Killing Time

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

Barnes says the confrontation at the housing project over drugs happened a day or two earlier; the weapon he waved that night was a .38 he got from his father's pickup.

Barnes philosophizes about the rash of executions he has seen from the inside. "A lot of us understand why it's happening," he says. "I feel that the courts are not reviewing these cases thoroughly. What good does it do to have adequate lawyers if you're not gonna let 'em present what they find? It's more or less a rush process on human lives."

Mike Charlton thinks Barnes has as good a chance to win a reprieve as anyone. In addition to an innocence claim, his final appeal will include evidence that his trial attorneys were ineffective, that the state relied on false testimony (the blood on the coveralls) and that his rights were violated because of the botched crime scene investigation. "None of the issues that the state relied upon can be considered credible," Charlton says.

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.

That doesn't mean Charlton is optimistic about the result. He has seen others go down despite the appearance of innocence. "You just have to wonder how many cases are slipping through the cracks," he says. "We are in such a rush to judgment that we ignore the possibility that these people were innocent, or that their trials were profoundly unfair."

Whether his appeal will be enough remains to be seen, but the odds are slim. Court decisions have consistently created new barriers for claims, mirroring an increasingly harsh political climate. Judicial rulings and legislation now require lawyers to show more than that their clients are merely innocent. "In the current state of affairs, absolute innocence can't prevent you from being executed," says noted appellate lawyer Dick Burr. "It is the most shocking development that I have seen in the 20-plus years I have done death penalty work."

"I can't imagine a worse state of affairs in any legal system in any country," Burr continues. "What could be worse than putting someone to death because they were wrongly convicted? It just makes a mockery of what we call justice."

E-mail Bob Burtman at

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