Markham Duff-Smith was a Houston investor who was convicted in August 1981 of capital murder in the 1975 death of his adoptive mother, Gertrude Zabolio. The charge was murder committed for remuneration: the courts found that he had arranged her death through intermediaries rather than carrying it out himself. A Harris County jury sentenced him to death. He was also charged with three counts of capital murder in the July 1979 deaths of his adoptive sister, her husband and their young son, also in Houston, but those charges were never tried. Texas executed him at Huntsville on June 29, 1993.
Little is on record about his life outside the courtroom.
Duff-Smith was the adopted son of Gertrude Zabolio. His adoptive sister, Diana Wanstrath, was married to John Wanstrath, and the couple had a young son. Gertrude Zabolio's husband was Duff-Smith's stepfather. At the time of his 1981 trial Duff-Smith was 34 and was described as a socialite investor. The evidence at trial showed a man who lived beyond his means and had quarreled with his mother over money, and a witness told the jury that he had spoken of wanting her gone.
The Wanstraths had moved to Houston from Vicksburg about a year before the 1979 deaths, when John Wanstrath took a new job there.
Gertrude Zabolio died in Houston on October 15, 1975. The courts did not find that Duff-Smith was present. The case against him was that he had arranged her death and had done so through a chain of men, none of whom was a stranger to the others. He approached Walter Waldhauser Jr., his business partner. Waldhauser went to Paul MacDonald, a bail bondsman, and MacDonald brought in Allen Wayne Janecka, the man who carried out the killing. The prosecution's case was that Duff-Smith also wanted his stepfather dead.
The State charged capital murder under section 19.03(a)(3) of the Texas Penal Code, the provision that covers a killing committed for remuneration. The second paragraph of the indictment alleged that the murder was "committed for remuneration and the promise of remuneration." Texas law made murder for remuneration a capital offense, so the charge carried a possible death sentence.
John and Diana Wanstrath and their young son died in Houston in early July 1979; the date given for the deaths is July 5, 1979. Johnny Bonds, a Houston homicide detective, led the investigation, and his work led to the arrests of Duff-Smith and Waldhauser, the go-between.
The link to 1975 came through a former coworker of Duff-Smith. The coworker had learned from Duff-Smith how Gertrude Zabolio's death was arranged and had said nothing for about three years. In 1979, after reading about the deaths of Duff-Smith's sister and her family, he contacted the homicide detective handling that case.
Duff-Smith was charged with capital murder in the 1979 deaths. When he was sentenced in August 1981 he still faced three capital murder charges in those deaths, and he was never tried for arranging the deaths of his sister, her husband and their child. The dates of the indictments and their exact wording are not on record.
Duff-Smith was tried in Harris County for the 1975 death. The jury took less than 45 minutes to convict him on a Monday and 15 minutes to sentence him the next day, in a verdict reported from Houston on August 4, 1981. Paul MacDonald testified for the prosecution about his own part and Janecka's. Waldhauser had been given immunity in the Zabolio case.
The defense was that Waldhauser and MacDonald had framed him. A defense witness testified that the defense had been fabricated and produced handwritten notes that Duff-Smith conceded were his. A witness also testified that Duff-Smith had admitted arranging the killing. Witnesses who were not accomplices gave evidence on his disputes with his mother and his financial position, and the Court of Criminal Appeals held that this corroborated the accomplice testimony. The Wanstrath deaths came before the jury through the testimony of co-conspirators in both the guilt and punishment phases of the trial, though he was never tried for them.
The jury answered the special issues under article 37.071(b) of the Texas Code of Criminal Procedure in the State's favor, and the sentence was death. Duff-Smith told the court, "I want the death penalty."
Waldhauser took a plea bargain in the Wanstrath cases and received three concurrent 30-year sentences. He was paroled after about nine years. Paul MacDonald testified for the State; the outcome of any case against him is not on record.
Allen Wayne Janecka was tried separately. In 1981 he was convicted of capital murder in the Wanstrath case and sentenced to death. The Court of Criminal Appeals affirmed his conviction and sentence on November 12, 1987. His conviction was later overturned, with the appeals court ruling that the indictment should have named Waldhauser as the person who hired him. Janecka was retried, convicted again in 1993 and sentenced to death again. Texas executed him on July 24, 2003.
On January 16, 1985, the Court of Criminal Appeals, sitting en banc, affirmed Duff-Smith's conviction and sentence in Duff-Smith v. State, 685 S.W.2d 26. Judge Thomas G. Davis wrote the opinion. Rehearing was denied on February 27, 1985. The court rejected his claims that the accomplice testimony on the remuneration element lacked corroboration, that the indictment gave too little notice of the State's theory of his part in the offense, and that two prospective jurors had been improperly excused. It held that his objection to a written "script" he had given a fellow inmate had not been preserved at trial. Judge Teague dissented on one ground of error, and Judge Clinton concurred in the result. The U.S. Supreme Court denied review in 1985.
An execution date of January 10, 1986 was set. Duff-Smith then filed a state habeas petition, which stayed the date. The trial court held an evidentiary hearing and denied relief, the Court of Criminal Appeals denied the application, and the execution was reset for October 8, 1987. He filed a federal petition in September 1987 and received a stay. A magistrate judge held an evidentiary hearing and recommended denial in a report filed October 9, 1990, and on January 28, 1991 the district court adopted it and denied the writ.
The Fifth Circuit granted a certificate of probable cause on ten claims, among them the appointment of substitute counsel, the excusal of jurors, the defense witness's testimony, quashed subpoenas, ineffective assistance of counsel, the sufficiency of the evidence, and the use of unadjudicated conduct at the punishment phase. In Duff-Smith v. Collins, 973 F.2d 1175, the court rejected each claim and affirmed the denial of relief on September 17, 1992. Rehearing was denied on November 13, 1992, and the Supreme Court denied certiorari in 1993.
In June 1993 Duff-Smith filed a second federal petition. The Fifth Circuit, in Duff-Smith v. Collins, 995 F.2d 545, denied his request for a certificate of probable cause and his motion for a stay on June 28, 1993, finding that the petition repeated claims from the first or raised claims that were not new. Amnesty International issued an urgent action on his case on June 9, 1993.
Texas executed Duff-Smith at Huntsville on June 29, 1993. The Texas Department of Criminal Justice lists him as execution number 60, Harris County, aged 46. Amnesty International recorded the same day that he had been executed as scheduled. He had denied any part in the 1979 deaths until shortly before his death, when he said he was responsible for the 1975 and 1979 cases.
The 1975 death is the only killing for which Duff-Smith was convicted. He was charged with three counts of capital murder in the July 1979 deaths, and those charges were never tried, so no court made a finding on them. His statement shortly before his execution, the first time he admitted a part in the Wanstrath deaths and in his mother's death, was never tested in court.
October 15, 1975: Gertrude Zabolio dies in Houston.
July 5, 1979: The deaths of John and Diana Wanstrath and their young son in Houston.
1979: A former coworker of Duff-Smith contacts the homicide detective handling the Wanstrath case.
August 1981: A Harris County jury convicts Duff-Smith of capital murder for the 1975 death and sentences him to death; three capital murder charges for the 1979 deaths remain pending.
January 16, 1985: Texas Court of Criminal Appeals affirms; rehearing denied February 27, 1985.
January 10, 1986: First execution date, stayed when he files a state habeas petition.
September 1987: First federal habeas petition filed.
October 9, 1990: Magistrate judge's report recommends denial; January 28, 1991: district court denies the writ.
September 17, 1992: Fifth Circuit affirms; rehearing denied November 13, 1992.
June 28, 1993: Fifth Circuit denies certificate of probable cause and stay.
June 29, 1993: Executed at Huntsville, Texas.
July 24, 2003: Allen Wayne Janecka executed.