Killing Time

The case against him died from lack of evidence. But Texas still plans to execute Odell Barnes.

The next morning investigators transferred the body and some of the evidence to the Southwest Institute of Forensic Science for an autopsy and analysis. By then Barnes had been fingered as the suspect based on conversations with witnesses who had stopped by the crime scene during the investigation. One was neighborhood teenager Robert Brooks, who told police he'd seen Barnes jump the victim's fence the night of the murder.

With that statement, anonymous tips and Barnes's criminal history, police obtained warrants to arrest him and search for evidence at his home and elsewhere. While riding in a car with his brother on December 1 -- one day after the body was discovered -- Barnes was taken into custody near his home. Police seized a pair of his coveralls that were in the backseat.

Also in the car was Johnny Ray Humphrey, a longtime running buddy who worked with Barnes as a roofer. Several days later Humphrey told a detective that Barnes had given him a gun the afternoon the body was found. The gun, which had belonged to Bass, was then allegedly swapped between several friends in exchange for crack or cash before being recovered by police.

Defense attorney Charlton wonders how many innocent people sit on death row.
Steve Lowry
Defense attorney Charlton wonders how many innocent people sit on death row.
D.A. Barry Macha: "If it's not him, I want to be the first one to know."
Bob Burtman
D.A. Barry Macha: "If it's not him, I want to be the first one to know."

Since Barnes had no money, his defense was assigned to the Wichita County Public Defender's office. But it soon became clear that the attorneys there didn't have the experience or resources to do an adequate job, and they asked to be excused. "We didn't have anybody in the office that could really handle a capital case," says Nancy Botts, one of the attorneys who initially interviewed Barnes. "It was gonna be malpractice for us to handle it."

The case was passed to Wichita Falls defense attorneys Marty Cannedy and Reggie Wilson. According to the rather minimal notes the pair ultimately passed along to the appeals lawyers, they didn't start their investigation of the case until about a month before trial. Wilson says he recalls interviewing a number of witnesses and hiring a private investigator to help, though he can't remember the guy's name. If they gleaned much from their research, it's not clear in their notes or from their presentation in the courtroom.

Not that they were particularly well equipped for the job to begin with: Cannedy had worked only one capital murder trial; so had Wilson -- as a prosecutor, several years earlier. "As far as actual death penalty experience [as a defense lawyer], no," Wilson says. "I believe Marty was designated lead counsel."

The trial of Odell Barnes lasted two weeks. To place him at the scene of the crime, prosecutor Barry Macha brought Robert Brooks to the stand. The witness testified he was driving home from his girlfriend's house the night of the murder. As he passed the Bass residence, Brooks said, he saw Barnes jump her back fence and run off. He told the jury he knew Barnes casually and had seen him only twice before the encounter.

Defense attorney Cannedy hammered on Brooks, pointing out that his version of the incident differed dramatically from the statement he had given police two days after it happened. Not only had Barnes moved much closer to Brooks in the interim (making his original night-time identification from 40 yards more palatable), but he had completely changed the direction he was supposedly traveling.

Cannedy made little of another crucial aspect of Brooks's testimony, however: the time. Brooks confirmed he spotted Barnes at 10:30, even though it had been clearly established that the victim had been dropped off from work at least 45 minutes later.

Pat Williams, another prosecution witness, testified that he'd seen Barnes with the gun that was eventually confiscated by police. The night of the murder, he said, Barnes had brandished the weapon at an apartment complex after a dispute over drugs. Johnny Ray Humphrey repeated his statement to police that Barnes had passed the gun to him the next afternoon, after which he'd traded it to Williams.

In rebuttal, defense witness Marquita Mackey said Humphrey gave her the gun in a bloody rag after the murder. Humphrey's pants had blood on them, Mackey testified. Two other men were in Humphrey's car when the exchange took place, she said, but she couldn't tell if Barnes was one of them.

Otherwise, the prosecution's case was riddled with might-haves: The bullet that killed Bass might have come from the gun in evidence; the blood on the coveralls might have come from the victim; the shoe print on the checkbook cover might have come from the pair belonging to Barnes; the semen in the victim might have been Barnes's; the lamp, which might have gashed the victim's head, had his fingerprint positioned in a way which might have been consistent with a hand holding it upside down as a weapon.

To the jury, "might have" evidently equaled "probably did." The panel took less than three hours to find him guilty. Jurors assessed the death sentence a few days later. An automatic appeal, filed by Cannedy and Wilson primarily on procedural grounds, was dismissed.

The court assigned the Wichita County Public Defender's office to assist Barnes in his further appeals. Though hampered by a lack of resources, investigator Dana Rice interviewed several people whose stories conflicted with those presented at trial, especially concerning possession of the alleged murder weapon. Harvey Neil, who traveled in the same circles as most of the witnesses, told Rice that Johnny Ray Humphrey had approached him with the gun, which was wrapped in a bloody bandanna. Rodney Brown, another neighborhood crony, told essentially the same story, adding that Humphrey seemed nervous and paranoid.

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