Allen Wayne Janecka was the hired killer in a plot to clear the way for one man to inherit an estate. He was paid a few thousand dollars, and the family involved lost four members between 1975 and 1979: Gertrude Duff-Smith Zabolio in 1975, and in July 1979 a Houston couple, John and Diana Wanstrath, with their 14-month-old son. The man who arranged the payments was Markham Duff-Smith, the adoptive son of the first victim and the adoptive brother of the second. The estate at stake was worth about $800,000.
A Harris County jury convicted Janecka of capital murder for the death of the Wanstraths' son. The first verdict, in April 1981, was reversed nine years later over a defect in the indictment. A second jury found him guilty on October 28, 1993, and sentenced him to death again. The Texas Court of Criminal Appeals affirmed in 1996, every later state and federal challenge failed, and Janecka was executed in Huntsville on July 24, 2003. He was 53 and had been on death row for 22 years. He was the 20th person executed by Texas that year and the second executed over the Wanstrath deaths.
Gertrude Duff-Smith Zabolio had adopted a son, Markham Duff-Smith, and a daughter, Diana, who married John Wanstrath. The money at the centre of the case came largely from Zabolio, and a large part of it passed to Diana when Zabolio died in 1975. By 1979 the Wanstrath estate was valued at about $800,000. John Wanstrath, 35, had moved his family from Vicksburg to Houston about a year earlier. Diana was 36. Their son was 14 months old.
Duff-Smith, the investigation later concluded, stood to gain from both deaths. He did not carry out either himself. He worked through intermediaries, and one of them was Walter Waldhauser Jr., the man who found Janecka.
Janecka was a repeat property offender. He had served sentences in the early and mid-1970s, with burglary convictions, a parole violation in 1974 and a further term in 1976. In the prosecution case against Duff-Smith, he was the person who carried out the 1975 killing of Zabolio for $10,000, which was paid through Waldhauser and a second go-between. Duff-Smith wanted her $190,000 estate settled sooner.
No charge against Janecka for that death is on record. His conviction rests on the Wanstrath case.
Janecka told police that Waldhauser paid him several thousand dollars for the Wanstrath killings and that he believed the money came from Duff-Smith. He also said he took part out of fear of Waldhauser, whom he described as having links to organized crime. The offense was dated July 5, 1979.
Johnny Bonds, a Houston homicide detective, did not accept the first official view of the deaths. He kept working the case for about eighteen months, and the persistence cost him his place in homicide. His inquiry led him to Duff-Smith and from Duff-Smith to Waldhauser, and from Waldhauser to Janecka.
In July 1980 Janecka moved to Georgia. Houston detectives followed the trail there that year. Janecka was arrested in Texas on warrants in other matters, and once he understood that police already held evidence tying him to the Wanstrath deaths, he gave three statements to officers within 24 hours. In them he described the killings and named Waldhauser as the man who paid him. The Harris County indictment was filed on December 11, 1980.
Waldhauser confessed in January 1981. Prosecutors needed his evidence against the other two men, and he was allowed to plead guilty to three counts of murder in the Wanstrath case for three concurrent 30-year terms. He never stood trial. A prosecutor of the time, Ted Poe, defended the arrangement as necessary given how weak the case was without him, while calling Waldhauser the most despicable of the three men involved. Waldhauser served about eight to nine years and was released in 1990.
Janecka was tried in Harris County in April 1981. The jury convicted him of capital murder under the provision of the Texas Penal Code that covers a killing committed for remuneration, and after affirmative answers to the special issues the court sentenced him to death. The Texas Court of Criminal Appeals affirmed that judgment in 1987.
The case did not end there. On rehearing, the court examined the indictment, which charged that Janecka killed for pay but did not name the person who had hired him. The court held that this was a defect of form, not of substance, and sent the case back for a hearing at which Janecka could show whether he had been harmed by it. That hearing took place on March 3, 1988, before a special master, and the trial court adopted its findings on March 11. On January 31, 1990, the Court of Criminal Appeals found harm. Without the name of the person who hired him, it held, Janecka had been limited in challenging a variance between charge and proof, in seeking a lesser verdict, and in building a mitigation case around Waldhauser's plea bargain. The conviction and sentence were reversed and a new trial was ordered. In 1992 the court overruled the State's motion for rehearing.
Duff-Smith's own case had moved on a separate track. He was convicted of the capital murder of his adoptive mother, Gertrude Duff-Smith Zabolio, and sentenced to death. The prosecution had also charged him over the Wanstrath deaths, but he was never tried for them, though testimony about them was heard at his trial. The Court of Criminal Appeals affirmed his conviction in Duff-Smith v. State, 685 S.W.2d 26, and the United States Supreme Court refused review in 1985. Execution dates in January 1986 and October 1987 were stayed while he pursued state and federal habeas corpus petitions, and both failed. He was executed in June 1993, a few months before Janecka's retrial.
Janecka's second trial ended on October 28, 1993, with a jury verdict of guilty of capital murder and a second death sentence. The only count on which he was convicted concerned the Wanstraths' son. At the punishment stage the jury also watched a filmed interview in which Janecka described the killings for a German documentary.
Because Duff-Smith had been executed before the retrial, he could not be called. Janecka's lawyers later argued that his absence violated the right to compulsory process. The Fifth Circuit rejected that claim, noting that Duff-Smith had refused to testify at a deposition and that Janecka had not shown that his evidence would have been material and favorable.
The Texas Court of Criminal Appeals affirmed the 1993 verdict and sentence in 1996 in Janecka v. State, 937 S.W.2d 456. The Supreme Court of the United States denied certiorari. A state habeas corpus application was denied by the trial court and by the Court of Criminal Appeals.
In federal court Janecka filed a petition under 28 U.S.C. section 2254. The district court denied all fourteen claims, refused an evidentiary hearing and denied a motion to alter the judgment. He then asked the Fifth Circuit for a certificate of appealability on four claims: a Fourth Amendment challenge to evidence admitted at trial, a due process claim about a change in a Texas evidence rule, the compulsory process claim, and a challenge to victim-impact testimony at the punishment stage. On August 1, 2002, a Fifth Circuit panel of Judges Jones, Smith and Emilio M. Garza denied the certificate on every claim. It held that the Fourth Amendment issue was barred by Stone v. Powell because he had had a full and fair chance to litigate it in state court, and that the victim-impact testimony, even if improper, was harmless given the strength of the evidence.
On July 15, 2003, nine days before the scheduled date, the Court of Criminal Appeals dismissed a further state application as an abuse of the writ.
Janecka was executed in Huntsville on July 24, 2003. He was 53. Texas described the case as the 20th execution in the state that year.
Texas law defines capital murder to include a killing committed for remuneration or the promise of remuneration, and it covers the person who employs another to commit the killing as well as the one who is paid. Section 19.03(a)(3) of the Penal Code was the basis of both Janecka's indictment and the reversal of his first conviction: because the offense turns on a paid arrangement, the Court of Criminal Appeals held in 1990 that the name of the person who paid was material to the defense. A defendant who is charged with such an offense faces a jury that must answer the special issues under Article 37.071 before a death sentence can be imposed, and both of Janecka's sentences followed that procedure.
Janecka was not convicted of the 1975 death of Gertrude Duff-Smith Zabolio, and no charge against him for it is on record. His conviction covers only the Wanstraths' son, although he admitted the deaths of the child's parents and the middleman pleaded guilty to three counts of murder.
Janecka said he took part out of fear of Waldhauser's alleged links to organized crime. That claim was his own and was not a finding of any court.
October 15, 1975: Gertrude Duff-Smith Zabolio dies in Harris County; the prosecution later attributes the killing to Janecka on a $10,000 payment arranged by Duff-Smith.
July 5, 1979: John Wanstrath, Diana Wanstrath and their son die in Houston.
July 1980: Janecka moves to Georgia.
Late 1980: Janecka is arrested in Texas on other warrants and gives statements to Houston police.
December 11, 1980: Indictment filed in Harris County.
January 1981: Waldhauser confesses and later pleads guilty to three counts of murder; 30-year terms.
April 1981: Janecka is convicted of capital murder and sentenced to death.
1987: The Court of Criminal Appeals affirms; the court then orders a hearing on the indictment defect.
March 1988: Hearing before a special master.
January 31, 1990: Conviction and sentence reversed; new trial ordered.
1992: State's motion for rehearing overruled.
June 1993: Duff-Smith executed.
October 28, 1993: Second jury convicts Janecka of capital murder and sentences him to death.
1996: The Court of Criminal Appeals affirms.
August 1, 2002: Fifth Circuit denies a certificate of appealability.
July 15, 2003: Further state application dismissed.
July 24, 2003: Janecka executed in Huntsville.