General Counsel Memo to President Elect George Bush Hid the Fact that the Accused Sought DNA Tests That Could Have Spared Him from Execution
Contact: Paul Cates, (212) 364-5346
pcates [at] innocenceproject.org
(Houston – November 12, 2010) The Innocence Project today released DNA test results proving that crucial hair evidence found at the scene of a murder, the only physical evidence linking the accused Claude Jones to the crime, did not belong to Jones. Although he always maintained his innocence, Jones was executed for murdering Allen Hilzendager on December 7, 2000. George Bush, who was awaiting a decision from the Florida Supreme Court on whether the presidential election recount would continue, denied Jones’ request for a 30 day stay of execution to do DNA test on the hair sample. The memo from the General Counsel’s office that recommended against the stay did not tell Bush that Jones was seeking a DNA test of the hair. Evidence that the hair “matched” Jones was critical to the prosecution’s case at trial and proved to be the key factor in a narrow 3-2 decision by the Texas Court of Appeals finding there was sufficient corroboration of the accomplice who testified against Jones to uphold the murder conviction.
“I have no doubt that if President Bush had known about the request to do a DNA test of the hair he would have would have issued a 30-day stay in this case and Jones would not have been executed,” said Barry C. Scheck, Co-Founder and Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
Scheck noted that Bush had issued a stay for DNA testing just months earlier in another capital case and said at the time, “Any time DNA evidence can be used in its context and can be relevant as to the guilt or innocence of a person on death row, we need to use it.”
“It is unbelievable that the lawyers in the General Counsel’s office failed to inform the governor that Jones was seeking DNA testing on evidence that was so pivotal to the case,” said former Texas Governor and Attorney General Mark White. “If the state is going to continue to use the death penalty, it must figure out a way to build safeguards in the system so that lapses like this don’t happen again.”
In November 1989, Hilzendager was shot to death while working at a liquor store in San Jacinto County, Texas. Jones was arrested for the crime with two co-defendants, Timothy Mark Jordan and Kerry Dixon. A father and his 14-year-old daughter who were working on a car across the street were the only witnesses to the crime, and neither were able identify the perpetrators. At trial and later on appeal, the key evidence against Jones was a small hair sample that was found on the counter near the victim’s body. A chemist for the state, Stephen Robertson, initially concluded that the sample was not “suitable” for microscopic comparison because it was too small, but by the time he testified at trial, Robertson swore the microscopic characteristics of the hair on the counter “matched” hair from Jones and could not have come from Dixon, the victim, or the 12 other people who frequented the store. When asked in a separate civil lawsuit why he changed his mind and decided that he could analyze the sample, Robertson said he didn’t know. Subsequently, an independent hair analysis expert examined the sample and concluded that Robertson’s first assessment was correct — the hair was in fact too small for proper analysis.
Download the hair analyst’s report
A report released in 2009 by the National Academy of Sciences (NAS) raises serious questions about the reliability of microscopic hair analysis. According to the report, “No scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population. There appears to be no uniform standards on the number of features on which hairs must agree before an examiner may declare a ‘match.'” Nearly one in five wrongful convictions overturned through DNA testing involved faulty hair analysis.
“The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong,” added Scheck. “This is yet another disturbing example of a miscarriage of justice in Texas capital murder prosecutions. Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”
The only other evidence linking Jones to the crime was the testimony of co-defendant Jordan. Under Texas law, the testimony of an accomplice alone is insufficient to prove guilt. At trial, Jordan testified that Jones confessed to him that he had committed the murder. This however differed from his grand jury testimony where he testified that Dixon told him that Jones was the one who shot Hilzendager. Jordan later signed
saying that Jones didn’t confess to him but that he was pressured to say so by the police who threatened him with the death penalty. In exchange for his testimony, Jordan was allowed to plead to a lesser charge and received a 10 year sentence. Dixon was convicted of aggravated robbery in connection with the murder and is serving a life sentence.
“The DNA results released today may not prove that Jones was innocent, but they do raise serious questions about whether the prosecution’s case was strong enough to present to a jury and the decision to seek the death penalty in the first place,” said Governor White. “No matter what your opinion of the death penalty, I hope we can all agree that it should only be used when the state is absolutely sure that the right person has been convicted.”
The hair evidence that was discredited today also played a decisive role in Jones’ appeal. In December 1994, a divided Texas Court of Criminal Appeals upheld Jones’ conviction and death sentence in a 3-2 decision. The two dissenting judges argued that hair evidence was insufficient to connect Jones to the crime. The majority relies on the hair as the key physical evidence proving Jones’ guilt.
Download the decision
Having exhausted his right to appeal, Jones sought a 30-day stay of execution from then-Governor George Bush to do DNA testing on the hair sample. Bush denied the stay while he was waiting for the decision from the U.S. Supreme Court that would eventually declare him the winner of the 2000 presidential election. The memo prepared by the General Counsel’s office failed to inform the former governor that Jones was even seeking DNA testing.
Download the General Counsel’s memo
After the San Jacinto County District Attorney’s office refused to give the Innocence Project permission to do testing on the evidence, the Innocence Project, the Texas Observer, the Innocence Project of Texas and the Texas Innocence Network brought a successful lawsuit to do the testing that proved the hair did not belong to Jones.
“My father never claimed to be a saint, but he always maintained that he didn’t commit this murder,” said Duane Jones, the son of Claude Jones who only got to know Jones as his father while on death row. “Knowing that these DNA results support his innocence means so much to me, my son in the military and the rest of my family. I hope these results will serve as a wakeup call to everyone that serious problems exist in the criminal justice system that must be fixed if our society is to continue using the death penalty. We must be careful that all aspects of our law enforcement and court systems are always driven by justice, truth and logic – not vengeance, emotion or politics.”
The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network are represented by Mayer Brown LLP in Houston and New York. Additional information about the case including a timeline, court documents and the DNA testing report is available on
our Jones resource page