Oldest man on Texas death row loses Supreme Court appeal
The oldest condemned man in Texas lost an appeal Tuesday before the U.S.
Jack Harry Smith, who turned 70 two days before Christmas, has been on
death row nearly 30 years for a fatal shooting during a $90 robbery of a
Houston store. Only 6 of the 371 prisoners awaiting execution in the state
have been on death row longer.
Justices, without comment Tuesday, refused to review his case. The
decision means Smith is likely to get an execution date if the high court
upholds the current lethal injection procedures now under Supreme Court
review. A decision in that Kentucky case, which has left executions in
Texas under a de facto hold, is expected before the court's current term
ends early this summer.
Smith last year lost an appeal before the 5th U.S. Circuit Court of
Appeals that challenged his 1978 conviction and death sentence. It was
that ruling the Supreme Court was asked to review
Among his claims was one that his trial lawyer failed to investigate
robbery-assault and theft convictions Smith had in 1955, plus another
robbery-assault conviction in 1959 that then earned Smith a life prison
term. He also had a prison escape attempt in 1963.
According to his appeal, the failure to investigate what Smith contended
were improper convictions in 1955 and 1963 prompted him to waive his right
to testify at his 1978 capital murder trial. If he had testified, jurors
would not have sentenced him to death, Smith's appeal contended.
The 5th Circuit disagreed, upholding a federal district judge's ruling in
2006 that also turned down his appeal.
Smith was paroled from his life sentence Jan. 8, 1977, after serving 17
years. One day short of a year later, on Jan. 7, 1978, Smith and an
accomplice were arrested the same day Roy A. Deputter was gunned down
while trying to stop a holdup at a Houston convenience store known as
The accomplice, Jerome Lee Hamilton, received a life sentence and
testified against Smith, who received a death sentence. Smith, a former
welder who completed only 6 years of school, arrived on death row Oct. 9,
1978. He's been there since.
The Supreme Court rejected an appeal from Smith in 1985, but little
happened in the case after that. Unlike procedures now in place, no time
deadlines forced appeals to move through the courts. Attorneys suggested
the trial judge, who died in 1997, wasn't inclined to move the case
The lawyer handling Smith's initial appeals died in 1999. The attorney now
handling his appeals, Ken McLean, did not immediately return a call
Tuesday from The Associated Press.
In an interview with the AP in 2001, Smith complained about the lack of
progress in his case.
"I feel that the system is waiting for me to pass away of old age," said
Smith, who has had health problems in prison, including cancer. "I'm angry
at the justice system, at the courts for wasting taxpayers' money for
giving me this hospitality."
He said he never was in the store where Deputter was killed.
A witness identified Smith as 1 of 2 gunmen 1 armed with a shotgun and
the other with a pistol.
Deputter, who lived behind the store and helped out the owner, walked in
on the holdup, pulled his own gun and exchanged shots with the robbers. He
was shot once in the heart and once in the head. Besides Hamilton, a
cashier at the store also testified against Smith at his trial.
Hamilton was paroled in February 2004. Smith said he'd been offered a life
sentence before his trial but refused to plead guilty to a crime he said
he didn't do.
(source: Associated Press)
After spending nearly 27 years buried in the vast Texas prison system for
a crime he did not commit, Charles Chatman's first weeks of freedom have
Each of the six rooms in his new apartment, including the bathroom, is
larger than any of his previous cells. The gleaming entertainment system
and sleek laptop from family, friends and attorneys might as well be
hollow props on a movie set, because Chatman, 47, has little idea how to
operate them testimony to more than a generation lost behind bars.
Chatman was exonerated last month by DNA testing while serving a 99-year
sentence for sexual assault. His release Jan. 3 marked the 15th such
exoneration in Dallas County during the past five years, the most of any
county in the nation. Aside from New York and Illinois, Dallas County also
has produced more exonerations than any state.
As DNA technology and investigations identify a mounting number of
wrongful convictions, the urgency to find others like Chatman is
increasing. From Virginia to California, local prosecutors, law students
and defense attorneys are combing through hundreds of thousands of old
files in search of flawed convictions.
Last week,2 men were cleared of separate murder convictions in Mississippi
after new DNA testing led authorities to another man now charged in both
slayings. It was the 1st time post-conviction DNA testing had led to an
exoneration in Mississippi, 1 of 8 states that does not have a law
allowing for such testing. Lawyers with the Innocence Project pushed the
state to move forward with the testing.
Since 1989, there have been 213 post-conviction DNA exonerations in the
USA. Of those, 149 came in the past seven years, according to the
Innocence Project, the parent organization of a far-flung network that
helps prisoners obtain DNA testing or other evidence that could prove
Among efforts to ferret out the wrongfully convicted:
In Virginia, officials are conducting a sweeping examination of more than
534,000 files, the largest such review in U.S. history. 3 years and 5
exonerations after the effort began, authorities have identified 2,215
more cases they say are worthy of scrutiny.
"If we identified (only) one guy who shouldn't be in prison, would it be
worth it? I say yes," says Pete Marone, who as director of the state's
Department of Forensic Science is helping to direct the review.
A team of attorneys and law students at California Western Law School,
part of the national Innocence Project network, fields up to 1,000 inmate
requests for help each year.
Jeff Chinn, assistant director of the Southern California Innocence
Project, says 5% to 10% of those requests are selected for further
investigation. Since the program began in 2000, 5 have been exonerated,
including Timothy Atkins, who was freed last year after serving 20 years
in prison for a wrongful murder conviction.
In Arizona, volunteer lawyers, law students and investigators have
screened more than 2,500 cases in the past decade and secured one
exoneration: Byron Lacy, freed in 2003 after serving six years for killing
a security guard and wounding another man. About 20 other prisoners have
won some kind of post-conviction relief, such as a shorter sentence.
In what may be the most aggressive move by a local prosecutor, Dallas
County District Attorney Craig Watkins has turned over more than 400 files
to law students working for the Innocence Project of Texas. The students
are reviewing decisions by previous administrations to reject requests for
Watkins, Dallas County's first African-American district attorney, says
opening the files may have been his easiest decision since being sworn in
last year, even in a state where politicians have a reputation for
supporting aggressive law-and-order policies.
"The reason I'm here is a result of what happened in the past," Watkins
says. He cites a tradition of aggressive prosecution in Dallas and routine
denials of prisoners' requests for post-conviction reviews, which he says
shrouded past errors. Those errors have emerged, Watkins says, largely
because the local forensics laboratory preserved the biological evidence
at issue in many of the recent challenges by prisoners.
For many places, a review of convictions such as that in Dallas County is
not possible because physical evidence has not been preserved. The lack of
uniform preservation standards is a big concern among advocates for
post-conviction challenges, says Peter Neufeld, co-founder of the
But for Watkins, the available evidence offered "an opportunity to restore
the credibility of this office."
Judge takes interest in case
In 17 years on the bench, Dallas Judge John Creuzot has heard countless
defendants declare their innocence. But Chatman's 2001 application for
post-conviction DNA testing was different.
"I noticed the guy had been inside for a long, long time," Creuzot says.
At the time, Chatman had served 20 years of his 99-year sentence for rape.
It is rare for a prisoner to pursue a challenge after so long behind bars.
Creuzot thought of boxer Rubin "Hurricane" Carter, freed after spending
about 20 years in prison for the slayings of three men in New Jersey.
Carter's case inspired the movie Hurricane.
"Maybe it was the movie," the judge says. "Something about (Chatman's
case) caught me."
Chatman had lived in the same neighborhood as the rape victim. He was
nearing the end of a 4-year term of probation for a 1978 burglary
conviction when she was attacked, and he was included in a police lineup
of possible suspects. The victim identified him as her attacker, and he
was convicted in 1981.
As Creuzot reviewed the file, the possible existence of untested DNA
evidence and the identification of Chatman in the lineup both among the
most common reasons for a wrongful conviction seemed to demand more
Months later, during Chatman's 1st appearance in Creuzot's courtroom, the
judge says something else struck him, and raised questions about Chatman's
guilt. "I can just remember his face when he said: 'I didn't do this. I
didn't do this,'" he says.
A first attempt at DNA testing of the assailant's biological sample by the
Texas Department of Public Safety did not produce a result, according to a
chronology of the case prepared by the district attorney's office.
Chatman feared that further testing also would prove inconclusive and
consume the biological sample and with it, any chance of exoneration.
Chatman and Michelle Moore, his attorney from the Innocence Project of
Texas, asked that additional analysis be suspended in 2004 until testing
Moore says Chatman showed remarkable judgment and patience in seeking
the delay. "How many people would have done that?" she asks.
The opportunity for more reliable testing came last December, when the
judge ordered a new analysis using a method known as YSTR testing at
Orchid Cellmark Inc., in nearby Farmers Branch, Texas. The new testing
allows for better identification of male DNA profiles in samples in which
female genetic material often is present, says Robert Giles, Orchid
Cellmark's executive director of research and development.
Before ordering the test, Creuzot brought Chatman back to his office to
see whether he wished to go forward, knowing that the new test if
inconclusive likely would leave no more material to analyze.
"I asked him, 'Are you sure? This is it.'"
"Yes," Chatman responded. "I didn't do this."
At 8:30 a.m. on Jan. 2, weeks before results were due, the phone rang in
Creuzot's office. Chatman's DNA was "not a match." Creuzot summoned an
anxious Chatman from the county jail, where he was staying temporarily
while awaiting the results.
"I knew what the test should say, but I still had that little doubt,"
Chatman says. "I had been a hard-luck guy for a long time."
When Chatman arrived, Creuzot stuck out his hand and said: "Man, Happy New
"He looked confused at first," the judge says. "I asked if he wanted to
call somebody; I handed him my phone. He had never used a cellphone
before, so I had to dial the number for him."
There was so much paperwork to process, Creuzot couldn't release Chatman
immediately, so he ordered a celebratory lunch.
"I asked what kind of steak he wanted; he didn't know what to say, except
to request that he wanted it 'cooked a lot,' " Creuzot says.
Chatman sat with the judge's 7-year-old son, Ethan, at a table in
Creuzot's locked courtroom. (Ethan, on a holiday break from school, had
accompanied his father to the office.) Chatman hadn't used a knife in
years and began tearing the meat with his hands.
Lunch was one small measure of the seismic change in Chatman's world a
change Creuzot made official that day. He called the prison to inform the
warden that Chatman was not coming back.
A 'logistical nightmare'
Creuzot was instrumental in securing Chatman's release, but not all of the
wrongfully convicted have found similar advocates.
Lack of funding for post-conviction analysis, including DNA testing and
expert testimony, has hamstrung prisoner-assistance campaigns. The
percentage of overturned cases is small, and the challenges are daunting.
Virginia's Marone calls the historic effort there to review thousands of
old cases a "logistical nightmare."
The broad review, ordered more than two years ago by then-governor Mark
Warner, was triggered in part by the discovery of blood and other
potential biological evidence attached to old case files, some dating to
1973. The evidence had never been disclosed. The state began reviewing all
of the files from 1973 to 1988, the time period at issue.
Because the files were not automated during that time, much of the project
has required a hand-search of the documents in a labor-intensive and
increasingly expensive examination. Marone says the analysis has cost
about $1.4 million, and money is running out.
Virginia and the cash-strapped Arizona Justice Project had hoped to win
some of the millions of dollars Congress set aside in 2006 to assist in
DNA testing. Late last year, USA TODAY disclosed that the Justice
Department had not distributed any of the money.
"That is wrong," Senate Judiciary Chairman Patrick Leahy said last month
at a hearing to address the issue. "That is irresponsible."
The Justice Department, which pledges to resolve the problem, had said
that rules imposed by Congress made it difficult for states to qualify.
For example, the law requires that states' attorneys general compel police
departments to preserve biological evidence for testing. However,
attorneys general don't always have authority over the operations of all
In Dallas County, much of the work to identify the wrongfully convicted is
falling to law students and volunteer lawyers. Crowded into a small jury
room in the Frank Crowley Courts Building, they leaf through thick case
files, some more than 3 decades old.
Many of the students, drawn from local law schools, get no formal credit
for the work. They work on all aspects of the cases, from re-interviewing
witnesses to ensuring that those who are freed have new clothing when they
Jessica Mines, 27, a second-year law student at Texas Wesleyan, says
seeing the release of a prisoner like Chatman is "priceless."
Considering a lawsuit
Since Chatman's release, he has traveled to Washington, where he was
welcomed at a Senate hearing and met briefly with Leahy, a vocal backer of
legislation to help free the wrongfully convicted.
Chatman is eligible for up to $50,000 per year from the state for each of
the 27 years of lost time. He is weighing a lawsuit over his incarceration
and will get the state money only if he decides not to sue.
His family and attorneys provide much of what he has the apartment,
furniture and a new pickup. He earned a general educational development
(GED) certificate in prison and is considering enrolling in college, or
pursuing a career as a welder or auto mechanic.
For now, the new truck mostly sits in a parking space because he fears
he'll lose his way if he strays too far from his sprawling apartment
complex. But there are plenty of other options for life outside his cell.
"I can just go take a bath," he says, "and lay in the tub any time I
(source: USA Today)