Claude Howard Jones was executed in Huntsville, Texas, on December 7, 2000, for the capital murder of Allen Hilzendager, who died in Point Blank, a small community in San Jacinto County north of Houston, on November 14, 1989. Jones was 60. A San Jacinto County jury had convicted him in August 1990 and sentenced him to death, and in the decade that followed seven state and federal courts reviewed the case without halting the execution. He was the 40th person executed in Texas that year, a record for the state, and the last of the 152 executions carried out while George W. Bush was governor.
He came to that trial with a long record, including a Kansas conviction for the murder of a fellow inmate, for which he had been sentenced to life. The Texas case against him rested on two supports: the testimony of an accomplice, and a single hair that the state's expert told the jury was his. Texas law does not allow a conviction on an accomplice's word alone, and the hair was the corroboration. In 2004 the accomplice recanted. In November 2010, almost ten years after the execution, testing ordered by a Texas court showed that the hair was not Jones's. It was the victim's.
The result named no one else, and it did not establish that Jones was innocent, a point the lawyers who fought for the testing made themselves. What it took away was the only physical evidence that had connected him to the killing. The victim's family never accepted that it changed anything. The conviction was never set aside.
Jones was born in Houston in 1940. His record began before he was out of his teens. He was first convicted of robbery and sent to prison in 1959, and before he turned 20 he was serving a nine-year term for burglary, theft and robbery by assault. Over the next three decades he was arrested many times and served three prison terms, in Texas and in Kansas, for robbery, assault, burglary and theft.
In Kansas a court sentenced him to 21 years. While he was serving that sentence he was convicted of the murder of a fellow inmate, and he was sentenced to life. Despite the life term, Jones had been released on parole by 1984. By the autumn of 1989 he was on parole in Texas.
No one who later spoke for him pretended that he was blameless. "He was no poster boy, Claude," said Jerald Crow, the lawyer who defended him at his capital trial. His son said that over the years his father had admitted other crimes. What Jones denied, from his arrest to his execution, was the killing of Allen Hilzendager.
Allen Hilzendager was 44 years old. He was known in Point Blank, a community near Lake Livingston in San Jacinto County, and he died there on November 14, 1989.
He left a brother and a sister. They followed the case through the trial, the appeals, the execution and the long dispute that came after it, and their view of it never moved. In August 2010, while the court-ordered testing was still pending, his brother, then 73, said: "There's no doubt in my mind he did it." After the results were announced that November he said again, "I still think he was guilty," and added, "I think they executed the right man." The family regarded the results as irrelevant to the question of who was responsible for his death.
The case moved quickly. Within days, still in November 1989, two men, Timothy Jordan and Kerry Dixon, were arrested after eyewitness accounts led investigators to Dixon. Jones was arrested in Florida in early December 1989 and returned to Texas. All three were charged with capital murder.
The identification evidence against Jones was thin from the start. Two eyewitnesses had seen a man that day, but neither could positively identify him, and their descriptions of him varied. The case against Jones would come to depend on what Jordan was prepared to say and on one hair.
Jordan made a bargain with the state. In exchange for his testimony, the capital murder charge and a separate robbery charge against him were resolved by a plea to a lesser offense and a ten-year term. Dixon was convicted of capital murder and sentenced to 60 years.
Jones went on trial in San Jacinto County in August 1990. Jordan was the state's central witness. He told the jury that Jones had confessed to him, and he identified Jones as the man responsible for the killing. That was not what he had told a grand jury earlier. Before the grand jury, Jordan had said that it was Dixon who told him Jones did it. Between the two proceedings a secondhand account had become a firsthand confession.
Under Texas law that testimony could not carry a conviction by itself. An accomplice's account must be corroborated by other evidence that tends to connect the defendant to the offense. In the Jones case the corroboration was a single hair recovered by investigators. Stephen Robertson, an analyst with the Texas Department of Public Safety, testified that the hair matched Jones and did not match Dixon, the victim or a dozen other people whose hair was compared. He also told the jury: "Technology has not advanced where we can tell you that this hair came from that person."
The prosecution put Jones's record squarely before the jury. Bill Burnett, a district attorney in the case, called him "a pretty cold individual." The jury convicted Jones of capital murder quickly, and in August 1990 he was sentenced to death.
On December 14, 1994, the Texas Court of Criminal Appeals affirmed the conviction and the death sentence. The court was divided. The majority described the hair as "critical physical evidence" that corroborated the accomplice. The dissenting judges found the evidence insufficient to support the conviction.
One of the judges on that court, Charles Baird, later said that the state had relied too heavily on the accomplice. Years afterward he put his doubt more directly: "I was always afraid this was an innocent guy on death row."
Federal review followed. Jones petitioned for a writ of habeas corpus in the U.S. District Court for the Southern District of Texas,. The district court granted summary judgment to the director of the state prison system and denied the petition, but it granted a certificate of appealability, which allowed Jones to take the case to the U.S. Court of Appeals for the Fifth Circuit.
A panel of that court, Judges Higginbotham, Smith and Benavides, decided the appeal in an unpublished per curiam opinion in March 2000. It vacated a stay of execution and affirmed the denial of relief. The panel took up three claims. Jones argued that his jury had been given a definition of reasonable doubt that Texas applied to his case retroactively; the court held that the claim "presents no question of constitutional magnitude." He argued that the state's expert had been permitted to give an opinion on the ultimate issue in the case; the court found no error of constitutional magnitude there either. And he argued that the evidence was insufficient to convict him; the court held it sufficient, pointing to the identification evidence and the statements in the record.
In October 2000 the U.S. Supreme Court rejected his appeals. By then seven state and federal courts had reviewed the case. None had stopped the execution.
On December 6, 2000, the day before the execution date, Jones's lawyers asked for a stay so that the hair could be examined with a newer kind of testing, one that had become available shortly after the 1990 trial. The state district court, through Judge Elizabeth Coker, refused, and so did the Court of Criminal Appeals.
On December 7 Jones asked Governor Bush for a 30-day reprieve to allow the testing. The governor's general counsel prepared a memo on the case, dated that day, which recommended against relief and did not mention the request for testing. Bush denied the reprieve. That same day he was waiting for the Florida Supreme Court to rule in the dispute over the presidential recount.
Bush had said earlier that such testing should be used "when it can be relevant as to the guilt or innocence of a person on death row," and in another capital case he had granted a reprieve for that purpose. In the Jones case there was no reprieve. Jones was executed in Huntsville on December 7, 2000. He maintained to the end that he had not killed Allen Hilzendager.
In May 2004 Jordan signed an affidavit that withdrew the heart of his trial testimony. He swore that Jones had never confessed to him, that what he had told the jury came from Dixon, and that he had testified as he did to earn a reduced sentence. "I testified to what they told me to say," he said.
The affidavit could no longer help Jones. What it did was leave the hair as the one remaining corroboration of a conviction whose principal witness had disowned his own account.
The hair had survived by accident. A court had ordered the evidence in the case destroyed, but the order was never carried out, and the hair stayed in the San Jacinto County courthouse.
In August 2007 the Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network, represented by the law firm Mayer Brown, asked San Jacinto County to consent to testing it. The county refused, and they went to court. On September 10, 2007, a state district judge ordered the county not to destroy the hair while the lawsuit was pending.
The county treated the matter as closed. Bill Burnett, by then the district attorney, said in a deposition: "Once the defendant has been executed, I can do nothing more in the case." For nearly three years the suit worked its way through the state district court.
On June 11, 2010, Judge Paul Murphy granted summary judgment and ordered the hair released for testing. The Innocence Project called it the first time a Texas court had ordered testing of evidence after a defendant's execution. Jerald Crow, the trial lawyer, said that August: "The law is the law, and they need to follow it."
In November 2010 the results were made public. The hair was not Jones's. It was the victim's.
Barry Scheck of the Innocence Project said the results showed that the hair testimony on which the whole case rested had simply been wrong. He was careful about what they did not show. "We can't say this proves Claude Jones was definitely innocent," he said. "All it proves is that he never should have been convicted or executed." The results did not point to anyone else. Scheck's argument was a legal one: without the hair, he said, the evidence would not have been enough under Texas law to convict.
He also returned to the day of the execution. He called it "absolutely outrageous" that no one had told Bush in 2000 that Jones was asking for testing, and said he was convinced "to a moral certainty" that the governor would have granted a 30-day reprieve had he known.
Jones's son said: "My father never claimed to be a saint, but he always maintained that he didn't commit this murder." Mark White, a former governor of Texas, said the death penalty "should only be used when the state is absolutely sure that the right person has been convicted."
The victim's brother, as he had said before, still believed that the state had executed the right man.
The finding of 2010 did not reopen the case in any court. No later ruling, pardon or exoneration has been reported, and Jones stands in the state's record as a man executed for capital murder.
The case did enter a wider reckoning. In August 2013 the Texas Forensic Science Commission announced a review of convictions that had relied on hair comparison testimony, and the Innocence Project named the Jones case as an example of what was at stake. One of the commissioners, Arthur J. Eisenberg, said of the review: "We have a moral responsibility to find out."
Two features of Texas law and practice shaped the Jones case. The first was the accomplice-witness rule. A Texas jury cannot convict on the testimony of an accomplice unless other evidence tends to connect the defendant to the offense. In San Jacinto County in 1990 the state's chief witness was a man charged in the same killing who had been offered a lighter sentence in return for his testimony. Once the hair was set aside, the courts' own description of it as "critical physical evidence" explains why the case was seen as having lost its footing.
The second was the pace of executions. Jones was the 40th person executed in Texas in 2000, breaking the previous state record of 37, set in 1997, and he was the 239th person executed in Texas since 1982. Bush, who was then contesting the presidential election, left the governor's office in January 2001; Jones was the 152nd and last execution of his tenure.
The testing that later settled the question of the hair was not available when Jones was tried. It became available shortly after the 1990 trial, and his lawyers asked for it only on the eve of the execution. The 2007 lawsuit depended on a destruction order that had never been carried out, and the 2010 order was described at the time as the first of its kind in Texas.
The central dispute is whether the state proved that Jones was responsible for the death of Allen Hilzendager. The jury, the Court of Criminal Appeals majority and the federal courts found that it had. Against that finding stand the doubts of the dissenting judges in 1994, Jordan's recantation in 2004 and the 2010 result, which showed that the one hair offered at trial as corroboration was not Jones's but the victim's.
The 2010 result does not prove that Jones was innocent, and none of those who sought it claimed that it did. It identifies no other person. Its legal significance, as the lawyers who sought it argued, is that without the hair the conviction would have rested on accomplice testimony that Texas law does not allow to stand alone, testimony the accomplice later withdrew.
Jordan's own credibility is disputed in both directions. His trial account conflicted with his grand jury testimony, and his 2004 affidavit contradicted his trial account. Each version was given at a time when he had a reason to give it. Jordan was never convicted of the killing; his charges were resolved by a plea to a lesser offense.
Whether Bush would have granted a reprieve had his staff told him of the request for testing cannot be settled. Scheck believed he would have. The memo that reached the governor did not mention the request.
The victim's family remained convinced of Jones's guilt after the 2010 result. The prosecution's case, as presented in 1990 and upheld on appeal, has never been withdrawn by the state.
1940: Claude Howard Jones is born in Houston, Texas.
1959: First robbery conviction and prison term.
Before 1984: Sentenced to 21 years in Kansas; while serving it, convicted of the murder of a fellow inmate and sentenced to life.
By 1984: Released on parole despite the life term.
November 14, 1989: Allen Hilzendager, 44, dies in Point Blank, San Jacinto County, Texas.
November 1989: Timothy Jordan and Kerry Dixon are arrested.
Early December 1989: Jones is arrested in Florida and returned to Texas; all three men are charged with capital murder.
August 1990: A San Jacinto County jury convicts Jones of capital murder; he is sentenced to death.
December 14, 1994: The Texas Court of Criminal Appeals, divided, affirms the conviction and sentence.
March 2000: The Fifth Circuit affirms the denial of federal habeas relief and vacates a stay of execution.
October 2000: The U.S. Supreme Court rejects his appeals.
December 6, 2000: State courts deny a stay for testing of the hair.
December 7, 2000: Governor George W. Bush denies a 30-day reprieve; Jones is executed in Huntsville, the 40th execution in Texas that year.
May 2004: Jordan signs an affidavit recanting his trial testimony.
August 2007: The Texas Observer and innocence organizations ask San Jacinto County to allow testing of the hair; the county refuses and they sue.
September 10, 2007: A state district judge orders the county not to destroy the hair.
June 11, 2010: Judge Paul Murphy orders the hair released for testing.
November 11, 2010: Results showing the hair was the victim's, not Jones's, are made public.
August 2013: The Texas Forensic Science Commission announces a review of convictions based on hair comparison testimony.