Killing Time

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

The next day McKinney ran into a group of people behind a bar, her statement says. They included Harper and a man identified as "Johnny Ray," whom she thought was the same man she'd seen with Harper the night before. Again Harper warned her not to tell anyone about the gun and instructed her to be his alibi if anyone asked his whereabouts.

"I know that Randy is capable of murder," McKinney wrote, citing his violent behavior against her. "I believe he killed Mrs. Bass."

George Hixson
The defense team (left to right) - Charlton, Wischkaemper, Ward, Taylor, Milstein - scrambles to stave off the execution.
Steve Lowry
The defense team (left to right) - Charlton, Wischkaemper, Ward, Taylor, Milstein - scrambles to stave off the execution.

The lunch rush is over, and Josie Rose takes a break from her East Side restaurant, the Chicken Box. Rose has lived in this lower-income neighborhood of Wichita Falls for 23 years and has been trying to clean it up for just as long. But the battle to rid the streets of crack houses, drug addicts and violent crime has been an uphill one from the start. She points to a house a block away where a group mills aimlessly around the front yard. "That's a crack house," she says. Minutes later a woman staggers down and bums a buck. "I want this shit cleaned up," Rose says with disgust.

The Wichita Falls Police Department does make arrests, but Rose and her neighbors find it curious that while some people are targeted for investigation, others -- including several who have been reported by her group -- seem immune from prosecution. Though she has no proof, it seems obvious to her that the cops rely on snitches to finger suspects in exchange for favors. Others familiar with the department share her sentiments. "I believe that it happens a lot," says Public Defender's investigator Dana Rice. "The D.A. wants a conviction on somebody, and they offer a deal."

Against that backdrop, the testimony of Pat Williams that helped convict Barnes rings especially hollow. While Barnes awaited trial, Williams was busted on two felony drug charges, one for possession of crack and the other for delivering it. Two months before he appeared as a prosecution witness, Williams accepted a plea bargain and received ten years' probation -- contrary to the district attorney's policy at the time, according to sources formerly employed there.

A set of written guidelines from 1992 seems to bear that out. "There shall be no plea bargaining in any felony drug prosecution," the guidelines state flatly. (D.A. Macha says that those guidelines were not in effect the previous year, when Barnes went to trial. Sources from various county criminal justice offices, however, say the guidelines were a restatement of existing policy.)

During the first two years of Williams's sentence, probation officer Jolene Whitten referred four probation violation notices against him to the D.A.'s office. Each time, they died in the D.A.'s office, even though they should have been referred to a judge. "If the probation department recommends that a probation be revoked, a motion to revoke probation shall be filed and a prompt hearing requested," say the 1992 guidelines.

After five years Williams applied for early termination, and his time on probation was cut in half. Unusual again, according to Whitten, who has since moved to the federal court system in Fort Worth. "Usually people who got off probation were the ones who did well on probation," Whitten recalls.

Williams is adamant that he cut no deal for his testimony, as is the assistant D.A. who helped prosecute Barnes. "Never done that," says Gerry Taylor (no relation to appellate attorney Gary Taylor). "Never would do that." Taylor recalls that he took one of the violations to a judge for a hearing (he says the judge wasn't interested in pursuing it), though he can't produce documents to support the claim. And Macha says the decision to cut the probation period came again from the judge, not his office.

Williams now says he's not sure what kind of gun he saw Barnes carrying the night of the murder. Might have been a .32, might have been a .38, he says. (Several others present at the confrontation agree it may have been a .38 -- Barnes says it was a .38, which he got from his father's pickup.) Yet in his initial statement to police and again at trial, he was absolutely certain. As the weapon he bought the next day from Humphrey was exhibited in court, Williams told the prosecutor, "This is the same gun I seen Odell with."

To several of those who have looked at the case in recent years, Williams is one example of how law enforcement used any means necessary to convict Barnes, ignoring evidence that might have thrown doubt on his guilt, excluding other suspects or otherwise guiding the process to an inevitable result.

Judging from the police reports, it appears that once Barnes was identified as the prime suspect, no others were ever investigated, even though names periodically surfaced during interviews. Police apparently thought enough of Randy Harper's potential involvement, for example, that they printed out his rap sheet and tried to meet with him.

Three days after Barnes was arrested, Harper called officer Shephard, refusing to come down to the station for a face-to-face interview. The detective asked only about his knowledge of Barnes's activities before and after the murder. Harper was living in his car, Shephard wrote in his report. "Randy has no place of residence, and of course, no phone, and he has no job."

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