http://www.dallasnews.com/sharedcontent/dallas/tsw/stories/090402dntexdnatest.65f75.html
Clarity urged on DNA law
Right to testing debated as fourth inmate nears execution without ruling

09/04/2002

By DIANE JENNINGS / The Dallas Morning News

A death-row inmate from Dallas may be executed in two weeks without a ruling from the Texas Court
of Criminal Appeals on his request for DNA testing.
If the execution of Jesse Joe Patrick goes forward, it will be the fourth that has occurred without a
ruling from the court on a pending issue involving DNA, said Richard Wetzel, the court's general
counsel.
Defense attorneys say the practice goes against the spirit – if not the letter – of a state DNA law that
took effect last year. Prosecutors say the court does not have to rule on every DNA issue, and the law
may need clarification but not an overhaul.
"It's egregious," said Jim Marcus, executive director of the Texas Defender Service. "First of all, there's
a legal matter pending. Second of all, it's the nature of the legal matter – the request for DNA testing –
that could prove the prisoner innocent. To not even rule on the request before a person's executed is
pretty outrageous."
Mr. Patrick was convicted in the brutal slaying of 80-year-old Nina Rutherford Redd 13 years ago. Even
his attorney, Keith Hampton, concedes that the evidence against Mr. Patrick is strong: the victim's
blood on his jeans and in his house, as well as a confession. But the semen found in Ms. Redd's body
was not tested, and Mr. Patrick, who now says he doesn't remember the crime, wants that done
before he is executed.
Last year, a Dallas trial judge refused to authorize a state-paid test, because under the new law only
inmates who have a strong case for proving their innocence qualify. But the judge agreed to let Mr.
Patrick's wife, Hester, whom he met through a British pen pal club and married by proxy in 1997, pay
for the test.
The Dallas district attorney's office protested, asking the Court of Criminal Appeals to stop the testing.
The court did, and in February attorneys for both sides argued for and against allowing the tests to
proceed.

                                                Execution date

With the court's decision still pending, prosecutors went back to the trial judge in May to get an
execution date, which was set for Sept. 17.
"When we asked for a date, we didn't anticipate there wouldn't have been a decision" from the Court of
Criminal Appeals, said Lori Ordiway, chief of the appellate division for the Dallas County district
attorney's office.
She said she would like to have a ruling in the case because prosecutors feel strongly that defendants
aren't entitled to obtain their own DNA tests. "We're protecting the conviction that we feel was rightly
had, and there needs to be some finality," she said. "This case happened 13 years ago."
A ruling would help clarify hundreds of other cases involving DNA tests, Ms. Ordiway said.
Marcie Bowling, the victim's niece, said Mr. Patrick's effort to pay for his own DNA test is "probably
just a last-ditch effort on his lawyer's part," and a ruling by the court is not necessary before his
execution.
"They have in evidence his confession, they have DNA evidence, they have her blood in his house,
which he carried over on his clothing. So I don't see the point," she said.

                                                        Safeguard

The point, said defense attorney Hampton, who held a news conference Tuesday in Austin with Mrs.
Patrick, is that the DNA law was designed to safeguard against executing an innocent person.
"And I don't think the public wants that blood on their hands," he said.
Diane Beckham, senior staff counsel for the Texas District and County Attorneys Association, said
the law's intent is not to make testing available every time a defense lawyer has a new theory about a
crime, but when the test might provide proof of innocence.
"Any time a defendant offers to pay for DNA testing, that's one opportunity when the defendant can
just cloud the water," she said.
Ms. Ordiway said allowing Mr. Patrick to pay for his DNA test would complicate future cases in which
inmates don't meet requirements for a state-paid test but can't afford to pay for their own. Prosecutors
also worry that defense attorneys could use DNA test requests to prolong the already-lengthy
death-penalty process.
"It does go to the finality of judgments," Ms. Beckham said. "If this was the only avenue that capital
murder defendants were ever able to raise the substance of their claims ... that might be of concern."
But a defendant "is entitled to plenty of rulings before he's executed," she said. "I don't necessarily
think he's entitled to a ruling on a DNA motion."
Mr. Hampton pointed out that Mr. Patrick's request for DNA testing, and his offer to pay for it himself,
is not a delay tactic. The issue has been in the courts for more than 18 months, long before the
September execution date was set. He said he doesn't know why the court hasn't issued a ruling, but
the effect is that "nobody is being on the safe side in any of these cases."

                                                    Emergency measure

The state's DNA law took effect as an emergency measure as the Legislature met in the spring of
2001. It provided for state-paid DNA testing in cases in which an inmate could show the trial court that
the results might exonerate him.
The law does not address whether the sentence can go forward pending appeal of the trial court's
decision on testing.
Mr. Wetzel of the Court of Criminal Appeals said the situation is unique in Texas' death-penalty
process. He said he is "not aware of any other instance where an execution could proceed without a
ruling."
Mr. Wetzel cited three capital cases in which executions were carried out while a DNA issue was
before the court.
The attorney for Windell Broussard, executed Jan. 30, filed a DNA request two weeks after the statute
went into effect. A trial judge initially ordered testing, attorney Mike Charlton said, then changed his
mind and set an execution date.

                                                    Other cases

Mr. Charlton appealed to the Texas Court of Criminal Appeals, but "they never did rule on it," he said.
A stay of execution pending review of the case was denied. Mr. Broussard was executed and his
appeal was left unresolved.
The two other cases in which the court did not rule on DNA requests before an execution involved
Vincent Cooks of Dallas and Gerald Tigner of Waco.
Mr. Cooks was executed Dec. 12, 2001, for the 1988 slaying of off-duty Dallas police Officer Gary
McCarthy; Mr. Tigner was executed March 7 for the shooting deaths of James Williams and Michael
Watkins after an argument.
Defense attorneys and prosecutors expect the Legislature to review the DNA testing statute next year.
Defense attorneys say it needs overhauling.
"The whole thing is a mess," Mr. Marcus said. "Obviously, there needs to be a lot of clarification."
Ms. Beckham said the law may need some refining, particularly at the appellate level, but "it's not a
mess at all. The substance of it, and what it does, I think it does very well."

AUSTIN - An inmate facing execution in two weeks is being thwarted by the Dallas County district attorney's office from having DNA tests conducted on genetic materials gathered at the crime scene, the condemned man's lawyer said Tuesday.
But a chief prosecutor in the district attorney's office counters that Jessie Joe Patrick is simply trying to "muddy the waters" as the execution date draws near because overwhelming evidence puts him at the scene of the 1989 rape-slay- ing of 80-year-old Nina Rutherford Redd.
In addition, Patrick, now 44, gave police a signed confession after his arrest, she said.
"If the question is, why not allow him to have a DNA test to settle this once and for all, my answer is that it has been settled by a jury of 12 who looked at all of the evidence," said Lori Ordiway, who runs the Dallas County district attorney's appellate division.
Lawyer Keith Hampton of Austin, who is handling Patrick's appeals, said the tests performed on hair fibers and blood found at both the crime scene and his client's home a few houses away lacked the precision of modern DNA testing. Hampton also said his client suffers from mental illness and brain damage and has no recollection of the crime or the confession.
"Where is the harm of testing?" Hampton said at a news conference in the state Capitol.
Hampton said that he obtained the trial court's permission to have semen samples taken from the Redd's body tested to determine if there was a genetic match to Patrick. The testing, which was being paid for with private money raised on Patrick's behalf, was ordered halted by the Texas Court of Criminal Appeals after the district attorney raised an objection.
Last year, the Legislature enacted a law allowing convicted felons to obtain state-paid DNA testing in cases where they could make a reasonable argument that such testing would lead to their exoneration. Hampton said the Dallas district attorney is attempting to pull the teeth from the new law.
"I am convinced that the Legislature did not intend for their DNA bill to prevent the inmates from [obtaining] DNA tests," Hampton said.
But Ordiway said her office is seeking to preserve the law's integrity by interceding before frivolous requests for DNA testing are granted by Texas courts.
"The law very clearly sets a threshold that inmates must meet," Ordiway said. "Mr. Patrick does not meet that threshold."
For instance, Ordiway said, hair matching Patrick's was found in Redd's home. Teeth marks matching Patrick's were found on the slain woman's arm, Ordiway said. And blood matching the victim's was found on Patrick's clothing and in his home, she added.
"This woman was also known to have kept a large amount of cash at her home," Ordiway said. "Shortly after the murder, the defendant purchased a car and drove to Mississippi."
Redd was raped, beaten and stabbed in her home in the Pleasant Grove section of Dallas on July 8, 1989. Four days later, police arrested Patrick, a career criminal who two years earlier had been paroled after serving less than two years of a four-year sentence on an aggravated assault conviction.

AUSTIN — Less than two weeks before Jesse Patrick is scheduled to be executed for killing an elderly Dallas woman, his attorney is fighting for a DNA test he says could exonerate Patrick.
The test, which was blocked by a state court, should be allowed under a law passed in 2001 that gives certain inmates access to post-conviction DNA testing, said the lawyer, Keith Hampton.
Prosecutors said the test does not meet the rules in the law because it would not clear Patrick of the 13-year-old crime.
There was substantial evidence, including genetic testing and a confession, that proves Patrick’s guilt, said Lori Ordiway, chief of the appellate division in the Dallas County District Attorney’s Office.
“This was a very solid case, and the DNA would not have any effect,” Ordiway said.
Patrick’s request is one of several that have been delayed or blocked by the courts despite the
new law, Hampton said.
Patrick, 44, was convicted of breaking into 80-year-old Nina Rutherford Redd’s home in 1989.  He was sentenced to death by lethal injection for allegedly raping Redd and fatally cutting her throat before stealing her money and fleeing.
Blood was tested using older technology that linked Patrick to the crime, but Hampton believes newer DNA technology will prove without a doubt if the semen belonged to Patrick.
Ordiway said the technology used to test blood, hair and other evidence was older but still accurate.
Hampton said as soon as the DNA law was signed nearly two years ago, he asked the court to OK a test of a semen sample taken from Redd’s body.
Last year, a Dallas judge ruled that Patrick did not meet the guidelines in the law to get state-paid
testing, but the judge allowed the test because Patrick’s family had raised the $1,000 to pay for it.
The prosecutor objected, and the state seized the semen sample and the analysis was ordered
stopped by the Texas Court of Criminal Appeals.
The sample is being held at a North Texas crime lab while Patrick’s attorney continues fighting for
the test before Patrick’s Sept. 17 execution.

AUSTIN — Less than two weeks before Jesse Patrick is scheduled to be executed for killing an elderly Dallas woman, his attorney is fighting for a DNA test he says could exonerate Patrick.
The test, which was blocked by a state court, should be allowed under a law passed in 2001 that gives certain inmates access to post-conviction DNA testing, said the lawyer, Keith Hampton.
Prosecutors said the test does not meet the rules in the law because it would not clear Patrick of the 13-year-old crime.
There was substantial evidence, including genetic testing and a confession, that proves Patrick's guilt, said Lori Ordiway, chief of the appellate division in the Dallas County District Attorney's Office.
"This was a very solid case and the DNA would not have any effect," Ordiway said.
Patrick's request is one of several that have been delayed or blocked by the courts despite the new law, Hampton said.
Patrick, 44, was convicted of breaking into 80-year-old Nina Rutherford Redd's home in 1989. He was sentenced to death by lethal injection for allegedly raping Redd and fatally cutting her throat before stealing her money and fleeing.
Blood was tested using older technology that linked Patrick to the crime, but Hampton believes newer DNA technology will prove without a doubt if the semen belonged to Patrick.
Ordiway said the technology used to test blood, hair and other evidence was older but still accurate.
Hampton said as soon as the DNA law was signed nearly two years ago, he asked the court to OK a test of a semen sample taken from Redd's body.
Last year, a Dallas judge ruled that Patrick did not meet the guidelines in the law to get state-paid
testing, but the judge allowed the test because Patrick's family had raised the $1,000 to pay for it.
The prosecutor objected, and half way through the testing process, the state seized the semen sample and the analysis was ordered stopped by the Texas Court of Criminal Appeals.
The sample is being held at a North Texas crime lab while Patrick's attorney continues fighting for the test before Patrick's scheduled Sept. 17 execution.
"Where is the harm in testing that? It's either him or it's not him," Hampton said.
"If it is him, then it is a matter of human dignity. He at least knows I did in fact commit this offense. There's no other explanation for it. On the other hand, if it's not him then major questions are raised about this case," Hampton said as Patrick's wife, Hester, sat nearby.
The post-conviction DNA testing measures apply in cases where biological evidence exists and can be subjected to genetic testing and where identity was an issue at trial. The law requires the state to preserve biological evidence that can undergo genetic testing.
It also allows certain prisoners to seek state-paid DNA testing if it was not available at trial. The convict must show by a preponderance of the evidence that there is a substantial question of innocence.
"The ability to pay is not the issue," Ordiway said. "There's got to be finality for the victims' families."
In the 2001 legislative session, Gov. Rick Perry tagged the DNA bill an emergency and told lawmakers to speed its passage. It went into effect immediately after he signed it that April.
State Sen. Robert Duncan, an author of the law, said Tuesday that he was unaware of widespread
problems with the law's interpretation, but would re-examine it during the January legislative session.
"We really do need to listen to what has happened and see if there is any legitimate needs for change. If there are, then we need to recommend them to the Legislature in full," said Duncan, R-Lubbock.
Since April 2001, 36 DNA tests have been granted to convicts — 10 of them having results
favorable to the inmate, Duncan's office said.
 

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