly bloated and no indentifying marks outlawry in the state. Offic ith Judge Winchester Kelso pre- make a final statement, Duncan replied FR TRS EN RE
could be found. anxious to have the murders sol} District Attorney Walter Gillis “You are hanging an izinocerit many kre ror ee z; :
After the woman’s remains had been ly. Word of the crime spread & prosecutor, and the court had after I am dead, you will find the mur- Frontier Times
removed to the morgue in Eagle Pass, of the newspapers in the stal id Leigh Burleson, a well-known derers.” A cow had gathered outside aad -oorenka. 103 meee
a search for clues was started along the the story. ‘ from San Saba, to defend Dun- the jail. Such legal affairs attracted SSE ET SN ROT i
river. On February 28 two more bodies Rumors had preceded A
were located a few miles upriver from Saba. People there already had,
where the first had been found. These Dick Duncan was suspected GE
were the bodies of a young man and a ting the crimes. Duncan also mt
young woman. The following day, a the rumors, and had asked @
fourth body, that of a girl, was dis- meet him outside of the town
covered. The receding floodwaters had his chances in a court of law. D®
exposed the corpses where they lay in told that the possibility of an
a mud flat. Like the first victim, they was very slim because of pub
i: many people, even if they could not see | | ae ;
Widence against the accused, al- the execution. Some twenty men ‘had RARE, “ORIGINAL HUNTER’S FRONTIER TIMES. | Not
circumstantial in nature, was been invited to witness the hanging and alt issues; net aft_mint. but. good condition. $3.00
g. The number of reliable only those with a printed invitation were © for a specific issue. Only SEA tat 00 Sarat ——
presented by the State, com- allowed admission. to the jail. The -dis- we Sees (shot +: yon. Wane TniginaLs nv
ath the vast amount of evidence appointment of those outside was com- vals eee a oe gids
3 emely convincing. The defense pensated somewhat when a deputy cut Publications, inc., P.0. Box 3338, Austin Tx. 78764.
fed to show that Dick Duncan was the hanging rope into three-inch lengths —= ——
@ else when the murders were and gave them to the spectators.
had been beaten, tied with a small rope ment regarding the murders, Bf . His father and brother swore : re
and weighted with rocks. It was clear the circumstantial evidence a&% lath that Dick was in Mexico hon age — Poss 3 HUNTER’S FRONTIER TIMES
OFF. that all four people had met the same and because of the bad reputg Me was committed, but they were then it was claimed by his father and BINDER—ONLY $3.50 °
fate. can had. The lawyer told Dune
his opinion, the only chance)
AFTER being prepared for burial, the save himself was “to follow &
d. brother. Very early the next morning,
seamed on for over a month, Old Man Duncan and Tap Duncan loaded This sturdy and beautiful binder will hold
ays given over to the final the coffin on their wagon and started the and protect 24 issues of your Hunter's
AKOQuey””
ANY 4 - $1.00
bodies were placed on the courthouse = 5un and never look back.” In 8B of the law Ww j i i
dies: p courtho ana : 5 yers. When the jury long trip home. FRONTIER TIMES facaimiles Gold imprint
A Ll $2 00 poein . Se te re a per 1 Daa paghvag? aap dies ae ‘Sab gen the vier for deliberation, a The lonely grave of Dick Duncan || on blue to match the covers of your mag-
8 - ° was hoped that someone might recog- > : Was reached in a very short time lies in a long-abandoned ry catines. :
) g-abandoned cemetery @ few
nize them or at least offer a clue. But put in jail.
in the first degree and punish- mi
although many people came to look, none ielaiet mere miles west of San Saba. Although the No punching or mutilation of your miaga-
/hile we have a surplus of th by hanging.
j ame forwar identify them. After 2 HEN Ranger Aten reacheg Gals . . tombstone has broken from its base, the tines is necessary, and the binder’s at-
lese ISSUES, We Can offer you cae TOT ot cach Bal pte he Gockel with Joe & tht perieen ” ee inserieaer is still clear: “R. H. Duncan, tractive appearance will make it a wel-
‘ _eack ) as ! at be a eee. 5 ip 5 ‘
ese sss we cane tBu alas, Pech AMM eMail, Cty rae Se et a onnthel ceclammen
; cemetery. : a new Mitchel wagon ant ite wap wneved to Boxer 380 last Words ‘1 , fan | een ent eattaiae
RICE BARGAIN. Order now In those days (as now) it was not Clark that he wanted to haw fo await execution. Pleas and re- forgiven —" cad Rp ssn) vary oe HUNTE R’S FRONTIER TIMES BINDER
. unusual to find corpses in the Rio Grande; — liamsons down to Mexico. for @ new trial were denied. Dun- tail t’ 4 d h Pps t oa poke.”
OF yourself and for gifts. however, those found were usually the Hawkins family convinces LRentenced to be hanged nin Fri- ae pads - Se whiter AUSTIN TEXAS 79764: °
Mexican males, bearing bullet wounds or — the four victims had, inde o Peember 4, 1891, at any time after Th . e% : ‘ ’
bat knife marks. The four bodies just buried Williamson and her cil and before <unset Pl. gcd eg Sn Panes os Dick _. 1 am enclosing $— __. Send___
, did not follow the usual pattern of vie- Aten talked with other ™% eptem! : : . any people remember binders at $3.50 each to ‘the following:
BARGAIN OFFER tims found in the river. These hodies had — including a dentist named Brow ? ooniad ew gee = story or where he is buried. Ak. _
heen found in a group, were white, and done some dental work for # < ks stay wa, ‘al ary and a th ators Th has been over eighty years Name.
P.O. Box 3338 three of them were women. The authori son family. The Ranger felt @ full t ted ered. Governor since his execution, his final prefliction . .
yn Rayon thant ready to elose the net @ y studied the case, then of the real murderers being found some- Address _
fram to the sheriff of Eagle day has never materialized.
City as eens Stet
ng at the ranch from
wrpus Christi, where
i well-known banker
‘xpert musicians, and
her guitar with her.
young Rangers and
held an impromptu
roved to be just the
nted officers needed.
was over, they had
1 owner’s urgent in-
over a day to join
z ladies, of course, in
nd the mental stiniu-
ang company was a
angers, and, at part-
vered that he was
niddle sister, a gay,
f twenty, whom we
* Todd.
with Aten, managed
: to the isolated ranch
‘w weeks. Mary en-
tship and, when he
, She accepted. He
the Ranger service
he decided, and take
his Travis County
vurchase a better and
in some other section
t before they could
ns, stern duties oc-
ntion.
workman ran up to
1e Rio Grande, about
e Eagle Pass, and
t he had seen a body
of the river. A half-
to the spot and
, which proved to be
iged woman. There
what she had been
|, inhuman murderer.
severe beating about
e heavy instrument,
id been lashed to her
of small rope.
were hastily sum-
yn realized that they
| their hands. The
vith rifle and
woman apparently was unknown to any
one in the neighborhood.
Searching parties hunted along the
banks of the river for possible clues,
and, within a short time, made further
discoveries which shocked the whole
community and most of the state. One
by one, three other bodies—those of two
more women and a young man—were
taken from the river, each plainly the
victim of the same brutal murderer;
each weighted down with heavy stones,
tied by strands of the same rope, which
the officers recognized as the type fre-
quently used for plow lines.
The four corpses, all dressed in typical
frontier apparel, were removed to an
undertaking establishment in Eagle Pass
for public inspection in the hope that
some one would identify them. The first
woman was about fifty, the girl about
seventeen, and the other woman close to
thirty. The young man was in his early
twenties. Who they were or where they
came from, no one could say. There
were no identifying marks of any kind
on the clothing, and the young man’s
pockets were empty.
UNDREDS of citizens from near
and far viewed the bodies, but none
could offer aid. Finally the authorities
wrote down complete descriptions of the
four, then gave them a decent burial.
The officers had not a single clue to
work on; they had not even located the
scene of the crime. It was extremely
doubtful that the mystery could ever
be cleared. :
Ranger Aten, who was now a Sergeant,
and Hughes were working on an-
other case along the Nueces River near
Barksdale, about ninety miles from
Eagle Pass. One day, soon after the
JULY, 1940
Captain Jones (1, above) and his Texas Rangers. Durbin (2) and Outlaw (3) resigned with Hughes to transport
silver in Mexico. (4) Sergeant Fusselman, whose death Hughes was sent to avenge
murder victims had been buried, a
courier arrived with a message for Aten
from Captain Jones. It read:
The authorities seem to feel that we
can do something toward clearing up
the finding of four murder victims in
the Rio Grande near Eagle Pass. So lI
want you and Hughes to take hold of
the matter and stay with it, regardless
of time or trouble, just as long as you
believe there is hope. of accomplish-
ing anything toward identifying the
murderer.
The orders closed with a brief recital
of the few known facts in the case.
The two men stared at one an-
other. Here was probably the most
difficult assignment they had ever been
given. The victims had been buried as
unidentifiable, and. precious weeks had
passed, chilling whatever leads they
might dig up. But they broke camp
within the hour and headed for Eagle
Pass, hoping they might learn some-
thing there which would shape the
course of their investigation.
The written descriptions ‘of the bodies,
they discovered, were of no immediate
value because there were few unusual
physical characteristics noted. The young
man’s front teeth were widely spaced.
The thirty-year-old woman had a dental
plate, and also bunions on both feet.
Other than these, there seemed to have
been no marks or peculiarities.
Aten and Hughes interviewed the
local officers, and the men who had
found the bodies, but got little help
from them. When they summed up the
case, they decided that there were only
two courses open to them. First, as the
texture of the stones used to weigh all
four bodies was about the same, there
was the possibility that somewhere along
the Rio Grande they might find similar
stones, and that such a spot might prove
to be the murder scene. Second, there
was’ the possibility that they could
eventually trace the rope which the
murderer had used to lash the stones to
the bodies. It appeared to be new, and
somewhere was the store at which it had
been purchased.
The Rangers decided to follow the
Texas bank of the river, examining all
the stones they came across, and if they
discovered nothing within fifty miles,
they would return on the Mexican bank.
If this investigation were a complete fail-
ure, they would next set out on the
trail of the rope.
XAMINING all the rocks along the
river bank was a tedious job indeed,
and they didn’t cover much ground the
first day. Around the camp fire that
night, Hughes suddenly recalled an inci-
dent which had occurred several weeks
earlier. He and Aten had arrested a
tough, red-headed young cowboy by the
name of Dick Duncan for brandishing a
pistol and creating a disturbance in
Barksdale. He had been put under a
peace bond. A week or so later, he had
called at the Ranger camp near Barks-
dale, and had spent an evening bragging
about the gun-fighters he had known.
Hughes had not been favorably im-
pressed, and consequently when he again
came across the cowboy on the range,
had paid close attention to him and his
companions—a cowboy whom Duncan
introduced as “Picnic” Jones, a pretty
young girl whom he said was his sister,
and another young man whom he intro-
duced as his brother-in-law. Hughes had
noticed that they traveled with a green
Mitchell wagon. (Continued on page 98)
35
ELE _-~
n in the early days the only “graduation”
a hoy ever experienced was
By CHRIS WEATHERBY
Photos Courtesy Author
Colorado and Southern expreg
Folsom, New Mexico. Tom
Ketchum was hanged in 190;
apprehended and convicted {
bery.
Not far from the Duncay
the Williamson family. The
sisted of Mrs. Williamson,
H. “DICK” DUNCAN grew up on
* the San Saba River, near the north
mouth of Richland Creek. His closest
friends were the Ketchum boys, Tom and
Sam. Texas court records show that in
1876, when Duncan was only fourteen
years old, he and Tom Ketchum were
m7 tried for “theft of property of the value
Gg
‘-
yi U NC, a of 75¢.” Through the years there fol- about fifty; her daughtg
> ae WN, " lowed other arrests and trials for such Holmes, also a widow, abow
er Ss things as malicious mischief, gambling, son, Ben, about twenty-oné
yw” OU nr ST and stealing livestock. By the time Dick weak both physically and m
% Bp Ger Bs Duncan and the Ketchum boys reached another daughter, Beulah, rh
a. ‘* i] maturity their reputations had digressed sixteen. The Williamsons
N LEON CoTrx9 past the ornery stage. They were con- their small Wallace Creek far
Je, 6.7 ie sidered badmen. to Mexico. Mrs. Williamson
with Dick Duncan to sell’
him for $400, and he wa
transportation for the fami
Pass where they would crog
Mexico to make their hom
made a down payment of $30
Williamson and each of
signed the deed by mark. Zh
tion was witnessed by Eda
close neighbor of the William
At approximately nine}
They managed to get by with no se-
rious consequences for quite some time;
then when things began to get too hot
for them, Tom and Sam Ketchum left
San Saba and went to New Mexico. There
they formed the “Blackjack Gang” and
embarked upon a career of train rob-
beries. Sam Ketchum died in 1899 of
blood poisoning from a bullet wound re-
ceived in a shoot-out with a posse fol-
lowing an attempted robbery of the
D ick Duncan.
night, a wagon passed the
house and turned in at the
iplace. Soon there were sounds
igon’s being loaded and then
eemed strange to Ed Hawkins
family would leave in the dead
was further mystified when
eaded west, in the direction
igelo, for Mrs. Williamson had
hat she wanted to go by Austin
son who was in the asylum
ew minutes after the wagon
iorsemen passed the Hawkins
continued east toward San
At left, Dick Duncan's gravestone. His family’s bitterness is reflected in the
“Murdered at Eagle Pass.” Below, horse trading in San Saba, Texas on
of the town square. :
wet
farly in February 1889. Texas
Sergeants Ira Aten and John
mwere camped in Nueces Can-
Barksdale, Texas. On February
sountered a tall stranger near
od who said that his name was
Old the Rangers that he was
areen County, a few miles
engelo. He explained that he
8 Way to Mexico to get his
Mentioned that a family was
ith him.
ng day the Rangers saw
NM again. This time he was
by a tall, red-haired man.
riding beside a wagon in
Women and a young man
.The Rangers noticed that
is Was a bright, shiny, new
“a sign painted on the back
Bold by Joe S. Clark, San
8.” The party was traveling
40n of Fagle Pass
#
£4
ia
muncan’s grave, located in an abandoned cemetery west of San Saba. At
‘Mitchel wagon purchased from Joe S. Clark was the clue that led Texas
In March the Rangers again came
across Jones and the red-haired man.
This time they indentified themselves as
Walter Landers, alias Picnic Jones, and
R. H. “Dick” Duncan. They were headed
north and had the same new Mitchel
wagon, but the former occupants were
not with them. Jones was riding a horse
that was branded LOV. Later it was
learned that this was the brand of a
rancher in San Saba County.
Sergeants Aten and Hughes came upon
two men in another wagon the following
day. The men introduced themselves as
“Old Man” Duncan and Tap Duncan. In
the course of their conversation, they ad-
mitted being the father and brother of
Dick Duncan. They seemed surprised
when told that Dick Duncan was in the
area. They told the Rangers that they
were returning to San Saba after visiting
in Mexico.
A few weeks later, Aten and Hughes
were summoned to Eagle Pass to assist
the Maverick County sheriff, W. M.
Cooke, in a murder investigation. Sheriff
Cooke had made little headway with the
case and had appealed to Governor Joseph
Sayers for help. The governor had wired
Captain Frank Jones, Co. D., Frontier
Battalion of Texas Rangers, to assist in
the case.
Since Jones was involved in tracking
train robbers in Val Verde County, he in
turn had detailed Sergeants Aten and
Hughes. Sheriff Cooke welcomed the
Rangers and gave them details of the
case.
The Rio Grande had flooded in late
(Continued on page 64)
ROMM@MCCOUNT TO PLAIN MEAN
February from rains upstream and when
the water receded, the body of a woman
had been discovered by Jacob Meyer and
two miners of Seco Mine Company of
Eagle Pass. The victim was a middle-
i The San Saba News
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San Saba, Texas.
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* — TEXAS STATE LIBRARY
| S Pat LORENZO DE ZAVALA STATE ARCHIVES AND LIBRARY BUILDING
BOX 12927 CAPITOL STATION
AUSTIN, TEXAS 78711
|
DORMAN H. WINFREY TEXAS LIBRARY AND
DIRECTOR AND LIBRARIAN HISTORICAL COMMISSION
July 31, 1979
Mr. Watt Espy, Jr.
Law Library
Box 6205
University, Alabama 35486
Dear Mr. Espy:
Mrs. Jody Gregory, District Clerk of Wilson County, referred your letter of
March 5, 1979, to me for reply.
For the expediency of explaining the reason why I am answering your letter,
please find the enclosed brochures for information concerning the Texas State
Archives regional programs.
im In reference to your inquiry, I found the following information:
1) Criminal Case 741. State of Texas vs. Nicanor Elizondo: (6/20/1892),
charged with first degree murder; (6/23/1892), received a guilty ver-
dict, punishment assessed at death; (12/12/1892), sentenced to be
|/ hanged by the neck on January 27, 1893, between the hours of 10:00 A.M.
and 4:00 P.M. The court adjourned on December 19, 1892, until the
next term on June 5, 1893. There were no court minutes recorded for
this period.
2) Criminal Case 972. State of Texas vs. Maximo Martinez: (6/24/1897),
charged with first degree murder, motion for a new trial overruled,
received a guilty verdict, and his punishment was assessed at death
by hanging from the neck on July 30, 1897; (6/25/1897), a death war-
rant was ordered by the court to be issued to the sheriff to carry
out the court's orders for the execution. The court adjourned on
June 25, 1897, until the next regular term on December 6, 1897. There
were no court minutes recorded for this period.
Wilson County District Court case papers and Sheriff's Docket and Fee Books for
that period, unfortunately, have not been accessioned and they still are in
Wilson County Courthouse. I telephoned Mrs. Gregory to see if these records
could be checked. Mrs. Gregory stated that the courthouse is being remodeled,
and the attic, where these records are stored, iS unaccessible at this time.
She reassured me, however, that she would do her best to help us as soon as
possible.
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hein J4K
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“How about these men?” Kern
asked suspiciously.
Gigout shook his head. Ranton, he
explained, was in California; Edwards
in San Antonio on a vacation. “Any-
way,” the dead woman’s_ brother
added, “it wasn’t either of them who
ealled about -the accident. At least,
my mother didn’t recognize the
voice.” .
Kern frowned. ‘Tell me about that
call,” he suggested.
Gigout said it came in around 8:45.
Some. man phoned Mrs. Edwards’
mother, Mrs. Etta Tatum, 1507
Eleventh Street, and said, “Betty
Lou’s been in an accident. They’ve
taken her to a hospital.” Then he
hung up.
“My mother collapsed,” Gigout
added. “Another relative called me
and I phoned around but couldn’t get
any information. I was beginning to
think it was some ghastly gag when
I thought of you.”
Kern mulled this over. “It was
someone,”: he said, “who not only
knew your sister’s name but knew
someone to phone the bad news to.
Who’s she been running around with?”
Gigout seemed taken back by the
question. ‘No one!” he said heatedly.
“She was tending strictly to business
at the Sheffield plant, trying to sup-
port her child.”
“Then what about this fellow who
was shot with her? What was she
doing in his car?”
The brother appeared at a loss to
explain it. Saying that he couldn’t
imagine who the man was, he added
that his sister might have been just
getting a ride home from work. a
“What?” the sheriff exploded. “At
eight o’clock?”
Gigout said Mrs. Edwards some-
times worked late, but his explana-
tion sounded weak.
Kearn switched the conversation
back to Ranton and Edwards. He
gave Gigout a description of the
killer.
“Ranton is a tall man,” the brother
said immediately; “and Edwards has;
very light hair. I wouldn’t say he is!
-short, either.”
Gigout added that Edwards wasn’t
the kind of man who would commit
such a crime. “He was very fond of
Betty Lou,” he said, “and the family
likes him. It was my sister’s fault
they separated. She was extrava-
gant.”
The sheriff sensed that Betty Lou
Edwards, if she had been running
around, wouldn’t have told her fam-
ily. He became convinced that jeal-
ousy could have’ been the motive in
the crime, with the possibility that
someone was gunning for the uniden-’
tified driver of the sedan instead of
the woman. He also realized that
this was a mere guess.
.From the brother he obtained the
names of Betty Lou’s other relatives
and her friends. To these he added
full information about Albert R. Ed-
wards and William Ranton. When
-Gigout left, the sheriff gathered his
officers and put them to work on the
information, even though the hour
was past midnight.
N THE meantime, Deputy Fitch was
seeking some clerk who could get
him the name of the sedan owner.
It was not until 2:15 the following
morning: that he succeeded in locat-
ing an official who was in a position
to obtain the information.
This man, because it was a murder
.
and he was anxious to co-operate with
the sheriff’s office, drove with Fitch
to the registry bureau and checked
the license number of the sedan
against the files.
“The car’s registered to Paul Frank-
lin Walker, Becker Drive, Channel-
view,” he said.
Because the shootings had occurred
in the Channelview area, Fitch felt
certain that Walker was the victim.
He phoned the information to Kern,
who was still at his desk trying to
pick up a real lead to the double
killer.
The sheriff dispatched Captain
Charley Nix and Deputy Warfield to
the Walker house. Seven hours had
elapsed since the shootings, but the
officers found the family still up. They
learned that Walker, the father of
four small children, had failed to come
home.
It wasn’t long before they became
convinced that Paul Walker had been
Mrs. Edwards’ companion in the se-
dan. They invited Shelby Walker,
his brother, to view the body in the
hospital morgue, and at 4 a. mM. the
ou eae victim was positively identi-
ed.
Shelby said his brother had been
home for supper the night before and
had said there had been some trouble
at the Sheffield plant, where he
worked as a pipefitter foreman and
he would have to go back.
Taken to the sheriff’s office, Shelby
Walker couldn’t say how long his
brother had stayed at the plant or
when he met Mrs. Edwards. “I can
only say,” he told Kern, “that her
name means nothing to- any of us..
This is the first time we’ve heard it.”
The brother felt certain that Paul
Walker, who was 35, had no enemies,
except possibly some men who had
worked with him at Sheffield. As for
the killer, the man’s description meant
nothing to Shelby. © :
The sheriff now had the names of
both victims and the fact that they
had been fellow employes at the steel
plant. That they had been in each
other’s company several hours after
closing time seemed _ significant,
though it was possible that their ap-
pearance together in the car could
have been entirely innocent.
It was now morning, and during
the night only one suspect had been
picked up. This was the driver of a
Plymouth sedan who closely resem-
bled the killer’s description. But the
police, who had taken him into cus-
tody in the net they had thrown
about the city, quickly became con-
_vinced of his innocence. He was
released.
Meanwhile, the sheriff’s men had.
learned that neither Ranton nor Ed-
wards owned a.car, and they began
checking around to see whether any
of Mrs. Edwards’ acquaintances drove
either a Plymouth or a Dodge:
Kern _ disdained sleep, as did his
men, all staying on the job. Early that
morning District Attorney A. C. Win-
born hurried over and found the
sheriff’s office a beehive of activity.
Brought up to date on develop-
ments, the prosecutor was told that
checks on Betty Lou, Walker, Ranton,
Edwards, Plymouth and Dodge cars,
and employes of the pipefitting de-
partment at Sheffield’s were ing
made. ,
Thus far, Kern was forced to ad-
mit, there was no definite lead to the
identity of the killer or the motive.
“But the way those people lay
slumped in §h
the idea that
the target an
by stray bulle
man acted, he
profesr‘~~7" |}
fitting a
Dep :
vassin, ---- 2
into the Saunc
tem, 704 Rus}
that a rented |
been turned
night, an hot
shooting.
The car hi:
Jack Ramsey
not be reac!
Joe Brunson,
he had rentec
Wednesday,
complexionec
gave his nar
Hotel.
Weston ha
deposit whe:
a week. The
it Thursday °
fact.
Fitch pror
who rushed
Captain Fraz
ton, his fing
dismay, they
been washe
Fitch and
Ramsey, wh
waited. Wh
gave them <
ment that
“He told
my business
Ramsey saic
customer.
The sheri
this “busine
man had h
intending t
opportunity
arrived ear]
the victim’s
That Betty
along was
necessarily
fess} ae
that “Jim
there Monc
Wednesday,
had registe
but had le
on departir
city mentio
he saw no
However
scription of
given of t
was anxio
quickly.
Warfield
hotels.
EANV
resen
by visitin;
Vincent St
in San Ar
it was saic
10 days &£
wife, now
Edwards
investigate
alone afte
had gone
to the bro
May 31,
several ti
always b!)
proclivitie
their failu
s to co-operate with
. drove with Fitch
dJreau and checked
oer of the sedan
red to Paul Frank-
‘r Drive, Channel-
»tings had occurred
w area, Fitch felt
er was the victim.
formation to Kern,
his desk trying to
ead to the double
ispatched Captain
Deputy Warfield to
Seven hours had
shootings, but the
amily still up. They
<er, the father of
, had failed to come
efore they became
i] Walker had been
apanion in the se-
d Shelby Walker,
w the body in the
ind at 4 a. mM. the
positively identi-
brother had been
1.e night before and
been some trouble
Dlant, where he
' foreman and
rack.
3 office, Shelby
ay how long his
d_at the plant or
Edwards. “I can
| Kern, “that her
ng to any of us..
le we've heard it.”
certain that Paul
5, had no enemies,
me men who had
t Sheffield. As for
; description meant
had the names of
he fact that they
ployes at the steel
had been in each
veral hours after
2med___ significant,
ble that their ap-
in the car could
innocent.
‘ning, and during
suspect had been
as the driver of a
ho closely resem-
ccription. But the
<en him into cus-
they had thrown
ckly became con-
ocence. He was
sheriff’s men had
r Ranton nor Ed-
, and they began
see whether any
quaintances drove
ra Dodge.
sleep, as did his
he job. Early that
torney A. C. Win-
and found the
hive of activity.
tate on develop-
or was told that
, Walker, Ranton,
. Dodge cars,
ipefitting de-
were being
as forced to ad-
»finite lead to the
‘ror the motive.
nose people lay
ee EE ————
slumped in the car,” he added, “I get
the idea that Walker must have been
the target and that the girl- was hit
by stray bullets. The way that gun-
man acted, he could have been some
i yi hired to rub the pipe-
tting foreman out.”
Deputies Fitch and Warfield, can-
vassing the car-hire agencies, walked
into the Saunders Drive Yourself Sys-
tem, 704 Rusk Street, and discovered
that a rented 1948 Plymouth sedan had
been turned back at 9:29 Thursday
night, an hour and a half after the
shooting.
The car had been received by a
Jack Ramsey, an employe who could
not be reached immediately. But
Joe Brunson, assistant manager, said:
he had rented the machine at 11 a.m.,
Wednesday, to a short, slim, dark-
complexioned man around 35 who
gave his name as Jim Weston, Milby
Hotel.
Weston had left the required cash
deposit when he hired the car for
a week. The fact that he had returned
5 Thursday was, in itself, a suspicious
act.
Fitch promptly called the sheriff,
who rushed to the auto agency with
Captain Frazier and Lieutenant Pat-
ton, his fingerprint men. To their
dismay, they learned that the car had
been washed after being received.
Fitch and Warfield were sent fort
Ramsey, while Kern and the others
waited. When the youth arrived, he
gave them a highly significant state-
ment that “Weston” had made.
“He told me, ‘I got through with
my business sooner than I expected,’ ”
Ramsey said, quoting the mysterious
customer. \
The sheriff thought he knew what
this “business” was. Apparently the
man had hired. the car for a week,
intending to trail Walker. But the
opportunity to do the shooting had
arrived earlier than he expected, with
the victim’s night return to the plant.
That Betty Lou Edwards had been
along was an unfortunate but not a
necessarily strong deterrent to a pro-
fessional gunman.
The sheriff and his men hurried
around to the Milby Hotel and learned
that “Jim Weston” had registered
there Monday but had checked out
Wednesday, after renting the car. He
had registered as from San Antonio,
but had left no forwarding address
on departing. Kern had heard this
city mentioned before in the case, but
he saw no connection now.
However, the hotel people’s de-
scription of “Weston” fitted the others
given of the killer, and the sheriff
was anxious to pick up his trail
quickly. He dispatched Fitch and
Mpa gi to check other Houston
otels. P
14 Rigen ome other officers rep-
resenting the sheriff, discovered
by visiting Edwards’ home at 404
Vincent Street, that he was actually
in San Antonio on a vacation. This,
it was said by a relativé, had begun
10 days before, at which time his
wife, now dead, had accompanied him.
Edwards’ brother, Richard, told the
investigators the wife had returned
alone after a disagreement, but he
had gone on. The couple, according
to the brother, had been married on
May 31, 1946, and had separated
several times. Albert Edwards had
always blamed his wife’s spending
proclivities as being responsible for
their failure to get along..
At Paul Walker’s home, the grief-
stricken widow said there was noth-
ing between her husband and Betty
Lou Edwards. He had once told her
about beg some young woman
home from the-plant.. Mrs. Walker
said this was just a friendly gesture.
Puzzled by the conflicting mass of
testimony regarding the affairs of the
principals, the officers returned to the
courthouse, where they learned that
efforts to locate Edwards in San An-
tonio had proved futile. é
The husband was supposedly visit-
ing a cousin there. This man, when
contacted, said this actually was a
fact, but Edwards had left on a short
fishing trip and he did not know
where ‘he could be reached.
However, Kern did learn that Bill
Ranton was in California at the time
of the shooting, so he eliminated
this man from further consideration
in the case.
The angle of the argument Walker
reportedly .had had with some
stranger in the shop: dispute de-.
veloped into a clue of first rank when
others of the sheriff’s men picked up
a significant bit of information. This
had to do with the possibility that one
of the strangers hailed from San
Antonio.
“Td bet it was the fellow who goes
under the name of Weston,” Kern
said when the news reached him. “I
think we’re dealing with a hired goon
in this case.”
The canvass of the pawnshops and
gun stores yielded nothing, and there
was a dearth of new developments
for several hours that Friday. Then
Fitch and Warfield hit the bull’s-eye
again when they walked into the
lobby of the Hayes Hotel, 150814 Con-
gress. Street.
A man calling himself “Jim Wes-
ton” had registered there late Thurs-
day night with a suitcase. He had
checked out Friday morning. But
here he had left a trail, even though
a faint one. A bellboy told the deputies
that he had taken “Weston’s” bag out
to a taxi which had come cruising
along. , Weston himself did not enter
the cab, though. Instead, he gave
the suitcase to the driver and ordered
it delivered to an address which the
bellboy did not hear.
Fitch and Warfield rushed back to
the courthouse with their information.
“A local address!” Sheriff Kern was
amazed. “Why would he do that when
he comes from San Antonio? Well,
boys, we’ve got to find out where that
bag went. I want to see what’s in it.”
He called in his officers from the
other angles and ordered them to con- °
centrate on finding the cab driver
The investigators swept into action
by first checking known cab stands
and then swinging on to the inde-
pendents.
As the hours passed, Kern and Win-
born, who were keeping their fingers
on. developments—the sheriff _ still
without sleep—grew fearful that Wes-
ton had_ bribed the driver to keep
silent. No cabby who would admit
picking up a bag at the Hayes was
found.
Then, -suddenly, David Sears, a
veteran hackman, came into the focus
of the investigators’ attention, since
it was reported that he had been in
the vicinity of the Hayes Hotel about
the time Weston checked out.
When this man was located he
readily admitted he was the cabby
in question. Captain Nix, who inter-
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rogated -him, hurried the hackie to
Kern’s office.
“Where did you deliver that suit-
case?” the sheriff demanded.
“Up to Vincent Street,” Sears said.
“I don’t rightly know the number,
but an old lady answered the bell
and took it from me.’
Vincent Street, Kern became con-
vinced, meant the home of Albert R.
Edwards’ mother, who could have
been the “old lady” mentioned by the
driver.
Taking Sears along, Kern, Winborn,
Williams and Nix hurried up to the
family home at No. 404 Vincent. Ed-
wards’ mother, who said he wasn’t
there, admitted. receiving his bag.
When she produced this for them,
and it was opened in her presence,
the sheriff found a box containing 30
copper-jacketed .38 special revolver
cartridges. Six of ‘these bullets were
taken to the courthouse for inspec-
tion by Captain Frazier, who quickly
announced that they were the same
type as those which had killed the
two .victims.
No gun, however, was found in the
bag. Since the type of gun the bullets
would fit was undoubtedly a Smith &
Wesson service pistol, Kern ordered
a new check of pawnshops, hardware
stores and sporting-goods shops in
order to determine the purchaser.
Then he ordered a general alarm
broadcast for Albert R. Edwards, the
estranged husband of Betty Lou!
Edwards, he suspected, would be
the one man who would have known
how to call Mrs. Tatum after the
tragedy. He could even have dis-
guised his voice. But no _ trace .of
the suspect was found that night:
DWARDS walked into the office
of Attorney Charles E. Heidings-
felder Jr. at 206 Esperson Building
about 10 o’clock the following morn-
ing. The attorney had represented Ed-
wards in his wife’s divorce suit.
Edwards lit.a cigarette and chatted
calmly a few minutes. Then he asked:
“Have you read the paper this morn-
ing?”
Heidingsfelder nodded. “I sure
have.”
“Well,” Edwards went on, “it looks
like they’re looking for me, but I
Ege know anything about that until
I read it in the paper.’
“In that case,” the lawyer re lied,
“you had better turn yourself in.’
said.
Heidingsfelder called Sheriff Kern
| and made arrangements to deliver the
suspect. Edwards and the attorney,
the former cool and ayes reached
the courthouse 15 minutes later. Dis-
trict Attorney Winborn was there.
The first question asked Edwards
was: “What do you know of those
killings?”
Edwards lit’a cigarette, blew some
smoke at the ceiling, and answered:
“I came here to setae not to talk.”
“Fine!” Kern 9 She . “We'll talk
the one way we now how—with
proof!”
He rang for Frazier, who responded
immediately. “Give this man’s hands
a paraffin test,” he ordered.
‘Taken to the laboratory, Edwards’
hands were, coated with a thin layer
of wax.. The technician immediately
reported that the right hand showed
nitrate particles, indicating that it
pce gts on or near a recently-fired
gun
rmnente this, Edwards refused to
“That’s why I’m here,” Edwards
talk. He made only one statement
confirming the investigators’ findings.
The man admitted having registered
at the Hayes Hotel Thursday night
as “Jim Weston.”
Though he refused to say anything
about it, the sheriff knew it was also
he who had been the guest at the
Milby.
All day long Kern and Winborn,
aided by Williams and Walters, kept
questioning Edwards vainly. He con-
tinued to smile and smoke, but kept
his silence.
Unknown to him, a parade of wit-
nesses, including the two musicians,
the youngsters, the woman who had
seen the shooting, the car-hire em-
ployees and hotel clerks viewed him
through a peephole. Their identifica-
tion was unanimous: Edwards was
undoubtedly the man they had seen
at various stages of the case, including
the murders.
The discrepancies in his description
could be explained by the fact that
‘his hair was a rust color that would
have looked dark at night.
After 10 hours of interrogation,
Kern turned the prisoner over to his
night staff, including Captain Nix and
Deputies Fitch and Bill Isbell.
At 5 o’clock the following morning,
18 hours after he had surrendered,
and when Captain Walters rejoined
the interrogators, Edwards suddenly
shrugged. He turned to Walters and’
said: “Come on, I’ll show you some-
thing.”
First stipulating and winning their
consent that he could leave without
handcuffs, the prisoner led them to
the home of his brother Milton, 1424
Antoinette Street, Cloverleaf Addi-
tion, wHere it was necessary to ring
the bell to awaken the family.
When Milton Edwards came to the
door, Albert said to him: “You don’t
‘know anything about this, but I have
something here I want to get.”
Albert then climbed to the attic
through a trapdoor in a closet and re-
turned with a .38-caliber Smith &
Wesson revolver in a holster. Hand-
ing it to Walter, the man said he had
hidden it in the house right after the
killing, while his brother and family
were away.
Back at the jail Albert Edwards
made only an oral confession, but
later signed a typed statement in the
presence of his attorney. In this he
said his final attempt at reconciliation
with his wife on their vacation trip
had failed and he had determined to
find out why.
“T suspected’ she was going out with
another man,” he continued, “so 1
rented a car on Wednesday and
lanned to. watch her. I drove to the
Sheffield plant Thursday night, where
I knew she was working late. I saw
her get in with Walker, whom I
didn’t know, and I took off after them.
When I stopped the machine and be-
gan arguing with my wife, this fellow
said, ‘Who the hell are yqu?’ I lost my
head, figuring they were two-timing
me. You know all the rest.’
Edwards was arraigned — before
Judge J. L. Decker on a murder
charge preferred by Captain Nix.
Pleading not guilty, he was held with-
out bail for the action of the June
Harris County grand jury.
Though the accused man made a
written confession of -guilt, nothing
in. this story is intended: to. convey
anything but a presumption of his
innocence oe trial by a jury of
his peers.
-
for certain, excer
had good crops
money and neve
he did with his \
“Old Bob,’ Do
he had completec
amination of the
pound fractures
are five scalp \
inch deep. The |
and face show t
beaten.”
Sheriff Ode k
chance of pickin
darkness. So w
sheriff had orgar
the farmers livir
They had been r:
by a general a
phone and, led b
scattering ove)
searching for a)
characters.
District Attor
accompanied b:
Shearer and Ed
out from Barab«
The bloodhound
some trail nea)
started running
ing loudly. Hoy
the trail and ca
able to pick it
In the meantir
District Attorn:
shack where the
lived. Near the
the barrel of a
tance from it t
The latter was
and hum oi
When WW
door to tr mac
using their flast
the furniture \
dishes lay scatt«
the center of tl
tress which hac
bed and slashed
Beside it, on th
blood.
The arrival oi
of the murderec
store in Madiso
from the scene
abled the two
a fairly clear pic
pened. Accordi
broken rifle fo
of the shack
Bob Jaeger.
“The old m:
“probably went
rifle and his m
attacked him t
from him. In
lowed, Jaeger |
fighting for his
“And it isn’t
they were after
added. “This sl
one answer—r
like his killers
side out lookin
“My brother
plained, “didn’:
.« ways had a ro
dollars on him
siderable ‘talk
Appeals court (
| blocks execution «
-. HUNTSVILLE, Texas — A
°*Texas appeals court Wednesday —
blocked the execution of a Ver- ° :
| »mont man about’ six: hours °
before he was to be pat todeath _
for robbing and fatally stabbing
-an)Alabama'man more than 10
Hears ago... he
' Robert: Drew, 34,..0f West
Pawlet, Vt., faced lethal injec-
tion early Thursday fortheFeb. |
22, 1983 slaying of Jeffrey Mays,
17, of Birmingham, Ala. Tes-
~'timony showed Mays was |
‘stabbed in .the heart and his
throat was slashed before his
|... body was dumped in a ditch off
Interstate 10 east of Houston.
>> Acting.on an appeal filed ‘by
Drew’s attorneys, the 3rd Court.
of Appeals in Austin issued an
order barring the execution. —
r~z
was at
eke isinibinhe iinet? ie se
Paee.>
Dethan te
(ofi4 (49>
(2.4)
ee ee
Shy FRANC So
CGyonicle ph2 NATION
Vermont Fights
Texas Execution
Of Resident
It threatens sanctions if
punishment is carried out
Sate ioe Onn Oc7- 7
Montpelier, Vt. Va ye ¥ she
Vermont lawmakers, angry
over the planned execution of a
Vermont native in Texas, said
yesterday that they will ask resi-
dents to curtail spending money
in the Lone Star state if the exe-
_ ution goes ahead.
Vermont legislators are partic-
ularly incensed by a Texas law that
allows the courts to disregard evi-
dence that emerges more than 30
days after an inmate is sentenced.
The execution scheduled for
Thursday of Robert Drew, 34, of
West Pawlet, Vt., who was convict-
ed of participating in the stabbing
death of a teenager in Texas in
1983, has united liberal and conser-
vative Vermont lawmakers and
generated a public outcry.
State Representative Andrew >
Christiansen, D-East Montpelier, |
and fellow legislators have agreed
to sign a resolution to be introduc- |
ed in the 1994 session discouraging
Vermonters from spending money
in Texas.
The case has made unlikely.
bedfellows of supporters and op-
ponents of the death penalty.
“We formed an unholy alli-
ance,” said state Senator Vincent
Illuzzi, R-Essex Orleans, who sup- |
ports the death penalty but objects
to Drew’s execution.
Paul Bogosian, a Weathers- ,
field, Vt., resident and radio talk
show host in nearby New London,
N.H., has spearheaded the fight to
save Drew.
“This is not about capital pun-
ishment,” he said. “This is about.
justice. This is about a law getting
in the way of truth.”
Drew maintains that he watch-
ed another man, Ernest Puralews-
ki, kill Jeffrey Mays, 17, of Bir-—
mingham, Ala., 10 years ago, but
was too drunk and afraid to inter-
vene.
Puralewski pleaded guilty to
the murder but also testified
against Drew, in return for a 60-.
year sentence. He retracted his tes-
timony 101 days after Drew was...
sentenced, past the legal deadline’
to reopen the case.
A rally was held last week in
Montpelier, the state capital, to:
call attention to Drew's plight.
Bogosian has enlisted high’
school students to produce radio
public service announcements op-
posing the execution.
The students broadcast appeals
to listeners to write Texas authori-
ties, including Governor Ann Rich-
ards and the Texas Board of Par-
dons and Parole, to ask for a stay of’
- execution.
Vermont Governor Howard
Dean also is planning to write after
‘researching the options available
to the Texas Board of Pardons and
Parole.
Drew’s case already has been
appeaied unsuccessfully to the Su-
preme Court.
The Houston Chronicle on
Thursday reported that Texas law
enforcement officials defended
the 30-day rule, saying it is practi-
cal, logical and has multiple safe-
guards to prevent innocent people
frorn being executed.
ww at
Son Tes
iggy or: .
"Dae LAS 1%, Mota), IE ieee
at. /4,199 3
Appeals court halts
inmate’s execution
Vermonter faced lethal injection today
Associated Press
HUNTSVILLE, Texas — A Texas
appeals court Wednesday blocked
the execution of a Vermont man
about six hours before he was to be
put to death for robbing and fatally
stabbing a man more than 10 years
ago.
Robert Drew, 34, of West Pawlet,
Vt., faced lethal injection early
Thursday for the Feb. 22, 1983, slay-
ing of Jeffrey Mays, 17, of Birming-
ham, Ala.
Testimony showed that Mr. Mays
was stabbed in the heart and his
throat was slashed before his body
was dumped in a ditch near Hous-
ton.
Acting on an appeal filed by Mr.
Drew’s attorneys, the 3rd Court of
Appeals in Austin issued an order
barring the execution.
“Our ruling today should not be
construed as any indication of how
this court will ultimately decide the
appeal on the merits,” the court
said. “We act only to give us suffi-
cient time to perform our basic con-
stitutional and statutory duty of re-
viewing the propriety of the district
court's decision.”
The appeal by attorney Ronald
Kuby came after a state district
court judge in Austin denied a re-
quest that would have forced the
State Board of Pardons and Paroles
to conduct a hearing on Mr. Drew’s
claims of innocence. The board ear-
lier Wednesday refused, on a 15-0
vote, to deny Mr. Drew a clemency
hearing, commute his sentence or
grant him a 120-day reprieve.
“It's gratifying at least one court
now has felt it’s more important to
hold due process of law than rapid
executions,” Mr. Kuby said. “I am
surprised and pleased. It shows that
maybe this awesome machinery of
death which seems to grind on and
on and on isn’t unstoppable, and in
some cases at least fairness and jus-
tice will triumph.”
Mr. Drew’s execution would
have been the 16th in the state this
year and the 70th since Texas re-
. sumed capital punishment in 1982.
Both figures are the highest in the
nation.
Robert Drew ... says he
didn’t murder Jeffrey Mays,
17, in 1983.
“I'm not scared,” Mr. Drew said
last week. “I don’t see being scared
would be any good.”
Mr. Drew was hitchhiking from
Florida to Oklahoma when he was
picked up by Mr. Mays in Lake
Charles, La. Mr. Drew contends that
Mr. Mays was killed by a companion
in the car, Ernest Puralewski, who
is serving a 60-year prison term af-
ter pleading guilty to murder.
Mr. Puralewski, from Chicago,
has recanted his testimony that
named Mr. Drew as a participant in
the slaying and says he alone did it.
Assoctated Press
AUSTIN — Government officials
in .Vermont, where there is no
death penalty, are attempting to
spare the life of a native who has
been sentenced to die in Texas for
. Murdering a teen-age runaway.
-..Vermont Gov. Howard Dean is
expected to ask Texas authorities
next week to commute the sentence
‘of convicted killer Robert Drew to
life in prison.
. ;Mr. Dean says that regardless of
Mr. Drew's guilt or innocence, the
mati should not die because his na.
tive'state does not condone capital
punishment = == —S
Some of Mr. Drew's supporters,
however, say there is new evidence
that. vindicates him
i gf Me"case has attracted little at-
te “Texas, where 15 people
al een- executed this
y w's’Case is making
frdlt-page news in Vermont.
| “It's probably the overwhelming
onic of discussion on the streets
DALLA
nt officials wor
~ ww rire avy wow
Pe ee FRE a _.27
and cafes,” said Vermont state Rep.
Andrew Christiansen, who Opposes
the death penalty and is threaten-
ing to organize an economic boycott
of Texas. -
High school students are con-
ducting letter-writing campaigns,
and about SO people demonstrated.
on behalf of Mr. Dréw at the Capito
in Montpelier last weekend. __.
A growing number of Vermont
residents say new information that
could save Mr. Drew from lethal
injection is being ignored because
of a provision of Texas law that says:
new evidence of innocence must be
produced within 30 days of sentenc-
ing. Be ne 1 see
Mr. Drew's case has been reject-
ed by the USS. Supreme Court, but a
federal fudge in Houston 1s consid.’'
ering claims that Mr. Drew’s sen-
tencing judge subjected him to crv. -
el and unusual punishment by
Signing his death Warrant with a
/“happy face.”
Mr. Drew's attornevs also are
Seeking to force the state to grant
him a hearing on the new evidence.
That action follows the pattern of a
highly publicized appeal by death
row inmate Gary Graham.
The 3rd Court of Appeals is con-
sidering- whether to order such a
hearing in Mr. Graham's case. sags
The new evidence in Mr. Drew's
case involves statements by anoth-
er man involved in the same crime...
Ernest Puralewski, who pleaded
guilty and received a 60-year prison
Sentence, now claims Mr. Drew did
‘not take part in the slaying: of 17.
year-old Jeffrey Mays of Alabama.
But Mr. Puralewski made the
statement 101 days after Mr. Drew's
sentencing... .
The two men were convicted of
“stabbing Mr. Mays in Houston in
1983. The teen-ager had run away
from home and picked up the men
“hitchhiking...
A witness said he watched
through his rear-view mirror as the
men killed the teen alonoxide the
k to save condemned Texas inmate
highway. Mr. Drew Says that he was
there but did not stab the teen-ager,
and that he was too drunk to pre-
vent the killing.
Both of Vermont's US. senators
and several state legislators have
written letters to the Texas Board of
Pardons and Paroles asking that
Mr. Drew's sentence be commuted,
said Margaret Justus, a spokeswom-
#n for Texas Gov. Ann Richards. .
** “Mr. Christiansen says he has be-
gun gathering backers in the Ver-
mont Senate and House of Repre-
sentatives for a resolution that Mr.
Christiansen says would encourage
a tourism boycott and prohibit most
state employees from traveling to
Texas on business. -
' At a news conference, Ms. Rich-
ards said she did not believe a boy-
cott of Texas would happen.
Michael Kargos, a spokesman for
. the Texas Department of Com-
merce, said Vermont accounted for
an estimated .001 percent of the 151
million travelers to Texas last vear.
Tex: 9, 1993
S MORNING NEWS, Dallas, 1exas October %,
qteqoy Swayq.
TEXAS /J-/3-9 3
pein — To stem theft of
registration tags, the state Dept.
of Transportation in January will YY
begin issuing new vehicle registra-
tion stickers for placement inside.
windshields. ... A state judge re-" .
fused to block Thursday’s sched-&/ ~
uled execution of Robert Drew, 2
convicted in the ‘83 murder of Jef-
_ frey Mays, 17. F nme 14.2
~9 Execution blocked | ,
XX HUNTSVILLE, Texas — A
\ state appeals court blocked the
execution of a drifter Wednesday
R\ about six hours before he faced —
gy lethal injection for stab- .
bing a man during a1 4 Gi
Papi sir vie
7~ die ear: the Feb.
1983, slaying of 17-year-old wef mi
\) frey Mays, who was stabbed in
\Ahe heart, beaten and hadhis 1
throat slashed. hn
Q _ Acting on an appeal from = ~~
S Doar a noes Reis
in ‘
U blocked the execution go it can
\b review a judge's denial of a hear
ing on Drew’s claims of inno-
cence. ;
~~ -
Appeals court CLE,
blocks executidn 43
HUNTSVILLE, Texas — A
Texas appeals court Wednesday
blocked the execution of a:Ver- ' ;
mont man about six hours:
before he was to be put to death
for robbing and fatally stabbing
an Alabama man more than 10
yeeee eae: Maite
obert Drew, 34, of Wes
Pawlet, Vt., faced lethal inj
tion early Thursday for the Feb.
22, 1983 slaying of Jeffrey Mays,
Hf of nnd . Tes-
imony showed Mays w
stabbed in . the heartiand his
throat was slashed before his
body was dumped in a ditch off
Interstate 10 east of Houston.
Acting on an appeal filed by
Drew’s attorneys, the 3rd Court,
of Appeals in Austin issued an
order barring the execution.
= S.-i
—— a
Court delays
execution
Associated Press
HUNTSVILLE, Texas — A
state appeals court blocked the
execution of a drifter Wednesday
about six hours before he faced
lethal injection for fatally stab-
bing a man during a robbery.
Robert Drew was scheduled to
die early today for the Feb. 22, |.
1983, slaying of 17-year-old Jef-
frey Mays, who was stabbed in
the heart, beaten and had his
throat slashed.
Mays’ body was dumped in a
ditch off an interstate east of
Houston.
Acting on an appeal from
Drew’s attorneys, the state 3rd
Court of Appeals in Austin
blocked the execution so it can
review a judge’s denial of a hear-
ing on Drew’s claims of inno-
' cence.
Drew, a 34-year-old Vermont
drifter, was hitchhiking when
Mays picked him up in Louisi-
ana. He said he saw another man
traveling with them kill Mays. |!
Drew maintains he was too |
G42) KEV CL -
scared and too drunk to prevent
the murder.
The other man, Ernest Pura-
lewski, pleaded guilty to murder
and is serving a 60-year prison
term. At first he named Drew as
a participant, but now he denies
Drew was involved.
Prosecutors don’t believe Pura- |
lewski. They still say Drew kid-
napped, beat and knifed Mays,
and licked the blood off his hands.
“7 pars, “93
Texas death-row
inmate’s life spared
HOUSTON — A Texas appellate |
court earl terd i an e. Vu F
courteatyyenernymorang 2m Diego PA
hours before he was scheduled to (A Un 10h [iP . Ps
isis
Vegas
LAS
Friday, October 15, 1993
be executed by lethal injection for
the 1983 killing of a teen-ager who
caret him upasahitchhiker. —-—_injunction, just a few hours before
A three-judge panel of the 3rd Drew was to be put to death at
District Court had issued a tempo- dawn. He had already eaten his last
rary injunction barring the execu- _ ‘meal of two cheeseburgers at the
tion until it could consider the mer- | state prison where death-row in-
its of Drew’s appeal. Yesterday | mates are housed, near Huntsville,
morning, the Texas Court of Crimi- | about 75 mi
’ miles north of Ho ;
nal Appeals refused to overturn the New York Times Rens Satoloe
os mmapeeener
By RAD SALLEE G Y¢
Houston Chronicle £9, oe | -
The U.S. Supreme Court declined
Monday to hear the death “penalty
appeal of a hitchhiker from Vermont
who contends that a Houston judge
violated his rights by drawing a
: “happy face” on the death warrant.
. The high court’s refusal put an end
to Robert Drew’s second round of ©
-federal appeals.
. However, a parallel state effort
remains before the 3rd Texas Court
‘of Appeals in Austin, where Drew's
touston Chronicle
ustices refuse
A YULS., (ove k :
Tuesday, March 1, 1994
case is paired with that of Houston
death row inmate Gary Graham.
That appeal seeks to have the civil
court system compel the state parole
board to hold a ¢rial-like hearing,
with witnesses, on the ,convicted”
killers’ requests for clemency.
Drew’s conviction in Houston in
the 1983 stabbing death of Alabaman
_ Jeffrey Mays, 17, was largely based
on testimony by fellow hitchhiker
Ernest Puralewski, who got a life
sentence.
The two hitched a ride with Mays
in exchange for gasoline money. The
ride ended in Harris County with
case
Ge ry
i
J Fal
Mays being stabbed to death. Pura-\
lewski recanted his testimony about .
Drew’s role 101 days after Drew was +
sentenced to death.
Under a Texas law, which out-
raged Vermont officials, new evi-
dence must be presented within 30
days of sentencing. ©.
Drew’s case became notorious af-
ter his defense attorney objected toa
“happy face” that then-state District |
Judge Charles Hearn drew on his
July 15, 1992, order setting Drew’s
execution date.
Hearn said that for years he has —
signed his name along with a smiling
j
4
;
4
}
|
“T.
~
~~
vay
SR OS ee : :
Pg regia ngrotee taper eth Sey re Em .
ease ems or iw
. face to express his Christian ‘faith.
“s. The Texas Court of Criminal Ap-
peals has held that the face, which ,,
appeared on documents in. the case,
. ag far\back as‘1988 but went unno-
ticed, did not violate Drew’s consti-. ,,
_- tutional rights. Now the ‘federal
. courts have agreed.
_ Appellate prosecutor Roe Wilson:
' recited the case’s complicated legal :
> history: First the trial, then direct
‘ appeal through the state courts, then
a writ of habeas corpus through both,
- the state and federal systems, thena .
second writ (raising the happy face
issue) through both systems, then a.
Wee GOL |
. Kuby of New.
Pan
‘request fora lemency, hearing (de-
nied 215-0-by: the. parole. board), and -
such a hearing. |
Nor.is this the defense’s last shot.
Drew’s appellate’ attorney, Ronald”
York City, said that if
the pending'appeal fails and Hearn
signs another death warrant with the »
face, he will file a federal civil rights
lawsuit to void it on grounds that the
symbol violates. the constitutional
ban against establishment of reli-.
pln en a) gos
” Kuby acknowledged that if’ the
finally a ciyil lawsuit in Austin (now i
pending ‘an appellate ruling) to force
courts agreed, Hearn could simply
sign another execution order without
the face. BI Lay fh.
“That would be the end of Mr.
Drew,” Kuby said, “but Mr. Hearn
has indicated he was not going to
change his'signature.”
Hearn said the smiling face is part
of his signature and he still signs his
name with it. 4
“I don’t contemplate that (whether
to:drop the face) because it’s my
signature,” Hearn said, “That's like
asking someone if they are going to
. stop signing their name.”
(
o’
Woy
Ry
Mareatiig f y-
CS 4
A22 . THURSDAY, JULY 29, 1993 aan :
NER
4a)
- Inmate’s Lawyer Frowns Upon
‘Happy Face’ on Death Warrant
Houston —A lawyer for a Death Row inmate is complaining
because a judge sent the condemned man an execution order —
signed with a little “happy face” flourish. ; ‘abt
“It’s like someone laughing at a funeral,” said William Kunstler,
attorney for Robert Nelson Drew, who was convicted of killing a
hitchhiker in 1983,
hopes of brightening someone’s day. ee AE
The same happy face flourish caused a stir last year when Hearn
used it on the bottom of a letter to other judges announcing a peer’s
death. i
“As far as I’m concerned, it’s a good signature. You've got to bea
happy person. We’ve got too many people. . . walking around
with grim looks on their faces,” Hearn said. x: iy
Kunstler said the signature shows the prevailing callousness
regarding the death penalty.
“Everybody has become so jaded. . . that now we greet it more
with smiles than tears,” he Said. “Maybe Hearn’s done one good
thing here: Maybe he’s exposed the feeling that these things have
become routine.”
Kunstler, who maintains Drew’s innocence, said he plans to
Study whether the happy face can be used to get a new trial. Hearn
was the trial judge in the case.
— Associated Press
, Houston Chronicle Friday, June 10, 1988
yO
1?
r
By, BILL COULTER’ =
|: Houston Chronicle - :
“a companion, Ernest’ J, Puralewski
: of. :Chicago, stabbed Mays in’ the
heant, slashed his throat nat threw
‘his body into ‘a ditch in‘east Harris
+ » County." Bene ONS
Drew's attorney, Brad Yock, said
by ‘Puralewski, convicted ‘separately
.and givena 60-year prison sentence,
‘has since sworn ..he alone killed
flays.
- Yock said a passenger in Mays’
pre Bee Landrum, told officers he
did not see who;killed Mays. Lan-
drum,. however, indicated at Drew’ s
SA Ventas man Soheduted to die in
f ‘Texas next Thursday failed to win a :
‘hearing to re-examine the evidence *
‘used to convict him of capital m
Eder inthe 1983 knifing of an Alabama “ a
-ager who-had given him a ride. .
er Robert Drew, 29, said to be. the.
only, Vermont.native on death row in: .
isi.country, | ‘told state District :
Judge-Charles Hearn that the state's
‘key witness perjured himself, prose- -
cutors withheld evidence in his favor’ -
and a. convicted co-defendant swore»
ter che. alone. committed. the mur-.,
der. me
bi: Hearn said any failed to prove
sthe: need ‘for: the new hearing, ‘but
yordered the court reporter and Har-
jis: County district attorney's office
Ho immediately prepare a transcript \.
of f ‘Thursday’ s proceeding and make _
‘a copy of a surprise tape recording |
;. available ‘so’ Drew's :attorneys can
: quickly take his case to the Texas
| Court of Criminal - Appeals, which |
t canorder a:new trial.
: Drew was convicted of killing Jets PA
‘frey, Leon Mays, 17, of Birmingham, :
:Ala., ‘who -had given Drew a lift’, . trial.
toward Houston from Lake Charles, “The fact there are inconsistencies
.La. in a witness's testimony does not
“- Trial evidence indicated Drew and establish that the testimony is per-
_ Prosecutors played a tape record-
ing-in Hearn’s chambers investiga-
tors had taken from: Landrum
shortly after the slaying. According
to Yock, Landrum said on the.tape he
had his eyes” “covered during the
attack on Mays.
But’ prosecutor ’ Caprice’ Cosper
said information on the tape, whose
existence she said she only learned
_ , about Wednesday, is consistent with
. Sire oa s testimony at Drew's
PTB SS cit
‘trial’ that he had-seen: the’ knife.
“attack and that Drew was involved.
eath row inmate fails to get
new hearing
jured or that the state fatement
_ presented a perjureq “statement,”
‘ Cosper said.”
_ "These are more than netted. "
*cies,” Yock said. “His (Landrum’ Se
testimony during the trial is not-
, merely inconsistent with his previ-””
sous .statements, it. _is «Simply. not,
trues. Tide te! Patol fai
n
Yock said the district attorney's.
_ Office was obligated at the time of:
Dtew’ s trial to reveal it had the tape. :
*: Gov. Madeleine M. Kunin of Ver- ,
, tient, which has not had an execu-
. tion for capital murder in more than ©
.. 30 years, has asked Gov. Bill Clem-
ents to review Drew's case. ©
& Kunin has taken a personal inter- ;
_ est because Drew is the only native *
.-Vermonter in the country on death
« Tow, Said her press spokesman, Louis
_ Berney.
: “His case has generated ciate a bit
of attention up here,” Berney said.
“There was quite a bit of public
response expressed .because of the
state of Texas’ intention to execute i.
him.”
. Berney said Clements’ general
-counse] office has told Kunin it is
looking at the case closely.
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—
ppy face’ moc.
justice, killer says
By MICHAEL GRACZYK
Associated Press
tion .. . is bringing a circus atmos-
phere to an execution.”
Q-1u-73
Houston Chronicle
HUNTSVILLE — A condemned
killer whose execution order was
signed by a judge who used a “happy
as part of his signature said
esday the judge’s artwork cre-
aves an unnecessary circus atmos-
phere for his scheduled death.
. “He's laughing at the fact they’re
going to execute me,” Robert Drew,
34, said of state District Judge | *- 5
Charles J. Hearn, whose sweeping Ps ryt
Signature includes the scribble of a ;
smiley face. “He's making a mock-
ery of justice. Doodling and scrib-
bling has no place in the judicial
system. He's not supposed to add
happy faces to court documents. It's
uncalled for and unnecessary.”
The signature on Drew’s death
warrant, which set Oct. 14 as the
date for his execution by
was made in July. Drew’s
have gone to court to get
thrown out because of the Signature.
Drew’s first comments on
came: Wednesday in an interview.
“The smile is a symbol of happi-
ness,” Drew said. “It's like he’s Say-
ing: “Have a happy death.’
“Every time I see somebody smile,
I think about it.”
Hearn, 62, who is retired but stil]
handles Harris County cases as a
visiting judge, has insisted the inclu-
sion af the smiley face in his signa-
ture is meant as a symbol of his faith
is something he's always
used and has no plans to alter it.
“There's no way this is the act ofa
Christizin,” Drew-said.
He's supposed to take
ously. The happy face with an execu-
face”
Wedn
in God,
Houston Chronicle
Thursday. Sept. 16, 1993
inup
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QUINTANA
Drew, from West Paylet, Vt., is
facing execution for the 1983 Stab-
bing death of Jeffrey Mays, 17, of
Birmingham, Ala. who had given
hitchhiker Drew
a lift toward
Houston from
Lake Charles,
. Drew said
he was headed
a7 from Florida
“| to. Oklahoma
through Texas
od | to take a car-
‘i pentry job with
an uncle.
“I'm a real-
ist,” Drew said.
“There is a Possibility of my death
for the simple reason the courts
refuse to hear my evidence. And then
you have a judge laughing.”
Drew contends he is innocent of
the Mays killing and blames it on a
companion, Ernest Puralewski, who
is serving a 60-year prison term
after pleading guilty to murder. Pur-
alewski, originally charged with
Capital murder, has recanted his
testimony that named Drew as a
participant in the slaying and Says he
alone did it.
Under Texas law, however, such
new evidence of innocence would
have to be produced within 30 days of
conviction. Puralewski's retraction
came 101 days later, Drew said.
Prosecutors have minimized the
retraction, noting it came after Pur-
alewski himself no longer was sub-
ject to the death penalty.
“People who don't have the facts
are going to say that,” Drew said
injection,
attorneys
the date
the flap
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3§ fails to rule
Appeals verdict not
at, expected until later
3
oO By KATHY FAIR
>= ~ Houston Chronicle
__ HUNTSVILLE — Convicted murderer
Robert Drew escaped the executioner’s nee-
dle Thursday after the state’s highest crimi-
nal appeals court failed to determine if
action by another court
blocking the execution
Should be allowed to.
stand
State’s attorneys said
the Texas Court of
Criminal Appeals will :
likely not determine be- [ag
fore Monday whether |
Robert Drew should be |’
spared or executed. The |
ermont man was con-
victed in the 1983 slay-
ing-of an Alabama man Drew
near Houston.
A three-judge panel of the 3rd Court of
Appeals in Austin Wednesday issued an
injunction in the case, Saying it wanted time
to consider arguments presented by Drew’s
defense attorneys. But state prosecutors
challenged the Austin court’s jurisdiction in
the case.
Drew's case has drawn national attention |
as Vermont lawmakers and ‘others: have :
sharply criticized Texas officials for failing
to examine “new evidence” relating to the
murder. They cite the recantation of prose-
tion witness alewski, who is
serving a 60-year sentence as Drew's accom-
plice. - _ .
However, Rick Wetzel, administrator for
the Texas Court of Criminal Appeals, said
the high court in 1987 considered Puralews-
ki’s claim that he was the sole killer and
found it “not credible.”
* The panel of the 3rd Court of Appeals,
which considers civil and criminal cases,
indicated its temporary restrainin
hal the execution should not be inter-
pre mean y would be continued
after judges fully considered the case.
Harris County District Attorney John B.
Holmes Jr. — whose office prosecuted Drew
— Said the court’s failure to tell the 3rd |
Court of Appeals it had no authority to block
the execution thrusts the state into “a real
constitutional crisis.”
“Our position is that the 3rd Court of
Appeals stay was unlawful because it ille-
A Texas County Ties Florida’
In Sending Prisoners to Death
Special to The New York Times - ment of counsel, in a variety of;
HOUSTON, Aug. 6 — When Robert, Ways.” :
Drew was executed in Texas on Tues-| | Mr. Burr cited the absence of a:
tinction of having sent more people to; Means a less experienced and vigor-'
ous defense because court-appointed
lawyers are paid modest fees. That
conclusion was supported by an inde- .
pendent report commissioned by the .
state bar association, which stated’
‘that ‘“‘the inadequacy of counsel at
trial reverberates” through the ap-.
pellate process.
death than any state except Florida. |
Florida has carried out 33 execu- |
tions since they resumed there in*
1979. Harris County, most of which is '
the City of Houston, tied that number '
with Mr. Drew’s death. More than 10:
percent of the nation’s 249 executions
since 1976 resulted from convictions |
here.
Texas leads the nation with 386:
inmates on death row, and more than:
a quarter were sent there from Har-
ris County, the state’s most populous. ,
Dallas County, the second most popu- |
lous, has only 31 inmates on death;
row. The 108 from Harris County sur- |
pass the total death row population in |
23 states.
The People Want It |
Texas has long had the death pen-:
alty, and polling shows that support!
for it is very strong here, as it is:
elsewhere in the country. Gov. Ann W.
Richards and her Republican oppo--
nent in November, George W. Bush, ;
have both called for speeding the}
appellate process in capital cases. |
Houston is the fourth-largest city in|;
the nation and the largest in the state. |
“Harris County is so big there are.
plenty of cases that qualify,’ said
Neil McCabe, a professor of criminal
law at South Texas College of Law.
“They can also afford to try capital .
cases that might bankrupt a smaller
county.”
Richard Burr, litigation director
for the federally financed Texas Re-
source Center, which handles appeals
of capital cases, said that while the
phenomenon resulted from a variety
of issues, “we know a major factor
has to do with the system of appoint-—
“In practice, it tends to seek and
reward with appointments those who
don’t make waves,” Mr. Burr said.
Prosecutors’ Power Assailed
‘Death penalty laws are drawn so.
broadly almost any serious murder |
case is eligible for the death penalty, |
and prosecutors are vested with vast
and totally unreviewable discretion,”’
said Stephen Bright, director of the
Southern Center for Human Rights.
The Harris County District Attor-
ney, John B. Holmes Jr., is a blunt and
quotable man who ultimately decides
in which cases the death penaly will
be sought. Mr. Holmes says he per-
sonally favors the death penalty and
is comfortable with it. Voters are too,
having returned Mr. Holmes to office
with comfortable margins since he
was first appointed in 1979.
Mr. Holmes notes that he has never
had a capital case overturned for lack
of evidence.
Critics, often death penalty oppo-
nents, say. he is too willing to seek
capital punishment.
“Forgive me if I don’t consider that |
criticism,’’ Mr. Holmes said, ‘‘but the .
law says if you engage in this kind of |
conduct and the evidence will show
that, and further the evidence shows :
you’re someone who’s a continuing
threat, show me the prosecutor that
doesn’t go for it, and I’ll show you
somebody that’s not doing their job.”
LALS
THE NEW YORK TIMES NATIONAL sunpzsy, AUGUST 7, 1994
DALLAS MoRine. EWS
Associated Press
MONTPELIER, Vt. — Gov. How-
ard Dean will not decide until next
week whether he will ask Texas
Gov. Ann Richards to look into the
case of Robert Drew, the Vermonter
awaiting execution on Texas’ death
row.
Dean spokesman Glenn Ger-
shaneck said Thursday that there
was nothing to be done until after
Nov. 25, when the US. Supreme
Court is scheduled to hear Mr.
Drew's case. .
Mr. Drew, said to be the only
Vermonter awaiting execution any-
where, is scheduled to die Dec. 4 for
the 1983 murder of an Alabama
teen-ager who had picked up Mr.
Drew and a companion when they
were hitchhiking.
Mr. Drew's attorneys are appeal-
ing. They argue that a Texas law Is
unconstitutional because it pre-
vented Mr. Drew from introducing
new evidence that he contends
v
| Fel. Ito Gz
Richards’ aid may be sought in death row case
“In Texas, the governor cannot ee OTE pardon
someone. The governor can only give a 30-day
reprieve and ask the parole board (to do it).”
— Glenn Gershaneck,
spokesman for Vermont governor
proves his innocence. Two similar
cases already are pending before
‘the high court.
Mr. Drew maintains that his
traveling companion, Ernest
Puralewski, did the killing. Mr.
Puralewski, who is serving a 60-
year sentence for his role in the
murder, has said he acted alone.
Mr. Puralewski changed his
story after the time limit to intro-
duce new evidence had expired.
Texas law says new evidence must
be introduced within 30 days.
“What we are hoping (the Su-
preme Court will) do is grant a stay
of execution and hold Drew's case
pending resolution. of the other
cases,” said Mr. Drew’s New York at-
torney Ronald Kuby.
Supporters ‘of Mr. Drew have
been calling the Vermont gover
nor's office to ask that Mr. Dean in-
tercede with Ms. Richards on Mr.
Drew's behalf.
“We have been in touch with the
Texas governor's office,” Mr. Ger-
shaneck said, “Their counsel has
told our governor's counsel that the
clemency appeal would not be ac-
cepted until after all the appeal
routes had been exhausted.”
That will occur Wednesday,
when the Supreme Court will look
at Mr. Drew's case. Once the high
court looks at the case, Ms. Richards
is limited in what she can do, Mr.
Gershaneck said.
“In Texas, the governor cannot
unilaterally pardon someone,” he
said. “The governor can only give a
30-day reprieve and ask the parole
board” to do it.
Mr. Gershaneck said it was his,
understanding that the Texas gov- |
ernor had made such a request of
the parole board only once and that |
the request was turned down.
An organization called the Rob-
ert Drew Fund has been helping to
defray the costs of Mr. Drew’s de-
fense. It also has provided him with .
personal items that he cannot af.
ford.
George Longenecker of Marsh-
field is the coordinator of the Drew
fund. He wants Mr. Drew to have @
new trial. .
|
a
DREW v. COLLINS
415
Cite as 964 F.2d 411 (Sth Cir. 1992)
Cause (CPC). The district court granted
CPC on July 31, 1991.
If. DISCUSSION
Drew argues that he should receive ha-
beas relief because (1) the jury’s considera-
tion of the possibility of parole violated his
rights under the Sixth, Eighth, and Four-
teenth Amendments to the Constitution; (2)
the wrongful dismissal of two prospective
jurors violated his Sixth and Fourteenth
Amendment rights; (3) prosecutorial mis-
conduct during trial violated his Fourteenth
Amendment rights; (4) the application of
the Texas capital sentencing statute in his
case unconstitutionally prevented the jury
from giving full mitigating effect to the
evidence of his troubled childhood, his
drinking problem, and the fact that he had
consumed drugs and alechol at the time of
the crime; (5) Texas’ thirty-day limit for
new trial motions precluded the considera-
tion of newly discovered evidence showing
Drew’s innocence in violation of his Eighth
and Fourteenth Amendment rights; and (6)
he received ineffective ‘assistance of coun-
sel. We address each of these claims sepa-
rately below. | . as
A. Jury’s Consideration of the Possibili-
ty of Parole
During the jury’s deliberations at the
punishment phase of trial, Drew contends,
jurors speculated that a life sentence would
probably result in parole for Drew and
agreed that Drew should never be paroled.
Drew submitted an affidavit to the state
habeas court in support of this claim. The
affidavit, executed by Peter Fleury, a pri-
vate investigator assisting Drew’s attor-
ney, related the content of a telephone con-
versation Fleury had with Alvin Eisenberg,
the foreman of the jury. Fleury averred
that Eisenberg told him that the jury felt
that Drew should never be paroled and
agreed that they did not want Drew ‘“‘roam-
ing our streets.”
Drew argues that his sentence violated
his Sixth, Eighth, and Fourteenth Amend-
ment rights because jurors discussed
whether Drew would be eligible for parole
should they sentence him to life imprison-
ment. Drew asserts that had the jurors
not made this impermissible consideration,
they would have returned a sentence of life
imprisonment rather than death.
[1,2] We directly considered whether a
Texas jury improperly considered parole
law during capital sentencing deliberations
in De La Rosa v. Texas, 743 F.2d 299 (5th
Cir.1984), cert, denied, 470 U.S. 1065, 105
S.Ct. 1781, 84 L.Ed.2d 840 (1985). We indi-
cated that while the mention of parole law
amounts to misconduct, ‘{o]nly jury mis-
conduct that deprives the defendant of a
fair and impartial trial warrants granting
of a new trial.” Jd. at 306, cited in Mon-
roe v. Collins, 951 F.2d 49, 52 (5th Cir.
1992). In Monroe, we relied on California
v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77
L.Ed.2d 1171 (1988), to hold that,
[bjecause it is not repugnant to the fed-
eral constitution for a state to accurately
instruct the jury on parole procedures, it
follows that a state trial juror’s accurate
comments about parole law do not offend
the federal constitutional rights of the
defendant.
Id. at 58. Furthermore,
we have distinguished between jury pan-
els tainted by outside influence, such as
publicity or direct appeals from third par-
ties, and panels on which one or more of
the jurors themselves have violated an
instruction of the court. In the former
case, “a presumption of prejudice arises
when the outside influence is brought to
the attention of the trial court, and it is
incumbent upon the Government to rebut
that presumption at a hearing.”
United States v. Webster, 750 F.2d 307,
388 (5th Cir.1984) (citations omitted) (quot-
ing United States v. Chiantese, 582 F.2d
974, 978 (5th Cir.1978), cert. denied, 441
U.S. 922, 99 S.Ct. 2080, 60 L.Ed.2d 395
(1979)), cert. denied, 471 U.S. 1106, 105
S.Ct. 2840, 85 L.Ed.2d 855 (1985). In the
latter case, however, no such presumption
arises, and the defendant must demon-
strate that jury misconduct prejudiced his
1) agent Torrez did not
-Galvez that he was
(2) Encarnacion-Galvez
nout’ Ramirez, who had
nearnacion—Galvez also
1 Torrez’s identification
nt officer was not by
stablish coercion, it con-
nacion—Galvez’s belief
se to leave.
's determination that a
ot occurred is a finding
‘eversal only for clear
tes v. Valdiosera—Go-
3, 1098, n. 1 (5th Cir.
identifying themselves
ents, the agents made
ity. They did not stop
s vehicle, but ap-
er Encarnacion—Galvez
: agents did not park
+h a way that would
Galvez’s path if he
ik away, The agents
scion—“*"vez and Ra-
on erification of
ej ide that the
. agents and Encarna-
no coercion or deten-
trict court’s determina-
ecurred was not clear-
lusion
+t court did not err in
srnacion-Galvez’s mo-
dictment or his motion
,FFIRM the district
BER System)
the 4denial of Encarna-
.O suppress on this basis,
district court's alternative
motion.
row exeated 2-98 Tefps th
DREW v. COLLINS 411
Cite as 964 F.2d 411 (5th Cir. 1992)
Robert Nelson DREW, Petitioner-
~ Appellant,
v.
James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent—Appellee.
No. 91-2744.
United States Court of Appeals,
Fifth Circuit.
June 18, 1992.
Defendant sought habeas corpus relief
after the Texas Court of Criminal Appeals,
743 S.W.2d 207, affirmed his conviction for
capital murder. The United States District
Court for the Southern District of Texas,
Melinda Harmon, J., denied petition for
writ of habeas corpus, and appeal was tak-
en. The Court of Appeals, King, Circuit
Judge, held that: (1) jury did not improper-
ly consider parole law during capital sen-
tencing deliberation; (2) any improprieties
in prosecutor’s comments did not deny de-
fendant’s right to due process; and (3) Tex-
as sentencing statute did not preclude jury
from considering and giving effect to rele-
vant mitigating evidence.
Affirmed.
1. Criminal Law ¢925(1)
While mention of parole law in jury
deliberations amounts to misconduct, only
jury misconduct which deprives defendant
of fair and impartial trial warrants grant-
ing new trial. U.S.C.A. Const.Amends. 6,
8, 14.
2. Criminal Law @1163(6)
Absent allegations of outside influence
on jury, there is no presumption of preju-
dice created by showing of jury miscon-
duct. U.S.C.A. Const.Amends. 6, 8, 14.
3. Habeas Corpus ¢496
Private investigator’s affidavit that he
was told by jury foreman that jury con-
sidered whether defendant would be pa-
roled in imposing death penalty in capital
murder prosecution was not proof of preju-
dicial jury misconduct required to show
that sentence violated defendant’s constitu-
tional rights where affidavit executed by
jury foreman stated that jury did not con-
sider whether defendant might one day re-
ceive parole if he received life sentence.
U.S.C.A. Const.Amends. 6, 8, 14.
4. Jury $105(1)
In capital murder prosecution, prospec-
tive juror may not be excluded for cause
unless juror’s views would prevent or sub-
stantially impair performance of his duties
as juror in accordance with his instructions
and oath.
5. Jury 107
Prospective juror in capital murder
prosecution could be excused for cause
where juror stated during voir dire that he
would apply standard higher than what he
understood as reasonable doubt standard in
light of capital nature of case.
6. Jury 107
Prospective juror in capital murder
prosecution could be excused for cause
where juror indicated that he would find
that state had proven probability that de-
fendant would commit future crimes only if
evidence convinced him that defendant was
likely to murder again rather than showing
probability of criminal acts of violence
which would constitute continuing threat.
7. Criminal Law ¢723(1)
Prosecutor’s request in capital murder
prosecution for swift verdict to avoid “‘in-
sulting victim’s family,” although improp-
er, did not leave unconstitutional taint on
proceeding in light of strength of evidence
pointing toward defendant's = guilt.
U.S.C.A. Const.Amend. 14.
8. Criminal Law ¢717
Prosecutor’s argument in capital mur-
der prosecution that there was an ongoing
robbery, from which jury could infer that
defendant killed victim in course of commit-
ting robbery, did not misstate law of capi-
tal murder by suggesting that jury could
convict for capital murder if it found that
defendant robbed someone other than vic-
tim. U.S.C.A. Const.Amend. 14.
y witness and any
nt value defendant
pm minor inconsist-
and oral statement
le probability that
would have been
bd been disclosed to
tatute did not pre-
urder prosecution
d giving effect to
prning defendant’s
ere drinking prob-
at time crime was
did not strike blow
cat that he had
a. before be-
USCA. Const.
we eegy vl
oad
padline on motions
act sonsideration
povered evidence in
ne d on ac-
‘eai_.. .estimony
od muftler, where
Appeais made spe-
evidence: support-
br new trial; Court
le finding that
bar to untimely
dered factual alle-
ecantation was in-
y presented at tri-
ends. 8, 14; Ver-
art. 87.071(b\(1)
nled).
1 .13(1)
assistance of coun-
ome presumption
os, challenged ac-
sound trial strate-
onable probability
bnal errors, result
e been different.
pe ?
1.13(7)
psecution, claim of
colinsel requires
tonal = robability
ee,
DREW v. COLLINS 413
Cite as 964 F.2d 411 (Sth Cir. 1992)
that, absent counsel’s errors, sentencer
would have to have concluded that balance
of aggravating and mitigating circum-
stances did not warrant death. U.S.C.A.
Const.Amend. 6.
18. Criminal Law ¢641.13(6)
Evidence showed that defendant either
failed to inform counsel of existence of
witnesses or personally contacted witness-
es but witnesses refused to testify so that
trial counsel in capital murder prosecution
was not ineffective for failing to interview
and subpoena those witnesses. U.S.C.A.
Const.Amend. 6.
19. Habeas Conga enris
State court does not have to conduct
live evidentiary hearing in order to be enti-
tled to presumption that findings .made in
course of deciding ineffective assistance of
counsel ‘claim are subject to deference re-
quirement; state court could evaluate inef-
fective assistance of counsel claim based on
affidavits of petitioner and attorney. 28
U.S.C.A. § 2254(d); U.S.C.A. Const.Amend.
6. * “ 4 4 : ‘ es
20. Criminal Law ¢°641.13(5)
~ Counsel’s failure to request psychiatric
interview in capital murder prosecution
was not ineffective assistance of counsel in
light of showing that counsel made reason-
able inquiries into mental state and wheth-
er defendant had past psychological prob-
lems or mental illnesses, including whether
he had ever been admitted to mental hospi-
tal or drug or alcohol rehabilitation center.
21. Criminal Law ¢~641.13(2)
Decision not to object to closing argu-
ment was matter of trial strategy in capital
murder prosecution and was not proof of
ineffective assistance of counsel. U.S.C.A.
Const.Amend. 6.
22. Criminal Law ¢641.13(6)
Evidence showed that witness would
have invoked Fifth Amendment if he had
been called to testify at defendant’s capital
murder prosecution, and, thus, counsel’s
failure to obtain testimony of witness did
not deprive defendant of effective assist-
ance of counsel. U.S.C.A. Const.Amends.
5, 6.
William M. Kunstler and Ronald L.
Kuby, New York City, for petitioner-appel-
lant.
Stephani A.S. Stelmach, Robert S. Walt,
Asst. Atty. Gen., and Dan Morales, Atty.
Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District
Court for the Southern District of Texas.
Before KING, JOLLY, and
HIGGINBOTHAM, Circuit Judges.
KING, Circuit Judge:
Robert Nelson Drew appeals the district
court’s denial of his petition for a writ of
habeas corpus on several grounds. Find-
ing no error, we affirm the district court’s
denial of the writ.
¢
I. BACKGROUND
The recitation of facts is taken in large
part from the opinion of the Texas Court of
Criminal Appeals. Drew v. State, 743
S.W.2d 207 (Tex.Crim.App. 1987).
In February 1988, seventeen-year-old Jef-
frey Leon Mays, who was not getting along
with his parents, decided to run away from
home. He decided to leave his home in
Praco, Alabama with his high school friend,
Bee Landrum. Both young men had expe-
rienced family conflict because of their dif-
ficulties with aleohol and drugs. They left
Alabama in Landrum’s car with eight dol-
lars, some food, and Landrum’s buck knife.
Mays and Landrum picked up a number
of hitchhikers to obtain gas money. At the
suggestion of one, John Sly, they spent the
night at the Salvation Army in Lafayette,
Louisiana. There they met Drew, who was
in the company of a man named Frank.
Mays and Landrum agreed to give Drew
and Frank a ride to Franklin, Louisiana,
thirty miles east of Lafayette, in exchange
for money and gas. When they arrived in
Franklin, Frank bought pizza and beer for
everyone, filled Landrum’s car with gas,
and gave Drew sixty-five dollars. Mays
and Landrum agreed to take Drew to
Houston in exchange for more gas money.
a a ere ee eo
ime Gere Ee
5 Shoe gisele &
Mays, Landrum, and Drew left Frank in
Franklin and traveled back west toward
Lafayette,
While passing through Lafayette, they
saw John Sly hitchhiking and picked him up
again. Shortly after leaving Lafayette, the
group picked up another hitchhiker, Ernest
Puralewski. Everyone was drinking beer
except Mays, who was driving. At least
one marijuana cigarette was passed
around, which everyone smoked except
Mays. Drew and Puralewski engaged in
conversation. Puralewski stated that he
was on the run and that he had been in
prison with Charles Manson in California.
Mays, apparently unnerved by this con-
versation, told the group he wanted to stop
and make a telephone call to his parents.
After appearing to make the call, he re-
turned to the car and stated that his father
was gravely ill and that he had to return to
Alabama. Drew was upset that Mays was
not going to take him to Houston as
planned. He believed that Mays had lied
about his father in an attempt to abandon
the hitchhikers. He punched Mays in the
face and held a knife to Landrum’s throat.
Drew threatened Landrum and Sly that he
ought to cut their throats. Drew then
wrapped his arm around Mays’ neck and,
holding a knife to his neck, ordered him to
stop the car.
Puralewski, armed with the buck knife
he had borrowed from Landrum earlier,
pulled Sly out of the car and robbed him.
Drew prevented Landrum from leaving the
car, telling him “if you try anything you
are dead.” Drew ordered Landrum to the
front seat and moved Mays to the back
seat. He began to punch Mays in the face
while calling him a punk, accusing him of
lying about the telephone call to his par-
ents, and threatening Mays that he was
going to die. Mays did not resist this at-
tack.
According to Landrum, Puralewski told
Drew to take Mays’ watch and wallet if he
planned to kill him, so that Mays would not
have any identification. Drew took these
items. Mays muttered something to the
effect that Drew “would not get away with
this.” Both Drew and Puralewski decided
414 964 FEDERAL REPORTER, 2d SERIES
to kill Mays. They ordered Landrum to
pull the car to the side of an access road on
I-10, where they pulled Mays out of the
right side of the car. Watching through
the rear-view mirror, Landrum saw Drew
pull Mays’ head back and make a slashing
motion across his throat. Puralewski
stabbed Mays at the same time. The two
men rolled Mays’ body into a ditch and
ordered Landrum to continue the drive to
Houston. After leaving Puralewski at a
har in Houston, Drew and Landrum were
stopped by the police at 8:30 A.M. for
speeding. After an investigation, Drew
was charged with capital murder.
On December 8, 1983, Drew was convict-
ed of capital murder and received a death
sentence. Qn March 7, 1984, Puralewski
pleaded guilty to one count of capital mur-
der and was sentenced to a sixty-year term
of imprisonment. On March 24, 1984,
Drew moved for a new trial based on newly
discovered evidence. This motion was
based in part on an affidavit prepared by
Puralewski, who declared that he acted
alone in killing Mays. The state trial court
denied this motion on April 18, 1984.
On May 9, 1984, Drew moved the Texas
Court of Criminal Appeals for leave to file
for a writ of mandamus or for abatement
and requested a hearing. The Court of
Criminal Appeals denied this motion on
May 14, 1984. On September 30, 1987, the
Court of Criminal Appeals affirmed Drew’s
conviction and sentence. Drew y. State,
743 S.W.2d 207 (Tex.Crim.App.1987).
Drew filed a state habeas petition on
April 28, 1988. The state trial court recom-
mended denial of the writ. The Court of
Criminal Appeals adopted the trial court’s
findings of fact and conclusions of law and
denied the writ. Ex parte Drew, No. 18,-
998-02 (Tex.Crim.App. June 14, 1988). On
the same day the Court of Criminal Ap-
peals denied his petition, Drew filed a mo-
tion for stay of execution and a habeas
petition in federal district court. .
The district court granted Drew a stay of
execution on June 14, 1988. It denied
Drew habeas relief on February 20, 1991.
Drew appealed this decision and requested
the issuance of a Certificate of Probable
Cause (CP
CPC on Ji
Drew ar
beas relief
tion of the
rights und:
teenth Ame
the wrong!
jurors viol:
Amendmen
conduct dw
Amendmen
the Texas «
case uncon
from givin;
evidence o
drinking pr
consumed d
the crime;
new trial m
tion of new.
Drew’s inne
and Fourtee
he received
sel. We adc
rately belov
A. Jury's (
ty of Px
During th
punishment ;
jurors specu!
probably rez
agreed that |
Drew submit
habeas court
affidavit, exe
vate investig
ney, related t
versation Fle:
the foreman
that Eisenber
that Drew s!
agreed that th
ing our stree:
Drew arguc
his Sixth, Eig
ment rights
whether Drew
was in any
3 conviction
23 in Land-
iew of Drew
‘frey. Once
-yus jury ver-
- 2uralewski’s,
acted alone
re, ‘Drew of-
ho claim that
hat he alone
»srew offers as
gtained state-
w asserts that
ski take sole
efore he pled
contends that
cial motions to
the imposition
of *'- Bighth
rij Tex.
40.05 (Vernon
amber 1, 1986).
jal and after a
i] habeas pro-
.ew hearing to
court has once
affidavits and
ngs of fact, and
wroffered affida-
not undermine
We continue to
ie account of the
He consistently
at trial was true
Jeffrey. Drew,
ated how Drew slit
“They[, Drew and
4e also testified that
yski’s arms making
y’s body. In 1988,
ement in which he
| Fe~= given oral,
the of Jeffrey
ndr..... ,.ve another
e averred, ‘I didn't
-e through the rear
, they were stabbing
DREW v. SCOTT 463
Cite as 28 F.3d 460 (5th Cir. 1994)
Second, we still have little confidence in
Puralewski’s postsentencing truth experience
because he had nothing whatsoever to lose
by incriminating himself after receiving a 60-
year sentence. See Drew, 964 F.2d at 421-22
(citing United States v. Vergara, 714 F.2d 21,
23 (5th Cir.1983) (holding that the district
court may deny a new trial, even without an
evidentiary hearing, if it determines that a
previously silent accomplice’s postconviction
willingness to exculpate his codefendant is
not credible or would not be sufficient to
produce a different result)); Drew, 743
3.W.2d at 228 (“It is not unusual for one of
two convicted accomplices to assume the en-
tire fault and thus exculpate his codefendant
by the filing of a recanting affidavit or other
statement.”). Further, Puralewski’s costless
self-incrimination conflicts with several of his
pretrial statements in which he proclaimed
that Drew was the lone murderer.®
Third, the new prisoner affidavit is no
more convincing than the old prisoner affida-
vits regarding Puralewski’s alleged state-
ments that he acted alone. Like Puralew-
ski’s own affidavit, the affidavits of the pris-
oners do not dispute the evidence at trial
that: (1) Drew robbed Sly and threatened to
cut his throat;7 (2) Drew savagely beat Jef-
frey, licked Jeffrey’s blood off of his hands,
and told Jeffrey that he must die for getting
blood on Drew’s leather; (3) Drew and Pura-
lewski pulled Jeffrey out of the car; (4) Drew
and Puralewski discarded Jeffrey's butch-
ered corpse in a roadside ditch; (5) Drew
bragged that he “f—ing enjoyed” murder-
We denied Drew’s Brady claim regarding a
taped interview of Landrum in Drew’s first habe-
as petition. Drew, 964 F.2d at 419-20.
6. On February 24, 1983, Puralewski gave a writ-
ten statement in which he generally corroborated
Landrum’s version of events, except for his con-
tention that Drew was the lone murderer. On
March 16, 1983, Puralewski gave a handwritten
statement in which he again generally corrobo-
rated Landrum’s testimony, but exculpated him-
self by stating the Drew was the lone murderer.
On March 3, 1984, Puralewski wrote a letter to a
prospective female juror in his case in which he
stated, ‘I’m Innocent’! And the guy who did
the Capital Murder(, Drew,] is on Death
Row....”
7. Sly testified to Drew's actions at trial.
8. We find particularly compelling the undisputed
evidence of Drew’s specific expression of intent
ing Jeffrey;* (6) Drew was covered with
blood when he entered the truck stop after
the murder; (7) Drew was left-handed and
the medical examiner determined that the
cuts on Jeffrey’s throat were inflicted by a
left-handed person; and (8) Drew had Jef-
frey’s wallet and was wearing J effrey’s jacket
when he was arrested.? Consequently, even
if the prisoners’ affidavits were true, i.e.,
Puralewski made the statements to the three
prisoners, these statements would not under-
mine our confidence in the jury’s verdict in
the least. Drew, 964 F.2d at 421-22. See
Herrera, — U.S. at ——, 118 S.Ct. at 870
(stating that postconviction affidavits “must
be considered in light of the proof of petition-
er’s guilt at trial ...”).
_ In sum, the overwhelming trial evidence
stands as an unequivocal rejection of Drew's
attempt to unseat the jury’s unanimous ver-
dict of guilt and sentence of death. Thus,
even under the least stringent standard con-
sidered by the Herrera Court, and which the
dissenters argued for, Drew has failed to
demonstrate that he “probably is innocent.”
Herrera, — U.S. at ——-—— 113 S.Ct. at
882-83 (Blackmun, J., dissenting). The crim-
inal justice system has afforded Drew ample,
and seemingly endless, process for making
his unpersuasive postconviction claim. The
Texas Board of Pardons considered and re-
jected Drew’s claim by a 15-0 vote. See id.
at —— - ——, 113 S.Ct. at 868-69 (indicating
that executive clemency provides a “fail safe”
in our criminal justice system). The Texas
habeas courts have twice considered all the
to kill Jeffrey immediately before and immediate-
ly after the murder took place. Thus, Drew’s
claim does not effectively diminish his guilt of
capital murder, which requires a deliberate in-
tent or a reckless indifference mens rea. See
TexCope CrimProc. art. 37.071(b)(1) (Vernon
1981); Sawyer v. Whitley, —- US. ——, -—~
——, 112 S.Ct. 2514, 2519-23, 120 L.Ed.2d 269
(1992); Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987).
9. We note that Drew, neither personally nor
through his counsel, asserted at trial that Pura-
lewski acted alone in murdering Jeffrey. Fur-
thermore, except for his plea of not guilty en-
tered more than ten years ago at arraignment,
the record does not reflect any statement by
Drew that he did not murder Jeffrey.
grant habeas
ce stay of exe-
at there were ©
ch relief might ~~
ite cieeeiieiiccs. if datemeeieemieees ee
t federal habe-
providing for
aabeas claim as
Appeals would
avoid dismissal
made proper
Rules Govern-
U.S.C.A. foll.
.stances, state
fact raised by
fidavits instead
2ari
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to presumption — q
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to make suffi-
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DREW v. SCOTT
461
Cite as 28 F.3d 460 (Sth Cir, 1994)
Dan Morales, Atty. Gen., Reneau Longo-
ria, Bill Zapalac, Asst. Attys. Gen., Austin,
TX, for appellee.
Appeal from the United States District
Court for the Southern District of Texas.
Before GARWOOD, JOLLY and
HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
More than eleven years ago Robert Drew
viciously and sadistically beat and stabbed
Jeffrey Mays to death on February 21, 1983.
Jeffrey was a teenage boy from Alabama who
had run away from home with his high school
friend, Bee Landrum. The boys picked up
John Sly, and later they picked up Robert
Drew and Ernest Puralewski. The group
drove toward Houston, Texas. Suddenly, vi-
olence erupted when Jeffrey decided that he
wanted to turn the car around and go home.
Drew then threatened to cut Sly’s throat, but
instead, he robbed Sly, forced Sly out of the
car, and left him on the road. Drew then
forced Jeffrey into the back seat. Drew
savagely beat Jeffrey, spattering Jeffrey’s
blood on the door, the back seat, and on
Drew’s prized leather jacket. Drew’s hands
were covered in Jeffrey’s blood. Drew licked
Jeffrey’s blood off of his hands and declared
that Jeffrey must die because “nobody gets
blood on me for nothing... .” They stopped
the car, and then Drew and Puralewski
pulled Jeffrey outside. Ignoring Jeffrey’s
pleas for life, Drew and Puralewski repeated-
ly plunged their knives into J effrey; gouging
his chest; puncturing his lung; piercing his
heart. Drew snatched Jeffrey's head back
and slit his throat. Jeffrey's last breath
hissed out of the gash in his lung. Drew and
Puralewski threw Jeffrey’s butchered corpse
in a roadside ditch. As Drew, Puralewski,
and Landrum drove off in the car, Drew
1. The trio went to a truck stop where a cashier
noticed that Drew was covered in blood. After
leaving Puralewski at a bar in Houston later that
evening, Drew and Landrum were stopped for
Speeding. Drew's arrest for capital murder fol-
lowed.
2. Drew also sought clemency from the Board of
Pardons and Paroles, and from the Governor of
Texas on September 16, 1993. The Board, in a
boasted, “I f__ing enjoyed it because it got
blood on my leather.” !
I
In December 1988, a Texas jury convicted
Drew of capital murder and sentenced him to
death. In September 1987, the Texas Court
of Criminal Appeals affirmed Drew’s convic-
tion and sentence. Drew v, State, 743
S.W.2d 207, 214 (Tex.Crim.App.1987).
Drew first filed for habeas relief in 1988.
The Texas courts denied relief. The federal
district court denied relief. Drew asserted a
plethora of claims to this court—including a
factual innocence claim that was rejected
based on the wealth of incriminating testimo-
nial and forensic evidence. After thoroughly
addressing each of Drew’s claims, we held
that every one failed on the merits. Drew v.
Collins, 964 F.2d 411 (5th Cir.1992). The
Supreme Court denied Drew’s petition for
certiorari? Drew v. Collins, US. ,
113 S.Ct. 3044, 125 L.Ed2d 730 (1993).
Drew filed his second round of habeas
petitions in 1993. The Texas courts denied
relief for the second time. The federal dis-
trict court denied relief for the second time.
Before this court, Drew sought to escape
execution on the basis that the state trial
judge’s method of signing court documents,
including drawing a “smiling face” beneath
his signature, insulted Drew’s constitutional
rights. We denied Drew a certificate of
probable cause (“CPC”) because Drew could
have raised that claim in his first habeas
proceeding and, thus, abused the writ under
Rule 9(b) of the Rules Governing Section
2254 Cases. Drew v. Collins, 5 F.3d 93 (5th
Cir.1993). The Supreme Court denied cer-
tiorari. Drew v. Collins, — U.S. —, 114
S.Ct. 1207, 127 L.Ed.2d 555 (1994).
Ever persistent, Drew has filed this third
round of habeas petitions in 1994. Again, the
15-0 vote, denied Drew's request. Further,
Drew filed a civil suit seeking to force the Board
to hold a hearing in 1993. The Texas trial court
denied relief, but the Texas Court of Appeals
enjoined Drew's scheduled October 14, 1993 exe-
cution. On June 15, 1994, the Texas Court of
Criminal appeals held that the Texas Court of
Appeals was without jurisdiction and ordered
that court to vacate its injunction.
DREW, RObert N., wh, ex. TX 1994
460 28 FEDERAL REPORTER, 3d SERIES
Robert DREW, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Depart-
ment of Criminal Justice, Institutional
Division, Respondent-—Appellee.
No. 94-20553.
United States Court of Appeals,
Fifth Circuit.
Aug. 1, 1994.
Following affirmance of murder convic-
tion and death sentence by the Texas Court
of Criminal Appeals, 743 S.W.2d 207, peti-
tioner sought writ of habeas corpus. The
United States District Court, Southern Dis-
trict of Texas, Melinda Harmon, J., denied
petition, and appeal was taken. The Court of
Appeals, 964 F.2d 411, affirmed. Petitioner
filed second application-for habeas corpus
and stay of execution. The District Court
again denied relief, and petitioner again ap-
pealed. The Court of Appeals, 5 F.3d 93,
denied request for certificate of probable
cause, as well as motion for stay of execution.
Subsequently, petitioner again sought habeas
relief which the District Court once again
denied. Petitioner again appealed. The
Court of Appeals, E. Grady Jolly, Circuit
Judge, held that petitioner failed to make
sufficient showing of actual innocence to
avoid dismissal of claim as abuse of writ,
despite alleged “new evidence” consisting of
recently obtained statement of prisoner who
allegedly heard codefendant take sole credit
for victim’s murder before pleading guilty to
that murder.
Application for certificate of probable
cause and motion for stay of execution de-
nied.
1. Habeas Corpus ©7818
Court of Appeals had no jurisdiction to
address merits of petitioner’s appeal from
: district court’s denial of habeas relief unless
Court of Appeals granted certificate of prob-
able cause (CPC), requiring substantial
showing of denial of federal right.
2. Habeas Corpus ©821.1
Court of Appeals would grant habeas
petitioner under death sentence stay of exe-
cution only if he showed that there were
substantial grounds upon which relief might
be granted.
3. Habeas Corpus ¢897
Petitioner’s right to assert federal habe-
as claim was limited by rule providing for
dismissal of previously raised habeas claim as
abuse of writ, though Court of Appeals would
assume that petitioner could avoid dismissal
of his successive claim if he made proper
showing of factual innocence. Rules Govern-
ing § 2254 Cases, 9(b), 28 U.S.C.A. foll.
§ 2254.
4, Habeas Corpus ©742
In appropriate circumstances, state
courts may resolve issues of fact raised by
habeas petitioner based on affidavits instead
of holding live evidentiary hearing.
5. Habeas Corpus ©~768
State court’s findings upon reviewing af-
fidavits and trial evidence in connection with
habeas petition were entitled to presumption
of correctness on federal habeas review.
6. Habeas Corpus ¢897
Habeas petitioner failed to make suffi-
cient showing of actual innocence to avoid
dismissal of successive claim as abuse of writ,
despite alleged “new evidence” consisting of
recently obtained statement of prisoner who
allegedly heard codefendant take sole credit
for victim’s murder before pleading guilty to
that murder; eyewitness’ basic account of
facts, including that petitioner murdered vic-
tim, remained unshaken, codefendant had
nothing to lose by incriminating himself after
receiving sentence, and new prisoner affida-
vit was no more convincing than old prisoner
affidavits, none of which disputed incrimina-
tory trial evidence against petitioner.
Robert C. Owen, Texas Resource Center,
Houston, TX, Ronald M. Kuby, William M.
Kustler, New York City, Michael L. Jackson,
Buffalo, NY, for appellant.
cence
Dan Moral:
ria, Bill Zapa
TX, for appe!
Appeal fro
Court for th
Before GA:
HIGGINBOT
E. GRADY
More than
viciously and
Jeffrey Mays
Jeffrey was a
had run away
friend, Bee I
John Sly, anc
Drew and E)
drove toward
olence erupter
wanted to tur
Drew then th”
instead, he rc
car, and left
forced Jeffre:
savagely beat
blood on the
Drew’s prized
were covered i
Jeffrey’s blooc
that Jeffrey r
blood on me f
the car, and
pulled Jeffre:
pleas for life,
ly plunged the
his chest; pu:
heart. Drew
and slit his
hissed out of
Puralewski th
in a roadside
and Landrum
a 1. The trio we
noticed that L
leaving Purale
evening, Drew
speeding. Dr
lowed.
2. Drew also:s
Pardons and
Texas on Sep
462 28 FEDERAL REPORTER, 3d SERIES
Texas courts denied habeas relief. Again,
the federal district court denied relief.
Again, Drew appeals to this court.
II
In his third trip to this court, Drew once
again asserts that he is factually innocent
despite his failure on this very claim on his
first visit to our court. This claim is unper-
suasive and insufficient to survive our stan-
dard of review for the grant of CPC or a stay
of execution.
[1-3] We have no jurisdiction to address
the merits of Drew’s appeal from the district
court’s denial of habeas relief unless we
grant CPC. Black v. Collins, 962 F.2d 394,
398 (5th Cir.), cert. denied, — US. —,
112 S.Ct. 2988, 119 L.Ed.2d 601 (1992). To
obtain CPC, Drew must make a substantial
showing that he has been denied a federal
right. Barefoot v. Estelle, 463 U.S. 880, 893,
108 S.Ct. 3388, 3394, 77 L.Ed.2d 1090 (1983);
Drew, 5 F.8d at 95. Similarly, we will grant
Drew a stay of execution only if he shows
that there are “substantial grounds upon
which relief might be granted.” Delo v.
Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880,
1881, 109 L.Ed.2d 825 (1990) (quoting Bare-
foot, 468 U.S. at 895, 103 S.Ct. at 3395);
Drew, 5 F.3d at 95. Drew’s right to assert a
federal habeas claim is limited by Rule 9(b),
which provides for dismissal of previously
raised habeas claims as constituting an abuse
of the writ. We will assume that Drew may
avoid dismissal of his successive claim, how-
ever, if he makes a proper showing of factual
innocence. Herrera v. Collins, — U.S.
——, ——, 118 S.Ct. 858, 862, 122 L.Ed.2d
203 (1998). Drew’s reassertion of his stale
factual innocence claim fails to persuade us
3. Alan Burns gave the most recent affidavit. We
note that no satisfactory reason for the belated
timing of this “newly discovered” evidence has
been offered. Further, the affidavit is unclear as
to whether Burns allegedly heard Puralewski’s
statement before Puralewski was convicted and
sentenced.
resolve issues of fact based on affidavits instead
of holding a ‘‘live evidentiary hearing.’ May v.
Collins, 955 F.2d 299, 314-15 (5th Cir.1992).
We hold that the state court’s findings in this
case are entitled to a presumption of correctness.
Id.
4. In appropriate circumstances, state courts may _
that his conviction or his sentence was in any
way constitutionally defective.
Once more, Drew attacks his conviction
based on asserted inconsistencies in Land-
rum’s statements regarding his view of Drew
and Puralewski’s murder of Jeffrey. Once
more, Drew assaults the unanimous jury ver-
dict based on his codefendant’s, Puralewski’s,
postsentencing affidavit that he acted alone
in murdering Jeffrey. Once more, Drew of-
fers the affidavits of prisoners who claim that
they heard Puralewski state that he alone
murdered Jeffrey. This time, Drew offers as
“new evidence” the recently obtained state-
ment of a third prisoner. Drew asserts that
this prisoner heard Puralewski take sole
credit for Jeffrey's murder before he pled
guilty to that murder.’ Drew contends that
the Texas rule requiring new trial motions to
be made within thirty days of the imposition
of sentence has deprived him of his Eighth
and Fourteenth Amendment rights. Tex.
Code Crim.Proc.Ann. art. 40.05 (Vernon
1981) (repealed effective September 1, 1986).
In effect, ten years after his trial and after a
multitude of state and federal habeas pro-
ceedings, Drew requests a new hearing to
redetermine his guilt.
[4-6] The Texas district court has once
again fully reviewed all the affidavits and
trial evidence, has made findings of fact, and
has concluded that Drew’s proffered affida-
vits are not credible and do not undermine
the verdict or sentence. We continue to
agree. First, Landrum’s basic account of the
facts remains unshaken. He consistently
maintains that his testimony at trial was true
and that Drew murdered Jeffrey. Drew,
964 F.2d at 419-20.
5. At trial, Landrum demonstrated how Drew slit
Jeffrey’s throat and testified, “They[, Drew and
-Puralewski,] stabbed him.” He also testified that
he saw Drew’s and Puralewski’s arms making
stabbing motions over Jeffrey's body. In 1988,
Landrum gave a sworn statement in which he
averred that “All statements I have given oral,
written, or recorded about the death of Jeffrey
Mays are true.” In 1993, Landrum gave another
sworn statement in which he averred, “‘I didn’t
turn around but I could see through the rear
view mirror and ... I knew they were stabbing
Jeff.”
Second,
Puralewsk
because h
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(citing Un
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court may
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7. Shy tex
8. We fink
evidence
that entrance to the house had most likely |
been gained by forcing the lock on the
rear door. There were marks on the door
and jamb indicating a pry bar or claw-
hammer had been used to force the
lock.
“*There’s one other thing,”’ the techni-
~ cian added. ‘‘It’s sort of weird and I don’t
know quite what to make of it or whether
it may help or not.”’
“*What’s that?’’ Kersten queried.
The technician related that a glass
globe light fixture in the bedroom where
the man’s body had been found had been
broken. About one-third of the glass was
still in the fixture.
“*But I'll be darned if we can find the
rest of the glass,’’ the technician said.
“*Maybe it was broken earlier,’”’ Ker-
sten suggested.
The technician shook his head nega-
tively. ‘‘There are a few shards on the
floor, but not the big pieces. It was possi-
bly broken during a struggle when the
killer hit it with the instrument he was
using as a bludgeon.”’
Kersten scowled as he considered the
information. He admitted that it was
- weird for anyone to have picked up the
pieces of glass from the broken fixture,
but it did not appear to be of any help in
the investigation at the time.
**We’ve preserved the glass left in the
fixture,”’ the technician said. ‘‘If some-
thing should turn up, we’ll have it as
evidence for a comparison.’’
When the crew finished their work in
the house, Kersten entered with Harris
County medical examiner, Investigator
Harry Hall, and deputies to have the bod-
ies removed and taken to forensic patho-
logists for postmortems.
In the bedroom, one victim was lying
on the floor clad in a nightgown and robe.
The other was sprawled on the bed, face
down, nude. The features of the victims
were so badly battered that their identities
could not be immediately determined.
Later, however, it was discovered that
the woman on the floor was Lou Ann and
the woman on the bed was Ladean.
The severed fingers of the man identi-
fied him‘as Jerry Mullins, who had driv-
en to Houston with Lou Ann.
His body, clad in pajamas, was on the
floor between the bed and television set.
Overturned furniture indicated that he
_ had put up a fierce struggle before being
downed. His head’was a meaty mass of
blood, flesh, bone and hair.
Following a visual examination of the
bodies, Hall told Kersten, ‘‘It will take a
forensic pathologist to say for sure, but
I'd be almost willing to lay odds that they
were beaten with some kind of hammer.
70 Front Page Detective
a ~e
You can see sort of a round impression in.
the wounds like those that would be
‘made with the head of a hammer.’’
Garcia and Shultz finished their check
with the residents of the townhouse com-
plex. They reported they had found only
one person who could recall having seen
or heard anything out of the ordinary
during the night or early morning hours.
The man, who resided two town-
houses down from where the murders
occurred, related that he had been up late
watching television and was undressing
for bed shortly after 1:30 in the morning,
when he heard the'loud sound of a car’s
muffler in the parking area. He had
looked out the window and saw a white
Chevrolet pickup drive away at a high
rate of speed.
He had not seen the driver or the li-
cense of.the vehicle, but was almost cer-
tain that it did not belong to any of the
residents in the complex. The detectives
had questioned the manager and other
residents and learned that no one in the
complex had a white pickup truck.
“*We haven’t been able to locate ev-
' erybody who lives here,’’ Garcia said.
“*It may have been someone visiting, or
it may have been the killer leaving.”’
Since the witness had not seen the
driver or noted the license, the informa-
tion was nothing that could be acted upon
immediately, but it would be kept in
mind.
By late afternoon, the detectives had
completed their work at the townhouse
complex and returned to headquarters.
They had been unable to come up with
anything definite to point to a particular
suspect for the heinous murders.
The next step was to consider a possi-
ble motive.
They agreed it was unlikely that Lou
Ann Anthony or Jerry Mullins could
have been the primary targets of the kill-
er, for only Ladean Hendricks and a rela-
tive were aware that they had planned to
visit. The killer probably had been una-
ware that they were in the house. He
likely had broken in thinking Ladean
would be alone.
Topping the list of possible motives
for the murders was robbery or rape.
**He could be someone who knew that
she lived there alone,’’ Kersten said.
“There are a lot of townhouses out there
and I don’t think he picked that one at
» random.’’
Kersten based his conclusion on the
fact that the killer hadn’t carried a weap-
on, such as a gun or knife.
'_ “I'd guess rape,’’ Shultz said. ‘‘He-
figured he could overpower a woman
living alone.’’
Kersten nodded agreement and sug-
gested it could account for the terrible
bludgeoning the victims had -suffered.
He attempted to reconstruct what Ppossi-
bly had taken place.
**He goes into the house thinking it is
occupied by one woman and goes up to
the bedroom. If he had rape in mind, he
would have to incapacitate one of them
by tying her up or something, but he only
has the hammer.
““One of the women screams. It alerts
Mullins, who is in the adjoining bed-
room. He calls out to ask what is the
trouble.
“The killer hears a male voice and
panics when he realizes that there is a
man in the house. He hits the women
with the hammer.
‘Meanwhile, Mullins gets out of bed.
He’s a stranger in the house and doesn’t
‘want to intrude, so he calls out again,
asking if there is anything wrong.
“The killer goes into Mullins’ room.
There’s a brief struggle before he hits
Mullins in the head with the hammer and
knocks him out. Then. in a fury, he
bashes in the heads of all the victims.
““He takes Mullins’ wallet and the
women’s purses and whatever else is
small and handy and gets out of the
place.’’
Garcia added, ‘‘In the white pickup
truck?”’
“Very possibly,’’ Kersten answered.
“Tomorrow, you guys can go out there
and see if you can locate anybody who
may have seen somebody casing the
place. I’ve-got a hunch that he checked it
out before making his move. And if you
find somebody with a white pickup
truck, that will be a bonus.’’
Shultz said they would check again at
the complex in the morning to locate
someone who may have seen the white
pickup there previously.
Kersten, however, pointed out that
they should not concentrate their entire
efforts on the theory that the motive had
been robbery or rape. It was known that a
male friend of Ladean Hendricks had
committed suicide.
That presented the possibility that
someone may have blamed her for her
friend’s suicide and had come to the
townhouse to seek revenge. ;
““T’ll check on that angle,’’ Kersten
said. *‘I’ll locate persons who knew both
of them and see what they have to say.”’
A preliminary postmortem report was
ready by morning. The pathologists had
determined that neither of the women
had been raped. The fact that Ladean
Hendricks had been found nude on the
bed could have been because she had
undressed anc
on her nightg:
tered.
The report,
eliminate rape
may have bee
carried out hi
All three vi
struck on thei:
ment, which c
as Inv. Hall t
Kersten spe
persons who
dean Hendric!
committed su
The person
certain that L:
tributed to the
been depresse
over personal
Ladean had be
Shortly afte:
contacted Kers
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a neighborhood
o’clock on Thu
The witness
been talking to
most certain st
them.
“We're goi
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cate the guys ar
“Tl meet y
him.
When Kerste
asked if they ha
on the white piv
““Not so far,’
Saturday, most
out there. We
who could recal
who had any gi
who were drivii
ning to think it
ers.
The detective:
of the liquor sto:
dean Hendricks :
years and had re
that she, her sist
murdered.
“It’s a damn
was a real nice |]
Kersten asked
dean being in the
ning. The operat
she had been thc
Cause she appar«
she hadn’t seen {
talked for a time
then she had le:
another man.
““Do you kno
eement and sug-
it for the terrible
ns_had suffered.
struct what possi-
ouse thinking it is
in and goes up to
rape in mind, he
itate one of them
thing, but he only
screams. It alerts
e adjoining bed-
ask what is the
male voice and
»s that there is a
hits the women
s gets out of bed.
ouse and doesn’t
calls out again,
ing wrong.
» Mullins’ room.
e before he hits
i the hammer and
nin a fury, he
all the victims.
wallet and the
vhatever else is
gets out of the
he whitepickup
2rsten answered.
can go out there
te anybody who
vody casing the
nat he checked it
1ove. And if you
a white pickup
nus.”’
id check again at
yming to locate
2 seen the white
»ointed out that
trate their entire
t the motive had
vas known thata
Hendricks had
possibility that
med her for her
aid come to the
nge.
ingle,’’ Kersten
3 who knew both
»y have to say.”’
ortem report was
pathologists had
‘of the women
act that Ladean
ind nude on the
recause she had
SE > Cee
undressed and was getting ready to put
on her nightgown when the intruder en-
tered.
The report, however, did not entirely
eliminate rape as a motive for the women
may have been killed before the intruder
carried out his intent.
All three victims had been repeatedly
struck on their heads with a blunt instru-
ment, which could have been a hammer,
as Inv. Hall had theorized earlier.
Kersten spent the morning contacting
persons who were acquainted with La-
dean Hendricks and her friend who had
committed suicide.
The persons he interviewed were all
certain that Ladean in no way had con-
tributed to the suicide. The friend had
been depressed for a considerable time
over personal and money problems and
Ladean had been supportive, they said.
Shortly after noon, Garcia and Shultz
contacted Kersten to say they had found
a witness living at the townhouse com-
plex who recalled having seen Ladean at ~
a neighborhood liquor store around seven
o’clock on Thursday evening.
The witness related that Ladean had
been talking to two men and he was al-
most certain she had left the store with
them.
‘‘We’re going to the liquor store
now,’’ Shultz said. ‘‘Maybe we can lo-
cate the guys and see what they know.”
“Pll meet you there,’’ Kersten told
him.
When Kersten met the detectives, he
asked if they had come up with anything
on the white pickup truck.
‘‘Not so far,’’ Garcia replied. ‘‘Being
Saturday, most of the people were home
out there. We couldn’t locate anyone
who could recall seeing it previously, or
who had any guests.on Thursday night
who were driving a pickup. I’m begin-
ning to think it could have been the kill-
er’s.”’
The detectives questioned the operator
of the liquor store. He said he knew La-
dean Hendricks as a customer for several
years and had read in the morning paper
that she, her sister and a friend had been
murdered.
“It’s a damn shame,”’ he said. ‘She
was a real nice lady.’’
Kersten asked if he remembered La-
dean being in the store on Thursday eve-
ning. The operator said he recalled that
she had been there and particularly be-
cause she apparently had met someone
she hadn’t seen for sometime. They had
talked for a time while in the store and
then she had left with the person and
another man.
“Do you know the person she met
here?’’ Kersten asked.
The operator nodded affirmatively.
“Running a liquor store is sort of like
having a barber shop,”’ he said. ‘‘You try
to know and get friendly with your cus-
tomers so that they will come back.”’
He said that he recognized the man
who had apparently known Ladean, but
not the man who was with him. He gave
the detectives a name and said he was
almost certain that he lived in a nearby
apartment complex.
“I think he moved in there a couple of
months ago,’’ the operator said. ‘‘You
get to know these things when you accept
a check.”’
The detectives went to the apartment
complex and located the man. He readily
recalled having met Ladean in the store
on Thursday evening, and said he had
read in the paper that she and others had
been murdered.
“It was a hell of a shock,’’ the man
said. ‘‘I hadn’t seen Ladean in maybe
three or four years. I used to work in a
market where she was a meat cutter.’’
The man said that after he had, met
Ladean, they talked about old times for a
few minutes and then she had asked him
and his friend to come to her townhouse
for a drink so they could talk awhile long-
er.
**She was sort of upset because a friend
she knew had committed suicide,’’ the
man said. ‘‘She told me that she had gone
to his funeral that morning and was feel-
ing pretty down about it.”’
The man said that he and his friend had
a couple of drinks with Ladean, talked for
a while and left around eight o’clock. In
response to a question, he said he didn’t
think Ladean had mentioned that she was
expecting her sister and a friend to visit.
“Do you own a white Chevrolet pick-
up truck?’’ Kersten asked. ‘
The man scowled, seemingly puzzled
by the question. ‘‘No, I don’t,”’ he an-
swered. ‘‘Why do you ask?’’
‘*How about your friend who went to:
her place with you?’’ Kersten inquired.
“‘As a matter of fact, he does,’’ the
man responded. *‘He’s a carpenter and I
guess he uses it in his business.’’
‘‘A carpenter?’’ Kersten asked, his
interest piqued.
“*Yes. Why the interest in that?’’
‘*How well'do you know him?’’
The man explained that they were only
casual friends. He lived in the area and
he couldn’t recall exactly when he had
met him, but it was shortly after he
moved into his apartment. They some-
times went out together.
“Thursday night, the night you met
Ladean in the liquor store and went to her
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Front Page Detective 71
sr es eng neeEEeeE
townhouse,”’ Kersten asked, ‘‘what hap-
pened after you left there?’’
The man shrugged, ‘‘Nothing in par-
ticular. We came back to my place. He
asked me if I was planning on doing
anything. I told him that I was bushed,
had to work in the morning and wanted to
turn in early. I’d guess he left here some-
time between nine and ten o’clock.”’
“*Have you seen him since that time?”’
Kersten asked.
‘*As a matter of fact, I haven’t,’’ the
man replied. ‘‘Usually he calls me on
Saturdays and asks if I’ve got plans to do
anything in particular. I haven’t heard
from him. Why all the questions? You
don’t think he had anything to do with
the murder of Ladean and those other
people?’’
““We’re just checking,’’ Kersten told
him.
‘‘Well, I think you’re wasting your
time,”’ the man responded. ‘‘He’s a real
nice guy. He just happened to be with me
when Ladean asked us to stop by for a
drink. He isn’t the kind of a guy who
would do a horrible thing like killing
those people.’’
Kersten asked for and obtained the
name and address of the man’s friend and
the detectives concluded their interview.
After leaving the apartment, Kersten
said, ‘‘We’ve got a carpenter who owns
a white Chevrolet pickup and who was at
the house earlier in the evening and
we’ve got three people killed, possibly
from blows by a hammer, the rear door
pried open with a clawhammer and a
witness who saw a white pickup leaving
there in a hurry at about the time the
murders took place.’’ us:
“*Where do we go from here?’’ Garcia
questioned.
Kersten thought over the question. He
pointed out that they did not have a wit-
ness who could positively identify the
truck or driver and little physical evi-
dence to point to a particular suspect.
‘Two purses, a wallet and possibly
other stuff was taken,’’ Kersten said, ‘‘If
we can locate that stuff, maybe we can
wrap it up.”’
‘‘Do we check on the guy now?’
Shultz asked.
Kersten vetoed the suggestion. For a
legal search, they would need a warrant.
,
” If they found anything without a warrant,
it might not be accepted in court as evi-
dence. :
“*We’ve got to go by the book,”’ Ker-
sten said. ‘‘We’ll run a check on the guy
and then go the D.A. and get a wasrant.”’
A local check of the records for the
: suspect revealed that he had only been
arrested on a drunk driving charge; noth-
72. Front Page Detective
ing else was noted on his record.
A computer check with the National
Crime Information Center, however, re-
turned with the information that the sus-
pect had been living in Mobile, Alaba-
ma, in April, 1976. He had been charged
with the’ attempted murder of a family
member. The relative had survived the
attack in which a butcher knife had been
plunged into her chest while she was
sleeping.
He was 16 years old at the time and
was placed in the custody of the juvenile
court. He remained in a juvenile deten-
tion center until he was 19 years old and
was then released.
The report showed only the drunk
driving charge during his adult life.
Kersten took the information to the
district attorney’s office with a request
for a warrant to search the suspect’s
apartment and truck.
A deputy attorney informed Lieut.
Kersten that in order to get a court to
issue a search warrant, they would have
to file an affidavit of probable cause. The
information on the charge of having at-
tempted to kill his relative in Alabama
could not be used because he had been a
juvenile at the time and it was not rele-
vant to the present murders.
The only other evidence was that the
suspect was a carpenter and owned ‘a
white pickup truck. There were no wit-
nesses to place him at the scene of the
murder or in the white truck seen leaving
the townhouse.
““We’ve got to have a warrant right
_away,’’ Kersten urged. ‘‘The guy has
got to know that we’re going to question
him and if he did it, it’s a cinch he’ll get
rid of the evidence we’re looking for.”’
The attorney offered a possible alter-
native. He suggested that they question
the suspect and ask him to voluntarily
sign a statement to allow them to search
his apartment and truck. ‘‘If he refuses,
then we can see what we can do about
getting a warrant,’’ the attorney said.
Kersten, Garcia and Shultz went to the
suspect’s apartment. It was Sunday and
he was at home. |
“I’ve been expecting you,”’ the sus-
pect said affably. ‘‘My friend told me
that you talked to him and you’d proba-
bly be talking to me.”’
Kersten asked if he would object to a
search of his apartment and truck and
sign a consent form.
““Be my guest,’’ the suspect invited.
“‘T only met the woman that one time. I
know about the murders, but I sure as
heck didn’t commit them.”’
The detectives searched the apartment
and truck but came up with nothing. Ker-
, sten asked the suspect if he would be
willing to take a lie detector test
to confirm his story that he had been
in his apartment, in bed and asleep at the
time the murders were committed.
The suspect flatly refused. ‘‘I’ve
heard about those lie detector tests,’’ he
said. ‘‘They can be rigged or be wrong.
I’m in no way involved in this and I’m
not going to let any damn machine get
me screwed up.”’
The detectives left the apartment frus-
trated and returned to their office.
“T’ve got a gut feeling that guy lied to
us,’’ Kersten told Garcia and Shultz.
‘*And refusing to take the test confirms
it.”’
‘*What do we do now?”’ Garcia asked.
Kersten said what they needed were
the articles that had been taken from the
house. It was the only evidence that
would link the killer to the murders.
“‘Ifhe’s the guy and took the stuff, he’s
probably gotten rid of it,’’ Shultz said.
“‘If he tossed it into a dumpster, chances
are it’s gone forever.”’
‘*All we can do is to keep checking,”’
Kersten said, determinedly. ‘‘Maybe we
can turn up something.”’
A continued search and questioning in
the area of the townhouse complex turned
up nothing on Monday.
Tuesday was no more productive.
Dumpsters that had not been emptied by
trash collectors were searched. Moreo-
ver, no additional witnesses could be lo-
cated.
Wednesday, just after noon, Garcia
and Shultz reported to Kersten. *‘Here’s
something right off the wall,’’ Garcia
announced.
“‘Off the wall, off the ceiling, off any-
where,’’ Kersten said. ‘‘What have you
got?’’ :
The detectives reported that they had
learned the suspect was an avid fisher-
man and often visited his favorite fishing
hole in Oyster Creek.
“If the guy was going to get rid of
something, there’s a chance that he might
have dumped it there,’’ Shultz said.
After a moment’s thought, Kersten re-
sponded, ‘‘Talk about a drowning man
grabbing at straws, this could be it. But
even a straw looks good right now. Let’s
get on it!”’
The detectives. contacted the Harris
County Sheriff’s Search and Rescue Unit
and obtained the services of two skin
divers. They went out to Oyster Creek
and located the fishing hole the suspect
was known to visit.
On the second dive, the divers came up
with a wastebasket enclosed in a plastic
sack. Anxiously, it was opened to inspect
rf
what was insic
There was ;
peared to be bk
the sack were
with the identi
tims, in additic
elry and two pi
ly were from t
“Well, I'll
_**We did it!”’
The articles
lab. Kersten v
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Gerry Drinkar
drawn up and t
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eight o’clock i)
After being
Drinkard was
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Hendricks, hel
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bludgeoning oi
that it wasn’t
apartment and
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and drove ou
dumped them
At the conc
Lieut. Kersten
did you take th:
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Drinkard re:
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prints were on
all that took p!
townhouse.
Drinkard wa
Judge Bill Han
charge. A jury
were selected t
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verdict. After
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15, 1986, that |
s completed,
ed Mrs. Finkel-
departed in her
it Baake would
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tbomke was tak-
mediately con-
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hit him harder
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Hammered Trio (from page 34)
at her job on Friday.
When she did not check in on Friday
morning, fellow employees were con-
cerned. They were aware that Ladean
had been depressed by her friend’s sui-
cide. Several calls were made to her
townhouse without a response.
At noon, one of the employees said he
was going to use his lunch break to check
at Ladean’s home to be sure that she was
okay.
He arrived at the townhouse at 12:30
and found the front door locked. No one
responded to his insistent ringing of the
doorbell. ;
He walked around the back and found
the door to the kitchen entrance ajar. He
stepped inside and called out Ladean’s
name a number of times. He called out
again, asking if Ladean was there and if
she was all right. With no response, the
employee hesitantly went upstairs.
It was in the master bedroom that he
saw the bodies of the women. The room
was like a charnel house with blood
splattered everywhere—on the walls, the
ceiling and furniture. Gasping with
shock, he noted that the heads of the
women had been battered to a bloody
pulp.
The man turned, fled from the house
and raced to a unit marked as the manag-
er of the complex and made the call to
police headquarters.
Uniformed officers were first to re-
spond. They entered the townhouse and
stayed only long enough to determine
that there were two women in one bed-
room and a man in a second bedroom.
All had been terribly bludgeoned to
death.
Homicide Lieutenant W.H. Kersten
with Detectives Steve Garcia and Gil
Shultz received the assignment to in-
vestigate the case. They arrived at the
townhouse a short time later with a team
of crime scene specialists.
The crime scene team took over the
inside of the house. They recorded the
scene on film, checked for prints and
preserved what might be physical evi-
dence.
In the meantime, the detectives ques-
tioned the employee who had discovered
the murders.
There was little he could tell them,
other than Ladean had been employed as
a meat cutter where he worked.
He knew about the suicide of her
friend and was concerned when she had
not shown up for work in the morning.
He had no idea who the other two per-
sons in the townhouse might be.
As Garcia and Shultz checked other
townhouses in the complex for persons
who might be at home to question them
about what they might have seen or
heard, Lieut. Kersten put in a call to the
office of the store where Ladean worked,
and asked for a check on her person-
nel file.
He was given the information that
Hendricks had listed the name, address
and telephone number of a relative in
Houston who could be notified in the
event of an emergency.
Kersten called the number. The rela-
tive, shocked by information concerning
the murders, said he was almost certain
that the other two persons in the house
were Ladean’s sister and her friend from
Coleman. He said Ladean had called him
the previous day and told him she was
expecting the visit and asked if they
could all get together on Saturday night
for dinner.
The relative said he would come to the
townhouse as soon as possible to make a
positive identification.
As the crime scene specialists com-
pleted their work in the rooms, one of the
technicians reported to Kersten.
‘‘Somebody went absolutely berserk
in there,’’ he said. ‘‘I’ve seen some bad
ones, but none any worse. The heads of
the victims are so badly bludgeoned their
facial features have been destroyed. And
both bedrooms are splattered with blood
until they looked like a slaughterhouse.’’
‘*The killer would have been splatter-
ed with blood?’’ Kersten asked.
“I'd think so,’’ the technician replied.
‘Did you come up with anything to
give us any help?’’ Kersten questioned.
The technician responded that they had
recovered some impressions of bloody
fingerprints and shoe prints, but they
were smeared, so he was uncertain of
their value until they could be evaluated.
They had checked the rooms in the
house and had been unable to locate
purses for the women or a wallet for the
man, indicating that the killer had most
likely taken them.
‘‘But it doesn’t appear that the place
was ransacked,’’ the technician added.
‘‘Drawers weren’t emptied and valuable
things like a TV, stereo and stuff weren’t
touched. He may have taken the purses
and wallet and maybe jewelry, but that’s
about it.’’
The crime scene crew had determined
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\ Front Page Detective 69
name and the address of the victim. We
will have someone right there.”
The caretaker gave an address on
Briar Rose Street in River Oaks, an ex-
clusive neighborhood where Houston’s
rich live. It is a well-patrolled area anda
cruiser was at the front of Trudy
Zabolio’s home minutes after the call for
help.
A shirt-sleeved patrolman dashed
into the house. On the floor of the white
tiled bathroom floor, he found the body
of a 60-year-old woman. The woman,
whose face was frequently seen on the
society pages, lay face up on the floor,
her hands at her sides and her legs cros-
sed. The condition of the body told the
patrolman the woman was beyond re-
susitative measures, and that she. had
probably been dead for 24 hours.
He reported his findings to the police
dispatcher, then stood guard in the
house until a homicide team and the
medical examiner arrived.
The deputy coroner reported the
death and ordered the victim’s body
taken to a nearby mortuary. An autopsy
would be performed later on to deter-
mine the cause of death.
The preliminary report was that Mrs.
Zabloio had died of “natural causes.”
But the diagnosis was changed im-
mediately, after the mortuary director
noticed a pantyhose wrapped five times
around the woman’s neck and knotted
in front.
The deputy coroner was caught red-
faced at the discovery. Apparently the
location of the cord, down on the neck
and the swelling of the body tissues, had
concealed the strangulation aparatus.
Detectives at the scene made an about
face and treated the death as if it were a
homicide. A neighborhood canvass was
conducted. The house was searched for
evidence and family and friends were
questioned.
Friends were certain the vivacious
Trudy Zabolio had been murdered by a
burglar. It came as a surprise though,
when the medical examiner ruled her
death as “asphyxiation due to
strangulation—suicide.”
“That was pretty damn hard to swal-
low,” one Houston source said. “Trudy
was in good spirits and had every reason
in the world to live. Besides, she was a
devout Catholic, and Catholics look
upon suicide as a mortal sin against
God.”
Certainly if anyone had a zest for life,
it was Trudy. Zabolio. She was a viva-
cious, outgoing woman who joined all
the right clubs and was a member of the
social register of Houston. Raised in
New Jersey, she later became a part-
time model and a secretary, before mar-
rying her first husband, the manager of
the Foster Wheeler Corporation’s,
Houston office. They later adopted a
son. Her husband died in 1955 of
natural causes, and his estate was left to
40
Alan Janecka showed great promise as a
- youth, but somehow, detectives said,
he became “twisted” along the-way.
Trudy and her son. Later she remarried
and had a natural born daughter,
Diana.
Trudy was, friends said, deeply in
love with her husband and her two chil-
dren. Why then would a woman with
everything to live for decide to take her
own life?
No one had an answer to the question.
Detectives had gone over the house with
a fine tooth comb looking for evidence
that might indicate something other
than a suicide. But they couldn’t find
anything.
Investigators doubted a robber had
entered the house since nothing was out
of place and several pieces of jewelry,
including a diamond ring, were in plain
sight. The jewelry was worth a great
deal of money and would not have been
passed up, police theorized.
Detectives also found a nylon noose,
similar to the one found around Trudy’s
neck inside a bureau drawer.-The sec-
ond noose was interpreted to mean Mrs.
Zabolio had thought a great deal about
suicide and had made a noose in order to
“practice.”
The medical examiner also noted that
the 60-year-old victim was a high
strung woman who couldn’t stand any-
thing out of place. It was the type of
personality that lended itself to suicide,
he surmised. The medical examiner also
noted Mrs. Zabolio had attempted
suicide during her mid-30s at about the
time of her first husband’s death.
But friends were not convinced. If
Trudy had wanted to do herself in, then
why not a gun or pills or some other
means, they suggested to police. Why
self-strangulation, with, of all things, a
‘
nylon pantyhose? Doubt existed that a
person could commit suicide by such a
method, that if anything the pantyhose
proved a second person was involved,
_ and if so, then it was a case of murder,
not suicide.
An intrepid female assistant to Medi-
cal Examiner Joseph Jachimczyk de-
cided to find out, She took a pantyhose,
wrapped it around her neck, and knot-
ted it in the same way the knot was tied
in Trudy Zabolio’s death.
“She showed us how it could be done
and almost strangled herself,” the med-
ical examiner said. Her face had turned
blue and she was almost unconscious by
the time they managed to cut the gar-
ment off her throat.
“After that, there was no question
that it could have been done alone,” the
doctor said.
The demonstration convinced even
those detectives who had felt uneasy
with the suicide conclusion. Therefore,
the case was ruled “asphyxiation due to
strangulation—suicide.”
Mrs. Zabolio was buried in a quiet
ceremony and her estate was divided
up. Ina will dated August 17, 1961, Mrs.
Zabolio left her fortune valued at
$188,000 before taxes, to her daughter
and adopted: son. Portions of the estate
were to be divided among the children
until the January lst following each
child’s birthday.
Both of the victim’s children con-
tinued to live in Houston. They were on
good terms with each other and kept in
contact by occasional visits and teie-
phone calls. The two children were as
different as night and day.
The adopted son, and oldest of the two
by seven years, enjoyed “life in the fast
lane.” Twice married and twice di-
vorced, he favored luxurious cars and
stylish women. A college dropout, he
had entered the business world as a
stock market speculator and real estate
investor. He was described by a relative
as a “mischievious youth” but overall,
“a good boy.”
Diana, in contrast, lead a more sub-
dued and traditional life. Slender and
dark-haired like her mother, Diana
married John Wanstrath, a serious,
highly-intelligent oceanographer.
Wanstrath had pursued master’s and
doctoral degrees in oceanography at the
Texas A&M University. Born and
raised in St. Louis, Missouri, John
Wanstrath often visited his wealthy
aunt who lived in River Oaks, not far
from Trudy Zabolio. The aunt and her
friend, Trudy Zabolio, played match-
makers and introduced the serious-
minded scientist to Diana. The two were
married shortly afterwards.
The Wanstraths lived in Houston,
where John worked for a time at NASA
in the flight simulation area during the
testing for the Apollo space mission.
Later the couple moved to Mississippi,
where John too
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Diana had be
mother and was
death. It was pos
the right set o
might opt for the
as her mother, t
Dr. Jachimczy
chances. He cont:
and hired him a
into the deaths.
WIDOWER continued from page 31
Trooper Gary Rosenberger, 26, to a re-
mote area, allegedly to uncover a cache
of drugs. Instead, Russell shot him to
death.
While in prison, Russell was also
charged with, but had not been con-
victed of, killing another inmate.
Chacko and Keen became close
friends. A star witness for the state later
testified in court that on December 27,
1977, he saw Keen and Chacko go into
Russell’s cell and stab him repeatedly.
On the way to the hospital, a prison
nurse asked Russell who had done this
to him. He told her, “I’l] take care of this
myself.” 7
Shortly thereafter, he lapsed into a
coma and died on April 17, 1978.
Murder charges were filed against
Chacko and Keen. In the meantime, be-
fore they could go to trial, the State Sup-
reme Court granted Chacko a new trial
in the Williamson case. It was ordered
on the grounds that photographs of the
body introduced as evidence had been
inflammatory to the jury, thus denying
him a fair trial.
While Chacko was waiting for his
new trial on the Williamson case, he
and Keen went to court for Barney Rus-
sel’s death, in mid-October of 1978. In
the non-jury trial, Keen acted as his
own attorney, and witnesses for both
the prosecution and defense included a
. tough line of hardened cons.
When it was over on November 15,
after four weeks of testimony, Al-
legheny County Common Pleas Judge
James A. McGregor, handed down the
verdicts against Chacko and Keen:
guilty of murder in the first degree,
which carried a life sentence.
Then on December 11, Trooper Rich-
ard Palmer received notification
that Chacko’s new trial was scheduled
for December 13.
Shortly after it began, Chacko was
again found guilty of murder in the sec-
ond degree, as charged, and was sen-
\
tenced to life. Even without the “in-
‘ flammatory” pictures, the evidence was
obviously enough to convict him again.
David A. Chacko, now 26, is in one of
Pennsylvania’s institutions, serving
out his life terms behind bars. _@
EDITOR'S NOTE:
The names Jim Raymond, Brian
Cooper, Leonard Watkins, Mr. Watkins,
and Charles Bailey are fictitious and
were used because there is no reason for
public interest in their true identities.
CONTRACT SUICIDE continued from
no fingerprints left behind.
Bonds was more concerned about the
murder weapon. Someone had to enter
the house after the slayings and pick it .
up. But who? And what was the motive?
The medical examiner’s report dealt in
depth with the suicide, but what about
money? John Wanstrath had left an es-
tate worth $800,000, and about half of
that amount went to Diana’s adopted
brother, who incidentally or not, had
inherited a tidy sum following his
mother’s death.
The adopted son was a suspect. But
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page 41
the 34-year-old speculator-real estate
investor had an alibi. He was seen with
friends on the night of the murder.
“He: may not be in this,” Detective
Bonds said. “But there is more to this
than what’s in this report,” The detec-
tive began a thorough background in-
vestigation of Diana’s brother, his
friends and business associates. Bonds
was joined by Detectives Eli Uresti and
Dan McNulty; both believed there was
more to the slayings.
Diana’s brother was apparently eager
to collect his share of the estate, police
learned. According to John Wanstrath’s
parents, he was “pushing, always push-
ing” for the inheritance. He couldn’t
have it done fast enough. “He acted ag-
ressively, nervous and anxious to get
the settlement,” they told lawmen.
Police believed the smooth-talking
stock speculator apparently needed all
the money he could in order to satisfy
his taste for fast cars and fast women.
The good life—in Houston as elsewhere
in the country—can run a bundle.
Still, spending money is no crime, and
although the grieving brother’s eager-
ness to get his hands on the inheritance
cast him as a suspect, Detective Bonds
just didn’t have any hard evidence to go
on. “Besides, he has an alibi,” Bonds
remarked.
However, Bonds was not going to give
up on the case. One of the adopted sons’
business partners was Walter Wald-
hauser, a personable 27-year-old real
estate broker and investment coun-
selor. The handsome, dark-haired
businessman had attended college and
law school but had failed to graduate
from either. But he did not lack in ideas
or daring. Waldhauser had tried to open
a stock exchange in Houston. The plan
failed, but businessmen still remem-
bered him as the brash young man who
wanted to bring Wall Street to Houston.
By early October the detectives had
accepted the theory that the Wanstrath
killings had been the work of contract
“hit men,” who were plentiful and rela-
tively cheap in Houston.
But who had the contacts? Did
Diana’s brother have a pipeline to
Houston’s underworld? If so, detectives
had not discovered it.
At the same time, Waldhauser
seemed unlikely as a candidate. “Walt
might cut a few tight deals,” a source
said, “but murder-for-hire just wasn’t
his piece of cake.”
But Detective Bonds, in reviewing
the Waldhauser record, did find one
curious item. In 1978, the
businessman’s plush west Houston
apartment caught fire and was de-
stroyed. A fire inspector said the blaze
had been set by an arsonist. Although
Waldhauser had not been charged, it
was believed he profitted from the in-
surance settlement.
Bonds learned Waldhauser and his
wife had split up and on a hunch he
contacted the woman at her apartment.
During their conversation, the woman
said her ex-husband and a friend of his
had moved some personal possessions
from the apartment just before the
arson blaze. The friend’s name was Alan
Janecka.
When Bonds returned to the homicide
‘office he wore a grin as big as a harvest
moon. Janecka’s name was well known
to vice and burglary detectives. He was
almost a tragic figure, a person who
showed great promise as a youth, but
became twisted along the way and
chose a life of crime. Janecka was born
in the small town of Weimar, Texas, the
oldest son of 14 children. The oldest
daughter had become a nun, and much
was expected of Alan. For a while he
produced. He was an outstanding
baseball player at Schulenburg High
School and was selected to the All-State
baseball team as a pitcher. Janecka had
also been an alter boy and worked at two
jobs to support himself while going
through school. But in his senior year
something snapped. The unsmiling
blond-haired teenager joined the
Marines. A short time later he returned,
dishonorably discharged. Janecka
drifted to Houston. He got into trouble
with the law and served a prison sen-
tence for burglary. He got out, got mar-
ried, and just as quickly got divorced.
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wed on Page 68)
CONTRACT
SUICIDE
RY
Everything pointed to a “classic suicide-double murder” and
that’s how the medical examiner's findings read. But a shrewd
Texas sleuth wouldn't have any of it. A year after the coroner's
by BARRY BENEDICT
HOUSTON, TEXAS
APRIL 8, 1981
Johnny Bonds was not happy. It
was a chilly February afternoon in
Houston,. Texas and the veteran
homicide detective sat at his desk read-
ing a Harris County Medical
Examiner’s report marked
“Confidential—For Office Use Only.”
Outside the police station, located in the
northeast corner of downtown on
Memorial Drive, motorists chugged
along the jammed Interstate 45, headed
for the suburbs. Joining them was the
last thing in the detective’s mind.
Bonds’ concentration was directed at
the medical examiner’s report. Pre-
pared by Chief Medical Examiner Dr.
Joseph Jachimczyk and Dr. Thomas
Welu, the report detailed the evidence
in a seven month investigation into the
deaths of a prominent Houston family.
ruling, a murder trial proved the lawman was right on target.
At first, it was thaueht Trudy Zabolio
died of natural causes but a closer
look, revealed something more shocking.
INSIDE DETECTIVE, Octeber, 1981
According to the report, Diana
Wanstrath, 36, had shot her husband
John, her 14-month-old baby Kevin,
and then turned the weapon on herself.
The report had created quite a stir on
Houston’s posh west side. Friends main-
tained Diana was incapable of commit-
ting such a crime.
Detective Bonds didn’t know the
Wanstraths but he too had a “gut” feel-
ing something was wrong. “I don’t care
what it says,” Bonds said, jabbing the
report with a forefinger. “That woman
didn’t commit those murders and that’s
all there is to it.”
The bodies were discovered on July 6,
1979. But the roots of that tragedy went
back to 1975. ;
On Friday morning, October 17, an
elderly caretaker, almost incoherent
with shock, told a police dispatcher,
“Come here quick, Mrs. Zabolio is
dead!”
The dispatcher cut in, “Give me your
39
ibt existed that a
suicide by such a
ing the pantyhose
on was involved,
a case of murder,
assistant to Medi-
1 Jachimezyk de-
took a pantyhose,
»r neck, and knot-
» the knot was tied
sath.
w it could be done
herself,” the med-
ier face had turned
ost unconscious by
zed to cut the gar-
/ was no question
en done alone,” the
mn convinced even
io had felt uneasy
clusion. Therefore,
asphyxiation due to
ide.”
buried in a quiet
te was divided
t 17,1961, Mrs.
u.vane valued at
es, to her daughter
yrtions of the estate
among the children
1st following each
-im’s children con-
uston. They were on
ch other and kept in
nal visits and teile-
vo children were as
ind day.
and oldest of the two
oyed “life in the fast
‘ried and twice di-
luxurious cars and
college dropout, he
jusiness world as a
ilator and real estate
escribed by a relative
3 youth” but overall,
ast, lead a more sub-
nal life. Slender and
her mother, Diana
anstrath, a serious,
nt oceanographer.
ursued master’s and
1 oceanography at the
liversity. Born and
‘uis, Missouri, John
visited his wealthy
1 River Oaks, not far
lio. The aunt and her
‘bolio, played match-
roduced the serious-
-o Diana. The two were
wards.
ived in Houston,
eu ior a time at NASA
ilation area during the
Apollo space mission.
moved to Mississippi,
where John took a job with the Army
Corps of Engineers. In early 1979, they
returned to Houston when John took a
job with Tetra-Tech, Inc., shaping a
“massive floor insurance project for the
Texas coast. He made $32,000 a year as
an oceanographer, but shortly after
moving to Houston, his aunt died and
left him an estate valued at $800,000
before taxes.
The Wanstraths were the ideal young
couple with everything going for them.
John was an eminent scientist and
author of a scientific book, “The Sea.”
Diana was the loving wife and mother of
their young child, Kevin, born in May
1977. Diana was an accomplished
woman in her own right. The 36-year-
old homemaker had previously worked
as a teacher and an interpreter for the
French Consulate in Houston. She held
a master’s degree in: French from the
University of St. Thomas. Diana was a
popular woman, the way her mother
Trudy had been, and moved easily in
several circles of friends, some dating
back to her days at Lamar High School.
It seemed Diana had everything
going for her. But less than four years
after the death of her mother, Diana and
her family would meet with tragedy.
On Friday morning, July 6, 1979, a
neighbor and a family friend paid, a so-
cial visit to the Wanstraths at their
elegant colonial-style home on Briar
Rose Street. Unable to get a response,
they went to the side of the house.
Through the window they saw John
Wanstrath. He was slumped in a chair.
Near the fireplace, in a pool of blood, lay
Diana. The neighbor and friend entered
the house. John had been shot twice in
the head, Diana once. Both were dead.
The horrified friends dashed into the
baby’s bedroom where they found 14-
month-old Kevin. He had been shot once
in the head.
Police were immediately summoned
to the scene. Again, house intruders
were suspected of murder, first Trudy
Zabolio, and now daughter Diana and
her family. The Wanstrath killings
were particularly vicious and grue-
some. River Oak residents clamored for
police protection and a quick arrest of
the killer or killers.
But Medical Examiner Dr. Joseph
Jachimezyk was not so certain the
Wanstraths had been murdered. In
examining the evidence at the scene, he
determined there was a good chance it
had been a suicide-double murder.
Diana had been very close to her
mother and was badly shaken by her
death. It was possible that Diana, given
the right set of emotional stresses,
might opt for the same course of action
as her mother, the doctor speculated.
Dr. Jachimezyk wasn’t taking any
chances. He contacted Dr. Thomas Welu
and hired him as a consultant to look
into the deaths. .
Walter Waldhauser was a real estate
broker and shrewd businessman who
wanted to bring Wall St. to Houston.
Dr. Welu, an authority on suicide,
had impressive credentials. A Catholic
priest and psychologist, he held several
degrees in various fields. He also had a
doctorate in social science and research
from the University of Pittsburgh.
Welu first examined the physical evi-
dence at the house to determine if it was
consistent with a suicide-murder pat-
tern. Several things caught his atten-
tion. Diana’s wound was a “classic
suicide wound” rarely found in
homicide cases. In addition, the murder
weapon, determined by ballistics men
as a .22-caliber Magnum single action
revolver, was an awkward weapon to
use in a triple murder because the
hammer had to be pulled back each time
the weapon was fired. Actually, the doc-
tor concluded, such a weapon was very
compatible for a suicide-murder type
-case, rather than a homicide.
The doctor also noted police had found
no evidence of an intruder or that there
had been a struggle in the house.
Moreover, lab men had found no finger-
prints of anyone except Diana.
And there were other clues.
The door was shut and the lights were
out in the baby’s bedroom when the
body was discovered. This was consis-
tent with Diana’s routine of putting the
baby to bed.
The dog wasn’t shot and it was well
known that Diana loved animals. “The
dog was found roaming the next day in
the family’s fenced backyard,” one offi-
cial noted..
Trace metal tests conducted on John
and Diana were negative, (a person re-
cently firing a weapon will have a posi-
tive trace metal test). But Diana used
cold cream on her hands, a substance
which will negate the trace metal test, it
was learned. Diana had applied cold
cream to her hands and face every even-
ing.
But perhaps the most controversial
portion of Dr. Welu’s report dealt with a
psychological portrait of Diana
Wanstrath. The suicidologist was at-
tempting to answer the question: “Was
Diana in the right frame of mind to
commit a suicide-double murder?
The psychologist talked to friends and
~ physicians, dozens of people who knew
the attractive 36-year-old victim. He
learned that Diana was having marital
problems and was exhibiting symptoms
of depression shortly before the deaths.
There was also eviderfee that Diana was
having difficulty at the age of 36 adjust-
ing to motherhood. “Her perfectionistic
personality made this adjustment har-
der than normally expected,” Welu re-
marked.
Dr. Welu noted that Mrs. Zabolio, .
Diana’s mother, attempted suicide at
about the same age as Diana when she
was found dead. The daughter had also
filled out a body donor card two years
before her death—an action interpreted
as being “indicative of suicidal
thoughts.” There was also evidence of a
downward course in Diana’s life within
eight months prior to her death.
On February 15, 1980, the seven
month report was finished. The conclu-
sion: Diana had shot her husband, then
shot her baby sleeping in the crib, and
then turned the gun on herself.
The report created a controversy.
Many had trouble believing Diana
could have committed the murder of her
family. One of those sharing disbelief in
the medical examiner’s report was De-
tective Johnny Bonds. One glaring
piece of evidence that Dr. Welu was un-
able to explain was the absence of the
murder weapon. The .22-caliber mag-
num was not found anywhere in the
house—it had simply disappeared.
“How can a woman shoot her family,
then herself, and then dispose of the
murder weapon?” Detective Bonds
asked.
No one had the answer.
The report noted that a police lab
technician had found no fingerprints in
the house except for Diana’s, and that
nothing seemed disturbed or out of
place. The technician had also found no
sign of forced entry, another indication
of a suicide-murder case.
Detective Bonds didn’t put much
weight on the lack of fingerprints or
absénce of these last two items. He
knew intruders rarely left fingerprints.
A gunman could have easily knocked on
the front door, then forced his way in-
side. This would explain the absence ofa
forced entry. And if he wore gloves, or
wiped the weapon clean, there would be
(Continued on Page 56)
4\
A neighbor urged Bonds to take a
second look at the mysterious demise
four years earlier of Diana’s mother.
\lthough the death of Gertrude
‘Trudy’ Duff-Smith Zabolio had been
dismissed as a suicide, skeptics doubt-
ed that the socialite strangled herself
with a pair of pantyhose. Were moth-
er and daughter both victims of foul
play?
Detective Bonds immediately ob-
tained a copy of the autopsy report on
Trudy Zabolio. It was fascinating if not
disturbing reading. The caretaker of her
mansion in River Oaks, the most ex-
clusive secuon of Houston, stumbled
across the body in an upstairs bathroom
on the morning of October 17, 1975.
Wrapped tightly around the matron’s
neck was a pair of pantyhose that
went unnoticed for two hours until
detected by the mortician, who had
come to fetch the corpse.
The Harris County medical examin-
er attributed the death to a kinky sex-
ual practice called “blue haze.” Ac-
cording to this dubious hypothesis,
Trudy Zabolio used the hose to re-
strict the flow of oxygen to her brain
in order to maximize the orgasm mas-
turbation. She went too far, lost con-
sciousness and suffocated. Diana Duff-
Smith Wanstrath and other relatives
never accepted this bizarre explanation
but reluctantly let it stand for fear of
the scandal that would have been pro-
voked by a public challenge of the find-
Ing.
As Bonds and Uresti later learned,
the assistant coroner that performed the
postmortem on Zabolio was unwilling
to stake her reputation on the results.
“With most suicides I’d swear on 10
stacks of Bibles,” she confided to the
detectives. “This one I’d only swear on
one Bible.”
The three Wanstraths were laid to rest
in two caskets. John was buried alone,
but Diana and Kevin shared the same
coffin with the mother holding the child
to her breast.
After the funeral, Bonds assembled
the relatives for an announcement.
“We'd like for you to come down-
town to take some lie-detector tests.
We're not pointing the finger at any-
one in particular but at this point any-
one who stood to gain from the shoot-
ings 1s naturally considered a suspect.”
Everyone passed the polygraph with
flying colors, except Markham Duff-
Smith. He flunked three incriminating
questions: Did he know who shot his
16
ff
Below, the anguished look of Allen Wayne Janecka as he awaits
jury’s verdict.
sister, brother-in-law and nephew? Did
he have advance knowledge of the mur-
ders? Did he participate in the planning
of the crime?
The thirty-two-year-old black sheep
of the Duff-Smith clan went to the head
of the suspect class but not solely on
the outcome of the polygraph. Even be-
fore the test, he had been caught in a
clumsy lie. Markham claimed he spoke
to Diana on the telephone at half past
nine the night of the murders, but a
friend of his sister swore she called at
nine-twenty and got no answer.
He also rubbed Bonds the wrong way
during a routine interrogation fight after
the murders. In sharp contrast to his
young wife Tracey, who cried her
eyes out during the question-and-an-
swer session, Markham was calm, cool
and collected. He showed no emotion
whatsoever and irritated the detective
by making it plain that he had better
things to do than spend the afternoon
at police headquarters.
A little digging into Duff-Smith’s
shady past unearthed plenty of dirt.
He was an irresponsible spendthrift, a
fraud and a fourteen-carat phony, but
was he capable of cold-blooded mur-
der?
He was born in Fort Worth, Texas,
in January, 1947, and adopted two
weeks later by Marvin and Trudy
Smith. Raised in the lap of luxury, he
had all the advantages that only spoiled
Det. Johnny
sensational! ca
rotten rich
Following }
his mother a
to Duff-Smit!
a ring of Britis
ter suited to Tr
bitions and h:
second husba:
years later in |
Duff-Smith
after a year but
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life insurancs
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However. Dutt
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his six-figure
his ears in debt
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Duff-Smith
fall in less 1}
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fall of 1976
After an unex;
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Waldhauser kiss:
1978. From th
Tracey and Wal:
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Was the mass
and their infant
and jury hearing.
ka as he awaits
ie question-and-an-
ham was calm, cool
howed no emotion
tated the detective
that he had better
pend the afternoon
TS
ito Duff-Smith’s
ed plenty of dirt.
sible spendthrift, a
-n-carat phony, but
old-blooded mur-
Fort Worth, Texas,
and adopted two
farvin and Trudy
lap of luxury, he
s that only spoiled
,
Det. Johnny Bonds worked the
sensational case to its conclusion.
rotten rich kids take for- granted.
Following his father’s death in 1955,
his mother amended the family name
to Duff-Smith. The new surname with
a ring of British aristocracy was bet-
ter suited to Trudy’s high-society am-’
bitions and her hunt for a wealthy
second husband. She found him three
years later in Dow Zabolio.
Duff-Smith dropped out of college
after a year but was forced to fend for
himself when tight-fisted Trudy refused
to foot the bills. He cashed in on his
gift of gab and extensive contacts
with the River Oaks elite by peddling
life insurance. He might have suc-
ceeded in the insurance game but
considered work beneath him and could
not resist scamming his employers with
phony policies.
However, Duff-Smith did not allow
his four-figure income to interfere with
his six-figure life style. He was up to .
his ears in debt and hounded by cred-
itors when Walter Waldhauser came
into his life. Was it strictly coinci-
dence that six months later his moth-
er turned up dead leaving him ninety-
four grand?
Duff-Smith went through the wind-
fall in less than a year. Blowing a
bundle on a honeymoon tour of Europe
with his eighteen year-old bride Tracey,
he returned to Houston flat broke in the
fall of 1976.
After an unexplained two-and-a-half-
year estrangement, Duff-Smith and
Waldhauser kissed and made up in early
1978. From then on, Markham and
Tracey and Walter and his wife Dar-
lene were inseparable.
Was the massacre of the Wanstraths
and their infant heir a year and a half
Bet
Murderer Markham Duff-Smith (left) in a Christmas photo with those
who would become his victims, Gertrude Duff-Smith Zabolio and
John and Diana Wansrath.
later nothing more than another lucky
coincidence?
Less than a week into the investiga-
tion, Bonds and Uresti. were already
getting bad vibes from the medical
examiner’s office. The coroner’s chief
investigator stuck to his snap judgment
that the case was a double-murder
suicide with Diana Wanstrath the last
to die. He harped on the “classic sui-
cide” character of her fatal wound as
proof that it was self-administered.
“If it was a suicide, then what hap-
pened to the gun?” the detectives asked
on a daily basis. The answer was al-
ways the same. A well-meaning neigh-
bor took the weapon before the au-
thorities arrived to spare the feelings
of bereaved relatives and to avoid the
shabby spectacle of Diana’s good name
being dragged through the mud.
At the height of this debate, the
chief of police dropped in on Bonds
and Uresti ostensibly to check on the
progress of their inquiry. Since the chief
was not known for surprise visits, the
wary detectives wondered what was ac-
tually on his mind. After briefly chew-
ing the fat, he got to the point. The
Wanstrath case, he emphasized, could
well be a double murder-suicide, and
he warned them against being “‘closed-
minded” to that possible conclusion
by the coroner.
‘“He’s been talking to somebody at
the morgue,” Bonds muttered under his
breath as the head cop left the room.
The message was crystal clear: don’t
rock the boat.
A newspaper reporter called Bonds
and Uresti out of the blue to request a
private get-together. He wanted to pass
along an anonymous tip. As a rule the
distrustful detectives avoided the news
media like the plague, but the investi-
gation was beginning to bog down
and they could not afford to pass up
any information regardless of the
source.
The meeting was held at an out-of-
the-way fast-food joint. The journalist
broke the ice by disclosing that he re-
ceived an anonymous phone call the
day after the discovery of the bodies.
“The caller said Markham Duff-
Smith had his mother killed to get her
inheritance, and he bet that Duff-Smith
was behind these killings, too.”
Bonds and Uresti felt like they had
taken a sucker punch in the solar
plexus. Each hoped he had managed
to camouflage his elation with his
customary poker face.
The newspaperman related the rest
of the conversation. The tipster claimed
that Trudy Zabolio and her husband
were both marked for death that night
in 1975. After waiting in vain for
Dow Zabolio to come home, the hired
killer strangled the woman and made
17
it a break that would
‘e open, the frustrat-
pinning their wheels.
t December, Bonds
—hristmas. present, a
ffairs. He would start
departmental grave-
nent smacked of be-
aliation for stepping
nder toes.
us of the chief med-
ed all logic, as did
y which ranked him
sublic servant in met-
He had blown sev-
alls over the years,
itional Joan Hill af-
is five-shot “‘suicide”’
stigator hot on the
illie Sol Estes, with-
slightest damage to
valking on water.
ht back from his In-
to attend the Valen-
ice granted by the
iner. After seven sus-
ie had at last made
ie Wanstraths died.
: had prepared him-
until he heard the
le murder-suicide.”
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He listened in stunned disbelief as the
coroner droned on defending the pre-
posterous verdict. But when he referred
to a history of suicide in Diana
Wanstrath’s family, the detective defi-
antly spoke up.
“I don’t think Trudy Zabolio com-
mitted suicide,” Bonds stated flatly. “I
think she was murdered.”
The heresy was greeted with open
mouths and arched eyebrows. Nobody
could remember anyone ever contra-
dicting the infallible coroner to his
face. The embarrassed -pathologist
abruptly rose, challenged Bonds to come
up with the facts to support his conjec-
ture and stalked out of the room.
The incredible ruling in the Wanstrath
case was the lead story the next day in
the Houston news media. Bonds’ phone
rang off the hook with frantic calls
from heartsick friends of the deceased,
who pleaded with him not to abandon
the investigation. He vowed to contin-
ue his quest for the killers come hell or
high water.
Bonds kept close tabs on Duff-Smith
and Waldhauser, who were living it up
on Markham’s estimated half-million
dollar slice of the Wantrath pie. Dis-
playing his usual genius for picking the
wrong stocks, Duff-Smith lost a hundred
thousand dollars in the market in a
mere two months. Bonds took comfort
in the fact that at that rate he would prob-
ably blow the whole bundle in no time
flat.
By the spring of 1980, the big spenders
were batching it at Duff-Smith’s new
two-story suburban home. Darlene Wald-
hauser had split first followed by Tracey
Duff-Smith after the Caribbean cruise
Markham took her on as soon as he got
his hands on his latest inheritance. Tracey
filed for divorce the very day they
docked telling a friend, “We didn’t
worship the same god. My God was
the Lord Jesus Christ. His god was
money.” |
Bonds knew from experience that the
age-old adage, “Hell hath no fury like
a woman scorned,” was absolutely true
and why an ex-wife was often a crimi-
nal’s worst nightmare. But he also
knew Tracey would freeze up if he came
on too strong, so he waited for the
right moment to approach her.
The golden opportunity came that sum-
mer. Tracey’s sister, who hated
Markhafn’s guts, clandestinely invited
Bonds over to her mother’s house where
Tracey was staying after the separa-
tion.
. g
She was initially hostile but agreed
to hear ‘the detective out. Bonds rolled
the dice and. laid out in detail the heart
of his case against Duff-Smith: When he
finished, she said she would have to sleep
on ‘it. Bright and early the next morn-
ing, Tracey called to say she would tell
him whatever he wanted to know.
The former Mrs. Waldhauser was a
tougher nut to crack even though Wal-
ter had left her with nothing more than
the clothes on her back. Not long after
Darlene kicked him out, he looted their
home, raided their joint bank accounts,
swiped her car and grabbed their young
- son. Nevertheless, out of misguided loy-
"alty to her ex-husband, Darlene would
‘not give Johnny Bonds the time of day.
Then Waldhauser made the mistake
of dragging her into. court in a vicious
attempt. to. keep the boy. However,
when Bonds threatened to testify at the
.child-custody hearing, he dropped the
suit like a hot potato. In a single stroke.
the detective earried the mother’s undy-
ing gratitude and full cooperation.
After that, Darlene could not do
enough to aid the investigation. She re-
membered an ex-con named Allen,
who once helped her spouse fleece an
insurance company by setting fire to their
apartment. The arsonist’s last name had
slipped her mind, but she gave her
benefactor permission to search the
Waldhauser residence for a possible clue
to his identity.
Sifting through a pile of papers in the
master bedroom, Bonds found several
envelopes bearing the state penitentiary
postmark and the name of the inmate
correspondent. Waldhauser’s pen pal was
Allen Wayne Janecka.
Janecka grew up in Weimar, a pre-
dominantly German community of two
thousand midway between Houston
and San Antonio. The oldest of thirteen
children, he was the All-America boy
active in the Catholic church, home-
coming king and an all-state athlete.
But life for the big fish in the little
pond was a downhill slide following
his graduation from high school in 1968.
Janecka joined the Marines to beat
the draft and spent most of his :hitch
in the stockade before taking an un-
desirable discharge in 1971. His pro-
bation for a burglary pulled while
AWOL was revoked in 1972 sending
him to the slammer for a year. The bur-
glary of his ex-wife’s apartment ag-
gravated by death threats landed him
back in prison in December, 1975. After
doing twb and a half years of a five-
year sentence, he was released on pa-
role in June, 1978.
But the important thing, Bonds noted,
was Janecka’s brief periods of freedom
coincided with the death of Trudy
Zabolio in the autumn of 1975 and
the Wanstrath killings in the summer
of-‘79. If the jailbird was not the as-
sassin, the cop would eat his hat.
Bonds appealed to homicide for
help in tracking down Janecka. His
old partner Uresti was unavailable, hav-
ing been farmed out soon after his
own transfer, but he was more than sat-
isfied with the selection of Dan McAn-
ulty. He was a savvy veteran Bonds
respected and trusted.
While McAnulty burned the midnight
oil studying the thick case files, Bonds
tied the suspected triggerman to the
triple homicide. A petty crook, who
took the fall for Janecka in the May,
1979, rip-off slaying of a drug dealer,
candidly confirmed that he was asked
to tag along on a murder-for-hire. The
target was a family of three: a man, a
woman and a baby. He wisely declined.
He also provided a vague description
of the middleman that retained Janec-
ka’s services. He was short with black
hair and a black mustache, a dead ringer
for Walter Waldhauser.
By November, 1980, the investiga-
tion that nine months before seemed
hopelessly stalled was moving at a
breakneck pace. McAnulty hopped a
plane for Georgia on the twenty-first
. and hit the jackpot. In less than sev-
enty-two hours, he located Janecka’s
girlfriend and persuaded her not only
to reveal his whereabouts but also to
hand over the gun used in the Wanstrath
murders,
The delighted detective placed a long-
distance call to Houston. “Hey, boy.
Are you sitting down?”
“Yeah, what do you got?” drawled
his anxious partner.
“I am holding in my hand one Colt
twenty-two Frontier Scout,” McAnul-
ty announced triumphantly. “I think it’s
the right one.”
“You’ve got to be kidding!” Bonds
exclaimed in amazement.
But that was not all, McAnulty added
tantalizingly, and he told Bonds to grab
a pencil. “Here’s the address and phone
number where Allen Janecka is at.”
Within the hour, a SWAT team sur-
rounded a frame house on the north
side of Houston. Instead of shooting
it out, Janecka jumped at the chance
to surrender and meekly gave up with-
19
a clean getaway. The murder was set
up by a friend of Duff-Smith who ©
was a coin collector.
“Who is this guy?” Bonds asked.
“IT don’t have a clue,” the reporter
ruefully replied. “He wouldn’t give
his name or number. He’s afraid of
going to jail for waiting so long to come
forward.”
The detectives thanked the civic-
minded reporter and instructed him to
advise his phone pal that he had noth-
ing to fear.
“I will,” the newspaperman promised,
“if he calls back.”
The most elusive of Markham Duff-
Smith’s many friends was his closest.
Walter Waldhauser Jr. changed jobs
about as often as most people change
their underwear, and it took three weeks
to trace him to his latest employment
at a downtown bank. When finally con-
tacted in late July, he feigned surprise
at the detectives’ intense interest and
consented to an interview that very
afternoon.
Wearing an expensive three-piece suit
and monogrammed shirt, Waldhauser
looked like he had stepped right off the
pages of a fashion magazine. Seven
years younger than Duff-Smith at twen-
ty-five, a receding hairline and black
mustache added a decade to his ap-
pearance.
More poised and polished than his
constant companion, he fielded ques-
tions with a unruffled confidence. But
the tiny beads of perspiration on his
forehead gave him away.
In the middle of Waldhauser’s recita-
tion of his credentials—realtor, securi--
ties broker, degreed accountant and
licensed pilot-Bonds popped the big
question. “Aren’t you a.coin collec-
tor, too?”
“Uh, sure. I sure am,” stammered
Waldhauser. “How did you know?
You guys must really be doing your
homework.”
The little twerp did not know the half
of it. He had inadvertently divulged his
identity as the anonymous caller’s go-
between in the Zabolio killing.
On top of the twelve to sixteen
hours they were devoting seven days
a week to the complex investigation,
Bonds and Uresti had to find the time
to humor a so-called “‘suicidologist.”
Dr. Franklin Casey was a Ph.D. priest
who, despite his lack of medical and
forensic training, moonlighted part-
time for the Harris County medical
’
examiner. He was called in to con-'|:
18
duct a “psychological autopsy” of the
®
Wanstraths.
Although the detectiVe duo had never
heard of suicidologists much less au-.
topsies of the mind and emotions, they
bent over backward to accommodate the
eccentric amateur. They tolerated his un-
orthodox methods and warped obsession
with the Wanstraths’ sex life in the
hope of winning him over to their side.
For weeks the secretive sleuth gave
the detectives the impression that he
shared their view of the case. Then at
the climax of a melodramatic recre-
ation of the crime at the Wanstrath home,
Dr. Casey declared in the presence of the
chief medical examiner and the cops,
“I feel like after Diana shot Kevin, she
shot John and walked over here and shot
herself.”
Bonds came unglued. “Wait a minute!
This isn’t a suicide. This is murder.
This woman didn’t kill them. We know
who had it done.”
The coroner stepped in and tried to
pacify the furious detective. He assured
Bonds and Uresti that he would issue a
ruling on the cause of death only after
carefully weighing each and every fact.
The investigation slowed to a crawl
as hard evidence became scarcer than
hen’s teeth. Without a break that would
- crack the case wide open, the frustrat-
ed detectives were spinning their wheels.
In the middle of December, Bonds
received an early Christmas present, a
transfer to internal affairs. He would start
the New Year in the departmental grave-
yard. The reassignment smacked of be-
hind-the-scenes retaliation for stepping
on the coroner’s tender toes.
The god-like status of the chief med-
ical examiner defied all logic, as did
his six-figure salary which ranked him
as the highest paid public servant in met-
ropolitan Houston. He had blown sev-
eral high-profile calls over the years,
including the sensational Joan Hill af-
fair and the infamous five-shot “suicide”
of a federal investigator hot on the
heels of swindler Billie Sol Estes, with-
out sustaining the slightest damage to
his reputation for walking on water.
Bonds was brought back from his In-
ternal-Affairs exile to attend the Valen-
tine’s Day audience granted by the
chief medical examiner. After seven sus-
penseful months, he had at last made
up his mind how the Wanstraths died.
Bonds thought he had prepared him-
self for the worst until he heard the
fateful words “double murder-suicide.”
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He listened in stunned
coroner droned on def<
posterous verdict. But
to a history of suic
Wanstrath’s family, the
antly spoke up.
“T don’t think Trudy
mitted suicide,” Bonds
think she was murdered
The heresy was gre:
mouths and arched ey«
could remember anyo!
dicting the infallible
face. The embarrass
abruptly rose, challenge:
up with the facts to sup;
ture and stalked out of |
The incredible ruling |
case was the lead story
the Houston news medi:
rang off the hook wit
from heartsick friends \
who pleaded with him
the investigation. He v:
ue his quest for the kill
high water.
Bonds kept close tab
and Waldhauser, who \
on Markham’s estima!
dollar slice of the Wa
playing his usual genius
wrong stocks, Duff-Smii
thousand dolfars in t!
mere two months. Bon
in the fact that at that rat:
ably blow the whole bi
flat.
By the spring of 1980.
were batching it at Di
two-story suburban hom
hauser had split first fo!
Duff-Smith after the (
Markham took her on «
his hands on his latest in
filed for divorce the
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worship the same go«
the Lord Jesus Chris
money.”
Bonds knew from ex
age-old adage, “Hell h
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and why an ex-wife «
nal’s worst nightmai
knew Tracey would fre
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right moment to appr
The golden opportun:
mer. Tracey’s sist
Markham’s guts, clan
Bonds over to her moth
Tracey was staying @
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20> aks opr
UNCAN, Richard H.,
CE ROCK ‘N'A ROPE
Texas Ranger John Hughes was a
deeply religious man who found his
sermons on his beat when duty kept him
from church on Sunday. But he reckoned
that a man could find clues as well as
preachments along the Rio Grande.
Hughes was patrolling that battle-marked
streain in 1889, as a result of a mine guard’s
finding. The guard, near the little town of
Eagle Pass, had discovered the body of an
elderly woman floating in an eddy of the
river. Her head had been smashed. A piece
of small rope had been tied around her
waist. Then a big rock had been attached
to the rope to make the corpse sink.
Possemen, scouting the banks of the river
for clues, uncovered fresh horrors, In rapid
succession, they dragged out of the Rio
Grande the bodies of another woman, a
young girl and boy. Each body was tied
with rope; the strands binding each of the
four corpses were all of the same fiber.
Moreover, each body was weighted down
with the same kind of stone. No identifica-
tion was found on any of the corpses.
This riled John Hughes a-plenty.
“Sheriff,” he said, “I’m takin’ up that case
where you quit the trail. Let me see them
rocks and let me see them yanks o’ rope.
If it’s new rope, it means he bought it just
for that job.”
The sheriff pulled the evidence out of
his safe. “Hmm,” said Ranger Hughes.
“Rock n’ a rope—a mean killer,”
He took a strand of the rope and one of
the rocks. “If J can find rocks with the same
kind o’ texture,” he observed, “the place
where I find ‘em’ll probably be mighty
close to the murder spot.”
For days, Hughes and Ranger Ira Aten
scoured the Texas bank of the Rio Grande,
picking up rocks.
“Ira, why don’t you ride out for a spell
and git some tobacco,” Hughes said to his
aid. Ranger Ira Aten.
John Hughes kept on and soon found
a pile of rocks which matched those in his
pocket. He found something else too.
His keen eye made out a drag on the
river bank, a place where dim markings
showed that heavy things had been pulled
along. Possibly, they had been human
bodies pulled by a rope.
He followed the drag to a deserted ranch
house, where he found signs of a furious
Struggle. His patient search for rocks had
led him to the murder scene.
He made inquiries in nearby villages,
asking if anyone had recently bought a
rope. Finally, he came to the store of George
Hobbs in Spoftord.
“Yeah,” Hobbs answered. “Sold a rope
&C
TRUE POLICE CASES,
to a saddle tramp, not long ago. Said he
wanted it for a plow line. Sounded funny
to me—a cowboy wantin’ a rope for any-
thing but a lasso.
“That wasn’t all that flustered me about
him. The barrel of his Winchester was bent
worsen a prospector’s fryin’ pan, Said it
got twisted when he beat a mean pack
burro with it.”
A customer spoke up. “I seen that
saddle tramp and his jack. Burro’s hide
was slick. Didn't look to me like he'd been
hit with no Winchester.”
The barrel had bent as the killer clubbed
the victims to ‘death with it, Hughes
reasoned. “Got any o’ that rope you sold
the saddle tramp?”
Hughes compared the strand in his
pocket with the bale of rope the merchant
laid on the counter. The fibers matched.
“Saddle tramp tell you his name?”
The storekeeper scratched his head.
“Believe he did at that. Lemme see—it was
Dick Duncan.”
The name, Dick Duncan, clicked in
Hughes’ mind as that of a second-rate
desperado who was constantly in and out
of the San Saba jail for minor offenses.
Ranger Aten rushed to San Saba, 400
miles away in the wild Texas hills, Hughes
stayed in the border country to question
various, bad men ‘before accusing Duncan.
Aten had found Duncan once more in
jail, which was no surprise. But what he
learned through talk-swappin’ was that
Duncan had bought a small ranch from a
respected widow, Mrs. Ida Williamson. Liv-
ing with Mrs. Williamson at San Saba were
her daughter, also a widow, Mrs. Lavonia
Holmes, and Mrs. Holmes’ two grown
children, Duncan’s down payment consisted
of $200 cash, a wagon with. the name of
San Saba dealer J. $. Clark, printed on the
side; a team of horses and a harness. Dun-
can had then agreed to escort the family
to Mexico where it was planning to settle.
He brought the San Saba sheriff and sev-
eral neighbors of the murdered family to
Eagle Pass to view the remains. All. said
they were pretty sure the corpses were those
of their friends.
John Hughes had anticipated that, too.
He brought in the late family’s dentist, Dr.
A. E. Brown. Dr. Brown swore that the
corpse of the younger woman was Mrs.
Holmes’ after identifying the dental plate
‘in her mouth as his work.
The saddle tramp was indicted and
brought to trial, found guilty and sentenced
to hang.
—Harold Preece
head slowly. ‘No. I don’t have any idea
who killed her.”
Studer and the sheriff stepped outside
the rear door of the tavern. Butch, the
dog, was squatting near a bush. He
wagged his tail when he saw Studer and
came up to him.
Stahlhut said: “Funny, but Butch has
taken a liking to you, Mr. Studer. He
never seemed to like strangers.”
Studer patted Butch’s head. “Butch
and I have become friends.” As Studer
walked away, Butch followed.
It was now 3 in the afternoon. The
little hamlet of Morrison, where 20
people on the short Main Street block
had always been a big crowd, was now
packed with several hundred persons,
who had driven there from all parts of
Grundy County. Newspaper men had ar-
rived from Des Moines and other large
Iowa cities, swelling the crowd. Photog:
raphers were there, with cameras, taking
shots of the tavern, the inside, and of
the officers when they could.
The news that Bill Felty, a truck driver
from Waterloo, had told several of the
sheriff's deputies that he had seen a man
running away from the tavern at around
midnight went the rounds and quickly
became common knowledge.
Felty was at the Marshal's office when
the sheriff and Studer returned there
from the visit to the tavern. Felty was a
husky man, with a booming voice that
rang out of a massive chest.
“Sure, 1 saw a man running away from
the tavern last night,” he announced to
Studer and the sheriff. “I guess it was
around midnight. I was on my way to
Waterloo and I passed through here.
Nobody was on Main Street. It was dark
and quiet. I saw that the tavern lights
were out. Sometimes I stop there. Maybe
I would have stopped last night if the
lights had been on. They weren’t though
and I kept going. As I got past the build-
ing and had a fast view of the side, I saw
a man running away. It looked like he
had just come out of the rear door. |
can’t be sure of that. It just looked that
way.”
“How well did you see him?” Studer
was studying Felty’s face’ closely. “Was
he large or small, young or old.”
“It was pretty dark. [ didn’t get much
of a look at him and I couldn’t tell his
size. | reckon he was about medium build
or I would have noticed whether he was
large or small. He was running like a
deer. I wouldn’t say he was old.”
“Did you stop?” Studer asked.
“No, I just kept on going.”
“What time did you get into Water-
loo?”
Felty was a little taken back by the
question. He hesitated. Then said: “I
guess it was around 3 a.m. I didn’t
check the time.”
“All right,” Studer said. “Thanks for
your help. We may want you to try to
identify certain persons, so stay around
here.”
When Felty left the office, Studer said
to the sheriff: “Get your men on this
Felty and find out everything they can
about him. Also, locate Vern Saak and
the two people with him last night. He
is the truck driver who stopped at the
tavern when Irma Stahlhut was closing,
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between the at-
lave Dr. Cream.
tween the two
agie aftermath.
that Mr. and
Garden Prairie,
at seventy-two
There the hus-
one, became a’
hieago North-
small trame sta-
odayv. To this
ream ’s helper,
-> purpose of
that she and
on page 80)
a (left) ‘re-
any strange
sadistic doc-
(inset) car-
‘dime ndicates
pt the
victims
TIVE MYSTERIES
We
er dee
AN & ded SLL. do 9 ho 9
The Story Thus Far:
OHN R. HUGHES started his adventure-
some and exciting career at the age of
fifteen as assistant to an Indian trader. After
several years, he turned rancher. His first
experience in hunting outlaws was obtained
when he followed the trail of a band of rustlers
who had stolen horses from his and neighbor-
ing ranches. Returning with the animals after
a long and hazardous search through the wilds
of Texas and New Mexico, he acquired wide-
spread fame as a fearless and clever tracker,
and was persuaded to join the Texas Rangers.
He early distinguished himself in the Service’
and soon drew a particularly dangerous assign-
ment. ‘Trouble had broken out in Rio Grande
City, Texas, between Catarina Garza, Mexican
editor and revolutionist, and United States
Customs Inspector Victor Sabre. Hughes was
sent to restore law and order. He arrested
the bloodthirsty editor, but the latter was
released on bond and promptly engaged in a
street duel with the Inspector. Learning
that the Mexican had been seriously
wounded in the fight, Hughes decided
that it was his duty to arrest Sabre—
who had taken refuge at the army post
at the edge of town—and escort him to
the courthouse. The problem was how
to do it without bloodshed, through
streets which were filled with angry
Mexicans clamoring for the Inspector’s
scalp.
The Story Continues:
Part Two
S it was after court hours, Ranger
Hughes waited until the next
morning to go to the army post.
There, he briefly stated the pur-
pose of his visit and placed Inspector
Sabre under formal arrest.
~The Saga of Captain
John R. Hughes, Texas Ranger
BY PAUL HAVENS
Photos from the Famous
Rose Collection, San Antonio,
Texas
Texas Rangers
(above) preparing
to leave their camp
on a lengthy scout-
ing expedition into
the “bad lands”
(Left) When
Hughes (seated
at right) posed with
fellow Rangers, he
had chalked up an
enviable record
33
Word of the Ranger’s intended trip to
the courthouse with Sabre spread rap-
idly through Rio Grande City, and, with-
in a short time, the streets were lined
with excited partizans. Hughes, pre-
paring to leave the army post with his
prisoner, saw that most of the men were
armed. To Sabre he said, “I suppose we
could circle around and slip in the back
door of the courthouse. But I don’t think
you want that—and I’m sure I don’t. I
aim to show these people that there’s
law and order when the Rangers are
here. We'll walk right through them.
If any shooting starts, I’ll give you a
gun.”
Sabre was lacking none in courage,
and, without further comments, they set
forth. ‘Scores of men stood along the
sidewalks. A group of perhaps a hun-
dred had formed in front of the court-
house. Hughes led his prisoner into the
center of the street, and, side by side,
they marched slowly toward their
destination.
The Ranger carried his rifle in the
crook of his left arm, his right hand on
the stock to steady the weapon. The
usual .45’s were on both hips, and tucked
into his belt was Sabre’s pistol. Both
men walked with heads up, disdaining
to glance back to see what, if anything,
was transpiring behind them. Hughes’s
dark eyes flashed defiance at the silent
men on the sidewalks.
Before the pair had traveled far, a
small crowd had collected in the rear,
and was following at a discreet distance.
Hughes and Sabre knew that if trouble
came, it would be in front of the court-
house where sullen men were blocking
the door. But the demeanor of neither
changed. Neither slackened his gait in
the least.
When they were a dozen feet. from
the threatening group, Hughes’s chin
snapped, and his left arm jerked slightly,
causing the muzzle of his rifle to move
a trifle suggestively. “Make way, there!”
he shouted in a curt, commanding voice.
The silent men had had ample time
to reflect on the sheer nerve of the
approaching pair, and the order was as
effective as though it had been aecom-
panied by the snap of a snake whip.
The leaders quickly divided, and, in a
few moments, the others had scrambled
to either side until there was a narrow
human passageway leading directly to
the courthouse door. Hughes and Sabre
walked through the throng, shoulder to
shoulder, and entered the little building.
No one dared even to shout a threat at
the Ranger, let alone make a move to
seize his hated prisoner.
The law-abiding citizens of the town
gave glowing reports of the incident to
Captain Jones, but around the Ranger
camp, Hughes’s bravery drew scant at-
tention. He had merely performed his
duty. On the morrow there would be
equally dangerous work to be done.
[R4 ATEN, first and best of Hughes’s
Ranger friends, was still attached to
Company D, but he had been in East
Texas, attempting to break up a ring of
wire-cutters operating there. Upon his
return to Rio Grande, he and Hughes
were going to a scouting assignment along
the desolate border, with orders to cap-
ture, or clean out, a gang of cattle thieves
whose bold operations were threatening
ruin to ranchers in that territory.
Border scouting was no play for chil-
dren during this period. ‘There were
dangers and hardships every hour of the
day and night, which only experienced
frontiersmen could face. Hughes and
Aten were away from Company D camp
for more than a month on this particular
tour of duty before they finally came
upon the trail of the thieves. And by
that time, the gang had discovered that
the two officers were searching for them
and had fled back across the Rio Grande.
Tired, hungry and out of sorts, the
Rangers headed back toward camp to
report their ill luck. Late one afternoon,
they rode up to an isolated ranch cabin
south of Realitos, seeking lodging and a
meal. They were made comfortable and,
much to their surprise and delight, were
introduced to three extremely charming
young ladies, visiting at the ranch from
‘their home in Corpus Christi, where
their father was a well-known banker
and business man.
The girls were expert musicians, and
one had brought her guitar with her.
That evening, the young Rangers and
the young women held an impromptu
song fest, which proved to be just the
tonic the disappointed officers needed.
Before thé evening was over, they had
accepted the ranch owner’s urgent in
vitation to remain over a day to join
him, and the young ladies, of course, in
a fox hunt.
The relaxation and the mental stiniu-
lus of such charming company was a
rare treat to the Rangers, and, at part-
ing, Hughes discovered that he was
smitten with the middle sister, a gay,
spirited brunette of twenty, whom we
shall know as Mary Todd.
Hughes, alone or with Aten, managed
to pay several visits to the isolated ranch
during the next few weeks. Mary en-
couraged his courtship and, when he
proposed marriage, she accepted. He
would resign from the Ranger service
before his wedding, he decided, and take
his bride back to his Travis County
ranch, or perhaps purchase a better and
larger tract of land in some other section
of the state. But before they could
complete their plans, stern duties oc-
led his full attention.
One afternoon, a workman ran up to
a mine office near the Rio Grande, about
twelve miles above Eagle Pass, and
called excitedly that he had seen a body
floating in an eddy of the river. A half-
dozen men raced to the spot and
recovered the body, which proved to be
that of a middle-aged woman. There
was no doubt but what she had been
the victim of a cruel, inhuman murderer.
She had suffered a severe beating about
the head with some heavy instrument,
and a large stone had been lashed to her
waist with a length of small rope.
County officials were hastily sum-
moned and they soon realized that they
had a mystery on their hands. The
The life of a Ranger often depended on the accuracy and speed with which he could shoot. Practise with rifle and
six-shooter therefore occupied an important place in camp routine
SY Bee:
woman app
one in the
Searching
banks of t
and, within
discoveri
commun
by one, tau:
more wome
taken from
victim of
each weigh
tied by str:
the officers
quently use
The four
frontier ap
undertaking
for public
some one w
woman was
seventeen, :
thirty. Th
twenties. W
came from
were no id
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pockets we!
UNDRI
and fa
could offer
wrote down
four, then
The officer
work on; tl
scene of th
doubtful t!
be cleared.
Ranger A
and Hugh
other case :
Barksdale,
Eagle Pass
JULY, 1940
Bs
Fra ee
cain: Such inital an
a
se
“There might have been two more wo-
men near by whom I didn’t see,” Hughes
suggested. “I don’t remember exactly
whether either of the men with Duncan
had wide teeth, but I might not have no-
ticed. I didn’t like the looks of Duncan,
though. I wonder——”
Aten wondered, too. They discussed
the incident and Duncan’s probable char-
acter at length. Hughes also recalled that
the Mitchell wagon, which was almost
new, bore the name “J. S. Clark, San
Saba” stamped on the box. Obviously
“Clark” was the name of the merchant
who had sold it.
Finally Aten reached a decision. “I’m
going up to San Saba,” he said. ‘May
be foolish—but no more foolish than look-
ing for stray stones along this old river
bank. I don’t like that Duncan either,
and I’d like to find out some more about
him.”
HE Sergeant returned to Eagle Pass the
next morning, then left for San Saba by
stage, while Hughes continued his discour-
aging search along the river bank.
Aten was the first to make progress.
When he arrived at San Saba and called
at the Sheriff’s office in the jail, he was in-
formed that Dick Duncan was confined in
a cell “for investigation.”
“He came in here last night,” the
Sheriff explained, “and claimed that peo-
ple were accusing him of murder. Said he
wanted to stay in until I could give him
a clean bill.”
Aten was perplexed. “What murder?”
he asked.
The Sheriff laughed. “Well, he doesn’t
know, exactly. Guess he means those four
murdered people down at Eagle Pass, if
they happen to be Mrs. Williamson and
her family from here.”
Aten nodded. ‘That’s what I thought,”
he said. “This Mrs. Williamson—who is
she?”
The Sheriff then explained that for sev-
eral months, Duncan had resided on Mrs.
Ida Williamson’s small ranch near San
Saba, along with her two daughters and a
son. The woman was about fifty, the Sheriff
said in reply to Aten’s questions, while one
daughter, Mrs. Levonia Holmes, was about
thirty. The second, Beulah, was a girl of
sixteen, and the boy, Ben, was about twen-
ty-one.
Some weeks earlier, the Sheriff con-
tinued, Duncan had purchased Mrs. Wil-
liamson’s ranch, paying her $200 in cash,
in addition to giving her a new Mitchell
wagon, which he had recently bought from
J.S. Clark, of San Saba, and a team and
harness. Then word had circulated through
the community that the Williamsons were
planning to move to Old Mexico to make
their home, and that Duncan and a cow-
boy friend named Walter Landers in-
tended to escort them there.
“They pulled out of here before day-
break one morning,” the Sheriff said.
“About a week or ten days ago, Duncan
came back, and asked Tom Hawkins, a
blacksmith over here. what had become of
the Williamsons! Everyone here thought
that Dick had taken them down to Mexico.
Well, people got to talking mighty quick.”
He paused a moment before adding, “I’m
glad you came, Sergeant—I intended to
send word down to Eagle Pass this morn-
Aten had heard enough. He was satis-
fied now that the baffling Rio Grande mys-
tery was solved, but he realized that there
was still much to be done before the red-
headed cowboy could be charged formally
with the crime.
98
Border Boss
(Continued from page 35)
He interviewed the voluntary prisoner
in his cell, and pretended to believe every-
thing the youth told him. The cowboy
swore that he had delivered the William-
sons safely in Mexico.
“If those people buried at Eagle Pass
are the Williamsons,” he declared, “then
some Mex must have killed them for the
$200 I paid for their ranch.”
The Ranger next talked with Tom Haw-
kins, the blacksmith, then started a thor-
ough investigation in the community. Be-
fore he had finished, a message came by
stage from Hughes, announcing that he,
too, had made progress. He had located
the murder scene—an old, abandoned
ranch house, about a half-mile back from
the river, some twenty miles above Eagle
Pass.
Leaving word with the San Saba Sheriff
to hold Duncan, Aten hastened to join
Hughes, hoping that incriminating evi-
dence against the cowboy might turn up
at the scene of the crime.
A less observing person than Hughes
might have failed to spot the place, Ser-
geant Aten realized, when he heard the
details. The private had kept faithfully
to his job of examining the rocks along the
river bank until finally his attention had
been attracted to what looked like a “drag”
on the bank—a spot where heavy objects
had been pulled through the grass, possibly
at the end of a lariat.
The grass had grown up again, but there
were marks in the soil which the Ranger’s
sharp eyes had caught. He had followed
the “drag” back from the river to the
ruins of the old ranch house hidden in a
small clump of oak trees and thick mes-
quite. There he had found certain obvious
signs that murder had taken place.
LTHOUGH the two officers searched
diligently, they uncovered nothing. in
the immediate vicinity to link Duncan to
the crimes. But when they broadened their
search to make inquiries at the nearest
settlements, they obtained important in-
formation from George Hobbs, storekeep-
er at the little town of Spofford. He dis-
tinctly remembered selling Duncan the new:
plow line which was later used to lash
weights to the victims.
Also, he had seen the red-headed cowboy’s
Winchester rifle in good condition at the
time he had sold him the rope, but some
days later had noticed that the barrel of
the weapon was badly bent. When Hobbs
remarked about it, Duncan had told him
that he had twisted the barrel while
“handling” a frisky burro. However, W.
W. Collins, a customer who was also pres-
ent at the rope sale, had later seen the
burro, and had particularly noticed that
the animal bore no signs of having been
struck with a rifle.
The Rangers considered this vital evi-
dence against the red-headed suspect. It
was apparent to them that he had clubbed
his victims with the rifle. But the officers
still lacked the necessary evidence to take
him to court. Indeed, they had not legally
established that the four murder victims
were really the missing Williamsons.
Their next move was to clear up this
part of the problem. They obtained court
orders to exhume the bodies at Eagle
Pass, and then brought the Sheriff and
several former neighbors from San Saba
to view them. The neighbors were almost
certain that the victims were the William-
sons, but they could not be positive, owing
to the condition of the bodies.
The two Rangers had anticipated just
such a situation and had brought Dr. A.
E. Brown, a San Saba dentist, to Eagle
Pass. He positively identified Mrs. Le-
vonia Holmes by the dental plate he had
made for her, and young Ben Williamson
by his widely spaced front teeth. Per-
haps identifications through dental work
had been accomplished in earlier cases.
but this was one of the first instances of
the kind in the United States, and Aten
and Hughes were widely praised for their
“brilliant detective work.”
They now had a strong chain of cir-
cumstantial evidence against Dick Duncan,
and he was taken to trial before Judge
Winchester Kelso in Eagle Pass. The
missing Walter Landers was never located,
and there were many who believed that
Duncan had also murdered him and ef-
fectively hidden his body. The cowboy was
convicted and about a year later Was |
hanged for his crimes. ‘
As soon as Hughes was able to lay aside
his duties for a few days, he rode down
to the ranch near Realitos to call upon
Mary Todd. The ranch owner was the
only one there, and he had sorrowful news.
Mary had been taken suddenly ill and had
died. The others had accompanied the
body to a small town on the Gulf Coast
for burial. They had tried to get word
to the Ranger, but he had been moving
around the state so much while engaged
in the Duncan investigation, that it had
reek impossible to deliver a message to
im,
The realization that he would never
again see his beloved Mary was a cruel
blow to Hughes. Disregarding the expira-
tion of his leave, he set out on a solitary
visit to the secluded little graveyard on
the Coast. This was the first of many such
pilgrimages down through the years. When
he. finally returned to the Ranger camp,
he had decided to devote the rest of his
days to the dangerous job of fighting out-
laws. No need to think of returning to
his ranch without his intended bride. The
more dangerous his assignments from now
on, the better he would like them.
This spirit of recklessness caused him to
volunteer, a few days after his return, for
a job which offered much less: than an
even chance of his returning alive. A
relative of Captain Jones was operating
the Fronteriza Silver mine at Sierra del
Carmen, in the Province of Coahuila,
Mexico, about eighty miles south of the
border. The mine yielded plenty of rich ore,
but the owner had to date been unable to
transport the silver bullion to the railroad
station, 160 miles away. Mexican outlaws
always laid in wait to butcher the guards
and make off with the shipments.
i desperation, the owner had appealed
to Captain Jones to get him “three of
the toughest men in Texas,” to convoy the
shipments. Jones mentioned the request
at camp, and Rangers Bass Outlaw, Walter
Durbin, and Hughes volunteered for the
dangerous job.
“The Ranger service needs you men,”
Jones told them, “but if you want to go,
I won’t stop you. You'll be well paid—
and if you get back. come to me and I'll
reenlist you.”
As the men made out their resigna-
tions and prepared to leave, he called
Hughes to one side. “I hate to see you
leave, John,” he said. “I hope you get
back, because I want you in my com-
pany.” He paused, deep in thought. “I
want to warn you.” he finally continued.
“You know as well as I do how mean Bass
gets when he’s drinking. You’ll have to
watch him. If he starts trouble over there,
you'll all face a firing squad.”
Hughes nodded. He had been thinking
TRUE DETECTIVE MYSTERIES
of that very thir
and a great figh
man to have alo
did not drink.
was determined
alcohol, if there
power of doing s
Word that th
ex-Rangers now
mine preceded t
relative made g:
name “Texas Ra
hearts of all ba
the border, and
that the news w
through the mou
be afraid to mo
future, he hopec
The day afte
Texans and five
railroad with a
five bars of si
about 150 pounc
travel was a wh
only signs of ha
mile trip was or
Muchos, contain
and one small ra
HE terrain
country affor:
bandits to hide
well up to them
expert frontiers)
which they beli
a surprise. Th«
signed to acco)
Texan, usually
about fifty yar
Hughes and O
through the bru
out at times as
mile,
The two men
short distance
party, and it w
possible hiding j
were confident
their sharp eye
down on the |
rear, the men o
an excellent pos)
were, of course, «
The success
upon the ability
men. If one we
could give the
would have alm:
plishing their p
one of the flan
group of desper
fight it out alc
into position to
silver.
It was dange
and the train n
first. trip was
countryside was
They were key
points from wl
surrounding are:
portant, in findir
so situated in 1
permit approach
Perhaps it
Texans, or perh
of their presen:
accounted for t
was made unm¢
law had, howe.
from savage mo
snakes. Several]
ing down onto
ready for action
proaching horse
elers.
It took them
the first round
without mishay
more than a 1
successful rounc
few days of re
JULY. 1940
though unconscious.
t him to the hospital
d Kern’s men helped
A moment later, its
king, the ambulance
i Fitch.
thing in his_pockets,
in the dash compart-
urse bearing a Social
she was undoubtedly
e Sheffield Steel Cor-
ne address was given.
one of these stores,”
n the license number
told Frazer and Lieu-
ication man who had
i have to be checked
that the killer might
e King Funeral Home
removed. Zierlin an-
.utopsy, chiefly to re-
set an inquest for the
gsters who had been
—told Kern they had
ree described him as
ith Sheriff Kern, right.
r, Edward's attorney.)
around 35, short and dark-haired. They had never seen
him before.
The sheriff ordered an alarm broadcast from his two-
way radio—one which would include not only the killer’s
description but the two makes of cars he was suspected
of driving.
This done, Kern dispatched Warfield to the hospital,
to sit with the wounded man. It was his idea that the
victim might regain consciousness and give some ex-
planation for the shootings.
A few minutes later Fitch came back from one of the
’ stores and said there were no Rantons in the phone book.
The sheriff mulled this over. “We've got to find out
who those people were,” he told the deputy. “Jot, down
this license number and check it with the Motor Vehicle
Bureau. You may have to find some clerk who can get
into the registry this time of night.”
NABLE ‘to learn anything. more at the scene of the
crime, Kern returned to his office where, with Wil-
liams, he began notifying deputies in the rural parts of
the country to check all Dodge and Plymouth cars,
especially in connection with some officer who would
answer the killer’s description.
They had barely finished when Warfield called in from
the hospital. He had bad news. The wounded man had
died shortly after 9 o’clock without regaining cdén-
sciousness. .
The sheriff hung up grimly. Williams, sensing the
worst, spoke before Kern could give him the evil tidings.
FO tgs
er
a
MRS. BETTY LOU RANTON EDWARDS—
“That gunman made sure he got them both. What do
you think it was—revenge?”
The sheriff shrugged. “Anything I said would be a
guess. We’ll have to get those people identified.”
The phone rang again at this point. The speaker was a
man who wanted to know if any of the sheriff’s men had
reported an auto accident.
“Someone just phoned that my sister’s been hurt,”
the caller said. He identified himself as W. H. Gigout,
1814 Everett Street, and added: “I’ve just finished check-
“ing the hospitals and the police. They tell me there’s
been nothing like that.”
Gigout gave his sister’s name as Mrs. Betty Lou
Edwards.
The “Betty Lou” part of it was identical with the
murder victim’s—or at least corresponded to the Social
Security card in her purse. The sheriff's interest
quickened.
“Did she ever use the name Ranton?” he inquired.
“Yes,” Gigout came back. “That was her first hus-
band’s name.”
Kern said nothing for a few seconds, pondering how
he would soften the blow. Then he decided there was a
good chance the dead woman was Mrs. Edwards and that
Gigout should view the body.
“You’d better come down -here,” he told the man.
“There has been an accident.”
Within the next hour the identification of one victim
was complete, though the sheriff and his men learned
nothing that threw any light (Continued on page 85)
The body of attractive young woman who had been divorced from her first husband and estranged
from her second is shown in the car right after the slaying.
She was struck by three of the bullets.
+
know what'll
this—and it’s
ns.”
ached for the
f Police John
‘ly agreed to
t Garcia and
heriff’s office.
the Highway
ward a patrol
opped before
‘hway Patrol-
Paul Lubane,
o work under
which he sel-
a held a side-
bben, the city
patrolmen.
Jolee is in his
said. In fact,
lieve that he’s
had stationed
oned me that
on.”
ieriff,” Sebben
sheriff replied.
ing I jumped
ned the man
at the filling
> phone booth
o he sure.
iued, “we
, and we
_ ired. But
“no’ll shoot in
n. I want you
ens, no noise.
°ete Mendosa,
reet from the
Paul Lubane,
olee driveway
e house, Seb-
wnt, then we’ll
ur eyes open
iree law cars
house at 817
vas exactly 4
ay patrolmen
>way and the
to a stop in
ieriff Garcia,
the two city
f house went
bell. One of
e door. Two
the first one
your father,”
ly. “Hate to
man_ holding
in the base-
e out.”
t of informa-
se, typical of
a large base-
he house that
nent. Sheriff
, asked to be
tried it and
ow.
d Pete Men-
to force open
id that it was
is not enough
ram.
his mind to
hen floor.
Mendosa
a coping
1yUL of Trini-
‘hway patrol-
nd the other
e side of the
covered, and
that Bartolo
noi cai Aca citer
However, as soon as the hole was
cut in the kitchen and the lawmen
saw Dolce, he scrambled out of range
under the living room.
Sheriff Garcia then directed Men-
dosa to cut a hole in the living-room
floor. Dolce then ran to a spot equally
distant from both holes and refused all
pleas to surrender.
“You’d better come upstairs quietly,
Dolce,” Sheriff Garcia finally said, “or
we'll have to make you come in a way
you won't like.”
There was no answer from Bartolo
Dolce, and at last Sheriff Garcia went
to the door and called Sebben from the
post at the side of the house to which
he had returned.
“Get the gas bombs, John,” he said.
A few minutes later the Sheriff
called out once more: “Are you com-
ci up, Dolce?”
here was no answer.
Then Sheriff Garcia tossed a bomb
into the basement. There was only a
slight explosion. and the house was
filled with choking gas ‘that escaped
from the cellar. The watchers above
heard Dolce gasping and coughing in
the darkness below.
Quickly, John Sebben lowered him-
self on a rope through the hole in the
living room and groped his way, chok-
ing on the fumes to the cowering old
man in the corner of the basement.
Taking the old man by the arms, Seb-
ben dragged him to the hole and, as-
sisted by Mayor Donnelly; tied ropes
‘around him. The pair hauled Dolce up.
In the full light of day Dolce pre-
sented an ugly spectacle. There was a
nasty gash on his head, which officers
later found out he received falling into
a ditch after killing Lucy Maucione.
He was gasping from the effects of the
tear gas, as was Deputy Sebben and
Mayor Donnelly, and he was cursing
wildly between gasps.
Hustling their prisoner, his héad
bandaged on the spot by Doctor Don-
nelly, into the waiting sheriff’s car,
Garcia and Sebben immediately pro-
ceeded to the county jail where Dis-
trict Attorney John Mabry, who had
been advised of the arrest, was wait-
ing.
_ Placing their prisoner in a_chair,
Sheriff Garcia asked if he knew Dome-
nic and Mike Maucione.
“I know nobody,” Dolce replied.
“Where were you on the night of
May eleventh, 1949?” John Mabry
asked.
“Home in bed,” Dolce answered.
, “Why did you try to burn down
“Maucione’s house twice before?” Sher-
iff Garcia asked.
“Didn’t try to burn anybody’s house
down. Don’t know what you're talking
about,” Bartolo Dolce answered.
And for a long half hour he pro-
fessed his innocence and even knowl-
page of the shooting. . }
inally Sheriff Garcia said: “Now
look here, Dolce. We know you did it
and we know where you bought the
chicken bedding that came in the bur-
lap sacks you used. We know you
soaked them in kerosene and set fire to
the house with them. You better make
it easy on yourself and tell us the
truth.”
“T didn’t do it. I don’t know what
you’re talking about,” was Dolce’s only
answer to this.
Finally the sheriff reached into his
pocket and brought out the plaster cast
of the heel print. “You not only did it,
but this proves you did it,” he said—
and he suddenly grabbed Dolce’s leg
and brought the sole of his shoe into
sight.’ “Why, you didn’t even have
enough sense to change your shoes.
Thought we’d have to hunt for the pair
you. wore.”
Saying this, the sheriff unlaced
Dolce’s shoe, placed it on the desk top
and the plaster cast next to it. It was
obvious that the heel print shown by
the cast and the heel of Dolce’s shoe
were exactly the same.
For a momen the recalcitrant old
man stared at the-damning exhibit.
Then, gesticulating violently, he
poured forth a tirade of hatred against
Domenic Maucione.
“Yes, I~ kill! I’m glad I kill! That
Domenic, he is no good. All the others,
they come to’ me to make spells for
them. against their enemies, to save
themselves from. I plan it carefully.
I do it early in morning, because
Flos bt will be asleep. I try to burn
ouse down, all right. Two times be-
fore I try. Domenic he laughs at me,
says I am no good witch doctor. He
won’t pay me for making spells. Then
he and that Mike, they come shooting
at me, and I shoot back. It was for my
reasons, and I would do it again if I
had a chance.”
Hardened to crime through years of
experience, Sheriff Garcia was none-
theless shocked by this sudden and
cold-blooded confession. Taking the
prisoner by the arm, Sheriff Garcia
and Sebben led him to a cell in the Las
Animas County Jail. It was just four
days after the man’s heavy bullet had
snuffed out the life of innocent Lucy
Maucione.
The next morning, May 16th, Dis»
trict Attorney John Mabry filed a first-
degree murder charge against the
self-confessed killer.
Eprror’s Nore: The: name “Hans
Burt” in the foregoing true story is
fictitious. It has been used here to
spare embarrassment to an innocent
man who-had to be questioned by the
‘police.
DETECTIVE
on the reason for the mystifying
double tragedy.
Gigout visited the undertaking
rooms and returned to Kern’s office
white and shaken. The dead woman
was his sister, Mrs. Betty Lou Ran-
ton Edwards, 31, he said, but he had
‘TRIANGLE TRAGEDY
Continued from page 43
no idea who might have killed her.
“Ranton? Edwards?” the _ sheriff
repeated. ‘“What’s the setup?”
-Gigout said his sister had been di-
vorced from Ranton, the father of her
five-year-old daughter, and was: es-
tranged from Edwards. ©
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id 8 o’clock, McCarty
section of Houston,
that Thursday. night,
block, an orchestra
nn, a popular dining
marquee burst into
sning’s feature. Some
hn their children, and
ter.
the street, northward
ittracted no attention
lit the night calm.
seen that one of the
ear where the young-
seemed to have done
man who got out of
sdromptly drew a gun
0 and George Wash-
aving finished playing
two cars and began
isely
At first they believed that the curbed car had been
involved in a traffic violation. A man behind the wheel
and a young woman alongside him seemed to be argu-
ing with the “officer” with the gun.
Suddenly the gun began belching flame. Five loud
explosions, mingled with hair-raising screams, tore at
the night stillness.
Reo and Washburn stiffened, gripping each other’s
arms. “Hey!” Réo gasped.:‘‘He shot them!”
Riveted to the spot, they watched the armed man
thrust the gun back into the holster, peer down at his
havoc for a moment, then turn and walk-slowly back
to the car.
A large truck lumbered up the street, the driver un-
aware of the stark tragedy. The gunman waited. for
him to pass; then he calmly steered his car out into the
traffic lane and drove slowly off.
The two musicians tossed their cigarettes away and
1B
U4 sot 8 218,
lida A Niet a <li
5 = iP ae
=: FES we oS sees on
3 oe
1 Bs
Fo eed
!
by
wees
42
dashed over to the sedan. Both of its occupants lay
slumped down in the front seat, and the interior of the
machine bore evidénce of the carnage.
Blood was everywhere. The girl, young and attractive
once, and prettily dressed in a blue polka-dot frock and
red shoes, had been hit at least three times. Wounds in
her head and chest could be plainly seen.
The driver was about her age, and handsome. It was
not so clear whether he had been badly wounded. But
when Washburn spoke, the man rolled his eyes toward
him and muttered: “Get an ambulance!”
Now it could be seen that a bullet had entered his
body near the left armpit and another had torn through
his scalp.
“Call ...an ambulance!” he repeated. His voice was
weaker now. Then he slumped forward, his head strik-
ing the horn and setting it off. .
Washburn raced into the nearest store and called the
Harris Coynty sheriff’s office. To Deputy John L. Fitch,
who answered, he blurted the news of the tragedy.
} hee reactions were automatic. He put on his hat,
hurried out to the dispatcher, ordered .that the
sheriff and other officers be notified, and directed that
an ambulance be summoned. Then he got into his car
and sped to the scene.
A police cruiser and about 200 curious spectators were
there when he arrived. Since the shooting had occurred
outside the city limits, it was plainly a job for the county
authorities. The police officers knew this, for all they
were doing was pushing the crowd back.
Fitch made a quick examination of the victims. The
girl seemed dead, so far as he could tell, but the man
was breathing, though with difficulty. The deputy spoke
to him, but he could not answer.
Wails of sirens suddenly filled the street, and a num-
bér of cars raced up. From one stepped Sheriff C. V.
“Buster” Kern and his chief deputy, B. E. Williams. A
second county machine bore Captains Lloyd Frazier and
J. D. Walters and Deputy Sam Warfield. ,
From another direction, but just as promptly, came
Justice of the Peace R. R. Zierlin Jr., of Maytown, the
acting coroner. Finally, an ambulance from the Park
View Hospital pulled up.
Fitch, by this time, had discovered that Reo and Wash-
burn were witnesses, and that it had been the latter who
called him. Now, as the intern made his examination, he
had the two musicians brief Sheriff Kern on what had
happened.
“You say this man looked like an officer?” the sheriff
asked.
The pair nodded, describing how the car had been
forced to the curb and how the couple’s assailant had
removed his gun from the holster before approaching
them.
“What kind of a car was he using?” Kern inquired,
on being told that no one had thought to get the li-
cense number. ;
“A Jate model Dodge or Plymouth,” Washburn replied.
Kern frowned. “I don’t know any law-enforcement
agencies using either of them,” he said.
But he knew that plenty of small-town officers drove
their own machines. Yet even if the assailant had been a
cop, the shootings hardly would have been justified
unless the driver of the other car had pulled a weapon.
Fitch said there was no gun in the sedan. Only a
single slug that had penetrated one of the victims. This
seemed to be a .38-calibre bullet.
The ambulance surgeon interrupted Kern’s question-
ing of the witnesses. “The girl is dead—killed instantly,”
he said, “but the man is still alive, though unconscious.
There’s a chance for him if I can get him to the hospital
right away.” ‘
The sheriff nodded his consent, and Kern’s men helped
to load the victim on a stretcher. A moment later, its
siren screaming and red lights blinking, the ambulance
raced off.
“Any identifications?” Kern asked Fitch.
The deputy said the man had nothing in his_pockets,
nor were there any cards or papers in the dash compart-
ment of the sedan. The girl had a purse bearing a Social
Security card which showed that she was undoubtedly
Betty Lou Ranton, an employe of the Sheffield Steel Cor-
poration, a Houston concern. No home address was given.
“Check the phone directory in one of these stores,”
the sheriff said. ;
When Fitch left, Kern jotted down the license number
of the wounded man’s car. Then he told Frazer and Lieu-
tenant Mel Patton, another identification man who had
just arrived, that the sedan would have to be checked
for fingerprints, on the principle that the killer might
have put his hand against it.
A hearse was summoned from the King Funeral Home
and the body of the young woman removed. Zierlin an-
nounced that he would order an autopsy, chiefly to re-
move additional slugs, and would set an inquest for the
following day.
Two more witnesses—the youngsters who had been
playing at the curb, and a woman—told Kern they had
seen the killer close up. The three described him as
INDICTED FOR MURDER—
Edwards, left, smilingly talks with Sheriff Kern, right.
(Center, Charles Heidingsfelder, Edward's attorney.)
—
e Sa
around 35, sh:
him before.
The sheriff
way radio—on
description by
of driving.
This done, |
to sit with the
victim might
planation for
A few minu
stores and said
The sheriff
who those pe
this license nu
Bureau. You :
into the regist
U NABLE t
crime, K«
liams, he begz
the country 1
especially in
answer the k
They had bs
the hospital. !
died shortly
sciousness.
The sheriff
worst, spoke !
MRS. BETT
The body o
from her se:
ha
Execution date is upheld for inmate
a
28 A
Ghe Dallas Morning News
Sunday, July 31, 1994
Ss
for whom murderer has offered to die
Associated Press
HOUSTON — The Texas Court of
Criminal Appeals on Saturday up-
held the Tuesday execution date for
death row inmate Robert Drew,
whose cry of innocence has re-
ceived unusual support from a con-
victed murderer in Vermont, Mr.
Drew’s attorneys said.
The ruling was 5-4, according to
a news release from the New York
offices of Mr. Drew’s attorneys, who
said they plan further appeals.
The action could not immediate-
ly be confirmed Saturday after-
noon.
The Texas attorney general’s of-
fice said it wouldn’t get involved
until the case reaches the federal
level. ie
Doug S. Mason II, a convicted
murderer in Vermont, has offered
to die in place of Mr. Drew because
he believes his claims of innocence.
Mr. Mason wrote a letter to Mr.
Drew’s attorneys from his prison
cell in Swanton, Vt., offering him-
self to the executioner instead of
Mr. Drew, a Vermont native.
“I'm willing to go in his place
and give them a show of death, plus
I'm spiritually connected more than
flesh,” wrote Mr. Mason, who is
serving 15 to 30 years for murder.
“Please do not think of this as cra-
zy.”
Mr. Mason wrote that his offer is
“serious and sincere. THIS IS NO
JOKE, for Life and Death is NOTH-
ING TO JOKE ABOUT!”
Mr. Drew’s attorneys faxed it to
the news media. It is just one more
wrinkle in the case against Mr.
Drew, whose death warrant was
signed by a judge using a smiley
face.
Mr. Drew was convicted in the
1983 stabbing death of 17-year-old
Jeffrey Mays. He and Ernest Pura-
lewski hitched a ride with the Ala-
bama teen in exchange for gas mon-
ey, then stabbed Mays when they
arrived in Harris County.
Mr. Puralewski got a life sen-
tence in exchange for testifying
against Mr. Drew, but he recanted
his story about Mr. Drew’s role 101
days after Mr. Drew was sentenced
to death.
It could not be considered dur-
ing appeals because Texas law says
new evidence must be presented
within 30 days of sentencing. That
decision outraged Vermont officials
who oppose the death penalty.
Mr. Drew’s case gained national
atiention when his attorney object-
ed to a “happy face” that retired
District Judge Charles Hearn drew
on his July 15, 1992, execution or-
der.
Judge Hearn defended the signa-
ture by saying it expressed his
Christian faith.
The Texas Court of Criminal Ap-
peals decided that the face, which
appeared on documents in the case
since 1988, did not violate Mr.
Drew’s constitutional rights. The
federal courts agreed.
State District Judge Ruben Guer-
rero, who set the Tuesday execution
date for Mr. Drew, said he never has
seen such a preposterous offer as
Mr. Mason’s.
“This was a brutal killing,” he
said. “You don’t trade somebody’s
life for another. They know that
would never happen. They are just
trying to get some publicity.”
PON et ty rg eg
EO NAC spe Set 06
eer te Me ie
(A
ee iy
THE OAKLAN
=
) CS *
Tt EP bree \ bi i ‘es
D TRIBUNE, g3i5 iF oR
at Boris |. pe kes Ag te grok, ati a 26 eee ' SER I, ee eRe ROR
his polite fe. fe Pend oe Heense ig signed with a grin and “Kunstler s
fan i i ne Jud be in Maas Rie ~he. writes cheery checks to’ pay shows the ‘prevail
[A-10] || lappy. ace after all his , Household bills, Hearn says he “Tegarding the death
‘Signatures — even Ras ea opt emblem on geverybody y has»
. “ics (RNa Phe geliilia! ioe. Die. PRs os ocuments OF EATS... hice fg ed «. that now'w
—— |) &xecution or GOS anaes Thus, the visiting state district . with ‘smiles than tears
ae i __,~* ‘Sadge’s order setting an Oct. 15 “Ma be Hearn's done o
Seman . Tee ies PEE eS Ate | taey ‘execution date came with a smile, thing.-here Maybe he’s
but hope- HOUSTON ~ For as longas he too, pe . the feeling that these
a diet of can remember, Judge Charles y, | “It's kind of amusing in some ecome routine,”
com- Hearn has put a‘happy face‘on his " sense ‘of the word that someone .. Tew, a. native
an) signature in hopes of brightening Would want to make’ something Vt. has. been ‘on ‘death’ row for a
f *. someone's day. After he signed ‘a ‘bad out of it,” he said. , decade’: for: the:«: a
-r cut.in man’s execution date. with his: -: “As far as I'm Concerned, it’s a’ death of Jeffrey: Mays,
38.9 bil- usual flourish, he provoked an“ good signature. You've got to be a - mingham, Ala.\’D
financial QUECTY,, 115, bine os lon. «ta eevi ADPY Person. We've got too man hiking and. Mays
“It's” terribly: insensitive, It's: People .... walking around with . toward Houston fro
“ss . like: someone: ‘laughing ativa: fu: ‘grim looks on their faces,” a _ Kunstler,’
at a Neral, Said William Kunstler; at: ' Hearn, who said the smiley face Drew’s' innoce
a torney. for Convicted killer Robert is symbolic of his faith in God, © to Study whe
tariff Nelson Drew, ‘T'm’sure he (Drew) can't remember when he started Can’ be used to “get:
stem-. Was'shocked by it. Who would not ending his signature with the em- Since Hearn now retired, 'was -
nal!" |: be shocked?” ° . Feeble '. blem. On the execution order, the’ ‘trial Judge’in the’ case' ‘the sign’
ports: | .- Hearn. 62, ‘said: Tuesday he. face is about the size of the capital could be used to show the j udge is’.
Od iy, meant no disrespect. His driver's ““C" in his first name.” oe: insensitive. Pe pease eee
es.
Justice gives reprieve to man facing Dec. 4 execution
Fi HUNTSVILLE, Texas — A Vermont man facing execution in Texas next
week has won a reprieve from U.S. Supreme Court Justice Antonin Scalia.
Robert Drew, who claims to be the only person from his state on death
row anywhere, faced lethal injection Dec. 4 for a 1983 killing in Houston.
Justice Scalia’s order, issued Wednesday, blocks the execution pending
the full court’s disposition of his case. That's expected sometime between
January and late June, Mr. Drew’s attorney, Ronald Kuby, said. Mr. Kuby
and law partner William Kunstler want the court to hold Mr. Drew’s peti-
tion until the justices decide two other cases which raise identical issues
lo those presented by. Mr. Drew. Mr. Drew, 33, from Rutland County, Vt.,
was sentenced to death for the 1983 Stabbing death of Jeffrey Mays, 17,
of Birmingham, Ala., who had given a ride from Lake Charles, La., to Mr.
Drew, who was hitchhiking toward Houston.
DALLAS MORNING NEWS
FRIDAY, NeveEmBeER 27, 1992 .
Judge rebuffs bid to dismiss execution order
‘W HOUSTON — 4 Jug @ wh :
execution order with Pikes fece anna a al er ne
man’s scheduled lethal in ection be
Attorneys for convicted Kl Nok
an Oct. 14 execution “was as shocking
DALLAS | rokne WES
WED. 9-29-93
n= ns
Charles J. Hearn... Says he
meant no disrespect by add-
ing a “happy face” to his sig-
nature on an order setting a
killer’s execution date.
Judge draws
‘happy face’
on death order
wlssociated Press
‘ HOUSTON —' Visiting state Dis-
trict Judge Charles J. Hearn has put
a “happy face” on his Signature for _
as long as he can remember with *
hopes ‘4of brightening someone's
Cag a oe ‘
His driver's ‘license is sign,
with a grin, and he writes cheer
checks to pay household bills. TH
62-year-old jurist said he has ev ‘
documents for years,
That's why Judge Hearn comet
understand the outcry over hig ér.
der setting an Oct. 15 execution datd
fo convicted killer Robert Nélséx
Drew. .
_ The -message, of course, , cate
with'a smile:.
“It's terriblyinsetisitive. It's like
Someone laughing at a funéral,” Mir,
Drew’s attorney, William K ef,
Said Tuesday, “Tm sure he (Mr.
‘Drew) was shocked by. it. .Who
would not be shocked?”
Judge Hearn on Tuesday said he
mean no irony by adding a happy
touch to the grim notice.
“I don't mean any disrespect,”
Judge Hearn said, “It's kind of
amusing in some sense of the word
that someone would want to make
something bad out of it. It's just a
signature like yours is or anyone
else's is. My Signature is my signa-
ture, and there's not any impor.
tance as far as I'm concerned,”
Mr. Kunstler, who maintains Mr.
~ Drew's innocence, said he plans to
study whether the happy face can
be used to get a new trial. Since
Judge Hearn, now Tetired, was the
trial judge in the case, the sign
could be used to show the judge is
insensitive to accused capital
killers, Mr. Kunstler said.
Mr. Drew has been on death row
for a decade for the 1983 stabbing
death of Jeffrey Mays, 17, of Bir.
mingham, Ala. Mr. Mays had given
hitchhiker Mr. Drew a lift toward
Houston from Lake Charles, La.
‘Court reruses to hear appeal of death row inmate
HOUSTON — The U.S. Supreme Court on Monday refused to hear an
po of Texas death row inmate Robert Drew, who was challenging a
Houston judge's signature that included a “happy face” on his execution
warrant. Mr. Drew's attorney, Ronald Kuby of New York, said that while
_ the -high court would not hear the case, no court has ruled yet on the:
' -constitutionality of District Judge Charles Hearn using the smiling face as
part of his signature. The matter went to the Supreme Court after lower
courts also rejected Mr. Kuby’s complaint.
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Continued from Page 1
\ Kuby and friends George Long- ;
necker, Phyllis Salter, and Judith
Tomlinson. Execution advocates
\ were also on the scene, pr aim-
| ing that if Drew was innocent, he
\ wouldn’t be in prison. Others
‘ were more succinct, stating that
“the m__— f____ deserves to
‘die.”
: Members of the two groups
came to Texas to be with Drew
after striking up 4 long-distance
‘friendship. She, along with Kuby,
Salter, Longnecker, some mem-
bers of the media, and TDCJ offi-
‘cials were present in the room
'Jooking into the death chamber
when the execution took place.
Drew’s case has gained much
' publicity since its inception,
starting when a judge signed his
death warrant with a happy
face. The Texas judge defended
his action by saying that he had
been signing all of his correspon-
dence with the same mark for
years. Drew gained notoriety in
his home state of Vermont as be-
ing the only native of the state
on death row. Vermont is one of
the 14 states in the nation that
does not have the death penalty,
and the case led
there.
Last week, the case gained
even more publicity when a man
in-a Vermont prison offered to
take Drew’s place at the execu-
tion. Texas officials deemed the
offer preposterous.
Drew spent his final day typ-
ing, listening to the radio, and
visiting with friends Tomlinson,
Longnecker and Salter. The last
meal that Drew requested was -
steak, ham, two hamburgers, two
pieces of fish, and a chocolate
milk shake. He died wearing a
black shirt and pants and a pair
of white high-top sneakers.
Drew parted by addressing
his four personal witnesses: a
love you all. Everybody keep up
the fight. And remember th
to protests
at the
death penalty is murder — they
are taking the life of an innocent
man.
-By AIMEE VAN ASPEREN
The Huntsville Item B-2-9 f
After a final assertion of his in-
nocence, convicted killer Robert
‘ Drew coughed, sputtered and died
through tears in this year’s eighth
lethal injection execution at the
Huntsville Unit.
Drew was pronounced dead 22
minutes after midnight in the exe-
cution chamber of the Walls Unit
of the Texas Department of Crimi-
nal Justice, the 79th since Texas
reinstated the death penalty in
1982, while protesters argued his
fate outside the prison.
__ “Tonight, they’re taking the life
of an innocent man,” said Drew,
convicted in the 1983 stabbing
death of 17-year-old Jeffrey Mays,
“Remember the death penalty is
legal murder.”
According to court records,
Drew, who was hitchhiking,
stabbed and killed the 17-year-old
runaway, who had picked him up
in Louisiana to give him a ride to-
ward Houston. Drew then alleged-
ly took Mays’ wallet and watch.
Ernest Puralewski, who was al-
so in the car, is currently serving
60 years in prison after having
pleaded guilty to Mays’ murder.
According to Drew, Mays threat-
ened him if he attempted to hinder
the attack. :
“He was bigger than me. He had
a knife. He said if I made a move,
I'd be next.” Drew said he was
standing behind the car at the
time of the attack, inebriated,
Puralewski, who originally
claimed that Drew assisted in the
killing, later recanted his testimo-'
ny, stating that “I alone committed
the murder of Jeffrey Mays. Robert |
Drew did not assist me in any
at execution
way.
“The state refuses to admit
they made a mistake” about his
role in the murder, Drew said in an
interview last week.
Having failed nonetheless to re-
ceive a last-minute stay of execu-
tion Monday, the lethal drugs be-
gan flowing into Drew’s veins at
12:14 a.m.
Outside, approximately 50 pro-
testers gathered at a candlelight
vigil, condemning Drew’s execution
as well as the death penalty in
general.
“It’s not about us,” said one law
student, pointing toward the group
of people gathered outside the
Walls Unit. “It’s about what’s hap-
pening in there. It’s about what’s
happening with those prisoners.”
Another law student, candle
flickering at her feet, voiced her
concerns about the adequacy of
representation that the inmates
receive. “The appellate attorneys
are usually good, but by then, it’s
too late.”
Others who came in support of
Drew were his attorney Ronald
* DREW, Page 5A
Robert Drew —
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: NATION
Vermont Fights
Texas Execution
Of Resident
It threatens sanctions if
Punishment is carried out
Reuters
Montpelier, Vt.
Vermont lawmakers, angry
over the planned execution of a
Vermont native in Texas, said
yesterday that they will ask resi-
dents to curtail Spending money
in the Lone Star state if the exe-
_ Cution goes ahead. |
Vermont legislators are Partic-
ularly incensed by a Texas law that
allows the courts to disregard evi-
* dence that emerges more than 30
days after.an inmate is sentenced,
The execution Scheduled for
Thursday of Robert Drew, 34, of
West Pawlet, Vt., who was convict-
ed of participating in the stabbing
death of a teenager in Texas in
1983, has united liberal and conser-
vative Vermont lawmakers and
generated a public outcry,
State Representative Andrew
Christiansen, D-East Montpelier, .
and fellow legislators have agreed
to sign a resolution to be introduc-
ed in the 1994 session discouraging
Vermonters from spending money
in Texas.
The case has made unlikely
bedfellows of supporters and op-
ponents of the death penalty.
“We formed an unholy alli-
ance,” said state Senator Vincent
Illuzzi, R-Essex Orleans, who sup-
ports the death penalty but objects
to Drew’s execution.
Paul Bogosian, a Weathers-
field, Vt., resident and radio talk
show host in hearby New London,
N.H., has spearheaded the fight to
save Drew.
“This is not about Capital pun-
Ashment,” he said. “This is about
assassin
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Killer executed
for 1983 murder
of Alabama teen
Associated Press
HUNTSVILLE, Texas — A con-
demned murderer, whose death
warrant once carried the “happy
face” signature of a Texas judge,
proclaimed his innocence and
sobbed as he was executed early
Tuesday.
’- Robert Drew, 35, of West Pawlet,
Vt., received a lethal injection for
the 1983 beating and stabbing death
of 17-year-old Jeffrey Mays. —
The Birmingham, Ala., youth
was killed: near Houston after he
had picked up Mr. Drew, who was
hitchhiking along Interstate 10 in
Louisiana.
: Mr. Drew insisted that another
hitchhiker in the car commgtad
the murder.
“Remember, the death penalty is
legal murder,” Mr. Drew said while
strapped to the Texas death cham-
ber gurney to await the lethal injec- ©
tion. “Tonight they’re taking the
life of an innocent man.”
With tears streaming down his
face, Mr. Drew coughed and gasped
- several times. before dying. In his
left arm, one of the needles carry-
ing the lethal chemicals was insert-
ed in a tattoo of a green cobra in-
scribed with the name “Big Bad
. Bob.”
The execution was carried out
several hours after the US. Su-
preme Court rejected the last of two
appeals it considered in the Drew
case Monday.
“It is such a relief,” Mr. Mays’ -
mother, Rebecca, who now lives in
Florida, said when told the execu-
tion was carried out. “Drew was not
innocent. He. went to his death
knowing what he did and still try-
ing to convince people he was inno-:
cent.”
Mr. Drew’s attorney, Ronald Ku-
by, bitterly told about 20 death pen-
alty opponents who gathered out-
side the Walls Unit prison in
downtown Huntsville that the exe-
cution was a tragedy.
“This was a killing that was pre-
meditated by people wearing suits
and ties, people with law degrees,”
Mr. Kuby said.:“They sat down in
offices, planned this killing and
carried it out.”
' Mr. Drew contended that Ernest
Puralewski, the other hitchhiker in
the Mays car, killed the Alabama.
teen-ager. Mr. Puralewski is serving
a 60-year prison term after pleading
guilty. He recanted his earlier story
that Mr. Drew participated in the
slaying, but prosecutors said there
“never was any question about Mr,
Robert Drew .
the death penalty is legal mur-
der. Tonight they’re taking
the life of an innocent man.”
.. “Remember,
Drew’s actions. _ ,
Mr. Drew gained notoriety i in his
home state as the only Vermont na-
tive on death row. Vermont is one
of 14 states without the death penal-
ty, and his case generated protests
there. .
Mr. Drew’s case also gained pub-
licity and angered death penalty op-
ponents when a Houston judge two
years ago signed his death warrant
with a “happy face.” The judge de-
fended the action, saying he had
signed all of his correspondence for
years with the cartoon.
‘.The lethal injection was the
eighth this year and the 79th since
Texas resumed the death penalty in
1982. It was the 246th execution in
the United States since the Supreme
Court in 1976 allowed capital pun-
ishment to resume. .
Ache ha a ; (Be TS ee BN yet
, C-2s- 7; Cw ;
| Dine S pouehs Chronicte
August execution set MU
for killer from Vermont
fe , _ By JENNIFER LIEBRUM | | evidence must be presen
Pande BGEMEIS ten Houston Chronicle
Pistamrees (kee 8 —
ieee TT ae
ght. TP
ented within
Pes | 30 days of sentencing, it could not
-“—— | be Considered, which Outraged
bis. “ie so Vermont officials who oppose the
Raaeony A judge Friday set an August | death penalty. is
a* oe f
nth thiMs, .
4
.
‘ight for life included a contention [em
*. that a Houston judge violated his: Bi
rights by drawing'a “happry face”
on his death warrs ey
Appellate prosecutor Koe. Wil-
_ $00 said Drew. has “ retfy much >.
we his defenge at.
j torney’s* ob-
i jection toa
a “happy face”
that then.
Hougter Poct
__ hen another judge drew a'smi.. ° tea
Order, SiG Re ae
% dizath of 17- oa 992, «
none 0) Year-old Mays. He and ;tion order.
SF ea Eres Pareles if ed tide:
ae eee € Alabama { ex:
Sesehangefor™ gas ‘n ney, then” tian ane ek see
, Je bie Sy
ostabbed ; rivad . tian faith.
: ee ht lest anit The Texas Court of Crirfinal
aot A Furalewskl got a Ife sentence in’ ‘4 Is decided that the ace,
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ge MP > deere x
10%
“G0 Mi role? 101 ‘days: after ‘Diss
eee
Het i ape ee
ENE CHLONTAE
URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881
EXTRA 83/93 _ Death Penalty 4 October 1993
USA (Texas): Robert Nelson DREW
Robert Nelson Drew is scheduled to be executed in Texas, USA, on
14 October 1993.
Robert Drew, white, was sentenced to death in December 1983 for
the murder of Jeffrey Mays, white, in February 1983. According
to his attorneys, Robert Drew has consistently maintained his
innocence. He was convicted largely on the testimony of an eye
witness who has since recanted his testimony. According to his
attorneys, shortly after Robert Drew was convicted, a co-
defendant who was sentenced to 60 years imprisonment for his part
in the crime, boasted to two fellow inmates in the jail in which
he was being detained that he alone had killed Mr Mays. He later
signed an affidavit to this effect, allegedly stating "...I am
the person who murdered Jeffrey Mays and Robert Drew is
innocent".
Texas law requires that a new trial motion based on newly
discovered evidence should be made within 30 days of sentence.
Robert Drew’s attorneys have appealed without success for a
retrial based on this late evidence of innocence because it was
discovered too late.
Amnesty International opposes the death penalty in all cases as a
violation of the right to life and the right not to be subjected
to cruel, inhuman or degrading punishment, as proclaimed in the
Universal Declaration of Human Rights. Amnesty International
believes that in this case, at the very least, the execution
should be stayed pending a thorough review of the new evidence.
BACKGROUND INFORMATION “
In January 1993 the US Supreme Court ruled in another Texas case
that late claims of innocence would not normally be considered by
the federal courts. The Court held that the state executive
clemency process was the proper forum to consider such claims
when presented too late to be heard by the courts.
However, Amnesty International is extremely concerned that the
process of executive clemency in Texas is inadequate. (Under
Texas clemency rules the governor may commute a sentence of death
only if she receives a favorable recommendation from a majority
of the 18-member Board of Pardons and Paroles. However, she does
have power to grant one 30 day reprieve in a death penalty case).
The Board has refused, for example, to even hold a hearing into a
late claim of innocence presented in another death penalty case.
Legal arguments are at present. taking place in Texas to decide
whether the Board should hold a hearing into this case.
This Urgent Action appeal originated from Amnesty Internationa’ s research neadquarters at the International Secretariat in London, pre
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs. color, sex. ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience It works tor fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.
De ee eee
hee:
Apart from a number of commutations granted in the 1980s as the
result of two key court rulings, the Board has never recommended
clemency in a capital case in recent years, despite strong
grounds being presented in a number of cases. It has held only
one hearing in recent years.
RECOMMENDED ACTION: Please telephone/send telegrams/telexes/
faxes/express and airmail letters:
To the Texas Board of Pardons and Paroles:
- urging the Board to hold a fair hearing into Robert Drew’s
innocence clain;
- urging the Board to recommend that Governor Richards grant
clemency to Robert Drew on humanitarian grounds;
- urging that at the very least a stay of execution be granted to
Robert Drew pending the outcome of the legal arguments currently
taking place in Texas;
To Governor Richards:
- urging that at the very least she grant a 30-day reprieve to
Robert Drew;
- urging her to request the Board to review the case of Robert
Drew.
APPEALS TO [Salutation]
Texas Board of Pardons and Paroles [Dear Board Members]
Executive Clemency Unit
Texas Department of Criminal Justice
Pardons and Paroles Division
PO Box 13401
Austin, TX 78711
(Faxes: 1 512 467 0945)
(Tel: 1 512 406 5852)
The Honorable Ann Richards
Governor of Texas
Office of the Governor
PO Box 12428, Capitol Station
Austin, TX 78711
(Tel: 1 512 463 2000)
(Faxes: 1 512 463 1849)
{Dear Governor ]
(Telegrams: Governor Richards, Austin, Texas 78711)
(Telexes: 910 874 1849)
COPIES TO:
The Letters Editor
Austin-American Statesman
Box 670
Austin, TX 78767 (Fax: 1 512 445 3679)
PLEASE SEND APPEALS IMMEDIATELY.
O Postage costs: airmail letters cost 60 cents a page (1/2 oz.) to most
countries; aerogrammes are 45 cents each; airmail postcards cost
40 cents to most countries. Mail with colorful stamps may not reach
its destination.
O The name of Amnesty International may be used, although letters
written in a private or professional capacity are often more effec-
tive.
O Telegrams and letters should be brief and courteous. Stress that
your concern for human rights is not in any way politically partisan
Refer to relevant provisions in international law, such as the United
Nations Universal Declaration of Human Rights:
Article 3 - "Everyone has the right to life, liberty, and
the security of person.”
Article 5 - "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.”
Article 9 - "No one shall be subject to arbitrary arrest,
detention or exile."
© Send your appeals in English unless you are fluent with the lan-
guage.
© Please take action as soon as you receive this Urgent Action
appeal. Carefully read the recommended action and send a tele-
gtam or airmail letter immediately to one or more of the ad-
dresses given. Other letters can be sent afterwords.
O Correct salutations include: Dear Sir - for local authorities,
prison commanders, police chiefs; Your Honor - for judges; Dear
Admiral, General, Captain, etc. - for military officers; Your Ex-
cellency - for most minister-level officials and state presidents;
in closing use "Yours sincerely" or "Respectfully" for any author-
ity.
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PRIOR PRISON RECORD
: None
w was sentenced to die for the Feb
ruary 22, 1983 stabbing death of
CRIME SUMMARY: _ Dre
Jeffrey Leon Mays,
a 17-year-old runaway f
rom Alabama. According to court records,
w stabbed Mays to death after a fight. Drew allegedly took Mays!
watch and wallet
Dre
after the slaying.
Ernest Puralewski, 37,* charge
d originally with capital murder
CO—DEFENDANT(S):
after pleading guilty t
o murder and received a 60-year sentence.
signed a statement
He later recanted
his testimony stating, "I alone committed th
e murder of Jeffrey
Mays. Robert Drew
did not assist me in any way. Robert Drew is innocent."
RACE OF VICTIMS(2):__White male
NUMBER ON DEATH ROW DAY OF EXECUTION: 388
Sennen yee
°
NAME: Robert Drew D.R.# 755
DOB: 04/08/59 RECEIVED: 01/05/84 : AGE: 25 (WHEN REC'D)
COUNTY: Harris DATE OF OFFENSE: 02/22/83
AGE AT TIME OF OFFENSE: 24 RACE: White HEIGHT: ea °
WEIGHT: 140 EYES: blue HAIR: brown
NATIVE COUNTY: Rutland STATE: Vermont
PRIOR OCCUPATION: carpenter EDUCATION LEVEL: 10 years
PRIOR PRISON RECORD: None
SUMMARY : Drew was sentenced to die for the February 22, 1983 Stabbing death of
Jeffrey Leon Mays, a 17-year-old runaway from Alabama. According to court records,
Drew stabbed Mays to death after a fight. Drew allegedly took Mays' watch and wallet
after the slaying.
CO—DEFENDANTS: Ernest Puralewski, 37, charged Originally with Capital murder signed
a statement after pleading guilty to murder and received a 60-year sentence. He
later recanted his testimony Stating, "I alone committed the murder of Jeffrey Mays.
Robert Drew did not assist me in any way. Robert Drew is innocent."
RACE OF VICTIM(S): white male
in NEW | 7imES NATIONAL FRIDAY, OCTOBER 15, 1993
Texas Court Spares Vermont Man
Just Before Scheduled Execution
Special to The New York Times ,
HOUSTON, Oct. 14 — A Texas appel-
late court early this morning spared
the life of Robert Drew hours before he
was scheduled to be executed by lethal
injection for the 1983 killing of a teen-
ager who picked him up as a hitchhik-
er.
Mr. Drew's lawyers took the case to
a state civil court on Tuesday, asking it
to order that new evidence of Mr.
Drew’s innocence be heard. The civil
court denied the request, and on
Wednesday Mr. Drew's lawyers ap-
pealed to the Third District Court of
Appeals in Austin.
A few later, a three-judge panel of
the Third District Court issued a tem-
porary injunction barring the execu-
tion until it can consider the merits of
Mr. Drew's appeal. ¥
This morning, the Texas Court of
Criminal Appeals refused to overturn
the injunction, just a few hours before
Mr. Drew was to be put to death at
dawn. He had already eaten his last
meal of two cheeseburgers at the state
prison where death row inmates are
housed, near Huntsville, about 75 miles
north of here. an
Mr. Drew’s case has drawn much
attention in his native state, Vermont,
which has no death penalty. Rallies:
have been held there, and some offi-
cials have suggested a boycott of Texas
if the execution takes place. Gov. How-
ard Dean of Vermont has urged his
Texas counterpart, Gov. Ann W. Rich-
ards, to commute Mr. Drew’s sentence.
Mr. Drew, 34, was convicted and
sentenced to death in the murder of
Jeffrey Mays, 17, of Alabama. Mr.
Mays and a companion picked up Mr.
Drew, who was hitchhiking, as well as
another hitchhiker, , Ernest Pura-
jewski, who was picked up separately.
Mr. Drew claimed he saw Mr. Pura-
lewski kill Mr. Mays but that he was
drunk and afraid to intervene in the
fight.
Mr. Puralewski, who pleaded guilty
to a reduced charge and is serving a 60-
year sentence, testified against Mr.
Drew. But he changed his story more
than three months later, saying he.
alone committed the murder. Under
Texas law, however, new evidence of
innocence must be presented within 30
days of conviction.
That 30-day rule is the subject of
another case now before the Third Dis-
trict Court. In that widely publicized
case, another condemned man, Gary
Graham, is arguing that a refusal to
allow him to present new evidence vio-
lates his rights under the Texas Consti-
tution.
_—
a
‘Court refuses to hear appeal of death row inmate I
@ HOUSTON — The U.S. Supreme Court on Monday refused to hear
appeal of Texas death row inmate Robert Drew, rs was chilean 0
Houston judge's signature that included a “happy face’ on his execution
warrant. Mr. Drew's attorney, Ronald Kuby of New York, said that while e
the high court would not hear the case, no court has ruled yet on the:
constitutionality of District Judge Charles Hearn using the smiling face as
part of his signature. The matter went to the Supreme Court a
courts also rejected Mr. Kuby’s complaint. ¥ an ener
: abla [Morning /MVew's>
Robert Nelson, white if Ini r ;
son, white, RetH/ Inj., TX (Harris) August 2, 1994
as fe) i ur’
A) JoRAt acl. fer
eS
EXECUTION DATE: 08/02/94
NAME: Robert Drew #755
DATE RECEIVED! 01/05/84
DATE OF BIRTH: 04/08/59
RACE: White HEIGHT: 5'5"' WEIGHT: 140 U.S. EXECUTION #:_ 246
COUNTY OF CONVICTION: Harris
TEXAS EXECUTION #: 79
ESTIMATED CROWD NUMBER: 50
DATE OF CRIME: 02/22/83
United Press International
MEDIA WITNESSES: Wayne Sorge
Mike Graczyk Associated Press
Amy Van Asperen The Huntsville Item
Doug Miller KHOU-TV Ch. 11, Houston
Steve Johnson Houston Chronicle
PERSONAL WITNESSES: George Longnecker, Friend
imp}
Ronald Kuby, Attorney
| ’
Phyllis Salter, Friend
Judith Tomlinson, Friend
TOTAL NUMBER WORKING PRESS IN ATTENDANCE: 8
ARRIVED AT THE HUNTSVILLE UNIT: 4:45 p.m.
ham, two hamburgers, two pieces of fish,
FINAL MEAL REQUESTED: Steak (éooked rare),
chocolate milk shake.
SALINE SOLUTION STARTED: 12:07 a.m.
TAKEN FROM HOLDING CELL: 12:02 a.m.
12:16 a.m. PRONOUNCED DEAD: 12:22 a.m.
LETHAL INJECTION GIVEN:
LAST STATEMENT: "I don't know why Marta Glass wasn't allowed in here. 1 love you
They are taking the
call. Keep the faith. Remember the death penalty is murder.
life of an innocent _man. My attorney Ron Kuby, will read my letter at a press
conference after this is over. That is all I have to say- 1 love you all.
420
disclosed to Drew’s counsel, the outcome of
the proceeding would have been different.
Drew therefore cannot prevail on this
claim.
D. Penry Claim
[14] Drew asserts that the Texas sen-
tencing statute precluded the jury from
fully considering and giving effect. to rele-
vant mitigating evidence. As a result, he
contends, his sentence violates the Sixth,
Eighth, and Fourteenth Amendments as
recognized in Penry v. Lynaugh, 492 U.S.
302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
Drew’s uncle, Donald Martelle, testified
during the punishment phase of trial that
Drew had a troubled childhood and a se-
vere drinking problem. Other evidence in
the record included Drew's comparative
youth at the time the crime was committed,
the fact that he did not strike the blow that
killed May, and the fact that Drew had
consumed alcohol and marijuana before be-
coming involved in the crime.
The district court concluded that this
claim was procedurally barred because
Drew did not present it to the trial court by
objecting to the statute, objecting to the
charge, or requesting a special jury instruc-
tion. Since the district court’s decision, the
Court of Criminal Appeals has held that
failure to object does not waive a petition-
er’s right to assert a Penry claim. See
Selvage v. Collins, 816 S.W.2d 390, 392
(Tex.Crim.App.1991). Therefore, we con-
sider the merits of this claim.
In Penry, the Supreme Court held that
when certain . mitigation evidence is
presented, the Texas capital sentencing
scheme must be supplemented with special
instructions so that Texas juries can give
full mitigating effect to this evidence. 492
U.S. at 328, 109 S.Ct. at 2951-52. This
court recently addressed the scope of Pen-
ry in Graham v. Collins, 950 F.2d 1009
(5th Cir.1992), cert. granted, — U.S. ——,
— S.Ct. ——-, — L.Ed.2d ——, 1992 WL
52201 (U.S. June 8, 1992). We concluded
that special jury instructions are required
8. Martelle testified that Drew's early childhood
was marred by repeated fights between his par-
ents. Drew's parents divorced and abandoned
964 FEDERAL REPORTER, 2d SERIES
only when the “major mitigating thrust of
the evidence is beyond the scope of all of
the special issues.” Jd. at 1027. Penry
disability evidence “can reduce culpability
where it is inferred that the crime is attrib-
utable to the disability.” Jd. at 10383.
Drew maintains that the jury could not
give full effect to (1) evidence of his trou-
bled childhood,® (2) evidence of his drinking
problem, (3) evidence that Drew was under
the influence of alcohol and marijuana at
the time he committed the crime, (4) his
comparative youth at the time of the killing
(Drew was twenty-three years old when he
committed the crime), and (5) evidence that
Drew did not strike the fatal blow.
In Graham, we noted that evidence of
the adverse effects of a troubled childhood
might well raise a Penry claim. Id. Like
Graham, however, Drew presented “no evi-
dence of any effect this had on [him], or of
any reaction on his part to it, and no at-
tempt was made even to explore the sub-
ject.” Jd. As a result, we conclude, as we
did in Graham, that the Texas special is-
sues adequately addressed the evidence of
Drew’s childhood problems.
With regard to Drew’s drinking problem,
the state habeas court found that ‘{all-
though counsel placed evidence of [Drew’s]
drinking problem before the jury, counsel
refrained from giving that issue too much
evidence since (1) the evidence clearly did
not support a temporary insanity defense;
and (2) counsel reasonably believed that
such evidence would not be perceived by
the jury as mitigating evidence.” In view
of the meager evidence in the record of
Drew’s drinking problem, we conelude, un-
der Graham, that its major mitigating
thrust was substantially within the scope
of the Texas special issues.
Whatever the point at which age can no
longer be considered as youth for mitiga-
tion purposes, Graham expressly fore-
closes Drew’s argument: on this ground:
[W]hatever is mitigating about youth
tends to lend support to a “no” answer to
the second special issue, and its tendency
him when he was very young, leaving him to be
raised by his grandparents.
to do 30 is €
‘degree to W
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could not
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DREW v. COLLINS 421
Cite as 964 F.2d 411 (5th Cir. 1992)
to do so is essentially proportional to the
degree to which the jury concludes such
factors were influential in the defen-
tention in Cordova, concluding that ‘“volun- .
tary intoxication is not the kind of ‘unique-
ly severe permanent handicap{ ] with which
the defendant was burdened through no
fault of his own’ that requires special
instruction to ensure that the mitigating
effect of such evidence finds expression in.
the jury's sentencing decision.” Cordova,
| 968 F.2d at 170 (quoting Graham, 950 F.2d
Johnoon v. MeCotter, 804 F.2d 300, 302
(sth Cir.1986), cert. denied, 481 U.S. 1042,
107 S Ct. 1988, 95 L.Ed.2d 827 (1987). Ac-
: . cordingly, this claim is. without merit.
E. Thirty-Day Rule .
[15] Several months after Drew was
sentenced, Puralewski recanted his earlier
statements faulting Drew for Mays’ killing.
On March 28, 1984, Puralewski executed an
affidavit taking sole responsibility for
Mays’ death. Based in part on Puralew-
ski’s recantation, Drew moved the trial
court for a new trial. The trial court re-
jected the motion on the ground that it
lacked jurisdiction to consider claims filed
after the thirty-day time limit imposed by
9. The first special issue asks the jury: “Was the
conduct of the defendant that caused the death
of the deceased committed deliberately and
with the reasonable expectation that the death
of the deceased would result?” Tex.Code Crim.
Proc.Ann. art. 37.071(b)(1).
10. Tex.Code Crim.Proc.Ann. art. 40.05 (Vernon
1981) (repealed effective September 1, 1986).
Texas Code of Criminal Procedure Article
40.05. On direct appeal, the Court of Crim-
inal Appeals held that Article 40.05 created
a jurisdictional bar to Drew’s untimely mo-
tion. Drew argues that the version of Arti-
cle 40.05 in effect at the time of his trial '°
precluded the consideration of crucial evi-
dence of his innocence of the capital crime
in violation of his Eighth and Fourteenth
Amendment rights. .
In addition to its jurisdictional holding,
the Court of Criminal Appeals thoroughly
considered the factual allegations support-
ing Drew’s motion for new trial.!! See
Drew v. State, 743 S.W.2d at 226-29. The
Puralewski’s recantation ‘contradicted “his
previous statements given which implicate
the appellant in the murder and which are
generally consistent with the trial testimo-
ny.” Id. at 228. The Court of Criminal
Appeals further noted that the statement”
was not contrary to Puralewski’s penal in-
terest, since he had already been sentenced
to sixty years’ imprisonment based on his
guilty plea when he made the statement.
Based on these findings, the Court of Crim-
inal Appeals implicitly determined that Pur-
alewski’s recantation lacked credibility and
concluded that the trial court did not abuse
its discretion in determining that Drew’s
newly discovered evidence was not “such
as would probably bring about different
results upon a new trial.” Id. at 229 (citing
United States v. Vergara, 714 F.2d 21, 23
(5th Cir.1983) (district court may deny new
trial, even without an evidentiary hearing,
if it determines that a previously silent
accomplice’s willingness after conviction to
11. The court made this inquiry in response to
Drew's alternative argument on direct appeal
that state law required the trial court to consid-
er his motion because “where an accused’s con-
stitutional rights are in conflict with a valid
procedural rule of law the procedural rule must
yield to the superior constitutional right.” Drew
vy. State, 743 S.W.2d at 224 (citing Whitmore v.
State, 570 S.W.2d 889, 898 (Tex.Crim.App.
1977) ).
422 964 FEDERAL REPORTER, 2d SERIES
exculpate his convicted co-conspirator is
not credible or would-not be sufficient to
produce a different result)).
Drew contends that he was entitled to
have the merits of his motion for a new
trial considered and that his constitutional
rights were violated because the state did
not provide a procedural vehicle for such a
consideration. We will assume, arguendo,
that Drew’s contention is cognizable under
§ 2254. In view of the extensive state
court findings, Drew’s claim is distinguish-
able from that raised in Herrera v. Collins,
— US. ——, 112 S.Ct. 1074, 117 L.Ed.2d
279 (1992). In Herrera, no state court
confronted the petitioner’s evidence of in-
nocence. See Herrera v. Collins, 954 F.2d
1029, 1084 (5th Cir.1992). Here, in con-
trast, the Court of Criminal Appeals made
specific findings relating. to the evidence
supporting Drew’s motion for.new trial and
rejected the motion on the merits. Whatev-
er the ultimate. determination in Herrera
may be, the statutory thirty-day deadline
on motions for new trial did not foreclose
consideration of Drew’s newly discovered
evidence. Therefore, we conclude that this
claim lacks merit. . .
F. Ineffective Assistance of Counsel
Drew cites several instances to demon-
strate that his trial counsel rendered consti-
tutionally ineffective assistance. We re-
view ineffective assistance of counsel
claims under the two-prong standard set
forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). See, eg. Wilkerson v. Collins, 950
F.2d 1054 (5th Cir.1992). To meet this
standard, a defendant must show:
First ... that counsel’s performance was
deficient. This requires showing that
counsel made errors so serious that coun-
sel was not functioning as the ‘‘counsel”’
guaranteed the defendant by the Sixth
Amendment. Second, the defendant
must show that the deficient perform-
ance prejudiced the defense. This re-
quires showing that counsel’s errors
were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both
showings, it cannot be said that the con-
viction or death sentence resulted from a
breakdown in the adversarial process
that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S.Ct. at
2064.
[16,17] Courts must evaluate attorney
performance from the circumstances of the
challenged conduct and from counsel’s per-
spective at the time to assess whether the
representation “fell below an objective
standard of reasonableness.” Jd. at 688-
89, 104 S.Ct. at 2065. Further, courts
“must indulge a strong presumption that
counsel’s conduct falls within the wide
range of reasonable professional assist-
ance; that is, the defendant must overcome
the presumption that, under the circum-
stances,, the challenged action ‘might be
considered sound trial strategy.’” Jd. at
689, 104 S.Ct. at 2065 (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158,
164, 100 L.Ed. 88 (1965)). A defendant
demonstrates prejudice by showing that
“there is a reasonable probability that, but
for counsel’s unprofessional errors, the re-
sult of the proceeding would have been
different.” Jd. 466 U.S. at 694, 104 S.Ct. at
2068. In the capital sentencing context,
courts inquire into “whether there is a rea-
sonable probability that, absent the errors,
the sentencer—including the appellate
court, to the extent it independently re-
weighs the evidence—would have conclud-
ed that the balance of aggravating and
mitigating circumstances did not warrant
death.” Jd. at 695, 104 S.Ct. at 2069.
: [18,19] Drew first contends that he
was deprived of his Sixth Amendment
rights because his trial counsel failed to
interview and subpoena witnesses who
could provide valuable mitigating evidence.
“(FJailure to present mitigating evidence ‘if
based on an informed and reasoned prac-
tical judgment, is well within the range of
practical choices not to be second-
guessed’” under Strickland. Wilkerson,
950 F.2d at 1065 (quoting Mattheson v.
King, 751 F.2d 1432, 144] (5th Cir.1985)).
The state habeas court found that Drew
either failed to inform counsel of the exist-
ence of the three witnesses or Drew per-
sonally con
testify. Ti
the record
sumption
§ 2254(d)."
[20] Se
was ineff
psychiatric
knew tha
problem :
state habe
reasonab!
state, inq’
past psyc
ness, and
ted to a
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served tt
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record sl
sonable f
tigation
status.
DREW v. COLLINS
423
Cite as 964 F.2d 411 (3th Ctr. 1992)
sonally contacted them and they would not
testify. This finding is amply supported by
the record, and thus is entitled to a pre-
sumption of correctness pursuant to
§ 2254(d)."*
[20] Second, Drew asserts his counsel
was ineffective for failing to request a
psychiatric interview even though counsel
knew that Drew had a serious drinking
problem and a troubled childhood. The
state habeas court found that counsel made
reasonable inquiries into Drew’s mental
state, inquiring into whether Drew had any
past psychological problems or mental ill-
ness, and whether he had ever been admit-
ted to a mental hospital or drug/aleohol
rehabilitation center. Counsel also ob-
served that Drew appeared to understand
the charges against him and assisted in the
preparation of his own defense. The
record shows that counsel was not unrea-
sonable for failing to conduct further inves-
tigation concerning Drew’s psychological
status. We find no merit to Drew’s claim.
Third, Drew argues that his counsel mis-
understood and misstated the law of capital
murder. The state habeas court found that
“the final argument made by defense coun-
sel demonstrates that counsel had more
than an adequate understanding of the law
of capital murder.” Although counsel may
have made ambiguous statements about
the law, the record as a whole supports the
finding of the state habeas court. We
therefore reject this contention. a
[21] Fourth, Drew maintains that coun-
sel’s failure to object to the prosecutor’s
inflammatory closing argument constituted
ineffective assistance. A decision not to
object to a closing argument is a matter of
trial strategy. We will not disturb the
state habeas court’s conclusion that de-
fense counsel's failure to object at closing
“did not deny [Drew] reasonably effective
assistance of counsel as guaranteed by the
Sixth Amendment... .”
12. “Although the ultimate question of whether
or not counsel's performance was deficient is a
mixed question of law and fact, state court
findings made in the course of deciding an
ineffectiveness claim are subject to the defer-
ence requirement of section 2254(d).” Loyd v.
Smith, 899 F.2d 1416, 1425 (Sth Cir.1990). A
(22) Fifth, Drew contends that his
counsel’s failure to use due diligence in
obtaining the testimony of Puralewski de-
prived him of his right to effective assist-
ance of counsel. The state habeas court
found that counsel made efforts to speak
with Puralewski, but that Puralewski re-
fused to speak with him, and informed
Drew’s counsel that he would invoke his
Fifth Amendment privilege against self-in-
crimination if he were called to testify at
Drew’s trial. The habeas court also found
that Puralewski had given statements to
law authorities denying any involvement in
the crime. Drew concedes that Puralewski
would have invoked the Fifth Amendment
if he had been called to testify at Drew’s
trial. We agree with the district court that
Drew does not demonstrate that he re-
ceived ineffective assistance of counsel on
this ground.
Finally, Drew argues that his counsel
provided ineffective assistance by failing to
conduct post-trial interviews with the ju-
rors. The district court observed that
while defense counsel did not conduct ex-
tensive interviews, the record shows that
counsel did interview the jurors after trial
and failed tc discover any misconduct. We
agree with the district court that counsel's
actions did not fall below an objective stan-
dard of reasonableness. Nor, for reasons
explained above, does Drew demonstrate
any prejudice resulting from counsel’s fail-
ure to discover that the jurors had dis-
cussed parole law. As a result, we con-
clude that this claim lacks merit.
III. CONCLUSION
For the foregoing reasons, we AFFIRM
the district court’s denial of Drew’s petition
for a writ of habeas corpus. .
W
° Bt NUMBER SYSTEM
state court need not conduct a live evidentiary
hearing to be entitled to this presumption; it
can evaluate an ineffective assistance of counsel
claim based on the affidavits of the petitioner
and the attorney. Carter v. Collins, 918- F.2d
1198, 1202 (5th Cir.1990).
5/22/97 Larry Wayne White (Harris)
5/28/97 Robert Madden (Leon)
6/2/97 Patrick Rogers (Collin)
6/3/97 Kenneth B. Harris (Harris)
6/4/97 Dorsie Johnson-Bey (Scurry)
6/4/97 Davis Losada (Cameron)
6/13/97 Joseph S. Faulder (Gregg)
6//18/97 Irineo Montoya (Cameron)
6/24/97 Brian Keith Roberson (Dallas)
7/24/97 William Joseph Kitchens (Taylor)
7/25/97 James Sessions (Smith)
9/16/97 Javier Suarez Medina (Dallas)
9/22/97 Jessel Turner (Harris)
MISCELLANEOUS
If this execution is carried out, it will be the 119th since executions re
82nd since General Morales took office.
ENDNOTES
|. Hendrix's daughter, Gina Walton, subse
sumed in Texas in December 1982 and the
quently testified that Mullins and Hendrix were visiting Houston from
Oklahoma so that Mullins could see a Houston doctor concerning some surgery that had been performed on his
hand.
2. Anthony's son and daughter-in-law found a discarded knife blade in the west bedroom when they were cleaning.
3. Betty Watson and Alice Sealey did not see any scratches on Drinkard'
the evening before the murders occurred. Likewise, Jackie Taylor, the s
where Drinkard worked, testified that there were no stratches on D
s face when he was at Watson's apartment
upervisor at the Target construction site
rinkard's face when he picked up his pay check
on November 15, and Carey, who drank with Drinkard at Watson's apartment, observed no scratches on his face at
that time.
+. Further, a paint fragment adhering to the back door matched a chip in the paint on the lock.
CONTACT:
on Dusek, Ward Tisdale or Sonya Sanchez @ 512-463
-2050 or press(@oag state tx.us
£4 A »
FOR IMMEDIATE RELEASE
MONDAY, MAY 18, 1997
EXECUTION OF RICHARD GERRY DRINKARD
Texas Attorney General Dan Morales offers the following information on Richard Gerry Drinkard, who is
scheduled to be executed after 6 p.m., Monday, May 19, 1997.
FACTS OF THE CRIME
Richard Gerry Drinkard was convicted of murdering Louann Anthony, Ladeen Hendrix and Jerry Mullins during the
same criminal transaction in Houston, Texas.
On November 14, 1985, between 6:30 and 7 p.m., Drinkard arrived at the apartment of his brother, Jerry Michael
Watson, with a 12-pack of beer and a pint of Schnapps. Gregory Carey was already at Watson's apartment and they
were soon joined by Robert Rains. After the four consumed Drinkard's beer and Schnapps, Carey and Watson
walked to a nearby liquor store where they bought another 12-pack and pint of Schnapps. At the liquor store, they
happened to meet Louann Anthony, one of the victims and a woman with whom Watson had previously had an
affair. Anthony gave Carey and Watson a ride back to Watson's apartment and invited Watson to come by and see
her sometime. Back at his apartment complex, Watson stood outside Anthony's car and visited with her for fifteen to
twenty minutes. During this time, Drinkard approached the vehicle and Watson briefly introduced him to Anthony.
The men drank more beer and smoked a marijuana cigarette before Rains and Carey left. Watson then called
Anthony on the telephone and informed her that he and Drinkard intended to come by and drink a few beers later
that evening. At approximately 10:30 p.m., they drove to Anthony's townhome in Drinkard's pickup truck. They
drank a couple of beers at the kitchen table and visited with her for about an hour and fifteen minutes before she
asked them to leave. Anthony explained that she was expecting her sister, Ladeen Hendrix, and her sister's boyfriend,
Jerry Mullins, to arrive at her townhome.(1)
When he was leaving, Drinkard discovered that he had locked his keys in his truck and he broke the driver's side
window to gain entry. He then drove Watson home, dropping him off at his apartment shortly before midnight.
At approximately 3 a.m. on November 15, 1985, Anthony's next door neighbors, Arturo and Norma Caballero, were
awakened by sounds of a woman screaming or crying. Mr. Caballero testified that the lady cried "no, Gerry." Mrs.
Caballero testified that she was screaming for help and yelled, "Gerry, leave me alone, don't do this." Mrs. Caballero
heard the name "Gerry" used three or four times and said it sounded like Anthony was getting killed. Mrs. Caballero
testified that the screams and the sounds of people running around the second floor of her neighbor's townhome
lasted for ten to fifteen minutes and that it was another one to three minutes until she heard the sound of someone
running or tumbling down the stairs of the townhome.
Gina Walton discovered the bodies of Jerry Mullins; her aunt, Louann Anthony; and her mother, Ladeen Hendrix,
around noon on November 15, 1985. The two female victims were found in one upstairs bedroom, and Mullins was
found in another.
Investigation at the crime scene revealed that the light bulb in the garage behind Anthony's townhome had been
unscrewed, and the covering had been torn away from the light fixture inside the patio between the garage and the
townhouse. The bulb in the patio fixture was unscrewed so that the patio was likewise not illuminated. Further, the
aluminum framing on the windows on the back door had been bent outward and screws securing the window
loosened so that the window would not stay in the door. The dead bolt cylinder was missing inside the back door.
/ oh
psychologist to determine his competency to make such a decision. After conducting separate examinations, the
mental health experts reported to the trial court that Drinkard suffered from no mental disease or defect and was
fully competent to make a rational choice to forego appeal. Consequently, on November 1, 1990, the trial court
scheduled Drinkard's execution for December 4, 1990.
Drinkard's execution was subsequently rescheduled for February 4, 1991, and on December 12, 1990, Drinkard filed
an application for state habeas relief. On October 8, 1993, the convicting court entered findings of fact and
conclusions of law, and on November 16, 1993, the Texas Court of Criminal Appeals denied relief based on the
findings and conclusions of the trial court, which it found to be supported by the record.
Drinkard's execution was next scheduled by the district court for-January 11, 1994. On January 7, Drinkard filed in
federal district court a petition for writ of habeas corpus, motion to stay the execution, and motion challenging the
adequacy of the state court post-conviction proceedings. On January 10, the district court stayed the execution and
ordered the Director to respond by January 24, 1994. On January 20, Drinkard filed his first amended petition. The
Director's motion for summary judgment and answer were filed on January 24. On March 10, 1994, Drinkard moved
for partial default judgment, and on March 23, 1994, moved for default judgment, both motions being based on the
Director's failure to respond to the amended petition. On March 31, 1994, the Director responded to the motions and
moved to dismiss the amended petition for failure to exhaust state remedies. On May 26, 1994, the district court
denied Drinkard's motions challenging the adequacy of state court post-conviction proceedings, for sanctions, for
partial default judgment, and for default judgment. On June 24, 1994, the court granted the Director's motion for
summary judgment, entered final judgment and vacated the stay. Drinkard's motion to alter or amend judgment was
denied on July 13, 1994. Drinkard timely filed notice of appeal and a motion for certificate of probable cause, on July
21, 1994. The district court denied CPC on July 25, 1994.
In September of 1994, Drinkard filed an Application for Certificate of Probable Cause in the 5th U.S. Circuit Court
of Appeals, and on January 5, 1995, the Director filed his Opposition to a Certificate of Probable Cause. The case
was argued before the 5th Circuit on May 22, 1995. On April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (AEDPA) modifying federal habeas procedure was signed into law by the President. The Sth Circuit
subsequently requested briefing from both sides regarding application of the amended procedures in this case. On
October 7, 1996, the Sth Circuit entered its opinion granting a certificate of appealability under the AEDPA, denying
relief on the merits, and alternatively, concluding that the challenge to the punishment-phase instructions regarding
intoxication was foreclosed under § 2254 (d) as amended by the AEDPA. Drinkard filed a petition for writ of
certiorari in the U.S. Supreme Court, which was denied in March 1997.
PRIOR CRIMINAL HISTORY
At the punishment phase, the state presented evidence that, in 1974, pursuant to five indictments charging burglary,
Drinkard was convicted under the Alabama Youthful Offender Act and was confined in an Alabama correctional
institution pursuant to five concurrent sentences. He escaped from that institution in 1975. In November 1975, he
was assessed a 12-month sentence for burglarizing a day-care center in North Carolina, and on April 18, 1977, he
was convicted of assault with intent to rob. For this offense he was sentenced to confinement in the Alabama
penitentiary for five years. At the time of the capital offense, Drinkard was on probation for driving while
intoxicated. The state also presented evidence of several incidents of domestic violence which had not been
adjudicated.
SCHEDULED EXECUTIONS
5/20/97 Clarence Allen Lackey (Lubbock)
5/21/97 Bruce E. Callins (Tarrant)
victim's premises.(4) The trash can also contained glass fragments matching those from a broken porch light at
Anthony's residence and those found in Drinkard's truck bed. At the bottom of the creek, divers found a hammer like
30A
Houston Chronicle
Friday, June 25, 1993
Death row inmate takes stand —
but hinges testimony on deal
By JOHN MAKEIG
Houston Chronicle
Condemned capital killer Mark-
ham Duff-Smith wouldn’t even state
his name Thursday when he took the
witness stand at a hearing related to
his co-defen- __
dant’s pending ;¥t* ‘4
trial for a 1979 |
triple murder.
Nor would he
take the oath to |!
tell the truth or
answer ques-
tions.
But he did |
promise to tes-
tify fully, waiv- ,
ing his right to Omi
avoid _ self-in- Duff-Smith
crimination, if allowed to be a wit-
ness next month when Allen Wayne
Janecka is tried for the capital kill-
ing of Duff-Smith’s 18-month-old
nephew.
Duff-Smith’s appearance on the
stand in state District Judge Woody
Densen’s court was the latest legal
maneuver aimed at gaining a post-
ponement in the inmate’s scheduled
execution Tuesday and setting up
appeal avenues for Janecka.
Duff-Smith’s non-testimony came
hours after Densen refused to grant
him a stay of execution. And it
preceded a bid by his attorneys,
Jules Laird and Douglas McNabb, to
get another judge to withdraw the
order that Duff-Smith die for paying
Janecka to strangle Gertrude Duff-
|. Smith Zabolio in 1975.
'.Janecka’s attorneys, Doug Pettit
and Charles Brink, have been trying
to get Duff-Smith to testify at their
client’s trial. By killing him, they
said, the state would be destroying
testimony and evidence needed for
Janecka’s trial.
But Densen has twice declined to
halt an execution over which he has
no direct jurisdiction. Instead, he’s
been urging that Duff-Smith give a
deposition, an idea the inmate and
his attorneys oppose since it would-
n’t stop the execution.
McNabb said his disinclination to
let Duff-Smith be deposed involves
“defensive strategy defined by attor-
ney-client privilege.”
Brink called such a deposition “to-
tally ineffective.” He said Duff-
Smith can help Janecka refute and
impeach the testimony of prosecu-
tion witnesses and perhaps show why
key state witnesses are biased.
Attorneys for Janecka and Duff-
Smith now plan to shower the Texas
Court of Criminal Appeals with peti-
tions on subjects evolved from the
legal fracas in Densen’s court.
Prosecutors say Duff-Smith paid
Janecka, through a middleman, to
kill Zabolio, Duff-Smith’s wealthy
adoptive mother strangled in her
River Oaks residence in 1975. That
set up Duff-Smith to inherit half her
estate.
Janecka is charged with murder-
ing Duff-Smith’s adoptive sister, Di-
ana Wanstrath, her husband and
baby in 1979, through which Duff-
Smith could inherit the remainder of
Zabolio’s estate.
He faces a possible return to death
row if convicted again in the baby’s
killing. His first death sentence for
that murder was reversed.
ce
Associated Press, 1987
Markham Duff-Smith
Texas and Georgia Each Puts a Murderer to Death
By The Associated Press
After confessing at the last moment,
a man who had been accused of having
his mother and three other relatives
killed to obtain the family fortune was
executed by injection Tuesday in Tex-
as. He had been convicted in his, moth-
er’s death.
In Georgia, a former serviceman
died in the electric chair late Monday
‘for killing a fellow soldier by putting
him in the trunk of a taxi and pushing
the car into a watery pit.
In Huntsville, Tex., Markham Duff-
Smith, 46, cleared his conscience just
before he was executed. ‘‘I am the low
sinner of sinners,”’ he said as he lay on
a gurney, needles in his arms. “I am
responsible for the ’75 and '79 cases.”
Mr. Duff-Smith was convicted of ar-
‘ ranging the murder of his adoptive
mother, Gertrude Duff-Smith Zabolio,
at her home in Houston’s exclusive
River Oaks neighborhood in 1975. He
was found guilty of paying $10,000 to
Allen Wayne Janecka to strangle Mrs.
Zabolio, 57, and make-her death look
like a suicide.
Squanders His Inheritance
The authorities said Mr. Duff-Smith
squandered his $90,000 inheritance and
in 1979 sought out Mr. Janecka again to
kill his adoptive sister, her husband
and their son so he could collect up to
$500,000 of their inheritance.
Mr. Duff-Smith, who got part of the
money, was charged but never tried in
the three slayings and had denied any
role in the crime until just before his
execution.
Late Monday, the Supreme Court
‘unanimously refused to block his exe-
cution.
Mr. Janecka was convicted of mur-
der in the death of Mr. Duff-Smith’s
nephew, but the decision was reversed
on appeal and he is awaiting retrial.
Mr. Janecka has been indicted in the
slaying of Mrs. Zabolio.
In Georgia, Thomas Dean Stevens,
36, a former soldier who had been
stationed at Fort Stewart, was put to
death at the state prison at Jackson for
killing Roger Honeycutt, a soldier who
was moonlighting as a cab driver. Mr.
Honeycutt was robbed of $16, sodo-
mized and locked in his cab’s trunk. He
drowned when Mr. Stevens and. an-
other soldier pushed the car into the
pit.
The Supreme Court had rejected two
late-hour appeals.
The other soldier convicted in the
slaying, Christopher Burger, is await-
ing execution. _
Lawyers for Mr. Stevens had argued
that his life should be spared because
he was retarded. But Tommy Morris,
acting chairman of the Georgia Board
of Pardons and Paroles, said the board
gave little credence to claims of retar-
dation because earlier tests of Mr. Ste-
vens showed. no evidence of that.
*
Death Row inmate indicted for
Texas
i er oy pees I7A
Separate strangulation murder
Associated Press
HOUSTON — Death row in-
mate Allen Wayne Janecka, who
won a new trial in a 13-year-old
murder-for-hire plot, has been
indicted on a separate capital
murder charge dating back to
A Harris County grand jury
indicted Janecka, 42, Friday in
connection with the October
1975 strangulation death of Ger-
trude Zabolio, 60.
Zabolio’s death originally was
ruled a suicide, but news ac-
counts and further investigation
revealed she had been murdered
_and left lying in the bathroom of
her. upscale River Oaks home.
Markham Duff-Smith, her
adoptive son, was convicted and
sentenced to death for allegedly
hiring Janecka to kill her SO;
that Duff-Smith could collect).
her insurance money and an in-
heritance, ,_ fie oe ee
Janecka has never been ‘tried
for the slaying. He officially is
being held on $150,000 bond in
the case, awaiting trial early
next year in State District Judge
Woody Densen’s court, prosecu-
tor Chuck Rosenthal said. But
Janecka remains on death row
awaiting a new trial in another
case.
Janecka was convicted in the
capital murder of 14-month-old
Kevin Wanstrath. The child and
his parents, John and Diana
Wanstrath, were found shot to
death July 6, 1979.
Investigators originally be-
lieved Diana Wanstrath, Duff-
Smith’s sister, shot her husband
and child and then committed
suicide. But months later, police
' were able to link Duff-Smith, Ja-
necka and Walter Waldhauser to
the slayings in another murder-
for-hire scheme. :
~ According to. -trial-testimony, :
Duff-Smith hired both men to
kill the family.: Prosecutors said
Janecka shot John Wanstrath
first, then Waldhauser sprayed
Mace into Diana Wanstrath’s
face and held her down so Ja-
necka could shoot her. Then Ja-
necka walked into the child’s
room and shot him in the head,
prosecutors said.
Z ‘Duff-Smith-and Janecka were .
sentenced in 1981 to die for their ‘
part in the murders, while Wald-
hauser was sentenced to 30 years
in prison as part of a plea. bar-
gain with prosecutors.
Waldhauser was paroled in
February 1990, legally changed
his name to Michael Davis and
since has been given a privileged
form of parole in which he
checks in — by mail — once a
year.
Duff-Smith inherited more
than half of the couple’s $800,000
estate. Janecka, who. confessed
“being the triggerman-in-the slay-
- ings, said he received $11,000 to
$14,000 in several payments for —
the killings.
(5
Inmate is denied stay
to let him testify in trial
| M HOUSTON — A state judge
Wednesday refused to grant a
Stay of execution for a Texas
death row inmate so he can tes-
tify next month at his co-defend-
ant’s retrial. Markham Duff-
Smith is scheduled to die by in-
jection Tuesday for hiring
someone to kill his adoptive
mother, Gertrude Duff-Smith
Zabolio. She was strangled with
pantyhose in her. River Oaks
home in 1975. Allen Wayne
Janecka, who was_ allegedly
hired to kill Mr. Duff-Smith’s
mother and three other rela-.
tives, is scheduled to go on trial
for capital murder July 19. State
District Judge Woody Densen
denied a defense motion to
keep Mr. Duff-Smith alive so he
could testify at Mr. Janecka’s
trial. Judge Densen said Mr.
Duff-Smith could give a written
deposition in the case. Mr. Duff-
Smith’s attorneys said they
would appeal the ruling.
Moaniwe NEWS
© 124 qq
lew to Atlanta.
ily lit bar which
requented and be-
f her ‘*male pals.”
ut to be an under- “
1't believe this but
is gun in her house
kill some people in.
ia cop said.
ited by the revela-
gun had been dis-
all, just don’t keep
zing around.
ception,
\nulty went to. see
ah, the gun is still
rprised McAnulty.
keep it in case any-
m.’’ Several hours
McAnulty left the
ied to kill the Wan-
where Janecka was
; partner. ‘‘Sit
| onto your hat.
and a Colt Frontier
t killed the Wan-
ed by the medical
s a tragic suicide-
denly sizzled. ‘‘It
cAnulty said philo-
ily everything was
‘body is looking out
bies.””
ly arrested. He was
ogation room.
nything about that
n’t,’’ Bonds roared.
o your girlfriend for
gun that was used to
We know you did it.
‘ho paid you.”’
interrogations but
e around. ‘‘If 1 am
; then I ain’t swing-
Spring, 1979, when
him with the idea of
amed wealthy Hous-
ing it appear like a
balked at first but
uaded to do the kill-
was Walt Waldhaus-
*ka and Waldhauser |
ath home, They had
vited in since Walter
-~’= brother and had
urance policy.
lan, Walt would
ay mace into Diana’s
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L
face incapacitating her while Janecka
shot John Wanstrath,
‘*‘We were talking and then Walt
jumped on the woman and started strug-
_ gling with her. He was screaming for me -
to finish John off.’’
.. Janecka said he, shot John once in the
side of the head, then shot Diana while
- she struggled by the fireplace. He then
walked into the bedroom where young >
Kevin was fast asleep in his crib. He said
he put the barrel close to the baby’s head .
then ‘‘finished off the little fella’” and
walked back into the living room. **Walt
was jumping and acting real scared so we
got the hell out of there,"’ Janecka said.
Walt did not tell him who had paid for
the murders but Janecka figured it out
when he read the newspapers the next
day. ‘‘It had to be the Duff-Smith guy,”’
he said. ‘‘It was his dirty work that I was
doing.”’
Six days after the murders Janecka de-
_ cided to leave town to spend time with his
girlfriend in Georgia. He took the murder
weapon with him as insurance. **You
can’t trust these rich-type guys,”’
Janecka ‘said. ‘‘I figured if they didn’t
come across with my money that I could
always remind them I had the gun and
that they were just-a phone call away
from being arrested.”
But the plan backfired and what was
meant as his insurance policy turned out
to be just a ticket to the Big House.
Detectives searched for witnesses to
corroborate Janecka’s story. They found
four people who said the 32-year-old
twice-convicted convict had told them
about the killings and that Duff-Smith
and Waldhauser were ifvolyed. The de-
,
tectives were amazed that so many peo-
ple knew about the murders but had never
bothered to tell police. ‘*It was one of the ©
biggest, most highly publicized murder
cases we've had in this town in quite
‘some time,’’ one lawman said. **! am
just amazed no one came forward.”’
On the morning of December 11,
1980, Harris County prosecutors met
with Medical Examiner Jachimczyk to
try to get him to change his suicide ruling
in the Wanstrath deaths. He didn’t.
That-afternoon the case was presented
to the Grand Jury in spite of Jachime-’
" zyk’s ruling. Janecka and Waldhauser
were indicted on three counts of capital
murder.
Duff-Smith testified before that grand
jury and later told reporters he was inno-
cent and that Bonds had a ‘‘personal ven-
detta’’ against him., He added however
that ‘‘Walt is in a little trouble.’’
That was putting it mildly.
‘‘We have witnesses that can put you
in the’ Wanstrath house,’ Bond told a
sweat-drenched Waldhauser. ‘‘We also
_know that Janecka tried to blackmail you
for money and that you were sweating
it!’
They had Waldhauser between a rock
and a hard place, and the dark-haired
handsome businessman didn’t want to be
stuck there, If he stonewalled it, he might
very well end up facing a death sentence.
His attorney looked at the evidence and
adVised him to talk.
_"Waldhauser agreed to plead guilty and
testify against his former playboy friend
and business partner in return for a max- .
imum 30-year Sentence...
{With those conditions he confessed,
thet Mi )
five times in all.
It began sometime in 1976, when Mar-
kham decided to make the jump from
grocery store clerk to wheeler-dealer real
estate investor. All he needed to make the
transition was money. And he decided to
get it by having his mother Trudy Zabolio
murdered.
‘*Markham was just broke all the time
and needed money,’’ Waldhauser said.
‘‘He came up with this plan to do his
mother.in and collect on the estate.”’
The plan was to make the murder
appear as if Trudy had committed
suicide.
All the conspirators needed was some-
one to carry out their wishes. That is
where Waldhauser came in. He remem-
bered a guy named Paul McDonald, a
bulky bail bond runner, who had
arranged bail for lowlife types before.
Waldhauser said he figured Paul would
know a killer-for-hire if anyone did.
His hunch paid off. McDonald had
once sold a bail bond to Alan Janecka,
who already had begun building a reputa-
tion of sorts in Houston’s underworld.
- Waldhauser said McDonald drove
Janecka to the Zabolio home on October
15, 1975, and picked him up several
hours later. Later at a Houston restaurant
‘ Janecka gave Mrs. Zabolio’s license to
Duff-Smith to prove that the ‘‘hit’’ on the
60-year-old woman had been made.
The murder was ruled a suicide and
Duff-Smith inherited his half of the
$188,000 estate. But money went
through Markham’s hands like water and ~
(continued on next page)
: ) 53
[Wee
- The Hit-Man Who Specialized In Suicide
(continued from page 53)
just four woul later he was plotting the
murders of his sister and her family.
Waldhauser said this time around he
was instructed to get hold of Janecka and
figure out another murder plot. Diana
Wanstrath still had her half of the estate
plus a portion of John Wanstrath’s, but
apparently that wasn "t enough and Duff-
Smith decided to sweeten the pot by in-
structing Waldhauser to sell his brother-
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in-law a $250,000 life insurance policy
‘ just a few’ weeks before the murders.
When the smoke cleared and the estate
paid off, Duff-Smith was richer by a cool
$430,000.
And that, Waldhauser said, ‘was just
the beginning. The killings had been so
financially rewarding and so easy to pull
off that they planned others. One in-
cluded the murder of a business associate
_so they could collect the insurance. And
“another was the slaying of the former
husband of Duff-Smith’s girlfriend so
she could collect the insurance and hand.,
it over to Duff-Smith.
-They had also talked about killing
Bonds. ‘You were climbing all over
him,’’ Waldhauser admitted. ‘‘He fi-
gured if we just got rid of you the inves-
tigation would die down.”’
Waldhauser’s lengthy confession gave
Bonds the ammunition he needed to go
hunting for Duff-Smith. On the morning
of March 13th, 1981, Bonds and McA-
nulty waited in a parking lot near Duff-
Smith’s home. That afternoon they were
radioed the news that the Harris: County
grand jury had indicted Duff-Smith in the
Wanstrath family murders. The two de-
tectives broke out in smiles. Two years of
hard and often frustrating work had final-
ly paid. off.
They proceeded to Duff-Smith’s home
and rang the bell. A scantily dressed
woman answered and they walked by her
into.the bathroom where they found her
boyfriend. Dressed only in jockey shorts,
he stood before the mirror shaving.
‘*Mark, you've: been indicted, i
Bonds said. ‘*You’re under arrest.’” .
‘*Mind if I finish shaving?’ The: un-
flappable Duff-Smith asked, :
FREE saan |
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Te 10d Ne he renee, Ly int tting oa: The ice
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“Not at all, take your time,’’ Bonds
_ replied.
Properly shaved and showered, Duff-
Smith, sporting an expensive business
suit and silk tie, was booked into the
Harris County jail on murder charges. He
was placed in an isolation cell for his own
safety. ° :
He left his cell four months later in
July to go on trial for the murder of his
mother, Trudy Zabolio. Harris County
prosecutors had decided to try him for the
1976 murder first and, if necessary, then
put. him on trial for the Wanstrath
slayings.
It was not a good time for Duff-Smith.
His best: friend had turned state's evi-
dence and so had Paul McDonald.
Arrested in Florida, McDonald had
agreed to testify against Duff-Smith in
return for a reduction of the capital mur-
der. charge against him.
Triggerman Alan Janecka, mean-
while, had been found guilty of the mur-
der of Kevin Wanstrath and had been
sentenced to die by chemical injection.
Nevertheless, Duff-Smith. appeared
confident. July 24, 1981, looking pale
and thin, but otherwise self-assured, he
told the jury in a firm, clear voice, ‘lam
not guilty of this crime.’
It was Duff-Smith’s last hurrah. On
August 4, 1981, he was found guilty me
murder and was sentenced to die at
state prison by chemical injection.
(Editor’s Note: The names Bonnie Holder and
Bob Boyd are fictitious. Use of the real names
would serve no public interest.)
Carnage In
A Luxury Hotel
(continued from page 9) '
The victims are ‘sitting ducks’ because
| many have relatives\in Israel and the ter-
rorists have connections there. And like
the original Mafia, they are broadening
their scope of activities from terrorism to
“narcotics, gambling and prostitution.’
Hickman said his task force was re-
ceiving a great deal of help from Colonel |
Michael Bochner, who had been an in-)
vestigator of organized crime in Israel.
He was currently serving as a liaison
officer with U.S. law enforcement agen-
cies and the FBI.
‘*If we can get any leads on the couple
who were slain or the guys at the hotel
which reveal they are Israeli nationals,
Bochner will be able to get their back-
“(continued on next page)
esky y Lippert et Wwe 4 9 i ays
ra
-
\
ground for us,
got a lot of soli
Fingerprints
brought a prom
old man had b
family in Israe
dropout and se
ence for burgla
also an Israeli
There was n
den affluence
grated to the L
_residence in
brought any n
borrowed the f
sage and a few
** And when:
renting an expe
ury cars and pl:
Detective Dav
r. ‘But we |
anyone who c
business he v
i associates.”’
bi | **Is it becau:
: people just afre
**Both, I'd.
fact that somet
ped up their b:
cive to volunt
A check on
shoes failed to
cles could hav
anywhere.
**] don’t thi:
where until so
and tell us wh
said. ‘‘And t!
much incentiv:
informant.”’
- Detectives
Mafia’’ task
Hickman cam
for the red-hai1
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28-year-old |
known by the!
and was alleg
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CO ae ee
DUFF SMITH, Markiham, wh,
LI TxSP llHarris) June 29,
The full story on...
a ER, aS %
POLICE D
HOUSTON. T
2157
112480
Mugshots of the four defendants, from left: Markham Duff-Smith, Allen Wayne Janecka, Walter
by BARTEE HAILE
he black domestic stood
on the street corner in
the morning heat of July
6, 1979, patiently waiting for
her new part-time employer.
When Diana Wanstrath never
showed, the irritated maid
telephoned Joyce Welch,
who had arranged for the job.
Welch apologized, insisting
that it was not like Diana to
miss an appointment, and
she drove the maid to the
Wanstrath residence in an
upscale neighborhood on
the west side of Houston,
Texas.
Getting no answer at the front door,
Welch waded through the shrubs to
the nearest window and peeked through
the pane. She spied John Wanstrath
slumped in a chair presumably asleep,
but repeated raps on the glass did not
wake him.
Out of the corner of her eye, Welch
spotted the rag-doll form of Diana
rolled up in a ball on an Oriental rug
across the room from her husband. She,
too, was clearly unconscious, an alarm-
ing coincidence that caused her friend
to conclude that the couple had suc-
cumbed to a gas leak.
A frenzied search for a way into the
house ended with the discovery of an
14
Meidigeeairs Le lealony
Waldhauser Jr. and Paul MacDonald.
TEXAS
MOsT
SENSATIONAL
MURDER CASE
unlocked door in the rear. The two
women entered the dwelling, which
was as quiet as a tomb.
It was evident by the dark-red pool
beneath Diana’s head and the crimson
streaks down the frant of John’s shirt
they had not fallen victim to anything
so innocent as natural gas.
While Welch summoned the police
on the phone in the kitchen, the maid
looked for the baby, fourteen month-
old Kevin Wanstrath. Her piercing
scream suddenly shattered the silence.
“It’s awful! It’s awful!” the distraught
woman cried from the nursery. ““There’s
blood everywhere. Come in here!”
Detectives Johnny Bonds and Eli
Uresti happened to be at their desks
when the first patrolman on the scene
radioed in his report. They jotted
down the address and hurried down-
stairs to their unmarked car.
The burly farmboy and the Mexican
from the Houston barrio were im-
probable partners. At six-foot-three,
215 pounds and with a distinctive Texas
drawl, Bonds fit the stereotype of the
“good old boy.” He joined the force
yy
(79
1993
at 20. and |
t the Li
tropolis
ne
vent belief
became
late age
IC
{
a Ut
Or .
priesthood. T!
ted to catching
fuse tem
perame
Uresti. one of t
make detective
cise a Steadying
ner 10 \
A unit
Uresti a
into the
ears
ears
ormed
t the
don |
adel i
specuion of t!
and fathe
Y
Cl
to the ba
1}
DV ST
tured toward t
This w
had drea
custome
less pare
as the n
1 \\
ded v\
Gd OVerl
ade ot
of slaughtered
sicken them
Tiny Kevin W
cepuon.
in the toy filled
hugging a stuff
been sh
range in
blood o1
He was
yt from 1
the bac
a sticky pudd
1 the sh
Ignoring the o
i
execution, Ur
touched the baby
a)
sure he was real!
course, an irravion.
thing he
dered as
had to d
was cold and 1
he drev
The detectis
Wanstrath shot
death be
fore ploy
vorite chair and
brain. C
body w
weapon,
Crew
But the hand:
cushions of the ch
in the ho
Nntider
ONT
OUT
they
use. After
of the entire 1
Uresti d
that the
The slayings we
isCcard
killer
inside job.
There
Was né
and whodunit t!
Crime
Making
Wanstraths’ {
business
aSSOC 1d
at 20, and 11 years on the mean streets
of the Lone Star State’s largest me-
tropolis had not stripped him of his fer-
vent belief in simple justice. Uresti
became a cop at the comparatively
late age of 27 after studying for the
priesthood. Though no less commit-
ted to catching the bad guys, his slow-
fuse temperament and maturity enabled
Uresti, one of the first Hispanics to
make detective in Houston, to exer-
cise a steadying influence on the part-
ner 10 years his junior.
A uniformed officer met Bonds and
Uresti at the door and escorted them
into the den. Following a cursory in-
spection of the remains of the mother
and father, they asked for directions
to the baby’s room. The patrolman ges-
tured toward the hall.
This was the moment both detectives
had dreaded. While they had grown ac-
customed over the years to the end-
less parade of dead adults, the sight
k \ ! a) f
Mastermind Markham Duff-Smith flanked by Detectives Johnny
Bonds (left) and Dan McAnulty. Duff-Smith was already plotting the
murder of his little nephew (in his lap below) and his sister when this
photo was taken.
of slaughtered children never failed to
sicken them.
Tiny Kevin Wanstrath was no ex-
ception. He was lying on his stomach
the nursery. ““There’s
Come in here!”
Bonds and Eli
at their desks
nan on the scene
They jotted
\urried down-
ked car
ind the Mexican
rio were 1m-
\-foot-three,
sunctive Texas
type ol the
uned the torce
in the toy filled crib with one arm
hugging a stuffed animal. He had
been shot from practically pointblank
range in the back of the head, leaving
a sticky puddle of partially dried
blood on the sheet
Ignoring the obvious evidence of an
execution, Uresti reached out and
touched the baby’s back as if to make
sure he was really gone. It was, of
course, an irrational impulse but some-
thing he had to do. The little corpse
was cold and rigid, and Uresti shud-
dered as he drew back his hand.
The detectives speculated John
Wanstrath shot his wife and son to
death before plopping down in his fa-
vorite chair and putting a bullet in his
brain. Confident the removal of his
body would uncover the murder
weapon, they waited for the coroner’s
crew.
But the handgun was not in the
cushions of the chair nor anywhere else
in the house. After a painstaking search
ot the entire premises, Bonds and
Uresti discarded their original notion
that the killer was a family member.
The slayings were definitely not an
inside job
Phere was no shortage of suspects
and whodunit theories of the terrible
crime. Making the rounds of the
Wanstraths’ friends, relatives and
business associates, the detectives en-
countered a wide assortment of opin-
ions.
Housewives in the fashionable sub-
division, home to the chief of police
and the Bolivian consul i addition to
many professionals and oil-company
executives, remembered Diana had
been pestered by a phone pervert. He
never uttered a word but scared her
with his heavy breathing.
John was embroiled in a bitter dis-
pute with his older brother over the mil-
lion-dollar estate of their rich aunt. who
had recently passed away. John favored
giving their sister. who was left next
to nothing in the will. an equal share
of the spoils, but his brother angrily
opposed the generous gesture
John’s co-workers suggested anou
er suspect. A hot-tempered develope:
had threatened to get even with him fo:
sinking a shopping mall project by con
demning the site for being prone to
floods,
3-6. Witness Jerry Sol Eickenhorst
{3] Duff-Smith’s third, fourth, fifth,
and sixth claims for relief center around
the testimony of defense witness Eicken-
horst. It was Eickenhorst who surprised
the defense by testifying at trial that
Duff-Smith’s entire defense—that he was
being framed by MacDonald and Waldhau-
ser—was but a perjurious concoction by
Duff-Smith. The state actually learned of
the scheme a few weeks before trial when
Eickenhorst gave the prosecution Duff-
Smith’s handwritten script detailing the
perjurious scheme.
Duff-Smith’s first contention is that the
state violated the trial court’s pretrial dis-
covery and inspection order when it failed
to provide the defense with a copy of Duff-
Smith’s handwritten script before Eicken-
horst testified. He argues that the state’s
failure to comply with the discovery order
violates due process and deprives him of
effective assistance of counsel.
Ee
see RN
[4] This contention is also barred under
the procedural default doctrine because
Duff-Smith did not object to the admission
of the script at trial. As the Texas Court
of Criminal Appeals noted in rejecting this
claim, “{i]t is well settled that the proper
procedure when alleging surprise due to
violation of a trial court’s order for dis-
covery is to object or ask for a postpone-
ment or continuance of the trial.” * More-
over, were we to reach the merits of this
claim, it is apparent that no federal consti-
tutional right is implicated. Eickenhorst’s
testimony and the script were fully known
and available to Duff-Smith; thus, he can-
not complain that it was withheld in viola-
tion of Brady v. Maryland.*
23. Duff-Smith, 685 S.W.2d at 33.
24. 373 US. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). See Mattheson v. King, 751 F.2d 1432
(5th Cir.1985), cert. denied, 475 U.S. 1138, 106
S.Ct. 1798, 90 L.Ed.2d 343 (1986); United States
v. Jones, 712 F.2d 115 (5th Cir.1983).
25. 474 US. 159, 106 S.Ct. 477, 88 L.Ed.2d 481
(1985).
| 26. 377 US. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246
(1964).
DUFF-SMITH v. COLLINS
Cite as 973 F.2d 1175 (Sth Cir. 1992)
1181
Duff-Smith’s next allegation is that
Eickenhorst was an undercover agent for
the state who solicited admissions from him
after his right to counsel had attached in
violation of Maine v. Moulton * and Massi-
ah v. United States. He also insists that
at the request of the prosecution, Eicken-
horst affirmatively deceived defense coun-
sel by informing ‘them that his in-court
testimony would support the fabricated de-
fense theory. In addition, Duff-Smith al-
leges that Eickenhorst’s testimony was in-
duced by promises of favorable treatment
by the prosecutor in violation of United
States v. Bagley.”
Duff-Smith offered no evidence to sup-
port any of these contentions... In the state
habeas proceedings, the trial court found
that Eickenhorst was never a state agent,
that the prosecutors did not ask Eicken-
horst to deceive defense counsel, and that
no inducements were given to Eickenhorst
by the state either before or after his testi-
mony. These state findings, supported
by the record, are entitled to a presumption
of correctness.” Moreover, after the fed-
eral evidentiary hearing. in which. Duff-
Smith called several witnesses in an at-
tempt. to prove his allegations, the magis-
trate judge again determined that. Eicken-
horst was not an agent and that his actions
were not induced by the state. There is
simply no.evidence supporting these allega-
tions, and mere arguments to the contrary
do not raise a constitutional issue.”
7. Compulsory process
[5] Duff-Smith contends that his sixth
amendment right to compulsory process
was denied during the state collateral hear-
ing when the judge quashed subpoenas
duces tecum served on. three witnesses,
27. 473 U.S.. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985) (failure of the state to reveal favorable
information such as inducements may violate
due process). "2
28.. Ex parte Duff-Smith, No. 16,92601 at 81-85.
29. 28 U.S.C. § 2254(d).
30. Ross v. Estelle, 694 F.2d 1008 (Sth Cir.1983).
- “no” to avoid the death penalty. Nagler
first responded that she would and later
stated that she did not know what she
= would do to resolve the admitted conflict.
== Boyd was not sure that he believed in capi-
} = tal punishment and for that reason he stat-
= ed that he “might answer the second [ques-
* tion] no to keep from having to kill.”
» When defense counsel asked Boyd “if you
_ were in that position then you would vio-
™ Yate that oath that you would take and
=| answer it wrongfully, contrary to the law
“mee and the evidence?” Boyd replied that he
= ‘«,ouldn’t take the oath in the first place
— ... if it meant killing somebody.” The
> trial court could have been “left with the
* definite impression that [Nagler and Boyd]
| 7 would be unable to faithfully and impartial-
ly apply the law.” 39 Hence, Duff-Smith’s
counsel did not act unreasonably or unpro-
: fessionally in failing to object to the excus-
*~ ing of Nagler.and Boyd.
ee *(8) Duff-Smith also alleges his counsel
= were ineffective in failing to object to pros-
== ecutorial misconduct—that in violation of a
_ diseovery order the prosecution did not no-
© tify defense counsel of their advance
knowledge of the perjurious defense theory
and. of Duff-Smith’s handwritten script.
= This claim has no merit. Duff-Smith was
' not deprived of a fundamentally fair.trial
== because the state failed to inform him that
> ‘the authorities were aware that-he planned
‘and then suborned perjury... Duff-Smith
obviously had full knowledge of the infor-
mation the prosecution did not reveal; his
constitutional rights manifestly were not
implicated.*°
[9] . We next examine Duff-Smith’s alle-
gation that his counsel was ineffective for
failing. to present. any mitigating evidence
during the punishment phase of his trial.
‘{F Jailure to present mitigating evidence ‘if
based on an informed and reasoned prac-
39.. > Witt, 469 U.S. at-426,,.105 S.Ct. at. 853, 83
-/L.Ed.2d at 853.) occ Ab lovinck
40.° “Matheson, 751 F.2d at 1444, Jones, 712 F.2d
~ at-122. wees
- Al. Wilkerson, 950 F.2d at 1065 (quoting Matthe-
son, 751 F.2d at 1441).
42. Strickland, 466 U.S. ‘at 694, 104 S.Ct. at 2068;
Green v. Lynaugh, 868 F.2d 176 (Sth Cir.), cert.
DUFF-SMITH v. COLLINS 1183
Cite as 973 F.2d 1175 (Sth Cir. 1992)
tical judgment, is well within the range of
practical choices not to be second-
guessed.’ ” * Duff-Smith presented his
counsel with the names of several potential
character witnesses. Defense counsel con-
tacted each person. Determining that
these witnesses might be more damaging
than helpful, counsel decided not to present
their testimony during the punishment
phase of trial. Such reasoned trial strate-
gy, although it might be challenged with
the benefit of 20-20 hindsight, is not defec-
tive within the meaning of Strickland.
[10-12] Duff—Smith’s remaining _ inef-
fective assistance of counsel claims are |
equally without merit. The decision by his ©
counsel not to challenge the medical exam-
iner’s report on Mrs. Zabolio’s cause of
death was clearly trial strategy.” - Both
Waldhauser and MacDonald had admitted
to the killing of Mrs. Zabolio. Likewise,
counsel’s decision not to pursue Duff-
Smith’s initial motion for a change of venue
was also the product of reasoned trial
strategy. After voir dire defense counsel
was satisfied that Duff-Smith could. re
ceive. a fair trial.in Harris County..,,.As
there was neither a demonstration nor sug-
gestion of prejudice, this. cannot be deemed
ineffective assistance of counsel.**..And fi-
nally, Duff-Smith fails . to demonstrate
what relevant fact(s) a more thorough
background. check. on Don. Chaline,:- the
state’s primary non-accomplice... witness,
would have. revealed. Pure speculation
that crucial cross-examination material
might have been discovered is insufficient
to raise a constitutional claim of ineffective
assistance.
9. Insufficiency of evidence
[13] Duff—Smith. asserts that the state
failed to present sufficient evidence to sup-
denied, 493 US. 831, 110 S.Ct. 102, 107°L-Ed:24
43. Gilliard v. Scroggy, 847 F.2d 1141 (5th Cir.
1988), cert. denied, 488 US. 1019, 109 S.Ct, 818,
102 L.Ed.2d 807 (1989).
dA. See Barnard, 958 F.2d at 642 nell.
SS EE ee
1184
port the jury’s finding of the remuneration
element of capital murder. The heart of
his argument is that remuneration was not
shown because he would have inherited the
same amount of money from his mother if
she died naturally as he received after her
murder. Thus, Duff-Smith argues, he did
not gain from the murder. 3
When testing the sufficiency of the evi-
dence in the context of a habeas petition
the state conviction must stand unless no
rational trier of. fact, when viewing the
evidence in the light most favorable to the
prosecution, could have found the essential
elements of the offense proven beyond a
reasonable doubt.© When a state appel-
late court reviews the sufficiency of the
evidence, that court’s opinion must be giv-
en great weight.“
Duff-Smith’s argument runs afoul of
Beets v. State“ wherein the Texas Court
of Criminal Appeals specifically approved
its prior holding in his case.** In Beets the
defendant murdered her husband to collect
on his insurance policy and to sell his sepa-
rate property. In reversing the initial pan-
el ruling, the Court of Criminal Appeals
sitting en banc held that remuneration in-
eludes murder in‘ anticipation of receiving
an estate from the murdered victim. Ques-
tions regarding the sufficiency of the evi-
dence are gauged in the light of applicable
state law.” Under Texas law the trial
record contains evidence sufficient to es-
tablish beyond a reasonable doubt the es-
sential elements of capital murder for re-
muneration.
10. _ Use of unadjudicated criminal
conduct
(14] During the punishment phase of
the trial evidence was introduced of Duff-
45... Jackson v. 'Virginia,:443 U.S. 307, 318-19, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
46. Parker v. Procunier, 763 F.2d 665, 666 (Sth
Cir.), cert. denied, 474 U.S. 855, 106 S.Ct. 159, 88
L.Ed.2d 132 (1985).
47. 767 S.W.2d 711 (Tex.Crim.App.1985) (en
banc ).
48. 685 S.W.2d at 33 (evidence sufficient to sus-
tain a conviction of capital murder for remuner-
ation). -
973 FEDERAL REPORTER, 2d SERIES
Smith’s conspiracy to murder the Wan-
strath family, and his offer to murder the
husband of an ex-girlfriend for inheritance
purposes. Duff-Smith alleges that this
was error. He also contends that the evi-
dence pertaining to the Wanstrath murders
was hearsay and thus violated his right of
cross examination.
His first contention is squarely foreclos-
ed by the law of this circuit.5° As for the
second argument, the statements Duff-
Smith complains of were coconspirator
statements made in the course and within
the scope of the conspiracy. They were
admissible.*!
For these reasons,: the decision of the
district court denying the application. for
writ of habeas corpus is AFFIRMED.
UNITED STATES of America,
Plaintiff-Appellee,
; ; I™, : ;
Frank IVY, Defendant-Appellant.
No. 91-8434.
United States Court of Appeals,
_ Fifth Circuit.
Sept. 17, 1992.
Defendant was convicted in the United
States District Court for the Western Dis-
trict of Texas, James R. Nowlin, J. ‘of
49. McGee v, Estelle 732 F.2d 447, 451. (5th Cir.
1984)... re
50. Landry v. Lynaugh, 844 F.2d 1117 (Sth Cir.),
cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102
L,Ed.2d 236 (1988) (admission at sentencing in
state capital murder trial of evidence of prior
unadjudicated offenses does not violate due
process rights).
51, Fed.R.Evid. 801(d)(2)(E); United States v.
. Miller, 799 F.2d 985 (Sth Cir.1986).
conspiracy to possess cocai
distribute, possession. with
ute, and using firearm dur)
to drug crime, and he appe:
© of Appeals, Patrick E. Hig
-- cuit Judge, held that: (1)
- valid despite misstatemer
== gubmitted in support of s
~ »(2) there was sufficient. e:
~ jpation in conspiracy. by
than defendant who was
— agent to} support defend.
= conviction; (3) there was
aa dence of actual possession
- @istribute to support defen
of possession with intent t
(4) presence of gun in defe
supported conviction for
during or in relation to d
1. Criminal: Law 4394.6
‘Police officers’ testi
district court’s finding —
| = briefease was wide open ;
=~ such that seigureof gun,
and slips of paper foun:
== would be valid under “plai
3 US.C.A. Const.Amend. 4.
2. Arrest @71.1(5) * |
~ Search of deféndéht’s
was within his reach,;’was ©
incident to arrest, even
dant’s claim that briéfcas
time of arrest. U.S.C.A.
3. Searches and Seizures
~.Misstatements in warr
for. storage facility to b
found on defendant when
and that information | was :
erating “defendant” .. did
“search, absent any showin;
Statements were made’ wit!
“tyor with reckless: ‘disr:
US. C.A. Const. Antend. 4.
4, Searches and ‘Belgures
“an» Defendant ; must..shc
made statement, with, deli
with reckless disregard { |
te*challenge search,on ba:
5
i
3 aE ae
ig! eee
1182
Harris County District Attorney Johnny
Holmes, Texas Attorney General Jim Mat-
tox, and United States Marshal B.S. Baker.
Duff-Smith claims he was seeking informa-
tion that these individuals may have had
regarding the fact that Eickenhorst was
eventually transferred to the federal prison
system.
This contention is without merit for in-
firmities in state habeas proceedings do not
constitute grounds for federal habeas re-
lief.21_ We look only to the trial and direct
appeal. Further, Duff-Smith was granted
permission to call these same witnesses in
the federal evidentiary hearing if he was
not satisfied with the affidavits they sub-
mitted. Although Duff-Smith’s defense
counsel expressed some dissatisfaction
with Holmes’ -affidavit, counsel elected not
to call him.
8. Ineffective assistance of counsel -
[6,7] In his eighth claim for relief
Duff-Smith argues that he was denied his
sixth amendment right to the effective as-
sistance of counsel.’ Specifically, he con-
tends that his counsel: (1) failed to ‘object
to the excusal for cause ‘of ~ prospective
jurors Boyd and Nagler; (2) failed to object
to prosecutorial misconduct; (3) did not
present mitigating evidence during the pun-
ishment phase of ‘trial; (4) failed to chal-
lenge the medical examiner reports; (5) did
not pursue a change in«venue; and (6)
failed to investigate adequately the back-
ground of witness Don Chaline.
To succeed with an ineffective assistance
of counsel claim, Duff-Smith must show
that counsel’s performance was deficient,
falling below an objective standard of rea-
sonableness and the deficient performance
prejudiced the defense to the extent that
31. Vail v. Procunier, 747 F.2d 277 (5th Cir.1984).
32. Strickland v: Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); “Lincecum
v. Collins, 958 F.2d 1271 (Sth Cir.1992).
33. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066,
80 L.Ed.2d at 695; Barnard, 958 F.2d at 638.
34. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th
Cir.1992) (citing Strickland ).
35. Kimmelman v. Morrison, 477 U.S. 365, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland,
973 FEDERAL REPORTER, 2d SERIES
“counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.” 32 The reason-
ableness of the challenged conduct is deter-
mined by viewing the circumstances at the
time of that conduct.** In our assessment,
e “strongly presume that trial counsel
rendered adequate assistance and that the
challenged conduct was the product of a
reasoned trial strategy.” *
As previously discussed, defense counsel
did not object to the trial court’s excusal
for cause of venire members Boyd and
Nagler, and thus Duff-Smith is precluded
from directly litigating that issue on the
merits. Under Strickland, however, Duff-
Smith may still raise the merits of this
issue through an ineffective assistance of
counsel claim.5 = +
The applicable standard to determine
whether a prospective juror may be exclud-
ed for cause because of his or her views on
capital punishment is “whether the juror’s
views would ‘prevent or substantially im-
pair the performance of his duties as a
juror in accordance with his. instructions
and his oath.’”” A juror’s bias need not
be: proven* with. “unmistakable clarity.” 37
The trial judge is in the best position to
assess the demeanor and credibility of a
prospective juror; :accordingly,.the judge’s
determination is statutorily accorded a pre-
sumption of correctness.**
A studied review of the responses of
Boyd and Nagler during voir dire confirms
that they were not excused improperly un-
der Adams and Witt. After admitting that
she philosophically opposed the death pen-
alty, Nagler was asked if she would resolve
the conflict between her conscience and
oath by answering the special answers
466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at
695.
36. Wainwright v. Witt, 469 U.S.°412, 424, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985).
37. Id.
38. 28 U.S.C. § 2254(d); Ellis v. Lynaugh, 873
F.2d 830 (Sth Cir.), cert. denied, 493 U.S. 970,
110 S.Ct. 419, 107 L.Ed.2d 384 (1989).
com
=
peg
Ea
ai
‘ager
3
“
oe i
= ‘and the eyidence?”
= ‘“no” to avoid the death pe
first responded that she w
= ptated that she did not k
=would do to resolve the ad
Boyd was not sure that he !
= tal punishment and for that
4 ed that he “might answer th
tion] no to keep from h
When defense counsel aske
were in that position then
fate that oath that,you w
~ ‘answer it wrongfully, contr
Boyd
éwouldn’t!take the oath in
if it meant killing so”
trial court could have been
definite impression that:[N:
would be unable to faithful!
ly apply the law.”.**..Henc
counsel did not act unreas¢
fessionally in failing to ob}
ing of Nagler-and_Boyd.
{8] Duff-Smith also alle
~ were ineffective in failing *
~ ecutorial misconduct—that
' discovery order the prosec:
tify defense counsel of
knowledge of the perjurious
and of Duff-Smith’s~ han:
\ This claim has no merit.
— not deprived of a fundam<
- because the state failed to
the authorities were aware
‘and then suborned perjur
“obviously had full knowle:
mation the prosecution dic
» constitutional rights’ mani
- implicated.”
[9] . We next examine D
gation that his counsel wa
_ failing to present. any mit
_ during the punishment ph
{Failure to present mitig:
based on an informed anc
». 2 Wing 469 U.S. at426),.10
" Wilkerson, — F.2d at t 106
son, 751 F.2d at 1441).
42. °° Strickland, 466 US. ‘at 69:
Green v. Lynaugh, 868 F.2d
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, _ . . ‘ vere i ST oe Tey a en B O } } led . re ee ee ’ ‘
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. eo ’ , . Tenet TAN Vee temas at Of aati: f S ° . " Fn re) rn
ee ee seg sop ie? Whee ikea ed hg for Summer Scason <i Mote
eof t! ye . 1. oes ‘ ~ 7 , : oA
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-herg ’ - ee A f ! 3 so, oe v 1 ‘
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of eof @ & ome we 4 tee, a“ N a coe et ke Se ee - ' . #.% ; oy . ae
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or eee ay | ete yore fea | ee " ‘ um . m4 ' 1 ‘ t ¥
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br ’ ta tee Ogee vote ' Hoth mh Met bag 8 Vrore 64 0. Obie oo ' ;
t fen ove Yn adhe ' " ede Ped thas
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mei © Gl 4 : ta Lote a baebe the nhs . CONDITION OF VICTIN-
1 "4 ‘ toe . ‘ aes
; mee te ‘ , ; oo ee a COLLISION Ps cpiin
are a et ’ », ‘ ‘ ’ ' be 7 he er '
Lr ‘ ’ ’ Woy ; fave gy Vee ante tee ty ‘
8 toy tan oeey NU Pre ee thie < ot '
“tis ebtey Wwe " 'Yy- oltee ate 1 '
olin io yg 7 , PPre be PF yee Be te at ol : 4
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CUERNGD SS EN ChE read ' ' Cony i ' !
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; ' . ' ‘yt Ge POT ryeepeyye oe t ied !
fee F ‘ ’ tet Thou . , ;
1 , { Sf ¥ J ’ oe ee eome he PEN Rise Ns. Tie tt
t bap { ‘ doo H darcy PPS So theeb toy Qeelven MM Pinel es
*T ee tlie te . bat \ ! . nl © P:aeb fee ern abberugeee ek fey og? > : ‘ '
te i Coed Oh, . heap Qt ere datreen (he. : ' . . the ' ‘ ts
to th "Van at) ualthve In Sowmghe OC at toomate ty co adbeed batt ts ut heen H
; ‘ ene ve ! et! oe ehpfhatte oe “ua Na { “teed oan ot CO ra es thee , ‘
ie coon ae Re a t Sa Te ee ee ie we AM eveces Viet Mecrediatiedd oe a
PA SA Cente | Math ko MO Pattcrean Hove Ao Sesame nts hive hoon ” a
Saat WoT bree ee ed be pe fod sS Senior efase thin: , . ; bos ‘
t a , yo Metsdeetteg ww Orel bre wt sed Stee penton «fas, ef ‘ ue "We . '
' RS Te |) YT eT rete ee ES RET V. fpeohae eda ay "
ete a a Ue OS ae melee dF thee codes be gee ' “ " ,
fot ‘wet eer ie ar tes ' Sete beet seh OP Cem pee, Bos
bot ay ’ te seo gl Thir-« riers teeth 8 ft we og _—_ :
to ‘ pere Oeoree Powe th Pt re re ea | ' we ! Sete dee ned . ‘ 7 .
: ' um HOME EP XPOSTPION bron . : Wor! Y
o eat a co ee a oa ' Pehl ii To er , LIC HEA WOt LD ( LOSE
a Le A. re) or atyo. ip teem . (S GINEEN TO ean POus POT E ‘ D
thee ertte + CR Sr ee ry othe the deere : FORT WORTH DANCE Huvl cy
. - MORO Ln abe tt lene poet dee capeed were Indication that an oe rn coe hen ‘
F os : Pater sax artee of thie preset ‘ nr rr ut ky ¥ 8 fexve ths - © |
TE ETE CTIONS OF Cot NTRY Boy attlenre li. seombed nt oF one Mie 7 a ’ tt miler ' rh: ny i
: we i af vives . . al (hexe “hagte re i oan
PUSS POR BPONS SEETITENG Olek street Ue fortmerty lived with “_ “ Pinas! Teal Weta Perr werrny ¢ -|
a. hee Parente at Cement City Heard at Gardner Park opavition Pon — =
sHeneet a eountry Bey from , Shen pelies entered the drag April @ te Tk would be « emibtiets Povey Metter cereb Bene eo ono
‘ ) ‘i vs q Pr i :
. TS oferen WETD Be the pring. | Sore onfter tilmwone death they een wie: Were bari Atlee oe aid Boe a U8 “3
primedei ce ANAM Hedy ene ke Filed Who” Jarge seale next vent were ried
> ‘ Woe) ° taok we “ ’ ° } . oy ‘
' ct Avec at the tunel. | Cimurettes elenr and tobaecce w fed mt the board’ funmeleon ar rhe! tae o tanee ; beorimar cre, '"
the Prattnf Llone Club in the Fo tirnnt oproprieter of the «tore. Orlental Hotel at noog Thoraddoy Maree Marthe poe ae 1 ¢?
(> reefer of the Nelolpdrrse Tliseol motel ttiret mEroxtinately $65 worth! Neports from Wo o1) Jermee, ehatrrrveen elt Prmtere tiie ta heay, | ‘
toes ' mM Jenkine ’ teerda were In the earks After cof the committer, showed that a re | ed ie
' n. d " vive later tinvewtipution, afficeera reperted nee ir had heen a ate tenn
cert, fro ebwrire of the prodram that two «qeks of atuarnr Were atolen Katertaiainag feouturen Pie tus Varet OM Mineo Neen bee dS
vie g af Deeg wets 5 ‘8 ednesday niet trem the Mtar luncheon were Prowvleds «l tes "Yeo, BGS at Pvitee Othe DE mes cad ly
tame ye af Wall Point weet] Ce eter, etlawonntiy germs the. Lovie ot Itace)| Orcheatrn which Mot nena Thar wd ay
Yrq omefditlesny te. Ube feline. <Oreet Crem the Cirant Wee ptore 4 rn! ed far the recente : Speaitlan Cee Ee ee Cermpere NS Perera ved ie ”
Se IN give emphasis ty San Mavor Sawnte Nldiedage Thurestay, n Jester, editor of the Pest, Lere Beare ott iret tative cet or
Than HEte thee annOumeedt that ot ceward! omicial publtentton OT the Pata PERE P Pree We bie eo baer meets
so Prtdaw wilt be furnished hy oof $200 would be vpatd for the arrest SVytal Ketate Hoare wre public ts Dwas started ‘Pueedaw amar
oie AF ERIS. pen ee eee ee. thls SANOUACHs! CSmplinented (ar his Reevlers . ————= se =
. bee CHT he on feature of thie ment was aloo telesraphed and sent - a o-.—- .._. ! : .
. ; the progeam . , tu all ether otffecm where It wee wer _ ORD AMO POMEL Mmeatrn
a ene. Oe cee. oe i thouwhe gees of the einyer emight REPUETION ANNOUNCKD by H ASSOCERTION Wroirs
- be found ' . p aor nem
et L AS PAW TOR WEED Geet i = : CARLM RATES TO Kinorn. lta The Newe
DVIS AT NONRN NC NEETT, | wernt veestees: Srenwed. ae, enn ¢
ae “* Buneral aerviees for Officer Gth-! The Western Union Telegraph ARDMORE, OM, April 1% = tre
son will be held Friday afternoon;
at do'riock at the Weat Dellas Hap-
tiet chureh with the ev ER BL Al- |
ford, pastor, officiating. Rurial will
be in the Weat Diallaa Cemetery, |
Chief Hrown announcet Thursday
that a benly of polleemen will ate :
tend tn uniform an nn escort. Com. / to placed In effect.
yeiaasbe sariee “we Mrown ang ‘ ait a pidge Sate _ Aus.) thea Carter County Realth organis4-
sther offictnia alan an to attend tralia, via Londo are is a ree; : : .
ths inneral. weeuct . jduction on full rate meanages of Soi Von, The 1924 natlonal Christmas
Albsen ta survived hy hla par-/ per word’ and on deferred rate mes-; seal conteret was aleo signed
ents, aut. eet _ ay ¥. Gibson of| eames of pe dy per bag int 6 Dr A O. Davenport of Oklahontr
Cament City: one brother, GC. Gthe ome o @ more important coun.) _, ° .
sun. and five slaters tre. Hof lertgs affected by the reduction and | (iY. Bute Commiastoner. nf Meairn
deht Fred Stratiles on@ Prout thee
MON Were selected u4 repreeentot.
of the Oklahoma Flublie Heater 4.
' goclation to the National Tuberentar
Association at the clone of the Jelut
meetin held by the State bods with
Company Thorsday announced a ere
duction in rates on cables yo Europe
effective at ance. According to J. ¢.
Jacknon, city runerintendent, a spa-
‘celal table of deferred rates also ix
Rhorritl Mra J. Lo Mctlann and! the new rates aré Treat Huitaln,) was elected a mamber of the execu.
be in charged dMlesen Ruby Othaon, Benale Othwon! Gormany, Italy, Moaln, Luxemburg, | tive committee of the state Hour
{and Mabalie Giteon. all gf Delian . | France, Switacriand and Delgtum {"" Hoalth. .
‘ eee tt - | '
tay ; ' ’ + to ‘ : f { “
1%, ys iw” ‘ : f. ‘ - ’
ros NO 42) 5 0u8 4 ° ; :
, ‘ @ yt ¢ : Kia’ wae 1 8 . ” ¢
eo ' a PA ~ , t oo . ;
Ae ‘ _ : o.. ‘e — i ‘ ’ , an 2. &
| ’ ' “4 " aie aa ae” Ch thee ihe ae :
ery
—
t
Red
{
ee
wi
1 DEND
TICAN TARTS TS
“T (WALtAN
2 Parsrs
oe
chy - @f-
te af are
‘ ¢ are
in » the
« of tehide
reeves "atl
"al “see 8,
wrlin feoom
.- - ab. |
arf \ ace
tar ers ®@ite
‘We top.
Yn sae that
feet roorrr tate
tete n'! lefe
ve r alti. jes
tir’ troed
weaves ute the
t wit’ -helter,
s left s oo prmae
Sod eheefa,
” Yee the
¢raan coke
es wt ere jn
Wey: pede
lide : ng
‘am “ee
mr “y ae
The “ere
c te, ‘the
7" 4 the
«mel te
soe 4 .re
om ate oo opine
th. soe are
ba. \ inna
Treeee atelh
Cae dead
4 ib are
me fichere
Yenr ‘ thea
ftir ‘mtngye
sf f. PAR i |
> he ‘oe the
¥ FLYERS
HE CARSH
“SIJUP UD WHEN
"BER FALLS
TES TITE
were dy Three
re k +! Thure-
ea wie a Mare
ne t. e orf at
r por'irt crashed
urEt to fla men
We: SfOORE,
ore a'r StaoN.
NGI
and 3} ‘cate Bale
sertor:
t b’r: te Flatthee
he T -ctr-Thied
watre Jetsinige
of +e
tr
the vaty- Fitna
wi
ye
uy Se
es
peabee
La Folleite Stricken
al Height of Power
Ry Tre Te
Robert
at
n il
" SENATOR ‘noBkRT.
LA FOLLETTE.
'teod Nowa, /
WAKHINGTON, March 27.—The
same tragic fate which han played
ao many cruel trickd on Senator
M.
Increased political power,
Ta Follrtte has now
strock him down with pneumonia
the threshold of nan period
of
| Thureday announcing that he has
developed pneumonia; but that his
condition wan ratisfactory.-
'
| Hie phyriciane terued a bulletin
|
|
Later
In the afternoon he*was reported
Ta
leerned
yenra—and
sertoualy il after his return from
He
never to have fully recovered from
Rurala
that
moment
will be
he haa
dows, career.
ttre politica.
as reating comforathy,
Follette’s (riendn are con-
this
‘that
hecaure of
the fact
early lant fall,
nem. They are
in La, Follette'ns
left
econtem plated,
agce—4r%
he wre
seema
placing
their hope In one thing—his re-
markahle vitality.
This tines comen ot the crucial
up and
Even should he re-
cover, the pragability is that he
too wenk to throw
any real amount of time and en-
eray into the exacting work of ac-
lt meane that he can
hardly hope to take the Intensive
part in the coming campaten which
1 Hie ability
ana campaigner on the atump will
\ be loet.
: lane
pective
the
han
national
fthoult
tioned
cording
- ©
coming preside
heen growma. 4
have been working aul
fectively toward br
would be the directin
the enterprise. Rutt
active werk would h
| kated to others, andi
independent
atinl
Ing
Patines IB shag 2
La Foltette!|
; Hef
te's atrangth as a prom
scandidate in
election
iia friende
ly hut ef-
about a
his behalf.
urrive,
epirit of
och of the
be
political i eonift _ would, be
independedt
Sane
“IN ELECTRIC CHAIR
—— +
ARE EXECUTED EARLY
DAY MORNING AT STA
|
|
|
|
PENITENTIARY.
fig Tre (cern lated Proce
HUNTSVILLE, Texas MM.
(Friday).—Erneet
Lawerey
| Biatne Dyer, negroes, hothoofs Drnal-
I,
|e |
2¢
and
las, were electrecuted In the Rtate
penitentiary here ahortly after mid-
night, They
were convicted of
murdering two peace officéra, J.C.
'
}
|
.
}
|
Gibeon and W.
Dallaa. It wae
(*, Crane,
the
both of
recond elec.
trocution eince the chair wan in-
atailed,
at 12:14 and was pronounced de
five minutes later,
seat at 12:48 and waa removed ati
Lawson. made a full con.
12.50,
fersion before bin death.
COMVICTED UF KILLING
TWO MEN IN
ee
Ernest Lawson and Blain
Ing trial In Dallas
charges of murder.
charged with
R.
D
ioe
courts
lLawron
the killing of John
Craie, a night: watchman, and
Lawron went to the chair
Dyer took hh!
Dyer,
negroes, were convicted Inst sum-
iner and rentenced to die, fonow-
on
War
Dyer war charged with the killing
. Gib-
of Motorcycle Pollceman J.
pon.
the Cuurt of Criminal App
and District
Pippen,
February
(hartes A.
Thelr cares were approyed by
in
J vdge
befure whom
they were tried, wet Friday, March
24, am the date for their execution,
Motorcycle
Policernan Ofbaon
wra shot and killed on the algbt of
April 19, 1923, as he atarted to en-
ter Grant’s Pharmacy, Rosas avenue
and Hall atreet, in search of bur-
giara. Mr,
Crain was shot and
killed on the night of May 25 as
he started to enter Browne's Phuar-
macy at College and Juntus streets,
in search of burglars, ‘
A worn overcoat,
which was
found in,Grant’s Pharmacy, was
reported to have been the onty clue
left by the alayers,
The poltce in.
vestigation was carried on for sev-
eral weeks before Lawson and Dyer
were arrested by Detectives WII!
Fritz, John Henderson and i. E.
Rimmons and Police
Garrison,
nt D.C,
Within a few minutes
after the arrest Lawwon. made a
watement in which he admittted
er of
adea
be-
killing Crain, Dut Accused
killing Gibeon.: Dyer also
atatemert in whieh he admft
ing with Lawaron when both
robbing the stores, but denied that
he killed either of the men,
R. 1. Quillen, clerk for the
eof:
ficera were killed and sald he was
Couns
»
ty Commisstoner#’ Court, Thursday
morning issued instructions to the
penitentiary warden at Huntsville
for the bodies of Lawson and Dyer
rf
Bron
fa be went Lack te Datins..
“A
Ce
r.
s} tug. Mr. Daugherty’s tenure of pa
itv, Mo, The auction lated ten
minutes,
Under provistona of the snle,
entire system, including all proper-
ty In shops, rolling stock and road. |
beda, became the property of Mr.
Hiated. : .
Step Toward Reorgnnization,
W. T. Kemper, recetver for the |
Orient, and PP. D. Tuckett, repre-
| septativerof English Interestm in the
jrond, wets presence at the epie, but
loffered no personal bida. 1€ in an-
jderatood that Kemper, Tuckett and
i }iteted are members of a syndicata
to gain control of the
but neither Tuck#tt nor
would confirm s@ch re-'
| formed
Ortent,.
/ Kemper
{| porta, ‘
| Upen the conclusion of the bide |
‘ding, Mr. Histed made the ‘follow. |
Ing atatement:
“The bid made Thuraeday was a
'nreliminary etep toward the reore
wanization of the Orient Rallroad |
Very shortly a reorcanization plan |
will be put out, in which all of the
noteholders will be invited to par: |
ticipate, ,
» “AVAe ft would be premature toa |
Findicate the degails at thia time, 1}
can rev the olan will be a compre.
henaive one and that willl provide
for additional enpital for equipment
and extenalion of the road.
“T think IT may aay that we now
-Ree our way,to, the final accom.
pilehment off/luAg-desired purpose,
!—— t
CONTINUED J.A8T PAGER, SEC. 1.
TNUGHERTY'S HOLD:
—s
SHOUD
ON OFFICE WEAKEN
COOLIDGE THOUGHT NEARING |
" DECISION ON RETIREMENT
fhe commereiral,
the | tena dba religtoeua Hla of net ondy
; his horhe county, but
j leader anid,
iVvidiog for a Weat Terrase
OF OFFICIAL.” ;
—_—_ {
Ry The Assactated Pree |
WASHINGTON, March 37.—At-
torney General Datigherty’s tenure
of office swung back Inta uncer-
tainty Thuraday with more positive
Indications of his retirement from,
the Cabinet than at any time since j
the present drive upon him been:
At one time during the day the
Mmeasare went out over the myaterty
oun wirelem that Presidest Coolk
{dre warp rapidly approaching
definite decision on whether h
would keep the Attorney General |
in the Cabinet, and that [t woul |
be announced publicly, fa
' Preparations for the isaue of pe
statement were under way at thm
White House and also at the ‘
partment of Justice. Then, Sec
tary Hughes had a conference wit
the President and the papects
an announceme Sappea
The Attorney Geuera) also di
missed his preparations for ma
ing a _atatement and went hom
where’ he den'ed himself to
quirer® ee :
«The word went vot that th
weuld be “nothing doing Thurndegl
might.”..,;None of thone tiose +
either the President or the Attors
ney General would commit them4
ivea by. statement an to what:
day or the next day or the week:
might bring. forth. Pact y Th
President Coctidge in known 1@
fave had the situation surround
‘
ir 4
i
wt: 7%
fice mnvet ia mund< for nearly
week aftet.ia lapse.in. atrentio
tit because (of a. feetin
‘Pass Wednecday §
peohithent eclue
the!
nn
State ae well He wae a oratuiosl
}
Y digliels never eeeking C,
eo owas drafted be hoe in
many placed of eery-
In
leaderehip,
friendt<« into
Ice and umeCulnere, Rorn in Geor- fo
Kin tn L877. he grew tno manhood.
and graduated from Pledmeant Cole
lege in 1899 and Immediately came 4g,
Wet in search of henith ee
Once Taught School, a
He became tencher of the Poven 1,
achoal, Where he taucht fer tre 5,
yeurm Tle then went te the las.
achool at Auatin, and Wes on,
qraduamted tm LOK wane Jecated gut ry
Mnyder for the practice of Wie pow, ¢:
feaaton, Heat one teak Crete
rank at the bar and cantiniued up ay
to the day of hie death one of the.
leading Inwvere of thie anetianm ble,
wan Married ta Mfee Marthe Kell
Jan. 3, 1908. Four children eure oe
vive} és
Judge Roeseer waea director aed yy
attorney of the State Bank !
Trust Conipany., te
In the contesta for toecating 4
achool [In Weet Terns Judcer bose
Rad been an active leader R..
wrote the bill wher amends of
the TRirty-Seventh Lecleabiture pore.
NAN. & NM.
College, whieh bil wast veteed ty
the Governor and wren leneling
epirit Mm othe locating of the Tecra 4,
Technological Colfese. He presides!
over the meeting celebrating the),
succera of the movement at Sweet- 7
water on March 2, 1923.
For eixhteen years Judagr Rosse
was auperintendent of the Sundiv
School of the Firet Raptist Church,
Snyder, and for twelve yenra he
was a dercon and for two years
chairman of the bonrd of deacens
The funeral will be held nt
}
'
'
{
if
‘
the
First Reptiet Chureh oof (Snyder
Friday, the , pastor, Dro Wey!
Rouse, officintins. Many tawrert)
and ex-members of the Lreieliturs
have atenified thelr intgntion oo
nttending.
ee ee ee ee
NDOWELLISGNEN
‘LVEAR SENTENCE
|
FORMER TEXAS BANK PRESI- i
DENT CHARGED WITH ©
EMBEZZLEMENT. ic
By The deeasciated freee.
WICHITA PALLS, Texus, Siarch
27.—Frank McD0aeey acreer (ri-
ham (Texaq) bank president, wis
sentenced to (wot yearn in the Fel- Hy
erat penitentiary at Zeavenworih. ;
Kan,, Thurnday nleht, after he had:
leaded guilty to charges of ein-,
pezeling over $30,000 from the:
QGruham Nationa) Bank. Ww. Ou!
Nelaon, formerty. an officer in the |
bank, ia now serving a three-yenr ;
sentence on.a@ alnjiar. charge. |
McDowell waa’ jointly = indict-;
ed with W. 0. Newon, who wae,
found gullty of the charge upon A.
plea of not gulity In June, 19.3. :
and was sentenced to thirty munths
tn the Federal penitentiary,. Final
judzment wae. isken and execu
tlonsd tasved againet a bond ef $7.-
3e¢ In the McDowell ease at the,
fall ‘tetm of court in) 1923. Me- |
Dewell wae.rearrested.-in Call?)
tornia. © .
k- &
@ the intervousta! |
‘Salurm Bba Aratmus
Aras BUNK, ae~';
ecelved) Bere !
* ere Py ‘ Lary LJ ° ° “tees Pirna WMP pente in M4 4
: CO V TLN i Py 1 ae <, F { ; ficer ain im he came to A‘utliae jay Ippo -, ‘
' 4 a y “4 aoe S A Mr. ¢ atsett anid hee intepentes ity
, : ib Gs. » MEaC or urglar ere INE Duwinans tae Me Cte i '
{ . his) tome ‘tte COT on Wwae 4
a 4 . e ye ‘eANni§ged asa fhe Cle PAggnives @ 5
d ja debi ney val Mee twenrnky steer cas
a - nnn To) SE oc aco i “eRe dn Leaae cand Oat
om . ry * i Mer Clem wae premicte eb ck Ute
ih epan pwotlen and fort dtag: | lel GA. Years brid aot
7, a. Contestants in the Marathon. ee - fenierentes bene ~~
© Thursday aflerroon eontinvent he po ab. Crea wae optaingd a te
their long effort ® heeak® thal |. . { : ti, jmiinteter in WEL and fat city 5
Pre Oe new reeonft of © houre 1 ; * = Pastor of count, ¢ heis 60 Wace
; ours and . ‘€ ; Was pastor of county ehure nee |
minutes, senile mw Just owrchoatra | joe Bpring Wounty, Athena |
ret i up with THtthe gexnanae ; ud ‘ vt Delta, Fonntn and Larger ene: |
é j P e: ad | em] fesas
. m the Macuthonere ' ©) ° ff
a —_, ; ~ | if , Many Melatives device.
a affair veaned to be es dance = pie t 1 AEP. Cleo wan mranes u
; : ef . A cr Veew rpg
nt fT welaet Wednendas niknt FUNERAL FO . €. GIBSON, eed < Ve Mima Chatter ts ‘
ent puaptem were onterive | i {Una HCCI Dem, NK tan '
‘ on the weventh bBour of the en- KILLED THURSDAY MORN. | than cere by hye ae
‘ 7 : ‘ : : rem, US teas oe OSE. pee
lines cunteer, When the jaug ING, 1s ARRANGED. oe ee cab ties Clem, Joon, Clem* Ly on
cstra dropped out at IL o'chack ; , ee hte and a‘. iT a eae
‘ * sal * 4 . m \ — om ow nan) ~ i ve. torn Loan Pe Coe
ine a4 might the daneven bee, \ and J. oN Beth att of itive ;
(Tew. Gracming their feet, ane: Wath me clocs availabin jovecept «: enildten of Khe Cheat two wisee o. .
at Mhursday afternoon at 2 oefoek. Fired os ercost und the jmersibility ta [ia infancy set Rise pies is
‘ (on Ny orehevtca wmatin fesumed that finwer” prints i t jtwa brothere” Harvey Clem ofit:
; : ; i may te found. | jford. At®. and AM Che ete
eake a mi Thembera of the patice and Sheriffsé. re HME fewenty tres act
vecclanmg and bang of the faaz or- og j . pobildren | and nine arrat geane ne
te ra Couod anty alte nt rewetion in peaimenty of Dallas are rere | Uren. beside several ma ie ‘
- five couples remaining in the 20IN& in an organtand search for a [Mephéws The death of Me eta
aa ba — kone shrews the buraier whe shot and almast in- ean Seat tee thy bree...
'. Nardly dancing, but pushineg ig yw . : . amily for (Cifteen yenure it re '
unether faround the floor, tos paAY eee Pclilnde eas Policeman | | Funeral services wil} te eetnedtae *
_— (os emanatiog from oa phono. J: © Olbson, 22) years old, about 5 | Friday atterneon at 3 Qclork ane
- pry ; : . [3:45 Weloek Thursday merning. ¢ peamity ed ee he te ee
‘e eouplee were atti in tha; , ‘ ; } 4 j Pruett, Pastor of the WWhree bay:
_ otrst when the rest period of the lbson fled on the stdewatk tn front | 4G. GInsoN Femureh. Mural with ein
wa Thee hour came at 3:45) 0! Grants Drag Store, foes avenue}. a ste: | HIN ee pain, i
. oo Thursday atternoen Phyat-iand Hall etreat. Enat Dating r ~ ~ Sees t Active pallbearers whit be 7 ot
: sMaminwdens made every fouri pe hid: gene SH ceoraee * ; mihi CH P ‘Connell, Ww. Mf. Clark, ¢ 8. Murr
wunine the nivbt by pr Wire | rman ony @y Farks - 4068 DO Williams TOW Wood
Hwarkagbhowed (hac tha con-] &Mteh be and hie partner, Motorey- | 6 cand Ram sxmien, all of Gating
rita Were in mvund condition) Cle Officer Henry Nobles, had been ! : Being Overhauled We abe igi 2 patibearera qeilt te |
he eorloun danger Crom fatigue. | nlarme-t — the buliding. Gib.) ” pes | i feces - {1 Wolfe BOW pte,
. comoaters of the dante whe wre | SON War shot twiee, one shot takings. ve ) Dre. J. Crantil W. th Warr
ni te Break: the world's ree. | Offect near the base of the neck “a. .* or Summer Season: x. Meane Wood Crogk nmi ss
~~ (che PINMINE Most of therr hope HN the other in the lower abde-' . ee jRelven, all af Deiine, mit Woop ta
. ite TD Hues, whee orcheatra men. t . enren a tle ef Henry atta, one: Wee Davia!
“a Turntaning the omrante- Harpe! "You tuke the front deor and rij All peastbiltties mg) accidents or IE Hardy, Jot Crawford) 1 °y
v node in etarge Rave entered (ahe the rear Officer Nobles mald | Injuries from defnetive equipment | Mend. er MF Mage deh
ve CONCOME AL E45 we’ rtock Woednee. (CO his portner wa they approached In the twenty-four ' p Rett atl of Pecan Gap Teeas
a! SreTheot and wl 3945 ofeloete the buieding. ant bork ren, wlth | oy 1 a eee Jarke OF) Rew .. 1, Carter of Evgnhee tf
" "olay atlernoen led taken onty Erawn revolvers, leaped from thete | Dallas wilt be removed hofore the Seett of San ateie. at Yes
nae s heat Pte While the othe | Machines nod eturted tor the drug! thonsunds of Dalla ehitkdren begin aes i Mouginn ae ce: ta : e
ae re taken the (iteen mine bere Nobles aan thati he ran te th : , min To anal
; A ntlowed whdar ike uleisct (Aha PA’ oF 1h. fe ieee ent es ' oe Pence those resarte, it waa oN Smith of Commerce, Cartent thar.
ss Oo Pules every Mur hoes. PROON afterward Nhe heard four shota, 7! irsday by W. Foster duceby, ds of Cooper, Albert Miehards. ,
= ahe ante. cee Welneae- oN ran te (he aeatatance of Gibean, Park director ron A eee HOW feae:
LOREM een te worlds record Whom le tound bydn mortall “tnapectors , « “he PY a pe Sho hae tm?
S'S Nenee and (0 minutes Mince Wounded near the Gu den « y, Pectora were dlepatehet taoalf Prtends Whe hate arb d tn fey
PAS \ Tame on new Teer Psge doris Pry: “Pde ate me, bled," wete the onl a iad parke Thyrsdav merotnys, tae. Fromm sit vf ee ee
4 | : Cleveland, Che ahere Arthuc, word te he iriae onileer anid, air and are placing the ep ment i Fe ee pees A aged Mi ae i ,
| If! i} ‘a "hina old, danced as hours -r Nobles wawerted. Noblem sald, Urst-claae condition, | Where there yy) dias pe ; Lins ae ity - rae?
i of ®. d nik “ the Prewent costew Wo Man runniag but noe Ins is any defeer anown fn the wlidimgs peda of hilton, Mra gl! TQ Mead
_ , , Periods e contestants thine te ahoot. pe could not tet de 4 Peean Cap nme Miaeee Waser ai ve
) f ') ; ‘ ey Sup an Pree! btn dance will’ tne man was White or lac k . boards. winger, serenwe anil Other mimic N rrel Has ior in ty 7 |
: | cael the ne wo Aro ee ‘ ‘ . - ros ‘ lap "Aen ‘- . |
4 web k Orta ee hilly be Seeka Finger Printa, Ibe calito theee parte are te be ym [ Relton, Texne t |
MLL vffert te step the dance was’ Pa Statiworth, Rertiilon expere of? pititee nae needle i : ae i _ y
Phareday The proprietor of Uae police department, was working | “We Rave madw every effort to! ey |
i ial ies Hatt protested ta City 2 ateiay ies efterts to find finger , minke the play Parks here ae cafe nes CONDITION OF VICTIMS OF 4
rn cones Collins, declaring PEINte of the slayer j \ \
ee . PATH MMLGNt crewudt to wente ee Ulfiesr Gibson's | revolver with | oh homes, and during the summer COLLISION IS CRITI@,\[
a eae " Veationt, and oun dil Wene be f%O Grachacwed cartridgee, lay be-! months ofe of two supervisers wll —-- @: i r
TIN sen dance halle tn seorime , alte as Radial NoWew reaeled byte ee wrap tn all the Jericer purks “
‘ ‘ state ‘Ollen hellewe hat Gihwon | Where there fe oo Pel wupervinn yg, y Abert te o. awe
me ES heme ver, watd thee Ud Not tite untl alter he wun hit i the chiViren are given attention ty} FORT WORTH. Tesue St vt
eth teed dniten ere , and thet beth shots went: witd, | their Mother and others, The conedttten of Mer are Ste Bo)
ers trowed trom the im. ‘Marka were found tn the drug satura; “Rew citles of the ste of Peralta | a0 pee +
a WAU at STet CO umine ree | awacrifed to bullets from Officer | Can ‘boast’ the well and perfectiy , White, tes ee ee }
tutaday morning to the La- | Gibson © gon Irallee decinrs that ! equipped parka such as seen here. j street. two of the wletime « [ou
imple dance hall without in- {ome of the shots must have heen |New euuipment is being added iy jead-on collision between an vo
; from for the dancers danced | "red after Gibson had fallen to the ; the time. ; | Hite : ‘ . H
“tae street ty the new place, | Ri dewalk, i. Referring to reports of a recent | mObite and a atree™ earoom Nae] ou
oa the gare of People only Lind Woo Walker, wife of City | Acie nt aa choi a ehitt | nae Wednesday omliht, dao rep fae
vite : ret, ‘twetive Walker, 3224 Mona ave.) W"8 Injures rom a sliver fn ome... *: ° ‘ ¢ tie Pog
- «in she eonteat ar nas | nie. approximately sixty feet from | vf the slide boards, Mr. Jncotg | real ae a iyi ’ a ee
ee Melk wuts Fe Mace and Jen. | Where the shooting occurred, wne ee eue that the tourde tn the { tts ee ” cies we: ji :
; iil » Leon McNutt and} awakened by the shot». She said; alias parks are olled at freqnere! jured in the «ame aectdent, woop. o-
| tes Nareinn cat pukain | oles Renee roectee running rapidly | intervala to obviate such me pater it woe msid at the hei pl
e weuis A ’ 4 ows. pe het Vou nm . : ~ . i af
” Utdred Wonk, 2 ie, Prawnen | the hooting. Vitectice 4 iene "PU: , tania doe tna he ote mal
“te rueth Dy re 2 : by Alker, (PUPILS AT S$ MUL TO PAY Rare ue : a :
Van Ey Fon, and Ro. Newman, ®roused hy Mra. Walker, rushed inte | 7 he nae : _ | ninwham, S807 Weet Twenty Bikte>
uy alone . peed agen bat the burglar hed ale oan Pees MALATE. T atreet, end C. Us Belliaen, Sat vyy of
wee Pm ee ee ane ee tine Y eseaped, - eer saci , Thirty-Frret street, ta mot Tee sess gree
IV LOCK HESTS Ak FEW ! Nobles, after reaching hie dying Collection of #1.060 te pay the jas dangerous, and Jean, & and ee
(MANGES IN CITY pi Cmrade, hailed a passing antoist salary of tha Rev. Earl Moreland, a. 3 years old, the two children or a
aaa NV cry HALL. | Nese remained with the wounded of- | former student of Southern Ateth- pund Mere White, are not series
, —_— cer until the eme . i . ; ‘ ’ i hurt,
; of Appaintiye offices which! could be summoned De ee ARO | aslise University, who (s now tn Rra- | Mr. White, who was driving tie
- he filled by Mayer-eleet: Louis | Cre*R Aho declared that Ea Age | sll teaching -at the Fart Moreland | automobile when ft collided u hn
” ho and the new City Co t dington made a reeord§ drive in!College, was begun Wednesday, rastbound street car fn the ots
‘ whe ee mmis- | reaching the spot, said that Officer i th nl m “diblock on Azel avenue, emataine y+
= - en they assume offiers in Gibson gusped one time and died morning ae e chapel rxervices At} tractured akull and Interna! bs
ne ‘sare being comptied by MO Cr vers ontier he reached the acena, bremmtia cy dead eee Lalahored eel and hia recovery is considetes
Lgiace. - @* . 7 oe er rou : our ” : atthe , -
oc fs-02} Frege City Secretary. There ts | fatal, Se. Andries osia'* erqves re had been discussed hy ‘the Stu-| Mrs. White eae crushed about ths
vhs : "of Canensinesa around the = ‘Mugttive Ia 8 dentw Association. The “echool ia; body and she austaingld Internal in =
nen ty Hall at ‘this time, as thita ane . Seught, : affectionately called “Litthe Ss. M. Juries whieh may prove fata}. The
a ‘© than 108 appointty Frank Reott, captain of pollea, | U." and it In conducted by Mr. | others sustained ents and bruises
on _ aed ntive positions! and Officers. Cleve Wood, Harry | SMreland. —. 2° Neither the anfemobile mer th:
Ad (of us to award” gaid Commineloner | Matlork, M Patterson,’ Jflarr Aspensinetin have been made asf atreet car wae traveling nt ans
tof Stee Nwarts, Wo I Cbreentee and BL , folluwa; Raenlor class, $100; fnenulry, | cessive rata Of spend, if le nal fo, ad
amt _totteations that there | will he MeCilothiin Ranwered the calt and | lO; Junior etadn $125; sophomore | weleht of the street car crushed tic
iat In wome of the departmenta | arched! numerous sections of |claea, $173; freshinuan claws, $75: /} ‘phe AUtomMebile, om :
tea. vt seem Current at the City Hall | Gallas for tha fugitive, school of thedawy, $190, and sehool Mr. and Mra, White stil were oun | |
an ve the eva of the Apett 5 atece Threw stapocte wero belug sarght; 0! commercs, $25. fonsolous Inte Thursday. '
tle, 7 asine ee the new ad- een wht by pollee followin 7 eet , : ~ :
. an ” 1 & personnel weir | investixationas by U J. Nowlin ag tp . . ,
pic ae sy tithe, fare o¢ the sttuation,’| C. F. Jebel. plain clothes polres vee es vtgebichicl POLICE HEAD WOULD CLOSE
ae the M Uy eke remarked, In dia- wetns a ; » i a GIVEN TO REALTORS,
: con the matter, | . “o£ {~ Gibaon had been with the depart. |. hengengectns: FO TH DAN
i. " : o~- wp 2 r pp for about _— montha bad wae Indloation thay Am OWN your home RT WOR D CE HALIS ‘
‘ re ee . : - rated an. one of the. maat ! ® itt dtkadt :
; herbie pillar} ox on, # ar to that} recent! ——#
a - wae lg or COUNTRY MOY | afficers, He resided at 2004 Live Held “by ‘the Dallas’ pl Baa t ie Ayecial ta The News, =
r SNEED FOR LIONS MEETING, | Onk atreet. Hy formerly lived with } die FORT WORTH, T Apes is i
it _¢ bet amen FN , hie parents at Cement City. Hoard at Gardner “Park | pavilion . + FORRES. Apt sod
nee I: (leetlona afm country boy (rem): W police entered the. drag] Aprit € to 15 would be conducted on| Prtice and Fire Commliasioner Jobe
tn oictry taw a” wil’ be the prince. Tena oa ois they) « large scale next "year were sound-| Alderman, asid he would endeavor
nts «sbjoct dseusedd at the lunch eparetion cigare an ‘abecce. Wr ed ut sthe board's Juncheop at the} to clone permansatiy all pubti-
cas nef the Tiilaa Liogs Club in the[ J: Grant.” proprietor of the store. Oriental Hota, gut noog. icscobar, dance halls now operating In the
"ie ‘my carton of the Adolphus Hotel pope vag rete th the nent worth Repmeta from W. OO! Jones, phairman| City. Inatructiona to keep actos [
are tue toon, 2 He Jenkins, vtee later Investieation af Sacks, After! of tha committer A 2? des 3
oe i Pe ape eee p—_ Ie o Mare i s
SS
ee
,
is
#
i a NEE 0 th ills Sea cericnattace teat aie re
all
i x
f = a wae kh meeting ef the
ees
fer reture recetveg ag
on:
anne
teas tillie
tS tinctlibidMbeidety
Une comientesee:
tr and certi-
, tie@ eppies of the ressiutiead
der which the investigators
tram, ~ a
Tre House Jedictary Committee
‘ fatied agaia Thereday te considet
| the Senate resotution pereposing im-
; peachmert proceediagy against C.
C. Chass, son-in-law of Alsert BR.
Full ag collector of euntame at BS!
' Pass, Teraa, because of his
“te testify before the committee
i The Hewes committee: adjourned
i und) next Wedneaday,
i Werther details of r the wiping out
j of the dette in whieh the Repub-
, licen national committee head ai
the end of the 1970 campaign will
; he nought b
‘bviday Crem tttam Beyee Them p-
1 oR former chairman ef the fl-
| Qance committee of the national
: ‘committee.
Teetimbony as ft) loans to the
; committee b the Empire Trurc
| Company ef New York, and thei
repayment, was given Thereday by
| Leroy W. Baldwin, president of that
company. He told of loans aggre
| cating $2€6,620 and of their re-
i parment with interest over a pe-
| rind of from twa to three years.
‘tte paid there never waa any col-
‘}ateral foe any of tha notea
| Two other witnesses will be ex-
amined Friday—R. H. Wileon of
i fe naa City, a candidate for
the Democratic gubernatorial nomi-
eno two yearn ago, and F. W.
Rarieson of Minneapolia, blue-aky
THE Dariss
the eubpere for Mtnciaie and ihe
-
the etl tnrestizators)
t«< t ‘siete
CONTINUED FROM PROM INST: PAGE.
RNIN i NEWS,
| PAY UNS? PEMILTY S
CONTIXUED FROM FIRST PAGE,
he di not know witli later that
the officer had been kilfed. —.
Three shocks also were required
te kilt Dyer, and feer minutes
elapsed becween the firm check
and the time the priscee
preneunced the negro dead. .
The executions w witnessed
by alz officers fram
tt Den Harston, Deputy Sheriftt D
Cherry. Potice Officer D. C. Gare
rteon. Motorcycle Policeman H. F.
Jérgena, Motarcycie Policerran HH.
M. Taylor end Patretman Roodert
R. Rewart.
Tne dediew of the twe Regroes
will he forwarded by prisen an.
thoriticng to Dallas
CONVICTED OF KILLING |
TWO MEN IN DALLAR
Ernest Lawwon and Riaine Dyer,
Negroea, were convicted last sum-
mer and sentenced to die, follow-
ing trial tn Dallas courts on
charges of murder. Lawson was
ecgtneer fer Minnesota—and then
the committee will adjourn its in-
quiry ever until next Tuesday, un:
der present plans.
Jennings Tells Hin Story.
In hie teettinony before the com-
mittee Jennings vald he had known
itamon for a number of yeara and
had gone with him to the Chicago
convention,
“\N a went to a room in one of
hotele,” continued the witness.
told me Htarding would be
miinated the next day and that
1 had enat him $1,000,909. He
ot he had pald $230,000 to Roles
lrencoee and In a conversation {
vas brought out In some way—lI
“ill not be perfectly clear about it
that it was agreed by Mr. Daugh.
erty, Will Hays, and he named
somebody elae from Ohloa, that ne
would be Secretary of the Interior.
I's said tt had all been settied. He
-aid Mtr. Daugherty was at mrst m
‘.vor of Senator Pall for the poai-
on, but that he pas bought them
over, but that It had cost him @
‘ of money to do tt, That is
ut all J know of Jt”
“T understand that Mr. Hammon
‘dA you that in the make-up of the
c“oinet of Mr. Harding,” eald Ben-
Rpencer (Rep.), Miasourt,
"hat Mr. Daugherty was in favor
=f Rue Fall.” “Yea, bat that it nad
-n alt arranged that he, Mr.
vinon, was to be Secretary ef the
Deterior’
‘Do you think all the informa-
‘ten he wave you turned out with
"he same degree of correctness as
“ae thatt "That waa the whole
‘land that wan what he expec:-
‘o get tnoon.”
isbires
ble
itor
charged with the killing of Jehn
R. Crain, a neeht watchman, and
Dyer was charged with the killing
al Motorcycle Policeman J. C. Qid-
son, Their cases were approred by
the Court of Criminal Appeals in
February and “District Judge
Charlee A. Pippen, before whem
they were tried, set Friday, March
23, aa the date for thele execution.
Motorcycle Policeman Gibeon
waa shot and killed on the night of
April 19, 1923, as he etarted to en-
(er Crant’'s Pharmacy, Rom avenne
and Hall street, in search of bur-
glares. Mr. Crain was ahot and
killed on the night of May 25 as
he started to enter Browne's Phar-
macy at Collewe and Juntus otreeta,
in rearch of burglars,
A worn overcoat, which was
found in Orant'a Pharmacy, was
reported to have been the only clus
left by the slayers. The police In-
vestigation was carried on for sev-
eral weeks before Lawson and Dyer
were arrested by Detectiven Will
Fritz, John Henderson and L E.
&immonsa and Police Sergeant D. C.
Garrison. Within a few minutes
after the arrest wron made a
atatement In which he admiittted
killing Crain, but accused Dyer of
killing Gibeon. Dyer also made a
statement in which he-admitted be-
ing with Laweon when both the of-
ficern were killed and sald he wan
robbing the atorer, but dant that
he killed either of the men/J o-
R. L. Quillen, clerk for the Coun-
ty Comminstoners’ Court, Thireday
morning issued tnetructions to the
penitentiary warden at Hunterville
for the girs lLaweon anc Dyer
*o be sent back Us Dallaa.
Waan't Hammon for Wood at the
is asked Senator Rurauin
Poe grb, New Mexico.
rd Wood.’ Jennings repiled.
tohe (W cod) was tau much im-
venated wtth the d-——n
henoeaty of Theodore Roorevelt.’
lenntngs to Head Conpany.
Veptying to Inquiries (tom BKena- ,
ed
tnt ¢(Dem.), Washington, Jen-
ve mald: :
Hie (Hamon) wanted me to
rad one of his companies. He
aol the Democrata had not left
sa ho ef the public land, but that
would get the reat of it.”
“td he anaak about the oll re-
“He never:
“Het i
1)
fool , fp Brerial te The “ewe.
‘FORT WORTH BIDS FOR
$1,500,000 BRICK PLANT
| FORT WORTH, Texas. March
'27.—Fort Worth han mada a bid
for a propored = $1,800.900 . bricx
manufacturing plant that Ia to he
| lorated In Texas by the Irtterna-
tional Rerickiayersr Union. The
Fort Worth Chamber of Com-
merce through Roecne Ady, inilas-
rAsherst, and Chatrman Rrookhart
tien Ho “while former Senator
Cryambertain, amisting Mr. How-
land, Senator Wheeler and Senator
took part in an embittered wrangte
ae te what Mise Mtinson had anid,
and as te what ane anauld be al-
lowed to my.
Names Are Withheld.
The cemmittee ruled, Chaltrman
Brookhart aald, that her statement
of the names would not be perti-
nent to the inquiry, and an Senator
Wheeler charged Senator Cham-
Bertain with misrepresentation, the
latter warned him to “be careful”
and spoke of “senatortal immunity”
which Senator Wheeler offered to
waive, Senator Chamberitain then
made hls atatement aw to what he
expected her anawer would he.
\ Mt Stinson left the stand after
her fou appearance, having eee
swered onty a few questions, in
extension of her atory that ahe had
been “framed up’ to appear aa
having registered in a Ctevetand
hotel aa the wife of A. 1. Fink, and
| having F hstonsenen to blackmeai!! Ate)
torney General Daugherty.
Call Former Army Officer.
To follow Minas Btineon, Senator |
Wheeler-callied H. L. Scaife, for-
mer army officer and later Depart-.
mrent of Justice Invemtigator in
eirplane war-time fraud cases.
Beaife told of being aaniated hy (an-
ton HR. Means in preparing prose.
cutiona which he found "blocked.’
Scaifa described ane item affert-,
ing the Standard Alrepatt Ori: |
tion of what ha called “over-pay-!
ment by tha Government,” amount-:
ing to $2,260,000. Kenator Wheel-i
er called i( “robbery of the Gov-
ernment.” It was the cnse, Eeaife
said, in which occurred tha allezed
tran tion tn which Jean Xmith,
the Afforney General's friend, wan
ch by Meane with recelving
$300,000 which Merana got from na
“Jap” whe met hfm in a Washing-
ton hotel.
Renator Wheeler Interrupted
BScaifa's testimony to call for M. H.
Daugherty, the Attorney General's
brother and president of the Mid-
Jang Naflonal Bank In Ohjo, and
when he did not appeur, moved!
that the committee treat him ae a;
witness in contempt of the Henate. |
Papers were ardered prepared. (0;
make formal presentation to the;
Senate that he had failed to an-
swer subpen@® and Inatituting ac-
tion for punishment.
Beaifo may proceed” Friday.
Chairtrnpan Brookhart raid subpenn
pervers were after witnesses who
might give the tnquiry a new turn.
Before adjourning, the commit-
tee took up two details of ita fn-
quify, one as to the file search
at the Department of Justice, and;
the other aa to new telegrams taken
from records in Washington and
Waahington Courthoune, Onto.
Rome of the mesaagen will be taken!
up for Jater Investigation, the com-'
mutter indicated,
>
Three Forest High
Girls Score Perfect
Altendance Records
“Investigation haa revealed that
there are three renior atudents In
Forest Avenues Hizh School, all
a ee ee ee Peer
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}
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ae ee SO oe ee SS
HACOONALD DENS |
(Ry 7
ADVISING EXPERTS
BRITISH ee ANSWERS
| CRITICISM OF GOVERN.
, . MENTS POLICY.
fy The Aasarteted Prees,
TONDON, March 27.—IKn reply-!
ing to various eriticisms concern-
ing the Government’a foreign
poligy, Premier MeeDonald tock.
fon In the House of Commona |
Thufeday to deny categorically |
that the Government had atrempt-.
ed in any way to itsfluence tha ex-
pert’ committees in Paria. Hej
aaw the experta who came (o Tan: |
don laat Maturday, Ne sald, but they |
only wanted details on certain mat-!
tere, and neither asked nor ree
ceived any advice fram the Coy-
ernrgent or himeaelf,
Namarking that the Government,
after considering the experts’ re-
ports, would be ready to ennsy!t)
with the other Oovernments ron-
cerned for tha purpose of defining
a common policy, the Premier con-
Unued: |
“Supposing we eneceed in clear.
Ing up the preaaing di(firultie< ,
‘then will ba the time to put our,
weieht behind the completed:
league and to have, elther by rea-:
olutions, auch aa were pansed by!
the American Kenate tha other:
day, or by fnritation went by;
France, America, Italy and our-!
netver, all (he Nations of the world:
come together and discuss Me ty
whole question of diearmuament. |
“Uniers we have ai very clear:
vlew of a completed policy we are,
not going to arrive ata mettlement |
which will be the foundation of)
aomething greater and full nf hope,
large.”
for the world at
NS HEAR TALK
BY GRAND ieee Cee
The growth of Pythtaniem in!
Teras and particularly In Dalla!
‘during the last twelva months was,
‘reviewed at the joint first arni-
versary celebration of Dallas Lodge |
No, 160 and Dallas Temple No.
Pythian Sisters, at the Park Hotel
Thursday night. W. M. Futch of
Handerrson, grand chancellor of
Texan, Knights of Pythias, waa the
speaker, Ellis P. House spoke on
the work accomplished by the
Pythian Nisters.
In addition to this a program
of entertainment, Including muste
and readings, waa given, followed
by refreshmenta and dancing.
CGeorga A. Rrower waa tn charge!
ws
of the program for the knights!
and Mra. C. W. Chinn for the als- '
tern. |
“That Alrplane Stuff." a humor. |
ous vile wae given by JAllie |
' Bray! ‘ Abner Maze, profereor
, of ber at Southern Methort!st
University, sang several selections. |
DECLAMETUS CHOSEN RY
NORTH DALLAS SCHOOL,
Edward Smiley and Derry Har. -
rican were chosen tn repreacnt the
North Dallas High School in the
city inter=cholastic declamation
contest to be held next Bridhy nt
the! Foreet Avenue With Sehont
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- ThewWurlinaton Free Press ycemonT
OPINION
Monday, August 8, 1994 @ Editorial Page Editor: Nick Monsarrat, 660-1867 or (800) 42 7-3124
cern
EDITORIAL BOARD
James M. Carey Nick Monsarrat
President and Publisher Editorial Page Editor
Jennifer Carroll Edward Bartholomew
Executive Editor Controller
Stephen Kiernan
Editorial Writer —
Texans, take note
exans — not just the laws and courts of Texas — must share
the blame for executing Vermont native Robert Drew on
Tuesday for a 1983 Texas murder somebody else long ago
confessed to committing.
‘ The courts couldn't have done it without them. For it’s been
‘ Texans’ continuing tolerance of a 30-day time limit on the
- admissibility of new evidence — and apparent indifference to the
' jnjustice such a rule inevitably produces — that ought to Icave
- Vermonters permanently angry.
: The people of Texas, 17 million strong, might sce one possibly
' ynjust execution in the abstract. But in little Vermont — popula-
: tion $67,000 — it's personal. And if that personal injustice is ever
do it.
Nobody put the problem more
Nobody put the
_problem more clearly
. than Vermonter
Rusty Martelle In
1993: “If Texas
: thinks he’s so gullty,
- why don’t they have
a new trial and this
. time really find out?
What harm could Kk
do?"
en i ee oe ae
21
. citizens.”
to be undone for others, it will have to be Texans themselves who
clearly than Vermonter Rusty
Martelle in 1993: “If Texas
thinks he’s so guilty, why don't
they have a new trial and this
time really find out? What
harm could it do?”
Or more personally than
Vermont's Roman Catholic
Bishop Kenneth Angell: “The
cyes of God and Vermont are
on Texas, trusting that your
proud heritage of law and order
will be tempered with a tender
mercy to protect the possibly
innocent.”
Or with more exasperation
than Vermont state Sen. Rich-
ard McCormack, D-Windsor:
“When you lynch somconc you
not only lynch that person, you
* Undermine the quality of the protection of the rights of all
Yet here’s what Texans said in return:
Harris County, Texas, District Attorney Johnny Holmes: If
Vermonters don’t like Texas law
“
they ought to commit their
~ murders in Vermont instead of Texas.”
rererir:
- Judge Charles Hearn, in explaining why he signed Drew's
death warrant with a happy face on his signature: “It's kind of
amusing in some sense of the word that someone would want to
make something bad out of it. ... As far as I'm concerned it's a
good signature. You've got to be a happy person. We've got 100
many people ... walking around with grim looks on their faces."
And the Texas Parole Board, time after time, right to the end:
no new trial.
No Vermont public official in his right mind would so glibly
display such callousness. Why? Because he would know with
absolute certainty Vermont's own
people would never tolerate it.
As long as such an unjust appcals law remains in force in
Texas, it will be shamefully clear just
standard of fairness most Texans are.
how far away from that same
at tle. : . oS “Beige 4
Execution opponents hold vigil
a Vane. 2 : F ; | | | Associated Press
Chris Wood of Montpelier, Vt, hands a leaflet to a midnight Monday in Texas by lethal injection. Mr.
‘passer-by Monday in Montpelier during a vigil for Drew, who was convicted of murder, contends that
Robert Drew, who was scheduled to be executed at he’s not guilty. (Story on Page 21A.)
¢ SEITE GE SYD
Swuui98
SM IRy
»
P66I ‘c isnsny ‘Aepsony
re w (Te. )
Richards’
Associated Press
MONTPELIER, Vt. — Gov. How-
ard Dean will not decide until next
week whether he wil] ask Texas
Gov. Ann Richards to look into the
case of Robert Drew, the Vermonter
awaiting execution on Texas’ death
row.
Dean spokesman Glenn Ger-
shaneck said Thursday that there
was nothing to be done until after
Nov. 25, when the US. Supreme
Court is scheduled to hear Mr.
Drew's case.
Mr. Drew, said to be the only
Vermonter awaiting execution any-
where, is scheduled to die Dec. 4 for
the 1983 murder of an Alabama
teen-ager who had picked up Mr.
Drew and a companion when they
were hitchhiking.
Mr. Drew's attorneys are appeal-
ing. They argue that a Texas law is
unconstitutional because it pre.
vented Mr. Drew from introducing
new evidence that he contends
PRI. I-2o-GFe
“In Texas, the governor cannot unilaterally pardon
someone. The governor can only give a 30-day
reprieve and ask the parole board (to do it).”
— Glenn Gershaneck,
spokesman for Vermont governor
proves his innocence. Two Similar
cases already are pending before
‘the high court.
Mr. Drew maintains that his
traveling companion, Ernest
Puralewski, did the killing. Mr.
Puralewski, who is Serving a 60-
year sentence for his role in the
murder, has said he acted alone.
Mr. Puralewski Changed his
Story after the time limit to intro-
duce new evidence had expired.
Texas law Says new evidence must
be introduced within 30 days.
“What we are hoping (the Su-
preme Court will) do is grant a stay
of execution and hold Drew's case
pending resolution of the other
cases,” said Mr. Drew’s New York at-
torney Ronald Kuby.
Supporters of Mr. Drew have
been calling the Vermont gover-
nor's office to ask that Mr. Dean in-
tercede with Ms. Richards on Mr.
Drew's behalf.
“We have been in touch with the
Texas governor's office,” Mr. Ger-
Shaneck said. “Their counsel has
told our governor's counsel! that the
clemency appeal would not be ac-
cepted until after all the appeal
routes had been exhausted.”
aid may be sought in death row case
That’ will occur Wednesday,
when the Supreme Court will look
at Mr. Drew's case. Once the high
court looks at the case, Ms. Richards
is limited in what She can do, Mr.
Gershaneck said.
“In Texas, the 80vernor cannot
unilaterally pardon someone,” he
said. “The governor can only give a
30-day reprieve and ask the parole
board” to do it.
Mr. Gershaneck said it was his,
understanding that the Texas gov- j
.ernor had made such a request of
the parole board Only once and that
the request was turned down.
An organization called the Rob-
ert Drew Fund has been helping to
defray the costs of Mr. Drew’s de-,
fense. It also has provided him with
personal items that he cannot af-
ford.
George Longenecker of Marsh-
field is the coordinator of the Drew
fund. He wants Mr. Drew to have a
new trial.
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Drew
Continued from Page 21A.
issued a my opal restraining or-
der against the execution, saying it
needed more time to review a lower
Austin court’s decision to let the
execution proceed.
If the Court of Criminal Ap
ultimately gave approval for Drew’s
execution, the :
state would
have until sun-
rise today to
carry out the or-
der.
In blocking
Drew’s execu-
tion, the three-
judge panel
from the 3rd
Court cautioned Se
that the injunc- Drew
tion was “only
to give us sufficient time to perform
our basic constitutional and statu-
tory duty” to review a state district
court’s refusal to grant Drew a stay
of execution or a clemency hearing.
“Our ruling today should not be
construed as any indication of how
this court will ultimately decide the
appeal,” the panel said.
The court granted the injunction
two hours after the Texas Board of
Pardons and Paroles voted 15-0, with
two members abstaining, to deny
clemency to Drew.
Parole board Chairman Jack Kyle
said board members reviewed a 4-
inch thick packet of materials that
included Drew’s claims of innocence,
before voting. ;
Defense attorneys, however,
wanted the courts to order a full,
trial-like hearing into the claims of
evidence, contending such matters
had never been reviewed by a court.
However, Rick Wetzel, adminis-
trator of the Texas Court of Criminal
Appeals, said that court reviewed
Drew’s evidence of innocence in 1987
and found it not credible.
“It’s always regrettable when cap-
ital murderers are allowed to abuse
and manipulate the courts to their
advantage,” Attorney General Dan
Morales said in a prepared state-
ment. “We would like to see our
_ judiciary give priority to the rights
of victims in these matters.”
But the 3rd Court’s ruling clearly
" pleased defense lawyers and death
penalty foes.
“We spent the afternoon together,”
said Ron Kuby, Drew’s New York
attorney. “He had made peace with
God. And throughout the day, Bobby
Drew never gave up hope.”
Kuby, however, admitted that he
rsonally “ran out of hope” on
esday when state District Judge
John Dietz refused to block Drew’s
execution.
Although the 3rd Court of Appeals
has authority over criminal matters
arising in its jurisdiction — including
Travis and several Central Texas
counties — Drew was convicted in
Harris County. State’s attorneys ar-
gued that the 3rd Court of Appeals
had no authority to interfere with a
Harris County case.
Vermont lawmakers who have
criticized Texas for pressing for
Drew’s execution prior to holding a
clemency hearing, said they were
elated by the execution stay.
“I am pleased that there is at least
one court in Texas that is not afraid
to stand up to overwhelming public
pressure to execute people even
though there is doubt about his
guilt,” said Vermont state Sen. Vin-
cent Illuzzi, who unsuccessfully pro-
posed legislation to re-establish the
death penalty in Vermont.
“It’s my hope this court will force
the board of pardons and paroles or
some other court or legal entity to
rehear the evidence in light of the co-
defendant’s admission that he and
only he murdered the victim.”
Drew has been challenging his
conviction for several years, claim-
ing that he has new evidence that
proves his accomplice was the lone
killer and that he was too drunk the
night of the slaying to do anything
but stand by and watch Mays be
Stabbed to death along Interstate 10.
The new evidence is based on
comments from Ernest Puralewski,
Drew’s accomplice, that he lied
when he originally told authorities
that Drew slashed the victim's
throat. « -
Trial testimony indicated that fo-
rensic evidence indicates two people
Slashed and stabbed the victim and
that Drew was wearing the victim's
jacket when he was arrested several
hours after the slaying.
JERROD SO
J
NIN (Cont.)
248:A7
70866
fiLlind
usual. He said he would have eventually
filed a motion to move the case along.
At that point, Walt said, he would have
discovefed the error and reopened the case.
D. “ense lawyers were pursuing the case
last summer on grounds that Drew’s con-
viction was unconstitutional.
A jury in 1983 convicted Drew of mur-
dering Jeffrey Mays, an Alabama teenager
who had picked up Drew hitchhiking in
February of that year.
The Harris County jury deliberated less
than a half hour before convicting Drew of
capital murder.
rew’s co-defendant, Ernest Puralewski,
pleaded guilty to a lesser murder charge
and received a 60-year sentence.
Drew’s attorneys say some grounds for a
new trial include Puralewski’s statement
since his sentencing that he alone killed
Mays. Detense lawyers also say that May’s
Vr)
Le, bleralll
(747
companion, Bea Landrum, now says he did
not actually witness the killing, as he had
testified at the trial.
His attorneys also question whether the
prosecutor in the original trial behaved
proven in revealing evidence, according
to Bradford Yock, Drew's attorney in
Houston.
Walt, who became the prosecutor on the
case last summer when the case reached
the federal level, belittled the defense’s ar-
guments. .
Referring to Puralewski’s statement, he
said, “That is frivolous, beyond belief it is
frivolous.”
He added that retracted statements are
not acceptable legal grounds in federal
court for granting a new trial.
Walt said “Drew's garbage” was in-
consistent. with the physical evidence,
which Walt said showed stab wounds by
two different weapons.
i ‘Dret last i
_ ferring to this
: Mays’ throat with a smal!!-
et knife while Puralewski attacked Mays
with a largér knife in his chest and stom-
bee istae, according to the evidence, Walt
CRN: Pig I
“He just has failed to make a sufficient
Stags to warrant any further action,’
Lalas both a that 1
on agree that lega!
precedents established since the case wi:
closed in September would not apply di.
to Drew’s case, but Kuby said th.
“current legal
‘ ‘climate was generally unfi.
vorable for’ defendants in death penalty
cases. :
_ “The tone by the Supreme Court is that
you can burn ,you can burn juveniles,
you can burn the retarded,” Kuby said, re-
yéar’s U.S. Supreme Court
decisions that permit states to apply death
penalty statutes to children and mentally
retarded persons...
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Rutland (Vermont) Daily Herald
August 18, 1989
» Death Row Case Delayed
‘for Vermonter
The only Vermonter on death row has
had no action on his case for almost a year
because a U.S. District Court in Texas
misfiled the paperwork.
Though aware since at least May that
the case of Robert N. Drew had been closed
in error, Drew’s lawyers purposely did not
bring the mistake to the court’s attention,
Ronald L. Kuby, one of Drew’s attorneys,
acknowledged Thursday.
“If the case was not discovered, he would
never be vindicated, and he would never be
executed,” Kuby said.
Drew, a Wells native, had received a stay
of execution in June 1988. His attorneys
then sought a hearing for a new trial in
federal court, and the state of Texas filed
opposing motions asking for affirmation of
the original conviction.
But no judge has ever considered those
motions because the clerks at the court’s
office closed Drew’s case by mistake in
September, court officials said.
The case was reopened Thursday when
press inquiries brought the error to the at-
tention of Robert Walt, the assistant attor-
ney general in Austin, Texas, who is prose-
cuting the case. .
Drew, 30. was convicted of capital mur-
der in 1983 in a Texas state court for
stabbing to death an Alabama teenager
who had picked up Drew while Drew was
hitchhiking.
U.S. District Judge James DeAnda in
Houston granted Drew a stay of execution
in June 1988, just two days before he was
scheduled to die by lethal injection.
The case was then assigned to U.S. Dis-
trict Judge Gabrielle K. McDonald. When
McDonald resigned in September, U.S.
District Judge Melinda Harmon was sup-
posed to take the case.
Instead, “Someone accidentally closed
the case,” said Melissa Steinbacher, a
manager in U.S. District Court in Houston.
“These things happen,” Wait said.
“Occasionally you see a case that falls in
the cracks,” he added, saying that approxi-
mately 120 death penalty cases were
pending in his office.
When questioned earlier this week about
whether the case had been closed by mis-
take, Drew’s attorneys in New York and
Texas denied knowing of any error.
But after Walt had reopened the case
Thursday, Kuby explained the defense’s
dilemma in their knowledge of
“When Mr. Drew is vindicated, then it’s a
horrible mistake,” Kuby said.
But if Drew is eventually executed, Kuby
said, then:the mistake “gave a young man
another year to live.”
Defense notified Drew in a
May 19 letter that they had been
“unofficially informed” that the case had
been e closed, said Kuby, a
lawyer in the of noted civil rights
lawyer William Kuntsler of New York.
In the letter, attorneys asked Drew to in-
a eo on whether i _— renee
e case by bringing mistake to t
court's attention. _
er said Drew had not responded with
Drew could not be reached for comment
because he is not per to receive tele-
phone calls at the Ellis Unit of the Texas
ee
Department } of. Corrections outside
Huntsville, Texas.
Drew’s father, Robert C. Drew, of Middle
Falls, N.Y., said Drew wrote in a letter that
he.was “kind of amazed” when he heard of
the mistake, but that he had not decided
what he wanted to do.
Walt said he understood why the defense
la did not. reveal the error, but he
said he thought he would have notified the
Sag ty oS, eens ht 9 age i Ba
t particulary apprecia .” he
said, referring to their failure to alert the
Kuby said he felt. no qualms about their
decision.
“I’m under no obligation to help the state
kill Mr. Drew any faster than it wan‘s to,”
he said.
Walt, the Texas prosecutor, said he had
not questioned the lag in action because a
year delay on the court docket is not un-
Ieper as
ey wel
Justice gives reprieve to man facing Dec. 4 execution
fi HUNTSVILLE, Texas — A Vermont man facing execution in Texas next
week has won a reprieve from U.S. Supreme Court Justice Antonin Scalia.
Robert Drew, who claims to be the only person from his state on death
row anywhere, faced lethal injection Dec. 4 for a 1983 killing in Houston.
Justice Scalia’s order, issued Wednesday, blocks the execution pending
the full court’s disposition of his case. That's expected sometime between
January and late June, Mr. Drew’s attorney, Ronald Kuby, said. Mr. Kuby
and law partner William Kunstler want the court to hold Mr. Drew’s peti-
tion until the justices decide two other cases which raise identical issues
to those presented by Mr. Drew. Mr. Drew, 33, from Rutland County, Vt.,
was sentenced to death for the 1983 stabbing death of Jeffrey Mays, 17,
of Birmingham, Ala., who had given a ride from Lake Charles, La., to Mr.
Drew, who was hitchhiking toward Houston.
DALLAS MORNING NEWS
FRIDAY, NevEmBeR 27, 1992
ox : Cover)
ry.)
To George, your love,understanding,help,care,hard never ending work,and
compassion have touched me deeply to’ depths I Had forgotten even I had.Your
loved dearly 4nd there is no. geal, way, I could tell you in words how deeply
done over the years for
grateful I am for everything you; and your family have
me and the cause.Never give ‘up the fight for the death _penalty to be
abolished once and for all and to never be’ brought back on-.the law books in
this world again. if
To my lawyers Ron,Bill,Rob and the many, others who worked for justice to be
done in my case and.. worked so. hard to save my life from this judicial
murder.You have my undieing * gratitude for everything you've done.Stay
| involved in capitol cases til the end’ of this judicial murder has come.Maybe
| we could've done more,maybe, we could've done something differently,we'll
never know and I don't want. you to think about it,We fought it hard and long
and with everything we had:Don't “kid, yourselves cause “the bastards didn't
win,they never beat us. ne aa
Now that this twelve “year nightmare has,.come to ap ‘end let it be remembered
that the state of Texas has .taken the life of an innocent man on August
second nineteen ninety four and their true colors} have been shown for what
they are,blood thirsty. politicians ,;who will murder the innocent rather then
say they made a mistake.May they ‘rest *in’ peace cause every time they close
their eye lids I'll appear!I will not go away!! '
rs | Peace,Love and Much Respect To All My
Comrades ,Loved Ones,Friends,Fellow Abolishest,And Of Course My Road Dog!!!!
Robert "Frenchy" Nelson Orew Sra
Execution #80,August 2,1994 ee ee oT, a
S. MASYMOS
Me ag er ee
‘
7
EXECUTION WITNESS
ROBERT DREW #755
August 2, 1994
OFFICIALS:
LIST
James Matthews, Assistant Attorney General, State of Texas
Dale Myers, Sheriff, Walker County
James A. Collins, Executive Director, Texas Department of Criminal Justice
Wayne Scott, Director, TDCJ-Institutional Division
Sharon Keilin, Central Region Director, TDCJ-Institutional Division
Kent Ramsey, Assistant »Central Region Director, TDCJ-Institutional Division
Jim Alexander, Captain, TDCJ Internal Affairs
Charles L. Brown, Assistant Director for Public Information, TDCJ-ID
David M. Nunnelee, Public Information Officer, TDCJ-ID
REPORTERS : ’
Wayne Sorge, United Press International
Mike Graczyk, Associated Press
Amy Van Asperen, The Huntsville Item
Doug Miller, KHOU-TV Ch. 11, Houston
Steve Johnson, Houston Chronicle
PERSONAL WITNESSES:
George Longnecker, Friend
Ronald Kuby, Attorney
Phyllis Salter, Friend
Judith Tomlinson, Friend
/dh
Se
It is now the second of August 1994.and tonight, the State of Texas committed
murder.The state took the life of Hobert., Nelson, Drew Sr. age 35 for a crime
he did not commit and had the evidence to prove it.The state Fought for his
life/execution with tax, payers (money, that ,.could. have been, better spent on
schools or many other worth; while, endeavors that the entire state could have
benefited from.Instead one Harris county district attorney is gloating in his
still the district” attorney ‘would rather’ waste the tax payers money to
execute ‘an innocent .man’ then agree: to a hearing. This tells the truth about
the * states’ case,if ‘the state was°"dd’ ‘sure they were correct in their
to hide.Since the truth © of "my ©
under their own feet ‘when’ the _ judge * saw " the” évidence* 911 Presented by
competent attorney's’ and ‘not | the: incompetent ‘ones they appoint’ at ‘trial’ to
those of us who were unable ‘to ‘retain ‘our own for one ‘reason or’ the other,
I think the words of ‘RobertAlton *' Harris’ executed in California,tell it
best."IfF your a king ora street sweeper one day we all dance with the grim
reaper. "This will include the ‘district | attorneys who Fought For my judicial
murder to be carried out on ‘August ‘secohd 1994.From this day on they will
have the blood of ‘an innocent man’ on their hands and my name in their lives
til the day they stand before “higher' power’ to be. judged For the things
But,always remember the words ‘spoken by Jesus Christ,"Forgive them father
For they know not what they do."He has the | power to forgive what they are
doing by taking all the human lives'they are taking by judicial murder,80 in
Texas alone since the death penalty was brought’ back ‘into the law.This
includes the murder of me MOMPOIG, 5 ge Nt :
I'd like to let all my supporters ‘Know! ‘I'm very grateful for everything
to do it.Please be heard and Fight ‘For the death penalty to be abolished for
good.This will be’ for’ the good of ‘all’ Jumans in’ the ‘world ‘and not just a
couple thousand man and women on death ~Pows world: * wide.Everyone * showld
them'or one’ of their loved’ ones in my place
and For this reason everyone should stand now and be heard screaming to the
wrold,"STOP THIS MADNESS,LET NO MORE BLOOD FLOW IN THE NAME OF
* JUSTICE ,JUDICIAL MURDER MUST STOP NOW ANDO NEVER START AGIAN".
How many innocent People must die at the hands of states before the people
‘all come together to fight for a Just cause and do away with this
madness?Don't let the politicians ruin your country and what it stands
—s
ist siete pts a BERRY
H ae BERR Pian’ ay BR ai
& a
t ? j tk a] “5 Yq barat A ‘ ; ' eT
et Da eee (oh WAG eee wy
1 i i bt WVivE ae fc rane | RD: Wt Cot
| for: Tell them you know. the truth ‘and’ would ‘father see the two to three
Pa
unconditional
“million or more that is Spent to kill’ somedne,when it would cost less the
. half a million to § keep
5
that person’ locked up. for 40 calender years or
longer,spent on the things needed’ to ensure the future of the country.This
money they have’ spent to murder an‘innecent’ man: tonight could have been spent
~on schools 'for the children who’ ate the’ future of this country.This way it
I. but © let the “fear of his own
death and the drunken haze of’ a day of drinking cloud his better judgement to
to see.Should people die at he hands of the district attorneys just so they
can add to their political endevors to become attorney general or a judge.Do
you people really want to be a part’ of this judicial ‘murder Pprocess?You are
_ fight “now to do away with this
battle will be won if you continué to fight.THe cause is a just one,your own
life,so fight with everything you’ have’ and'Win ‘the Fight.Carry on and hold
-your heads high knowing ‘your doing the Aight ‘thing:
_ To all my loved ones T left behind. I was ‘taken from this. life to satisfy a
States governments bloodlust but don't ‘ever. tHitik of those who did it cause
they are not worthy of your thoughts.Remember’ I léve every one of you from
the bottom of my heart and always will.I'il be looking down on you from a
better place and I‘now rest ‘at pedce and habe you'll ‘Find some comfort
knowing these people have not killed ‘me, thdy killed: themselves cause I wijl
never die to those who care and love 'mé Forme Bnd not something else.1 ask
you to remember the good times From years gone by and'‘know we'll be together
again. pe Ue es eee ;
To all my Friends 6n the "Row"
,don't’ give up.Fight his war and win it like I
know in my heart that you can.Every one of you are worthy of the battle it
will take to win,so Fight on my brothers, and’ know I'm fighting with you from
a better place.Don't let these bastards get you down.
To my road dog Robert "Shorty"Ramos,keep your head high and remember to do time
and don't ever let time do you..Play your own game and don't ever Give up the
Fight.It takes time but it can be won so don't let these bastards ever get you
downk.Keep yourself well my Brother. Your dog knows you can do it so swtick with
it and you'll win.the war. Ca Prey co BioaASs.*
Remember the _ good ..times Shorty. , and .eat., some candy for me once in a
while.Don't let this oshit get you down, cause your dog is at peace and in a
‘better place.I did my -time in hell and now its time for something better.I'm
gone in body but I'll never leave you in spirit,we'll fight together side by
side. 5 :
To my dearest Judith. You've brought my love and happiness in the time we've
been together and that will always be ours Lt we're together now or
X
- later.Remember our times and smile cause you know I'm looking wver you from
‘“above.I'll hold.you in .my arms..tenderly..one..day..soon.We'lJ walk in the summer
sun and frolic in the fields*of mornin Jlories yet to grow in the Fields of
. tomorrow and those fields will be ours.Give, the children and grandchildren my
and never ending.
“Tbve.Let your mum know I'm at peace but never ‘give up the Fight.My love is
meet ere lon otra given a tenn teas
] Divi-
as COr-
District
Xas on
US.C.
t court
y hear-
. vacat-
led for
Jetober
rew all
proba-
is court
n. Be-
10 sub-
federal
1 CPC.
tion or-
ded —
ee
DREW v. COLLINS 95
Cite as 5 F.3d 93 (Sth Cir. 1993)
dation. On the same day the Court of Crimi-
nal Appeals denied his petition, Drew filed a
notice for stay of execution and a habeas
petition in federal district court. The district
court granted the stay of execution and sub-
sequently denied habeas relief on February
20, 1991. The district court granted Drew a
CPC on July 31, 1991. On June 18, 1992, a
panel of this court affirmed the district
court’s denial of relief. Drew, 964 F.2d at
423. The Supreme Court denied Drew’s pe-
tition for writ of certiorari on June 28, 1993.
On June 15, 1998, the same state trial
court that had set Drew’s original execution
date set Drew’s execution date for October
14, 1993. The state judge who set the execu-
tion date did so by letter and order, again
signing each with a drawing of a smiling face
next to his signature. Drew then filed a
second application for habeas corpus and re-
quest for stay of execution in state court,
alleging that the drawing violated his First
and Eighth Amendment rights. The Texas
Court of Criminal Appeals denied the appli-
cation for habeas relief by written order on
September 30, 1993. Drew then filed his
petition for habeas relief in federal district
court. The State responded to the petition
and moved to dismiss for abuse of the writ.
“On October 7, 1993, the district judge de-
nied Drew’s request for relief and refused to
issue a CPC. The judge granted the State’s
motion to dismiss for abuse of the writ be-
cause the state trial judge had used the same
smiling face symbol after his signature on
the 1988 execution order as that used on the
instant execution order. Thus, “the same
claim was available to Petitioner to raise in
his first habeas application after the judge
signed his initial execution order.” The dis-
trict court also refused to grant Drew’s re-
quest for a stay of execution because it found
no substantial ground for relief in this second
habeas petition.
II. STANDARD OF REVIEW
[1] We will grant a CPC to appeal only if
the applicant can make a substantial showing
of the denial of a federal right. Barefoot v.
1. Although, for the reasons noted, we do not
address the merits of Drew's constitutional
claims, we note in passing that not every in-
Estelle, 463 U.S. 880, 898, 103 S.Ct. 3388,
3394, 77 L.Ed.2d 1090 (1983). This standard
does not require petitioner to show that he
would prevail on the merits, but does require
him to show the issues presented are debata-
ble among jurists of reason. Id. at 893 n. 4,
103 §.Ct. at 3395 n. 4. If the district judge
denies the CPC, as in the instant case, we
will review the probable cause determination
using the same “substantial showing of the
denial of a federal right” test. See Buxton v.
Collins, 925 F.2d 816, 817, 819 (5th Cir.),
cert. denied, 498 U.S. 1128, 111 S.Ct. 1095,
112 L.Ed.2d 1197 (1991); Celestine v. Butler,
823 F.2d 74, 76, 77 (5th Cir.), cert. denied,
483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796
(1987). Essentially the same test applies to
an application for stay of execution. Delo v.
Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880,
1881, 109 L.Ed.2d 325 (1990) (“A stay of
execution pending disposition of a second or
successive federal habeas petition should be
granted only when there are ‘substantial
grounds upon which relief might be grant-
ed.” (quoting Barefoot, 463 U.S. at 895, 103
S.Ct. at 3895)). The basic question posed in
this case is whether this second federal peti-
tion was properly dismissed as an abuse of
the writ. . ;
Ill. ANALYSIS
Drew argues that the state trial judge’s
drawing of a smiling face after the judge’s
signature on the letter and order of execution
(1) constitutes cruel and unusual punishment
in violation of the Eighth Amendment to the
United States Constitution and (2) consti-
tutes a violation of the Establishment Clause
of the First Amendment to the United States
Constitution. We may review the merits of
Drew’s claims only if this second petition
does not constitute an abuse of the writ.'
Abuse of the Writ
A second or successive petition for writ of
habeas corpus may be dismissed if it fails to
allege new or different grounds for relief;
further, even if new grounds are alleged, the
stance of inappropriate behavior by a state actor
rises to the level of a constitutional violation.
96 5 FEDERAL REPORTER, 3d SERIES
petition may be dismissed if the judge finds
that the failure to assert those grounds in a
prior petition constituted an abuse of the
writ. Rule 9b), Rules Governing Section
2254 Cases. The Supreme Court addressed
the standards for determining when a peti-
tioner has abused the writ in McCleskey v.
Zant, 499 U.S. 467, 111 S.Ct. 1454, 113
L.Ed.2d 517 (1991). In McCleskey, the
Court held that “the same standard used to
determine whether to excuse state procedur-
al defaults should govern the determination
of inexcusable neglect in the abuse of the
writ context,” id. at ——, 111 S.Ct. at 1468,
ie., a cause and prejudice analysis. Jd. at
——, 111 S.Ct. at 1470.
[2] The cause and prejudice standard ap-
plies to the abuse of the writ inquiry in the
following way. After the State raises the
issue of writ abuse, the petitioner bears the
burden of showing cause and prejudice. Jd.
The requirement of “cause” in the abuse of
the writ context is based on the petitioner’s
obligation to conduct a reasonable and dili-
gent investigation aimed at including all rele-
vant grounds for relief in his first federal
habeas petition. Jd. at ——, 111 S.Ct. at
1472. “If what the petitioner knows or could
discover upon reasonable investigation sup-
ports a claim for relief in a federal habeas
petition, what he does not know is irrele-
vant.” Id.
We applied the McCleskey analysis in the
instructive case of Jones v. Whitley, 938 F.2d
536 (5th Cir.), cert. denied, — U.S. ——,
112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). The
successive petitioner, Andrew Lee Jones, al-
leged that, during his incarceration leading
up to and through his capital murder trial,
the State had regularly administered anti-
psychotic and anti-depressant drugs to him.
Id. at 541. He argued that neither he nor
his counsel were aware of this and that the
State’s failure to disclose the evidence of the
use of psychotropic medication constituted an
“objective : factor” that interfered with his
discovery of the claim. Jd. We disagreed,
noting that his counsel were “at every stage
of the proceedings at least on notice of his
mental problems.” J/d. Significantly, we ob-
served that “[g]iven [counsel’s] background
knowledge and counsel’s experience as public
defenders, defense counsel knew or with rea-
sonable diligence could have found out that
Jones was under constant psychotropic medi-
cation at the jail.” Jd. (emphasis added).
There was no “external impediment” to the
discovery of the use of medication. Jd. at
542 (quoting McCleskey, 499 U.S. at ——,
111 S.Ct. at 1472).
[3] The instant case is similar to Jones in
that there was no external impediment to
Drew’s discovery of the constitutional claims
he now raises in this second petition. In-
deed, the record excerpts filed by his counsel
in the course of his first federal habeas peti-
tion contain two documents signed by the
state trial judge, each bearing the character-
istic smiling face symbol. As we have al-
ready noted, the April 28, 1988, execution
order also bore the smiling face symbol. It
cannot be seriously argued that petitioner
and his counsel were not “at least on notice”
of these identical constitutional claims based
on the state trial judge’s characteristic draw-
ing on the 1988 execution order. |
Drew’s attempt to avoid McCleskey by
challenging only the 1993 execution order
cannot succeed. The smiling face drawing
now being challenged appeared on docu-
ments pertaining to Drew’s execution at least
as early as 1988. His current constitutional
claims could have been discovered and raised
in the exercise of reasonable diligence in his
first federal habeas petition. Under McCles-
key, this fact alone is sufficient to bar Drew’s
current petition as an abuse of the writ.
In short, Drew is unable to show that, at
the time he filed his first petition, he was not
free to make the argument he advances here.
LY.
For these reasons, Drew’s second federal
habeas petition constitutes an abuse of the
writ. He has failed to make a substantial
showing of the denial of a federal right. We
therefore do not reach the merits of his
claims.
The request for Certificate of Probable
Cause is DENIED; the motion for stay of
execution is DENIED.
a ae ee on a iche eeessipates-< ncipainentinasee
ee ap Rh Re ie et oe
applicant to show that he would prevail on
the merits, but does require him to show the
issues presented are debatable among jurists
of reason; if district court denies the CPC,
Court of Appeals will review probable cause
determination using the same test. -
2. Habeas Corpus ¢898(2), 899
Cause and prejudice standard applies to
abuse of writ inquiry; after the state raises
issue of abuse, petitioner bears burden of
showing cause and prejudice; requirement of
“cause” is based on petitioner’s obligation to
conduct a reasonable and diligent investiga-
tion aimed at including all relevant grounds
for relief in his first federal habeas petition.
Rules Governing § 2254 Cases, Rule 9(b), 28
US.C.A. foll. § 2254.
3. Habeas Corpus ¢-898(2)
“Second federal habeas petition alleging
that state judge’s drawing of smiling face
next to his signature on execution order vio-
lated petitioner’s First and Eighth Amend-
ment rights constituted abuse of writ; execu-
tion order prior to petitioner’s first federal
habeas petition also bore smiling face sym-
bol, and thus petitioner and his counsel were
on notice of identical constitutional claims
prior to first habeas petition, and constitu-
tional claims could have been discovered and
raised in exercise of reasonable diligence in
first habeas ‘petition. Rules Governing
§ 2254 Cases, Rule 9b), 28 U.S.C.A. foll.
§ 2254; U.S.C.A. Const.Amends. 1, 8.
Greg Gladden, Houston, TX, Ronald L.
Kuby, William M. Kunstler, New York City,
for petitioner-appellant.
Dan Morales, Atty. Gen., Robert S. Walt,
Stephani A. Stelmach, Asst. Attys. Gen., Aus-
tin, TX, ‘for respondent-appellee.
On Application for a Certificate of Proba-
ble Cause and Stay of Execution.
Before KING, HIGGINBOTHAM and
SMITH, Circuit Judges.
PER CURIAM:
Robert Nelson ‘Drew (Drew), is moe
confined on death row in the Texas Depart-
5 FEDERAL REPORTER, 3d SERIES
ment of Criminal Justice, Institutional Divi-
sion, instituted his second federal habeas cor-
pus petition in the United States District
Court for the Southern District of Texas on
October 4, 1998, pursuant to 28 U.S.C.
§ 2254. He requested that the district court
stay his execution, order an evidentiary hear-
ing, and issue a writ of habeas corpus vacat-
ing his death sentence. He is scheduled for
execution on October 14, 1993. On October
7, 1998, the district court denied Drew all
relief and denied Drew a certificate of proba-
ble cause (CPC). Drew appeals to this court
for a CPC and for a stay of execution. Be-
cause we find that there has been no sub-
stantial showing of the denial of a federal
right, we deny his application for a CPC.
Furthermore, because Drew does not demon-
strate substantial grounds upon which relief
might be granted, we deny his motion for a
stay of execution.
I. BACKGROUND
Because the background facts of this case
are set oui in full in our earlier opinion, Drew
v. Collins, 964 F.2d 411, 413-15 (5th Cir.
1992), cert. denied, —— U.S. ——, 113 S.Ct.
3044, 125 L.Ed.2d 730 (1993), only a brief
recitation of the pertinent facts will be pre-
sented here. On December 3, 1983, Drew
was convicted in Texas state court of capital
murder and received a death sentence. His
conviction and sentence were affirmed by the
Texas Court of Criminal Appeals on Septem-
ber 30, 1987. Drew v. State, 743 S.W.2d 207
(Tex.Crim.App.1987).
The state trial court originally set Drew’s
execution date for May 4, 1988, but post-
poned the execution until June 16, 1988, by
order dated April 28, 1988. It should be
noted that the April 28 execution order was
signed by the state trial judge with a draw-
ing of a smiling face by his signature. Drew
also filed his first habeas petition in state
court on April 28, 1988, and in response to
the State’s answer he filed an amended peti-
tion on June 8, 1988. Drew made no com-
plaint in either petition regarding the draw-
ing of the smiling face on the execution or-
der. The state trial court recommended de-
nial of the writ, and the Court of Criminal
Appeals adopted the trial court’s recommen-
vunts receivable”
‘account’ means
‘t of any indebt-
vr in connection
assignor’s busi-
n or undertak-
2d to the sale of
Of services or
roperty subject
Movables Act,
-ount’ shall not
r arising out of
d by a promis-
note, or nego-
arising out of
‘operty.
’ revenue re-
presents the
ing *" Iness
ns ction
of the hotel
that it takes
erous skilled
‘nerate reve-
sut the com-
is the “hotel
enue.” Ulti-
‘Ss that hotel
id generated
utel, and, as
5 receivable.
d-item (ce) of
0nN quoted
edness due
immovable
‘venues re-
ors for the
under this
the physi-
vcation are
y to gener-
. provides.
s and mor-
which the
@ uaeua s
id cl g
could exist. The converse is not true, for
many chains of motels have been successful
in providing “simply a good night’s rest at
the most economical price.” Therefore, we
reject the notion that a hotel’s revenues are
so intertwined and dependent on the hotel’s
service that one can not conclude the reve-
nues are rent for purposes of § 552(b).
We recognize that several bankruptcy and
district court decisions have reached a result
contrary to that we reach here. See e.g. In
re Punta Gorda Associates, 137 B.R. 535
(Bankr.M.D.Fla.1992); In re GGVXX, Ltd,
130 B.R. 822 (Bankr.D.Colo.1991). However,
those decisions involved the interpretation of
other states’ statutory provisions regarding
classification of rent, and thus they are of
little significance in the present case, where
we are applying Louisiana law. Moreover,
we are persuaded by the clear language of
the loan documents that the borrower intend-
ed and the lender expected that the hotel
revenues would stand ‘as:security for the
loan. The income flow generated by the
hotel revenues are an integral part of the
value that the lender assigns to the collater-
alized property. If, as indicated by Pioneer,
a lender may reach and control revenues
from a hotel for purposes of Louisiana’s se-
questration remedies, we can see no reason
for depriving that same lender of the benefit
of his expressly bargained-for-security when
the question is application of § 552(b) in
bankruptcy. To deprive the lender of what
he bargained for at closing, especially when
that expectation matches the intent of the
borrower, is inequitable and ignores widely
accepted lending practices of the business
community.
III. CONCLUSION
We reverse the holding of the bankruptcy
court that the plan was unconfirmable be-
cause it did not permit FSA to credit bid the
full amount of its claim. We affirm the
holding of the bankruptcy court that T-H
NOLP improperly gerrymandered claims in
order to cramdown its plan over FSA’s objec-
tions in violation of this court’s holding in
Greystone and that the plan was not confirm-
able as presented. We also hold that the
district court erred in reversing the judg-
5 F3d — 5
f scat
a eu CXC Ce eer
DREW, Robert N., wh, leth inj TX® (Harris) August 2, 1994
DREW v. COLLINS 93
Cite as § F.3d 93 (5th Cir. 1993)
ment of the bankruptcy court which allowed
FSA to segregate the hotel revenues for its
benefit. Accordingly, we AFFIRM in part
and REVERSE in part, and remand this
case to the district court with instructions to
remand to the bankruptcy court for further
proceedings consistent herewith.
Robert Nelson DREW, Petitioner-
( Appellant,
v. ~
James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent-Appellee.
No, 93-2747,
United States Court of Appeals,
Fifth Circuit,
Acct. 11, 1998. )
\ Pes
$$
After defendant’s murder conviction and
death sentence were affirmed by the Texas
Court of Criminal Appeals, 743 S.W.2d 207,
he petitioned for writ of habeas corpus. The
United States District Court for the South-
ern District of Texas, Melinda Harmon, J.,
denied petition, and appeal was taken. The
Court of Appeals, 964 F.2d 411, affirmed.
Petitioner filed second application for habeas
corpus and stay of execution. The District
Court again denied relief, and petitioner
again appealed. The Court of Appeals held
that second habeas petition constituted abuse
of writ.
Request for certificate of probable cause
denied; motion for stay of execution denied.
1. Habeas Corpus 818
Court of Appeals will grant certificate of
probable cause (CPC) to appeal only if appli-
cant can make substantial showing of denial
of a federal right; standard does not require
32A kkk
Houston Chronicle
Friday, Nov. 2, 1990
at
4S
Killer of 3 gives up
on further appeals
Judge wants to witness execution
By JOHN MAKEIG
Houston Chronicle
Citing the rigors of death row,
the killer of three Houstonians
waived all future appeals relief
and was sentenced Thursday to
die by injec.
tion Dec, 4,
State Dis.
trict Judge
Bill Harmon
sentenced
Richard
Gerry Drin-
kard, then
told him,
“I've pre.
Sided over
every phase
of your trial,
I just want to be
final part.”
Drinkard, 33, agreed to let the
judge attend his execution. —
Ever since the Texas Court of
Criminal Appeals affirmed his
1986 death penalty about a year
4g0, Drinkard has been Saying he
wanted to forgo further appeals,
His lawyer, Doug O’Brien, has
been trying to convince him oth.
erwise,
“This isn’t an irrevocable
ASOT EIA Vielen
Drinkard
present for the |
thing,” O’Brien said of his client’s
decision. “He still has habeas
Corpus relief and all the federal
court relief in front of him. Allhe
has to do is say the word and we'll
continue his appeals. Then it’l] be
years before it’s resolved.”
Prosecutor Caprice Cosper
agreed, saying Drinkard can con-
tact the Texas attorney general's
Office and get the execution
called off if he changes his mind.
But Harmon Cautioned Drin-
kard that any last-second appeal
decision better have merit.
The execution was scheduled
only after Harmon had two psy-
chiatrists and a psychologist ex-
amine Drinkard to be sure he was
Sane enough to make the fatal
decision,
All three informed Harmon
that Drinkard is, indeed, sane and
competent,
Drinkard’s penalty -- the first
returned in Texas under a then-
new provision for executing kill-
ers of multiple victims — Was for
the Noy, 15, 1985, murders of
LouAnn Anthony, Ladean Hen-
drix and Jerry Mullins,
They were stabbed and beaten
with a claw hammer in an apart-
ment off Hammerly,
€
. a
4
§
a #i
' si!
+o
are. oe
petite.
6 dam,
women
ITOH nkond |
HUNTSVILLE, Texas (Reuter) - A Texas man convicted of stabbing and beating to death three people during a 1985 drunken spree was
executed by lethal injection at the state prison here Monday, a prison spokesman said.
Richard Gerry Drinkard, 39, was put to death in the first of four executions scheduled this week in the death house of the Huntsville State
prison, prison spokesman David Nunnelee said.
‘No, sir," Drinkard said when asked if he had any last words as he lay strapped to a gumey in the death chamber, Nunnelee said.
Drinkard was administered a dose of lethal chemicals and died shortly after 7 p.m. EDT, he said.
Drinkard was sentenced to die for the November 1985 murders of Louann Anthony, 44, her sister Ladeen Hendnx and her sister's
boyfriend Jerry Mullins, whose bodies were found in upstairs bedrooms in Anthony's Houston townhouse.
The victims had each been stabbed several times and beaten in the head with a carpenter's hammer. Police later found the hammer and
items fromthe apartment in a nearby creek where Dnnkard fished, prosecutors said.
According to prosecutors, Drinkard met Anthony the night of the murders and the two drank beers in her townhouse with another friend
until about midnight, when the men left. About three hours later Anthony's neighbors heard a woman screaming "no, Gerry ... Gerry,
leave me alone, don't do this" during a scuffle that broke out in the townhouse.
Drinkard at first denied involvement in the murders, but later told police he was driving to work after a night of heavy drinking when he
realized he had blood on his hands and face. He said he drove to Oyster Creek and threw the bloody hammer and other items in the
water, prosecutors said.
“T guess I did it ... | guess I'll get whatever I deserve," he said in a statement to police.
The execution was the 12th in Texas this year and the 119th since executions resumed in Texas in 1982. The state leads the nation in
executions since the U.S. Supreme Court reinstated capital punishment in 1976.
With three more executions scheduled this week, Texas will break a record with seven executions in May. Up to eight more are docketed
for June, putting Texas on pace by mid-year to eclipse a record 19 executions in a year set in 1995, prison officials said.
20:33 05-19-97
Sunday May 19, 1996 America Online: Galba33 Page: 1
Subj: Hammer Killer Executed in Texas
Date: 97-05-19 20:13:28 EDT
From: AOL News
BCC: Galba33
.c The Associated Press
HUNTSVILLE, Texas (AP) - A carpenter who beat three people to
death with a claw hammer in 1985 was executed by injection Monday
in the first of four straight executions scheduled this week.
Richard Drinkard, 39, was sentenced to die for bludgeoning Lou
Ann Anthony, 44; her sister, LaDean Hendnix, 47; and Ms. Hendrix's
boyfriend, Jerry Mullens, 43.
At his 1986 trial, Drinkard became the first convicted killer in
Texas to merit a death sentence under the new law that made
multiple murders a capital offense.
While on death row, Drinkard volunteered for early execution,
although he later allowed appeals to be filed on his behalf.
Defense attorneys argued that Drinkard, from Mobile, Ala., was
drunk at the time of the killings and didn't know right from wrong.
Detectives, however, had found a piece of glass from Ms.
Anthony's home, where the slayings took place, in Drinkard's truck.
The hammer and other bloody items also were recovered from a creek
where he often fished.
On Tuesday, the state planned to execute Clarence Lackey, 42,
for the 1977 kidnapping, rape and beating of a Lubbock woman.
AP-NY-05-19-97 2005EDT
Copyright 1997 The Associated Press. The information
contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without
prior written authority of The Associated Press.
To edit your profile, go to keyword NewsProfiles.
For all of today's news, go to keyword News.
Sunday May 19,1996 America Online: Galba33
Page: 1
0%
r-
©
ISKARD, Achard Curry
{
«
A white pickup and a dive in Oyster Creek
helped Texas sleuths answer the question of
— THETRIOIN
OTE P
by JACK G. HEISE
HOUSTON, TEXAS
AUGUST 15, 1986
Lou Ann Anthony in Coleman, Okla-
homa, telephoned her sister, Ladean
Hendricks in Houston, Texas, on Wed-
nesday evening, November 13, 1985.
She called to tell her sister that a male
friend had been in an industrial accident
and severed three fingers. Doctors in
Coleman had recommended that he go to
a specialist in Houston for treatment.
‘*He’ll be there for a couple of days,”’
Lou Ann said. ‘‘I want you to meet him.
He said he would give you a call some-
time Friday evening.”’
‘‘Why don’t you come down with
him?’’ Ladean urged. ‘‘It’s been awhile
since I’ve seen you and we could spend
the weekend together.”’
Lou Ann said she did not think it pos-
sible that she could get away from work.
Her friend planned to leave the following
day and had an appointment with the
specialist on Friday.
‘*Please,’’ Ladean begged. ‘‘I really
need someone to talk to. Something ter-
rible has happened.”’
Ladean related that a male friend
whom she had known for several years
had committed suicide on Monday. She
planned to attend his funeral on Thurs-
day.
‘*I feel terribly depressed and blue,”’
Ladean said, pleadingly. ‘‘If you could
34 Front Page Detective
Sleuths made the catch of the day when
they took a dive in suspect Richard
G. Drinkard’s favorite fishing hole.
just come for the weekend, it would help
a lot.”’
Lou Ann thought it over and noted the
urgency in her sister’s voice. She said it
was possible that she could take Friday
off from work, but it would mean that
they would have to leave on Thursday
after work and it would be late before
they would arrive in Houston.
‘Don’t worry about what time you get
here,’’ Ladean told her. ‘‘I’ll be waiting
up for you. I have two bedrooms in my
townhouse. You and I can share one and
your friend can have the other. I really
need you, so please come.’’
Lou Ann told her sister that she would
drive down with her friend. She added,
“‘T think you will like my friend. He is
very nice and his name is Jerry Mul-
lins.’’
It was 11:30 Thursday night before
Lou Ann and her friend arrived at her
sister’s townhouse on the north side of
Houston.
The sisters embraced and Lou Ann
introduced her friend. Ladean fixed
some drinks and they talked for a while.
It was a little after 12:30 when they all
agreed that they were tired and it was
time to turn in for the night. They
could visit more in the morning.
The trio went to the bedrooms upstairs
in the two-story townhouse. Ladean and
Lou Ann shared one of the bedrooms
with Mullins in the other.
An hour later, all three would be dead.
Detectives who responded to the call
on the murders, learned about the trip
Lou Ann and Jerry Mullins had made
from Coleman when they contacted rela-
tives in Houston.
The call on the murders had come
from an employee of a store where La-
dean had worked as a meat cutter. She
had taken Thursday off from work to
attend the funeral of her friend, but had
told her employer that she would be back
(Continued on page 69)
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Death chamber intercom malfunctions
Associated Press
HUNTSVILLE, Texas — Red-faced
Texas prison officials scrambled
Tuesday to fix a new death chamber
intercom.
The sound system worked so
poorly in its debut earlier Tuesday
that it nearly failed to capture for
witnesses the surprise confession of
convicted killer Markham Duff-
Smith.
“The newly installed system will
be worked on thoroughly today and
be ready and very audible if there is
another execution,” Texas Depart-
ment of Criminal Justice spokesman
Charles Brown said. °
The Texas death chamber, used 60
times since 1982 for lethal injections
and 361 times for electrocutions
from the 1924 until 1973, was fitted in
the past two weeks with a double
Bort: DALLAS MORNING NEWS
layer of plexiglass to separate wit-
nesses from the inmate strapped to a
gurney.
Previously, up to two dozen exe-
cution witnesses, including five re-
porters, five friends or relatives of
the convict and various officials,
were separated from the condemned
man only by jail bars.
The new shield, which prison
spokesmen described as a security
and safety measure, prevents wit-
nesses from hearing the inmate, so
an intercom system was installed to
pick up the prisoner’s last words.
Security has never been a prob-
lem in the death chamber during in-
jections. No witness has ever tried to
pass something through the bars and
no inmate ever has ever tried to
lunge at the witnesses.
The only glitch occurred several
years ago when a needle carrying
the drugs came out of the arm of the
condemned man as_ witnesses
watched. Prison officials quickly
pulled a curtain to block the view of |
the scene, reinserted the needle,
pulled back the curtain and resumed
the execution. None of the lethal so-
lutions reached the witnesses.
When Mr. Duff-Smith was asked
by Warden Jack Pursley for his final!
words, the inmate’s comments as|
‘transmitted over a tiny wall-:
mounted speaker were distorted, in
some cases inaudible and inter-
rupted by a continuous buzz.
Reporters had to compare notes to
assure each other that Mr. Duff-
Smith had confessed to arranging
the killings of his mother, sister,
brother-in-law and infant nephew to
collect thousands of dollars in inher-
itance.
vem GEIOMTIS
re -
ROTI isis
LORRY Seas TAME SS
By SusanLeonard / oenix
The Arizona Republic A a
A Texas man convicted of helping
addictive,
spanel says
_ toward regulation
“wenn AV Brigid Schulte
mastermind the contract killings of a baby
Michael and the child’s parents has been attending
Davis / Found Arizona State University’s law school for the
guilty of helping _ past three years.
to kill three Michael Davis, who was convicted in a
people, including murder-for-inheritance scheme, went quietly
a 14-month-old about his studies even as a firestorm of
child. controversy erupted last year after the
DJeds- &-3-9¢
College of Law admitted a paroled Arizona
murderer.
Davis, 40, was able to maintain a low
profile because, unlike Arizona ex-convict
James Hamm, he did not reveal that he
recently had been released from prison.
Davis spent nine years in a Texas prison
after pleading guilty to murder for helping
kill three people in 1979 so that a friend
could inherit nearly $500,000.
In addition, Davis was accused of being
involved in a 1975 murder-for-inheritance
scheme involving the slain woman’s mother,
but he never was prosecuted in that slaying. '
The Arizona Republic learned about
Davis’ background through interviews, pa-
role records, news accounts and a book
about the murders, which are notorious in
the Houston area.
Davis would not comment.
ASU administrators, who apparently
learned about Davis’ background only
Texas killer of 3 has been ASU law student .
recently, also declined to comment.
However, they refus®d to give Davis a *
diploma in May, on grounds that he didn’t
disclose that he previously ‘attended law
school in Texas.
Davis did not shoot the 14-month-old boy
and the child’s parents, all of whom were
shot in the head at their Houston home. But
he did spray Mace in the father’s face and
— See KEY FIGURE, page A2
Nicotine
Action could be step
Vigil for a missing daughter
¢é
He’s probably one of the
most dangerous
criminals I’ve ever dealt
with. He’s very
intelligent, very cunning,
very devious, and he has
no conscience.
JOHNNY BONDS
FORMER HOUSTON POLICE
DETECTIVE
Senate
chief offers
‘voluntary’
haalth nian
Key figure in Texas killing of 3 has bee
a+ KEY FIGURE, from page Al
held the mother down.
.; A person who knows Davis said
Davis didn’t disclose his criminal
Yackground to ASU officials because
he wasn’t asked.
«: Davis has applied to be licensed as
an attorney with the Arizona Bar, but
the Bar will not admit anyone without
alaw-school diploma.
Davis’ attorney, Olin Hale of
Phoenix, said he thinks ASU is
treating Davis unfairly.
“He was punished very severely for
a minor infraction,” said Hale, who
believes rehabilitated felons should be
allowed to attend law school.
Davis reportedly was highly
* sought-after by ASU because he had
800d grades and scored at the top on
his Law School Admission Test.
Davis has told people that he
attended ASU’s law school on a
/¢Walyer that allowed him to pay
State tuition, which is much lower
out-of-state tuition.
Davis has appealed*the denial of his
diploma. If the decision is not
reversed, he can file a lawsuit against
the university.
Davis originally was sentenced to
30 years in prison after pleading guilty
to three counts of murder. He was
released in 1990, changed his name
from Walter Waldhauser and moved
to Tempe, where he began law school
in 1991.
Several students who know Davis
were shocked to learn that he is a
murderer. They found him to be
mild-mannered, helpful and polite.
“He was always an extremely nice
and was always trying very hard to be
a friend,” one said Tuesday. “He was
not a threatening person. He was the
type of person who said hello to just
about everybody.”
Another student said Davis was
nothing but cheerful and friendly.
“I never even saw him lose his
temper in an argument,” he said.
A third student said Davis was so
nice that he was almost “sickeningly
sweet.”
All of the students said that Davis
Ty ee pe eee lL,
never talked about his past, but that
none found it peculiar at the time.
Several students said Davis told
them that he wants to attend medical
school next and that he worked as a
volunteer at a local hospital emer-
gency room. He also voluntarily
helped homeless people with legal
problems, they said.
Johnny Bonds, a former Houston
police detective who helped prosecute
him, said he’s not surprised that Davis
left a good impression.
“He’s very intelligent, very cun-
ning, very devious and he has no
conscience,” Bonds said Tuesday.
“He’s probably one of the most
dangerous criminals I’ve ever dealt
with.”
Bonds said Davis showed no
emotion in admitting his involvement
in the three slayings.
“He sat there smiling,” Bonds said.
“He never expressed any guilt
feelings. It was all a business deal, all
to makc money.”
The murders were profiled in a
book, The Cop Who Wouldn’t Quit,
Loh NERER EBRD NS
by journalist Rick Nelson. The title
refers to Bonds, who worked two
years to solve the murders of John
and Diana Wanstrath and their baby,
Kevin.
Diana Wanstrath, 36, was the sister
of Markham Duff-Smith, a friend of
Davis. Duff-Smith wanted his sister
dead so that he could inherit up to
$500,000.
Duff-Smith had squandered about
$90,000 that he had inherited from his
mother, Gertrude Duff-Smith Zabo-
lio, who was strangled with her own
pantyhose in 1975.
Davis is accused of arranging for a
contract killer in both slayings.
Duff-Smith was convicted of his
mother’s murder and was sentenced to
death. He maintained his innocence
until last year, when he ‘confessed
while lying on a gurney waiting to die
by lethal injection at age 46.
“T am the Tow sinner of sinners,” he
said. “I am responsible for the ’75 and
"19 cases. In my trial, there was
nothing to do with God, truth and
justice for all.”
Two other men were arrested in
connection with the Wanstrath mur-
ders. Allen Wayne Janecka, who was
paid to kill alt four victims, is on
death row. Paul MacDonald, who
helped Janecka plan the mother’s
murder, has been released from
prison. :
All four slayings were difficult to
solve because medical examiners origi-
nally ruled Zabolio’s death a suicide
and the Wanstrath case a murder-sui-
cide, even though no weapon was
found at the scene.
Police finally cracked the cases
after Davis’ and Duff-Smith’s wives
cooperated with authorities. Davis
since has been divorced.
ASU’s law school came under fire
last year after it admitted Hamm, who
pleaded guilty in 1974 to the murder
of a Tucson man during a drug deal.
It was estimated ¢hat it cost the state
$11,000 a year to educate Hamm.
As a result of the controversy, the
dean of the law school now has to
approve the admission of any con-
victed felons.
ors sey
n ASU law student
ARIZONA KepuBlic —
4 ctuix AZ
a
Book author Nelson wrote that
Davis only had a high-school degree
when he applied to the Texas law
school but was admitted after he
submitted forged college transcripts
showing that he had been a college
honor student. .
“He nearly flunked out after four
semesters, but he found the diploma
wasn’t necessary anyway,” he wrote.
“He just introduced himself as a
real-estate attorney; a criminal attor-
ney or a Mafia attorney, depending on
which suited him best at the time.”
Bonds said Davis was raised in a
“well-to-do, nice” family and was
expected to be very successful before
he got involved in the murders.
“There is no reason for him to be
the way he is,” Bonds said. “He could
have been an attorney by the time he
was 25 or 26, but he was just
fascinated with organized crime and
seeing what he could get away with it
and trying to con people.”
Contributing to this article was Charles
Kelly of The Arizona Republic.
~ g
dence proved to be Jeffrey’s re-
markable resemblance to Gregg
Braun. A coincidence that resulted
in Freda Blair placing the unlucky
man at the Ardmore murder scene
through identification of his picture.
All cops know that continuity be-
tween a series of events usually leads
to the solution of a crime. But in this
case a trail of clues had led police
straight to Jim Jeffrey while Gregg
Braun continued on his deadly four-
state murder spree.
When the Oklahoma charges
against him were dismissed, Jim Jef-
frey waived extradition to Kansas
and was returned to Garden City to
face the theft of service charge.
Meanwhile, probers in Kansas were
astounded to find yet another con-
nection between Gregg Braun and
Jim Jeffrey. Both men had been oc-
casional patrons of a particular night-
club in Garden City. The hostess
there had seen both of them in the
club — but not together. She recalled
that Braun had been barred from the
club for unruly behavior.
Investigators found that Gregg
Francis Braun came from a back-
ground more affluent than that of his
look-alike. The son of a Garden City
criminal attorney, Braun had earned
a degree in the administration of jus-
tice at Wichita State University and
recently had been employed as a
manager in a Wichita, Kansas, night-
club.
More than one of Braun’s friends
said they were shocked to learn of
his arrest though one close friend did
admit that for some time he had en-
tertained fears that “Gregg was head-
ed down the wrong path.” When
pressed for details, the friend men-
tioned trouble resulting from drug-
use combined with a hair—trigger
temper. But nothing in Braun’s past
behavior indicated that he was capa-
ble of the kind of murderous frenzy
which would drive him across four
states in four days leaving death in
his wake.
Now, within one week of embark-
ing on his four-day odyssey of death,
Braun stood accused of murder in
four states. In Garden City, Kansas,
he faced two counts of felony mur-
der, two counts of aggravated rob-
bery and two counts of aggravated
kidnapping in the deaths of the two
convenience store clerks. In Pampa,
Texas, he was charged with robbery
with a firearm and first-degree mur-
56
der in the death of the photo-shop
owner. In Raton, New Mexico, he
was similarly charged in the death of
the service station attendant. In Ard-
more, Oklahoma, he faced two
counts of robbery with a firearm, two
counts of robbery with intent to kill
and one count of first-degree mur-
der.
Two years later, in September of
1991, in Raton, New Mexico, Braun,
pleading “guilty but mentally ill” was
sentenced to life in prison for the
murder of Geraldine Valdez. In 1992,
a Kansas jury sentenced him to two
life sentences for the Garden City
murders of Barbara Kochendorfer
and Mary Rains. In August, 1993,
Braun was returned to Ardmore, Ok-
lahoma, where he entered a “no con-
test” plea in the murder of Gwen-
FINAL CONFESSION
dolyn Miller.
Attempting to save his client from
a death sentence, Braun’s attorney
offered the mitigating circumstance
of a personality disorder resulting
from alleged childhood abuse. The
defense psychiatrist who testified to
Braun’s childhood trauma may have
done the defendant more harm than
good by admitting under cross-ex-
“amination that Braun had killed at
least one of the victims to experience
“the rush” that killing gave him. “His
first killing was to keep from being
identified. But the murder released
something inside him — provided a
sort of titillation that led him to kill
again for the thrill of it,” the witness
stated.
The Ardmore prosecutor pointed
out that justice would be served by
putting Braun to death. How much
more violent can a person be? he
asked. “In four days he kills five
people and tries to kill two others.
He is a continuing threat to society.”
At the sentencing hearing the his-
toric Carter County courthouse was
packed with friends and relatives of
the three Ardmore shooting victims
and bereaved spectators from as far
away as Pampa, Texas, Garden City,
Kansas and Springer, New Mexico.
One of the grieving relatives had, for
four years, tracked every twist and
turn of the case. At every prelimi-
nary hearing, trial and sentencing,
Gregg Braun would look up to see
her—sitting as close to him as secu-
rity would allow—staring at him
with accusing eyes.
On Monday, August 23, 1994, Dis-
trict Judge Tom Walker condemned
32-year-old Gregg Francis Braun to
death by lethal injection for the mur-
der of Gwendolyn Sue Miller. The
convicted killer sagged and involun-
tarily closed his eyes upon hearing
the sentence of death.
Braun is still to be tried in Texas
for the murder of P. E. “Pete” Spurri-
er. Texas prosecutors are also seeking
the death penalty. *
(Editor’s note: Lorena Barnes, Billy
Barnes and Freda Blair are not the real
names of the persons so named in the
foregoing story. Use of the real names
would serve no public interest.)
by LEO §
s the \
front gai
ka State
closed beh
James Delah
no idea that
miserable day
birthday, wou
Delahunty was c
of the fact that on
lent prison escap
history was sched
at his trouble-ridd:
ten-minute ride fri
coln, Nebraska.
“Happy birth
The medical examiner was fooled along with many
investigators on the case, except one cop who- had this
gut feeling that there was something rotten beneath
the surface, and he wouldn't quit digging until it was
unearthed for all the world to see.
Diana, John... the baby’s been shot in the
face!”’
‘*Whio’s been shot?’’ the dispatcher
yelled back. ‘‘Give me an address!"’
Minutes later a police -cruiser
screeched to a halt in front of the Wan-
strath’s luxurious home on Briar Rose.
Police dashed through the front door.
In the den they found John and Diana.
The affable scientist was sitting in a wing
chair, his chin down against his chest. It
looked like he was dozing. But it was a
doze from which he would not wake.
Blood trickled down the side of his face
and onto his shirt. John Wanstrath had
been shot in the side of the head.
His wife, Diana, lay on the floor in
front of the fireplace. She also was dead,
shot once in the head. In the baby’s room
police found 14- month-old Kevin. He
lay in his crib, surrounded by stuffed toys
and tucked securely under ‘the covers.
His toys and bed clothes were splashed
with blood. Kevin, like his mother and
father, had been shot to death.
Detective Johnny Bonds was one of.
the first investigators at the scene. A tall,
broad shouldered man, with the build ofa
weightlifter, 33-year-old Bonds is every-
thing a detective should be — tough,
smart, tenacious. Bonds and Detective
Eli Uresti had been in the homicide squad
room about to go to work on another
murder when the call came in. On the
long drive out, they tried to avoid talking
about the case at hand. ‘‘A dead baby
was involved,’’ Bonds said. *‘We were a
little uptight about that.’’
The detectives entered through a back
door. In the den Bonds saw John Wan-
strath sitting in the chair and his wife
lying by the fireplace. His first thought
was suicide. ‘‘I figured he had killed her
then sat in the chair and shot himself.
Bonds instinctively made a search for
the gun. ‘‘I got down on my hands and
knees and looked underneath the chair to
see if it had fallen there.’’ It hadn't.
Bonds figured that perhaps the gun had
fallen between Wanstrath and the chair
arm. But it wasn’t there either.
The detectives went into the baby’s
Markham Duff-Smith (below) and
Walt Waldhauser, dabbled in
shady real estate deals when they
weren’t plotting brutal murders.
room.
In his seven years as a homicide detéc-
tive,. Bonds had seen plenty of gruesome
murders, but the sight of the infant dres-
sed in the terry-cloth jumper with part of
his head shot away tore at him. ‘‘I had to
get out of there,’’ he said. ‘‘I tried'not to
‘show that it bothered me, but it bothered
me all Tight. It bothered everybody out
there.’
The image of the dead child and the
two parents stayed with Bonds. It looked
like suicide-double murder. But neigh-
bors and friends said that was an impossi-
bility.
‘John and Diane loved each other,”
one neighbor said. ‘‘And they dearly
loved their child. They would never do
anything to hurt little Kevin."’
A family friend said, **! can’t believe
it. Why they were just going to celebrate
their 10th wedding anniversary.”
The Wanstraths had planned on a big
anniversary party. In the kitchen Bonds
had found dozens of printed invitation
cards. The cards had been neatly
arranged on the large table and had been
spotted by Bonds when he first entered
the house.
‘‘This is curious as hell,’* Bonds re-
marked to Detective Uresti. *‘It seems
out of place, that someone would take the
time to start on these cards and then sud-
denly wipe. out the family.’’ |
And there was the murder weapon, or
rather the absence of one. The detectives
had looked everywhere but had not found
the gun or the spent shell casings.
When Bonds left the house that after-
noon he had a gut instinct that the
suicide-double murder was actually a tri-
ple murder.
‘‘There is just more here than meets
the eye,’’ he said. There was. Diana
Wanstrath had been the daughter of
Trudy Duff Smith Zabolio, a wealthy
woman and member of Houston’s Social
Register. In October of 1975 Trudy had
been found strangled to death in the bath-
room of her elegant River Oaks home.
The Medical Examiner’s report con-
cluded she had committed suicide, but
Diana never bought that conclusion.
‘*My mother was murdered,’’ Diana told
friends. ‘‘It would have been impossible
for her to take her own life.”’
Mrs. Zabolio had been a devout Ro-
man Catholic and'was opposed to suicide
on religious grounds. Diana, Bonds
learned, held the same religious beliefs.
He also learned the 60-year-old Zabo-
lio had been in good health and had
showed no signs of mental depression at
the time of her death. She had been found
dead with a nylon pantyhose wrapped
around her neck several times and knot-
ted in front. :
It was a bizarre method of committing
suicide but not
employe in the m
had wrapped a
throat and knot!
found on Zaboli
led herself. Onl
happened by an
out on the floor
her throat, preve
ing place.
Trudy Zabol:
Jersey but move
ton, where she h
model and a se
- Marvin Duff-S:
Wheeler Corpx
died of natural c
asmall estate. T
ing home opera
Mrs., Zabolio
ral-born daught:
son, Markham.
lieved, she pref:
‘very close,”’ a
‘*Diana was s¢
They used to t
sisters. They w
Markham,
something of a
stylish cars and
times had troub
to pay for the
himself as a s
estate investor.
after he collecte
Zabolio estate
Duff-Smith, a «
series of odd |
man of used cz
convenience st
reader. and a g!
He apparent
for Trudy Zab
bered they ars
once Markham
bitch ought to
There were
money. A forr
tive Bonds th
plained that h
him money or
his ma never ft
The black-s!
the Wanstrath
ana’s half of
Trudy Zaboli:
Wanstrath es
$900,000.
‘The guy |
insider observ:
-a family tragec
Tri
st!
ee cad
Who Slew The Blonde With Nine Lives?
(continued from' page 49)
cated several handguns, including ihe |
weapon used in the first attempt on Mrs.
Newberry’s life. Nicola said Sheriff Jack
Corum retrieved the weapon and ballis-
tics tests matched it with a shell casing
found at the scene of an attempted holdup
in which the victim was wounded.
Secret Service agents then said they
had confiscated a knife in the counterfeit-
ing arrest. Testimony from lab specialists
linked hair fragments found on the knife
to the murder.
When the prosecution rested its case,
the court was surprised when the defense
stated likewise without calling a single
witness.
In his closing statement, DeCuyper
told the jury, ‘*You can nitpick all you
want, but don’t lose sight of the major
issue in the case.’’ He was referring pri-
marily to statements by the elder New-
berry, whose testimony at several points
conflicted with the stories of other wit-
nesses.
‘ «What would an oath mean to that
man (the older Newberry)?’’ Hill, the
defense chief, asked in his closing argu- _
ments. ‘‘This'‘man is totally incapable of
remorse.”’
The elder Newberry admitted on the
witness stand that he was testifying in
’ exchange for a reduced charge with the
assurance that any time he spent in jail
would be outside Missouri, and that his
sentences would run concurrently.
‘*He’s a desperate man,’’ shouted.
Bunch, another defense attorney. He’
theorized that it was Newberry (the de-
fendant’s father), not the defendant, who
wanted Roxanne killed. The father could
then blackmail his son to get some of the
insurance money.
DeCuyper dismissed such a theory as
‘*‘poppycock,”’ saying there was no evi-
dence. ‘‘There is only one person who
has got the motive,’’ DeCuyper yelled,
pointing at the defendant, ‘‘$326,000
worth of motive.”’
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50
The jury was given several options by
‘Judge Yéaman — acquittal or conviction
of capital murder, second-degree mur-
der, or manslaughter. They retired at °
3:50 p.m.
Deliberating five hours, the jurors
filed back into the courtroom about 9:45.
p.m. The defendant had been brought
back, after which he sat at the defense
table and leaned back in his chair, look-
ing. alternately at the judge and the jury,
pressing his fingertips together. :
J. Arnot Hill, chief counsel for sthe
defense, requested that the jury be pol- .
led. Judge Yeaman then read the verdict
‘*guilty of first-degree muyrder,’’ and
asked each of the 12 jurors if that was his
or her verdict. Each answered yes.
On July 8, while awaiting sentence in
the Platte County Jail, authorities stated
that Newberry, who was in a medium
security cell, tried to melt the plastic put-
ty around the cell window and attempted
to pry the window open with part of a
toilet. He also assaulted a Platte County
deputy who, discovered the attempted
escape. Charges of assault and attempted
escape were filed against Newberry.
Finally, on August 6, 1979, Floyd B.
Newberry was sentenced to life in prison,
A motion for a new trial was turned
down.
The Hit-Man Who
Specialized In Suicide
(continued from page 13)
released an exhaustive report on the
Wanstrath slayings. The report con-
cluded that Diana Wanstrath had mur-
‘dered her husband and baby and turned
the weapon on herself. ;
The’ report effectively destroyed the
theory that Markham Duff-Smith and his ©
buddy, Walt Waldhauser, had conspired
to murder the Wanstraths-to cash in on
the inheritance.
The controversial conclusion that Di-
ana had been the murderer and not her
husband had been reached after a seven-
month-long ‘‘psychological autopsy”’
had been performed by Dr. Thomas
Welu, a Catholic priest and self-styled
authority on suicide.
According to the report, Diana had
. been driven to murder and then suicide
because:
1 — Diana and John had experienced.
marital problems.
2 — Diana exhibited symptoms of
depression that were consistent with
__ \.(continued on page 52)
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NAME —__
ADDRESS
yo
North Amer
4500 Campt
>
nany
iad this
neath
it was
nd they dearly
would never do
‘vin.*"
‘I can’t believe
ing to celebrate
ersary.”’
anned on a big
kitchen Bonds
nted invitation
been neatly
e and had been
1e first entered
ll.’* Bonds re-
su. “‘It seems
would take the
s and then sud-
ler weapon, or
The detectives
t had not found
casings.
suse that after-
tinct that the
s actually a tri-
‘re than meets
2 was. Diana
’ daughter of
iO, a wealthy
uston’s Social
175 Trudy had
ith in the bath-
r Oaks home.
s report con-
1 suicide, but
t conclusion.
i,"’ Diana told
en impossible
fe.
a devout Ro-
»sed to suicide
Jiana, Bonds
gious beliefs.
ear-old Zabo-
alth and had
depression at
ad been found
10se_wrapped
nes and knot-
of committing
suicide but not an impossible one. An
employe in the medical examiner’s office
had wrapped a pantyhose around her
throat and knotted it in the same way
found on Zabolio and had nearly strang-
led herself. Only an alert employe who
happened by and found the girl passed
out on the floor, her hands clutching at
her throat, prevented a tragedy from tak-
ing place.
Trudy Zabolio had been born in New
Jersey but moved at an early age to Hous-
ton, where she had worked as a part-time
model and a secretary before marrying
- Marvin Duff-Smith, manager of Foster
Wheeler Corporation in Houston. He
died of natural causes in 1955 and left her
a small estate. Trudy then married anurs-
ing home operator.
Mrs.,Zabolio had two children, natu-
ral-born daughter Diana, and an adopted
son, Markham. Of the two, it was be-
lieved, she preferred Diana. ‘They were
‘very close,’’ a family friend observed.
*‘Diana was so much like her mother.
They used to travel abroad like sorority
sisters. They were inseparable.’’
Markham, on the other hand, was
something of a black sheep. He favored
stylish cars and stylish women and some-
times had trouble coming up with money
to pay for them. Markham advertised
himself as a stock speculator and real
estate investor, but these titles came only
after he collected his half of the $188,000
Zabolio estate. Before that, Markham
Duff-Smith, a college dropout, had held
series of odd jobs, ranging from sales-
man of used cars and life insurance to a
convenience store clerk, a utility meter
reader. and a grocery store stocker.
He apparently didn’t have much love
for Trudy Zabolio. A caretaker remem-
bered they argued frequently and that
once Markham had told him, ‘‘that damn
bitch ought to be dead.”’
There were many arguments over
money. A former employer told Detec-
tive Bonds that Markham once com- °
plained that his mother ‘wouldn’t loan
him money or buy him a car. ‘‘He said
his ma never helped him out.”’
The black-sheep son also collected on
the Wanstrath tragedy. He inherited -Di-
ana’s half of the estate left to her by
Trudy Zabolio, plus a portion of the
Wanstrath estate, valued at close to
$900,000.
*‘The guy looked pretty guilty,’’ one
insider observed. ‘‘Everytime there was
-a family tragedy old Markham was right
Trudy Zabolio. An M.E. said she
strangled herself, but a hard-
nosed detective disagreed.
Allen Janecka, the triggerman
who distrusted doing business
with people in high society.
there scooping up the cash.”’
Detective Bonds and Uresti were also
intrigued that just a few weeks before the
July 6th slayings, John Wanstrath had
taken out $250,000 life insurance. The
policy had been sold to him by Walt
Waldhauser, a closer personal friend of
Markham’s. sini
Bonds brought Markham Duff-Smith
to the police station. The 34-year-old
businessman proved as slick as one of his
$400 designer suits. ‘‘He was real calm
and collected when we first talked to
him,’’ Bonds recalled. ‘‘Of course that
doesn’t mean anything.
Bonds asked Markham what he
thought about his mother’s death, if he -
thought it was a murder or a suicide. He
replied, ‘Well I think she probably kil-
led herself.”
‘I had a feeling then that there was
something that just wasn’t right about
him. I didn’t know what it was exactly,
but I didn’t feel good about what he told
me. I thought he was involved,’’ Bonds
recalled.
Four days after the murders, Bonds got
a tip from a Houston Post reporter that an
anonymous caller had said Duff-Smith
killed his mother for her money and prob-
. ably had something to do with the Wan-
straths’ killings.
After the call all relatives were given
lie detector tests. All passed — except
Markham.
**He blew it,’’ Bonds said. ‘*We asked
him if he knew that the Wanstraths would
be killed, if he had plotted their murders.
He answered no to both questions but the
polygraph said he was lying.”
Bonds believed that Markham had
plotted the murders but probably had
paid someone else to actually pull the
trigger.
And that someone, police suspected,
was Walt Waldhauser. ‘‘Markham and
Walt were really buddy-buddy,’’ an ac-
quaintance said. *‘They were as close as
Siamese twins.’’
Walt was a personable 27-year-old
real estate developer who had made
Houston take notice a few years earlier
when he brashly tried to open a stock
exchange in the city at age 25.
A few days after the Wanstrath
slayings police asked the handsome
dark-haired Waldhauser to take a poly-
graph examination at the police station.
He agreed to.
After the examination, Bonds was sure
he had the right man. ‘We really didn’t
consider Walt a suspect until we talked to
him. Then we could just see it all over
him. He sat there and fidgeted and swea-
ted. He had to wipe his forehead off ev-
ery once in awhile.’
The cops worked the case day and
night. **We believed it took two men to
pull off the Wanstrath murders and fi-
gured one of them was Waldhauser,”’
Bonds said.
But once plentiful leads dried up.
Bonds and Uresti logged hundreds of
hours in the next two months and got
nowhere. Bonds and Uresti were
assigned to other murder cases but con-
tinued to work the Wanstrath slayings in
their spare time.
In January, 1980, Bonds was transfer-
red to the Internal Affairs Division. He
took with him a Xerox copy of the Wan-
strath case file. ‘‘I wasn’t going to give
up,’’ he said. **l knew something would
happen, a break would develop.’
It did, just a month later. But it wasn’t
the break Bonds had been looking for.
In February of 1980 Harris County
Medical Examiner Joseph Jachimezyk
(continued on page 50)
suicidal feelings and behavior.
3 — Diana was having difficulty at the
age of 36 adjusting to their new baby.
Her perfectionist personality made this
adjustment harder than normally ex-
pected.
4 — Mrs. Zabolio, Diana’s mother,
had attempted suicide at about the same
age as Diana when she committed
suicide. These events correlate highly ‘.
with future suicidal behavior.
5 — There was evidence of a down-
ward course in Diana’s life within the last
eight months prior to her death.
Dr. Welu also noted that Mrs. Wan-,
strath’s wound was a ‘‘classic suicide —
wound; that there was no evidence an
intruder had struggled with the victims,
and that no fingerprints of anyone except
Diana Wanstrath were found in the Wan-
strath residence.’’ The choice of
weapons was significant, he noted. A
.22-caliber Magnum single action revol-
ver is a very inconvenient weapon to be
used in a triple homicide because the.
hammer must be pulled back each time
the weapon is fired.
The report resulted in a flurry of phone
calls to the Houston Police Department,
all bitterly objecting to the report’s con-
clusion. ‘*Diana couldn’t have done such
athing,’’ one caller fumed. ‘‘If you want
to find the killer you go hunt down Mar-
kham Duff-Smith. He’s behind this, and
you cops are letting him get away with
it.”
Bonds didn’t believe the report either.
The most glaring fault was the fact that
the murder weapon had never been
found. One theory was that a relative had
discovered the corpses and then pocketed
the murder weapon so that the stigma of
suicide would not taint the survivors.
mee Train to become a
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52
ne
The Hit-Man Who Specialized In Suicide 2
(continued from page 50)
Bonds believed that if-a relative had
run off with the gun it would have been
returned by now. os
_ **L know I’m right,’’ Bonds snapped.
‘“‘That poor woman didn’t commit
suicide. She was set up by her adopted
brother. And I just can’t sit back and let
this thiia,, be swept under the rug. I gotta
’ do some hing about it.’’
"He stayed with the case, spending his
off houts going over the volumes of
police repu.rts, looking for the one unfol-
‘lowed lead that would direct him to the
killers. |
Bonds’ @)session nearly destroyed his
marriage. But his efforts paid off.
Early inl he got a call from Walt
Waldhauser’: wife. The Waldhausers
were going thicugh a sticky divorce and
his wife had'con e home to find her apart-
ment ‘‘cleaned cut.”’
**He took eveiything but a bunch of
papers,”’ she said bitterly. ‘‘If you guys
want them, they’. yours.”’
In the pile of piers detectives came
across five letters \yritten to Walter by
Alan Janecka. Janecka was one of Hous-
ton’s better known *‘characters.”’ A one-
time altar boy and high school baseball .
hero, Janecka had scrapped a promising
future to begin a life of crime. In July,
1980, a friend of his, Rotert Boyd, had
been arrested for the murder of a Houston
man. Janecka was believed to have
helped in the slaying but had not been
charged. |
. **T think we found our triggerman,”’
Bonds said. feb es
The detective contacted Boyd and
asked him about Janecka. ‘‘Aien was a
funny guy,’’ Boyd said. ‘‘He was talking
about doing some other murders and
wanted mejto help. He said there’ vas this
family, a man, a woman and a biky, he
wanted me to help kill.”’
Janecka had been diving in svveral
different places in Houston during’ 1979
Wanstrath killings. He had gone, a fr, end
said, to Georgia.
By this time it was November, 15%),
and Detective Uresti had been transfert «1
to another division. Bonds needed.soai
McAnulty Jr., 31, a detective with «
reputation for thoroughness.
‘fore they got the name of Bonnie Holder,
a girlfriend, who lived outside Atlanta.
tion to find out more about Alan Ja 1ecka,
t
and had left town just six days afte: the ©
help from homicide and he chose Dax
The detectives spent days on the street :
talking to Janecka’s. former friends be-'
With only the name.and the determina-" - ©
Detective McAnulty flew to Atlanta.
He went to a dimly lit bar which
Janecka’s girlfriend frequented and be-
gan talking to some of her ‘*male pals."
One of them turned out to be an under- #
cover cop. ‘*You won’t believe this but
she told me she had this gun in her house
” that had been used to kill some people in.
Houston,”’ the Georgia cop said.
McAnulty was excited by the revela-
tion but figured the gun had been dis-
carded. People, after all, just don’t keep
‘murder weapons hanging around.
But this was an exception,
The next day McAnulty went to see
Bonnie Holder. ‘*Yeah, the gun is still
here,’’ she told a surprised McAnulty.
‘*Alan wanted me to keep it in case any-
thing happened to him.’’ Several hours
of questioning later, McAnulty left the
home with the gun used to kill the Wan-
straths and an address where Janecka was
staying in Houston, | :
McAnulty called his partner. ‘‘Sit
down, Johnny, and hold onto your hat.
I’m holding in my hand a Colt Frontier
Scout, the gun that killed the Wan-
straths.’’
The case, dismissed by the medical
examiner’s office as a tragic suicide-
double murder, suddenly sizzled. ‘‘It
was in the cards,’’ McAnulty said philo-
sophically. ‘‘Suddenly everything was
going our way. Somebody is looking out
for 14-month old babies.”’
Janecka was quickly arrested. He was
brought to the interrogation room.
**T don’t know anything about that
‘gun,’” he said.
‘*Like hell you don’t,’’ Bonds roared.
**You gave that gun to your girlfriend for
safekeeping. It is the gun that was used to
kill the Wanstraths. We know you did it.
We want to know who paid you.”
It took several interrogations but
Janecka finally came around. *‘If | am
onna swing for this then I ain’t swing-
ing alone,’’ he.said.
He said it was late Spring, 1979, when
a friend approached him with the idea of
\ murdering a yet unnamed wealthy Hous-_—.
ton family and making it appear like a —
robbery-murder.
Janecka said he balked at first but
- eventually was persuaded to do the kill-
ings. The persuader was Walt Waldhaus-
at,:?
On July 5, Janecka and Waldhauser
drove to the Wanstrath home, They had .
no trouble getting invited in since Walter
was a friend of Diana’s brother and had
just sold John a life insurance policy.
According to their plan, Walt would
give a signal and spray mace into Diana’s
(continued on next page) .
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then *‘fir*->
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was jum]
got the hell «
Walt did r
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when he rez
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he said. *‘It:
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Six days a
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Detective
corroborate
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1178
about Janecka’s threats, Duff-Smith
agreed to “get it taken care of.” Shortly
thereafter, Janecka received full payment
from Waldhauser.
The pglice were eventually alerted of the
murder conspiracy by Donald Wayne Cha-
line. Chaline worked with Duff-Smith at
. Prudential Insurance Company in 1975.
According to Chaline, he and Duff-Smith
met several months after the murder. -
During the chance meeting Duff-Smith
told Chaline in great detail about how he
had arranged for the death of his mother in
order to collect proceeds from her estate.
For three years Chaline said nothing to
the police because he felt implicated. In
1979 Chaline read about the deaths by gun-
shot of Duff-Smith’s sister, Diana Wan-
strath, her husband, John Wanstrath, and
their 14-month-old child, Kevin Wan-
Strath.‘ Apparently Duff-Smith had
Squandered his inheritance from his mother
and he hired Waldhauser and Janecka to
murder the Wanstrath family so he could
inherit his sister’s estate. Suspecting foul
play by Duff-Smith, Chaline -called- and
then eventually met with the homicide de-
tective investigating the Wanstrath. kill-
ings.
Duff-Smith was tried for the murder of
his’ mother.’ During his case-in-chief he
first presented the perjured testimony of
two witnesses. The third witness defense
counsel called was Jerry Sol Eickenhorst.
Unfortunately for Duff-Smith, Eickenhorst
destroyed the defense theory. Eickenhorst
testified that Duff-Smith had suborned
perjury by various inmates and had con-
cocted a false story that Waldhauser and
MacDonald had murdered Mrs. Zabolio and
were attempting to place the blame on him
to avoid the death penalty. In support of
4. The medical examiner initially ruled that the
Wanstrath family deaths were the result of a
- ‘double murder-suicide; that Diana Wanstrath
had murdered her husband and son before com-
mitting suicide. :
5. Duff-Smith was charged with but never tried
for arranging the murders of the Wanstrath
family. However, during both the guilt-inno-
were made known to the jury via the testimony
of coconspirators.
973 FEDERAL REPORTER, 2d SERIES
his testimony, Eickenhorst provided the
handwritten notes made by Duff-Smith
outlining the perjurious scheme. Duff-
Smith conceded that the handwriting was
his.
Duff-Smith was convicted of murdering
Gertrude Zabolio for remuneration, name-
ly, for half of the proceeds of her $190,000
estate. The jury returned affirmative find-
ings to the two Special issues under Article
37.071(b), V.A.C.C.P., and punishment was
assessed at death. The Texas Court of
Criminal Appeals affirmed the conviction
and death sentence.”
Execution was scheduled for January 10,
1986. When Duff-Smith filed a petition
for habeas relief in state court a stay was
issued. Following an evidentiary hearing
the trial court entered findings of fact and
conclusions of law refusing all relief, The
Texas Court of. Criminal Appeals denied
Duff-Smith’s habeas application and the
trial court reset the execution for October
8, 1987. bos
Duff-Smith filed his first federal habeas
petition in September of 1987 and a stay of
execution was granted. Duff-Smith raised
11 claims, including those raised in this
appeal. An evidentiary hearing was con-
ducted and the magistrate judge. entered
his report recommending that the writ be
denied. The. district court adopted the
magistrate judge’s recommendation, en-
tered an order denying the writ of habeas
Corpus, vacated the stay of execution, and
denied a certificate of probable cause.
Duff-Smith filed a notice of appeal,
which under Fed.R.App.P. 21 we consider
to be a request for a certificate of probable
cause, raising ten claims for relief. He
6. There was no indication that defense counsel
knew of the perjurious nature of the defense
theory. Several weeks before trial five inmates,
all previous jail-mates of MacDonald, contacted
defense counsel by letter and offered to testify
in Duff-Smith’s favor.
7. Duff-Smith v, State, 685 S.W.2d 26 (Tex.Crim.
App.), cert. denied, 474 US. 865, 106 S.Ct. 186,
88 L.Ed.2d 154 (1985).
Tae SP egesmeg enim 9
gi Be
1a
alleges that: (1) his substit:
not given adequate time
habeas claims; (2) two pre
were improperly removed; |
_ of a discovery order, the pr:
to reveal the existence of t
script outlining the perjurio
ory; (4) witness Eickenhorst
cover agent for the state \
solicited admissions from D
his right to counsel had att:
enhorst affirmatively dec
counsel; (6) the state offer
undisclosed benefits and in
subpoenas of material v
quashed; (8) he was denied
ance of counsel; (9) the evi:
ficient to sustain a convic
murder for remuneration; 2
dicated criminal conduct \
during the punishment -ph:
We granted the CPC...”
Analysis
; In considering a federal
™ petition federal. courts -must
- sumption of correctness.to :
tual findings.’. --We> accep
court’s findings of.«fact u:
clearly erroneous; issues ¢
viewed de novo.’ ..
1. Substitute counsel
[1]. The record . indicate
Smith was represented at tr:
Victor Blaine and Candelaric
direct appeal, state habeas ;
initial aspects of the federal
were handled by attorneys
Carolyn Garcia. During the
tiary hearing Gray and G:
withdraw as counsel. . T
‘judge ultimately granted a
stitute Douglas C. McNabb
At the time of his appoint
was informed that although
evidentiary hearing had beer
8. Barnard v. Collins, 958 F.2d ¢
(citing 28 U.S.C. § 2254(d)).
9. Humphrey v. Lynaugh, 861 F
1988), cert. denied, 490 U.S. 102
104 L.Ed.2d 191 (1989).
1180
habeas petition. Should additional claims
be discovered, he requests an opportunity
to amend his petition to raise them."!
Discovery decisions in habeas proceed-
ings, including whether to allow an exten-
sion of time, are left entirely to the sound
discretion of the district court.!2» Amend-
ments should be liberally allowed but the
decision whether to permit an amendment
to a petition after responsive pleadings
have been filed is within the discretion of
the district court.!3 The decision to deny
leave to amend is reviewed on appeal only
for abuse of that discretion.“
Duff-Smith was represented by compe-
tent counsel for several years before coun-
sel withdrew. When McNabb was appoint-
ed as Duff-Smith’s substitute counsel he
was given an opportunity to supplement
the record at anytime before the magis-
trate judge issued his report to the district
court. This was a period of four and one-
half months.. McNabb then had three
months to respond and object to the report.
Counsel was afforded sufficient time to
review the records, investigate the facts,
and present them to the court. The new
information which Duff-Smith purports to
have discovered is nothing more than a
bald assertion that with additional time he
might be able to prove psychological mis-
treatment and that Eickenhorst was a
government witness. We are not per-
suaded. Duff-Smith has failed to show
that “he was prejudiced by his inability to
amend his petition.” 15
11. Cf. Coleman v. Vasquez, 771 F.Supp. 300
(N.D.Cal.1991) (staying proceedings for 120
days to allow a McCleskey investigation).
12. 28 U.S.C. § 2254.
13. Fed.R.Civ.P. 15(a); Hernandez v. Garrison,
916 F.2d 291 (Sth Cir.1990).
14. Carter v. Procunier, 755 F.2d 1126 (5th Cir.
1985). ,
15. Hernandez, 916 F.2d at 293. The district
court did not abuse its discretion.
16. 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581
(1980).
973 FEDERAL REPORTER, 2d SERIES
2. Improperly removed venire mem-
bers
[2] Duff-Smith alleges that venire
members Sarah Nagler and Harold Boyd
were improperly excused by the trial court
in violation of Adams v. Texas * and With-
erspoon v. Illinois." He contends that the
voir dire responses given by the two pro-
spective jurors do not indicate that they
were So opposed to the death penalty as to
interfere with their duties as jurors and
that they should not have been excused.
During the trial, counsel did not object to
the exclusion of either prospective juror as
required by the Texas contemporaneous ob-
jection rule.’ Consistent with state law,
the Texas Court of Criminal Appeals ex-
pressly stated that its judgment as to this
issue rested on a state procedural bar.!9
The district court correctly concluded that
the procedural default doctrine forecloses
federal habeas review of this claim.20
When a state prisoner has defaulted a
claim in state court under an independent
and adequate state procedural rule, federal
habeas review is barred unless the prisoner
can demonstrate cause for the default and
actual prejudice, or demonstrate that fail-
ure to consider the claims will result in a
fundamental miscarriage of justice.
But for his ineffective assistance of
counsel claim discussed infra, Duff-Smith
does not allege cause for his failure to
comply with the state procedural rules for
preserving error. Moreover, he offers no
proof tending to show that as°a conse-
quence thereof there was a fundamental
miscarriage of justice in his trial.22
17. 391 U.S. 510, 88 S.Ct. 1770, 20 L-Ed.2d 776
(1968).
18. Russell v. State, 598 S.W.2d 238 (Teéx.Crim.
App.), cert. denied, 449 U.S. 1003, 101 S.Ct. 544,
66 L.Ed.2d 300 (1980)... 5 es
19.- Duff-Smith, 685 S.W.2d at 36-38. -
20. White v. Collins, 959 F.2d 1319 (Sth Cir.1992).
21. Coleman v, Thompson, 501 U.S, ——,. 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991).
22. Smith v. Murray, 477 US. 527, 106 S.Ct. 2661,
91 L.Ed.2d 434 (1986).
ELENA Ne NRT CT ACT CT Te eee
$ ‘ fi
3-6. Witness Jerry Sol :
~{3] Duff-Smith’s third,
~and sixth claims for relief
the testimony of defense w
horst. It was Eickenhorst
the defense by testifying
Duff-Smith’s entire defense
being framed by MacDonald
ser—was but a perjurious
Duff-Smith. The state actu:
the scheme a few weeks bef:
Eickenhors¢ gave the pros:
-~ Smith’s handwritten script
| perjurious scheme.
Duff-Smith’s first content
state violated the trial court
covery and inspection order
to provide the defense with «
Smith’s handwritten script .
horst testified. He argues t
- failure to comply with the d
* violates due process.and de
»” effective assistance of cour
fi
Hrs manent
~ «[4] This contention:is.als:
| the procedural default. do:
== Duff-Smith did not object t+
of the script at trial. As th
of Criminal Appeals noted i:
claim, “{i]t is well-settled
procedure when alleging s
violation of a trial court’s
covery is to object or ask f
ment or continuance of the t
over, were we to reach the
claim, it is apparent. that no
tutional right is implicated.
testimony and the script we:
and available to Duff-Smith
not complain that it was wit
. tion of Brady v. Maryland
| 23. Duff-—Smith, 685. S.W.2d. at
24. 373 US. 83, 83 S.Ct. 1194,
(1963). See Mattheson v. Kin
(5th Cir.1985), cert.denied, 47
S.Ct. 1798, 90 L.Ed.2d 343 (198
_..v. Jones, 712 F.2d 115 (5th Ci
25. 474 U.S. 159, 106 S.Ct. 477
(1985).
26. 377 U.S. 201, 84 S.Ct, 1199
(1964).
bd that
riginal
nstra-
not re-
sel be-
a more
e's pri-
fendant
2 been
investi-
ningham,
for peti-
_ William
_ Austin,
s District
of Texas.
t Judges.
ejection of
as corpus.
3 a ed
3 prisoner ~
gee ian ES ae ee
aes
oe
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gis
il
DUFF-SMITH v. COLLINS
Cite as 973 F.2d 1175 (Sth Cir. 1992)
we affirm the district court’s denial of ha-
beas relief.
Background '
On October 15, 1975, Gertrude Zabolio,
Duff-Smith’s adopted mother, was mur
dered in her home. According to the prose-
cution, Duff-Smith solicited Walter Wal-
dhauser to kill her and his stepfather, Dow
Zabolio. Waldhauser in turn solicited Paul
MacDonald, a bail bondsman, who hired
Allen Wayne Janecka. Janecka killed Ger-
trude Zabolio by strangulation.
Duff-Smith was a spendthrift who lived
beyond his means. During the period pre-
ceding his mother’s murder he had several
arguments with her over requests for mon-
ey. He told several persons that he wished
her dead. Duff-Smith acted on this desire
and determined to secure the murder of
both his mother and stepfather. Dow Za-
bolio was included because Duff-Smith
speculated that his stepfather might delay
the final distribution of his mother’s estate.
Detailed evidence of the crime ‘was pro-
vided by MacDonald who testified that in
the late summer -of 1975 Waldhauser told
MacDonald that a friend named “Duff”
needed an estate cleared up in order to
accelerate receipt of his inheritance. When
MacDonald stated that he was not willing
to commit murder Waldhauser asked him
to use his bail bond connections to find
someone willing to do so.
Waldhauser later called to ask whether
MacDonald had located a hit man. Janecka
was present and MacDonald asked him
whether he knew of anyone available for
murder for hire and Janecka replied that he
would take the job. MacDonald and Janec-
ka then contracted to perform the killings
for $10,000—$6,500 for Janecka and $3,500
for MacDonald who was to assist Janecka
j. We present: only the facts necessary for an
understanding of the issues raised. in: this ap-
peal. A detailed review of the facts, including
the pertinent corroborating evidence, may be
found in the Texas Court of Criminal Appeals’
. ry
opinion affirming Duff-Smith’s. conviction .on
26 (Tex.Crim.App.), cert. denied, 474 U.S. 865
1177
in planning. A small amount of this money
was provided up- front.
Waldhauser supplied MacDonald with de-
tails about the intended victims, including
the fact that on each Wednesday night they
ate dinner at a nearby cafeteria. On
Wednesday October 15, 1975 Janecka and
MacDonald staked out the Zabolio home.
When Gertrude Zabolio left alone to go to
the cafeteria Janecka entered the home to
await her return. Janecka then spent sev-
eral hours in the Zabolio home with Mrs.
Zabolio, ostensibly waiting for her husband
to return from work.? According to Mac-
Donald’s testimony, Janecka told him that
Mrs. Zabolio resignedly accepted her immi-
nent death and was not surprised when
Janecka revealed that her son was behind
the plan. Eventually Janecka. strangled
the victim with her pantyhose, leaving be-
hind two purported suicide notes, as well as
a “practice” pantyhose tied into a loop,
much like the one used in the strangula-
tion.® . ar es
-The next day MacDonald met Waldhau-
ser and Duff-Smith to discuss the murder.
Having been told by Waldhauser ‘to bring
some proof that he had committed the mur-
der, MacDonald brought Mrs. Zabolio’s
driver’s license which Janecka had given
him. The license was accepted by Duff-
Smith without comment. During this same
meeting Duff-Smith complained that only
one-half of the contract had been complet-
ed. He informed MacDonald that no more
money would be paid to Janecka until Dow
Zabolio had also been killed.
After a few months Janecka grew impa-
tient and threatened MacDonald. Mac-
Donald told Waldhauser about Janecka’s
threats, but no money was forthcoming.
Finally, Waldhauser gave MacDonald
Duff-Smith’s. unlisted phone number so
that MacDonald could “shake things up a
bit.” When “MacDonald told Duff-Smith
2. Gertrude told Janecka that her husband was
merely working late when in fact he was in
Austria. ,
3. The deceased’s death was, in fact, originally
ruled. a suicide.: ‘
DUFF-SMITH vy. COLLINS
1179
Cite as 973 F.2d 1175 (Sth Cir. 1992)
alleges that: (1) his substitute counsel was
not given adequate time to prepare his
habeas claims; (2) two prospective jurors
were improperly removed; (8) in violation
of a discovery order, the prosecution failed
to reveal the existence of the handwritten
script outlining the perjurious defense the-
ory; (4) witness Eickenhorst was an under-
cover agent for the state who improperly
solicited admissions from Duff-Smith after
his right to counsel had attached; (5) Hick-
enhorst affirmatively deceived defense
counsel; (6) the state offered Eickenhorst
undisclosed benefits and inducements; (7)
subpoenas of material witnesses were
quashed; (8) he was denied effective assist-
ance of counsel; (9) the evidence was insuf-
ficient to sustain a conviction of capital
murder for remuneration; and (10) unadju-
dicated criminal conduct was introduced
during the punishment phase of his trial.
We granted the CPC.
Analysis
In considering a federal habeas corpus
petition federal courts must accord a pre-
sumption of correctness to state court fac-
tual findings.*. We. accept the. district
court’s findings of fact unless they are
clearly erroneous; issues of law are re-
viewed de. novo.° '
1. Substitute counsel
_{1]. The record indicates that Duff-
Smith was represented at trial by attorneys
Victor Blaine and Candelario Elizondo. : His
direct appeal, state habeas petition, and the
initial aspects of the federal habeas petition
were handled by attorneys Will Gray and
Carolyn Garcia. During the second eviden-
tiary hearing Gray and Garcia asked to
withdraw as counsel. The magistrate
judge ultimately granted a motion to sub-
stitute Douglas C. McNabb as counsel.
At the time of his appointment, McNabb
was informed that although Duff-Smith’s
evidentiary hearing had been held, he could
8.. Barnard v. Collins, 958 F.2d 634 (5th Cir.1992)
(citing 28 U.S.C. § 2254(d)).
9. Humphrey v. Lynaugh, 861 F.2d 875 (5th Cir.
1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755,
104 L.Ed.2d 191 (1989).
supplement the record as long as he did so
before the magistrate judge issued his re-
port to the district court. No particular
time period was set.
Four months later McNabb realized that
previous counsel had requested a transcript
of the federal evidentiary hearings but that
no transcript was ever produced. McNabb
requested the transcript, the request was
approved, and McNabb received the bulk of
the transcript the last week of October
1990.
Meanwhile, the magistrate judge had fin-
ished his report which he filed on October
9, 1990. McNabb received a copy on Octo-
ber 17 and was given until October 30 to
file objections. This objection deadline was
later extended to November 30, 1990 and
then to January 4, 1991.
In his objections to the magistrate
judge’s report, Duff-Smith requested that
his substitute counsel be given additional
time to examine the records, investigate
the facts, and amend and/or supplement
the application for writ of habeas corpus.
The district court impliedly rejected this
request when on: January 28, 1991 - it
adopted the magistrate judge’s report, de-
nying the writ. ~
Duff-Smith argues on appeal that his
substitute counsel did not have sufficient
time to supplement the record before the -
magistrate judge issued his report, thereby
denying him a fair federal habeas proceed-
ing. He asserts that his substitute counsel
has found additional material not previous-
ly applied to the facts of the writ. Citing
the mandate of McCleskey v. Zant that
all claims for relief be raised in a petition-
er’s first habeas petition, Duff-Smith also
insists that his counsel should be given
additional time to perform what he terms a
“McCleskey investigation.” Accordingly,
Duff-Smith requests a stay of 180 days so
that his substitute counsel might fully in-
vestigate his claims in this, his first federal
10. —— U.S. —, 111 S.Ct. 1454, 113 L.Ed.2d 517
(1991). 53
Thursday, August 12, 1999
James Otto ee
Earhart...
witnesses
remembered
the Bryan
junk dealer
because of his
400-pound size.
Inmate put
to death for
killing girl
Body of Bryan girl, 9,
found in woods in ’87
Associated Press
HUNTSVILLE, Texas — A junk
dealer, memorable to witnesses be-
cause of his 400-pound size and grubby
“appearance, was executed Wednesday
‘evening for abducting and fatally
shooting a 9-year-old girl a dozen years
bee Otto Earhart was pro-
| nounced dead at 6:24 p.m., 10 minutes
after the flow of lethal drugs began.
Mr. Earhart, 56, had no final state
ment. — *
He was arrested after authorities
found the body of Kandy Janell Kirt-
_ land, who had disappeared near: her
Bryan home. Neighbors saw her get
off her school bus on May 12, 1987. She
was last seen talking to a large man
with.a stubby beard and dirty clothes.
_ “The only meaning this day has for
me is that tomorrow I will not get a
phone call ... that his conviction has
been overturned and he’s getting a
new trial,” said Jan Brown, Kandy’s
mother.
“It seems to me these [prisoners]
are coddled. .. . They've spent millions
of dollars on him. That bothers me a
lot. I think that’s a terrible injustice
that we put people in prison and then
Wwe just take care of them. The system
sucks,”
Two weeks after vanishing, Kan-
dy’s body was found in a wooded area‘
a few miles from her home. Her hands
were tied behind her back. An autopsy
determined she had been shot in the
head with a .22-caliber handgun.
“This was a 9-year-old girl,” Brazos
County District Attorney Bill Turner
recalled. “Best I can tell, the last thing
she probably saw, her hands tied be.
hind her back, was his gun. It’s just a
horrible picture in your mind.”
Mr. Earhart had visited the Kirt.
land home a week earlier to look at a
paint sprayer the family was Selling.
He and Joseph Kirtland, Kandy’s fa-
ther, couldn’t agree on a price.
Witnesses supplied information
about the Sfoot-9 man with a 56inch
waist. At his home in Bryan, authori-
ties found news articles about the
girl’s disappearance and literature
about bondage. He was arrested after
being found sleeping in a car in the
Sam Houston National Forest near
Huntsville. A .22-caliber handgun and
bloodstains were found in the vehicle.
EDWARDS, Albert, wh, elec. TX® (Harris) Oct. 9, 1951
CRIME DETECTIVE, Nev., 1949
HEN the lights went on around 8 o’clock, McCarty
Street in the Channelview section of Houston,
Texas, suddenly came alive that Thursday. night,
May 26, 1949. In the 5000 block, an orchestra
struck up a tune at the Spanish Inn, a popular dining
resort. Across the street a movie marquee burst into
colored flame, announcing the evening’s feature. Some
women strolled up and down with their children, and
two youngsters romped in the gutter.
Two sedans came speeding up the street, northward
from Beaumont Boulevard. They attracted no attention
until the sharp squeal of brakes split the night calm.
As heads turned quickly, it was seen that one of the
cars had been forced to the curb, near where the young-
sters were playing. A police car seemed to have done
the forcing.
Certainly, to the witnesses, the man who got out of
it appeared to be an officer. He promptly drew a gun
from a shoulder holster.
At the Spanish Inn, Harvey Reo and George Wash-
burn, guitarists in the orchestra, having finished playing
a set, went outside for a smoke.
They saw the episode of the two cars and began
watching the mounting drama tensely.
At first
involved in
and a young
ing with the
Suddenly
explosions,
the night st:
Reo and
arms. “Hey
Riveted
thrust the
havoc for
to the car
A large t:
aware of
him to pass
traffic lane a:
The two
rrr hmpete ES tee awe ee
ers se of S, .
(239 SOUTHWESTERN -2nd« 618)
I
EDWARDS, Albert, 39=yéar-old.white man, electrocuted Texas State Prison (Harris County) on
; October 9, 1951, . ti | Ba (ods
"Albert EDWARDS, 39, former taxicab driver, who was convicted of the mrder of Paul Walter
on May 26, 199, died in the electric chair at Huntsville ); minutes after midnight,
"Two Last minute attenpts to gain him a fourth reprieve failed = one in the court of crimi- ©
nal appeals at Autstin and the other to United States district court here,
"Even then Edwards! execution was late, Electrocutions at Huntsville are scheduled a few
minutes after midnight. The desperate last-minute legal maneuvers of his attorneys delayed
Edwards! execution for at least 30 minutes.
After he was strapped in the electric chair, Edwards made a ll-,inute farewell speech, It
is customary to permit a condemned man one last word but Edwards rambled from one subject bo
anothere |
"tall human beings are stupid,' he said at one point, 'They do not know what they are
doing.' His one reference to his conviction came at the end of his statement. ‘What I have
done has been done by others,!' he said.
"His last hope for a reprieve was ended at 11:11 PM when U, S. District Judge James V, All-
red, sitting in Houston, refused to approve a writgof habaes corpus, sought by Donald
Smallwood, San Antonio attorney, who based his plea on two alleged errors.
"Smallwood contended the death sentence pronounced by District Judge Frank Williford con=
tained a technical error and that the trial court permitted the erroneous introduction of
evidence as to the relations of the condemned man and a prostitute named in the trial,
"In reply to this contention, Judge Allred ruled that the question of this relationship had
been introduced by Edwards himself and that he saw no federal question involved and could
therefore assert no right to review the acts of a state court,
"The attorney's second point was that Edwards! constitutional rights had been denied through
the application of a capricious statelaw which required the testimony of a county or health
physician or of two other physicians in an affidavit of lunacy.
"Edwards! brother, A. Le Edwards, had presented an affidavitthat he observed his brother's
actions since the trial and concluded the man had become insane,
"But dudge Allred ruled the state law was reasonable in this respect and could not be upset
by a federal court judgment, His denial of the habeas corpus entered, he telephoned
Assistant Attorney General Willis Gresham, waiting at Huntsville by prearrangement, and
notified him,
"Spurgeon Bell and King Haynie, assistant district attorneys, represented the state at the
federal court hearing. .
"J, Douglas McGuire of San Antonio, law parbner of Smallwood, who joined Smallwood in a
futile plea before Judge Williford in Houston earlier Monday, appeared before the court of
criminal appeals in Austin at 8:35 PM to outline similar arguments seeing habaes corpus,
and was denied,
"Last week, two members of state board of pardons and paroles first decided to recommend a
fourth reprieve for Edwards, then changed their minds when the criminal appedlate court
indicated ih would grmt no further hearings in the Edwards' please
"Paul Walker, for whosedeath Edwards went to the chair, was slain by gunshot as he sat in a
car with Edwards! estranged wife, Betty Lou, She also was shot to death," CHRONICLE,
Houston, Texas, 10-9-1951 (1/5).
"The Court of Criminal Appeals was scheduled to meet in special session in Austin today to
decide whether Albert Edwards must keep his date with the electric chair in Hutsville a few
minutes after next Monday midnight, The high gourt will rule on a state motion to dismiss
a writ of habeas corpus granted late Wednesday in Groesbeck by District Judge Fountain Kir-
bYe
"Edwards, 88-year-old Houston warehouseman, convicted of fatally shooting Paul Walker on
WK McCarty Drive in 19,9, has had threeprevious stays of execution, Betty Lou Walker,
estranged wife of the accused slayer was also slain as she sat with Mr, walker, Edwards has
not been tried on the latter charge. ‘Several hours before he was scheduled to take his
last walk at midnight Sept. 29, Edwards was taken to the Limestone County jail after Judge
Kirby accepted the habeas corpus writ application filed by Attorney Theo Pat Henley of
San Antonio, Edwards was given a 10-day reprieve by Gov, Allan Shivers
"Friday two of the three members of the state board of pardons and paroles had agreed to
give Edwards a further stay of execution until Nov, 1, to give the Court of Criminal
Appeals time to rule on this case. The board, however, changed its mind after learning of
ee en
the special court session Saturday and held up the recommendation before the papers reached
Gov, Shivers,
Attorney Henley indicated to newsmen ha has not ‘used up all my resources! if
the appeal court dismisses the writ today." » CHRONICLE, Houston, 10-6-1991 (3/7) On. page
one of same edition, it states in bulletin that the court had dismissed the writ.
q
q
e “p> €
SO A The Dallax Morning News
Sunday, November 13, 1994
Only three women executed
in Texas, none this century
Continued from Page 41A.
Texas, W.P. Overton, 71, who'd come
to Dallas in 1844, recalled:
“The first legal hanging was in
1853. ... (She) was executed for
knocking a man in the head with an
ax at Cedar Springs. He had hired
her and she murdered him while he
was asleep. I can’t recall their
names.”
The case is recorded in a volume
of district court records preserved in
the Texas-Dallas History and Ar-
chives Division of the J. Erik Jons-
son Central Library.
The State of Texas vs. Jane, a
Slave is dated May 16, 1853:
“We the jury find the defendant
“Tt was in 1853 that the ©
first legal execution took
place in the county. This
was the hanging of Jane
Elkins, a slave who had
murdered a man named
Wisdom at Farmers
Branch.”
— Dallas Guide
and History, 1940
guilty of murder in the first degree.
We further find that the defendant is
a slave of the value of $700 and that
the owner of the defendant has done
nothing to evade or defeat the execu-
tion of the law upon said defendant.”
On May 17:
“And it being demanded of said
Jane if she had anything to say why
judgment and sentence of death
should not there be passed upon her
and the said Jane saying nothing
thereto:
“It is therefore ordered adjudged
and decreed by the court that the
sheriff of Dallas County keep the
said Jane in close confinement in the
common jail of Dallas County until
Friday the 27th of the present month
of May, and that ... between the
hours of 11 o'clock a.m. and 3 o'clock
p.m. the sheriff ... take said Jane
from the common jail of said county
and convey her to a gallows erected
for that purpose and there... hang
the said Jane by the neck until she is
dea ”
In a 1940 Dallas Guide and History
manuscript by the Texas Writers’
Project of the Works Projects Admin-
istration:
“It was in 1853 that the first legal
execution took place in the county.
This was the hanging of Jane Elkins,
a slave who had murdered a man
named Wisdom at Farmers Branch.
After a trial before Judge John H.
Reagan, most notable jurist of his
times, the woman was hanged May
27, 1853.”
(The WPA Guide quoted was later
published by the University of North
Texas Press. UNT recently issued A
Month of Sundays, a selection from a
decade of “Texana” pieces. One was
on Jane Elkins. Today’s column will
update the book.)
Five years after Jane Elkins was
hanged, another female slave was
legally executed on Galveston Island,
historian Block (East Texas Mill
Towns & Ghost Towns) told me. She
was known only as Lucy.
In 1857, he said, Lucy, age 39, was
living in Galveston’s ramshackle Co-
lumbia Hotel, run by her owner, Ma-
ria Dougherty.
“In December 1857, Lucy was pun-
ished for some minor infraction. In
retaliation, she set fire to the hotel.
The small blaze was quickly extin-
guished, but this time she was pun-
ished more severely. She swore ven-
geance,
“On Jan. 8, (1857) Lucy
was indicted for murder.
She went to trial four
days later... . Her plea
was ‘not guilty.’ But
evidence persuaded the
jurors to convict her.”
— W.T. Block, |
historian |
“On Jan. 3, 1858, Maria Dougherty |
disgppeared. Her body was soon
found, floating in an underground
brick cistern. Her head had been
crushed by blows from a club. Shown
the corpse, Lucy cried out, ‘Yes, |
Killed her and I would do it again.’
“On Jan. 8, Lucy was indicted for
murder. She went to trial four days
later before Judge Peter Gray, who
appointed a lawyer, Major R.H. How-
ard, to defend her. Her plea was ‘not
guilty.’ But evidence persuaded the
jurors to convict her.”
Before taking the scaffold on
March §5, 1858, she told a priest she'd
found religion. She expressed her
willingness to die and her hope for
forgiveness in the afterworld.
Sheriff JH. Westerlage triggered
the trap, swinging into eternity the
only woman ever hanged in Galves
ton County.
S
DALLAS MORNING
1-12-99
Sasa.
Routier trial
renews interest
in women’s fate
KERRVILLE —
All the news re-
ports say Dallas
County’s Darlie
Routier, accused
of murdering two
of her little sons,
is on trial for her
life.
Odds are over-
whelming that
she’s not.
Nearly 1,000 criminals have been exe-
cuted since Stephen Fuller Austin found-
ed his Anglo colony in Mexican Texas 175
years ago.
Just three were women.
Populating death row in Texas, at the
moment are 444 men. There are six con-
demned women. The men should live so
long. Five males — and no females — are
scheduled to die before May 15.
Texans haven't formally killed a wom-
an since the Civil War.
One may argue that Bonnie Parker was
executed with bandit Clyde Barrow by
Texas Ranger Frank Hamer'’s 1934 firing
squad. But that was in Louisiana. Besides,
Bonnie Parker was never convicted of a
crime. -
Until recent years, many Texas histori-
ans believed that only one woman was
legally executed in Texas, an error still
found in history books.
“Two female executions are counted in
The New Handbook of Texas, published
last year by the Texas State Historical
Association.
3 discovered
After sweatneck research, we've found
three — two black slaves and an old Te-
jana, By 1997 standards, they were luck-
less and near lawyerless.
_ Ms. Routier is more fortunate. Her
trial was moved from Dallas County to
Kerr County on a change-of-venue motion
by her first defense team; she’s since
hired a lawyer with winning ways, Doug
Mulder of Dallas.
In contrast, none of the hanged fe-
males was vigorously defended.
Slave Jane Elkins was launched into
eternity in 1853. Death awarded her two
distinctions. She was the first person
hanged by law in Dallas County and the
first woman legally hanged in Texas.
Like her sisters of the noose, she’s a
dim and distant figure. Four decades af-
ter Ms. Elkins hit the hemp, settler W.P.
Overton reported:
“The first legal hanging was in 1853.
(She) was executed for knocking a man
in the head with an ax at Cedar Springs.
He had hired her and she murdered him
while he was asleep. I can't recall their
names.”
Forget and forgive
Mr. Overton will be forgiven for for-
getting Jane Elkins and her victim, aman
named Wisdom. Almost everyone did.
- But the case, presided over by Judge
John H. Reagan, a leading jurist, is docu-
Please see WOMEN on Page 40A.
Women rarely met Texas’ noose
Continued from Page 39A.
mented in a volume of district court records
preserved in the Texas-Dallas History and Ar-
Chives Division of the J. Erik Jonsson Central
Library.
“We the jury find the defendant guilty of
murder in the first degree. We further find that
the defendant is a slave of the value of $700 and
that the owner of the defendant has done noth-
ing to evade or defeat the execution of the law
upon said defendant.”
And on May 17, 1853:
“It being demanded of said Jane if she had
anything to say why judgment and sentence of
death should not there be passed upon her and
the said Jane saying nothing thereto, it is decreed
by the court that the sheriff of Dallas County
keep the said Jane in close confinement in the
common jail of Dallas County until Friday the
27th of the present month of May, and that be-
tween the hours of 11 o’clock a.m. and 3 o’clock
p.m. the sheriff ... convey her to a gallows
erected for that purpose and there hang the said
Jane by the neck until she is dead.”
Five years after Jane Elkins was hanged, an-
other female slave — called “Lucy” — was legally
executed on Galveston Island.
Lucy, 39, lived in Galveston’s ramshackle Co-
lumbia Hotel, run by her owner, Maria Dougher-
ty.
Gulf Coast historian W.T. Block reported this
. case to me: “In December 1857, Lucy was pun-
ished for some minor infraction. In retaliation,
she set fire to the hotel. The small blaze was
quickly extinguished, but this time she was pun-
ished more severely. She swore vengeance.
“On Jan. 3, 1858, Maria Dougherty disappeared.
Her body was soon found, floating in an under-
ground brick cistern. Her head had been crushed
by blows from a club. Shown the corpse, Lucy
cried out, ‘Yes, I killed her and I would do it
again.’
“On Jan. 8, Lucy was indicted for murder. She
went to trial four days later before Judge Peter
Gray, who appointed a lawyer, Major R.H. How-
ard, to defend her. Her plea was ‘not guilty.’ But
evidence persuaded the jurors to convict her.”
Before taking the scaffold on March 5, 1858,
she told a priest she’d found religion. She ex-
pressed her willingness to die and her hope for
forgiveness in the afterworld.
The hanging of Chipita Rodriguez on Nov. 13,
1863, is notorious. Many accounts of her case have
been published, counting a book still in print
that blindly insists that she was the only woman
hanged in Texas.
I once read a long poem she inspired. But I've
never heard a note of the two operas said to sing
her tragedy. Truth to tell, no one knows much
about the old keeper of a flophouse in San Patri-
cio County. She was-convicted in the ax murder
of a horse trader named John Savage.
If it wasn’t a bum rap, it was a bum trial. I’ll
explain.
The sheriff who arrested the aged woman was
also the foreman of the grand jury that indicted
her. Apparently three members of that grand jury
later served on her trial jury.
Several grand jurors were employees of San
Patricio County. Others had lawsuits pending
before the trial judge. Four grand jurors and trial
jurors had been variously indicted for felonies.
Two indictments against the prosecutor were
dropped before the trial.
Injustice was swift. Two days after her indict-
ment, she was convicted. The next day, she was
sentenced to die 34 days later — on a Friday the
13th. While the prisoner sat in leg irons smoking
corn shuck cigarettes, her lawyer withdrew a
motion for a new trial. And the judge ignored the
jury’s recommendation of mercy for her.
Her ghost got a surprise 122 years later when a
vote by the 69th Texas Legislature absolved her
of the murder. To be sure, lawmakers were play-
ing politics. She may have been guilty as sin.
If Darlie Routier is sentenced to die by the
Kerr County jurors, she’s still a long reach from a
fatal needle. If appeals fail, there’s always the
governor. And Texas governors are pushovers
for women. Gov. Mark White, for example, signed
the bill exonerating Ms. Rodriguez.
More to the point is the case of Emma Oliver, a
San Antonio prostitute who was arrested four
times for murder, seven times for aggravated
assault and once for attempted murder.
Convicted of murder in 1947, she was released
from prison after serving 18 months. In the fol-
lowing year, she was arrested three times for
aggravated assault. In 1949, she was convicted of
murder with malice and sentenced to death for
killing a man in a fight over $3. One might say
she had a flair for the chair. But, hold on.
Emma Oliver was plucked from death row in
1951 by Gov. Alan Shivers and died from cancer
in prison a dozen years later.
<~ +p
Tt’ 7 Nn M
tt T KT] is,
Jane, black, hanged
Dallas, ‘Texas, May 27,
'nday, November 13, 1994
Women don’t
often meet the
executioner
a CHES — Some his.
y faq you that just one
7 “qj woman has been
ES legally executed in
\ ‘y Texas. But I say
' three
KEN Historian W.T.
BIFFLE’S Block of Neder-
TEXANA land in Jefferson
County upped my
count from two to three when I talked with
him the other day at the Freedonia Hotel
in Nacogdoches.
By all counts the cases were few. And
don't bet the rent that any of four women
now on death row will get the needle soon.
The state's 388 condemned men should
live so long. ,
Agreed, women aren’t society's big prob-
lem. Men are. But it's odd that the execu-
tioner so rarely meets a woman.
Out for blood
I was driving on Interstate 30 the day
Susan Smith of Union, S.C., confessed she ©
had slain her two toddlers. You should
have heard the enraged Texans calling
radio talk shows.
They sounded like a lynch mob. They
were volunteering to tie the noose, throw
the switch or put a needle in Mrs. Smith —
and the blunter the better.
Even KLIF'’s genial emcee Kevin Mc
Carthy, author of zany Gorilla Warfare and
Other Childhood Misconceptions, argued
for resumption of public executions.
Until they strap me on the gurney, I'll
probably favor the death penalty. But pub-
lic executions are an idea whose time has
come and gone. Pay-for-view, anyone?
It was all talk anyway. Just talk. Texans
haven't formally killed a woman in more
than a century. ;
I'm open to arguments that Bonnie
Parker, in a manner of was exe-
cuted with Clyde Barrow by Texas Ranger
Frank Hamer’s ambush in 1934 But she
was never convicted of anything. Besides,
that was in Louisiana.
155%
Taken from death row
‘’’ Even convicted killer Emma Oliver, a
San Antonio prostitute who'd been arrest-
ed four times for murder and once for
attempted murder, was plucked from death
row in 1951 by Gov. Alan Shivers. She died
of cancer in prison 12 years later.
Someone should have commuted Chip-
ita Rodriguez’s sentence. The Handbook of
Texas and other histories name her as the
only woman legally hanged in Texas.
>” Convicted of murdering a horse trader
in San Patricio County, she was launched
nto legend from a South Texas tree limb
on Nov. 13, 1863.
If it wasn't a bum rap, it was a bum trial.
The sheriff who arrested her also
served as foreman of the grand jury that
indicted her. And apparently three mem-
bers of that grand jury also served on her
trial jury.
: Several grand jurors were county em-
ployees. Others had lawsuits pending be-
fore the trial judge. Four grand jurors and
trial jurofs had faced felony indictments.
Two indictments against the prosecutor
were dropped before the trial.
If it wasn’t exactly justice, it was at least
swift.
Two days after her indictment, she was
convicted. The next day she was sentenced
to die 34 days later — on Friday the 13th.
Her lawyer withdrew a motion for a new
trial. And when the jurors recommended
mercy, the judge ignored them.
. | Adios, Chipita.
* In 1987, I learned of & woman legally
hanged by Texans in 1853, a decade before
the San Patricio case. A slave named just
plain Jane or Jane Elkins was executed in
| Dallas County.
: Forgotten outside Dallas County, Jane’s
a dim, distant figure. In an 1892 Memorial
' and Biographical History of Dallas County,
Please see ONLY on Page SOA.
.
CLA Ad
“ps 99
*
c7T
[Xx
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