Transcribed by Christi Punteney
The grand jury testimony of Henry Lee Lucas at El Paso County, transcribed verbatim from the official record. Pages 1871 to 2094.
THE STATE OF TEXAS )
)
VS. ) Cause No. 43314-120
)
HENRY LEE LUCAS )
heard on
SEPTEMBER 30, 1986
Page 1871
MERYL WERSINGER, OFFICIAL COURT REPORTER
EL PASO, TEXAS 79901 (915) 546-2190
For the State WILLIAM MOODY
First Assistant District Attorney
City-county Building
El Paso, TX 79901
RICHARD JEWKES
Assistant District Attorney
City-county Building
El Paso, TX 79901
CAROL PENNOCK
Assistant District Attorney
City-county Building
El Paso, TX 79901
For the Defendant: ROD PONTON
Attorney at Law
Suite 505
Caples Building
El Paso, TX, 79901
DORIS SIPES
Attorney at Law
1011 North Mesa
El Paso, TX 79901
For Hugh
Aynesworth: JACKSON, WALKER, WINSTEAD,
CANTWELL & MILLER
6000 Interfirst Plaza
901 Main Street
Dallas, TX 75202
BY: CHARLES L. BABCOCK
WITNESSES PAGE
HENRY LEE LUCAS
Cross-examination by Mr. Moody 1877
Voir Dire Examination by Mr. Ponton 1918
Continued Cross-Examination by Mr. Moody 1920
Continued Cross-Examination by Mr. Moody 1978
Page 1873
MERYL WERSINGER, OFFICIAL COURT REPORTER
EL PASO, TEXAS 79901 (915) 546-2190
WITNESSES PAGE
HENRY LEE LUCAS
Cross-examination by Mr. Moody 1877
Voir Dire Examination by Mr. Ponton 1918
Continued Cross-Examination by Mr. Moody 1920
Continued Cross-Examination by Mr. Moody 1978
Page 1874
MERYL WERSINGER, OFFICIAL COURT REPORTER
EL PASO, TEXAS 79901 (915) 546-2190
EXHIBIT DESCRIPTION MARKED IDENTIFIED OFFERED REC’D
S-21 Photo 1998 1998
Page 1875
MERYL WERSINGER, OFFICIAL COURT REPORTER
EL PASO, TEXAS 79901 (915) 546-2190
THE STATE OF TEXAS )
)
VS. ) CAUSE NO. 43314-120
)
HENRY LEE LUCAS )
BE IT REMEMBERED that on the 30th day of September, 1986, beginning at 9:15 a.m., came on to be heard the continuation of pretrial motions in the above styled and numbered cause, before the HONORABLE BRUNSON MOORE, Judge Presiding in and for the 120th Judicial District Court, and that the same was reported by Meryl Wersinger, Certified Shorthand Reporter and Notary Public in and for the County Court at Law Number Four, El Paso County, Texas, and that the following proceedings were had as follows, to-wit:
MERYL WERSINGER, OFFICIAL COURT REPORTER
EL PASO, TEXAS 79901 (915) 546-2190
THE COURT: Mr. Lucas, please take the witness chair, sir.
Mr. moody is going to begin his cross-examination of Mr. Lucas at this time.
CROSS-EXAMINATION
BY MR. MOODY:
Q. Mr. Lucas, I’d like to go back to the 25th of October, 1984, with you for a few minutes. That was the date in which you testified before the grand jury. Do you remember that?
A. Yes, sir.
Q. How long had you been in El Paso prior to going before the grand jury?
A. I had been there all day.
Q. Just that - - on the day of the 25th. Had you also been here on the day of the 24th?
A. 24th, yes.
Q. How about the day of the 23rd?
A. Part of it.
Q. Part of that day, too. Did you arrive late at night or how did you arrive?
A. Well, I came in late in the evening and stayed all night.
Q. So you arrived late evening on the 23rd. Did you do any work or work with any police officers on that 23rd day at all or did you just get booked into the jail or put in the jail?
A. More or less just booked in.
Q. And it wasn’t until - - The only two days you worked on it were the 24th and 25th?
A. Yes, sir.
Q. What did you actually do on the 24th, as best as you can remember?
A. More or less drove around. That’s about it.
Q. Did you interview with the police down here at the police department in the crimes against persons office first or did you just go out to a bunch of crime scenes?
A. No, I interviewed, talked to people.
Q. Do you recall what you interviewed about, which cases?
A. Not particularly, no.
Q. At that time, you did not talk any more about the Librada Apodaca case, did you?
A. Some, yes.
Q. Who did you talk to about the Librada Apodaca case, then, on the 24th of October?
A. That would have been Perez and Mr. Apodaca and the other deputy, but I don’t remember his name.
Q. Has he been someone that has already testified here?
A. Yes.
Q. Was that Mr. Uribe, Ed Uribe?
A. Uribe, yeah.
Q. Those were the three that you talked to. Do you recall - - What did you tell them on the 24th?
A. I don’t know. We went over the confession, but I don’t remember what it was about.
Q. Was it a confession about the Librada Apodaca case or another case?
A. No, it was about the Apodaca Case.
Q. How long do you think you spent talking about the Apodaca case here in El Paso on the 24th of October?
A. I wouldn’t be able to give you an exact time. Approximately an hour, hour and a half, I guess.
Q. Do you remember if they - - Do you remember at that time if they talked to you about a crockpot and finding that evidence?
A. I already knew about that in Georgetown - - or Williamson County.
Q. How did you know about that?
A. Prince told me.
Q. What did Prince tell you?
A. He told me they had a crockpot and some other stuff that they had gotten.
Q. Do you recall anything in particular that either Detective Perez, Detective Uribe or Sergeant Apodaca talked to you about on the 25th day of October 198 - - Pardon me - - 24th day of October, 1984, about the Apodaca case?
A. We talked about a car and - -
Q. What about the car?
A. About the car I was driving.
Q. The car you were driving. What did they want to know?
A. They wanted to know what kind of car it was, the year of it, where it was at.
Q. Did they - - Were you talking to them voluntarily that day?
A. I wouldn’t call it voluntary because I didn’t want to come out here.
Q. You didn’t? Why didn’t you want to come out here?
A. Because I didn’t want no part of El Paso.
Q. Why didn’t you want no part of El Paso?
A. Due to arguments and things of that nature, I just didn’t want to.
Q. What kind of arguments?
A. Concerning myself. I didn’t want to come out here to confess to crimes and stuff.
Q. You were very reluctant to be here. Is that what you’re trying to tell the court?
A. Yes.
Q. You didn’t want to come out here and confess to a crime you did not commit. Is that what you’re trying to tell the Judge?
A. I just didn’t want to come out here, period.
Q. It wasn’t that you didn’t like our food, didn’t like the way we treated you?
A. That had nothing to do with it.
Q. In El Paso when you were in the jail here, you weren’t treated like you were in some other places, were you?
A. I used to be.
Q. Used to be. Did they let you have the run of the kitchen in the El Paso County jail?
A. No, but I got what food I wanted. I didn’t eat in El Paso County jail.
Q. You didn’t have any problems with sleeping in the El Paso County jail?
A. No.
Q. They wanted to know about the car. What else did they want to know about?
A. Well, I changed my statement at that time. They rewrote it, the statement.
Q. What statement did they rewrite?
A. From the original statement, I gave them two another statement.
Q. In regards to Librada Apodaca?
A. Yes.
Q. You say now that you - - that there is a written confession that you signed?
A. The original statement was typed out. They brought it to me, but I hadn’t signed it.
Q. The original statement in the Apodaca case?
A. Yes.
Q. You’re sure it wasn’t in the other case, the Sima Warren case?
A. No, it wasn’t.
Q. There is a written confession signed by you in the Sima Warren case?
A. True.
Q. You’re aware of that. But that is not the one you’re speaking of?
A. No, sir.
Q. So you’re saying that there is a written statement?
A. Yes, sir.
Q. Was this written statement taken that day?
A. It was taken the first day I was out here.
Q. The 24th of October?
A. Yes, sir. The 23rd, I think, 24th, something like that.
Q. That was after they already had the videotape?
A. No, this was - - or September. I’m sorry. It was the September confession they had rewritten so that I could sign it.
Q. So now - - Wait a minute. So I understand this, when you were out here in September - -
A. Yeah, I had gave a statement.
Q. You have given a statement in writing?
A. No, it was in tape.
Q. Videotape?
A. No, on audiotape.
Q. Well, audiotape. You mean tape recorded?
A. Yes.
Q. Okay. And what was that all about?
A. That’s the day he took me out to the scene of the crime.
Q. And they wanted you to, what, change the audiotape or what?
A. After I came back to - - I had left and then come back, I when they changed it.
Q. How did they change it?
A. They had rewritten it and asked me to sign it.
Q. In other word, they took an audiotape and they, what, they transcribed it or how did they - - how could they - -
A. I don’t know how they did it. They just - - They had it typed out on paper.
Q. How long was it?
A. Two pages, I think, something like that.
Q. Two-page statement. And did it have your rights on it?
A. I guess, I don’t know. I didn’t pay that much attention to it.
Q. Did you even read it?
A. No.
Q. You don’t know what it said?
A. No.
Q. And you just signed it?
A. I just signed it.
Q. But apparently that document was maybe set up by the El Paso Police Department to, I assume, frame you in this case?
A. I can’t say that.
Q. It would have all the really correct details in it. Right?
A. It had details that they had on the tape recording. That’s all I can tell you, as far as I know.
Q. But you said they were changing what was in the tape recording. How do you know that - -
A. No, I said they rewrote it because I didn’t sign the first one.
Q. Well, now, you couldn’t - - How could you sign the videotape?
A. That’s what I’m talking about. I didn’t sign it. The audiotape, they did not have me sign it. They had rewritten the audio. They took it off the audio and put it on a tape recording - - or on paper, wanted me to sign it.
Q. And was it changed in any way.
A. I don’t know. I didn’t hear the audio, so I can’t tell you.
Q. You saw the - - Let’s see. You saw the - - your videotaped confession here in court when we played it. Do you remember that?
A. Yes.
Q. Is that the one you’re talking about that had been changed?
A. No.
Q. That’s not the one you’re talking about?
A. No.
Q. That has not been changed. Well, with one exception. You’re saying they started the machine over again?
A. They did.
Q. And even though Detective Curt Flynn says what was not done, you’re saying it was done?
A. It was done.
Q. On these - - So apparently this audiotape that you signed was two pages?
A. As far as I remember, it was two pages.
Q. Was it single-spaced or double spaced?
A. I don’t have no idea.
Q. Was it on, you know, legal-size paper or - -
A. It’s on the regular paper like that white paper over there.
Q. Okay. And all it was was two pages and it purportedly was the transcript of this ride that you had taken in the car with the police?
A. Right.
Q. Is that correct?
A. Correct.
Q. Now, you had been out there with the police. How long did it take you when you went out there to get to the scene of the crime approximately how long?
A. Giving you an exact time, I couldn’t because I don’t have no lunch this time. I don’t know how long it was.
Q. I’m not asking for an exact time, just an approximate time. How much time?
A. I would estimate probably two hours, two and a half hours.
Q. All right. And they had somehow condensed - - Was there a lot of talking going on in the car?
A. Well, they kept me - - asking me if I recognized anything. I would say no.
Q. And they had the tape recorder on the whole time?
A. It was there on the front seat, yeah. I had one of them little pin type things on.
Q. And when you got out of the car, did they keep it attached to you so you could do some talking as you went into the house and everything?
A. No, it was taken off when we got out of the car.
Q. So you think that approximately two hours of the trip to the Apodaca home was tape recorded and then put onto two pages?
A. That’s right.
Q. But you don’t know what those two pages said?
A. I didn’t read it, no.
Q. But you signed it?
A. Not at that time.
Q. No, you signed it when you came back here on the 24th?
A. Right.
Q. That was when you were in the offices that morning. Was there anything else that you-all talked about?
A. Not in particular concerning this case, no.
Q. Did they ever mention to you the fact that as far as the point of entry into the house, one of the first things you described about how you get into the house the police were aware that that was not the way you got into the house?
A. I don’t know that.
Q. Okay. But did they ever ask you - - did they ever ask you, “Well, now, Mr. Lucas, you have got some parts wring here in your confession. Let’s go back over them and do them again so that we have all the things right”?
A. No, they didn’t. I told them what I had already found about it. That’s all I could do.
Q. Where did you find out that the person that killed Mrs. Apodaca went in through the door?
A. They didn’t tell me where she - - where it was entered, so I just took it to be the door. I mean, I don’t know.
Q. So after you talked to the El Paso police on the 24th, you went out riding around in a car with them for awhile?
A. We rode around for a good day and a half, I guess.
Q. Now, that was tape recorded. Correct?
A. Correct.
Q. Did they have a tape recorder on all the time or did they turn it off and on, do you remember?
A. If I remember right, I think they turned it off and on.
Q. Did a lot of police agencies when you were out riding around tend to turn it off and on, the tape recorders?
A. No, not all of them.
Q. Some did?
A. Yes.
Q. Particularly in times when you would be just driving for long periods of time?
A. Yes.
Q. Do you remember what areas of El Paso you went to on the 24th or the 25th?
A. Well, we was all over El Paso, in the north, south, east and west.
Q. Did you go back to the Apodaca home?
A. Not at that time, no.
Q. Did you ever go back to the Apodaca home?
A. We were back there one time, but I don’t - - I don’t remember exactly what day that was on.
Q. Well, it was the 25th - - it would have been either the 24th or 25th, correct, one of those two days? And of course, that’s - - that is one of them where the tape recorder - - we do have tape recordings of that travel. Right?
A. True.
Q. So it would indicate you were back at the Apodaca home. Did they talk to you asking you specific questions again about the Apodaca - -
A. No.
Q. - - home when you got there?
A. We didn’t stop at that time.
Q. You didn’t stop. Was anything even said about it?
A. Not that I can remember, no.
Q. What was the purpose of going by that area?
A. They just wanted to go back out in there. I don’t have no idea why?
Q. When you went back out in there, were you pretty familiar then with where it was and you knew which house it was?
A. No.
Q. You didn’t?
A. No.
Q. Let’s see. How old are you?
A. 50 now.
Q. 50. And what is your education?
A. Fourth grade.
Q. Fourth grade. Can you read and write?
A. I can read, but it’s hard for me to do it. I can write it.
Q. What is your IQ, do you know?
A. I don’t have no idea.
Q. Do you remember that question being asked to you before?
A. A lot of times.
Q. A lot of times. And people saying that they heard that your IQ was 80?
A. I have heard that, but I don’t know. I couldn’t tell you whether it was.
Q. You have always felt that it was higher than that.
A. No.
Q. You don’t?
A. No.
Q. So when you said that in a videotaped confession here in El Paso, when you said, “No, my IQ is a lot better than that,” you were just lying?
A. Well, I guess you could call it that.
Q. You’re not presently under any drugs or medication at this time, are you, other than for your stomach?
A. Taking tablets, that’s all.
Q. But no - - no other drugs?
A. No.
Q. Now, how many times have you been in mental hospitals?
A. I have been in the mental hospital one time.
Q. Just once?
A. Yes.
Q. Only been treated by a psychiatrist that one time?
A. That was back in 1960.
Q. That was in Michigan?
A. Yes.
Q. Did the El Paso police or the rangers allow you to call Clemmie on several occasions when you were out here in El Paso in October of 1984?
A. I could call her any time I wanted.
Q. Did you? Did you call her?
A. Yes.
Q. How many times do you think you called her in October of 1984, the time you were before the grand jury?
A. Once or twice. I can’t remember exactly.
THE COURT: Mr. Moody, let me stop you a second. Mr. Lucas, there is some water there, I think, if you need water. There is some cups there. Do you see those cups?
A. Yes, sir.
THE COURT: If you need some water to clear your throat, you can get some there.
Q. (BY MR. MOODY) Would you be calling her collect or how would it be done?
A. The state paid for it.
Q. How many times did you talk to me on that October trip?
A. I think it was three or four times in one day, and then - - that’s about it, as far as I can remember, except in the jury room.
Q. Of police officers across the country?
A. Just to reinforce, yes.
Q. And you lied to all the judges that you pled guilty to because they asked you, didn’t they, in the guilty pleas, every one of them asked you, “Are you pleading guilty because you are guilty and for no other reason?”
And what did you say on those cases where you pled guilty?
A. I said what I had to say. I didn’t have any choice, like I told you.
Q. So in other words, you have lied to a number of judges. Right?
A. I have to say yes.
Q. You have lied to - - Apparently when you were on the stand in Denton, Texas, you lied, didn’t you, about the murder of Becky Powell?
A. I have no comment about that.
Q. Well, up there you said that you did kill her when you were - -
A. True.
Q. And now you say you didn’t kill her. Right?
A. I didn’t say that.
Q. You didn’t say it?
A. I said I have no comment.
Q. Well, is it - - I mean, you have been found guilty on that case. Is that correct?
A. Yes.
Q. You have a life sentence on that case. It’s not on appeal?
A. No. Not now, no.
Q. And are you - - I read about you several times in the paper saying you haven’t killed anybody but your mama. So you are - - are you saying you haven’t killed Becky Powell?
A. I said I have no comment about another case.
Q. You don’t want to say whether or not you did or did not kill Becky Powell?
A. That’s right.
Q. But we know on the witness stand back in Denton you said you did kill her?
A. That’s true.
Q. And now you’re saying - - Are you saying now, though, you didn’t kill her or are you saying - -
A. I’m not saying.
Q. - - that maybe you killed her?
A. I’m not saying one way or the other.
Q. Are you saying we should just guess whether or not you killed her?
A. That’s not for me to decide.
Q. Now, you’re going to try to get those convictions that the defense attorney talked about, you’re going to try to get them overturned, aren’t you?
A. I ain’t saying one way or another.
Q. You don’t want to get back out on the streets and be a free man?
A. I will say this only, that whatever happens in those cases are completely different than this case.
Q. That those are cases where you have pled guilty and you say you’re not guilty. You just said that, didn’t you?
A. I said that, yes.
Q. And now you would like very much to overturn those convictions. I mean, if you’re not guilty on committing all those murders that you got life or 50 years or 60 years, whatever you got, you would like to get those overturned, wouldn’t you?
A. I would like the truth to be known, yes.
Q. I would like the truth to be known, yes.
A. You don’t want to be convicted for something you didn’t do, do you?
Q. No.
A. You don’t want to - - All the cases that you have been found guilty of or pled guilty of, you’re not guilty of. Is that what you’re saying? I’m saying I’m going to let the evidence speak for itself.
Q. And you’re going to try to see that those cases are overturned?
A. I didn’t say that.
Q. You’re not going to make - - You’re promising this Court you’re not going to make any - - file any writs to try to get those cases overturned?
A. I am not going to promise this Court nothing. There will be no deals in this court.
Q. In other words, as soon as you can beat this case, you’re going to go on to hopefully beat all the cases and then be out on the streets again. Right?
A. I didn’t say that.
Q. Oh, you want to spend the rest of your life in prison?
A. I didn’t say that, either.
Q. Well, what are you saying?
A. I’m saying let the courts decide it.
Q. Well, how can the courts decide it if you don’t bring the issue to them?
A. This issue is before the court.
Q, Before this court. But before those other courts, somebody is going to have to bring that issue to them?
A. Then that’s up to those other courts.
Q. They just don’t decide on their own if they want to hear something. Somebody has to petition them to hear that. You’re familiar with the legal processes, aren’t you?
A. Yes.
Q. I mean, you have had a lot of correspondence even with the judge in Michigan filing all kinds of writs and things up in Michigan. So, I mean, you’re not unfamiliar with the criminal process, are you?
A. No.
Q. When you were telling Clemmie - - Sister Clemmie that you had committed all these murders, you were lying to her, weren’t you?
A. What Clemmie and I talked about, that’s between us.
Q. Well, I mean, didn’t she - - when you were there and hasn’t it already come out that you told her and you told all these religious people that you were confessing because Sister Clemmie had helped to show you the light, that it was the right thing to do?
A. At that time, yes.
Q. At that time that was the truth. Right?
A. No, at that time it wasn’t the truth.
Q. But that’s what you were saying was the
A. That’s right.
Q. Actually, you had not really been converted to your Christianity yet. Right?
A. True.
Q. There have been several, I guess, false attempts at your rebirth?
A. False?
Q. Had there not? In other words, when you were in Montaque, do you remember the story about the light, seeing the light? Do you remember that one?
A. That was not in Montaque that I said that.
Q. You didn’t say that one in Montaque?
A. No, sir.
Q. What was it that you saw - - Where was this deal where you saw the light?
A. That was something that was in Georgetown, not Montaque County.
Q. Okay, it was Georgetown. What was that story all about?
A. That’s just my belief.
Q. Now, that was - - What kind of light did you see?
A. I don’t know.
Q. Is that the light that told you to tell the truth?
A. I can’t say one way or another whether it was or not.
Q. But apparently you didn’t tell the truth. You still kept telling the false confession. Right?
A. I had to do it, as - - like I said, because I was threatened to either go to death row or confess to the crimes, and I did that.
Q. Well, but they couldn’t get you on death row until they convicted you in the orange socks case. Is that right?
A. I was already convicted.
Q. You weren’t convicted until what time?
A. March of ’84.
Q. What about all that time between June of ’83 and March of ’84?
A. There were no cases except two for that time.
Q. You were not accepting any cases at all between - -
A. I was accepting them, but I hadn’t did - - I hadn’t been convicted of them.
Q. But you - - But apparently you were telling false stories then, were you not?
A. Back in ’82, too.
Q. Back in ’82, what, were you - - You were telling people you hadn’t killed Kate or Becky, weren’t you?
A. True.
Q. And now you’re saying that’s a false story?
A. I did not say that.
Q. Well - -
A. I said I made false confessions back in ’82.
Q. Well, what kind of false confessions were you giving in ’82?
A. Everything that would come to mind.
Q. ’82 was before you were arrested on the Kate Rich and Becky Powell case. Right?
A. Yes.
Q. Who were you giving false confessions to in 1982?
A. Same ones I had been giving them to.
Q. Who was that?
A. The rangers.
Q. Which rangers?
A. Phil Ryan, Sheriff Conway.
Q. What were you telling them?
A. Everything that come to mind. Any kind of a thing that I could tell them.
Q. Well, just give us an example of some of them. Did you tell them that you had killed Kate and Becky?
A. I did not.
Q. You didn’t tell them about that one?
A. No, sir.
Q. In fact, you told them that you had not killed Kate and Becky?
A. That’s correct.
Q. Now, were you telling them the truth then that you hadn’t killed her, hadn’t killed either Kate or Becky?
A. I have no comments about those cases.
Q. Why is it you don’t want to comment about Kate and Becky?
A. I have no comment about any case other that this one.
Q. It doesn’t have anything to do with the fact that you took them to the - - you told them where to find Becky’s body when you went out there?
MR. PONTON: Excuse me, Mr. Moody, but I think what the defendant is saying is that in regards to the guilt or innocence of other cases, as regards of guilt or innocence of this case, that that goes to the protective order issued by this Court before he began his testimony yesterday, that going into matters concerning guilt or innocence on these extraneous cases is not allowed because of the case law that says extraneous matters should not be inquired into and guilt or innocence on this case is something that is protected by Article 1, Section 10, of the Texas Constitution. I think that is what the defendant is referring to at this time.
MR. MOODY: Well, Your Honor, I think that yesterday when the defense placed into evidence - - Do you have those? They placed into evidence this document here, his confession, his handwritten confession about killing Kate and Becky and - - in particular, and also about killing hundreds of other people. And, you know, since they brought in part of the document, I think the rule and the Code of Criminal Procedure is that if they bring in the - - part of the document, we can question him about the entirety of the document. And I - - That’s all I’m trying to do is get to this issue, since they opened it up. I’d like to have - - to cross-examine him.
MR. PONTON: If I could respond, your Honor, I don’t believe that the guilt or innocence on that case or any case is opened up. I believe that document was entered to show the involuntariness of the initial confession given by Henry Lucas, and I believe on page 3 of that document, the Court could note where it’s underlined where Henry Lucas says he has been refused a lawyer. And that was the purpose for the introduction of that document is to - - going into the involuntariness of Henry Lucas’ initial confession to the Texas Rangers in June of 1983, and that’s why we are here before Your Honor is to test the voluntariness or involuntariness of Mr. Lucas’ confession in El Paso and that is what the testimony was yesterday. It was regarding his free will or lack of free will under the totality of the circumstances in confessing in this case. And we did not go into the guilt or innocence of this case or any other case, and for Mr. Moody to go into that would not only violate Mr. Moody’s - - or excuse me - - Mr. Lucas’ rights under the Fifth Amendment of the United State Constitution and Article 1, Section 10, of the Texas Constitution, it would keep all of us here for several months as Mr. Moody would be allowed to ask Mr. Lucas about every - - about his guilt or innocence in every one of several hundred crimes that Mr. Lucas confessed to. So - -
THE COURT: Well, I - -
MR. MOODY: Well, I have not planned to ask him about several hundred of them. I have a couple that I think that I have a right to.
I don’t think he has anymore Fifth Amendment right on a case that he has already been finally adjudicated. If that case has been finally adjudicated, where is his Fifth Amendment right? It is not there.
THE COURT: Well, Mr. Moody, you have already asked the question and Mr. Lucas has answered the question - -
MR. MOODY: Well, I think he is refusing - -
THE COURT: - - as far as I’m concerned, and he’s
MR. MOODY: I think he has refused.
THE COURT: He has given you his answer, so I think the objection is kind of moot. But it does go to what we discussed earlier, so I’m going to ask you to please move on to another subject. You have asked the question and we will have to stick with the answer that we received.
Q. (BY MR. MOODY) So you don’t want to answer any of the tough questions, just the ones you want to answer? You’re going to pick and choose the ones you want to answer today and the other ones you won’t answer?
A. I won’t talk about other crimes.
Q. You don’t want to talk about them and that’s all there is to it. You won’t talk about any of the other cases?
A. True.
Q. So it’s - - that’s your decision?
A. Yes, sir.
Q. How long after the threatening telephone conversation from Captain Prince did you - - or how much time elapsed between that threatening conversation and the time you went in before the grand jury?
A. Maybe a half hour, if it was that long.
Q. All right. You were pretty scared, weren’t you?
A. I was scared, yes.
Q. Pretty nervous?
A. Yes.
Q. You were going to have to go in and do something you didn’t want to do?
A. Yes, sir.
Q. And when you went in there, you testified. Right?
A. I said what – whatever I said in there. I don’t remember all the words.
(Off-the-record discussion)
Q. (BY MR. MOODY) Now, do you remember the foreman of the grand jury testifying here, and also, I think the Court Reported who took it down? They said that you appeared very calm, that you weren’t nervous at all. Do you remember that?
A. I wasn’t nervous on the outside?
Q. Oh, just on the inside?
A. Yes.
Q. And so nobody else could tell?
A. No.
Q. If you wanted a lawyer - - Didn’t I read you your rights before the grand jury?
A. You did. But as I stated before, during - - due to the threats that were made to me about going to death row, I didn’t want a lawyer. I didn’t want nothing.
Q. In fact, didn’t I ask you the specific question, “Now, do you wish to have a attorney?”
A. You did at that time, yes.
Q. And you said - -
A. And I told you no, because I didn’t want to be sent to death row and have my stuff taken away from me.
Q. Now, you didn’t say that to the grand jury?
A. I did not, because I know better.
Q. So if - - you just wanted to come in and just basically say - - whatever the questions I said to you and you just say yes, and that would be it. Is that because you were scared?
A. The best I can answer, yes.
Q. If you were really scared and nervous, that would have been the best thing to do, that if I said something you would just say, “Yep, that’s right,” and go on to the next thing. Right? You really wouldn’t want to elaborate on anything, would you?
A. I don’t think I did.
Q. When I asked you a question, “And they read the statement that you have made to various police officers and heard of that testimony and they have had an opportunity to review what other officers have said about what you have said to them. Now, at any time did any member of the El Paso Police Department or of the Department of Public Safety or of the Texas Rangers, did they, ever tell you what to say in regard to these matters,” and your answer was not just no; it was, “No, they know better,” why did you add the phrase in, “they know better”?
A. Well, I figured that was the best thing to say at the time.
Q. In fact, I asked you the question, “Why do you say that?” And do you recall what you answered to that?
A. No.
Q. Well, you said, “Because I would refuse them if they do.” Why did you say that?
A. I have stated that many times.
Q. In other words, you were telling the grand jury at that time that - - not just that, “No,” you know, “I haven’t been coached in any way or given any information,” you add in the fact that if they tried to give you the information, you would refuse the case. Right?
A. There was a reason for it, but I cannot go into it at this time.
Q. No.
A. Why don’t you want to talk about it?
Q. It’s something that - - I just don’t want to discuss it at this time.
A. You - - In other words, you have got a good answer for this question, but you’re saving it. Would that be the - - or what?
A. No. I’m letting my attorney handle that part.
Q. But why don’t you want to answer the question?
A. It’s just something that has to be looked into yet, and I will not go into it.
Q. But I’m not asking you anything about any other crimes or anything at this point, but this is just another area that is a tough question and you would rather not answer?
A. This is part of the evidence that has been withheld in this trial. That’s the best I can answer.
Q. Now, you’re just asking the Judge here, because he is the one that has got the job in this part here, to decide who is telling the truth and tell who is lying. Do you understand that?
A. I understand that. And I understand - -
Q. And you’re asking - -
A. I have the right to have all the evidence presented at this trial, and which it has not been done, and I’m leaving it up to the Judge to decide on what he wants to do. I cannot tell him what to do.
Q. Well, the Judge isn’t presenting evidence.
A. I know that.
Q. He is listening to evidence, okay? Why are you afraid to go into this? It doesn’t have anything to do with the other cases.
A. It will be presented by my attorney. I have nothing to do with the presenting of evidence.
MR. PONTON: If I might ask a question of the witness on voir dire? Are you referring to the fact that - -
THE COURT: Mr. Ponton, don’t - - have you just excluded me?
MR. PONTON: But, Your Honor, I - -
THE COURT: Yesterday you called a recess and today you have just taken over.
MR. PONTON: My apologies to the Court.
THE COURT: Do you want me to move a chair up by me?
MR. PONTON: No, Your Honor. I apologize to the Court. And I’m not trying to unduly interrupt Mr. Moody’s cross-examination. I think that - -
THE COURT: You know, I don’t get to say much here, but every now and then at least give me the respect of the office.
MR. PONTON: May I inquire of the witness - -
THE COURT: If you’re going to interrupt Mr. Moody’s examination, I think that you ought to address the Court.
MR. PONTON: I apologize to the Court for not doing so, and I would at this time request of the Court that I be allowed to inquire of the witness as to whether or not the witness is invoking his rights - -
THE COURT: Would you like to take the witness on voir dire? Is that what you’re asking, Mr. Ponton?
MR. PONTON: Yes, Your Honor.
THE COURT: Mr. Ponton, you may do so.
MR. PONTON: Thank you, Your Honor.
THE COURT: Thank you for giving me that opportunity.
BY MR. PONTON:
Q. Mr. Lucas, are you telling Mr. Moody that you want to invoke your rights guaranteed to you by the Texas and United States Constitutions not to go into matters going to your guilt or innocence in this case, that you only want to go into the matters on the voluntariness of your confession in this case?
MR. MOODY: Your Honor, I object to the form of that question. It’s very leading. It calls for just a yes or a no answer.
THE COURT: Well, I’ll sustain the objection to the form of the question. I think that what you’re doing, Mr. Ponton, is you’re telling Mr. Lucas - - giving him the answer that you want him to make.
MR. PONTON: I’ll rephrase it.
Q. (BY MR. PONTON) Mr. Lucas, can you tell the Court whether or not the manner in which you were responding to Mr. Moody’s question has anything to do with any of your rights guaranteed by the Constitutions?
A. It has, yes. I want to withhold that statement until it’s either the guilt of innocence phase if it.
MR. PONTON: On that basis, Your Honor, and on Your Honor’s allowing me to voir dire the witness, I respectfully object to Mr. Moody continuing going into this line of questioning because I think the witness is trying to invoke his rights, which he has a right to do, not to testify about his quilt or innocence in this case.
THE COURT: I’ll overrule the objection, Mr. Ponton. If this witness wants to go on and answer the questions, the same way he is answering them, that will be fine with me. On the other hand, I’m going to allow the questions. If he wants to answer the questions, that will be fine, also.
MR. PONTON: Yes, Your Honor.
CONTINUED CROSS-EXAMINATION
BY MR. MOODY:
Q. So, now, in response to this particular question that I had been asking you about, why were you telling the grand jury under my questioning that you were refusing - - or that if the police gave you the information you would refuse them if they did it? In other words, you would refuse to tell them about it?
A. Again, I have to answer you that it was due to the threats that I had already received, and that’s the best I can answer it at this time.
Q. But in other words, instead of just saying no, you went on and elaborated on it to a degree to make it look even better - - or from your standpoint, worse for you, didn’t you?
A. I would have to say yes.
Q. Now, did Bobby Prince threaten you and say, “Now, you not only had better answer them in a certain way?”
A. He did not, no.
Q. He didn’t tell you, “Now, you better tell them if they ask you anything about whether or not you have any information about this case, you better tell the grand jury that not only don’t you have any information but that if you do - - if anybody had tried to give you information, then you would refuse the case”?
A. I did not say that. I said that he had told me that if I do not go in to the grand jury and testify that I would be sent to Huntsville and my privileges would be taken away from me. And that’s all I can answer to.
Q. Now, you remember I also asked you about - - at that time about how you got to the house. And I said, “All right. Did they in any way direct you to where that house was at or did they let you show them,” and instead of just answering no, you elaborate. You said, “No, I showed them. I don’t think they could find it.”
Why did you add in the phrase, “I don’t think they could find it”?
A. I don’t remember saying that, but it’s possible I did.
Q. Do you think the transcript is wrong?
A. No, I didn’t say that. I said I just don’t remember it myself, personally.
Q. Did you just throw that in to be cute or what was your reasoning?
A. No, I don’t remember.
Q. You don’t know why, you just added in there the phrase that you didn’t think the police could find it but you sure could?
A. At this time, I can’t answer that.
Q. Does that sound like somebody who is nervous or scared to you?
A. Sounds to me like it’s somebody mixed up in the head.
Q. Well, may not be far off. All right. Did you show them - - Let’s see. At that time I asked you, “Did they in any way try to influence your testimony by giving you pictures of the crime scene at all. I have never seen a picture whatsoever of that.”
Do you remember that answer?
A. I remember something to that effect, but I don’t remember the exact answer.
Q. You don’t just answer these questions no to the grand jury. You add - - You make sure that the grand jury is going to believe you, don’t you?
A. Let’s just say, like I did before, the reason I answered that way is because of the threats that had been made to me before I ever went into the grand jury.
Q. But you didn’t have to say that they never showed you pictures, that you have never seen even one small picture at all or not seen a single picture whatsoever. All you had to do is, if you were just scared and nervous is just say no, but always you have to elaborate, don’t you?
A. I guess so.
Q. I asked you, also: “All right. Everything you have told them about this case was done from your own memory?”
You answered, “That’s right.” Then I didn’t really ever ask you a question. I just said, “All right.” Then you come in with a different elaboration. You said, “I have - - several different times, I have told police officers how to get back to places and then be accused of a police officer telling me, but they don’t.”
You add in another point here that I wasn’t even asking you about, didn’t you?
A. If that’s what is on there, yeah.
Q. Why did you say that?
A. I have no comment about that right now.
Q. Is it that you have no comment or you have no good answer for that?
A. I have a good answer, but I have no comment on it right now.
Q. You just - - You’re asking the Judge to take it on faith that you’ve got a good answer?
A. No, I’m not.
Q. And then I didn’t even ask another question. I just said, “Uh-huh.” Your response, “I don’t accept no cases when they start showing me picture of a case. I don’t accept it.”
Do you remember saying that?
A. I do.
Q. Why do you add all this information in that’s not even being asked to you about?
A. At this particular time, I cannot go into that particular part of it.
Q. Then I followed up with a question: “You do these things - - in other words, one of the rules about doing these things is you want to be able to” - - And I didn’t even get to finish my question. You already had an answer. “I’m doing it for the families, not for these officers, not for anyone else, just these families.” Do you remember that answer?
A. I do.
Q. And obviously you weren’t doing it for these families, were you?
A. I was doing it because of threats.
Q. You were lying?
A. At that particular time due to the fact that I was being threatened, yes.
Q. Do you remember I questioned you about - - “All right. They came up with some evidence later about finding a crockpot (sic) and” - - And again before I could really ask you the question, again you broke it off and said, “No, they didn’t come up with it. I gave it to them.” How come you broke in there and interjected, you know, that evidence at that point without me even having to finish the question?
A. At this time, I will not answer that.
Q. Just - - Again, it’s not because you don’t have a good answer, it’s just that you’re saving it?
A. I am not saving it. It will be brought out at a later time.
Q. Then I asked you, “You gave them that?”And you said, “That’s right.” “How did you tell them about that?” You said, “I took and told them where the girl was in the truck stop out here and I sold that stuff to, described her to them; and, after I went back to” - - something, and then that’s not decipherable - - “the attorney, he went there and questioned the people.”
And I asked you, “Would they have had any idea where to look for these things?” And you said, no. How did you know the answer to that question about the crockpot? How did you know that we would find those things?
A. Because I was told by Prince.
Q. But how did you know we would find those things when you were originally told about them?
A. I didn’t.
Q. Do you recall - - I guess the last question I asked you, and it was a very open-ended question: “Is there anything else you would like to tell them?” meaning the grand jury. Do you remember that question?
A. I said, “You better learn to believe your police officers.”
Q. Well, you said, “They should start listening to police officers”?
A. Yep.
Q. What prompted you to say that?
A. Because I was threatened to go in there.
Q. How do you connect the threats to you making a comment like that?
A. Because if they had listened to the police officers, I wouldn’t be in there in the first place.
Q. If they would have listened to police officers, I wouldn’t be in there in the first place. How - - Explain that to me. What does that mean?
A. How many trips did you make back and forth from the grand jury room to get me to go in there?
Q. Well, right now I am asking you the questions.
A. That’s the way I am answering.
Q. Okay. Your advice to them is to believe the policemen. Right?
A. If that’s what they want to do. That’s up to the grand jury what they believe and what they don’t believe.
Q. Of course, now your advice would be don’t believe policemen. Right?
A. Well, my advice - - I can’t give advice to anybody. I’m not going to say that. I just say that whatever they do, they should do it themselves, not somebody else.
Q. At that time you were telling the grand jury that they should trust their police officers, and now you’re basically saying through your testimony, because your testimony is tremendously different from all the other witnesses that we have put on the stand that, I guess, they should not trust their police officers?
A. I say that evidence will be brought out different than what you saw here on the witness stand.
Q. Does - - This testimony that I read to you, does that sound like a nervous and scared person or does it sound like somebody - -
A. To me, yes.
Q. It doesn’t sound like somebody who is cocky and just trying to make things look better?
A. Nope.
Q. It doesn’t? Do you know what aggravated perjury is?
A. It’s supposed to be something. I don’t remember exactly what it is. I mean, as far as aggravated perjury, I don’t know.
Q. Well, do you know that it’s telling a false statement under oath in a court type proceeding where it is on a material fact, a fact that could be important to the case?
A. If you say so. I mean, I don’t know.
Q. Okay. Well, would you say you - - are you saying that you committed perjury before the grand jury in El Paso County?
MR. PONTON: Excuse me. I object on the basis that the - -
THE COURT: I’ll sustain the objection.
Q. (BY MR. MOODY) That’s not the only time you lied under oath to a jury, is it?
MR. PONTON: Once again I object on the same basis, Your Honor, that he is asking about a potential crime, that he defined the crime before he even asked the question.
THE COURT: Well, I’m going to let him rephrase the question.
Q. (BY MR. MOODY) Have you ever lied before under oath?
MR. PONTON: I object again that he is asking the defendant to admit to a crime here before the Court.
MR. MOODY: I’m not asking him to admit to - -
THE COURT: I’m going to overrule the objection.
A. I have no comment.
Q. (BY MR. MOODY) IS that another one that you have got a good answer, but you’re holding it back?
A. No, because I take the Fifth on that one because I do not intend on incriminating myself on this witness stand.
Q. How can you incriminate yourself on Becky Powell and on Kate Rich if you didn’t do those crimes?
A. I have no comment about that.
Q. How old was Becky Powell when you first met her?
A. About eight years old, I think.
Q. Was she your common-law wife?
A. She was not my common-law wife.
Q. At any time?
A. That’s what she agreed to accept, because she was run off from a girl’s school.
Q. When did she feel like she was your common-law wife, what age? How old was she?
A. 15.
Q. Was she retarded or a slow thinker?
A. She had problems as far as school, I guess. I don’t know. She didn’t attend any.
Q. She didn’t go to school hardly?
A. No. She was mostly sock.
THE COURT: Let’s take a break, Mr. Moody. This is a good time.
(A brief recess was taken.)
MR. MOODY: Ready to proceed, Your Honor.
THE COURT: Yes, sir.
MR. MOODY: Thank you.
Q. (BY MR. MOODY) Now, let’s go back to September 18th, 19th and 20th of 1984. Those are the dates that first, I believe, Lieutenant Jerry Smith of the Odessa Police Department talked to you in Monahans, followed up on the 19th by your trip to Sierra Blanca where you talked to Benny Perez and Jimmy Apodaca, and then finally culminated with the 20th when you came to El Paso and you did the videotaped confession. Right?
A. Yes.
Q. Let’s go through those to make sure we have all the details on that. Now, you had never confessed to the Librada Apodaca murder prior to the 18th of September, 1984? Is that your testimony?
A. Yes.
Q. And it was on the 18th of September late at night that Jerry Smith first asked you about that. Is that correct?
A. He is the first one that asked me about it at that time, yeah.
Q. Have you ever met me before?
A. Once.
Q. When was that?
A. In September.
Q. September the 20th?
A. Yes.
Q. Did I speak to you on that occasion?
A. I think you did, yes.
Q. What did I say to you?
A. I don’t remember. I don’t remember, offhand.
Q. Did I talk to you for a long time, short time?
A. No, you talked a short time. You didn’t talk a long time.
Q. But you don’t know what I said. You don’t remember?
A. No.
Q. Then did I talk to you on the 24th when you were here or only on the 25th, the day you testified?
A. I only remember the 25th.
Q. The 25th?
A. Yeah.
Q. I talked to you, you say, three or four times?
A. Three or four times that night.
Q. Three or four times that night. Not during the daytime?
A. No.
Q. And was there anyone present with me when I was talking with you?
A. Yeah, the rangers. I think Perez was there.
Q. Benny Perez was there?
A. And I think Apodaca, but I’m not sure.
Q. Okay. I think Benny Perez mentioned when he was on the witness stand that he was present when I spoke to you.
A. Right.
Q. But did I talk to you for very long or extended periods of time?
A. No.
Q. What did I say to you?
A. You just asked me to go to the grand jury.
Q. And what was your response?
A. I told you no.
Q. So then how was it that you ended up going to the grand jury?
A. After talking to Bob Prince, and he told me that that or go Huntsville to death row.
Q. I didn’t ask you if you wanted to consult an attorney?
A. I don’t know. I asked for legal advice, but I don’t remember you asking me about an attorney. If you did, I didn’t hear it.
Q. Now, you - - apparently you say you did not get to talk to Sister Clemmie that night.
A. I talked to her that night, and I talked to Bob Prince that night.
Q. How long did you talk to Sister Clemmie?
A. Probably ten minutes.
Q. And what were you telling he and what did she tell you about testifying?
A. She told me to get legal advice. She said she couldn’t give it to me.
Q. All right.
A. Which that’s when Bob Prince was called.
Q. Did you want to talk to Bob Prince?
A. I hadn’t mentioned him. Somebody else called him and told me he was on the phone.
Q. How long did you talk to Bob Prince?
A. Probably 15 minutes.
Q. What was he telling you?
A. He told me that I would have a choice of either going to Huntsville to death row or going in there and be man enough to stand up and talk to the grand jury.
Q. And, what, he just repeated that for 15 minutes or how did it take 15 minutes?
A. Well, he talked about several different things, about causing all the trouble I was causing the task force and everything like that.
Q. What were all the things he was telling you for 15 minutes?
A. About the bad publicity he was getting.
Q. He was getting bad publicity at this time?
A. Yes.
Q. In October of 1984?
A. Yes.
Q. What kind of bad publicity was he getting that he was telling you?
A. I don’t know. I didn’t read the stuff, but he said that he was getting bad publicity. That’s all I know.
Q. What else did he tell you?
A. He told me he wasn’t going to send me out on cases if I wasn’t going to do what I was supposed to do, clear the cases.
Q. So in other words, he was telling you you better confess to all the cases?
A. Yes.
Q. Did he tell you anything else, threaten you in any other way?
A. Well, he threatened to take all my stuff away and I wouldn’t get no more free food.
Q. All right. Now, of course, he has testified quite a bit differently that you’re testifying on this issue. Isn’t that correct?
A. That’s correct.
Q. And so I assume you’re saying he is lying on this issue. Correct?
A. I’m not calling him nothing.
Q. Well, it’s kind of hard, when he says he didn’t threaten you at all and you say he threatened you for 15 minutes, what there couldn’t be much doubt somebody is not telling the truth.
A. It’s true.
Q. So who is not telling the truth?
A. I’m not going to say. That’s not up to me to judge that.
Q. The gist of your testimony yesterday or a lot of it, particularly in response to, I believe, Mr. Ponton’s questions, that you have given literally hundreds of confessions that are false?
A. True.
Q. And in that sense, I think today what you’re saying, that you’re not the biggest mass murderer in American history, you’re just the biggest liar in American history. Is that what you’re saying?
A. That’s your opinion.
Q. Well, do you know anybody else that has confessed to literally hundreds of murders?
A. Yes.
Q. Who else besides you and Ottis Toole?
A. That’s all I know.
Q. Okay. So, in other words, if you’re not the biggest you were maybe the second biggest, you don’t know, between you and Ottis?
A. I have no comment on that.
Q. And you’re asking this judge to believe you at this point?
A. No, sir.
Q. Well, that’s why you’re on the stand. Is this voluntary?
A. I’m asking him to believe the truth. It’s not up to me to decide what is wrong or what is right.
Q. How do you expect to have any credibility or believability when - - You have lied to the grand jury here in El Paso. Correct?
A. After being forced to go in there, yes.
Q. And apparently you must have - - under what you’re saying today, you literally lied to hundreds Had you been talking - - How long did you talk to Jerry Smith on the 18th of September, 1984?
A. We had been talking about one case and then into another case, into the Apodaca case, but I don’t remember exactly how long it was.
Q. Do you have any idea how long you talked total to Jerry Smith?
A. No, I don’t.
Q. No idea?
A. No.
Q. Was it - - Had you been talking to him all day or just that - - real late at night, around midnight?
A. I started talking to him late at night, but I don’t know what time it was.
Q. He did have a tape recorder?
A. Yes.
Q. And in regards to the tape recording, did he tape all of that conversation?
A. Not all of it, no.
Q. Okay. What parts did he not tape record?
A. Well, before we started taping any of it, we talked about it first.
Q. What did you talk about?
A. About the Apodaca case, how it was committed.
Q. Was that the first thing that you-all talked about?
A. No, we talked about that missing girl first.
Q. Yeah. I mean, he is not from El Paso. Right?
A. Right.
Q. And he would not have a tremendous interest in the Librada Apodaca case, would he?
A. I guess not, no.
Q. And Lieutenant Smith, I guess, talked to you about this other girl in Midland before he turned on the tape recorder. Right?
A. We talked about the missing girl and then we talked about the Apodaca woman. Then we talked about - -
Q. The priest?
A. No, we didn’t talk about the priest. That other guy talked about a priest.
Q. Jerry Smith didn’t talk about the priest?
A. No.
Q. What did Jerry Smith tell you about the Librada Apodaca case? What facts did he give you?
A. He gave me the fact that she was chopped to death with an axe.
Q. That’s one thing. He gave you - -
A. The description of the house.
Q. What - - How did he - - He described the house. How did he describe the house?
A. He described it as adobe type house.
Q. Adobe. Okay. Did he describe anything else about it?
A. He just described the - - had a garage type on the front of it.
Q. Garage on the front?
A. Yeah.
Q. Or on the side?
A. He said front.
Q. Okay. Did he describe anything else about the house, what color it was?
A. Well, every adobe house I have ever seen has been a cream color type, plaster type house. That’s the only adobe type I know of.
Q. But you have seen adobe type houses. You have been in El Paso before. I mean, this wasn’t - -
A. I have been through El Paso, yeah.
Q. You have probably seen some adobe houses in El Paso, haven’t you?
A. Yes, sir. In that particular area, no.
Q. Had you ever been down in that particular area on any of your trips?
A. I had once way back in February, but I don’t know if it was the exact area or not.
Q. In February of what was that, ‘8- - -
A. ’84, yeah.
Q. That is when you were on the van ride?
A. Yes.
Q. That was Detective Greg Lucas, Detective Curtis Flynn were in the van along with, I believe, Clayton Smith, and was it Ray Hardison from Williamson County on that trip?
A. February?
Q. Was that a totally different trip?
A. That was Sheriff Boutwell and Clayton Smith.
Q. Okay. And then the two detectives that you saw testifying before earlier here in El Paso, the big guy, Greg Lucas, do you remember him?
A. I remember him, yeah.
Q. He was the one that was doing most of the talking and the interviewing on that trip?
A. No.
Q. He wasn’t?
A. No.
Q. Who was doing the talking?
A. Greg Lucas was mostly doing the driving. He was doing the driving. And all the taping, the guy in the seat in back of me was doing the talking.
Q. The guy in back of you. Was that - - Who was that?
A. That’s that guy I’m talking about that’s all gray-headed. I don’t know his name.
Q. It’s not Detective Curtis Flynn? I mean, you heard Detective Curt Flynn say he was driving the van.
A. It wasn’t that guy.
Q. And he was not. He was lying about that or he just has got a pretty bad memory?
A. Well, I don’t remember him driving the van. But I know Greg Lucas was driving it. He wasn’t driving the van.
Q. You’re just about - - You’re as sure that Greg Lucas was driving the van as you are about everything else you’ve said?
A. I’m talking about the tall guy with the sort of blonde hair. That’s Greg Lucas.
Q. The big guy that came in here and testified, the guy you met in Williamson County - -
A. Right.
Q. - - and came down and did the videotaping with you down there?
A. Right.
Q. The guy that has got the same last name as yours?
A. Right.
Q. You could remember that?
A. Yes.
Q. Now, before I get back to that - - and we will get back to February of ’84 in a little while, but I want to go through this September 18th of ’84. And I have been asking you if you had ever been to El Paso. I guess you were saying you had been here in El Paso in February of ’84. Had you ever been in El Paso any time on your own, I mean, when you were not in custody?
A. 1981.
Q. 1981 when you were not in custody. What were you doing here then?
A. I was passing through here.
Q. Did you stop, spend the night, do anything?
A. The only place I stopped was the truck stop.
Q. Which truck stop?
A. The Chevron.
Q. So you are familiar with that truck stop?
A. Right.
Q. You have driven a lot around the United States, haven’t you, over the years?
A. I have with police officers.
Q. But, let’s say, when you have not been in custody, when you have not either been in prison, in a mental institution, in jails or whatever, haven’t you ever driven around the United States?
A. No, I haven’t.
Q. You haven’t been hardly anywhere?
A. I have been through Texas once with my wife. I was to Texas once wit Ottis Toole, Becky and Frank, and that was it.
Q. Do you have a good memory?
A. I hope so.
Q. Okay. I mean, you know, in other words, when - - are you able to, when you have been somewhere, can you remember it and cite back details of different things? Do you have a good memory about finding stuff?
A. I have for pictures. That’s about it.
Q. Because like I think in this case, you stated that way back in - - at some point months and months before you came to El Paso, you saw a picture or something of Mrs. Apodaca’s home, whatever. And then all of those months later you were interviewed by literally hundreds of other police officers and probably shown thousands of other pictures in the intervening time period. You get to El Paso, they drive you down here, they take you to the area where the house is, and you remember that that’s the house you saw in the picture. Right? And you said that’s - -
A. I remember from the 18th, yeah.
Q. Yeah.
A. It was described to me on the 18th, so it was fresh on my mind then.
Q. It was described. And what more description did you get other than it was an adobe type house, the garage was in the front and - -
A. Well, I got the - - that it was supposed to have a fence, sort of a wooden type picket fence, the fact it was supposed to be beside the river, is the way I was described it to, and close to a railroad.
Q. By the river close to a railroad. All this was given to you by Jerry Smith?
A. It was.
Q. Do you have any idea why he would give you information about a picket - - wooden picket fence being there when you go on the 20th and it’s not there? I mean, if you’re going to try to find this place and they give you some bad information, you got any idea why they are giving you bad information?
A. I have no idea.
Q. Did they show you a picture that you - -
A. That night I can’t say they did, no. I saw some pictures, but I couldn’t swear it was one of those.
Q. Okay. Jerry Smith had some pictures.
A. Yes.
Q. What kind of pictures did he have?
A. Some pictures of women, and I saw hundreds of pictures that day so I couldn’t swear that he was the only one that had pictures. I don’t know.
Q. Did you pay much attention to the pictures?
A. I went through an album, but I don’t remember what it was, some kind of an album with pictures in it.
Q. Now, that album of pictures didn’t have anything to do with the accordion and the priest in that case?
A. I have no idea. I don’t remember exactly. I just remember I went through a bunch of pictures, but I couldn’t swear it was one of those or not.
Q. You’re not saying you saw pictures of Librada Apodaca?
A. No.
Q. Or pictures of her house at that time?
A. No, I’m not.
Q. Jerry Smith did not show you any crime scene photos or - -
A. He showed me crime scene photos, but I couldn’t swear it was one of those.
Q. Not crime scene photos of the Apodaca home?
A. Not that I know of, no.
Q. I think you had a chance, probably - - I don’t know what you and your counsel have been doing, but probably, you know, they have pictures. Have they shown you those?
A. I have not seen any pictures?
Q. You have not seen any pictures?
A. I have asked them to look for a picture of that I remember, but I don’t know whether they found it or not. I have no idea.
Q. What picture was that?
A. That’s a picture of the front of the house.
Q. A picture of the front of the house the way it would have been on the day of the murder?
A. Yes. And I asked them also to look up a picture that had a table with a beer can sitting on it, which I saw that picture.
Q. Any other pictures?
A. Well, I saw one picture where there was stuff stacked up, but I don’t remember whether it was one of those or not.
Q. And when had you seen those pictures?
A. I saw those in Montaque County.
Q. Back in Montaque County?
A. Yeah.
Q. These were of the - - or you believed them to be the Librada Apodaca crime scene?
A. I’m pretty sure they are, yes. There was one other picture, an aerial photo that showed the river, the railroad, the gas tanks out there off of I-10.
Q. Gas tanks. You said you saw an aerial photo?
A. Yes.
Q. Of what area, now?
A. It’s out in that area there where the gas tanks are, you know, the big round white gas tanks. And it shows a railroad, the river and - - what you-all call a canal.
Q. Yeah.
A. I took it to be the river. And it shows the river, the railroad in that area.
Q. Who showed you that?
A. I have no idea. I just remember seeing it.
Q. Do you remember when you saw that?
A. I don’t remember whether it was when I was looking at those pictures when I was up in Montaque or whether it was after that.
Q. You don’t remember who showed you that?
A. No.
Q. Could you pick out from the aerial photo which house was the Apodaca house?
A. I don’t think so, no.
Q. Did they have a big x on it or something?
A. No. I don’t think I even - - As far as marking, usually I mark them, you know, put an x where the crime scene is supposed to be, and then if I ever see that picture again, I’ll know it. But I don’t know whether I did that one or not.
Q. And the crime scene you would - - How could you put an x on a crime scene if you didn’t know what the crime scene was?
A. Because the police officer would point the crime scene out to me.
Q. In other words, they would show you a photo - -
A, Yes, sir.
Q. - - and they would say, “Here is the crime scene,” and they would say, “Here, you put an x here”?
A. No.
Q. Or - -
A. I would put the x there so I would remember the picture in case I ever saw it again.
Q. Okay. Would you initial it?
A. I would on the back, yeah.
Q. Then - - So it wasn’t like you were being shown a picture and they you trying to guess where it was, you were always being told where it was?
A. Where the crime scene actually was, yes.
Q. And, what, a lot of law enforcement officers would do that to you from all over the country?
A. There were a lot of them, yes. I wouldn’t say all of them did, but a lot of them did.
Q. Did they do the same thing with you with the photo lineups of the victims?
A. No, because I was pretty well familiar with lineup of pictures, the way the police officers do it. So it’s - - There is only certain - - two certain spots that they put a picture in a lineup.
Q. Where is that?
A. It’s either the second picture from the top or it’s the bottom picture second one from the bottom, second from the end.
Q. Are you talking about a lineup that goes straight across or one that goes up and down?
A. Going straight across.
Q. Straight across. So you’re saying like if they are trying to get somebody to make an identification, they always put the picture in the second position or the last position?
A. Well, it would be in the last row, second picture or it would be in the top row, the second picture.
Q. Okay.
A. I don’t know why they do it, but that’s the way they would do it.
Q. Well, they would show you lineups that were not maybe just four or five, but they would have two actual rows like maybe 10 or 12 pictures sometimes?
A. Yes.
Q. But the person that you were supposed to pick out was always in one or the other spot?
A. Right.
Q. That’s how you were able to make all those identification of victims?
A. That’s the way I would pick the picture out. I wouldn’t swear it was the victim or not, but that’s the way I would pick it out.
Q. But they would set up the lineups for you so you would get it right?
A. Right.
Q. Any idea why they would want you to do that?
A. No, I don’t.
Q. Do you think a bunch of law enforcement people are involved in some conspiracy with the rangers to get you or what?
A. I do not - - I don’t say that at all. I have no way of knowing.
Q. Of course, why would they go to the trouble of setting up all these photos and making sure you get it right unless for some reason they wanted to get you?
A. Well, the rangers would suggest the lineup of pictures. The officers wouldn’t.
Q. Oh, the rangers would tell the officers that, “Put the pictures together, but make sure you put the victim in the right spot, two or five”?
A. No, I ain’t saying that.
Q. No?
A. They would suggest the lineup of pictures. They said I could pick it out every time. That’s what they would tell the officers.
Q. And then you always picked one of those two positions and one of those two positions was - -
A. Was always the right one?
Q. Was always the right one. Well, for that to happen, some - - that he to be just incredibly lucky that police officers from all over the country just happened to always put the victims in that position or they were trying to set you up.
A. No, I’m not saying that.
Q. Do you think it’s just magnificent luck or being set up?
A. I don’t know. Probably luck more than anything else. I wouldn’t accuse a police officer of doing wrong. I’m not doing it.
Q. Now, were you shown any photo lineups of Mrs. Apodaca?
A. I was.
Q. Who showed you a photo lineup with Mrs. Apodaca in it?
A. They went in and put one together and brought it back out to me.
Q. Who did that?
A. I guess Perez. I’m not sure.
Q. And Perez put together - - Now, you’re sure that it’s not the photo lineup with the Sima Warren case?
A. No, it’s not.
Q. You’re positive it’s Mrs. Apodaca?
A. I am, because they got the picture out of Mr. Apodaca’s pocket to put in there.
Q. Okay.
A. That’s the only picture he had.
Q. So Mr. Apodaca takes out a picture, puts it in with how many other pictures?
A. Eight, I think.
Q. Eight other pictures. What, two rows?
A. It was either two or three. I don’t remember exactly.
Q. And you picked it out?
A. Naturally. The others was all jail photographs.
Q. So they had this one. It was a home family portrait and then they had eight others with jail tags underneath them and you - -
A. No, I’m not saying jail tags.
Q. But you could just tell they were jail pictures?
A. Yeah.
Q. And they set up that phony lineup?
A. They said that’s the only way they could do it because they didn’t have any other ones.
Q. But - - Of course, now, you have heard them testify there was never a photo lineup in this case?
A. There was. There was.
Q. They are not - - Their memory and yours is not the same on that?
A. I can’t say that, now. Maybe they remember, maybe they don’t. I don’t know. I can say that there was a lineup.
Q. And, what, did you put an x on it or what did you do?
A. No.
Q. You didn’t do anything with it, you just pointed to it and said, “That’s the one”?
A. It was in a manila folder and they just said, “Which one is it?” And I said, “Well, it’s this one,” you know, because it was the only one that wasn’t a jail photograph.
Q. But yet we haven’t see that lineup or - -
A. Well, I don’t know what Perez done with it. I have no idea.
Q. You know, if you can pick out the victim, that wouldn’t be important?
A. Well, it would be important to them, I guess.
Q. Somehow they just forgot about it?
A. I don’t know. I have no idea.
Q. Now, the - - Let’s see. We are trying to get through what Jerry Smith told you. He told you it was an axe murder, he described the house, adobe. He didn’t tell you what color?
A. He just said adobe.
Q. Adobe. He said there was a garage on the front, there was an old wooden picket fence?
A. That’s what he said.
Q. Did he tell you anything else about the house? Oh, wait a minute. That’s right. You said that it was near a river?
A. Near the river and near a railroad.
Q. Which turns out to be the canal?
A. Yeah.
Q. And did he give you any more details about the general crime scene area?
A. Well, he was wanting to know how I got by the dog. There was supposed to be a watchdog there.
Q. What dog?
A. I don’t know that.
Q. He asked you about a watchdog?
A. Yeah.
Q. What did you tell him, as far as how you got by the watchdog?
A. Like I told everybody else, I just walk up to a dog and he don’t bite me.
Q. Over the years, you’ve had a lot of psychiatric evaluations about dogs and you, haven’t you?
A. I have had more than my share, let’s put it that way.
Q. It talks a lot about you killing animals, having sex with them, particularly dogs. Right?
A. That’s what I used to tell the press, yes, sir.
Q. You never told anybody else that?
A. I told law enforcement.
Q. Did you ever tell the psychiatrist back in Michigan after you were in prison?
A. I couldn’t tell you what I told that psychiatrist. I don’t remember.
Q. That isn’t true? What you told that psychiatrist isn’t true?
A. I don’t know. I’m not saying whether or not because I don’t know what I told him. That’s been almost 30 years ago. I can’t remember that far.
Q. You don’t think animals just have a natural fear of you?
A. No, I don’t think that at all. I have never had a dog bite me. I walk down the street and the dog never bites me. I’ve never had one bite me.
Q. So that stuff in Michigan about killing dogs and stuff, that’s not - - is that not true?
A. No, I never did it.
Q. Even your relatives were concerned about that issue. I mean, they always said like when - - before your mother was murdered and then before those girls were kidnapped that dogs started being missing and animals were being missing, being killed.
A. No, I had no idea about that.
Q. You don’t know anything about that?
A. What my sisters and family say, I have no idea.
Q. They seem to think you have a problem with animals.
A. I don’t have no problem with animals.
Q. Which brings us back to the bones in the stove. DO you remember the bones in the stove?
A. No, I do not.
Q. Were those dog bones or human bones?
A. I threw a lot of steak bones, stuff like that in there when I had finished eating it. But I - - I don’t know what kind of bones they got out of the stove. I never was - - They never took me to the stove, so I don’t know.
Q. You told Phil Ryan and them about a stove where you had supposedly taken the body of 82-year-old Mrs. Rich and burned her remains down to where there was just a little bit of fragmentary bone left. Do you remember that?
A. That’s what they wanted. That’s what I gave them.
Q. That’s what you told them. Did they go out there and did they actually find some human bones?
A. I don’t know what they found?
Q. I don’t know that.
A. Well, here is something you told a psychiatrist. Let’s look at this. This is dated 1965, one of your psychiatric reports.
It says here that he also stated he had sexual intercourse with dogs, cats, goats and calves, and when he was through he would kill these animals. The patient was asked if he thought he would ever do this again in the future and he said he does not know. Do you recall telling the psychiatrist about this?
A. No, I don’t.
Q. In Michigan?
A. I don’t remember anything about that.
Q. Why would you have told him that? I mean, if it wasn’t true - - I mean, back then they weren’t threatening to put you on death row in Michigan - - I mean, in Texas. Because, I mean, this is 1965. Why would you make up a whopper like that?
A. I don’t remember that.
Q. Do you think that you didn’t say it?
A. I can’t say what I said 30 years ago. I don’t know.
Q. Well, I mean, you know, obviously I can’t say what I said 20 years ago, but I think if I said something like I had killed goats and had sex with them, I could probably remember I had said something like that. That’s kind of unusual.
A. I don’t remember saying it. Let’s put it that way.
Q. Now, with the house and Jerry Smith, we have gone through that. He told you about the general area and then he told you about the dog or some kind of watchdog.
A. Right.
Q. And then what else? Do you remember anything else he told you?
A. Something about he thought it was a transient of some type.
Q. He thought a transient did it?
A. That’s what he told me.
Q. Did he tell you why he thought a transient did it?
A. I guess because they didn’t have nobody to blame it on.
Q. And then did he give you anymore information?
A. Nothing I can - - Just that she was sexually assaulted, you know, and that the house had been ransacked. That’s the only things that I can remember him talking about.
Q. Did he tell you anything in particular that was missing?
A. Not that I recall, no.
Q. But he did say - - Those are the only things that you can recall that he told you?
A. As far as I can recall, yes.
Q. Sexual assault, the house was ransacked. Now, he did tell you it was an old lady. Right?
A. Right.
Q. He told you it was a grey-headed old lady?
A. He told me it was a Mexican lady. That’s all I can remember.
Q. In fact, he said she was a gray-haired Mexican old lady, didn’t he?
A. Right.
Q. And, in essence, he was wrong about that. When you picked out Mrs. Apodaca’s picture, you know, how gray was her hair?
A. I don’t recall it being gray. I don’t know.
Q. You don’t remember what color it was?
A. It seemed like it was black to me, but I don’t remember exactly.
Q. And I wonder why - - Do you have any idea why he would give you that fact wrong?
A. I have no idea.
Q. Now, did he tell you anything else about the Apodaca case other than what we have talked about?
A. I can’t be positive. I just don’t remember anything else.
Q. Okay. He gave you the date, 27th of May?
A. Right.
Q. Right. He said an old Mexican lady chopped up with an axe in her house, gray-headed old lady. Do you remember the part where the tape recording was turned on?
A. Yeah. He said he wanted something to send to the people out here, and that’s why he turned the tape recorder on.
Q. All right. So he turned the tape recorder on and now he says that he gave you your warnings.
A. There were no warnings.
Q. You say they were not given to you?
A. No.
Q. And then you say instead of the warnings, the part that is missing from the tape recording is about what?
A. The best I can remember, it’s about the first girl that he talked about.
Q. The girl from Midland?
A. Right.
Q. Which would be about how long, do you think?
A. I don’t know. It wasn’t more or less three or four questions was asked about it. It wasn’t a very long interview on that.
Q. How long, do you think?
A. Minute and a half, two minutes, I guess, something like that. I wouldn’t be exact, because I don’t know.
Q. So - - And then from there, with the tape recorder, he goes directly into the Apodaca case?
A. The best I can remember, it was. I don’t know for positive. You’re talking about at least five days there. You know, it’s hard for me to remember all the - - to separate everything I talked about.
Q. Of course, but you got to listen to that tape recording here in the courtroom. Do you remember that?
A. I remember the tape recording.
Q. When he got to the part about the El Paso case on the tape recording, it says from Henry Lucas: “Well, I didn’t do any break-in. I broke in her house.”
Jerry Smith: “Is that right before you locked up?”
And your response was, “I don’t know. About two or three weeks before I got locked up.”
Okay. Do you remember that?
A. Yeah.
Q. Okay. Now, he doesn’t tell you until the next sentence, “I think the actual date on this thing is May the 27th.”
A. Well, we had already talked about it before, but I just didn’t remember it at the time I said it.
Q. Okay. He had already given you that before, and then that’s why you were saying three or four weeks before you got locked up?
A. Right.
Q. “Anything you can tell me the particular murder?” And then you said, “Ah, well, the woman was in her bedroom.”
Well, he didn’t give you that, did he?
A. I don’t remember whether I knew that then or whether I knew it before. I know I’ve talked about the case twice, once in Montaque and once down there, but I don’t remember where I - - where the description all came from. I don’t know.
Q. Were you just guessing that it was in her bedroom or what?
A. No, I can remember talking to somebody about it, but I don’t remember who it was. I couldn’t swear it was Jerry Smith. I couldn’t swear it was somebody else.
Q. And then she was taken out of her bedroom. “Like I took her out of her bedroom. I think it was in the living room that this is where I killed her at. I don’t remember right now.” Did you remember - - Did Jerry Smith give you that information about that? I mean, that she wasn’t actually killed in her bedroom, she actually died in a room separate from the bedroom?
A. No, I don’t think so.
Q. Was that just a guess on your part of - -
A. Well - -
Q. - - or again a piece of evidence that came to you from this mystery person?
A. I just - - I just cannot remember who gave it to me. I know it was gave to me, but I don’t know who by.
Q. That was given to you in Montaque County?
A. I can’t say that for sure because I don’t know. I just remember talking about the case twice. I don’t remember who, though.
Q. Once prior to Jerry Smith you talked about this case?
A. Yes, sir.
Q. But so far all the witnesses we brought in, was it any of them?
A. No.
Q. Didn’t - - You’re sure it was none of them?
A. Positive.
Q. Was it that you talked to them in person or over the phone?
A. No, I talked to them in person.
Q. They actually went to Montaque?
A. This is a person that identified himself as a secretary there, that came in and said he was from El Paso.
Q. Uh-huh.
A. That’s all I can tell you. I don’t know.
Q. And did he have a file with him or anything?
A. Yeah, he had files with him.
Q. He had the file of the Apodaca case with him?
A. As far as I can remember, yeah. Most all of them at that time brought the files with them in Montaque.
Q. But you’re sure it wasn’t Detective Uribe, Detective Perez or Sergeant Apodaca?
A. No, because this was a white man.
Q. It was an Angelo guy, huh? But you have already heard that the Angelo guys said they didn’t have the case, that it was always over in Sergeant Apodaca’s office?
A. I don’t know which one it was or anything else. I just know, like I say, it was a guy that came down identifying himself as a police officer and told the secretary he was a police officer from El Paso. Now, I don’t know anymore than that.
Q. Did they write his name down or what?
A. As far as I can remember, yeah, the secretary did. They always reported that to the rangers.
Q. Now, of course, you’re still not sure if itwas Georgetown or Montaque. Awhile back you were saying it was Montaque.
A. Well, Montaque is where I talked about the Apodaca case.
Q. Yeah.
A. And Georgetown is where I met Lucas at.
Q. Right. So it was way back in Montaque County, back in that time period of June until, what, you were there until
September or something?
A. I think so.
Q. That was ’83, so it was at least a year prior to coming out here and talking to Benny Perez, Ed Uribe, Sergeant Apodaca, that you recall?
A. The best I can remember, yeah.
Q. And you say you don’t have a good memory or you’re not - - not that good of a memory?
A. Not for details.
Q. Well, how can you explain the - - apparently you had been interviewed about hundreds and thousands of cases in that year, hadn’t you?
A. I would guess into the thousands.
Q. How could you possibly get the detail back a year later from that case?
A. I don’t know how I done it. I just don’t know.
Q. Just bad luck or - - I guess?
A. I’m not calling it bad luck or good luck or what. I just don’t know how I done it.
Q. Do you remember in here you said you took some jewelry? Had that information been given to you by anybody that jewelry was missing?
A. It was supposed to be Mexican jewelry missing, yes.
Q. Who told you Mexican jewelry was missing?
A. That’s the one in Montaque County.
Q. Still that same guy we never - - we haven’t been able to figure out who he is?
A. Yep. If I ever see him, I’ll know him. I don’t forget a face once I see them, but I forget the names.
Q. Well, I guess, though, you - - in other words, things you see you have a very good memory on?
A. As far as I can tell, yeah.
Q. How did you know that the axe had come from her house?
A. I didn’t.
Q. Just guessed or did somebody give that to you?
A. They didn’t tell me one way or another that I can remember. The only explanation I gave them, it was my own axe.
Q. You told them it was your axe?
A. The best I can remember.
Q. In this case? Then why does it say in the interview: Jerry Smith: “What did you use? Where did you get this deal?”
Henry Lee Lucas: “The axe? From her house, her house. That’s where the axe was.”
Now you’re saying that - -
A. At the time, I told him that it was - - from our original interview before the tape recording was cut off, I told him that it was my axe.
Q. Oh, then he had to correct you and tell you, “You know, Henry, it’s not your axe. It’s her axe”?
A. The best I can remember, something like that. I don’t remember exactly all the details of that case, like I told you.
Q. Did Smith have the case file with him of the Apodaca case?
A. That, I can’t tell you. He had files with him, but I couldn’t tell you what he had.
Q. You’re not saying that you saw photos or aerial photos that night, are you?
A. No. I saw photographs. That’s all I can say. But whether or not it was this crime, I could not.
Q. Did Jerry Smith threaten you to make this statement?
A. No.
Q. Did he promise you anything in exchange for it?
A. He did not, no.
Q. Was he polite to you? Was he mean to you?
A. No, he was polite.
Q. Why did you go ahead and tell Jerry Smith about this case? The rangers weren’t pushing you for this case, were they?
A. Any case that I was talked to about on the road, I was told that if I didn’t try to solve the case that I would end up in Huntsville on death row. And any case they brought in front of me, I don’t care what it was, I was going to accept it.
Q. But you’ve heard a lot of officers state that they brought you a lot of cases that you never confessed to.
A. Every case that they brought in there I tried to confess to it.
Q. You did try to confess to it?
A. Yes, I did.
Q. There aren’t literally thousands of cases where you just said, “I don’t know anything about that case and I didn’t do that case. It’s not familiar with me”?
A. Nope, that ain’t what I told them at all.
Q. You didn’t say that on any of your videotapes or tape recordings?
A. A lot of videos, yeah.
Q. There are a lot of cases. You didn’t confess to every case that ever came up?
A. I - - In a way I did, yes.
Q. You only ended up confessing to approximately, what was it, 186 cases?
A. That’s what you have marked down now.
Q. Of over 5,000 cases that you were interviewed on?
A. There has been hundreds of cases. I couldn’t tell you how many cases. But every case that we did there in Georgetown, I took.
Q. You took every case?
A. Yes.
Q. You’re sure about that?
A. I’m positive about that.
Q. Now, what happened after Jerry Smith got through talking to you that night?
A. There was another guy what talked to me from somewhere up around - - In fact, I can’t even remember the name of that. It was somewhere in the area of Odessa. That’s all I can tell you. I don’t remember the name of it.
Q. Okay. And then you went to, where, Sierra Blanca the next day?
A. That same time. We left out that night and went to Sierra Blanca.
Q. Flew in there?
A. Yep.
Q. And then the next day they wanted you to look at a case out there in Sierra Blanca?
A. Out there away from Sierra Blanca, yeah.
Q. Was anybody feeding you information on that case?
A. I knew every detail of that case before I ever went there.
Q. Who gave you all those?
A. Three of four other police officers, along with the rangers.
Q. Ranger Clayton McKinney? Was he one of them?
A. No. There was a sheriff - - He’s not no sheriff out there no more. He was the sheriff. He gave me every detail of that case.
Q. So that sheriff is the one who gave you all the details on the case?
A. Yes.
Q. That was Sheriff Armstrong?
A. The one they locked up for dope. That’s all I can tell you. I don’t know what his name was.
Q. So he’s the one that gave you that case?
A. Yes.
Q. And then you tried to confess to it?
A. I tried.
Q. But what happened?
A. They said I didn’t pick the place out right.
Q. That you missed the location?
A. Yeah.
Q. Did they drive you to the ranch scene or did they - - or what happened?
A. I more or less directed them, according to what I was told. And I ended up at the right ranch but the wrong place where the body was, is the way they told me.
Q. How could you end up at that - - How did you end up at the right ranch?
A. I don’t know.
Q. I mean, there is a lot of roads out there, aren’t there, old dirt roads?
A. I couldn’t tell you. I just remember going back out the way I Was told.
Q. You had never been there before?
A. No.
Q. But somebody - -How long before that had you been told about how to get to that ranch?
A. Probably four months, right at four months.
Q. That was by Sheriff Armstrong?
A. Yeah.
Q. So, in other words, you had kind of remembered just from him telling you. He didn’t show you any maps or anything?
A. I saw all the pictures, the whole crime scene and everything.
Q. But they didn’t have pictures of how to get from downtown Sierra Blanca out to the crime scene?
A. They had the roadways, pictures of the roadways.
Q. So they had different pictures of how you would go from downtown Sierra Blanca?
A. No, we didn’t go from downtown Sierra Blanca.
Q. Where did you go from?
A. From the airport.
Q. They had pictures from the airport?
A. They had the pictures of the road coming from the airport.
Q. Then - - So based on those pictures, what, did they have street signs on them or what?
A. No, they just - - they had signs, but it wasn’t road signs. It was just - - I don’t remember what it was now but some kind of ranch type picture, in other words, showing the type of ranch and stuff.
Q. And based on some photographs that you had seen four months previously of roads out in the middle of the desert with no real markings as to the roads, you were able to get back to that scene?
A. Right. I took them on the - - In other words, I took them on the hard road. They took me on the dirt road, you know, going back in through this country to where it was at.
Q. And then you were out there for a little while. How long were you out there in Sierra Blanca?
A. All day.
Q. And when you came back in, is that when you met with Benito Perez and Sergeant Jimmy Apodaca?
A. About 30 minutes after that, yeah.
Q. All right. Did they give you a chance to rest or - -
A. No, I was in the lounge drinking coffee and they came in.
Q. Now, when they came in to talk to you, that was the first time you had ever seen them?
A. The best that I can remember, yeah.
Q. And you were saying that they had the case file with them at that time or not?
A. No, I’m not saying they had it. I don’t know who had the case file. I remember the case file the night before. I don’t remember what they had with them at that time.
Q. You remember Jerry Smith had case files, but you don’t know if those case files had anything to do with Librada Apodaca?
A. No.
Q. And that day, you’re saying you don’t remember if they had a case file with them when they came out there to talk to you?
A. They had some kind of papers. That’s all I can tell you. I don’t know what they were.
Q. A lot of papers, a few papers?
A. Well, there was a notebook and something else. I don’t know what else it was.
Q. Just a little notebook?
A. Well, it was about like that.
Q. Yes, one like when Detective Perez was on the stand going through his notebook?
A. Yeah.
Q. That’s what he brought with him. Right?
A. That, a tape recorder and something else. I don’t remember what else it was.
Q. Did he bring pictures?
A. I can’t swear to it.
Q. You don’t think he did, do you?
A. None that I can recall.
Q. So then they started talking to you or who did most of the talking to you or who did most of the talking, Detective Perez or Sergeant Apodaca?
A. They both started talking for awhile. And then when they got into the case, I think it was Perez that done most of the talking.
Q. All right. Well, at first when they greeted you and said hello to you, I assume that they were both talking?
A. Yeah, at that time.
Q. Were they threatening you?
A. No, I didn’t say they were threatening me.
Q. Were they promising you anything if you solved this case?
A. No.
Q. And then you went ahead and started talking about the case itself to Detective Perez. Correct?
A. We sat there and discussed the whole case before they - - he decided he wanted to tape it.
Q. Right. Just like he said on the witness stand. And he took some notes of what you were saying?
A. Yes.
Q. And then he begins the tape recording?
A. Right.
Q. All right.
THE COURT: Mr. Moody.
MR. MOODY: Yes, Your honor.
(An off-the-record discussion was held.)
THE COURT: I was called. I have a grand jury in operation and they called me to ask me to come talk to them a minute and I had to do it.
All right. Well, you don’t want to take this up now.
MR. PONTON: Whatever Your Honor wishes.
THE COURT: Mr. Moody, he still has Mr. Lucas. We are not going to get to this thing for awhile.
MR. PONTON: That’s fine. We can wait until Mr. Lucas is over and we can call the witness after that and hear this at that time.
THE COURT: This is - - Are you-all familiar? This is a motion to quash a subpoena. Do you-all want to hear it now or go on with this? I don’t care.
MR. MOODY: That’s fine with me. The attorney is here. He has come from, what, Dallas, and I don’t mind hearing this issue right now as long as we - - we are not giving up our right to finish our cross-examination with Mr. Lucas. We will get back to him in just a minute.
THE COURT: Well, all right. We will take this out of order, then.
Mr. Ponton, let’s see here. Mr. Hugh Aynesworth, through his attorney, has filed a motion to quash a subpoena issued by the defendant. Is that correct?
MR. PONTON: Yes, Your Honor.
THE COURT: All right, sir. Let’s hear anything you have. What is your name, sir?
MR. BABCOCK: My name is Charles Babcock.
THE COURT: MR. Babcock, you’re here representing Mr. Aynesworth?
MR. BABCOCK: Yes, sir, I am.
THE COURT: All right, sir. Is Mr. Aynesworth here?
MR. BABCOCK: He is in town, but he is not physically in the courthouse, Your Honor.
MR. PONTON: Maybe it would be better for us to hear this at a time when Mr. Aynesworth could be present so he could be voir dired as to the relevant nature of his - -
THE COURT: Yeah, I think it would be awfully difficult to rule on this without him being here.
MR. PONTON: Maybe - -
THE COURT: I think he at least ought to be here to answer yea or nay to any question that the state or Mr. Ponton might have.
MR. BABCOCK: Your honor, whatever the Court’s pleasure is. I would - - For my purposes, I would be willing to accept the representations of relevancy that counsel would make to the Court.
THE COURT: Well, I’m not willing to do that. I’ll tell you why I’m not. Because these attorneys are not going to be allowed to testify in this case unless they are involved in it in some way. If they are involved in it to testify, then possibly he shouldn’t be involved in it as an attorney.
MR. BABCOCK: Yes, sir.
THE COURT: Now, where are you from?
MR. BABCOCK: Dallas.
THE COURT: Do they practice this - - that way in Dallas?
MR. BABCOCK: Your Honor, I have had a number of these subpoenas that have been issued to Times-Herald personnel in cases perhaps not quite like this but certainly in criminal cases. And the practice that has been followed in Dallas is that the parties subpoenaing the reporter makes a showing to the Court why there is a high degree of relevance and why there is a need for the reporter’s testimony and that they haven’t been able to develop the same testimony from an alternate source.
The complicating factor of this, of course, is that in Dallas the reporter’s generally a five-minute walk away, and in El Paso that’s obviously not the case. But in my conversations with counsel for the defendant, it has become apparent to me that the nature of the testimony that they seek to elicit from this witness is expert witness testimony, that he has no admissible evidence that could come in and be relevant to any issue in this case. And as the motion says, the reporter declines to participate as an expert for the other side in this case, and I don’t believe the subpoena power reaches to expert witnesses, although it certainly does to fact witness.
THE COURT: Well, that’s the reason that I think that we need Mr. Aynesworth here is to hear this, because what you have told me is - - might very well be something that his testimony or questions propounded to him might well clarify. And if you would like while you’re here, I don’t know when we will get to this matter, but you can get ahold of Mr. Aynesworth. In the meantime, we do have a very nice hotel called - - What’s the name of that hotel?
MR. PONTON: Travelodge.
THE COURT: No, the Windsor.
MR. PONTON: There’s also the Paso del Norte.
THE COURT: It’s a nice hotel. You ought to go down there and partake of it, because we’ll get to you just as soon as we can.
MR. BABCOCK: Your Honor, may I also inquire particularly if we are going to have to stay overnight in the matter whether there is a provision for paying the witnesses and my expense in this matter?
THE COURT: I have no provision to pay you a dime. I didn’t ask you here. And, you know, certainly this Court is not going to pay you.
MR. BABCOCK: All right, sir. Well, I think that we did generally object in the motion to quash because of the payor to allow to pay even a witness fee. With respect to the subpoena, we would expand that to object to the payor to expend reasonable expenses to the matter.
THE COURT: Why don’t you make those objections, then, at the time that we hear your case?
MR. BABCOCK: All right, sir.
THE COURT: Now, I don’t know how you do it in Dallas, but we are going to do it the way we do it in El Paso.
MR. BABCOCK: That’s fair enough, Judge - -
THE COURT: Thank you.
MR. BABCOCK: - - considering where we are.
THE COURT: That’s fine.
MR. MOODY: May I proceed?
THE COURT: Go right ahead, Mr. Moody.
MR. MOODY: Thank you very much, Your Honor.
CONTINUED CROSS-EXAMINATION
BY MR. MOODY:
Q. Mr. Lucas, before lunch we had just reached the point in the questioning here about the tape recording in Sierra Blanca, Texas. You had talked already about the pretape-recorded interview that you had with Detective Benito Perez and Sergeant Jimmy Apodaca and then we had the issue of the actual tape-recorded statement.
Now, do you recall if you were warned of your rights by Detective Perez in that tape-recorded statement?
A. I believe I was, yes.
Q. Okay. And again, based on the answers in the tape recording, you did say that you understood your rights and that you were giving those up. Is that correct?
A. On the tape recording, yes.
Q. Yes. It’s not until, well, I guess, yesterday when you were testifying and stated that - - that while you said you were giving them up that you were only giving them up because of this fear that you had?
A. Right.
Q. Okay. Now, when Detective Perez and Sergeant Apodaca were going through this pretape-recording interview with you, did they - - was Detective Perez asking you questions or was he supplying information to you or what?
A. Well, he was doing both.
Q. What type of information did he supply to you right before this statement was tape recorded?
A. About the fact is that the woman didn’t drink, that they was - - fact there were clothes being beside her.
Q. Did he show you a picture of that?
A. No. Not at that time, no.
Q. What clothing did he say was beside her?
A. Her panties.
Q. Did he tell you why he was giving you this information?
A. No.
Q. Did it seem strange to you that if he wanted you to tell him the story why was he giving you the details?
A. They all did. I mean, I didn’t - - it wasn’t none of my business if they wanted to give it to me.
Q. In other words, Detective Perez was acting a lot like all the other arresting officers and different people that came to talk to you?
A. Yeah.
Q. They just came in and said, “Henry, here are the facts of the case. Did you do it?” And you say, “Yes, I did,” and then you go back and give them all their facts again?
A. That’s right.
Q. Right?
A. That’s correct, yeah. Not everybody did that, just some of them.
Q. That was something that was very typical that happened?
A. Right.
Q. They’d give you the information, you were not ever giving them information?
A. I was trying to, but I never could match nothing they had. So they would give me the information off of what they had and then I would give it back to them.
Q. But, I mean, obviously when Detective Perez is sitting there and giving you this information, then, I mean, to you it’s no great discovery that you’re able to give it back to him only o few minutes later?
A. That’s right. It’s common. I mean, I did it most of the time.
Q. Do you have any idea why the police officers all over the country - - not all of them, I’m saying, but many, many of them would be - - why they would want to do that?
A. Well, they were convinced ahead of time that I was the one that done it.
Q. How could they be convinced without ever talking to you?
A. Well, they talked to Smith. He - - Smith convinced them that I did it.
Q. Okay. Clayton Smith was the - -
A. No, not Clayton, the other guy. The other Smith.
Q. Oh, Jerry Smith?
A. Yeah.
Q. Okay. But Jerry Smith had done the same thing. I mean, he had given you the details?
A. Right.
Q. Right?
A. Right, correct.
Q. What other details did Detective Perez give you?
A. Well, he told me about the suspect he had. There were several different suspects that he had, but none of them, according to him, gave him the information he needed.
Q. In other words, he told you about other suspects?
A. Yes.
Q. Did you remember their names or do you remember?
A. No, I don’t. I remember one, but I don’t know whether he connected or not, sir.
Q. In other words, he had - - he told you that he had several suspects who he had worked on?
A. Yeah.
Q. But when it come down to talking to him, none of them had enough of the details of the crime to convince him that they did it?
A. I guess that’s the way he was talking. I don’t know.
Q. Well, does it make any sense to you, then, if - - why is he going give you the details when he hadn’t given those other people the details?
A. I have no idea. I can’t tell you what he give the other people, but I don’t know.
Q. Basically, do you think you had just become, what, a clearinghouse for murder cases, unsolved murders? Is that kind of what - -
A. I was clearing them under the threat. I don’t know what you would call it.
Q. Well, you would agree that is not very professional of the police officer to sit there and hand you all the details and then you give it back to them. I mean, that wouldn’t prove much of anything.
A. I’m not going to criticize the police officers. That’s not something I’m going to do.
Q. Do you think that’s a good way to do an investigation?
A. Well, I got to give you my own opinion. I don’t know that.
Q. That’s fine. Give me your own opinion. You know, you’re entitled to one.
A. It’s not professional.
Q. Oh. Do you recall anything else that he gave you? He talked to you about the clothing, you say, and talked to you that she didn’t drink and he told you about the other suspects he had.
A. He talked about those. And there was something else, but I don’t remember exactly what it was. And I was tired. I don’t - -
Q. Wasn’t very important or - -
A. No, I don’t think so.
Q. Did Detective Perez seem interested that you get the facts right in this case?
A. They all have. I can’t just say him.
Q. Yeah.
A. They all have. What I recall him saying, you got to get them right or you don’t get the case. I’ve sat sometimes all night going over cases, you know, going over the same case over and over and over again until I did get it right.
Q. Okay. And apparently you went over some of this detail with Benny Perez there in Sierra Blanca?
A. I went over some of it.
Q. So you could get it right?
A. Right, yeah. And - -
Q. And of course, they would have a tendency - - Benny Perez, sometimes he talked to you on the tape recorder and sometimes he wouldn’t. Right?
A. No. I’m pretty sure he had the tape recorder on all the time we was talking except the first part of it. The first part, you know, what I call the introduction of the case, they didn’t have the tape recorder on.
Q. Do you have any idea why, then, in this case, if the details seemed important to him and, you know, they liked to go over and over and over them until you get them right, the first thing he asked you about the case is “What day was it, do you remember?” And you say, “In this case, if I can recall right, it was anywhere from the 5th of May until the 6th of May.”
A. Yeah, because I didn’t remember what day it was.
Q. Well, you got the date wrong. Right off the bat, the first question you missed.
Well, then, you know, Detective Perez, who you said later tape recorded stuff that gets lost or has never been found, why didn’t he just turn off the tape recorder and say, “Henry, you got it wrong,” you know, “take this tape recording out, throw it away. Let’s start again. It was May 27th, 1983, Henry. Can you get that right?”
A. He didn’t say that.
Q. He didn’t do it that way?
A. No.
Q. Well, don’t you think if he was really trying to get it right, why did he do it that way?
A. I don’t know.
Q. That would have been a much better way to do it if he was trying to get you to get it right.
A. I know that. I’m just telling you what he done. He didn’t - - Once he turned the tape recorder on, he went on through.
Q. Now, you talk about, “driving around in different neighborhoods and ended up on a street, so I decided I would park the car and get out and walk.” And this is not in response to any question. This tape recording part is all you telling a story. There is no question here. There will be some later, but at this point that I’m going for - - And I’ll show you where I’m reading from is the first page of this - - of this - -
MR. PONTON: What date is that, Bill?
MR. MOODY: That’s the 19th of September in Sierra Blanca.
A. I can’t see it.
MR. MOODY: You just get your glasses out there. See, the first question is, “What day was it, do you remember?” And you said, “That was on the 11th of January, ’83. And this case” - - I think you meant, probably meant June 11th. That was the date you were arrested. “And this case, if I can recall right, was anywhere from the 5th of May or until the 6th of May. I may be off a day or two, but I don’t think so. This is when I was coming back from Tucson, Arizona.”
And you go on and on for quite a few - - it looks like on to page 2 and then on to page 3 before Detective Perez asked you even another question. Do you see that? It was kind of like you telling him a story there. Right?
A. I can tell you what that was, as far as telling it goes.
Q. Well, tell me.
A. Where I had to give them an excuse for the case, you know, in other words, a description. And that’s what that is.
Q. Okay. You hadn’t really been out in California prior to the commission of this offense?
A. I had been out to Arizona.
Q. Right before that happened?
A. Well, no, it was after it happened. That’s where I’m talking about Arizona, close to June 11th.
Q. Yeah, June 11th. Oh, you got all the way to Arizona on that trip? Because you were in Deming. You went - - How far west did you go on that trip?
A. To the state line.
Q. To Arizona? Why did you go over there?
A. Started in California.
Q. Why were you going to California?
A. That’s between me and another case and I don’t want to get into that right now.
Q. Oh. You weren’t looking - - I mean, didn’t Gene Ross, do you remember him testifying here in court that you were out looking for Kate and Becky?
A. That’s right.
Q. And, I mean, isn’t that what you told him?
A. Yep. Yep.
Q. And, in fact, didn’t you tell him that you had even found them?
A. Yep. That’s still on another case.
Q. But, I mean, you did tell Gene Ross that, didn’t you?
A. True.
Q. But the thing you don’t want to talk about is whether or not that’s really true. I mean, it’s something you said, but you don’t want to talk about whether or not you really found Kate and Becky out there around Tucumcari, San Jon, New Mexico?
A. I’m not going into that part.
Q. And about how the cripples lady who had been missing over a year climbed into the back of an Army - - or was it an ambulance or something and had apparently been out there hitchhiking or something? She was kind of old for a hitchhiker, but you don’t want to talk about that?
A. No.
Q. Remember the - - And then it says here, the part about, “I could see a light on it, you know, and, uh, I couldn’t see nobody moving around in the house nowhere so I figured they just left the light on for security.”
Do you remember telling Detective Perez that?
A. I remember talking about the light because I’m pretty sure that light was mentioned to me before.
Q. Okay. That part about the light being on was a fact that was correct in the case, and - - but somebody had given that to you. Who gave that to you?
A. I don’t remember whether it was Smith or Perez before we was talking. I don’t remember. It was - - Specific question that he asked was why did I leave the light on.
Q. Well, here there is no specific question.
A. I know.
Q. It’s just an answer. Or maybe it’s just a statement.
“So I went on around the back of the house and went up a little walkway, there behind the house and went up, I think, two steps.” Do you know why you picked out two steps?
A. Because the picture I saw had two steps on it.
Q. And did you see that picture that day or - -
A. No, I don’t remember seeing it that day, but I had seen it.
Q. You hadn’t seen it that day and you hadn’t Seen it the night before, so it must have been back either in Montaque or - -
A. Well, it could have been Montaque or it could have been there in Midland or Odessa. I don’t remember which.
Q. By that guy that you still don’t know who he is?
A. Yeah.
Q. You looked at a picture and you could tell enough - - you could remember enough back that - - you paid that much attention to that one picture to remember that there were two steps there beside her house?
A. That’s right.
Q. That’s a pretty good memory. Isn’t it?
A. I wouldn’t say it’s a good memory. It’s just that it sticks with me. That’s all I can say. I don’t know why.
Q. And then on down here it says, “And so I took and went to where I heard a noise from, which was the bedroom, and as soon as I walked in the door of the bedroom, why, the woman jumped by the bed and run.”
Okay. Where did you get that information?
A. The bedroom part was from Perez.
Q. Okay. He told you that she was in the bedroom when she was attacked?
A. Right.
Q. He told you that before?
A. Before the tape was turned on. Like I say, we discussed the whole case right down to, you know, where we go to the finish of it, and then they made the tape.
Q. Well, didn’t he tell you - - There is a part up here where you were talking about how you went in. It says, “Went in the kitchen door.” Do you remember you saying that?
A. I remember he never did change it.
Q. I mean, you had - - I mean, Detective Perez had not told you that the entry was through the kitchen door, had he?
A. No.
Q. In fact, did he tell you how he suspected the person had gotten in?
A. No, I don’t recall him saying how they got in. He just said they broke in.
Q. Okay. So then, what, you just guessed?
A. I just stated the door, and he left it at that.
Q. He would make sure that you had details down to the degree to know that there were two steps leading to that door, but he didn’t go back and redo the tape recording that there was a door - - that the entry was through the door?
A. I’m not saying that he is the one that showed me the picture, the one with the steps. I already knew that. It was from either Montaque or Midland. I don’t know which.
Q. It talks about the portion here, “I grabbed the axe and took after her, you know, and I caught her just before she got to the front door of the house. And when she did, I hit her pretty close to centerways in the back with the axe.”
Now, do you remember seeing that photograph here in court where there is that wound to her back that’s right in the center?
A. I heard you-all talking about one that had a scrapings in the back. I don’t know of any chopping in the back.
Q. And then they showed you that picture before so that you could - -
A. No.
Q. So that you could tell that she had been hit between the shoulder blades?
A. No.
Q. By something?
A. No.
Q. How did you - - How come you put that in there, then?
A. I just did. I don’t know why.
Q. That wasn’t supplied to you at all by anybody?
A. Not that I can recall.
Q. You just kind of put the axe between the shoulder blades in there?
A. That’s the only way I can answer it. I don’t know home come that I put it in there. I just don’t remember anybody telling me. They could have. I don’t remember.
Q. Do you remember telling him, “I hit her, I think, four, maybe five times with the axe”? Did they tell you how many times she had been hit?
A. I don’t recall.
Q. Do you know how come you got the number of wounds, the chop wounds to the head approximately correct?
A. No, I don’t know.
Q. I mean, you didn’t just say, you know, one chop.
A. I don’t remember even talking about her head. Maybe I did, but I don’t remember it.
Q. Nobody told you how many times she had been hit?
A. No. Not that I can recall.
Q. You stated, “And there was blood spewed on me and her, and I went to, you know, where’s her body.”
How did you know that the blood had spewed up? Had you seen the photographs of how the blood had spewed up?
A. I can’t even answer that. I don’t know how I knew.
Q. Do you ever - -
A. It seems like anybody with common sense, if somebody chops somebody with an axe, it’s going to spray blood somewhere, is going to spew. That’s the way I said it.
Q. “And I took and had sex with her after that.”
A. Well, I knew she had sex, so it had to be after death. That’s what they told me.
Q. Why after - - Why would the sex have to be after death instead of before death?
A. Well, that’s just the way I was told. I don’t know.
Q. They told you that she was assaulted after death?
A. Yes, they did.
Q. Now, hadn’t there been - -
A. Not Perez, but Smith did.
Q. Smith told you that she had been sexually assaulted after she was dead?
A. Yes.
Q. That’s not the first time you had heard about sex after death, was it?
A. No.
Q. As a matter of fact, that was one of your famous trademarks, wasn’t it?
A. Well, that the average case they would present to me is sex after death.
Q. In fact, you had a propensity to confess to crimes telling people that that’s the way you enjoyed sex was after the people were dead?
A. That’s the way the cases were presented to me.
Q. In all the cases that were presented to you there was a sexual assault after death?
A. That’s the way they would describe them, so I took it that all of them were.
Q. How did they do that on - - When you said that you had sexually assaulted Kate Rich after she was dead, how did that - - I mean, all they had left were little bitty charred pieces of bone.
A. I don’t know about that. That’s a different case and I’m not going to get into that particular case. I’m talking about the average case that Texas Rangers gave me. I’m not talking about one specific case.
Q. But there are a lot of specific cases where the bodies were greatly decomposed or only skeletons remaining, why, they would have no idea if there was sex before death, sex after death, any way at all, but you always liked to talk about sex after death, didn’t you?
A. Let’s just skip that question. All right?
Q. I don’t really like to skip that question. You know, that isn’t the first time it had come up. It came up in Michigan about your mother, didn’t it?
A. I have not comment about other cases.
Q. Well, didn’t you tell the psychiatrists something - - again from the same report you related - - and this is in regards to killing your mother, “He related this incident to the fact that he wanted to have sexual intercourse with her. When asked if he did, he said he could not remember. He went on to state that he killed her when they were both on the bed. While the patient was relating the incident, he kept smiling.” Do you think that was humorous?
A. I have no idea about it.
Q. “He also stated that he had never told a complete story about the murder of his mother and never will.” And so you’re keeping your promise. You wouldn’t say why in ’65 that that happened and you aren’t 20 years later, either, are you?
A. I have no comment.
Q. MR. MOODY: I’d like to mark this.
(State’s exhibit marked, S-21.)
Q. (BY MR. MOODY) This is just a Xerox of that photograph of your mother laying there dead on the floor in Michigan 20-some-odd years ago. Do you remember that?
A. No, I don’t.
Q. You don’t remember that. Notice how her skirt is pushed up?
A. I don’t know anything about it.
Q. Don’t know anything about that?
A. Nope.
Q. Do you remember pictures of Mrs. Apodaca, How her underclothes and things were pushed up?
A. I haven’t saw a picture of Mrs. Apodaca.
Q. Why did you leave your mother’s socks on?
A. I don’t know that.
MR. PONTON: Your Honor, at this time I would object to this whole line of questioning. He is trying to, a., impeach the witness about a remote act more than ten years from now, and, b., going into an extraneous offense, which, as the case law submitted to the Court and Mr. Moody shows is not the proper grounds for going into with this witness when this witness took the stand.
THE COURT: Mr. Moody, can you tie it up to this particular cause?
MR. MOODY: Well, Your Honor, I think I can. I will get back to that in just a second. I’ll try to tie that up.
THE COURT: I’ll overrule you at this time, Mr. Ponton. If he cannot tie it up, then I’ll - -
MR. PONTON: Thank you, Your Honor.
Q. (BY MR. MOODY) There are a lot of similarities between the murder of your mother and the murder of Mrs. Apodaca, aren’t there?
A. That’s your opinion.
Q. They were both elderly ladies?
A. I told you I have nothing to say about my mother.
Q. Were they both attacked in the bedroom?
MR. PONTON: Excuse me, Your Honor.
A. I have no more comments.
MR. PONTON: At this time, Your Honor, once again I would object to Mr. Moody going into the specific facts of a remote, over-20-year-old offense for which Mr. Lucas has spent 15 years in prison and which is too old for it to be used to impeach him, and using that to try to go into the specific acts of the crime here, that he is charged with here, when he is here to testify about the voluntariness of the confession that he gave to this crime.
THE COURT: Mr. Moody, tell me how - -
MR. MOODY: Well, I want to show that, you know, if we get into the murder trial of this case, the extraneous nature of this case, as the Court is well aware, that many times you can - - the state can bring forth extraneous offenses when they can show the similarity of one murder from - - and another. There is a whole series of murders that Mr. Lucas has allegedly confessed to that involve elderly women, that involve sexual or possible sexual assaults, which involve break-ins into their home, which involve his admissions and talking about sex after death. I think I can ties them all together, and I think that in that nature it might well be relevant.
MR. PONTON: The - - I still - -
THE COURT: I’m going - - I think your statement is correct, Mr. Moody, if this gentleman takes the witness stand at his trial. But for the purpose of this hearing, let’s try to stick as close as we can to the suppression motion. You know, I have cautioned the defense about it. They have not heard that request in three weeks. I’d hope that maybe the state will hear it.
MR. MOODY: All right.
MR. PONTON: Thank you, Your Honor.
Q. (BY MR. MOODY) Let’s go back to September 20th, then, I believe - - No, pardon me. I was still on the 19th, wasn’t I? We hadn’t finished the Sierra Blanca confession. So the idea of having sex after Mrs. Apodaca was dead was an idea that was given to you by the police?
A. That’s correct.
Q. You stated, then, that you’d better wash up and washed up your hands, described the bathroom at some detail. How did you know what the bathroom looked like?
A. I knew about it from the pictures.
Q. You had seen pictures of the bathroom?
A. Yes.
Q. And when had you seen those pictures?
A. When I went over the case in Montaque County.
Q. That was those - - maybe a year before?
A. Yes.
Q. And could you remember exactly what kind of bathtub it was and exactly where the mirrors were and where the sink was in location to everything in that particular bathroom?
A. I could.
Q. And again you don’t think that’s an amazing memory?
A. I don’t know what it is. I don’t know how come I can remember things. I’m not a magician or anything else. I just don’t know.
Q. Are you sure that - - Well, we will throw that out.
Then you started mentioning that you went - - you started going through the drawers and dressers. Now, admittedly, you had been told that the house had been ransacked?
A. Yes.
Q. Where did you get the items that you listed there as being - - that you went through and looked at like her purse, some old silver, a radio? Do you know where you got that information?
A. Yeah, it’s in every case I have.
Q. In every case you say that, “I always go through the lady’s purse, I always go through - - I always take old silver”?
A. I said old silver, yes.
Q. Why do you do that?
A. Well, that’s mostly what old people have is old silver, you know. They have knickknacks made out of silver. They have all kinds of silver. And I just put down silver, you know. I don’t know what it was.
Q. What about radios? Why do you always put down radios?
A. Well, the average burglar that commits a crime steals a radio.
Q. How do you know that an average burglar takes a radio?
A. Because I saw so many cases that I know.
Q. Doesn’t have anything to do with the fact that - - I mean, the burglary was something - - I mean, I don’t want you to confess to any burglaries, you know, and we are not here to prosecute you on burglaries. But burglary is something that you’re very familiar with over the many, many years since you were a little bitty kid. Right?
A. I have had my share.
Q. In fact, you think maybe you’re an expert - - do you think you’re an expert in burglaries?
A. No.
Q. Where did you get the color of the slip from? You said there it was a pink slip?
A. I don’t know where the color came from. I don’t have no idea.
Q. Was it given to you or did you just guess it right?
A. I guess I guessed it. I don’t know. I didn’t even know it was right.
Q. And the part about an old pair of white panties. You just guessed that right, too. You weren’t given that?
A. Like I told you, I was told about the panties.
Q. You were told that there were panties next to her?
A. White panties laying beside her.
Q. Were you told what kind they were?
A. They said old white panties. That’s all I know. I don’t know what they were.
Q. When Benny Perez asked you, “What did you do with the white panties?” you said, “I think I just took them off of her, as far as the bra just her slip and housecoat. I don’t think I took it off. I think I more or less just pushed it up. And, uh, I don’t think she had anything on her feet.”
A. The best I can remember, that was described to me. I don’t recall whether it was or not, but I’m pretty sure it was.
Q. Nobody had ever mentioned whether anything was on her feet or off her feet, had they?
A. I don’t know. I know that we talked about the clothing, the body and stuff like that, but I don’t know what - - how it was described to me.
Q. You just - - You liked to talk about feet or - -
A. No, I don’t like talking about feet.
Q. Is it something you don’t want to talk about?
A. No.
Q. Do you remember in your psychiatric report here when you were in Montaque County, I think an item that was introduced into evidence here by the defense, okay - - Let’s get that from your exhibit. Do you remember as part of that exhibit that they - - they asked you some questions there when you were there as part of this exhibit and it says, “If statements are present in this section, patient answered them in the direction indicated. These items suggest serious psychological problems and may require further clinical inquiry.” And that is the one done right there - - Oh, let’s see. According to this record - - Where is it? Looks like the 19th of June 1983. This was when you were brought in for your attempted suicide.
A. I couldn’t tell you what, because I don’t know.
Q. Well, see, it says, “Final diagnosis: attempted suicide by hanging with socks.”
A. I don’t know how I hung myself with socks when there is nothing in there but a steel bed. I still ain’t figured that out.
Q. Okay. Now, you answered the question here: “My sex life is satisfactory: False.” Do you remember answering it that way?
A. I don’t remember answering any of the questions. The police officers are the one that did the report. I didn’t do it.
Q. No, this is the hospital people.
A. I’m talking about the hospital report. I didn’t do it.
Q. You mean that they just came up with all this bizarre stuff about you, stuff like you were saying at that time, “Evil spirits possess me at times”?
A. That there was all done by the police officers. It was not done by me.
Q. “I have had very peculiar and strange experiences.” Do you remember that one?
A. No, I don’t.
Q. “Sometimes I am strongly attracted by personal articles of others such as shoes, gloves, et cetera, so that I want to handle or steal them though I have no use for them.”
A. I did not say it.
Q. How could - - How could they make up a profile on you like this without knowing anything about you?
A. They brought a report in there for me to fill out and I couldn’t fill it out, so the two police officers filled the report out and gave it back to the doctor. And that’s all I can tell you about it.
Q. Well, how lucky. Because, I mean, their report seems to go back and talk about a lot of the same bizarre things that the psychiatrists in Michigan say you said. Is that just a coincidence?
A. I have no idea. I told you I didn’t do the report.
Q. “Sometimes I feel like I must injure either myself of someone else.”
A. I don’t know nothing.
Q. Nothing in - - even though it’s answered as true?
A. I took this same report the last time I was down here for the psychiatrists over here and that’s the same report that they did in the Wichita Falls hospital. I don’t know who done the report after they got through with writing in the book on it. I don’t know.
Q. So, in other words, these police officers filled out these things for you?
A. It was the two deputy sheriffs in Montaque County.
Q. Do you know their names?
A. No. They was the only two there. That’s the only two deputies that was in Montaque County.
Q. Why do you think they would be filling things out like this to make you look like a really bizarre sexual person?
A. I don’t know. They just wanted me back in the Montaque jail, so they filled it out to take me back, so they could take me back. Because the doctor wouldn’t release me.
Q. And so, I mean, the doctors and nurses weren’t present when this was filled out?
A. No.
Q. Nobody was present but some deputy sheriffs?
A. That’s all.
Q. Do you think they were doing this just as a joke?
A. I have no idea. I’m telling you who filled the report out. That’s all I can do.
Q. Well, did you bring up these matters when you were in Montaque County before?
A. No, I did not.
Q. In your previous trials?
A. No.
Q. Nothing? Based on this information, they reached - - the clinical psychologists reached the opinion, “The patient may be acutely psychotic, too confused to answer the questions accurately. The patient may be exaggerating symptoms in order to dramatize a need for treatment or the patient may be deliberately malingering, faking, in order to accomplish some specific objective.” But you’re saying all that is incorrect because you did not answer the questions at all?
A. I did not answer the questions. There was a book of questions, there was 500-some questions, but I don’t remember exactly what all the questions are. And they were given to me to do and I couldn’t do them.
THE COURT: Mr. Ponton, come up here. Mr. Moody, come up here. Let me ask you-all a question. I see another fellow back here with a subpoena. These people that have these subpoenas, are they all here for the purpose of contesting them?
MR. PONTON: That’s the only one I know of, Your Honor.
THE COURT: Well there was a man back there. He had a subpoena and he just walked out.
MR. PONTON: I didn’t see him.
THE COURT: Do you know who these people are?
MR. PONTON: I didn’t see him.
THE COURT: Well, the reason I’m asking is because the rule was invoked at the beginning of this thing. This fellow may be a lawyer, he may be - - I don’t know who he is, but certainly if the rule has been invoked - -
MR. PONTON: I have instructed all my witnesses.
THE COURT: He is a nice-looking young fellow with a blue suit, and I didn’t - - when he walked out he had that subpoena, and that’s the reason I called you up here.
MR. PONTON: I can’t say.
MR. MOODY: I didn’t see him, so I don’t know. I’ll try to find out.
THE COURT: Well, I’m just saying that if indeed he is going to be a witness - -
MR. PONTON: Swear him in and keep him out.
THE COURT: If you see them, you can nod at me.
MR. PONTON: Well, I have talked to them all on the telephone, not in person.
MR. MOODY: I didn’t see who it was, so I don’t know.
THE COURT: Well, at the break, Mr. Ponton, you get ahold of Mr. Aynesworth and this other lawyer and we will take that up just as soon as they get here.
MR. PONTON: Yes, Your Honor.
THE COURT: Go ahead, Mr. Moody, I’m sorry.
Q. (BY MR. MOODY) You talked about rubber surgical gloves. How did that come up?
A. That came up because that’s what I used when they would have fingerprints.
Q. Did they tell you about fingerprints in this case?
A. Yes.
Q. They told you about fingerprints?
A. Yes.
Q. Did they tell you your fingerprints didn’t match?
A. They didn’t say. I said I wore rubber gloves because they said they had fingerprints.
Q. Why did you say that?
A. Because I knew my fingerprints wasn’t there.
Q. Okay. And, in fact, in a lot of cases did you talk about rubber gloves?
A. I did, because they had my fingerprints.
Q. Every time you talked about rubber gloves it was because you found out there were fingerprints there?
A. Right.
Q. It wasn’t because you had actually worn rubber gloves to burglaries?
A. No.
Q. It wasn’t because it’s important, you know, many times to a burglar not to leave fingerprints?
A. I don’t know about that, but I just - - every time they would say they had fingerprints, I knew they wouldn’t match mine so I would say I had rubber gloves on.
Q. Now, after Detective Perez finished this statement on the tape-recorded portion, was there another - - did he talk to you a little bit more after the tape recorder was off?
A. Yes.
Q. What was that about?
A. He asked me to come out here and I refused to come.
Q. You wouldn’t come?
A. Correct.
Q. And why did you say you didn’t want to come?
A. Because I was tired.
Q. Just because you were tired?
A. Yes. You stay up six days and nights and see if you don’t get tired.
Q. Probably tire most of us out. I guess bringing that up, what are your sleep habits? I mean, do you normally sleep eight or ten hours a night or - -
A. I was sleeping fairly well before I got arrested, but after that I didn’t get a very good chance to rest up.
Q. Now, you wouldn’t say all your life you pretty much have been able to sleep, you know, sleep three, four, five hours and that’s about it?
A. I sleep somewhere between four or five hours, maybe six hours.
Q. I mean, people like Rueben Moore say, “Hey, that Henry Lucas didn’t sleep much. He was up at all times of the day and night.”
A. I worked all the time, too.
Q. That’s what I mean. You were up - - There wasn’t anything different, really, was there? You have never been much of a sleeper?
A. I used to be, yeah.
Q. Before or after you killed your mama?
A. I have no comment on that.
MR. PONTON: Once again, Your Honor, I object.
THE COURT: I’ll sustain the objection. Mr. Moody - -
MR. PONTON: Rule 609, Texas Rules of Criminal Evidence.
THE COURT: I have sustained your objection.
Q. (BY MR. MOODY) When did you have a problems develop with problems sleeping?
A. During the hospital stay.
Q. The hospital. Which hospital stay?
A. The six years I spent in the hospital.
Q. The one in Michigan?
A. Yes.
Q. Then after - - And after that point, when you had trouble, how much time do you think you would sleep on the average per night?
A. Sometimes I wouldn’t get no sleep at nights.
Q. That didn’t matter whether you were in jail or out of jail, sometimes you just didn’t sleep?
A. Well, when I was out of jail, I slept. You know, I was - - after I got in jail in Montaque County, I didn’t sleep.
Q. You just, I mean, you didn’t sleep at all?
A. No, because they kept me up talking to me.
Q. How many days in a row?
A. Seven days a week.
Q. They kept you up seven days a week for three months?
A. Well, until Phil Ryan took off because he couldn’t stand it.
Q. Well, how many months? How many consecutive months can you stay awake? Have you ever tested yourself?
A. No, I haven’t.
Q. How many months did you stay awake without any sleep there in Montaque?
A. As far as I know, it was up to June, sometime the last of June or July before I ever went to bed.
Q. So in other words, you were up constantly from June - - well, when you gave that confession about the 15th of June - -
A. Yes.
Q. - - until either the end of June or the middle of July?
A. Correct.
Q. Either at least two or three weeks minimum and maybe a month or over and Phil Ryan was up with you?
A. Yes. He would take turns, him and Smith, the investigator there in Montaque County.
Q. But, I mean, they got little sleep?
A. I suppose so.
Q. Because they weren’t - -
A. But - -
Q. He wasn’t - - In other words, Ryan wasn’t but you were the one that wasn’t getting any sleep?
A. That’s right.
Q. For a month and a half?
A. That’s right.
Q. Did you ever raise that problem at your suppression hearings in Montaque County?
A. I did.
Q. What happened?
A. The judge ordered that I be taken off the medication and not be allowed to have no medication. And it didn’t make no difference what the judge said, it wasn’t obeyed.
Q. They just kept pouring the drugs down you?
A. Right.
Q. And you were taking them. What were they - - If you wouldn’t want to take the drugs, what were they going to do to you?
A. I don’t know. I just - - They took my cigarettes one time because I wouldn’t take them. Had me locked up there in the room with nothing on.
Q. Now, are you sure that the reason you weren’t locked up in rather an isolated condition was because of your attempted suicide?
A. No, it was not, no.
Q. That that’s the reason that they took bed sheets and things away so you wouldn’t maybe hang yourself?
A. They took everything away the day I walked in the jail.
Q. They took everything away?
A. That’s right. They only gave them back to me after I started confessing.
Q. They just kept you in that jail cell - - But, I mean, every stitch or clothing? You were - -
A. Everything.
Q. You were just laying there nude in the - -
A. That’s right.
Q. On the floor?
A. On a steel bed.
Q. So there was a steel bed that you were laying on. So they had - - Now, this is Montaque County. They had you back in the cold cell?
A. They called it the women’s cell is what they call it, but they have the air conditioner turned wide open and it was like an icebox in there. That’s what they call the cold cell in all jails.
Q. Did they have an individual thermostat for that cell?
A. Yes, they did.
Q. And they just - - Well, it’s awful hot in Montaque County in June, isn’t it?
A. Try it in October, too.
Q. Yeah. It’s hot and humid, isn’t it?
A. No, it isn’t. It’s ice cold.
Q. It’s ice cold in June?
A. That’s right. In that jail cell, it was.
Q. Well, no, I mean outside.
A. Well, outside, I don’t know, I wasn’t outside then.
Q. You have never been - -
A. Outside - -
Q. You have never been outside in Montaque County in June or July?
A. Yes, I have. I have been with my clothes on, but I ain’t been out there without them.
Q. Well, it’s pretty hot and humid in Montaque County, isn’t it?
A. I’m talking about the jail cell itself. That’s what I’m talking about.
Q. Wouldn’t it have made a lot more sense to just try to - - instead of freeze you out, how about sweat you out? I mean, it would cost a lot less money. I mean, why do they want to turn that air conditioner all the way up?
A. You will have to ask Sheriff Conway why he did. I don’t know.
Q. You brought up all this stuff to the judge down in Montaque?
A. I didn’t. My lawyer did.
Q. Your lawyer. And the judge down there didn’t think that was bad to do that to you?
A. Like I told you, he ordered that I be taken off the medicine. I couldn’t even stand up in the courtroom.
Q. Didn’t they say maybe, “Take Henry out of the cold cell”? I mean, “You can give him” - - You didn’t normally come into court naked. I mean, this, you know - -
A. I had clothes on then.
Q. Oh.
A. I didn’t go in the courtroom naked. I went in there with clothes on.
Q. But, I mean, you didn’t complain to the judge about you being, you know, you might have caught pneumonia and died or something?
A. There is many people that complained to the sheriff, the judge and everybody else in that county.
Q. And they wouldn’t do nothing to help?
A. No, they would not.
Q. And they even heard the motions to suppress and the judge just said overruled. Right?
A. No, because they changed the venue.
Q. And then the other judge said overruled?
A. It was the same judge.
Q. It was the same judge. Well, okay, they went to the next county. They didn’t change his opinion. He still said overruled, didn’t he?
A. No, he didn’t.
Q. He didn’t overrule your motions?
A. No, he didn’t.
Q. Well, what happened to your motions up there in Montaque County?
A. I blew up in the courtroom. That’s what happened.
Q. You blew up?
A. Yeah.
Q. How did you blow up?
A. I couldn’t take what they were doing.
Q. What were they doing? In the courtroom? And the judge was watching it going on? What did they do to you?
A. He couldn’t see what was going on, so he didn’t know. He was like this judge here. He doesn’t know what goes on outside of the courtroom, and far as I’m concerned. He only know what is in front of him.
Q. Is something going on?
MR. PONTON: Excuse me, Mr. Moody. At this time, Your Honor, I would object that this line of questioning, what is going on in or out of the courtroom a year and a half ago doesn’t have any relevancy to the issue of Mr. Lucas’ voluntariness in giving a confession to the death of Librada Apodaca.
MR. MOODY: Well, Your Honor, he - - the defense clearly went into that cold cell and all the terrible treatment in Montaque County. I’m trying to figure out what bad treatment and how and who is responsible and - -
THE COURT: Well, Mr. Moody, we have gone into it for quite awhile now. Unless you can bring up something new in this area, let’s go on to something else.
Q. (BY MR. MOODY) So in regards to that cold cell treatment, how long did they keep you in the cold cell treatment?
A. Until I confessed.
Q. Then after you confessed, what did you - - what kind of treatment did you get there?
A. I got everything I wanted.
Q. Is there - - Are you being presently mistreated?
A. Well, if you’d call isolation or segregation, yes, I do.
Q. Would you rather be in with some of the other inmates?
A. I would. I was in population when I was in Huntsville. I wasn’t isolated. I wasn’t treated like I’m a nobody. I’m not allowed to speak to nobody or nothing else.
Q. You mean, our sheriff here treats you kind of like you’re just one of the other prisoners?
A. No, he does not.
Q. How does he treat you different?
A. Because the rest of the prisoners, they can go out and talk to people. They can do - - be there in their cell. They can do a lot of things I can’t do.
Q. Do all of the other prisoners have a history of suicide?
A. I don’t know what the other prisoners got. I’m talking about me.
Q. Yeah. Well, you know, that sometimes you got to be a little more careful with people who have a tendency to commit suicide.
A. You know, the suicide is on the paper. That’s not on me.
Q. But the suicides are even back in Michigan. I mean, that’s how come you got transferred out of the Michigan prison to get into the Michigan mental hospital, because you tried to supposedly kill yourself in Michigan. I mean, these suicides or fake suicides come up all the time in your past, don’t they?
A. No, they do not.
Q. They don’t?
A. No.
Q. That one in Michigan didn’t happen?
A. No, sir.
Q. Well, how come you went to the - - How come they sent you to the mental hospital in Michigan instead of keeping you in the state penitentiary in Michigan?
A. I was transferred there by a judge to a mental hospital.
Q. Why?
A. From an appeal I wrote.
Q. Because of the appeal you wrote they thought you were crazy?
A. No.
Q. Well, why would they send you to a mental hospital?
A. He sent me there for an evaluation.
Q. That was after the trial was already over?
A. Yes.
Q. Why would they do that?
A. From the appeal I wrote.
Q. What did you write in the appeal?
A. I don’t think I have to go into that.
MR. PONTON: Once again, Your Honor, I object to the relevancy of the 20-year-old case in Michigan.
THE COURT: I’ll sustain the objection.
Q. (BY MR. MOODY) Let’s go to the 20th of September and the videotape and going through the day that you went out to the Librada Apodaca home.
You arrived here on an airplane. First, you had been up - - And I think the defense attorney asked you. You had been in Terry County?
A. I went there on another charge, yes.
Q. And - -
A. And I refused to come here and I was brought here, anyway.
Q. And I think he asked you if you were up there pleading guilty or something like that to a case.
A. Right.
Q. That was the Diana Bryant case. Is that right?
A. I have no idea what case it was.
Q. Did the judge ask you if you were guilty or pleading guilty because you were guilty and for no other reason?
A. He did, but I wasn’t going to get up there and tell him why I was pleading guilty.
Q. Did you know what the facts were in that case at all?
A. I knew from what - - the pictures I had seen, yeah.
Q. Was it an interesting coincidence that that was a home that was - - or that was an apartment that was broken in, that there was no signs of forced entry, there was a young lady killed in that apartment, that there was some cereal, some food out on the table just like in the Librada Apodaca case?
A. Yep. If you’d check the photographs, the same thing in the photographs, too, the exact same thing that I told them on the thing.
Q. Well, that was - - You got the information in that case from some photograph?
A. That’s right.
Q. Who gave you those photographs?
A. The officer that cleared the case.
Q. Who was he?
A. I don’t know his name. It’s up there in that county. That’s all I can tell you.
Q. Just a sheriff or policeman?
A. No, he was a police officer.
Q. Ranger or - - He was a police officer. He showed you all the crime scene photos?
A. Yes, he did.
Q. That’s how you knew that you had - - what was it, strangled her with a vacuum cleaner cord?
A. The vacuum cleaner cord was showing. The vacuum cleaner was sitting in a closet with no cord on it. That’s how I knew where the cord and everything came from. It showed where the cord was cut off on the vacuum cleaner.
Q. You don’t have anything about vacuum cleaner? Because there seems to be a vacuum cleaner missing in the Librada Apodaca case.
A. I’m telling you what is in the pictures. I don’t know I the case even happened. I’m telling you what was in the pictures. Like I said, I saw it and that’s it.
Q. Then you came down - - You didn’t want to come down here to El Paso?
A. That’s right.
Q. And then who decided you were coming?
A. Prince did.
Q. Prince gave you the order for you to come?
A. That’s right.
Q. Was Clayton Smith with you?
A. Clayton Smith is the one that he got the orders to bring me down here to El Paso.
Q. Clayton didn’t say, “Bob, he is too tired, you know, he is all tuckered out. Why don’t you take him back to Georgetown?”
A. I don’t know what they talked about. I have no idea.
Q. He didn’t say anything like that and so he just said, “Keep him going and bring him on down”?
A. That’s right.
Q. And then when you got here, after you went to lunch, then proceeded out to the truck stop?
A. That’s correct.
Q. And - -
A. We went to this office up here and then to the truck stop.
Q. You’re sure you went to this office first?
A. I’m positive we went to this office.
Q. Why did you go here?
A. So they could pick the tape recorder up. That’s why they came here.
Q. All right. Now, that’s the tape recorder that - - the tape recording that was never - - or the police say there is no tape. You have heard them testify to that?
A. I have heard them testify to it, yes.
Q. And then they went out to the truck stop. Now, you’re familiar with the truck stop?
A. I am.
Q. You had been there before?
A. I had, in ’81.
Q. And you took - - or when they took you to the truck stop, then they - - how was it that you proceeded down to the Apodaca residence?
A. Well, I knew it was east of town. We just went on east.
Q. How did you know it was east?
A. Because I was told it was east.
Q. How did you even know which way was east and west?
A. Well, I’m not that dumb. I may look dumb, but I’m not. I know east, north, south and west. I know that.
Q. We can just sit you out in the middle of a desert and you can pick out north, south, east and west?
A. Yes, I can.
Q. That’s good. So then you went east?
A. Yes.
Q. Were they telling you where to go at that point of what were they doing?
A. They didn’t tell me anything until I went off the wrong road.
Q. Okay. You directed them to that road?
A. Yes.
Q. And told them to turn down that road?
A. Told them to turn down that road, and it was the wrong road.
Q. Okay. And then you-all went down that road quite a ways, didn’t you?
A. Yes, we did.
Q. Did they - - Were they telling you, “Hey, you’re on the wrong road, Henry”?
A. Nope. They didn’t say a word until I couldn’t find what I was looking for. And I said, “This is not it.” And they said, “Well, let’s go on out to the road here. There is another place just like it.”
Q. Well, you know, if they - - I mean, if they knew you were on the wrong road, I mean, as soon as you turned, they knew you were on the wrong road. Right?
A. I guess so. They must have known.
Q. You know, apparently - - Why didn’t they just tell you, “Henry, you’re on the wrong road”?
A. I don’t know. I’m not a mind reader. I can only answer what happened to me. I don’t know.
Q. When did - - Did they - - Were you the one that told them then, “Hey, this must be the wrong road” or - -
A. I told them it must be.
Q. Why did you tell them that?
A. Because I couldn’t see the river and the railroad.
Q. Which is what you were looking for?
A. Right.
Q. You were telling them - - Did you say, “I’m looking for the railroad tracks and the river”?
A. That’s right.
Q. And so then you went back up to the freeway and you went down a little further?
A. Went on down further to another road and they turned off on it.
Q. Was it them that made the turn or did you tell them to turn there?
A. No, they turned off.
Q. They turned off there?
A. They did.
Q. What about the part where they say that you looked and you saw a filling station and that little Good Time Store or something and you said, “Those are the things I was talking about”? Did you say that?
A. I did. That’s what what’s-his-name told me to turn off on. There was one on the other side, too, where I turned off.
Q. Who told you that?
A. Smith.
Q. Clayton Smith or Jerry Smith?
A. Jerry Smith.
Q. Jerry Smith told you that there would be - -
A. Service stations at the end of the road, little convenience stores.
Q. And that’s where you were supposed to turn off?
A. Yes.
Q. Do you have any idea how Jerry Smith knew that?
A. I have no idea.
Q. Did you ever see any pictures in the case of that?
A. I have seen the pictures of the gas tanks, like I told you, and the river and the railroad.
Q. But not any of those convenience stores?
A. No.
Q. There would have been no reason to take any pictures of a convenience store that is a good four or five miles from the scene or the murder, would there?
A. No, I don’t think so. I don’t know how you people work. I’m only telling you what I know. I don’t know.
Q. Then you went across the railroad track. Right?
A. No, went across the canal or whatever it is first and then across the railroad tracks.
Q. You are sure of that?
A. Yes.
Q. Absolutely positive?
A. Yeah. Where I was at we went across it.
Q. You went across the river first and then the railroad tracks?
A. Yes.
Q. And do you remember getting down to an area about where a cemetery is?
A. I don’t know. They was driving around in there. I didn’t - - I don’t remember seeing a cemetery. But if it’s there, it was there. I don’t remember seeing it. They were driving every street in that area.
Q. Were they asking you to tell them which way to turn or which way to go?
A. No, they were not.
Q. In other words, they were just driving around like they were lost?
A. That’s about the way I call it. They kept asking me did I see anything I recognized.
Q. Well, and then, of course, then they take you right to the - -
A. They drove right up in front of it, eventually, after we drove around for awhile.
Q. And when they drove up front, then what happened?
A. They asked me again did I recognize anything, and I said no.
Q. Who was asking?
A. Perez.
Q. Did he actually turn down a road to get there or did you stop on the - -
A. No, he turned down the road.
Q. Cement or dirt road?
A. Cement first, and then he turned off on this dirt driveway, I call it.
Q. Okay. Then you went down that dirt driveway. What happened?
A. He drove around down there and he pulled up right in front of the house and stopped. He says, “Anything you see or that you recognize?”
Q. And then what did you say?
A. I said no. He left out of there and went on down around the block again and parked at the same driveway.
Q. Well, that was pretty good hint for you, wasn’t it? I mean, why - - you know, like you said, you’re not stupid.
A. That’s right. It was a good hint.
Q. I mean, why didn’t you just right there say, “Yeah, that looks familiar.” I mean, he took you right to the scene and stopped and says, “Hey,” he says - -
A. Well, I wasn’t positive until we come back the second time.
Q. Well, I mean, you had seen pictures of it?
A. I had.
Q. All right.
A. I didn’t recognize it until he stopped the second time. That’s all.
Q. What was different about stopping at it the second time that made you recognize it?
A. We walked to it.
Q. Who was leading?
A. They - - We were all together. There wasn’t nobody leading us. We was all walking up there together. They wanted to stop and get out and walk, and so we got out and walked.
Q. How come you didn’t just tell them the first time, “That’s the house”?
A. Because I didn’t recognize it from the picture.
Q. What was different?
A. It just looked like a newer house.
Q. And did the - - when you went back towards the area the second time, why were you sure the second time?
A. Because that was the only adobe house that I had seen.
Q. That’s the only adobe house on that road?
A. That’s the only one I seen on that road?
Q. But there are three houses on that street?
A. They are all wooden houses, too.
Q. But they are all adobe houses.
A. No.
Q. Well, okay. But I won’t argue with you because you’re the witness, so you just tell it. So in other words, you’re saying that the houses next door are wooden houses and that was the only adobe house?
A. Right.
Q. And that’s how you knew.
A. That’s it.
THE COURT: Mr. Moody, shall we take a break for a few minutes?
MR. MOODY: Sure. Thank you, Your Honor.
THE COURT: Mr. Ponton, you go see what I asked about. Let’s see if we can do that. We ought to be able to take a short - -
MR. PONTON: Your Honor, we want to be able to do that at the end of the day.
THE COURT: Just as quick as we can. If we can get it done, it shouldn’t take more than five or ten minutes, should it? Have you read the case here?
MR. PONTON: Yes, Your Honor.
THE COURT: Do you understand what you have to do?
MR. PONTON: Yes, Your Honor, I do.
(A brief recess was taken.)
THE COURT: Please be seated, ladies and gentlemen.
Q. (BY MR. MOODY) All right. I believe when we broke we were on September 20th, going to the crime scene of Librada Apodaca’s home, and we had just talked about, I think, the house, and - - the adobe house that she lived in and the two wooden houses that were next door. You had just mentioned that. And did you actually go inside the house?
A. Yeah, they got permission to go inside.
Q. How did they get permission?
A. Some woman.
Q. Some woman came by. Do you remember the little girl being there?
A. Yeah.
Q. Remember her going in through one of the windows or something?
A. Yeah.
Q. The - - When you got inside, about how long did you spend inside the house?
A. Probably three minutes.
Q. Very short period of time?
A. Yes.
Q. Was the lady, the owner of the house or her daughter going around with you-all?
A. No, they was sitting on the couch.
Q. But you could see them from where you were at?
A. Yes.
Q. Were you ever out in the room that they were in?
A. Yes.
Q. Did you talk to them?
A. No.
Q. Did - - Which room were they in, do you recall?
A. They were in the living room, what I call it. You-all call it a den.
Q. Is that - -
A. I don’t know what it was.
Q. Does that turn out to be the room that Mrs. Apodaca was killed in?
A. No.
Q. Was it a different one?
A. No, different one.
Q. Different one. Did they indicate to you in any way exactly where Mrs. Apodaca‘s body was found?
A. Yeah, they turned back - - the rug back and showed me.
Q. They did what?
A. They turned the rug back and showed me.
Q. They turned the rug back and showed it to you?
A. The carpet, whatever you want to call it.
Q. When did they do that?
A. While I was in the house.
Q. Right there while the lady was there and her daughter?
A. Yes.
Q. And what did they say when they turned the rug back?
A. They didn’t say nothing. I was in the living room, what you people call the den, I was in there. And they turned the rug back, so I walked back to where they turned the rug back.
Q. What were you trying to at that point?
A. Trying to show them where the body was.
Q. Well, that was pretty hard to do. Right?
A. Right, I didn’t.
Q. You missed where the body was?
A. Completely.
Q. Completely. And so they had to kind of come over and pull up the rug and say, “Here,” or - -
A. They didn’t say “Here.” They just turned the rug back and I walked to where they turned the rug back.
Q. What did you see when - -
A. A bloodstain.
Q. There was a bloodstain?
A. Yes.
Q. There on the floor?
A. Yes.
Q. Was it a wooden floor underneath or what was it?
A. It looked like wood.
Q. And the lady and her little daughter were in there?
A. What you people call a den.
Q. Was that just one room away?
A. Yeah.
Q. They were watching this?
A. No, they were watching TV and talking to Clayton Smith.
Q. I mean, they can see what was going on?
A. They could if they wanted to, yeah.
Q. And they could certainly - - How close did you get to them?
A. Probably from here to the end of that thing there, three feet, probably.
Q. You were within two or three feet of them?
A. Yeah.
Q. At one time there in the house?
A. Yeah.
Q. Did they speak to you or - -
A. No.
MR. PONTON: Excuse me.
THE COURT: Yes, sir.
MR. PONTON: Can I approach the bench?
THE COURT: Yes, sir.
(Off-the-record discussion.)
Q. (BY MR. MOODY) How did the - - How did this deal go when you were - - they were trying to take you through the home? How did you enter the home?
A. Through the kitchen door, is what they said was the kitchen door.
Q. Went in through the kitchen door. Who-all went inside?
A. It was Apodaca, he was the first on that went in, and then Perez, the guy that was flying the airplane and Clayton Smith. Those are the only ones I remember.
Q. Okay. Did the lady let you in that door or how did that happen?
A. No, Apodaca let me in the door.
Q. And what part of the house did you go to first?
A. Went into a hallway there at the end of the - - where the door opened up into a hallway. And then we walked down through that to a kitchen, and then we walked through an empty room.
Q. Were you saying anything as that was going on or was it - -
A. No.
Q. Nothing?
A. I wasn’t saying nothing.
Q. Were they saying anything?
A. No, not that I recall.
Q. They were just walking you through a house?
A. Through the house.
Q. And you didn’t say nothing?
A. I didn’t say nothing until we got to the bedroom.
Q. Okay. When you got to a bedroom. What did you say?
A. I asked if this was the bedroom.
Q. You asked?
A. Yes.
Q. “Is this the bedroom?” You didn’t say, “This is the bedroom”?
A. No.
Q. Do you remember their testimony, the police officers, where they said from outside you could tell? You told them, “That’s the bedroom,” from the outside. You didn’t do any of that?
A. No. I said, “I think it’s the bedroom.” I didn’t say it was the bedroom.
Q. Did you point to a certain - -
A. I said, “That’s the living room and then the bedroom,” is the way I said it. And which you can tell the living room from the bedroom.
Q. Okay. How could you tell that?
A. By the location of the house.
Q. What was there about the location of the house that would indicate one room would be the living room versus - -
A. Well, I built plenty of houses. I know. Just knew which was the bedroom and which wasn’t. You could tell by the windows, really, which was the living room window rather than a bedroom window. They are bigger windows and all.
Q. Did you go around looking for the wooden fence?
A. Yes, we walked around there.
Q. Did you show them where the wooden fence was or used to be?
A. The fence was there. It was just rolled up.
Q. The fence was there. It was just rolled up. And so did you tell them, “Well, this is the fence I have been telling you about”?
A. No. I said, “This looks like the fence I was talking about.”
Q. The only reason you were talking about the fence that way was because of this guy that told you - - that showed you a picture?
A. Smith told me about the wooden fence up there the day before that. He told - - You know, the day before that he told me about a wooden fence. That’s while we were sitting there talking.
Q. Do you remember telling them about the - - leaving that one curtain or something closed?
A. I did after we got in, because it was closed.
Q. Well, no, you weren’t telling them it was closed today. You must have been telling them it was closed on that other day.
A. No.
Q. You said, “It’s closed now”?
A. I didn’t tell them when it was closed. I just said it was closed.
Q. You didn’t tell them, “That’s the one I closed”?
A. No. They started telling me about the bloody sheets and how come the blood on the bed and stuff like that.
Q. They told you about the bloody sheets, the blood on the bed, and what did you say about that?
A. Well, that’s when - - that’s where she was supposed to have been first struck, according to what I listened to.
Q. Did you go into the bathroom?
A. I was walked back to the door. I didn’t go inside.
Q. Did you have any comment about that?
A. I just said, “This is the bathroom.”
Q. Had Detective Uribe warned you of your rights prior to going on this trip?
A. Not that I recall, not on this trip. He warned them - - I got them up in Sierra Blanca but not on this trip.
Q. You don’t remember or you weren’t?
A. I’m sure he didn’t.
Q. You’re sure he did not?
A. No.
Q. Of course, as far as you were concerned, it wouldn’t have mattered much if they had, anyway, would it? I mean, you - -
A. No, because I had to solve a case, anyway, or go to Huntsville, like I told you.
Q. So you would have - - whether they read your rights or didn’t read you your rights, you would have said, “I understand my rights. I waive them freely and voluntarily and, here, I’ll show you where the house is”?
A. That’s right. I had to, because if I hadn’t solved the murder case, well, then, I would have been in Huntsville. I wasn’t about to give up the things I had then.
Q. When you came back down the freeway, did the discussion ever center in on that truck stop again?
A. Not coming back, no.
Q. When did they start going into the truck stop?
A. They went into it while we was sitting there in front of of it.
Q. Before you left?
A. Yes.
Q. And what did they ask you about the truck stop?
A. They asked me if that’s the truck stop I was talking about and I said, “Yes, that’s where I was at.”
Q. When did the issue of you and the truck stop come up, as far as selling property?
A. It came up in the office upstairs.
Q. Back - -
A. After we had come back.
Q. After you had come back. Before or after the videotape?
A. Seemed like it was after the video.
Q. What did they want to know?
A. They wanted to know where I had sole the stuff at, and I couldn’t think of no place. That’s the only place I knew in town, so that’s what I told them.
Q. Did they ask you for a description of the waitresses that you saw?
A. I tried to give them the same description of the waitresses I saw there the first time when I was in there in ’81.
Q. So you were giving them a description of waitresses you saw there in 1981?
A. Yes.
Q. And it just so happened that it ended up matching the waitresses that worked there in 1983, also?
A. According to what they say, yeah.
Q. Were you shocked when you found out that they identified you?
A. A little bit, yeah. That’s unusual, you know, for them, as many people that comes into a truck stop, to remember somebody that walks into a truck stop.
Q. Of course, you’re kind of an unusual person, right, people would recognize you?
A. I’m not that unusual.
Q. Well, now, you do have one eye that is unusual?
A. You wouldn’t know it if I was on the street myself. You wouldn’t know it.
Q. You don’t think you can tell from looking at you that you’ve got a - -
A. You do now because it’s got an infection in it. But you wouldn’t on the street.
Q. You didn’t always have trouble with that?
A. No.
Q. At the time you had bad teeth, didn’t you?
A. Yeah, I had part of them knocked out and part of them was rotten.
Q. I think since you have been to Huntsville you have got your teeth - - have you got them all fixed up now?
A. No.
Q. Kind of fixed up?
A. Partly.
Q. Partly fixed up?
A. Yep.
Q. Do you have any explanation why those waitresses have identified you - -
A. I have no idea.
Q. - - as selling property there? Just - -
A. I don’t even know whether they have identified me or not. All I know is my picture was took to them and they said that was it. I don’t know.
Q. But, I mean, you don’t think you have ever met them before? You don’t think you - -
A. No, not unless they was the ones in ’81. That’s the only way they could have ever seen me.
Q. And - - But, I mean, you don’t know of any - - I mean, they don’t have reason to dislike you or anything, do they?
A. I don’t even know them.
Q. There would be no reason for them to lie about that, would there?
A. I guess not. Like I say, I don’t know.
Q. Now, the videotaped confession, when you went in to videotape again, they carefully warned you of your rights?
A. I guess. I don’t know if they did or not. I think they did.
Q. Were you under any medication at the time that you gave this statement on the 20th of September?
A. I was on 500 miligrams of Thorazine four times a day.
Q. At the time you gave this statement?
A. Yes, I was.
Q. Was the being prescribed to you?
A. Yes.
Q. Okay. By whom?
A. Doctor there in Georgetown.
Q. And who was administering this drug to you?
A. The deputies here at the jail.
Q. So our jail records would indicate - -
A. No, not your jail.
Q. Okay. But when you came here - -
A. The records there in Georgetown would indicate it - - or should indicate it, because they was the one that gave it to me.
Q. When you spent the night - -
A. When I came here, I kept the medication in my pocket.
Q. In your pocket?
A. Yes.
Q. And they just let you take it whenever you wanted to?
A. Yes.
Q. They didn’t tell you at certain times of the day, “Well, Henry, it’s time for your Thorazine”?
A. They did if I’m not on dope, yeah.
Q. Or - -
A. Or stop to buy something for me to drink so I could take that medication.
Q. Even though the jail records in Georgetown indicate that you were not on Thorazine on September 20th, 1984, you’re saying that you were?
A. I was on Thorazine.
Q. So somebody has, I guess, falsified those records in Georgetown?
A. The records are kept by the inmates in Georgetown. And the deputies, all they do is just put it down on paper.
Q. The inmates prescribe drugs in Georgetown?
A. Yes, they do.
Q. Which inmates are prescribing drugs?
A. The trusties.
Q. Could you - - What drug could you order - - What kind of drugs could you order through the trusties?
A. Whatever you’re taking.
Q. The trusties order the drugs and they dispense the drugs?
A. Yes. That’s what I’m talking about. They take the medication out of the cabinets, put it in a container, and the deputies bring it around and give it to you.
Q. And then - - Well, yesterday you were talking about Thorazine. That was an interesting subject, how it was getting into your milkshakes.
A. Yes.
Q. And you said you could taste it in your milkshakes?
A. You can, because it has a bitter taste to it.
Q. I was going to ask you what it tastes like. It tastes bitter, Thorazine?
A. Yes.
Q. It does have a bitter taste to it?
A. Yes.
Q. Do you have any idea why? I mean, if you had it at your disposal, as much Thorazine as you wanted, and you were taking it like they were telling you to take it, why would they be dumping extra Thorazine in your milkshakes?
A. Because I would refuse it at times.
Q. When you refused it, then they would put it in your milkshakes kind of to try and trick you?
A. I don’t know if it was tricking me or not, but they put it in the milkshakes.
Q. But, I mean, when you tasted that didn’t you say, “Well, you ain’t going to trick me. I know there is something in that milkshake. I’m not going to drink it”?
A. A lot of times, I didn’t. A lot of times I would just let it sit there on the table and drink the coffee instead.
Q. Now, when did you stop taking Thorazine?
A. The day I went up to Waco.
Q. And when you went up to Waco you said, I think, that Sheriff Boutwell was sneaking in the jail to talk to you?
A. He was, yes.
Q. How did he get - - How did he get in the jail?
A. There was a court order that nobody was supposed to come in and see me. And he knew one of the deputies there at the jail and so he talked him into letting him in to talk to me.
Q. He knew the deputy?
A. Yes.
Q. Was this at a time you were talking to Vic Feazell, the DA there?
A. This was before I got to talk to him.
Q. Okay.
MR. PONTON: Excuse me, but I object on the grounds of relevancy, what happened in April of ’85 as to whether or not Mr. Lucas gave a voluntary confession in El Paso in September of ’84.
THE COURT: Well, I’ll sustain the objection unless you can tie it in.
MR. MOODY: In other words, you’re saying Vic Feazell is not relevant, Mr. Ponton, so we are not going to hear from him?
MR. PONTON: Not to what Mr. Lucas testified earlier, Mr. Moody.
Q. (BY MR. MOODY) What did you and Vic Feazell talk about?
A. We didn’t talk no more.
Q. What did you talk about back then?
A. He wanted to know whether I done three cases in his county.
Q. Where did he meet with you?
A. He met with me there in the courthouse.
Q. In his office?
A. I don’t know whether it was his office or not, but it was up there at the courthouse. The interview room is what I call it.
Q. And is he the one that convinced you that you ought to stop giving the confessions or - -
A. No.
Q. Who convinced you to stop giving the confessions?
A. Myself and Sister Clemmie.
Q. It didn’t have anything to do with Hugh Aynesworth or Vic Feazell?
A. No.
Q. When did you and Sister Clemmie decide that you ought to stop giving false confessions?
A. I talked to her about giving false confessions, and she said she thought I should quit it because, you know, if I was giving false confessions, that wouldn’t be Christian.
Q. And when did you tell Sister Clemmie that?
A. While I was in Waco.
Q. You didn’t tell her that until you were in Waco?
A. No.
Q. Up until that time, I guess, you had just been - - you had been lying to her, too?
A. I had. She had a nervous breakdown and had to go to the hospital.
Q. Are you proud of having done that to Sister Clemmie?
A. No, I’m not.
Q. When you were telling all those confessions, she really believed you, didn’t she?
A. Yes, she did.
Q. She really believed she had converted you, didn’t she?
A. But you had just - - you had tricked her, too?
A. I lied to her at that time, yes.
Q. Sister Clemmie was one of the people encouraging you to keep telling these confessions, wasn’t she?
A. She had to, yes.
Q. She had to encourage you to tell the confessions?
A. That’s right.
Q. How come she had to?
A. Because she was threatened that if she didn’t cooperate with the rangers and Sheriff Boutwell that she would lose he jail ministry.
Q. She was threatened, too?
A. The times that I was.
Q. So - - I mean, if she was threatened, then she must have known that these confessions were false?
A. She had an idea, but she didn’t know for sure.
Q. Why did you think Sister Clemmie went along with this?
A. I have no idea. Like I say - - I mean, anything she has got to say, she will be here to say it. I can’t speak for her.
Q. She did not, apparently, expose these issues of your - -of these threats?
A. Right.
Q. At all?
A. No.
Q. Was she telling you that she was being threatened?
A. Yes.
Q. And you were telling her you were being threatened?
A. We both had been called in the office at the same time, so we knew what went on.
Q. Exactly who was threatening you?
A. Sheriff Boutwell and Ranger Prince.
Q. Those are the only two?
A. Yes.
Q. And exactly what did they tell you and Clemmie in these meetings?
A. They told me personally that if I didn’t cooperate with them and do what they wanted me to do, that I would go to death row, I would never see her again, and I would lose all the stuff that I had in Georgetown and I would never get out of death row. That’s what they told me.
Q. And that’s what they told her in your presence; she was in your presence when they told you?
A. Yes, she was.
Q. And what did they tell her?
A. They told her that if she couldn’t cooperate with them she didn’t have to come back to the jail anymore.
Q. And did these - - When did these threats first begin?
A. Back around the first part of ’84.
Q. What, you saying the first part, in January, February, March, when?
A. It was probably in between March or April, somewhere in there. I don’t remember exactly. It was after I came back from that trial I had down in San Angelo.
Q. After orange socks?
A. Yeah.
Q. Now, you had met Sister Clemmie before you went down for orange socks?
A. I had met her Christmas Day.
Q. Christmas Day, ’83.
A. Yes.
Q. How did you meet her?
A. She brought me a Bible.
Q. And you’re familiar with her story about how, you know, she just - - she just stopped there, and she didn’t really want to stop and the Lord told her to stop and so she did?
A. Yes.
Q. And after she talked to you, you decided to start, you know, telling the whole truth. Right?
A. That’s what I was telling her, because I couldn’t tell her no different.
Q. Okay. But up to that time, the threats were not being made - - at Christmas time and in there - -
A. They were made to me but not to her, because she didn’t know.
Q. But before orange socks happens, they can’t send you to death row. You don’t have a conviction.
A. They Already planned for me to go to death row before I was ever tried.
Q. They were just going to execute you without a trial or what?
A. No.
Q. How were they going to get you to death row without a trial?
A. By using false confessions, by using false evidence that they had me put together before the trial.
Q. You’re saying they planned on this before the trial, that they were going to do it - -
A. Yes, I am, and I have proof of it.
Q. They’re going to get you in death row without a trial?
A. I did not say without a trial. I said they had already planned me going to death row before I ever was tried on it, and I have proof of that.
Q. Well, where is it?
A. Well, they are not here yet. They will be here.
Q. Oh, in this hearing?
A. Well, in this hearing, yes.
Q. So you’ve got witnesses or documents or what?
A. Witnesses.
Q. You got tape recordings?
A. I don’t know what they have. They should have.
Q. Can you kind of give us a hint of what that is?
A. I don’t know.
MR. PONTON: I object to the witness - -
THE COURT: Well, he answered the question. He doesn’t know. Go on to something else.
Q. (BY MR. MOODY) So they already had this plan on you going to death row before orange socks ever went to trial?
A. Yes, sir.
Q. Then they were going to - - I mean, and you knew about that plan?
A. I was told about it, yes.
Q. Well, why did you cooperate with them, I mean, if you knew they were going to send you there, anyway?
A. I didn’t have nothing to lose, so what did I care?
Q. What do you mean, you didn’t have anything to lose?
A. I had a life sentence. I had a 75-year sentence, so what more could they do to me? There wasn’t any more to lose.
Q. Well, they could execute you?
A. I already told them I tried to commit suicide.
Q. When did you tell them that?
A. In court.
Q. Where was that?
A. There in Montaque County.
Q. And so you told them about your legal suicide. Why did you want to commit legal suicide?
A. Why shouldn’t I? Everybody was against me, anyway, so why should I worry about it?
Q. Who was everybody that was against you?
A. Everybody I talked to.
Q. But legal suicide, you’re talking about back in Montaque County. That’s even before you’re convicted for either Kate Rich or Becky Powell?
A. No, sir, it is not.
Q. When did you want to start committing legal suicide?
A. After I left there.
Q. You didn’t want to commit legal suicide before?
A. Nope.
Q. But yet you were confessing to a whole lot of murders there in Montaque County?
A. And every one of them was no cases, to every one that I gave them.
Q. Well, now, that’s - - You know, remember that one in Odessa you gave them about Beverly Latrell?
A. Yeah, after they brought me the pictures and everything to it.
Q. But that was in Montaque County?
A. I know it was.
Q. And also the one about the headless body over there in Plainview, Texas?
A. True.
Q. You told Ranger Ryan about that?
A. That they tried to place a head that didn’t belong to the body.
Q. So you told Ranger Ryan about those cases, the one in the trailer house in Odessa. How did you know about the one in the trailer house in Odessa when you told Ranger Ryan about that in your original 77?
A. That isn’t in the original 77.
Q. Are you sure?
A. Yes, I am.
Q. Let’s see here. Where is that? Didn’t you put that exhibit in here someplace?
MR. PONTON: Those original 77?
MR. MOODY: Did you put that in evidence, Mr. Ponton?
MR. PONTON: The 77 is in evidence, and it’s called Phil Ryan’s notebook and it’s in a manila folder and it’s about that thick.
Q. (BY MR. MOODY) Do you remember this? This is that notebook. Is that the one with the original77?
A. No, it is not, because the one that was the original 77 is on notebook paper just like over there.
Q. Yeah, I know. This is a copy of that.
A. That don’t look like it. This here - - I’m not even talking about this here. It’s one of those pads like that is over yonder, the original 77.
Q. Oh, well, I thought - - When you told the defense attorneys yesterday that this was the original 77, and now you’re telling us this is not the original 77?
A. Well, I don’t know what this piece here is. I can only tell you what the original 77 was wrote on. This here’s a - - This book here, it belonged to Phil Ryan. This is what he wrote.
Q. Right. He was writing down from you the original 77 cases that you were telling him. Right?
A. I don’t know whether he was or not.
Q. I mean, where else did he get these from? Did he just make these up or what?
A. I don’t know whether that’s the same ones or not, because the ones that I had was on different paper, I’m telling you.
Q. He was not taking the notes down from you?
A. He had a tape recorder going. That’s all I can tell you.
Q. He wasn’t taking down - - anything down in a little notebook like this, a spiral notebook?
A. Not at the time, no.
Q. See, here is the number 5 case right here. It says, “Junction, Plainview, I-10. Date, 1979. Death, cut head off, knife. Started” - - What is this? “Strangling, stab back, white female, 20, medium, red hair, lots of makeup, five-two, 135, pretty.
“Picked up, put head in sack, dropped in Arizona, body”
A. Do you see any I-10 that ever run through Plainview, Texas? I never have.
Q. No, you see the 8 and 10 there is the intersection of - - That’s Arizona here. This is - - It has got a question mark by that, I-10, question mark.
A. I don’t know anything about that.
Q. You don’t know anything about that? You didn’t ever give any - - You didn’t give this information to Ranger Ryan?
A. I did in 1979.
Q. You gave him that?
A. That’s a description of somebody with a - - That was in 1979, but the case was never solved.
Q. Cut head off, knife?
A. There was no case like it.
Q. No case like that?
A. No, sir.
Q. There is no case like that in Plainview, Texas?
A. That’s right.
Q. Where a head was - - headless body?
A. Well, I understand that there was a headless body found in Plainview, around Plainview, but it was not mine. And I told them that. And they went back and checked the head against the body, and it didn’t match.
Q. How come you got - - What about this part when you’re telling them that the head is in Arizona and, sure enough, there was a skull in Arizona?
A. It was nowhere around I-10.
Q. You don’t think so?
A. No, sir. I know it wasn’t.
Q. You don’t think it was around the Phoenix area?
A. No, it wasn’t.
Q. Does I-10 run through Phoenix?
A. I don’t know that. No, it doesn’t. At the place where I told them the body - - the head would have been at, there was no heads whatsoever.
Q. How do you know that?
A. Because I know where they found the head at.
Q. How do you know?
A. We went over the whole thing, me and my attorneys did.
Q. Which attorneys?
A. The one up in Plainview.
Q. Let me - -
MR. MOODY: Let me find these others, Your Honor.
THE COURT: Mr. Moody, when you get to a reasonable stopping place, let’s stop for the day and I’ll take up this other. I’m not trying to hurry you - -
MR. MOODY: Oh, I know.
MR. PONTON: The other witnesses were not to be here until 4:30, Your Honor, but in anticipation of Mr. Moody’s thumbing through Ranger Ryan’s 77 confessions or false cases he allegedly took from Mr. Lucas, I once again cite to the Court the case of Blackman versus State, which I have previously submitted to the Court. It’s 644 SW 2nd 12, which says when a witness takes the stand and testifies, he doesn’t waive his right against self-incrimination with regards to extraneous offenses. And further, to go into the facts of these offenses means that we can be here for weeks, since Mr. Lucas and other witnesses have said he confessed to several hundred crimes. So on that basis, I would object to going into facts of extraneous offenses on those two bases.
MR. MOODY: Well, Your Honor, I mean, this is a defense exhibit that they entered into evidence, and I think I have a right to cross-examine him about it.
THE COURT: Well, there is no question about that, Mr. Moody. I’m going to let you go ahead and do it. Please try to, you know, get to those that have something to do - -
MR. MOODY: I know, Your Honor. I’m only going to talk about two or three of them in here.
Q. (BY MR. MOODY) Let’s see. We were over on the issue of this 20th of September videotape, and we asked you that day on the videotape, “Have you used alcohol or drugs recently?” And your answer, “No alcohol. I’m taking an antibiotic for my stomach.” And then, “For your stomach?” And the answer is, “Yes, for my stomach.” “For your stomach disorder?” And that’s it. You forgot to tell us about the Thorazine there?
A. That’s right.
Q. Why did you forget that?
A. Because I knew you couldn’t take a confession while I was under drugs.
Q. But you were taking Thorazine and you didn’t tell us about it?
A. No, I did not.
Q. But you were taking Thorazine and you didn’t tell us about it?
A. No, I did not.
Q. Were we supposed to guess or what?
A. No, you wasn’t supposed to know.
Q. And you looked all drugged up in that videotaped confession? You saw yourself on TV here the other day?
A. I didn’t pay that much attention to it.
Q. Didn’t we ask you if you were tired?
A. I guess you did. I don’t know.
Q. Didn’t you say, “I’m not that tired”? And you still - - And then we said, “You’re no that tired? Do you still wish to continue with this?” And then you said, “Yes.” I mean, did we try to force you to take a confession when you were tired?
A. No, but I wasn’t about to make a second trip out here and go to Huntsville when I got back again.
Q. I mean, we specifically asked you if you were too tired to give that statement and you said no, didn’t you?
A. I said it because I had to say it, yes.
Q. Now, when you gave this videotaped confession, you mentioned again the railroad bridge, the railroad, the bridge. You mentioned a little park. Where did you get that information?
A. That was gave to me before up in Monahans, I guess you would call it.
Q. They told you about a little park?
A. No, they told me about a bridge. We passed the park when we was out there.
Q. So you got to the park because you had been there?
A. Yeah.
Q. Now, in that videotaped confession, said, “I hauled off and hit her and she went sort of backwards like on the bed. And then I swung at her there, and after swinging at her, she got away from me and went towards the living room.”
Where did you get the information about her failing back on the bed, swinging at her some more times there in the bed and then her running towards the living room?
A. Standing there in the house talking about it.
Q. That was Detective Perez?
A. Yes.
Q. Giving you that information?
A. It was, yes.
Q. And all those other officers were there?
A. There was one other one there. The rest of them were standing there in that little empty room.
Q. Then you talked about, “So I walked back into this bedroom and I start going through everything in the bedroom, the dresser, vanity, closet. I got some little box out - - box of silver coins and stuff that was in the closet in there.”
Where did you get the information about that little box that was in the closet?
A. One of the deputies told me - - I don’t know which one it was - - while we was standing there in the bedroom.
Q. They told you that a little box with silver coins and stuff was missing?
A. Yes.
Q. Even though there was nothing in the case at that time to indicate that there was anything like that missing?
A. I don’t know which one of them said it, but one of them said there was a box of small coins in this.
Q. So that’s where you got that information. Was that Detective Perez that told you that?
A. I couldn’t swear to it. I don’t remember. It was one of the deputies standing there, but I wasn’t looking back at them. I was looking out the window.
Q. That you got another couple items out of the closet?
A. They said that the vacuum cleaner come out of the closet and they said another item had come out of the closet while I stood right there in the room.
Q. They knew a vacuum cleaner was missing at that time?
A. Yes, they did.
Q. Who told you that a vacuum cleaner was missing?
A. It was either Perez or Apodaca, but I couldn’t swear which one it was.
Q. And they knew on September 20th that that was missing?
A. Yes.
Q. And they knew that the little box of silver coins was missing?
A. Yes.
Q. And then when you said that you got a couple other things out of the closet, do you remember that else they told you was missing?
A. I don’t remember all items, no. They told me quite a few items were missing.
Q. Do you remember what kind of items?
A. Not offhand, I don’t.
Q. When you got her description in this case, you described her as a blackish gray-haired woman. Why did you change that from what Jerry Smith had told you, that she was gray-haired? Why did you change it to blackish-gray hair?
A. Well, most gray-haired people are black and gray-headed.
Q. Just a guess?
A. Sure.
Q. Nobody was telling you that?
A. Not that I know of, no.
Q. You estimated her weight between 140 and 145 pounds. How did you do that?
A. I just estimated the weight as being that. I didn’t know how fat she was or how skinny she was or anything else.
Q. How did you come up with that? Did you just pull that out of the air?
A. Well, most of your women weighs - - that age usually weighs from 145, 150, 155 pounds, somewhere in that area.
Q. Most old women?
A. Most.
Q. Most old women weight 145 to 150 ponds?
A. Yes.
Q. But the police never gave you her weight?
A. No, they did not.
Q. Her height, five-two or five-three, did they ever give you that?
A. One of them said she was short, so short to me is five-one or five-two, five-three, somewhere in that area.
Q. Who told you she was short?
A. Smith.
Q. Jerry Smith?
A. Yes.
Q. You told them where you placed the axe when you left. Do you remember how you came across that piece of information?
A. Well, they said they found the axe at the door, is what they told me.
Q. They found the axe at the door. And when did they tell you that?
A. While they were standing there.
Q. In the house?
A. Yeah.
Q. It wasn’t you that was saying that?
A. Well, we talked about it. They asked me, “Where was the axe?” and the only place I knew where it could be was there at the door. I didn’t know where the axe was at. So they said, “Yeah, we found the axe at the door.”
Q. So they - - Wait a minute. Let me get this straight. They asked you, “Where was the axe?”
A. Yeah.
Q. And you just said, “Right here by the door?”
A. Yeah.
Q. And you had no idea of where it was. Right?
A. I don’t know.
Q. I mean, for all you know, the axe could have been taken out of the house?
A. Taken anywhere. I don’t know.
Q. You made a wild guess and said, “Well, how about right here by the door by the bedroom”?
A. Well, I was in the bedroom and that was the only door I knew was there, and I said, “The door to the bedroom.” And they said, “That’s right.”
Q. You just count all that as a lucky guess - - or unlucky?
A. I’m just telling you what went in at the house. You asked me and I told you. That’s all I can go into. I don’t know. How it come to that axe there, I don’t know.
Q. You know, that’s how - - did you - - it was definitely not something - - they didn’t tell you in advance that the axe was there?
A. Not that I know of, no.
Q. So in other words, that was something you guessed at?
A. I guess you could call it, because I don’t know where it was there. They told me it was there.
Q. Later in the videotape you mentioned that she fell over on top of something when she was running. How did you come up with that piece of information?
A. Because they told me she fell over a table.
Q. They told you she fell over a table?
A. Yes.
Q. Why didn’t you say in you confession she fell over a table?
A. I did.
Q. In your videotape?
A. Well, if it wasn’t a video, in one of them I did. I don’t know which one. Out of three confessions, they should have got the right one sooner or later.
Q. Yeah. If they were trying to frame you, you’d think that they would have gotten it down perfect.
A. Yeah.
Q. I mean, they could have sat there with the video machine going and we could go, “Henry Lucas, take one,” and when you got some things wrong, “Oh, no, sorry Henry. You got those wrong. Let’s start over again. Henry Lee Lucas, take two,” until maybe we took 100 and throw away the other 99 and keep the good one?
A. That’s right.
Q. But we didn’t do that. Right?
A. I don’t know what you did with the others. I have no idea.
Q. We just - - According to you, we just did one videotape?
A. You did one videotape and you did three written confessions.
Q. Three written confessions?
A. Yes.
Q. Or audiotape confessions?
A. Well, they were audio and they were typed out and then redone afterwards. Every time I come back you wanted a different one.
Q. The one in Sierra Blanca?
A. Yes.
Q. The one from the van ride in February?
A. Right.
Q. And the one from Georgetown?
A. No, there was one done up here in the office.
Q. That’s the other one. That’s the one that you’re adding in that we didn’t get. There is a dispute over it. You’re saying there is one and our offices are saying there is not.
A. There is one.
Q. Who told you that she fell over the top of something or fell over the top - -
A. That was Perez that told me that after it was described to me when we was in the house.
THE COURT: Mr. Moody, let’s find a place to stop.
MR. MOODY: Yeah, I think it’s a good enough place.
THE COURT: We have got to get these lawyers from Dallas back home.
MR. MOODY: All right.
MR. PONTON: Is the witness passed?
MR. MOODY: No. No, no.
THE COURT: No, we are just going to stop. You know, Mr. Ponton, you have stopped is for these people you’re bringing into town.
MR. PONTON: All right, Your Honor. Shall I bring those people in?
THE COURT: Well, I sure do think it would be a good idea.
MR. PONTON: He is excused for now.
THE COURT: Sit down here, Lucas. In fact, if you want to, you can take him on back. Have a nice evening.
MR. MOODY: Are you sure you want to hold this hearing out of the defendant’s presence? He might have - -
THE COURT: On a motion to squash a subpoena? You think we ought to have him here for that? It’s all right with me. He may complain.
MR. PONTON: They are not here, Your Honor.
THE COURT: Well, they are to be here about now. I was going to send Lucas back. Mr. Moody thinks maybe we ought to have Lucas here. I don’t know if you want to waive his presence here for this type of hearing. And I don’t know. Maybe if he wants to waive his - - if Lucas says he doesn’t want to be here - -
MR. PONTON: We ought to have him here. We will be done in just a few minutes.
THE COURT: I would just as soon. It’s a motion to quash a subpoena.
MR. MOODY: I’m with you. I don’t think it’s important. I didn’t want them to raise on appeal he didn’t - -
THE COURT: Well, you better bring him back. You be out there, Mr. Ponton. The minute he gets here, let us know. We can get this started.
(A brief recess was taken.)
THE COURT: Mr. Ponton, are you ready?
MR. PONTON: We are, Your Honor. We would be here, Your Honor, on a motion to quash filed by Charles Babcock from the Jackson and Walker law firm from Dallas. The defense has subpoenaed a witness by the name of Hugh Aynesworth, who is present in court who is standing behind Ms. Pennock, and Hugh Aynesworth as is noted in the movant’s motion here was served with his subpoena yesterday. He had previously had a subpoena issued for him some four weeks or so ago, and for some reason it had been returned unserved to the district clerk’s office here. The defense had not been informed that it had been returned unserved, and as far as I know, Mr. Aynesworth didn’t attempt to avoid that process. But be that as it may, he has been served with the subpoena yesterday and so now we are here because Mr. Babcock has filed his motion. So I guess it’s his motion.
THE COURT: Well, I think it’s his motion, but I think it’s - - Don’t you have the burden of showing that this witness is - -
MR. PONTON: I do, Your Honor, and this witness is a journalist who has been in the journalism business for - - I don’t know - - 20 or 30 years. He has been the co-author of the best-selling book on Ted Bundy.
THE COURT: Well, what does that have to do with this case? Let’s try to get to this case. You have beat around the bush on this case for two weeks, now, so let’s go to this one.
MR. PONTON: Yes, Your Honor. This witness is here because this witness first began reporting on Mr. Lucas back in 1983 when Mr. Lucas first started saying he had killed hundreds of people.
THE COURT: What does he have that is relevant to this case?
MR. PONTON: The relevancy to this case, Your Honor, is that he discovered in late 1983 that MR. Lucas was confessing to crimes he could not have committed. This witness has relevant testimony to give the Court that he discovered that Mr. Lucas was in places other than where these murders occurred and that he found documentary evidence of that. This witness has testimony to the Court that he approached Bob Prince and the Texas Ranger task force as early as February 1984 and told them that Henry Lucas was confessing to crimes he could not commit. This witness has evidence that the Texas Rangers, rather than taking the evidence that he provided to them as early as February 1984 and following up on that evidence that they had a man in their custody who was confessing to crimes he couldn’t commit, instead stonewalled it, did not try to follow up on that information, did not try to see whether or not they had a man who was falsely confessing to cases, but instead they continued for a period of a year after that to continue to take confessions from a man that this witness had told them was not committing the murders that they were taking these confessions from. This witness has evidence to bring to this Court that is highly relevant to the inquiry at hand, which is the voluntariness of the confession that Mr. Lucas made to the case here in El Paso. Now, the Supreme Court, Your Honor, in the case of Miller versus Fenton instructs us that we have to look at the totality of the circumstances in which Mr. Lucas gave this confession. The totality of the circumstances are that every time he came to El Paso to confess to this crime or to appear before the grand jury, he was in the care, custody and control of the Texas Rangers at a time at, that this witness will testify, was after this witness, Hugh Aynesworth, had told the Texas Rangers that Henry Lucas was confessing to crimes that he could not have committed. And therefore, this witness’ testimony is relevant to the inquiry of Mr. Lucas falsely confessing to this crime. It’s a highly compelling need for this witness’ testimony because he was the first one to go in and do some firsthand investigation into the fact that Mr. Lucas was in Maryland and Florida at a time when he was confessing to all these murders to the Texas Rangers. And the testimony that we need to get from him is firsthand information from his mouth which is unavailable from any alternate source. This witness is not here, Your Honor, to produce any documents. He is not here under a subpoena duces tecum. He is not here to testify to any - - whatever any informant may have told him. He is not here to testify to anything that is privileged in - - under the Texas rules of evidence. I cite to the Court Rule 501 of the Texas Rules of Criminal Evidence which were promulgated and took effect September 1st, 1986: “Except as otherwise provided by Constitution, by statute, by these Rules or by other rules prescribed by the Supreme Court, no person has a privilege to refuse to be a witness.”
THE COURT: Well, there is not - - But he is a reporter. These rules don’t apply to reporters.
MR. PONTON: They do, Your Honor.
THE COURT: Reporters have First Amendment rights, Mr. Ponton. Haven’t you heard?
MR. PONTON: I have heard, that, Your Honor, but the first Amendment rights of the reporters fail to get into Chapter V of the rules of evidence promulgated and accepted by the Court of Criminal Appeals of Texas. The - - And furthermore, we are not asking him to disclose any privilege he has. We are not asking him to produce any documents.
And as a matter of fact, I question the standing of Mr. Babcock to even move to quash the subpoena, because what I’m going to ask this witness about is items that happened before this witness went to work for the firm that Mr. Babcock is retained by, the Dallas Times Herald. Because Mr. Aynesworth was a free-lance reporter who was doing this research independently until February of 1985 when he went to work for the Dallas Times Herald.
THE COURT: Well, you know, disclosures by Mr. - - by this witness, Mr. Aynesworth, could very well undermine his First Amendment privilege. We - -
MR. PONTON: I don’t believe there is any First Amendment privilege that would be touched upon by his testimony that he uncovered just through looking at public records where Henry Lucas was when Henry Lucas allegedly had committed certain murders and shared that information with the Texas Ranger task force. I think what his testimony might be relevant to, Your Honor, is a violation of 18 US Code, Section 1512, that the Texas Ranger task force may have been obstructing justice and trying to secrete information that would have exonerated a man in their custody. And I think that if this man were walking down the street as a reporter and saw somebody murder somebody else, that he would have to come into court and be a witness to that like anybody else in this country. And I think that that is what the case of United States versus Nixon, where the President of this country was trying to exert a pressure - - trying to bring presidential privilege to bear to not produce some documents. And the Supreme Court, in an unanimous decision, stated at page 1064 in 41 Lawyer’s Edition 2d, that, “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts within the framework or the rules of evidence.” I believe, Your Honor, that a First Amendment right, a First Amendment privilege would go to the privilege not to disclose an informer, a privilege not to disclose something secret that had been generated during the news gathering process that the reporter was involved in. I don’t believe that that privilege would extend to being a fact witness as to items that that witness shared with the Texas Rangers task force and as to the fact that that witness gave notice to the Texas Rangers six or eight months before Henry Lucas came to El Paso to confess to a crime that occurred when Henry Lucas was actually in Montaque County, Texas. hat is why this witness’ testimony is relevant. The motion to quash by Mr. Babcock has appended to it an opinion written by a district judge in Dallas based in a case that MR. Babcock was involved in in Dallas. He didn’t bring to the Court any cases cited by the court of criminal appeals on criminal subpoenas. He did cite - - Or cited in that opinion are three cases, one of which is a sea cite from Florida, which I don’t think has anything to tell this Court. The couple of other cases, one of them was the Houston Chronicle Publishing Company which was a case that was whether or not a judge could close part of a criminal case to the public. That’s not what we were asking. The other case was whether or not a news company should have to produce documents to help an insurance company settle an arson claim. And that’s not that we are asking. What we are asking is that this man come forth to this case where a man’s - - not only a man’s liberty but a man’s life is at stake in a capital murder prosecution and come forward and be a witness and tell this Court out of his own mouth certain things that he observed, and just like any other witness.
THE COURT: Does he know or understand things, Mr. Ponton, that you can’t find anyplace else?
MR. PONTON: Yes, he does, Your Honor, because he was - -
THE COURT: Well, thank you. That’s all - - You know, you’re getting awful windy, Mr. Ponton.
MR. PONTON: Your Honor - -
THE COURT: We have got another witness here we will get back to.
MR. PONTON: Okay, Your Honor. At this time I would move that this Court deny the motion to quash the subpoena in this case and that this Court order that Hugh Aynesworth come testify in this case, that Henry Lucas, just like the king or anyone else, has the right to everyone’s testimony.
THE COURT: Thank you, Mr. Ponton.
MR. PONTON: Thank you, Your Honor.
THE COURT: Mr. Babcock?
MR. BABCOCK: Yes, Your Honor. Your Honor is quite right, that MR. Aynesworth as a journalist does enjoy a First Amendment privilege and the case that we cited to the Court so holds. And the reason for this privilege, and it is not confirmed, contrary to counsel’s assertions, to confidential sources, but as to the opinion we cited to the Court says the job of a newspaper is to gather as much information as it possibly can with respect to all facets of activity and interest and importance to readers. If it does its job well, logically it’s going to be the repository of a substantial amount of information, and if the reporter has to come down to testify in every single proceeding that he may have had some impact on, the role of the press is going to be thwarted and that’s the reason for this Constitutional privilege. Now, we are not here arguing that under no set of circumstances could - - would Mr. Aynesworth not have to testify. In other words, we are saying that this is a qualified privilege and that the defense in this instance has to make a showing of relevance and compelling need and failure to get it from alternative sources. IN fact, it’s interesting that the Constitutional privileges that was applied in the case cited by defense, U.S. v. Nixon, applies almost the same test. They ask - - They say that you have got to demonstrate a specific need, you have to demonstrate it’s relevant and you have to demonstrate that it is essential to the justice - - essential to the justice of the pending criminal case. We think that same test applies in this matter. It is apparent from the statement of counsel that he is on a fishing expedition. There is no evidence that this witness has that is relevant to this case. It is certainly true that he has reported on the Lucas matter, but I don’t believe that counsel represented to you nor could he represent that this witness knows anything pertinent about this case. He didn’t see the confession. He was not talked to any law enforcement people who have admitted to him that they have been engaged in some misconduct with respect to the confession. He did not witness the crime that is at issue in this case. I don’t care if he is a reporter or just somebody walking down the street who isn’t a reporter, I don’t believe under those circumstances it is appropriate to make him testify. Thank you, Your Honor.
THE COURT: Mr. Babcock - - I mean, Mr. Ponton, let me ask you a question.
MR. BABCOCK: Yes, Your Honor.
THE COURT: You mentioned that Mr. Aynesworth had told police officers a number of times that Mr. Lucas couldn’t have done these things. Do you mean Mr. - - Are you saying that MR. Aynesworth has the power to go tell the police officer, “Stop this investigation, Officer. This man didn’t do it”? Is that what you’re saying?
MR. PONTON: His only power, Your Honor, is to sort truth, to be able to tell the police officers that they were clearing cases based on Lucas’ confessions, and the dates those crimes occurred Mr. Lucas was 2,000 miles away.
THE COURT: Well - -
MR. PONTON: He gave them those documents and they said, “Well, we don’t was to see this, Mr. Aynesworth. We want to keep clearing these cases.” And they continued to do that, Your Honor.
THE COURT: Well - -
MR. PONTON: And that’s what this witness will testify to.
THE COURT: That’s what you’re claiming that he will testify to?
MR. PONTON: Yes, Your Honor.
THE COURT: Well, Mr. Ponton, I’m going to let him testify. If that’s what it is, I think it goes to your motion to suppress this confession, if that is what it is. But, now, if you’re going to get into some type of power that Mr. Aynesworth has to talk to police officers and say “You can’t” - - you know, “Stop the investigation. I know it didn’t happen,” well, then, maybe we could get rid of all our police forces and just let Mr. Aynesworth go out and solve out crimes because he could tell us, you know, he could say, well, this one did it and that one didn’t. And we don’t need to investigate them. We can just let Mr. Aynesworth tell them.
MR. PONTON: Yes, Your Honor.
THE COURT: I don’t think those - -Does he have those - - If he has those powers, we could use them.
MR. PONTON: He has not told me he has those powers, Your Honor.
THE COURT: Well, I’m going to let him testify. I’ll overrule that motion.
I want to ask one question. The - - Is the Nixon that you-all are speaking about the same Nixon that introduced Pepsi-Cola into Russia?
MR. PONTON: Yes, Your Honor.
THE COURT: I thought so. Thank you.
(An evening recess was taken.)
Editor's note: this is the official transcript and it runs verbatim, as the archive's rule for court records requires; at over two hundred thousand characters it is the longest document on this site. One mechanical change was made and nothing else: the dashes that mark a broken-off or self-corrected sentence are printed as a spaced double hyphen, which is the court reporter's own convention, because the archive's house style does not use em dashes. The transcript file supplied to the archive is no longer available here to re-check that substitution against. This archive records Henry Lee Lucas with eleven convictions, around three of them regarded as credible, against some six hundred confessions, and this is the record of him being taken through them. Two things to hold while reading. Nothing said under oath is thereby true: the entire purpose of the El Paso inquiry was that a great deal of what Lucas had told investigators was not. And the people named by him in these pages, as accomplices, as victims, as contacts, were named by a man whose account the courts went on to discount; being named here is not evidence of anything. This belongs to the El Paso County case and the 120th Judicial District. The Clay County trial is published separately as TRANSCRIPTS FROM THE TRIAL OF HENRY LEE LUCAS, and the earlier El Paso sessions as THE EL PASO HEARING: PAGES 1 TO 184 and HENRY LEE LUCAS TESTIFIES: PAGES 1765 TO 1870.